Posts tagged "Inc."

State Road Auto Sales, Inc. v. Massachusetts Division of Banks (Lawyers Weekly No. 09-013-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV04041-BLS2 ____________________ STATE ROAD AUTO SALES, INC. v. MASSACHUSETTS DIVISION OF BANKS ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION State Road Auto Sales, Inc., seeks a preliminary injunction that would bar the Massachusetts Division of Banks from completing an ongoing adjudicatory hearing. The Division brought administrative charges asserting that State Road violated G.L. c. 255B, which governs retail installment sales of motor vehicles, by acting as a “motor vehicle sales finance company” without a license and by entering into illegal motor vehicle installment sales with individual consumers. The Legislature authorized the Commissioner of Banks to implement and enforce c. 255B. State Road is entitled to contest those charges through an evidentiary proceeding before a Division hearing officer. State Road argues that the Division’s administrative charges and adjudicatory proceeding are barred by State Road’s recent settlement of a class action brought on behalf of consumers who entered into motor vehicle leases with State Road that were in effect after October 21, 2013, and were signed before January 1, 2016. More specifically, State Road argues that the order approving the class action settlement deprived the Division of subject matter jurisdiction to decide the pending administrative charges and, in the alternative, that the prior settlement has collateral estoppel or issue preclusive effect that would bar the Division from exercising its jurisdiction over State Road. The Court concludes that State Road is not entitled to preliminary injunctive relief because it has failed to exhaust its administrative remedies and therefore is not likely to succeed on the merits of its claims. Cf. Fordyce v. Town of Hanover, 457 Mass. 248, 266 (2010) (vacating preliminary injunction because plaintiffs were “unlikely to succeed on the merits”). The Division of Banks has already began an enforcement action against State Road, those adjudicatory proceedings are still pending, and the determination of – 2 – whether the Division can prosecute and decide the administrative charges turns on disputed issues of fact and not pure issues of law. Under these circumstances, State Road must exhaust its administrative remedies at the Division before seeking to challenge the Division’s exercise of jurisdiction over State Road in court. See Wilczewski v. Commissioner of the Dept. of Envtl. Quality Eng’g, 404 Mass. 787, 793-794 (1989) (affirming dismissal of challenge to agency’s jurisdiction in pending matter); Gill v. Board of Reg. of Psychologists, 399 Mass. 724, 728 (1987) (ordering dismissal of action); East Chop Tennis Club v. Massachusetts Comm’n Against Discrim., 364 Mass. 444, 451 (1973) (vacating decree entered by Superior Court and ordering dismissal of action); Reliance Ins. Co. v. Commissioner of Ins., 31 Mass. App. Ct. 581, 585 (1991) (affirming dismissal of action). […]

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Posted by Massachusetts Legal Resources - March 1, 2018 at 9:05 am

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Carey v. Gatehouse Media Massachusetts I, Inc. (Lawyers Weekly No. 11-024-18)

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-82                                         Appeals Court   SUZANNE E. CAREY, personal representative,[1]  vs.  GATEHOUSE MEDIA MASSACHUSETTS I, INC.     No. 17-P-82.   Norfolk.     September 14, 2017. – February 27, 2018.   Present:  Green, Sullivan, & Sacks, JJ.     Independent Contractor Act.  Newspaper.  Carrier.  Federal Preemption.  Statute, Federal preemption.  Waiver.  Practice, Civil, Summary judgment, Waiver.       Civil action commenced in the Superior Court Department on September 22, 2011.   Motions for summary judgment were heard by Angel Kelley Brown, J.; the entry of separate and final judgment was ordered by her; and a motion for postjudgment relief was heard by her.     Mark W. Batten for the defendant. James W. Simpson, Jr., for the plaintiff. Peter J. Caruso & Robert J. Ambrogi, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.     SACKS, J.  Defendant GateHouse Media Massachusetts I, Inc. (GateHouse), publisher of the Patriot Ledger newspaper, appeals from a separate and final judgment under Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), declaring that David King, who had delivered the Patriot Ledger by automobile to some of its subscribers, was, under G. L. c. 149, § 148B (§ 148B), GateHouse’s employee rather than an independent contractor.  Gatehouse also appeals from the denial of its motion for relief from the rule 54(b) judgment, which asserted that the relevant portion of § 148B is preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), codified at 49 U.S.C. § 14501(c)(1).  We affirm.[2] Background.  We recount certain undisputed material facts from the summary judgment record, reserving for later discussion the details of GateHouse’s contract with King.  GateHouse, a subsidiary of New York-based GateHouse Media, “publishes and distributes” a variety of daily and weekly newspapers within Massachusetts.  Gatehouse describes itself as a publisher and distributor of publications in its “Wholesale Agreements” with newspaper delivery drivers such as King.  GateHouse employs a sales and advertising department, which works to increase circulation and advertising revenue.  Among GateHouse’s newspapers is the Patriot Ledger, published on all five weekday afternoons and on Saturday mornings. GateHouse distributes the Patriot Ledger out of a distribution center in Braintree, employing supervisors, district managers, distribution managers, and others to manage that process.  GateHouse has three main distribution methods.  First, to distribute the newspaper to residential and business subscribers, GateHouse enters into agreements with individual carriers,[3] whom it classifies as independent contractors.  The carriers are required […]

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Posted by Massachusetts Legal Resources - February 27, 2018 at 5:43 pm

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Casseus, et al. v. Eastern Bus Company, Inc., et al. (Lawyers Weekly No. 10-024-18)

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-12315   IBNER CASSEUS[1] & another[2]  vs.  EASTERN BUS COMPANY, INC., & another.[3]       Middlesex.     October 2, 2017. – February 8, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Labor, Overtime compensation.  Bus.  Carrier, Charter service, License.  School and School Committee, Transportation of students.       Civil action commenced in the Superior Court Department on May 30, 2014.   Motions for summary judgment were heard by Dennis J. Curran, J.   An application for leave to prosecute an interlocutory appeal was allowed by Gabrielle R. Wolohojian, J., in the Appeals Court.  The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Damien M. DiGiovanni (Joseph P. McConnell also present) for the defendants. Ian O. Russell for the plaintiffs. Peter J. Pingitore, for School Transportation Association of Massachusetts, Inc., amicus curiae, submitted a brief.     LENK, J.  This case requires us to construe an exemption to the Massachusetts overtime statute.  The overtime statute generally requires employers to pay an overtime premium to employees who work more than forty hours in a given week.  G. L. c. 151, § 1A.  The statute, however, “shall not be applicable to any employee who is employed . . . by an employer licensed and regulated pursuant to [G. L. c. 159A],” which governs motor vehicle common carriers of passengers in Massachusetts.  See G. L. c. 151, § 1A (11); G. L. c. 159A. The plaintiffs are bus drivers whose employer, the defendant Eastern Bus Company, Inc. (Eastern Bus), provides two types of transportation:  charter service, for which Eastern Bus must hold a license under the common carrier statute; and transportation of pupils between home and school, which does not constitute charter service.  See G. L. c. 159A, § 11A.  The bus drivers perform both of these services.  They claim that they are entitled to overtime payment.  Their argument is twofold. The bus drivers first assert that Eastern Bus is only “licensed and regulated” under the common carrier statute during the hours when it is providing charter service.  The exemption, then, only applies during those hours, and not when Eastern Bus is providing school transportation.  The bus drivers further argue that this overtime exemption should be interpreted in the same manner as two similarly structured Federal overtime exemptions.  These Federal exemptions, for certain employees of air and rail common carriers, are not applied to employees who spend a substantial […]

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Posted by Massachusetts Legal Resources - February 8, 2018 at 7:20 pm

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Acushnet Company v. Beam, Inc. (Lawyers Weekly No. 11-012-18)

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-1611                                       Appeals Court   ACUSHNET COMPANY  vs.  BEAM, INC.[1]     No. 16-P-1611.   Suffolk.     September 14, 2017. – February 2, 2018.   Present:  Wolohojian, Agnes, & Wendlandt, JJ.     Corporation, Sale of assets, Subsidiary.  Contract, Construction of contract.  Sale, Contract of sale, Of corporate property.  Taxation, Accounts receivable.  Practice, Civil, Summary judgment, Findings by judge.       Civil action commenced in the Superior Court Department on March 27, 2012.   The case was heard by Kenneth W. Salinger, J.   Eric R. Breslin, of New Jersey (Sean S. Zabeneh, of Pennsylvania, & Bronwyn L. Roberts also present) for the plaintiff. Michael J. Tuteur (Michael Thompson also present) for the defendant.     WOLOHOJIAN, J.  At issue is the interpretation, under New York law, of a provision in the stock purchase agreement pursuant to which Beam, Inc. (Beam), sold its subsidiary, Acushnet Company (Acushnet).[2]  More specifically, the parties disagree as to which of them is entitled to $ 16.62 million of value added tax (VAT) receivables carried on Acushnet’s balance sheet at the time of the closing.  Beam took the amount as a postclosing setoff for its own benefit; in response, Acushnet brought this suit.  On cross motions for summary judgment, a judge of the Superior Court determined that the contract provision was ambiguous.  A jury-waived trial followed before a second judge, who found that the “apparent purpose of the parties” was to allow for the setoff.  On appeal, Acushnet argues (1) that the motion judge erred, as a matter of law, when she concluded that the contract provision was ambiguous; and (2) that the trial judge’s interpretation of the contract was clearly erroneous.  We affirm. Background.  The following facts are either undisputed or taken from the trial judge’s findings of fact and supported by the record. In late 2010, Beam decided to sell Acushnet (a wholly-owned subsidiary engaged in the manufacture and distribution of golf products) by way of auction.  The eventual winning bidder was a group led by FILA Korea, Ltd. (buyer group), and, after a period of negotiations, the parties formalized the deal in a stock purchase agreement (SPA), dated May 19, 2011.[3]  A little over two months later, on July 29, 2011, the transaction closed, with the buyer group purchasing all of the stock in Acushnet for $ 1.225 billion, subject to certain postclosing […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 4:39 pm

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Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-006-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER DENYING CLEAR CHANNEL’S MOTION FOR A TEMPORARY RESTRAINING ORDER In 2003 the Massachusetts Bay Transportation Authority granted Clear Channel Outdoor, Inc., a 15-year license to operate billboards on MBTA property. That license will expire in early March 2018.1 The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards beginning after the Clear Channel 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 intends to award a six-month license to Outfront Media. The MBTA brought this action. It seeks declarations that its recent request for responses is lawful, Clear Channel is not entitled to enforce a right of first refusal contained in its 2003 license, and neither of these disputes is subject to the arbitration clause in the 2003 license. It also seeks certain preliminary injunctive relief to enforce terms of the parties’ existing license. The parties agreed upon a schedule for the filing of cross-motions for a preliminary injunction, with a hearing on those motions now scheduled for February 22. Clear Channel has filed an emergency motion seeking a temporary restraining order that would bar the MBTA from taking any steps to license its billboards to or contract with Outfront Media, or from “interfering in any way with Clear Channel’s rights in the billboards themselves or the permits necessary to operate those billboards.” The Court will DENY this motion for a TRO because Clear Channel has not met its burden of showing that it is entitled to the requested relief. “A preliminary 1 The parties have submitted two different versions of their license. One states that it terminates on March 3, the other says March 5. – 2 – injunction [or a TRO] is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs [have] made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). Clear Channel has not yet made such a showing. 1. Clear Channel Has Asserted No Claims. Clear Channel’s request for injunctive relief is premature because Clear Channel has not asserted any counterclaims or any other kind of affirmative claim against the MBTA. To obtain preliminary injunctive relief, “the applicant must show a likelihood of success on the merits […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 1:04 pm

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MHM Correctional Services, Inc., et al. v. Darwin Select Insurance Company, et al. (Lawyers Weekly No. 09-008-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 2017-01825-BLS2 MHM CORRECTIONAL SERVICES, INC., CENTURION OF MINNESOTA, LLC, CENTURION OF MISSISSIPPI, LLC & MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE, LLC, Plaintiffs vs. DARWIN SELECT INSURANCE COMPANY N/K/A ALLIED WORLD SURPLUS LINES INSURANCE COMPANY & ALLIED WORLD ASSURANCE COMPANY, Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case concerns six separate claims for coverage brought by insureds against their insurers. The plaintiffs are MHM Correctional Services, Inc. (MHM), Centurion of Mississippi, LLC (Centurion-MS), Centurion of Minnesota, LLC (Centurion-MN), and Massachusetts Partnership for Correctional Healthcare, LLC (MPCH), each of which provides healthcare services to inmates housed in state prison facilities. Plaintiffs have been sued or are the subjects of indemnification demands in connection with six class action lawsuits alleging that the health care rendered to inmates in those facilities is so inadequate as to violate their constitutional rights. In the instant case, plaintiffs seek declaratory and injunctive relief as to the coverage obligations of the defendants Darwin Select Insurance Company n/k/a Allied World Surplus Lines Insurance Company (Darwin) and Allied World Assurance Company (Allied World) in relation to these six lawsuits. Defendants now move to dismiss, relying on the language of the underlying policies, all of which are before the Court. In the event that this Court does not 2 dismiss certain counts, the defendants ask this Court to stay the proceedings. For the reasons that follow, the Motion to Dismiss is Denied. BACKGROUND Plaintiffs have contracts with various Departments of Corrections (DOCs) throughout the United States to provide medical and mental healthcare services to their prisoner populations. MHM provides mental healthcare services for the Alabama DOC (ADOC). Centurion-MS provides medical and mental healthcare services for the Mississippi DOC (MSDOC). Centurion-MN provides medical and mental healthcare services for the Minnesota DOC (MNDOC). MPCH provides medical and mental healthcare services for the Massachusetts DOC (MADOC). These DOCs are currently defendants in six federal class action lawsuits filed between 2010 and 2015 on behalf of incarcerated individuals. Those lawsuits are: Dunn v. Thomas (Dunn), No. 2:14-cv-00601-MHT-TFM; DePriest v. Walnut Grove Correctional Authority (DePriest), No. 3:10-cv-663 DPJ-FKB; Dockery v. Epps (Dockery), No. 3:13-cv-326-TSL-JMR; Ligons v. Minnesota Department of Corrections (Ligons), No. 15-cv-2210, PJT/BT; Paszko v. O’Brien (Paszko), No. 1:15-cv-12298-NMG; and Briggs v. Massachusetts Department of Corrections (Briggs), No. 1:15-cv-40162-GAO. Each of these lawsuits seeks injunctive and declaratory relief as well as attorney’s fees. Both the MNDOC and Centurion-MN are defendants in Ligons. Both the MADOC and MPCH are defendants in Paszko and Briggs. The ADOC is a defendant in Dunn and the MSDOC is a defendant in DePriest and Dockery. MHM and Centurion-MS are not named defendants in Dunn, DePriest, or […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 5:55 am

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Juliand v. Stanley Services, Inc. (Lawyers Weekly No. 09-010-18)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-01570-BLS2 CHARLES JULIAND, on behalf of himself And all others similarly situated, Plaintiff vs. STANLEY SERVICES, INC., Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS In this putative class action, plaintiff alleges that the defendant Stanley Services Inc., (Stanley) unlawfully assesses a fuel surcharge on the motor vehicles that it tows. The Amended Complaint contains multiple counts, including a claim under G.L.c. 93A. Stanley now moves to dismiss on the grounds that the case is moot in light of Stanley’s proffer of an amount to the individual plaintiff that was more than enough to cover any out-of pocket loss to him. More generally, Stanley argues that the Complaint fails to state a claim upon which relief may be granted. This Court concludes that the Motion must be DENIED. Briefly summarized, the Complaint states the following. On December 1, 2016 and then again on March 24, 2017, Stanley removed plaintiff Charles Juliand’s car from a street in Jamaica Plain, Massachusetts and towed the car to Stanley’s Jamaica Plain facility. On both occasions, Stanley assessed a fuel charge for the tow — $ 1.80 on December 1 and $ 2.25 on March 24. Massachusetts regulations permits a fuel charge only where the tow in question exceeds five miles and then only if certain information is provided on the tow slip. These tows did not exceed five miles and the tow slips did not provide the requisite information. 2 The Complaint alleges that Stanley has engaged in a practice of assessing these unlawful charges for years; it seeks relief on behalf of Juliand individually as well as others similarly situated. In addition to seeking certification of the class, the Complaint seeks damages as well as injunctive and declaratory relief. On May 19, 2017, two days before this suit was instituted, plaintiff’s counsel sent a Demand Letter to Stanley pursuant to G.L .c. 93A. Plaintiff amended the Complaint on July 19, 2017 to include a 93A count. Defense counsel made a formal response to plaintiff’s Demand Letter by letter dated June 21, 2017 (the Response). Its contents are relevant to the issues before the Court. It begins by stating that it is being “provided in the interest of settlement only, and subject to a full reservation of Stanley Service’s rights.” It goes on at some length to outline why the individual and class claims are legally and factually defective. To the extent that there were any omissions of information regarding the fuel surcharge, the Response says that they were the result of “individual oversight” and do not reflect a general policy. On a more conciliatory note, the Response says that […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 2:20 am

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The Hanover Insurance Group Inc. v. Raw Seafoods, Inc. (Lawyers Weekly No. 09-011-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 12-03503-BLS2 THE HANOVER INSURANCE GROUP INC., Plaintiff vs. RAW SEAFOODS, INC., Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT This case concerns a dispute over coverage between an insured and its insurer. Defendant Raw Seafoods, Inc. (RSI) is a seafood processor. In 2012, an RSI customer, Atlantic Capes Fisheries, Inc. (Atlantic), filed an action in federal court alleging that RSI’s negligent processing of its scallops resulted in their premature spoilage. RSI’s insurer, plaintiff Hanover Insurance Group, Inc. (Hanover), agreed to defend RSI under a reservation of rights and then filed the present action, seeking a declaration that it had no duty to indemnify RSI for any judgment Atlantic obtained. After the federal court judge granted summary judgment in favor of Atlantic and entered judgment against RSI, the parties filed cross motions for partial summary judgment in the instant action. This Court (Roach, J.) granted summary judgment in favor of Hanover but the Appeals Court reversed. 91 Mass.App.Ct. 401 (2017). RSI now renews it Motion for Partial Summary Judgment. For the reasons that follow, the Motion is Allowed. 2 BACKGROUND RSI is a seafood processing facility in Fall River. Atlantic, a seafood company that sells scallops and other seafood, regularly uses RSI to apportion, pack, and freeze the fresh scallops that it purchases from fishing vessels. Upon delivery of Atlantic’s scallops, RSI staff inspects the scallops for quality, reports the results to Atlantic, and receives processing instructions. After processing, the scallops are transported to a third-party cold storage facility, Arctic Cold Storage (Arctic), from which Atlantic ships its customers’ orders. In July 2011, a batch of scallops that RSI had processed made their way through customs in Denmark where it was observed that the scallops were decomposed and emitting a strong smell of ammonia. They were deemed unacceptable for human consumption and sent back to the United States. Once in the United States, the Food and Drug Administration tested the batch and confirmed that it was spoiled. The batch of scallops was then returned to Arctic’s facility, where representatives from Atlantic and RSI jointly inspected the shipment and again confirmed the damage. They also inspected another batch of scallops processed by RSI around the same time as the rejected batch, and discovered more damaged scallops. At the time, Hanover insured RSI through a Commercial General Liability (CGL) Policy. The Policy provides in relevant part that Hanover “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The Policy applies to “property damage” that is caused by an “occurrence,” which is […]

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Posted by Massachusetts Legal Resources - February 1, 2018 at 10:45 pm

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Agenus, Inc. v. McCourt (Lawyers Weekly No. 09-004-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV00427-BLS2 ____________________ AGENUS, INC. v. JANIS McCOURT ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS Janis McCourt used to be employed by Agenus, Inc. In its complaint, Agenus asserts claims that: (i) when McCourt left she took and later used confidential information belonging to Agenus and thereby breached a non-disclosure agreement, breached a fiduciary duty of loyalty, tortuously misappropriated confidential information or trade secrets, and converted Agenus’s property; and (ii) McCourt provided services to at least three competitors of Agenus and thereby breached the non-competition covenant contained in the parties’ Change of Control Plan agreement. McCourt has moved to dismiss all claims against her, based in part on alleged connections between the claims by Agenus in this action and claims for unlawful discrimination asserted by McCourt against Agenus in a separate Middlesex Superior Court action. The Court concludes that it must DENY McCourt’s motion to dismiss for the following reasons. First, the anti-SLAPP statute is not implicated here because none of Agenus’s claims are based solely on petitioning activity within the meaning of G.L. c. 231, § 59H. McCourt argues that the non-disclosure, misappropriation, and related claims are based on her retention and use of Agenus documents to support her employment discrimination claims. The Court is not convinced. These claims do not implicate § 59H because they are based at least in part on allegations that McCourt acted unlawfully by taking away documents that belonged to Agenus. The Appeals Court has held that a claim based at least in part on conduct undertaken to investigate a potential claim or report to the government is not protected by the anti-SLAPP statute, even if that conduct later informs some kind of – 2 – effort to petition for government aid or relief. See Brice Estates, Inc. v. Smith, 76 Mass. App. Ct. 394, 396 (2010) (claim based in part on alleged trespass to investigate possible wetlands violation, which informed petitioning activity of submitting observation form to state agency’s endangered species program); Maxwell v. AIG Domestic Claims, Inc., 72 Mass. App. Ct. 685, 694-695 (2008) (claim based in part on allegedly inadequate investigation, which informed petitioning activity of report to insurance fraud bureau); Garabedian v. Westland, 59 Mass. App. Ct. 427, 433 (2003) (claim based in part on gathering video evidence, which informed petitioning activity to State and local officials regarding private airfield). “[W]here the underlying conduct involves both petitioning activity and activity not considered petitioning,” a claim is not subject to dismissal under § 59H. Brice Estate, supra. Even if these claims are based in part on petitioning activity by McCourt, they are also based in large part on alleged misconduct that occurred before […]

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Posted by Massachusetts Legal Resources - February 1, 2018 at 3:36 pm

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MacDonald v. Jenzabar, Inc., et al. (Lawyers Weekly No. 11-005-18)

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-45                                         Appeals Court   ALAN MACDONALD  vs.  JENZABAR, INC., & others.[1]     No. 17-P-45.   Suffolk.     October 10, 2017. – January 11, 2018.   Present:  Vuono, Meade, & Kinder, JJ.     Employment, Termination, Severance agreement.  Contract, Employment, Severance agreement, Release from liability, Performance and breach, Construction of contract.  Release.  Corporation, Stock.     Civil action commenced in the Superior Court Department on August 17, 2012.   The case was tried before Janet L. Sanders, J., and entry of judgment was ordered by her.     Colin R. Hagan for the plaintiff. Michael D. Blanchard for the defendants.     MEADE, J.  Alan MacDonald initiated this action in the Superior Court against his former employer, Jenzabar, Inc. (Jenzabar), and four of its directors (directors) after a dispute arose over his rights to certain Jenzabar preferred shares and stock options granted during the course of his employment.  Central to that dispute is the interpretation of a severance agreement MacDonald executed as he departed from Jenzabar (severance agreement).  According to Jenzabar and the directors, all of MacDonald’s claims should be dismissed because the severance agreement, which contains a general release, is unambiguous and extinguished his rights to the preferred shares and stock options.  MacDonald, in turn, maintains that the severance agreement is ambiguous and that extrinsic evidence, which Jenzabar chose not to dispute, establishes that the parties did not intend to so terminate his rights.  After four years of litigation, both sides prevailed in part. Most of MacDonald’s claims, including all of those against the directors, were dismissed at various stages of the litigation for reasons unrelated to the interpretation of the severance agreement.[2]  As to that central issue, a judge concluded, in rulings issued both prior to and after trial, that the severance agreement is unambiguous insofar as it extinguished MacDonald’s rights to the preferred shares, but is ambiguous regarding the stock options.[3]  After Jenzabar preserved its appeal with respect to the interpretation of the contract and waived the right to argue that any ambiguities should be resolved in its favor, the same judge presided over a jury trial on the limited issue of liability for the stock options.  At the conclusion of that trial, the jury returned a verdict finding Jenzabar liable for refusing to honor MacDonald’s initial exercise of 1,000 stock options, but not liable for failing to honor […]

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Posted by Massachusetts Legal Resources - January 11, 2018 at 6:43 pm

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