Posts tagged "Sales"

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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Barbuto v. Advantage Sales and Marketing, LLC, et al. (Lawyers Weekly No. 10-120-17)

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-12226   CRISTINA BARBUTO  vs.  ADVANTAGE SALES AND MARKETING, LLC, & another.[1]       Suffolk.     March 9, 2017. – July 17, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Marijuana.  Anti-Discrimination Law, Handicap, Employee, Termination of employment.  Employment, Discrimination, Termination.  Practice, Civil, Motion to dismiss.       Civil action commenced in the Superior Court Department on September 4, 2015.   A motion to dismiss was heard by Robert N. Tochka, J.   The Supreme Judicial Court granted an application for direct appellate review.     Matthew J. Fogelman (Adam D. Fine also present) for the plaintiff. Michael K. Clarkson (M. Tae Phillips also present) for the defendants. The following submitted briefs for amici curiae: Elizabeth Milito, of the District of Columbia, & Gregory D. Cote for NFIB Small Business Legal Center. Reid M. Wakefield & Constance M. McGrane for Massachusetts Commission Against Discrimination. David A. Russcol & Chetan Tiwari for Massachusetts Employment Lawyers Association & others.     GANTS, C.J.  In 2012, Massachusetts voters approved the initiative petition entitled, “An Act for the humanitarian medical use of marijuana,” St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is “that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana.”  Id. at § 1.  The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer.  We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff’s discrimination claims.  We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.[2] Background.  “We review the allowance of a motion to dismiss de novo.”  Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).  In deciding whether a count in the complaint states a claim under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we accept as true the allegations in the complaint, draw every […]

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Posted by Massachusetts Legal Resources - July 17, 2017 at 6:50 pm

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Wright, et al. v. Balise Motor Sales Company, et al. (Lawyers Weekly No. 12-042-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03477-BLS2 ____________________ DEREK WRIGHT and NATHANIEL TOWSE, on behalf of themselves and all others similarly situated v. BALISE MOTOR SALES COMPANY and Others1 ____________________ MEMORANDUM AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS AND MOTION FOR A MORE DEFINITE STATEMENT Derek Wright previously sold cars at Balise Hyundai in Hyannis, Massachusetts, for Cape Hy, Inc. Nathaniel Towse sold cars in West Springfield, Massachusetts for Balise Motor Sales Company. Wright and Towse claim that they are owed unpaid overtime, Sunday premium pay, and minimum wages. They assert a variety of statutory claims as well as common law claims for breach of contract and unjust enrichment or quantum meruit. They seek to assert the same claims on behalf of a putative class of similarly situated salespeople. Defendants have moved to dismiss the four common law claims and to compel a more definite statement as to the scope of the putative class. The Court will allow the partial motion to dismiss but deny the motion for a more definite statement. The Court concludes that Defendants are entitled to dismissal of the common law claims because the facts alleged in the complaint do not plausibly suggest that Defendants entered into an implied contract to pay hourly wages of any kind. Instead, the complaint indicates that the parties understood that all salespeople would be paid commissions only. The existence of an implied contract to pay commissions bars Plaintiffs’ claims for unjust enrichment or quantum meruit. 1. Motion to Dismiss. To survive a motion to dismiss under Mass. R. Civ. P. 12(b)(6), a complaint must allege facts that, if true, would “plausibly suggest[] … an entitlement to relief.” Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). For the purpose of deciding the pending motion 1 Cape Hy, Inc.; James E. Balise, Jr.; William Peffer; Steven M. Mitus; and Allen Thomalla. – 2 – to dismiss, the Court must assume that the factual allegations in the complaint and any reasonable inferences that may be drawn in Plaintiffs’ favor from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). In so doing, however, it must “look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). 1.1. Implied Contract Claim. In Count VI, Plaintiffs claim that Defendants breach an implied contract with Plaintiffs by failing […]

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Posted by Massachusetts Legal Resources - April 27, 2017 at 2:13 am

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It’s a Sales Tax Holiday Weekend

Shoppers will get a holiday from the state's 6.25 percent sales tax on Aug. 10 and 11. South End Patch News

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Posted by Massachusetts Legal Resources - August 7, 2013 at 4:05 am

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Post Your Yard Sales in the South End

Having a Garage or Yard Sale? Share the details here to be added to our interactive map of sales. Later this week we'll show you a map of sales in the area. This map shows you sales in several Boston neighborhoods. You can also add your sale t South End Patch News

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Posted by Massachusetts Legal Resources - June 28, 2013 at 7:39 am

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Find Yard Sales in Boston This Weekend [MAP]

Want to add your garage sale to the map? Just go to this form and fill it out. SOUTH END PATCH: 

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Posted by Massachusetts Legal Resources - June 27, 2013 at 8:59 am

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August Sales Tax Holiday Proposed Again

State Rep. Ed Coppinger recently introduced late file legislation for a statewide sales tax holiday weekend in August. “It was brought to my attention by a constituent of mine that legislation for a sales tax holiday had not been introduced for this year. It’s great to see how involved my constituents are – this bill will benefit both consumers and business owners across the Commonwealth,” said Coppinger, D-West Roxbury. “A sales tax holiday will enable individuals to save money while investing in our local businesses, which is vital for the improvement of our economy.”     The proposed sales tax free holiday weekend would be Aug. 17 and 18. Coppinger pointed to past sales tax free holidays helping not only businesses during the slow summer months, but it also helps shoppers save money on large ticket items.  If passed, the legislation would “apply to retail sales excluding any single item priced higher than $ 2,500.” The sales tax holiday would not apply to telecommunications, tobacco, gas, steam, electricity, motor vehicles, motorboats or meals.  SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch

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Posted by Massachusetts Legal Resources - June 20, 2013 at 12:29 am

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Find Yard Sales Near You in Boston This Week

Want to add your garage sale to the map? Just go to this handy form and fill it out. If you are looking at this on your mobile device, switch to desktop view.  South End Patch

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Posted by Massachusetts Legal Resources - June 7, 2013 at 1:45 am

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Home Sales for the Love of Rescued Animals

Three years ago Weston real estate agent Leslie Mann read a story on the Internet that horrified her. What she read was the story of Turtle, a female pit bull-type dog who had been abandoned in a wooded area of Hyde Park in the middle of winter. She was badly injured and barely clinging to life — showing all the signs of a bait dog, one used to test the fighting instinct of a potential fight dog. The Animal Rescue League of Boston stepped in to help Turtle — she was found near Turtle Pond Parkway — nursing her back to health through six months of treatment at Tufts Veterinary Hospital in Walpole. “I was just horrified by [the story] and said, ‘We have to do something for her,’” Mann said. At the time, she held a Spin class fundraiser and sold T-shirts, efforts that brought in about $ 6,000 for Turtle’s treatment. Today, Turtle is happy, healthy and living blissfully with her adopted family, all facts that make Mann smile. “I think it’s just something about how sweet she is after everything she’s been through, it just caught people’s attention,” Mann said of her affection for Turtle. “It certainly caught my attention.” But Mann’s appreciation for the work of the Animal Rescue League continues even now. “They just are so amazing,” Mann said. “Turtle is alive today because … people raced out in the middle of the night and got her help. They go and rescue animals nobody else would rescue.” Even though Turtle doesn’t need her help anymore, Mann and her husband, Kyle, both agents with Gibson Sotheby’s Realty in Weston, want to continue supporting the Animal Rescue League of Boston. For the remainder of the year, they will donate $ 1,000 to the league from every home sale they make, in Weston and beyond. “They’re just such an amazing place,” Mann said. “They don’t just put the animals in the shelter and hope somebody comes and adopts them. They do a lot to help them get adopted. “I’m really excited about the organization.” More information on the Manns’ efforts is available here. South End Patch

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Posted by Massachusetts Legal Resources - May 14, 2013 at 4:30 pm

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