BLS Blog

It was another eventful year at the BLS, which included Judge Green replacing Judge Kaplan in the BLS1. As 2020 concludes, check out our top five widely read posts:

• Facebook Ordered to Turn Over Internal Investigation Documents to Massachusetts Attorney General: Judge Davis of the BLS ordered Facebook to produce documents to Massachusetts Attorney General Maura Healey (AG). The AG obtained the order while investigating Facebook’s policies and protections related to user data.
• Community Health Systems Affiliate Found Subject to Personal Jurisdiction in Massachusetts: In Steward Health Care System v. CHSPSC, Judge Sanders found that CHSPSC, an affiliate of Community Health Systems (CHS), is subject to personal jurisdiction in Massachusetts for claims made under transition-services agreement (TSAs) signed along with an asset-purchase agreement (APA).
• lululemon’s Motion to Dismiss Eviction Case Denied: In CWB Retail Limited Partnership v. Lululemon USA, Inc., lululemon moved to dismiss a summary-process action brought by its landlord, CWB Retail Limited Partnership.
• Comcast Prevails in Dispute over Interpretation of Commercial Lease: Maynard Industrial Properties Associates Trust (MIPA), a commercial landlord, sued Comcast of Massachusetts III, Inc. (Comcast). The dispute focused on the amount Comcast would owe under an extension of the amended lease.
• John J. Donovan Loses Again: Court Rules that Award in Derivative Action be Distributed Based on Shareholders’ Investment to Avoid Windfall to Disloyal Fiduciary: In Brining v. Donovan, the latest blow to former MIT business professor, John J. Donovan, Judge Davis held that shareholders in Donovan’s failed internet start-up, SendItLater (SIL), could recover more than $700,000 in attorneys’ fees in addition to a December 2019 award of $1.57 million in damages.

In Cabrera v. Auto Max, Carlos Cabrera moved to certify a class of Auto Max vehicle purchasers who did not receive disclosures informing them that their vehicles had suffered structural/frame damage. Auto Max’s alleged failure to provide those disclosures, Cabrera alleged, violated 940 Code Mass. Regs. §§ 3.05(1) and 3.16(2)—and, in turn, G. L. c. 93A.

Judge Kaplan denied the class-certification motion for two main reasons.

This month, Judge Karen Green is replacing Judge Mitchell Kaplan as the judge for the January - June rotation of BLS1. Governor Charlie Baker appointed Judge Green to the Superior Court in 2016. Before her appointment, Judge Green was a senior partner in Wilmer Cutler Pickering Hale and Dorr LLP’s Boston office where she focused her practice on complex business litigation. During her legal career, she served in various public service positions, including as an Assistant US Attorney. More information about Judge Green can be found here.  

In Lewis PR v. Murphy, Judge Kaplan quashed the plaintiff’s subpoena requesting 20 months of the defendant’s cell phone records. Judge Kaplan found that the subpoena was abusive and “stunning in its over breadth.”

The plaintiff sued the defendant for alleged breach of a restrictive covenant in an asset purchase agreement. In discovery, the plaintiff subpoenaed Verizon to produce records reflecting all telephone bills, text messages, and call data for the defendant’s personal cell phone for a period of 20 months. The defendant moved to quash the subpoena.

Ruling on a motion seeking the return of inadvertently produced privilege materials, Judge Kaplan elaborated on the meaning of “inadvertent” in the context of Massachusetts Rule of Civil Procedure 26(b)(5) and so-called clawback agreements.  

Judge Kaplan’s recent ruling in the “Burns Bridge” litigation provides helpful guidance on the interplay between breach of contract and professional negligence claims.

In The Middlesex Corporation, Inc. v. Fay, Spofford, & Thorndike, Inc., plaintiff The Middlesex Corporation, Inc. (Middlesex) alleged that defendant Fay, Spofford, & Thorndike, Inc. (FST) negligently prepared engineering designs and drawings that caused Middlesex to underestimate steel costs by $4 million for the Kenneth F. Burns Memorial Bridge rehabilitation project.  In its motion for summary judgment, FST argued in part that Middlesex’s breach of contract claim must be dismissed because the “gist” of the claim is for professional negligence, a claim that Middlesex had also alleged.

Earlier this fall, the Social Law Library sponsored a panel discussion entitled Written Motion Practice at the BLS: A Deep Dive on Effective Techniques. The four BLS judges—Judges Davis, Kaplan, Salinger, and Sanders—participated on the panel. Three lawyers also joined the panel: Maureen Mulligan, Peabody & Arnold LLP; David H. Rich, Todd & Weld LLP; and Daniel P. Tighe, Donnelly, Conroy & Gelhaar, LLP. Eric Magnuson served as moderator.

Judge Kaplan stayed a securities litigation filed in the BLS in favor of a securities litigation filed in federal court. The plaintiff in Lowinger v. Solid Biosciences Inc. filed his putative class action in the BLS. A day earlier, the plaintiff in Watkins v. Solid Biosciences Inc. filed his putative class action in the United States District Court for the District of Massachusetts. Both cases alleged that the defendant, Solid Biosciences Inc. (SBI), had violated the Securities Act of 1933 when shares of SBI stock were sold to SBI investors.

Judge Kaplan recently ruled that the Superior Court does not have jurisdiction over an out-of-state defendant under the Massachusetts long-arm statute, G.L. c. 223A, § 3. The case involves two competing businesses that design and market apps for restaurants: SCVGR d/b/a LevelUp and Punchh.

A business plaintiff’s assertion of a Chapter 93A claim could boomerang where the plaintiff moves to dismiss a Chapter 93A counterclaim. That’s a key takeaway from Judge Kaplan’s decision in Microsemi Corp. v. Langlois.