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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 . . . […]
Categories: News Tags: 1005918, Commissioner, Dental, Inc., Lawyers, massachusetts, Revenue, Service, Weekly
America’s Test Kitchen Inc. v. Kimball, et al. (Lawyers Weekly No. 09-033-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03325-BLS2 ____________________ AMERICA’S TEST KITCHEN INC., as the Sole General Partner of America’s Test Kitchen Limited Partnership v. CHRISTOPHER KIMBALL and Others1 ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS TO COMPEL PRODUCTION OF DOCUMENTS Christopher Kimball, Melissa Baldino, Christine Gordon, and Deborah Broide used to work for America’s Test Kitchen on a television cooking show and on related programming and publications distributed through various media. This lawsuit concerns and arises from their development of a competing business. ATK brought suit first. Kimball and CPK Media, LLC, asserted counterclaims. The Court will refer to America’s Test Kitchen, Inc., and America’s Test Kitchen Limited Partnership as the “ATK Parties” and to Defendants as the “CPK Media Parties.” The parties have filed cross-motions to compel the production of documents withheld under a claim of privilege or litigation work product. The party asserting that a particular set of documents is protected from disclosure by the attorney-client privilege or the work product doctrine has the burden of proving that contention. See Commissioner of Revenue v. Comcast, 453 Mass. 293, 304 & 315 (2009); Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 449 Mass. 609, 619-620 (2007). The Court will allow the ATK Parties’ motion to the extent that it seeks production of any disputed communications with Matthew Sutton or those disputed communications with William Thorndike that are not protected by the work product doctrine. It will deny the ATK Parties’ motion to the extent that it seeks production of protected work product in communications with Thorndike, or the production of any disputed communications with Melissa Baldino or Thomas Hagopian. And it will deny the CPK Media Parties’ motion in its entirety, as to communications with ATK’s public relations consultants, with its lawyers, or among its board members. 1 CPK Media, LLC; Melissa Baldino; Christine Gordon; Deborah Broide; CPK Holdco, LLC; and William Thorndike. – 2 – 1. The ATK Parties’ Motion to Compel. 1.1. Matthew Sutton. The CPK Media Parties have withheld communications with Mr. Sutton regarding legal advice sought by or provided to CPK Media LLC on the ground that those communications are protected by the attorney-client privilege. They argue that (i) this privilege protects confidential communications that share legal advice with a client’s employee who is needed to understand or implement that advice, or that concern information known to the employee that is needed to inform or formulate requests for legal advice; (ii) the same is true regarding similar communications with someone who is the functional equivalent of an employee; (iii) Sutton was the functional equivalent of an employee of CPK Media LLC and was involved in seeking and making sense of legal advice for […]
Silva v. Todisco Services, Inc. (Lawyers Weekly No. 09-027-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Todisco Services, Inc., towed Christopher Silva’s motor vehicle without his consent from a private parking lot. This was a “trespass tow,” made at the request of the property owner or manager pursuant to G.L. c. 266, § 120D. Silva alleges that the mileage charge and fuel surcharge imposed by Todisco were illegal because the invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a Department of Public Utilities (“DPU”) regulation that establishes maximum rates for involuntary tows. Silva asserts claims for violation of G.L. c. 93A, declaratory relief, negligent misrepresentation, intentional fraud, and unjust enrichment. Silva has moved to certify a class of plaintiffs whose passenger vehicles were towed without their consent by Todisco, either as a trespass tow or as a “police tow” made at the request of a local police department, and who were assessed similar surcharges without being provided information required by the DPU regulation. Todisco asserts that this action is moot because Todisco tendered payment of the full treble damages Silva seeks for himself under G.L. c. 93A. In the alternative Todisco urges the Court either to deny class certification completely or to certify a narrower class consisting only of people subjected to trespass tows. The Court concludes that Todisco’s attempt to “pick off” the named plaintiff did not moot Silva’s individual claims or the class action. It will allow the class certification motion in part and, in the exercise of its discretion, will certify a class of “trespass tow” plaintiffs for the purposes of the claims asserted under c. 93A and for declaratory relief. But it will deny the motion to the extent that Silva seeks to include “police tow” plaintiffs in the class, and to the extent that he seeks to certify a class with respect to the misrepresentation, fraud, and unjust enrichment claims. – 2 – 1. Effect of Tender to Named Plaintiff. Todisco argues that Silva’s individual claims are moot, and that therefore class certification is inappropriate,1 because Todisco has already tendered the maximum amount of compensation that Silva himself could possibly recover in this action. Silva (or his son acting on his behalf) paid Todisco $ 169.00 to regain his vehicle after Todisco had towed it. In May 2017, almost 20 months after Silva filed this suit, Todisco sent Silva a check for three times that amount ($ 507.00). Todisco said in its cover letter that it tendered this payment “without any conditions and/or restrictions.” Silva responded by saying […]
Rafferty v. Merck & Co., Inc., et al. (Lawyers Weekly No. 10-041-18)
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-12347 BRIAN RAFFERTY vs. MERCK & CO., INC., & another.[1] Middlesex. November 6, 2017. – March 16, 2018. Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ. Negligence, Pharmaceutical manufacturer, Adequacy of warning, Duty to warn, Standard of care. Actionable tort. Public Policy. Consumer Protection Act, Unfair or deceptive act, Trade or commerce. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on October 10, 2013. A motion to dismiss was heard by Kenneth J. Fishman, J., and entry of separate and final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Emily E. Smith-Lee for the plaintiff. Richard L. Neumeier (Aaron Rice, of Mississippi, & David L. Johnson, of Tennessee, also present) for Merck & Co., Inc. The following submitted briefs for amici curiae: Michael X. Imbroscio & Gregory L. Halperin, of the District of Columbia, & Paul W. Schmidt for Pharmaceutical Research and Manufacturers of America & others. Mark C. Fleming & Tyler L. Sparrow for International Association of Defense Counsel. Hugh F. Young, Jr., of Virginia, & David R. Greiger & Richard G. Baldwin for Product Liability Advisory Council, Inc. Kannon K. Shanmugam, Allison Jones Rushing, & Connor S. Sullivan, of the District of Columbia, & Jennifer G. Wicht for Chamber of Commerce of the United States of America. Lawrence G. Cetrulo, Kyle E. Bjornlund, Elizabeth S. Dillon, & Brian D. Fishman for Massachusetts Defense Lawyers Association. GANTS, C.J. Under Federal law, a manufacturer of a generic drug must provide its users with a warning label that is identical to the label of the brand-name counterpart. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 613 (2011) (PLIVA). The issue on appeal is whether a plaintiff who alleges that he was injured from his use of a generic drug, because of a failure to warn of the drug’s side effects, may bring a common-law general negligence claim and a statutory claim under G. L. c. 93A against the brand-name drug manufacturer that created the warning label. Applying our general principles of tort law and as a matter of public policy, we conclude that the plaintiff may not bring a negligence claim against the brand-name manufacturer for a failure to warn. We […]
Boston Restoration Resources, Inc. v. Pitts, et al. (Lawyers Weekly No. 09-026-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 17-1142-C BOSTON RESTORATION RESOURCES, INC. v. LORENZO PITTS, INCORPORATED, WILLETTA PITTS-GIVENS, REBECCA MAUTNER, LESLIE BOS, and JAMAICA PLAIN NEIGHBORHOOD DEVELOPMENT CORPORATION MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO QUASH DEPOSITION SUBPOENA TO KEEPER OF RECORDS OF UNITED HOUSING MANAGEMENT, LLC Plaintiff Boston Restoration Resources, Inc. (“BRI”) has brought a Rule 45(d) motion to quash a document subpoena served on non-party United Housing Management, LLC. The thrust of BRI’s motion is that the subpoena is unreasonably over-broad and burdensome, and seeks documents relevant only to a previously asserted theory of damages it has since abandoned. United Housing Management has to date defied the subpoena served upon it, but has not joined this motion. Mass. R. Civ. P. 45(f)(3) provides that “[a]ny person subject to a subpoena under this rule may move the court (A) for a protective order under rule 26(c) or (B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.” Inasmuch as BRI is not “the person subject to subpoena” under Rule 45, and does not maintain that production of the documents sought thereby would invade any legal right or privilege it has in the same, it lacks standing to assert objections on behalf of United Housing Management. See In re Stone & Webster Securities Litigation, 2006 WL 2818489, at *2-3 (D. Mass. 2006) (a party has no standing to object to a subpoena directed to a non-party); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena addressed to a non-party witness.”). See generally P. Lauriat et al., Discovery, 49A Mass. Practice _ 8:23, at 289 and n.21 (3d ed. 2017) (“In general a party has no standing to assert objections to a subpoena on behalf of a non-party.”). It is true, as BRI points out, that “[a] party has standing to quash a subpoena served on a non-party if he or she has a personal right or privilege with respect to the requested information.” Enargy Power (Shenzhen) Co. Ltd. v. Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014). See also P. Lauriat, supra, 49A Mass. Practice _ 8:23, at 289 (“A party may assert objections as to a subpoena served on a non-party … where the objections relate to rights of that party rather than the non-party.”). This is not the case in BRI’s present motion. BRI […]
Cedar-Fieldstone Marketplace, LP v. T.S. Fitness, Inc., et al. (Lawyers Weekly No. 11-030-18)
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 17-P-791 Appeals Court CEDAR-FIELDSTONE MARKETPLACE, LP vs. T.S. FITNESS, INC.,[1] & another.[2] No. 17-P-791. Bristol. February 2, 2018. – March 15, 2018. Present: Milkey, Massing, & Shin, JJ. Guaranty. Contract, Lease of real estate, Release from liability, To guarantee rent payments. Release. Real Property, Lease. Civil action commenced in the Superior Court Department on June 18, 2015. The case was heard by Renee P. Dupuis, J., on motions for summary judgment. John A. Walsh for the defendants. John F. White, Jr., for the plaintiff. MILKEY, J. In this case, we consider whether the release of a landlord’s claims against a tenant for unpaid rent pursuant to a lease precluded the landlord from bringing a collection action against a guarantor of the lease. We conclude that it did not. Background. The defendant T.S. Fitness, Inc. (tenant), rented commercial property in New Bedford from the plaintiff, Cedar-Fieldstone Marketplace, LP (landlord). In 2011, those parties agreed to a modification of the then-existing lease between them. To secure the tenant’s payment obligations under the modified lease, the tenant’s president, the defendant Thomas W. Sheridan, executed a personal guaranty, which was memorialized in a detailed, three-page document. Under the terms of the guaranty, Sheridan’s liability was “co-extensive with that of [the t]enant,” except that it was capped at a specified amount, $ 52,271.06. The existence of that cap appears to explain why the document is captioned a limited guaranty. Except for the cap on his liability, Sheridan’s obligations under the guaranty are set forth expansively, as we will review in detail later. The guaranty states that “[n]o waiver or modification of any provision of this [g]uaranty nor any termination of the [g]uaranty shall be effective unless in writing, signed by [the l]andlord.” After the lease modification, the tenant subsequently defaulted on the lease, prompting the landlord to bring a summary process action against it in District Court. That action was resolved through an agreement for judgment in February of 2013. The parties to the agreement for judgment were the parties to the summary process action, that is, the landlord and the tenant. Sheridan himself signed the agreement for judgment, but he did so in his capacity as president of the tenant. The essence of the agreement for judgment was […]
Categories: News Tags: 1103018, CedarFieldstone, Fitness, Inc., Lawyers, Marketplace, T.S., Weekly
Bassett, et al. v. Triton Technologies, Inc., et al. (Lawyers Weekly No. 09-022-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 16-3475 BLS 2 LAURA BASSETT, JAMIE ZELINSKAS, ALYSSA WRIGHT, and ALEXIS CRAMER, individually and on behalf of all others similarly situated Plaintiffs vs. TRITON TECHNOLOGIES, INC., S. JAY NALLI, and ANDREW S. BANK, Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AS TO COUNT III OF THE COMPLAINT This class action raises the novel question of whether a call-in center where defendant’s employees take orders for goods sold by others is a “store or shop” engaged in the “sale at retail of goods” such that the employees must be paid time and half for work on Sundays. See G.L.c. 136 §6(50). This Court concludes that it is not. As a consequence, the defendants are entitled to summary judgment in their favor on Count III of the Complaint, which alleges that the failure to pay for Sunday work violates the Massachusetts Wage Act, G.L.c. 149 §§148 and 150. BACKGROUND The following facts are not in dispute. The defendant Triton Technologies, Inc. (Triton) is a Massachusetts corporation that operates a call in center in Mansfield. It provides “teleservices” to various companies located throughout the country (Triton’s “Clients”) which produce goods ranging from exercise videos to garden tools. Triton is not involved in the manufacture, design, production or shipping of any of its Clients’ goods. There is no evidence that it stores or at any time takes possession of its Clients’ inventory or that any Client goods are available for purchase at any of its locations, including the Mansfield call center. Typically, customers interested in a Client product reach Triton (or another call center elsewhere in the country) after calling a toll free number that appears on an advertisement for the goods that appears in a variety of media, including television and the internet. That advertising is paid for by the Client. Calls are routed to a Triton employee – called an “Inbound Sales Agent” – who works from a script developed by the Client. The Sales Agents sit at assigned workstations within the call center, which is not open to the public. The Sales Agent takes the caller’s order and payment information, all of which is transmitted to the Client for processing. The Client ships the product directly to the customer. Triton does not receive money from the sales and does not collect sales tax on the goods sold. It does not pay any sale taxes. The Mansfield call center operates 24 hours a day, 365 days per year. Triton’s Sales Agents are scheduled to work based on call volume demand. The Sales Agents are paid an […]
North American Catholic Educational Programming Foundation, Inc., et al. v. Clearwire Spectrum Holdings II LLC, et al. (Lawyers Weekly No. 09-023-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 15-3118 BLS 2 NORTH AMERICAN CATHOLIC EDUCATIONAL PROGRAMMING FOUNDATION, INC. et al.[1] Plaintiffs vs. CLEARWIRE SPECTRUM HOLDINGS II LLC, CLEARWIRE LEGACY LLC and SPRINT SPECTRUM, L.P., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO STAY ACTION Plaintiffs are non-profit entities that hold licenses from the Federal Communications Commission (FCC) to operate Educational Broadband Services (EBS) channels in certain geographic markets. In 2006, plaintiffs granted access to a portion of their wireless communication spectrum to defendants Clearwire Spectrum Holdings LLC and Clearwire, Legacy, LLC (Clearwire) pursuant to various written Agreements, including Master Royalty and Use Agreements (MRUAs). The defendant Sprint Spectrum L.P. (Sprint) subsequently acquired all the stock in Clearwire’s parent, and a dispute arose between Sprint and the plaintiffs as to what services Sprint was obligated to provide plaintiffs’ customers. Plaintiffs took the position that Clearwire had effectively sublicensed its use of the broadband spectrum to Sprint, and that, pursuant to the Agreements, this required plaintiffs’ consent – consent which they were entitled to withhold unless Sprint agreed to provide broadband access to plaintiff’s customers that was equivalent to what Clearwire itself would have provided had there been no sublicense. Plaintiffs filed this lawsuit in October 2015 seeking equitable relief and specific performance. In November 2015, this Court allowed plaintiffs’ Motion for a Preliminary Injunction, concluding that plaintiffs had demonstrated a substantial likelihood of prevailing on the merits. The injunction among other things required defendants to maintain Cost Free Educational Accounts (CFEAs) that entitle plaintiffs’ customers to access the Clearwire broadband network free of charge. On June 24, 2016, this Court allowed plaintiffs’ Motion for Partial Summary Judgment as to Count One of the Complaint, which focused on the single issue of consent. After some period of negotiation seeking a global resolution, two of the six plaintiffs in the instant action filed arbitration claims seeking damages, the MRUAs requiring them to pursue any monetary remedy in that forum. Defendants now move to stay this action until the arbitration is concluded. This Court concludes that this Motion must be DENIED. In support of the motion, defendants cite the broad arbitration provision in the MRUAs and argue that under the Federal Arbitration Act, it would be an abuse of discretion not to stay the instant action because the claims its raises substantially overlap with those issues being presented to a three member arbitration panel. A stay is appropriate, they argue, in order to avoid duplicative discovery and the risk of inconsistent results. In response, the plaintiffs contend that there is no overlap between the claims that they assert […]
Categories: News Tags: 0902318, American, Catholic, Clearwire, Educational, Foundation, Holdings, Inc., Lawyers, North, Programming, Spectrum, Weekly
Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-017-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR PRELIMINARY INJUNCTION This lawsuit arises from the imminent expiration of a 15-year license agreement under which Clear Channel Outdoor, Inc., has been operating billboards on property owned by the Massachusetts Bay Transportation Authority. The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards after the current license expires. The MBTA received bids from Outfront Media LLC, which agreed to enter into a six-month license, and Clear Channel, which refused to accept a term that short. The MBTA disqualified Clear Channel. It then awarded a six-month license to Outfront Media. The MBTA brought this suit seeking declarations that its request for responses was lawful, Clear Channel is not entitled to enforce its right of first refusal, and Clear Channel is contractually obligated to transfer the disputed billboards as well as whatever permits are needed to operate the billboards to the MBTA. Clear Channel has asserted counterclaims alleging that the MBTA breached the existing contract by offering a new license on terms that are not commercially reasonable and by not allowing Clear Channel to exercise its contractual right of first refusal, and that Clear Channel therefore has no contractual obligation to transfer the billboard structures to the MBTA at the end of the current license term. The MBTA now seeks a preliminary injunction that would bar Clear Channel from interfering with any use of the billboards on MBTA property, or terminating or otherwise disposing of its existing permits for billboards on MBTA property. Clear Channel seeks a preliminary injunction that would bar the MBTA from proceeding with the new license it has issued to Outfront Media or otherwise interfering with Clear Channel’s ownership of billboard structures and associated permits. The Court will ALLOW the MBTA’s motion and DENY Clear Channel’s motion. – 2 – 1. Legal Background. 1.1. The Public Interest in MBTA Advertising Revenues. The MBTA is a governmental entity, established by the Legislature as a “political subdivision of the commonwealth” that consists of 65 cities and towns within the MBTA’s service area. G.L. c. 161A, § 2 (political subdivision) & § 1 (defining the cities and towns within the “area constituting the authority”). The MBTA is now governed by the board of directors of the Massachusetts Department of Transportation. Id. § 3. “The MBTA’s essential function is to provide mass transportation services” in the greater Boston metropolitan area. See Massachusetts Bay Transp. Auth. v. City of Somerville, 451 Mass. 80, 86 (2008). The MBTA obtains most of its operating funds from taxes […]