As we previously noted, Judge Kaplan invalidated a directive issued by the Massachusetts Department of Revenue (DOR). Directive 17-1 would have required internet vendors outside of Massachusetts to collect and remit sales taxes to the DOR where certain thresholds of product sales into Massachusetts were met. Judge Kaplan ruled that because the directive substantially altered the rights and interests of internet vendors, the directive amounted to an improperly imposed regulation. That was chapter one.
In the American Catalog litigation, Judge Kaplan invalidated a directive issued by the Massachusetts Department of Revenue (DOR).
This summer, the Boston Bar Association hosted its annual “Business Litigation Session Year in Review.” The current BLS bench—Judges Sanders, Salinger, Kaplan, and Liebensperger—shared tips for attorneys practicing in the BLS. Here are four takeaways from that event:
Judge Kaplan reported the following question to the Massachusetts Appeals Court: “May a government agency invoke a termination for convenience clause contained in a procurement contract for the purchase of goods for the sole reason that it has learned of an opportunity to purchase the same goods at a lower price from another vendor?”
The question arose in a dispute between A.L. Prime Energy Consultant, Inc. (Prime) and the MBTA. In July 2015, Prime was awarded a two-year supply contract to provide the MBTA with Ultra Low Sulfur Diesel Fuel (ULSDF) after a public bidding process. A year later, the MBTA terminated the contract under the termination-for-convenience clause.
Considering the rights of parties involved in a soured business relationship, Judge Kaplan reiterated that a binding contract requires an agreement on the material terms and an intent to be bound. A term sheet that does not represent an attempt to formalize an already established agreement is not an enforceable contract.
In OpenRisk, LLC v. Microstrategy Services Corp., et al., Judge Kaplan declined to adopt a conspiracy theory of personal jurisdiction. Judge Kaplan framed the issue this way:
- Senior Editor, Co-Chair, Business Litigation Practice Group