Feeney v. Wave Systems Corp., et al. (Lawyers Weekly No. 12-173-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-01938-BLS2 GERARD T. FEENEY, Plaintiff vs. WAVE SYSTEMS CORP., WILLIAM M. SOLMS, & WALTER A. SHEPHARD, Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT This is an action alleging a failure to pay accrued vacation time in violation of the Massachusetts Wage Act, G.L.c. 149 §148. Plaintiff, a former Chief Financial Officer for Wave Systems Corp. (Wave), has sued not only Wave but two of its officers, CEO and President William M. Solms and CFO Walter A. Shephard. Wave is in bankruptcy, so the claims against it are stayed. Now before the Court are plaintiff’s Motion for Summary Judgment and defendants’ Motion for Partial Summary Judgment. This Court concludes that both motions must be DENIED, except as to the issue of notice raised by the defendants’ motion. Although certain facts in the summary judgment record are undisputed, the record also contains many fact disputes on critical issues. Briefly summarized, the record reveals the following. When Feeney was first hired by Wave in June 1998, the terms of his employment were set forth in an Employment Agreement. In addition to salary, Feeney was entitled to four weeks of vacation “in accordance with such executive benefit plans and policies as have been or may be established by Wave.” Upon termination, Feeney was entitled to be paid for all vacation 2 accrued as of the date of termination. In 2002, however, Wave issued an Employee Handbook which capped vacation pay at a total of 320 hours. There is a dispute of fact as to whether this applied to Feeney. Plaintiff relies heavily on the affidavit submitted by Wave’s former CEO Stephen Sprague in which Sprague states that he decided in or around 2004 not to apply the vacation cap in the Employee Handbook and to permit employees to accrue their vacation time without limitation. However, Solms has submitted a competing affidavit which states that the Handbook controlled and that a vacation cap has been and continued to be applied to employees, including executives like Feeney. Although plaintiff correctly notes that Solms joined the company only in October 2013 and therefore would have no personal knowledge about company policies before that date, there is other evidence in the summary judgment record which backs him up. Specifically, Kathleen Donovan, who worked in the Human Resources Department at Wave and was Wave’s Controller during the relevant time period, states in an affidavit that Sprague never informed her that he was changing what was contained in the Employee Handbook and that it was her understanding that a cap applied. Emails dated in 2007 and 2008 by other […]
Commonwealth v. Feeney (Lawyers Weekly No. 11-098-13)
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‑164 Appeals Court COMMONWEALTH vs. KEVIN FEENEY. No. 12‑P‑164. Suffolk. April 3, 2013. ‑ August 12, 2013. Present: Grasso, Katzmann, & Grainger, JJ. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Waiver. Constitutional Law, Admissions and confessions, Waiver of constitutional rights. Evidence, Admissions and confessions, Voluntariness of statement. Waiver. Complaint found and returned in the Charlestown Division of the Boston Municipal Court Department on January 31, 2011. Following transfer to the Central Division of the Boston Municipal Court Department, a pretrial motion to suppress evidence was heard by Annette Forde, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth. Krista M. Larsen for the defendant. KATZMANN, J. After an evidentiary hearing, a District Court judge partially allowed the defendant’s motion to suppress his statements identifying incriminating evidence as his and an inventory sheet that he signed. The police had obtained the evidence via a ruse that the judge determined violated the defendant’s rights under the Fifth Amendment to the United States Constitution. The Commonwealth has pursued an interlocutory appeal and argues that the defendant knowingly and voluntarily waived his constitutional right to remain silent and that the police ruse did not overbear the defendant’s free will. We agree and reverse the motion judge’s decision to suppress. Background. 1. We begin with a summary of the motion judge’s findings, supplemented by uncontroverted testimony from the suppression hearing that the motion judge implicitly credited. See Commonwealth v. Washington, 449 Mass. 476, 477 (2007). On the night of January 31, 2011, State police Trooper Manning was conducting traffic enforcement at the Route 99 rotary in Charlestown. At roughly 1:20 A.M., he observed a white Cadillac automobile approach the rotary and without stopping, or even slowing down at a stop sign, accelerate to a speed of up to forty miles per hour and drive through the rotary. Trooper Manning put on his headlights and drove after the Cadillac. Upon observing the Cadillac drive through a red light on Cambridge Street, Trooper Manning activated his blue lights and his “takedown […]
Feeney, et al. v. Dell Inc., et al. (Lawyers Weekly No. 10-142-13)
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 SJC‑11133a JOHN A. FEENEY & another[1] vs. DELL INC.[2] & others.[3] August 1, 2013. Consumer Protection Act, Class action, Arbitration. Public Policy. Contract, Arbitration. Arbitration, Waiver. Federal Preemption. Practice, Civil, Class action. Following the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (Concepcion), we held in Feeney v. Dell Inc., 465 Mass. 470, 472 (2013) (Feeney II), that the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq.(2006), does not foreclose a court “from invalidating an arbitration agreement that includes a class action waiver where a plaintiff can demonstrate that he or she effectively cannot pursue a claim against [a] defendant in individual arbitration according to the terms of the agreement, thus rendering his or her claim nonremediable.” Having concluded that the plaintiffs in Feeney II had indeed made such a demonstration, we affirmed the ruling of a judge in the Superior Court invalidating a class action waiver in the parties’ arbitration agreement. Feeney II, supra. Just eight days after the release of our decision in Feeney II, the Supreme Court issued an opinion in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2312 (2013) (Amex), holding that a class action waiver in an arbitration agreement is enforceable under the FAA even if a plaintiff proves that the class waiver, combined with other onerous terms of the agreement, effectively precludes the plaintiff from vindicating his or her Federal statutory rights. Following the release of Amex, the defendants in Feeney II filed a petition for rehearing on the grounds that Amex abrogated Feeney II. We stayed the issuance of the rescript in Feeney II and invited the plaintiffs to submit a response, which they did. We conclude that following Amex, our analysis in Feeney II no longer comports with the Supreme Court’s interpretation of the FAA. In Feeney II, supra, we were asked to interpret and apply Concepcion, which held that the FAA preempted a California rule that “classif[ied] most collective-arbitration waivers in consumer contracts as unconscionable” because it stood “as an obstacle to the accomplishment and execution of the full purposes and objectives of [the FAA]” to ensure the enforcement of agreements to arbitrate according to their terms. Id. at 1746, 1753. Our holding in Feeney II derived, at […]
Feeney, et al. v. Dell Inc., et al. (Lawyers Weekly No. 10-103-13)
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 SJC‑11133 JOHN A. FEENEY & another[1] vs. DELL INC.[2] & others.[3] Middlesex. December 4, 2012. ‑ June 12, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Consumer Protection Act, Class action, Arbitration. Public Policy. Contract, Arbitration. Arbitration, Waiver. Federal Preemption. Practice, Civil, Class action. Civil action commenced in the Superior Court Department on March 10, 2003. A motion to confirm an arbitration award, filed on July 18, 2011, was heard by Douglas H. Wilkins, J. The Supreme Judicial Court granted an application for direct appellate review. John A. Shope (Eric A. Haskell with him) for the defendants. Edward D. Rapacki for the plaintiffs. The following submitted briefs for amici curiae: Scott L. Nelson, of the District of Columbia, & Matthew W.H. Wessler for Public Justice, P.C., & another. Robin S. Conrad, Kate Comerford Todd, & Shane B. Kawka, of the District of Columbia, Alan E. Schoenfeld, of New York, & Mark C. Fleming for Chamber of Commerce of the United States of America. Deborah J. La Fetra, of California, & Donald R. Pinto, Jr., for Pacific Legal Foundation. Ben Robbins & Martin J. Newhouse for New England Legal Foundation. CORDY, J. We decide in this case whether a class action waiver provision in an arbitration clause in a consumer contract is enforceable where the plaintiff can demonstrate, as a factual matter, that the class action waiver effectively denies him or her a remedy and insulates the defendant from private civil liability for violations of State law. In doing so, we must consider the extent to which the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (Concepcion), abrogates our earlier decision in this case, Feeney v. Dell Inc., 454 Mass. 192 (2009) (Feeney I), which invalidated the same class action waiver after concluding that the requirement of individual arbitration was “contrary to the fundamental public policy of the Commonwealth favoring consumer class actions under [the Massachusetts consumer protection statute,] G. L. c. 93A.” Id. at 193. In Concepcion, the Supreme Court granted certiorari to decide whether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. (2006), “prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.” Concepcion, supra at 1744. In […]