Dow v. Casale (Lawyers Weekly No. 11-076-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑687 Appeals Court RUSSELL DOW vs. GREGORY CASALE. No. 12‑P‑687. Suffolk. November 8, 2012. ‑ June 19, 2013. Present: Cohen, Katzmann, & Wolohojian, JJ. Massachusetts Wage Act. Labor, Wages. Civil action commenced in the Superior Court Department on April 1, 2010. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. W. Paul Needham (Mark A. Johnson with him) for the defendant. Elise Busny (Margaret M. Pinkham with her) for the plaintiff. COHEN, J. In this action pursuant to the Massachusetts Wage Act, G. L. c. 149, §§ 148,[1] 150[2] (Wage Act), Florida resident Russell Dow, an employee of Starbak, Inc.,[3] a corporation organized under the laws of Delaware, with a sole place of business in Massachusetts, brought suit against Starbak’s chief executive officer, Gregory Casale, a Massachusetts resident, seeking unpaid sales commissions of more than $ 100,000, certain unreimbursed expenses, wages in lieu of accrued vacation time, treble damages, and attorney’s fees. In defending Dow’s claim, Casale contended that it would be an impermissible “extraterritorial” application of the statute to permit Dow to avail himself of the private right of action provided in § 150, because Dow did not reside in Massachusetts and did not perform his work “primarily” in Massachusetts. On stipulated facts, a judge of the Superior Court concluded that Dow had more than sufficient “contacts” with Massachusetts to afford him the protection of the Wage Act. Accordingly, he ruled in favor of Dow on the parties’ cross motions for summary judgment, and entered separate and final judgment for Dow. See Mass. R. Civ. P. 54(b), 365 Mass. 820 (1974). Casale appeals, again arguing that, as matter of law, the remedy provided by § 150 does not extend to Dow. After de novo review, see Crocker v. Townsend Oil Co., 464 Mass. 1, 5 (2012), we affirm. Facts. We summarize the stipulated facts that bear on the issue presented. At all relevant times, Starbak was a Massachusetts-based developer and manufacturer of video conferencing software and hardware. Dow began working for Starbak on January 3, 2006, and, throughout his tenure with the company, was its only salesperson. From March 15, 2007, until February 5, 2010, Dow held the title “director of sales.” His written employment agreement with Starbak provided that it “shall be […]