Posts tagged "Services"

Silva v. Todisco Services, Inc. (Lawyers Weekly No. 12-006-17)

CHRISTOPHER SILVA, on behalf of himself and all others similarly situated
TODISCO SERVICES, INC. d/b/a Todisco Towing
Todisco Towing towed Christopher Silva’s motor vehicle without Silva’s consent from a private parking lot in Salem, Massachusetts, to East Boston. The Todisco invoice says this was a “trespass” tow, which presumably means that the vehicle was towed at the request of the property owner or manager because it was parked there illegally in violation of a posted notice. Cf. G.L. c. 266, § 120D. Silva says Todisco charged him $ 169.00, including a $ 90.00 towing charge; a $ 42.00 mileage charge; a $ 35.00 storage charge; and a $ 2.00 fuel surcharge.
Silva alleges that the mileage charge and fuel surcharge were illegal because Todisco’s invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a regulation promulgated by the Department of Public Utilities (“DPU”) that establishes maximum rates for towing vehicles. Silva asserts claims for negligent misrepresentation, intentional fraud, unjust enrichment, violating G.L. c. 93A, and declaratory judgment. He also seeks to represent a class consisting of all people whose motor vehicles were towed by Todisco and were charged a mileage fee or fuel surcharge when Todisco did not record the required information on the tow slip. Silva seeks monetary compensation for damages, punitive damages under c. 93A, equitable relief, and declaratory relief on behalf of himself and the putative class members.
Todisco moves to dismiss this action on the grounds that Silva lacks standing, the DPU has primary jurisdiction, the statute authorizing a fine for violating the tow charge regulation bars any other relief, the cited regulation did not require Todisco to disclose any information, the claims for misrepresentation and fraud cannot be decided on a class-wide basis, and the claims for misrepresentation and fraud and under G.L. c. 93A are all preempted by federal law. The Court concludes that none of these arguments justifies dismissal. It will therefore DENY the motion to dismiss.
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1. Standing. Todisco asserts that Silva lacks standing to bring this action because the allegations in the complaint establish that Todisco’s alleged wrongdoing did not cause Silva himself to suffer any injury. This argument is without merit.
Todisco correctly points out that the complaint alleges that Nathan Silva went to East Boston to retrieve the towed vehicle and paid the $ 169.00 total charge demanded by Todisco.
But the complaint also alleges that Nathan paid the towing charges imposed by Todisco on behalf of Christopher Silva, Nathan was acting as Christopher’s agent, Christopher is the one who actually paid the amount charged by Todisco, and therefore Christopher (not Nathan) is the one who suffered financial harm as a result of Todisco imposing towing charges that were not allowed under 220 C.M.R. § 272.03.
Those allegations plausibly suggest that Todisco breached a legal duty owed to Silva by charging more for an involuntary tow than permitted by law, that Silva himself was injured by Todisco’s actions, and that Silva therefore has standing to bring this action. See G.L. c. 93A, § 9(1) (any person injured by unfair or deceptive act or practice in trade or commerce may bring action in superior court for damages and equitable relief); Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 22-23 (2007) (plaintiff has standing if allegations in complaint plausibly suggest that defendant owed legal duty to plaintiff, breached that duty, and plaintiff suffered injury as a result). Silva was not required to allege in more detail facts showing that Nathan was acting as Silva’s agent and paid Todisco on behalf of Silva. See, e.g., Lopez v. Commonwealth, 463 Mass. 696, 701 (2012) (“detailed factual allegations are not required”); Cannonball Fund, Ltd. v. Dutchess Capital Mgmt., LLC, 84 Mass. App. Ct. 74, 93-95, rev. denied, 466 Mass. 1106 (2013) (plaintiff’s standing is determined based on factual allegations in complaint, assuming them to be true).
2. Primary Jurisdiction. Todisco asserts that the DPU has primary jurisdiction over Silva’s claims, and that the Court should therefore dismiss this action. “The doctrine of primary jurisdiction arises in cases where a plaintiff, ‘in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy’ that includes an issue within the special
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competence of an agency.” Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 121 (2014), quoting Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 220 (1979). This doctrine “has particular applicability when ‘an action raises a question of the validity of an agency practice … or when the issue in litigation involves “technical questions of fact uniquely within the expertise and experience of an agency.” ’ ” Id. (ellipsis in original), quoting Murphy, supra, at 221, quoting in turn Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976).1
The DPU and the Superior Court share jurisdiction over claims that a towing company has violated the Department’s towing rate regulation. Since Silva’s vehicle was towed at the request of the owner or operator of the property where the vehicle had been parked, and without the consent of Silva or any authorized user of the vehicle, Todisco could not charge Silva any more than the maximum amount allowed for such involuntary tows under the applicable DPU regulations. See G.L. c. 266, § 120D. All of Silva’s claims are based on his allegation that Todisco imposed towing charges for mileage and a fuel surcharge without providing information required under 220 C.M.R. § 272.03. This regulation was adopted by the Department pursuant to its authority under G.L. c. 159B, § 6B, to regulate the maximum charges that may be assessed for the involuntary towing of motor vehicles. Anyone affected by a violation of this regulation “may file” a complaint with the Department. G.L. c. 159B, § 21. But this jurisdiction is not exclusive. See Papetti v. Alicandro, 317 Mass. 382, 385-390 (1944). The governing statute provides that the Superior Court retains “jurisdiction in equity to restrain any … violation” of regulations promulgated this statute. See G.L. c. 159B, § 21. In addition, individuals like Silva who contend they have been overcharged may file an action in Superior Court seeking repayment, just
1 The doctrines of exhaustion of administrative remedies and primary jurisdiction serve similar purposes but apply in different circumstances. See Liability Investigative Effort, Inc. v. Medical Malpractice Joint Underwriting Ass’n of Massachusetts, 409 Mass. 734, 750-751 (1991). “The doctrine of exhaustion of administrative remedies contemplates a situation where some administrative action has begun, but has not yet been completed; where there is no administrative proceeding under way, the exhaustion doctrine has no application. In contrast, primary jurisdiction situations arise in cases where a plaintiff, in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy.” Id., quoting Murphy, 377 Mass. at 220.
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as carriers or towers who contend they are owed money under this regulation may file a civil action seeking payment. Cf. Papetti, supra, at 391-393.
Where a lawsuit involves a dispute over which a court and an administrative agency share jurisdiction, as in this case, the court generally has broad discretion as to whether to allow the lawsuit to proceed or instead dismiss or stay the action and refer issues to the agency under the doctrine of primary jurisdiction. See Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass. App. Ct. 794, 801-802 (2009).
But Silva seeks damages and other relief under G.L. c. 93A, § 9. That makes it inappropriate to dismiss or even to stay this case on the ground that the DPU has primary jurisdiction over this dispute.
By statute, individuals who are “entitled to bring an action” under G.L. c. 93A, § 9, “shall not be required to initiate, pursue or exhaust” any administrative remedies before filing suit or obtaining relief under c. 93A in court. See G.L. c. 93A, § 9, ¶ (6). This provision bars courts from dismissing or staying a § 9 claim on the ground that the plaintiff should first seek relief in some other forum. Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 826 (1982). It was added to c. 93A to reverse a contrary ruling by the Supreme Judicial Court. In 1972 the SJC held that an individual claiming he was overcharged by an insurer had to exhaust his administrative remedies before the Commissioner of Insurance before filing suit in Superior Court under c. 93A. See Gordon v. Hardware Mut. Cas. Co., 361 Mass. 582, 585-588 (1972). The Legislature responded to Gordon by enacting “St.1973, c. 939, which amended G.L. c. 93A, s 9, so as to obviate, except in specified cases, the requirement that administrative remedies be exhausted before relief can be granted under c. 93A.” Slaney v. Westwood Auto, Inc., 366 Mass. 688, 691 n.4 (1975).
Although courts retain some discretion to stay § 9 claims to give the defendant the opportunity to initiate a proceeding before an administrative agency, by statute they may do so “only in certain limited circumstances.” Hannon, supra. Specifically, the Legislature has authorized such a stay only if: (a) “there is a substantial likelihood” that the court case could result in an order “that would disrupt or be inconsistent with a regulatory scheme” that applies to the conduct at issue in the case, or (b) the regulatory agency “has a substantial interest in reviewing” the conduct
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at issue and also “has the power to provide substantially the relief sought[.]” G.L. c. 93A, § 9, ¶ (7).
Neither of these statutorily-permissible reasons for staying claims applies in this case. Since Silva seeks an order compelling Todisco to comply with the regulatory scheme that governs involuntary tows, there is little chance that Silva will obtain an order requiring Todisco to do anything inconsistent with the regulatory scheme. And the DPU “lacks authority to order” Todisco to repay “a collected overcharge to customers” or to award the other relief sought by Silva under c. 93A. See Southbridge Water Supply Co. v. Dept. of Pub. Utils., 368 Mass. 300, 310 (1975).
Nor does it make any sense to stay Silva’s common law claims. As the Court just noted, the DPU “is not authorized to order reimbursement of collected charges to customers.” See Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 45 (1979). Furthermore, the question of whether Todisco is charging fees not allowed under the DPU’s towing charge regulations turns on questions of regulatory interpretation that Superior Court judges deal with regularly; it is not a highly technical issue that cannot be understood and fairly resolved without the Department’s specialized expertise. Under these circumstances, Silva should be allowed to press his claim and the putative class claims in court. “This is not a case in which the proper allocation of responsibilities between the courts and an administrative agency calls for judicial forbearance until agency action occurs.” See Columbia Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass. 60, 61-62 (1999) (Superior Court properly retained jurisdiction over counterclaims that provider violated G.L. c. 93A, § 11, by overcharging for chiropractic services, rather than deferring to primary jurisdiction of Board of Registration of Chiropractors, where board had “no authority to award G.L. c. 93A damages” and overcharging claim was “not a complicated issue calling for agency expertise”).
3. Availability of Compensatory Remedy. Todisco notes that the DPU may impose a $ 100 fine to punish a violation of the towing charge regulation. See G.L. c. 159B, § 21. Todisco then asserts that this fine is the exclusive remedy and that Silva may not seek compensatory damages or injunctive relief on behalf of himself or the putative class. This argument is without merit.
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Nothing in § 21 provides or even suggests that courts are barred from ordering repayment of overcharges, punitive damages and attorneys’ fees under c. 93A, or appropriate injunctive relief as a remedy for a violation of this regulation. Cf. J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. 535, 539 (1976) (statute authorizing Alcoholic Beverages Control Commission to impose fine did not create exclusive remedy that would bar court from awarding damages, injunctive relief, and other relief under c. 93A). To the contrary, and as noted above, the power of the DPU to enforce the towing charge regulations is not exclusive. See Papetti, 317 Mass. at 385-390; G.L. c. 159B, § 21. The mere fact that the Legislature authorized imposition of a small fine does not, by itself, make that the exclusive remedy. See Labor Relations Comm’n v. Boston Teachers Union, Local 66, 374 Mass. 79, 92-93 (1977).
4. Legal Obligation to Disclose Mileage and Fuel Information. Todisco next asserts that Silva’s claim fails as a matter of law because nothing in the governing regulation required Todisco to disclose odometer and fuel surcharge information to the customer before imposing and collecting mileage and fuel charges for an involuntary tow. This argument is also without merit.
The regulation cited by Silva expressly required Todisco to provide customers like Silva with the information at issue. With respect to the mileage charge, the regulation provides that the charge is to be “based on round trip mileage from garage to return thereto,” that the towing companying is to “establish the mileage from the service vehicle odometer,” and that it “must include the odometer readings on the tow slip.” See 220 C.M.R. § 272.03, Note 3. With respect to the fuel surcharge, the regulation states that “the towing slip must record” certain specified information. Id., “Fuel Price Surcharge,” ¶ 6. By requiring that certain information be included on the tow slip, the regulation makes clear that this information must be disclosed and provided to the customer.
5. Amenability to Class Certification. Todisco argues that Silva should not be allowed to assert claims for intentional fraud or negligent misrepresentation on behalf of the putative class because the question of actual reliance cannot be decided on a class-wide basis. This argument is premature. Silva has not yet moved for class certification. The proper time to raise this argument is in response to a motion to
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certify the class, which Silva is not required to serve or file at this time. Cf. Massachusetts General Hospital v. Rate Setting Commission, 371 Mass. 705, 713 (1977) (unlike parallel federal rule, Mass. R. Civ. P. 23 does not require that class certification be decided at outset of case).
6. Federal Preemption. Todisco argues that Silva’s claims for intentional fraud, negligent misrepresentation, and violation of the Massachusetts Consumer Protection Act (G.L. c. 93A) are preempted by the Federal Aviation Administration Authorization Act, which bars states from regulating any “price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).
This argument fails because it cannot be squared with a separate provision of this federal law. Congress provided that the preemption provision relied upon by Todisco “does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the regulation of tow truck operations performed without the prior consent or authorization of the owner or operator of the motor vehicle.” Id. § 14501(c)(2)(C). Since Silva’s vehicle was towed without the prior consent or authorization of the vehicle owner or operator, the Commonwealth of Massachusetts is free to regulate the charges imposed by Todisco without running afoul of the FAAAA preemption provision. As a result none of Silva’s claims is preempted. See Tillison v. Gregoire, 424 F.3d 1093, 1100 (9th Cir. 2005) (state regulations that “impact the prices operators charge for non-consensual towing” are “saved from preemption by the exception in FAAAA which allows such regulation of prices”); State v. Transmasters Towing, 168 P.3d 60, 66 (Kansas Ct. App. 2007) (claims under Kansas Consumer Protection Act that charges for involuntary tows were excessive not preempted by FAAAA, in part because they fall within preemption exception of § 14501(c)(2)(C)).
7. Declaratory Relief. Finally, since Silva’s other claims survive the motion to dismiss, his claim seeking declaratory relief under G.L. c. 231A does as well. As explained above, the pleadings in this case make clear that there is an actual controversy between the parties regarding whether the towing charges imposed by Todisco were lawful, and Silva has standing to seek relief. Nothing more is needed to
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state a claim for declaratory relief. See, e.g., Galipault v. Wash Rock Investments, LLC, 65 Mass. App. Ct. 73, 83 (2005).
Defendant’s motion to dismiss this action is DENIED. The Court will conduct a scheduling conference under Mass. R. Civ. P. 16 on February 21, 2017, at 2:00 p.m.
23 January 2017
Kenneth W. Salinger
Justice of the Superior Court read more


Posted by Massachusetts Legal Resources - February 1, 2017 at 8:46 pm

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Padmanabhan v. Centers for Medicare & Medicaid Services (Lawyers Weekly No. 10-019-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;



January 24, 2017.

Practice, Civil, Stay of proceedings, Moot case.  Moot Question.

The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.

In October, 2014, the petitioner commenced an action in the Superior Court, naming as defendants the respondent and certain individuals associated with Cambridge Health Alliance, the city of Cambridge, the Executive Office of Health and Human Services, and others.  As best as we can discern from the record before us, his complaint alleged claims of, among other things, Medicare or Medicaid fraud, which he became aware of during the course of his employment with some of the defendants; and retaliation by his employer when he spoke up about the perceived fraud.  In March, 2015, the case was removed to the United States District Court for the District of Massachusetts.  A judge in that court subsequently allowed a motion to dismiss certain Federal defendants and then remanded the case to the Superior Court.  The petitioner appealed from both the allowance of the motion to dismiss and the remand order to the United States Court of Appeals for the First Circuit, and that appeal remains pending.  Meanwhile, in the Superior Court, shortly after the remand order, the remaining defendants filed motions to dismiss, which, it appears, the petitioner opposed.  The docket further indicates that on June 7, 2016, a status conference was scheduled for July 19, 2016. read more


Posted by Massachusetts Legal Resources - January 24, 2017 at 4:00 pm

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DeVito, et al. v. Longwood Security Services, Inc., et al. (Lawyers Weekly No. 12-169-16)

No. 2013-01724 BLS 1
DEAN DEVITO, JASON OLIVIERA, ALEX VELAZQUEZ, individually, and on behalf
of a class
On June 17, 2015, this court (Frison, J.) certified a class of plaintiffs consisting of
security officers employed, currently or in the immediate past, by defendant, Longwood Security
Services. The principal claim of plaintiffs and the class is that Longwood failed to pay them in
full for wages earned. The claim is brought under the Wage Act, G.L. c. 149, § 148. Briefly
stated, the claim is that for each eight hour shift, thirty minutes were deemed to be a meal break.
Longwood did not include in the employees’ hours worked the thirty minutes per shift for the
unpaid meal break. Plaintiffs claim that the thirty minutes should be compensated as wages
earned because they remained on duty during the meal breaks.
The issue presented by these motions is what legal standard should be applied to
determine whether the thirty minute meal break is compensable working time. Both sides agree
that the issue is one that no Massachusetts appellate court has addressed. Longwood contends
that the test for compensation should be whether the employee’s meal break time was spent
predominantly for the benefit of the employer (the “predominant test”). Plaintiffs, on the other
hand, contend that the test for compensation should be whether the employee was relieved of all
duties (the “relief from duties test”) during the meal break. Based upon Longwood’s view that
the predominant test is applicable, it moves for summary judgment and decertification of the
The parties’ Joint Statement of Material Facts (“SMF”) does not comply with Superior
Court Rule 9A. Instead of precise statements of undisputed fact, the SMF consists of broad,
argumentative statements of position and equally argumentative responses. Of the 82 numbered
paragraphs in the SMF, the vast majority are disputed, denied or qualified by the party opposing
the statement. On that basis alone, the court could conclude that because of the disputes over
material facts summary judgment should be denied. In fact, this court in two previous rulings
denied the parties’ attempts to obtain summary judgment. Nevertheless, the parties persuasively
presented at oral argument that it would aid resolution of the case, and would be necessary in any
event for the trial of the case, for the court to determine which test for compensable time should
be applied to plaintiffs’ claims under Massachusetts law.
Longwood provides private security services at numerous locations, such as housing
developments, hospitals and colleges. Longwood employed each of the plaintiffs as security
officers. Longwood maintains a policy whereby officers may take a meal break, called a “10-7″,
for the “max amount of time” of thirty minutes. Longwood does not pay the officers for the thirty
minute meal break.1 During the meal break, officers must remain in uniform and are not allowed
to leave their assigned sector without permission. Longwood’s written policy states that “you
must keep your radio on while on break and respond when called to, even if during your break.”
As referenced above, plaintiffs’ principal claim is under the Wage Act, G.L. c. 149,
§ 148. Plaintiffs also claim that Longwood’s failure to count the thirty minute meal breaks as
compensable, working time affected whether their hours per week exceeded forty. They allege
that the meal break time should be counted and, as a result, in some weeks they failed to receive
overtime pay in violation of G. L. c. 151, § 1A. For both claims,2 the issue is whether the meal
break time should be counted as compensable, working time.
The Wage Act mandates that an employer pay its employees “the wages earned” within a
certain time period. The statute does not define “wages earned.” The Massachusetts Department
of Labor Standards, however, promulgated applicable regulations. In 2003, the regulations were
codified at 455 Code Mass. Reg. §§ 2.00 et seq. In January 2015, the regulations were re-codified
at 454 Code Mass. Regs. § 27.01 et seq. The regulations were codified “[t]o clarify practices and
policies in the administration and enforcement of the Minimum Fair Wages Act.” Id. While the
Minimum Fair Wages Act refers to c. 151 of the General Laws ( see, § 22 of c. 151), Longwood
does not dispute that the regulations apply to plaintiffs’ Wage Act claim under c. 149. See
1 According to plaintiffs, Longwood assumes that officers take a thirty minute meal break
per shift and “automatically” deducts thirty minutes from hours worked. Longwood denies the
allegation but fails to state how it accounts for the unpaid meal breaks. SMF ¶ 79. It is
undisputed that the meal breaks are unpaid.
2 Plaintiffs also assert common law claims for breach of contract and unjust enrichment.
Longwood’s Reply to Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, p.
The regulations define “Working Time” at 454 Code Mass. Regs. § 27.02:4
Includes all time during which an employee is required to be on the employer’s
premises or to be on duty, or to be at the prescribed work site or at any other
location, and any time worked before or after the end of the normal shift to
complete the work. Working time does not include meal times during which an
employee is relieved of all work-related duties. Working time includes rest
periods of short duration, usually 20 minutes or less. (Emphasis added).
In addition, 454 Code Mass. Regs. § 27.04 provides the following:5
All on-call time is compensable working time unless the employee is not required
to be at the work site or another location, and is effectively free to use his or her
time for his or her own purposes.
Plaintiffs submit that these regulations and the predecessor regulations at 455 Code Mass. Regs.
§ 2.01 (the “regulations”) constitute the governing law with respect to the test to apply for
determining whether the thirty minute meal break provided by Longwood must be paid as wages
In Taggart v. Town of Wakefield, 78 Mass. App. Ct. 421 (2010), the Appeals Court
considered the regulations as a source of authority for determining whether certain types of hours
worked should be counted for the purposes of a claim for wages earned under the Wage Act,
3 See also, G.L. c. 23, § 1, empowering the department with authority and responsibility
over the administration and enforcement of c. 149, as well as c. 151.
4 The definition of “Working Time” in 455 Code. Mass. Regs. § 2.01 is identical in all
material respects. The definition in § 2.01 does not include the last sentence of § 27.02, and
omits a phrase irrelevant to the issue of this case.
5 The definition of on-call time in 455 Code. Mass. Regs. § 2.01 is “[a]n on-call employee
who is not required to be at the work site, and who is effectively free to use his or her time for his
or her own purposes, is not working while on call.”
G.L. c. 149, § 148. “Generally, the types of activities that are considered to be hours worked and
compensable are defined through the State regulatory process. The division of occupational
safety (DOS or division) administers and interprets the Minimum Fair Wage Law, G.L. c. 151,
and the regulations promulgated pursuant to that statute.” Id. at 423, citing the regulations. The
Appeals Court then noted that “[w]e apply the same rules of construction to regulations as to
statutes, and accordingly ascribe the ordinary and common meanings to undefined terms.” Id. at
425 (citation omitted). See also, DeSaint v. Delta Air Lines, Inc., 2015 WL 1888242 at *9 (D.
Mass. (O’Toole, J.) 2015)(applying the same Massachusetts “working time” regulations to claim
under Wage Act).
The definition set forth in the regulations for “working time” is exactly what plaintiffs
contend is the applicable test to determine whether their unpaid thirty minute meal time is
compensable as wages earned. There is no ambiguity that would cause the court to go any
further.6 The thirty minute meal time is compensable unless the employee is relieved of all workrelated
duties. It will be for the finders of fact to determine the terms, rules and practices of
plaintiffs’ employment and whether plaintiffs were relieved of all work-related duties during
their meal breaks. The regulations provide the governing law. Global NAP’s, Inc. v. Awiszus, 457
Mass. 489, 496 (2010)(“a properly promulgated regulation has the force of law and must be
6 I disagree with the federal court in Raposo v. Garelick Farms, LLC, 2014 WL
2468815*8 (D. Mass. 2014) that “all work-related duties” is a term that does not have a plain
given the same deference accorded to a statute”).78
Longwood counters with arguments based entirely on federal law developed under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. Longwood cites several decisions of
federal courts of appeal9 and district courts holding that the test for whether an unpaid meal break
is compensable time is the predominant test. See e.g., Babcock v. Butler County, 806 F. 3d 153,
156 (3d Cir. 2015)(adopting the predominant benefit test which asks “whether the officer is
primarily engaged in work-related duties during meal periods” quoting Armitage v. City of
Emporia, 982 F. 2d 430, 432 (10th Cir. 1992)).
A combination of two reasons, unique to federal law, appears to underlie the adoption of
the predominant test by some federal courts. First, the federal cases reference a decades-old
decision of the United States Supreme Court interpreting the FLSA, Armour & Co. v. Wantock,
323 U.S. 126, 133 (1944). In Armour, the Court affirmed a judgment in favor of employees
seeking to be paid for time when they were on-call and on premises. In doing so, the Court stated
“[w]hether time is spent predominantly for the employer’s benefit or for the employee’s is a
question dependent upon all the circumstances of the case.” Id. The second reason arises from
the nature of a federal regulation. In 1961, the United States Department of Labor issued a
regulation to interpret the FLSA standard. In 29 C.F. R. § 785.19, the DOL stated that an
7 Longwood does not challenge that the regulations were properly promulgated.
8 Plaintiffs also cite opinion letters from the Department of Labor Standards and the
Attorney General supporting the conclusion that the applicable test is “relieved from all duties.”
Such letters are entitled to substantial deference by this court. Global NAP’s Inc., 457 Mass. at
9 The United States Court of Appeals, First Circuit has apparently not rendered a decision
as to which test to apply under the FLSA or Massachusetts law.
employee “must be completely relieved from duty” to have a bona fide, unpaid meal time.
Federal courts adopting the predominant test have “eschewed a literal reading of a Department of
Labor regulation.” Babcock, 806 F. 3d at 156. That is because the federal regulations, unlike the
Massachusetts regulations under G.L. c. 149, § 148, are considered for guidance, only, and not as
controlling law. O’Hara v. Menino, 253 F. Supp. 2d 147, 153 (2003).
Longwood urges this court to adopt the predominant test. It points to Massachusetts
authority holding that, in general, G.L. c. 151, § 1A was “intended to be essentially identical to”
the FLSA. Mullally v. Waste Management of Massachusetts, Inc., 452 Mass. 526, 531 (2008).
Longwood argues that this question of how to define working time should come out the same
way as under the FLSA. But the Supreme Judicial Court’s analysis in Mullally is illustrative. The
Court, having referenced the FLSA, proceeded to look to the Massachusetts regulations (455
Code Mass. Regs. § 2.02 (3)) to determine the relevant issue (calculation of base pay) not FLSA
precedent. Id. at 534-535. Stated another way, where the plain, unambiguous language of the
Massachusetts statute and the Massachusetts regulations governs the legal standard for liability,
there is no reason to draw on FLSA interpretation. See Goodrow v. Lane Bryant, Inc., 432 Mass.
165, 169-170 (2000)(where neither the Massachusetts statute nor the corresponding regulation, or
any Massachusetts appellate decision, defines a key term, the court should apply the common
meaning of words, legislative history, and then to interpretations of analogous federal statutes,
for guidance).
Here, the definition of “Working Time” in the Massachusetts regulations is unambiguous.
No further interpretive guidance is necessary or appropriate. The governing law is the “relieved
of all work-related duties” test as defined in the regulations.
Longwood’s argument for summary judgment depends entirely on the court adopting the
predominant test. In addition, Longwood’s motion to decertify the class is based on adoption of
the predominant test. Having rejected that test, both motions are DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
December 23, 2016
8 read more


Posted by Massachusetts Legal Resources - January 4, 2017 at 2:16 am

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Schubert v. Committee for Public Counsel Services (Lawyers Weekly No. 10-117-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;



August 9, 2016.

Supreme Judicial Court, Superintendence of inferior courts.

The petitioner, attorney Greg T. Schubert, filed papers in the county court entitled “writ of mandamus” and “writ of certiorari” that a single justice treated as a petition pursuant to G. L. c. 211, § 3, and denied.  Schubert appeals, and we  affirm.

The matter stems from a billing dispute between Schubert and the respondent, the Committee for Public Counsel Services (CPCS).  Essentially, CPCS conducted an audit of bills that Schubert submitted for payment to CPCS in connection with legal services that he provided for an indigent defendant.  Pursuant to the CPCS Assigned Counsel Manual, certain administrative proceedings followed the audit, culminating in a hearing.  The hearing officer ultimately rendered a decision adverse to Schubert, after which Schubert filed two separate complaints in the Hampden County Superior Court:  one in the nature of certiorari (HDCV2013-00881) and one for a declaratory judgment (HDCV2014-00141).  CPCS filed a motion to dismiss in each action.  A judge denied the motion in the certiorari action because, at the hearing on the motion, CPCS agreed to give Schubert additional time to file a motion for judgment on the pleadings, as required by Superior Court Standing Order 1-96.  Schubert had not filed such a motion because he did not believe that the standing order applied to his case.  In the declaratory judgment action, the judge did allow CPCS’s motion to dismiss, on the bases that CPCS cannot be sued under G. L. c. 231A, § 2, for a declaratory judgment, and that the individual defendants named in that action were immune from suit. read more


Posted by Massachusetts Legal Resources - August 9, 2016 at 3:50 pm

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Winbrook Communications Services, Inc., et al. v. United States Liability Insurance Company (Lawyers Weekly No. 11-068-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;

15-P-401                                        Appeals Court


No. 15-P-401.

Suffolk.     March 8, 2016. – June 14, 2016.

Present:  Hanlon, Sullivan, & Massing, JJ.

Practice, Civil, Default, Summary judgment.  Insurance, Coverage, Insurer’s obligation to defend, Construction of policy.  Contract, Insurance, Performance and breach.  Damages, Negligent misrepresentation. read more


Posted by Massachusetts Legal Resources - June 15, 2016 at 1:20 am

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N-Tek Construction Services, Inc. v. Hartford Fire Insurance Company (Lawyers Weekly No. 11-028-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;

14-P-1483                                       Appeals Court


No. 14-P-1483.

Essex.     November 5, 2015. – March 14, 2016.

Present:  Agnes, Sullivan, & Blake, JJ.

Public Works, Payment bond.  Surety.  Notice.  Bond, Public works, Construction contract bond.  Contract, Public works, Construction contract, Bond, Surety.

Civil action commenced in the Superior Court Department on November 18, 2010. read more


Posted by Massachusetts Legal Resources - March 14, 2016 at 10:16 pm

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Aurora Loan Services, LLC v. Murphy (Lawyers Weekly No. 11-186-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;

13-P-874                                          Appeals Court


No. 13-P-874.

  Plymouth.    November 4, 2015. – December 11, 2015.

Present:  Berry, Meade, & Maldonado, JJ.

Mortgage, Foreclosure, Real estate.  Real Property, Mortgage, Sale.  Sale, Real estate.  Notice, Foreclosure of mortgage. Practice, Civil, Retroactivity of judicial holding. Retroactivity of Judicial Holding.

Summary process.  Complaint filed in the Southeast Division of the Housing Court Department on February 6, 2012. read more


Posted by Massachusetts Legal Resources - December 11, 2015 at 8:42 pm

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J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-120-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;

12-P-1760                                       Appeals Court


No. 12-P-1760.

Middlesex.     June 2, 2014.  –  September 24, 2014.

Present:  Green, Trainor, & Grainger, JJ.

Division of Administrative Law AppealsDepartment of Developmental ServicesIntellectually Disabled Person. Administrative Law, Judicial review.  Statute, Construction.

Civil action commenced in the Superior Court Department on September 15, 2011. read more


Posted by Massachusetts Legal Resources - September 24, 2014 at 11:06 pm

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G.R. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-011-14)


Posted by Massachusetts Legal Resources - February 20, 2014 at 8:38 am

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P.D. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-013-14)


Posted by Massachusetts Legal Resources - February 20, 2014 at 5:03 am

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