Posts tagged "Weekly"

Dental Service of Massachusetts, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 10-059-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us   SJC-12346   DENTAL SERVICE OF MASSACHUSETTS, INC.  vs. COMMISSIONER OF REVENUE.       Suffolk.     December 5, 2017. – April 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Taxation, Abatement, Insurance company, Excise.  Practice, Civil, Abatement.  Insurance, Health and accident, Group, Coverage.  Statute, Construction.  Words, “Covered persons.”       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court granted an application for direct appellate review.     David C. Kravitz, Assistant State Solicitor, for Commissioner of Revenue. Daniel P. Ryan (David J. Nagle also present) for the taxpayer. James Roosevelt, Jr., & Rachel M. Wertheimer, for Massachusetts Association of Health Plans, amicus curiae, submitted a brief.          BUDD, J.  The taxpayer, Dental Service of Massachusetts, Inc.,[1] is an insurer that provides dental coverage through preferred provider arrangements (PPAs).[2]  Pursuant to G. L. c. 176I, § 11, insurers operating PPAs are obligated to pay annually an excise tax equal to a specified percentage “of the gross premiums received during the preceding calendar year for coverage of covered persons residing in this [C]ommonwealth” (emphasis added).  The term “[c]overed person” is defined in the statute as “any policy holder or other person on whose behalf the organization is obligated to pay for or provide health care services.”  G. L. c. 176I, § 1. The taxpayer and the Commissioner of Revenue (commissioner) disagree regarding whether “covered persons” may sometimes refer to the employer-organizations that contract with insurers, or instead refers only to the individuals receiving health care services (in this case, dental care).[3]  That is, when an employer purchases group insurance on behalf of its employees, does the insurer owe tax on premiums paid by or on behalf of only those individuals who live in Massachusetts, as the taxpayer contends, or does the insurer owe tax on all premiums received from the Massachusetts-based employer regardless of where its individual employees reside, as the commissioner contends.  We agree with the Appellate Tax Board (board), and conclude that “covered persons” as used in G. L. c. 176I, § 11, refers solely to natural persons who, as employees, receive insurance coverage for health care services under a group insurance plan, rather than employer entities.[4] Background.  The statute governing PPAs, G. L. c. 176I, was enacted in 1988.  St. 1988, c. 23, § 65.  Chapter 176I includes an assessment provision that requires “[e]very organization . . . […]

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Posted by Massachusetts Legal Resources - April 14, 2018 at 1:21 am

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Commonwealth v. Pereira (Lawyers Weekly No. 11-045-18)

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; SJCReporter@sjc.state.ma.us   16-P-975                                        Appeals Court   COMMONWEALTH  vs.  MARIA C. PEREIRA.     No. 16-P-975.   Plymouth.     December 4, 2017. – April 13, 2018.   Present:  Sacks, Ditkoff, & Singh, JJ.     Practice, Criminal, Revocation of probation, Restitution, Newspaper article.  Constitutional Law, Freedom of speech and press.  Newspaper.  Threatening.       Indictments found and returned in the Superior Court Department on April 18, 2014.   A proceeding for revocation of probation was had before Cornelius J. Moriarty, II, J.     Robert A. O’Meara for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.     SACKS, J.  The defendant appeals from a Superior Court order, entered after hearing, that revoked her probation.  The judge found that the defendant had violated her probation conditions by failing to make required weekly restitution payments and violating a no-contact condition by contacting a newspaper to make a threat against the victim, who then saw it published in an article in the newspaper.  The judge sentenced her to from three and one-half to five years in State prison.  We affirm.[1] Background.  On July 17, 2015, the defendant pleaded guilty to one count of larceny over $ 250, involving embezzlement from her brother’s (victim) construction business in Brockton, where she had worked as a bookkeeper.  The defendant had been indicted on sixteen charges; at the time of her guilty plea, the remaining fifteen charges were dismissed.  The judge sentenced her to five years of probation, with conditions, among others, that she:  (1) make restitution to the victim of $ 103,753.64, which the judge stated was “a substantial break off of what was . . . allegedly stolen,” to be paid at the rate of $ 1000 per week; (2) stay away from the victim’s residence and place of employment, and have no “direct or indirect contact” with him, his wife, or their children; and (3) execute a financial affidavit “stating that there are no available funds remaining from [her 2012] lottery winnings and no other funds or monies available.”[2]  After having been given a weekend to consider this disposition, the defendant had represented to the judge that she was able to pay the $ 1000 weekly amount.  The defendant signed, thereby agreeing to obey, the order of probation conditions. Four days later, on July 21, the defendant filed her financial affidavit, in which she […]

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Posted by Massachusetts Legal Resources - April 13, 2018 at 9:47 pm

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Commonwealth v. Cruz (Lawyers Weekly No. 11-044-18)

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; SJCReporter@sjc.state.ma.us   16-P-1299                                       Appeals Court   COMMONWEALTH  vs.  ROBERTO CRUZ.     No. 16-P-1299.   Essex.     November 8, 2017. – April 13, 2018.   Present:  Milkey, Blake, & Singh, JJ.     Indecent Assault and Battery.  Practice, Criminal, Required finding.       Indictments found and returned in the Superior Court Department on June 15, 2015.   The cases were tried before Richard E. Welch, III, J.     Daniel P. Tarlow for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.     SINGH, J.  Following a jury trial in the Superior Court, the defendant was convicted of two counts of indecent assault and battery on a child,[1] subsequent offense,[2] and sentenced to fifteen years to fifteen years and one day in State prison.[3]  On appeal, the defendant argues that there was insufficient evidence to support his convictions.  We agree and therefore reverse the judgments and set aside the verdicts. Facts.  In the light most favorable to the Commonwealth, the jury could have found the following facts.  Jane (a pseudonym), a thirteen year old girl, was an intern at an aviation company in the summer of 2014.  While she was working one day, the defendant, an almost sixty year old man who she had met before at the airport, waved her over to him.  After a brief conversation, the defendant told her he would like to get her a gift for her upcoming birthday.  He said that he would like to give her a hug, but that they should do it in another room.  Jane went into a nearby hallway for a while, and waited, then returned to work after a couple of minutes.  When she later saw him again in the airplane hangar, she asked if the defendant still wanted the hug,[4] and he hugged her briefly around the shoulders. The defendant then asked if Jane wanted another hug, and said that they should go into another room.  He led her to a separate room, with no one else present.  He gave her a second hug, a little tighter, with a kiss on the neck.  This was not “anything that necessarily alarmed [her]” because she believed it was consistent with the way people of “European descent” greeted each other.[5] The defendant then gave Jane a third hug without her permission, which was lower down, on her waist and hips.  […]

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Posted by Massachusetts Legal Resources - April 13, 2018 at 6:12 pm

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Exxon Mobil Corporation v. Attorney General (Lawyers Weekly No. 10-058-18)

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; SJCReporter@sjc.state.ma.us   SJC-12376   EXXON MOBIL CORPORATION  vs.  ATTORNEY GENERAL.       Suffolk.     December 5, 2017. – April 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Attorney General.  Consumer Protection Act, Investigative demand.  Jurisdiction, Personal, Foreign corporation, Long-arm statute.  Due Process of Law, Jurisdiction over nonresident.       Motion filed in the Superior Court Department on June 16, 2016.   The proceeding was heard by Heidi E. Brieger, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Justin Anderson, of the District of Columbia (Jamie D. Brooks & Theodore V. Wells, Jr., of New York, Thomas C. Frongillo, & Caroline K. Simons also present) for the plaintiff. Richard A. Johnston, Assistant Attorney General (Melissa A. Hoffer, I. Andrew Goldberg, Christopher G. Courchesne, Peter C. Mulcahy, & Seth Schofield, Assistant Attorneys General, also present) for the defendant. Wendy B. Jacobs & Shaun A. Goho, for Francis X. Bellotti & others, amici curiae, submitted a brief. Archis A. Parasharami, of the District of Columbia, & Steven P. Lehotsky, for Chamber of Commerce of the United States of America, amicus curiae, submitted a brief.          CYPHER, J.  In 2015, news reporters released internal documents from Exxon Mobil Corporation (Exxon) purporting to show that the company knew, long before the general public, that emissions from fossil fuels — Exxon’s principal product — contributed to global warming and climate change, and that in order to avoid the consequences of climate change it would be necessary to reduce drastically global fossil fuel consumption.  The documents also purported to establish that despite Exxon’s knowledge of climate risks, the company failed to disclose that knowledge to the public, and instead sought to undermine the evidence of climate change altogether, in order to preserve its value as a company. Upon reviewing this information, the Attorney General believed that Exxon’s marketing or sale of fossil fuel products in Massachusetts may have violated the State’s primary consumer protection law, G. L. c. 93A.  Based on her authority under G. L. c. 93A, § 6, the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon’s knowledge of and activities related to climate change. Exxon responded by filing a motion in the Superior Court, pursuant to G. L. c. […]

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Posted by Massachusetts Legal Resources - April 13, 2018 at 2:37 pm

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J.H. v. Commonwealth (Lawyers Weekly No. 10-055-18)

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; SJCReporter@sjc.state.ma.us   SJC-12395   J.H.  vs.  COMMONWEALTH.       Suffolk.     December 7, 2017. – April 12, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Juvenile Court, Delinquent child.  Practice, Criminal, Juvenile delinquency proceeding, Transfer hearing, Lesser included offense, Delay in commencement of prosecution.  Due Process of Law, Notice.  Notice.  Rape.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 3, 2017.   The case was reported by Lenk, J.     Thomas A. Dougherty, III, for the juvenile. Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth. Afton M. Templin, for Youth Advocacy Division of the Committee for Public Counsel Service, amicus curiae, submitted a brief.     KAFKER, J.  A single justice of the county court reserved and reported this case involving the transfer of certain charges from the Juvenile Court to adult court pursuant to G. L. c. 119, § 72A.  In September, 2014, juvenile delinquency complaints were issued against the defendant for the crime of rape of a child with force (three counts) arising out of incidents that occurred seven years earlier when the defendant was sixteen years old and the complainant was thirteen years old.  Because the defendant was not “apprehended” according to the statute until after his nineteenth birthday, he could not be tried in the Juvenile Court.  The judge was faced with discharging the defendant or transferring the charges to adult court.  After a hearing she dismissed the offenses charged for lack of probable cause but transferred the lesser included offenses, statutory rape.  The defendant filed a petition for relief in the county court pursuant to G. L. c. 211, § 3. In her reservation and report, the single justice posed two questions to the full court: “1.  Whether G. L. c. 119, § 72A, permits a Juvenile Court judge, who has dismissed an offense charged for lack of probable cause, to order a defendant to be tried in an adult court for lesser included offenses, where the lesser included offenses are supported by probable cause.   “2.  Whether, if the statute so permits, its application against this defendant would be unconstitutional for failure to have provided him with proper notice of the charges pending against him or the possibility of such a transfer.”   We conclude that G. L. c. 119, § 72A, permits a Juvenile Court judge to transfer lesser included offenses […]

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Posted by Massachusetts Legal Resources - April 13, 2018 at 12:19 am

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In the Matter of Strauss, Ariel J. (Lawyers Weekly No. 10-056-18)

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; SJCReporter@sjc.state.ma.us   SJC-12148   IN THE MATTER OF ARIEL J. STRAUSS.       Suffolk.     January 24, 2018. – April 12, 2018.   Present:  Gants, C.J., Lowy, Cypher, & Kafker, JJ.     Attorney at Law, Disciplinary proceeding, Misuse of client funds, Suspension.       Information filed in the Supreme Judicial Court for the county of Suffolk on January 20, 2016.   The case was heard by Duffly, J.     Terrence D. Pricher, Assistant Bar Counsel. Jeffrey D. Woolf for Board of Bar Overseers. Thomas F. Maffei for the respondent.     LOWY, J.  We consider in this case the information filed by the Board of Bar Overseers (board) that an attorney intentionally misused a client’s funds with temporary deprivation resulting, and its recommendation as to the appropriate level of discipline to be imposed.  A single justice of this court suspended Ariel J. Strauss (respondent) from the practice of law for six months, and the board and bar counsel appealed.[1]  For the reasons that follow, we reverse the order of term suspension and, accepting the board’s recommendation, order an indefinite suspension.[2] Background.  On August 25, 2014, bar counsel filed a two-count petition for discipline against the respondent.  Count one alleged that between June 1, 2012, and September 30, 2013, the respondent failed to properly maintain a check register for his client trust account, and failed to perform a reconciliation of the account periodically.  The respondent did not dispute the underlying facts as to count one, and a hearing committee of the board (committee) agreed that the conduct violated Mass. R. Prof. C. 1.15 (f) (1) (B) and (E), as appearing in 440 Mass. 1338 (2004). The second count involved the respondent’s conduct in connection with the settlement of a client’s personal injury claim.  The committee found that the respondent (1) failed to safeguard the client’s funds in a trust account, in violation of Mass. R. Prof. C. 1.15 (b) (1), as appearing in 440 Mass. 1338 (2004); (2) failed to pay the client the proceeds of her settlement promptly, in violation of Mass. R. Prof. C. 1.15 (c), as appearing in 440 Mass. 1338 (2004); (3) failed to provide the client with notice of withdrawal of his fee, the amount of the fee, an itemized bill for services rendered, and a balance of the client’s funds left in the account, in […]

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Posted by Massachusetts Legal Resources - April 12, 2018 at 8:44 pm

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Commonwealth v. Walters (Lawyers Weekly No. 10-057-18)

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; SJCReportersjc.state.ma.us   SJC-12364   COMMONWEALTH  vs.  MICHAEL WALTERS.       Bristol.     December 4, 2017. – April 12, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Practice, Criminal, Sentence.  Moot Question.       Indictments found and returned in the Superior Court Department on March 28, 2011.   Following review by this court, 472 Mass. 680 (2015), a resentencing hearing was had before E. Susan Garsh, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Ethan C. Stiles for the defendant. Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.          CYPHER, J.  The defendant, Michael J. Walters, was convicted by a jury in the Superior Court of stalking, harassment, two counts of restraining order violations, and two counts of perjury.  While he was serving his State prison sentence for stalking, that conviction was vacated by this court because the evidence was insufficient.  Commonwealth v. Walters, 472 Mass. 680 (2015) (Walters I).  As a result, the defendant was resentenced on the remaining convictions.  At resentencing, the defendant requested that his perjury sentence be deemed “time served” because it was the only other sentence that could have been considered a State prison sentence.  Rather than granting the defendant’s request, however, the trial judge vacated the stalking sentence, consistent with our opinion in Walters I, and imposed the remaining sentences nunc pro tunc to the date of his original sentence.  Consequently, the defendant served his sentences for criminal harassment and a restraining order violation — crimes that normally carry a sentence to a house of correction — in State prison.  The defendant appealed from his resentencing on the ground that the structure of his resentencing scheme was illegal.  Following the Appeals Court’s dismissal of the defendant’s case as moot, we granted further appellate review.  We affirm the decision of the resentencing judge. Background.  1.  First trial and sentences.  On June 12, 2012, the defendant was convicted of stalking, G. L. c. 265, § 43 (a); criminal harassment, G. L. c. 265, § 43A (a); two counts of restraining order violations, G. L. c. 209A, § 7; and two counts of perjury, G. L. c. 268, § 1.  The trial judge sentenced the defendant to the following:  on the charge of stalking, from three to four years in a State prison; on the charge of criminal […]

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Posted by Massachusetts Legal Resources - April 12, 2018 at 5:09 pm

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Commonwealth v. Faherty (Lawyers Weekly No. 11-043-18)

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; SJCReporter@sjc.state.ma.us   16-P-1486                                       Appeals Court   COMMONWEALTH  vs.  KEVIN J. FAHERTY.     No. 16-P-1486.   Middlesex.     December 8, 2017. – April 11, 2018.   Present:  Sacks, Ditkoff, & Singh, JJ.     Motor Vehicle, Operating under the influence.  Evidence, Prior conviction, Intoxication, Blood alcohol test.  Practice, Criminal, Prior conviction, Assistance of counsel, Sentence, Required finding.  Constitutional Law, Assistance of counsel.  Due Process of Law, Assistance of counsel, Blood alcohol test.  Intoxication.       Complaint received and sworn to in the Woburn Division of the District Court Department on December 14, 2015.   The case was tried before David E. Frank, J.     Tasha Kates for the defendant. Gabriel Pell, Assistant District Attorney, for the Commonwealth.     DITKOFF, J.  A District Court jury convicted the defendant, Kevin J. Faherty, of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1).  At a subsequent jury-waived trial, a District Court judge convicted the defendant as a fourth offender.  We are faced with the question whether a subsequent offense may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration.  Concluding that it may be, and rejecting the defendant’s challenge to the sufficiency of the evidence, we affirm. Background.  At approximately 2:30 P.M. on July 4, 2015, the defendant was injured while riding his motorcycle on Pond Street in Stoneham.  A Massachusetts State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of Jim Beam bourbon in the defendant’s saddle bag. The defendant was transported to a hospital.  Hospital records recorded that the defendant’s serum alcohol level was 359 milligrams per deciliter.  An expert from the Office of Alcohol Testing at the Massachusetts State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent. The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted.  He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance.  The jury convicted the defendant on both a theory of impairment and a theory of having a […]

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Posted by Massachusetts Legal Resources - April 11, 2018 at 4:07 pm

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Commonwealth v. Rivers (Lawyers Weekly No. 11-042-18)

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; SJCReporter@sjc.state.ma.us   16-P-1435                                       Appeals Court   COMMONWEALTH  vs.  MATTHEW W. RIVERS.     No. 16-P-1435.   Dukes County.     November 1, 2017. – April 10, 2018.   Present:  Green, C.J., Rubin, & Kinder, JJ.     Constitutional Law, Identification, Voluntariness of statement.  Due Process of Law, Identification.  Identification.  Evidence, Identification, Voluntariness of statement.  Practice, Criminal, Voluntariness of statement, Motion to suppress, Interlocutory appeal.       Complaint received and sworn to in the Edgartown Division of the District Court Department on October 30, 2014.   Pretrial motions to suppress evidence heard by J. Thomas Kirkman, J.   Applications for leave to prosecute interlocutory appeals were heard by Barbara A. Lenk, J., and Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and each appeal was reported to the Appeals Court.     Timothy M. Moriarty for the defendant. Tara L. Johnston, Assistant District Attorney, for the Commonwealth.     GREEN, C.J.  A group altercation outside a party on Martha’s Vineyard led to a complaint charging the defendant with two counts of felony assault and battery.[1]  He now appeals from two orders of a District Court judge denying his motions to suppress (1) evidence of an out-of-court identification made by an assault victim, and (2) statements the defendant made to police after suggestions by an officer that his cooperation would avoid a felony charge.[2]  We affirm the order denying suppression of the identification.  However, we agree with the defendant that the Commonwealth did not meet its burden to prove, beyond reasonable doubt, that the defendant’s statements were voluntary, and accordingly we reverse the order denying his motion to suppress them. Background.  We summarize the motion judge’s subsidiary findings of fact, which the defendant does not contest. On June 28, 2014, the victim went to a party in West Tisbury before going to a party in Oak Bluffs.  He had three or four beers that evening and it was “possible” he had some cocaine. When the victim arrived at the Oak Bluffs party he encountered Matt Brown, whose sister the victim had been dating.  Believing Brown was going to attack him, the victim struck Brown first and was then attacked by several others who cornered him in a parking lot.  The victim was between several cars when he struck Brown, and then the defendant struck the victim in the face twice.  The […]

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Posted by Massachusetts Legal Resources - April 10, 2018 at 3:04 pm

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Dorrian v. LVNV Funding, LLC (and a consolidated case) (Lawyers Weekly No. 10-053-18)

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; SJCReporter@sjc.state.ma.us   SJC-12355   TARA DORRIAN[1]  vs.  LVNV FUNDING, LLC (and a consolidated case[2]).       Suffolk.     January 5, 2018. – April 9, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Debt.  Collection Agency.  Consumer Protection Act, Collection of debt.  Words, “Debt collector.”       Civil actions commenced in the Superior Court Department on August 22 and December 30, 2014.   After consolidation, the case was heard by Janet L. Sanders, J., on motions for class certification and for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     David Schultz (Andrew M. Schneiderman also present) for LVNV Funding, LLC. Kenneth D. Quat (Josef C. Culik also present) for Tara Dorrian & another. The following submitted briefs for amici curiae: Nadine Cohen & Philip Weinberg for Greater Boston Legal Services & others. Merrily S. Gerrish, Special Assistant Attorney General, & Heather L. Bennett for division of banks of the Office of Consumer Affairs and Business Regulation. Donald S. Maurice, Jr., & Brady J. Hermann for Receivables Management Association International, Inc. Daniel S. Blynn, Meredith L. Boylan, & Benjamin E. Horowitz, of the District of Columbia, David L. Feinberg, Joseph L. Demeo, & Lawrence S. Delaney for Cavalry SPV I, LLC.     KAFKER, J.  The primary issue presented is the definition of “debt collector” under G. L. c. 93, § 24, particularly its application to the statute’s licensing requirement.  After being sued for the failure to pay debts, the plaintiffs, Tara Dorrian and Virginia Newton, each individually filed suit against the defendant, LVNV Funding, LLC (LVNV), claiming unlicensed debt collection.  The plaintiffs also alleged violations of G. L. c. 93A, asserted claims of unjust enrichment,[3] and sought to proceed against LVNV in a class action suit.  A judge in the Superior Court consolidated the cases and certified them as a class action.  On cross motions for summary judgment, the judge concluded that LVNV violated G. L. c. 93, § 24A, because it operated as a debt collector without a license and granted summary judgment to the plaintiffs.  On the claim that LVNV violated G. L. c. 93A, the judge granted summary judgment to LVNV because it met the exemption from liability in G. L. c. 93A, § 3, as the division of banks of the Office of Consumer Affairs and Business Regulation (division) had permitted LVNV to operate without a license. […]

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Posted by Massachusetts Legal Resources - April 9, 2018 at 9:11 pm

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