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Atomic Café Trademark Litigation Against LeanBox and Cold Brew Does Not Trigger Travelers Indemnity’s Duty to Defend or Indemnify, Judge Green Rules

In The Travelers Indemnity Company v. Lean & Local LLC, Travelers sought a declaration that it did not owe its insureds indemnity or a defense. Judge Green granted Travelers summary judgment. The claims asserted against the insureds in a trademark case, Judge Green ruled, did not trigger coverage under the policies’ “advertising injury” provision.

The trademark case, filed in the United States District Court for the District of Massachusetts, involved claims by Atomic Café against LeanBox and Cold Brew, the insureds under the policies. Atomic Café alleged that the defendants’ use of Atomic Café’s mark on the defendants’ website constituted trademark infringement.

Justice: Justice Green
Judge Salinger Thaws Defendants’ Attempt to 'Chill' Malicious Prosecution Claims under Massachusetts’ Anti-SLAPP Statute

In Crotty v. Continuum Energy Technologies, Judge Salinger granted Thomas Crotty’s special motion to dismiss counterclaims for tortious interference brought by Continuum Energy Technologies (CET) and John Preston under the Massachusetts anti-SLAPP statute.   

This is the latest litigation chapter in "the unravelling of a lengthy business relationship" between CET’s co-founders, John Preston and Christopher Nagel, after Nagel resigned in 2014 to form a competing business, IDL Development, Inc. (IDL). Preston and CET brought claims against Nagel and IDL alleging that Nagel had utilized and exploited CET’s proprietary information without a license. In March 2018, the parties entered into settlement and licensing agreements, under which CET licensed certain intellectual property to IDL. Crotty had participated in these settlement negotiations on behalf of IDL as its lead investor. IDL subsequently defaulted on its payment obligations and declared bankruptcy. 

‘Notice Pleading’ Passes the Smell Test in Noxious Odor Matter

Emphasizing the concept of “notice pleading” under Mass. R. Civ. P. 8, Judge Salinger recently denied a gelatin factory’s motion to dismiss. In Baranofsky v. Rousselot Peabody, Inc., a proposed class of neighboring City of Peabody residents brought nuisance, negligence, and trespass claims against Rousselot Peabody, Inc. based on “overpowering smells of rotting flesh” allegedly emitted by its factory.

Summary Enforcement of Settlement Agreement Not Appropriate Due to Ambiguity

In Flessas v. Rouisse, Judge Davis denied “dueling motions” seeking enforcement of the parties’ settlement agreement. The settlement agreement arose out of a dispute in which Costas Flessas alleged that he was fraudulently induced into purchasing a 15% interest in the Essex Sports Center, LLC, which operates an indoor sports facility. The settlement agreement provided that certain defendants would purchase Flessas’ ownership interest, who would thereafter release his claims.

Justice: Justice Davis

As we previously blogged, Facebook and Massachusetts Attorney General Maura Healey (AG) are embroiled in a dispute over documents. After Facebook refused to produce certain information created in the course of its “App Developer Investigation,” the AG filed a petition in the BLS to compel Facebook’s compliance with her civil-investigative demand. Facebook opposed the petition, claiming that the sought-after information was work product and protected by the attorney-client privilege. Judge Davis rejected Facebook’s arguments, ordering Facebook to produce documents within 90 days of his order.

After Judge Davis handed down his order, Facebook filed a notice of appeal and moved for a stay pending appeal. The AG opposed the stay. Judge Davis denied the motion.

Judge Davis grounds his denial on two main points.

First, according to Judge Davis, the automatic-stay provision of Mass. R. Civ. P. 62(a) does not apply to the court’s prior order compelling production of documents. That prior order, Judge Davis wrote, “is most appropriately viewed as ‘an interlocutory or final judgment in an action for an injunction,’ which does not qualify for an automatic stay under Rule 62(a).”

Second, Facebook failed to convince Judge Davis that he should exercise his discretion to stay the prior order.

Recognizing that this Judge represents a difficult audience to convince that the [prior order] is erroneous, the Court—viewing the question as objectively as it reasonably can—sees nothing in Facebook’s motion papers which lead it to believe that Facebook’s pending appeal is likely to prevail. The arguments that Facebook intends to pursue on appeal all were considered and rejected by this Court . . . . The Appeals Court may see it otherwise, but this Court remains of the humble opinion that [its prior order] was correctly decided and is likely to be affirmed—rather than overturned—on appeal. For this reason alone, the Court, acting within its discretion, chooses to deny Facebook’s request for a stay of the [prior order].

The Business Litigation Session of the Massachusetts Superior Court

Docket Number: 1984CV02597-BLS1

Case Name: Attorney General v. Facebook, Inc.

Dates of Decision: March 2, 2020

Judge’s full name: Brian A. Davis

Justice: Justice Davis
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. The AG’s decision to investigate Facebook was prompted, in part, by media reports about Cambridge Analytica’s misuse of Facebook user information, including private data associated with millions of Facebook users residing in Massachusetts.

Justice: Justice Davis

In Parker v. EnerNOC, Parker alleged that she was terminated less than one month after closing the most lucrative client contract in EnerNOC’s history in part because she complained about the amount of her commission for the contract. Although Parker prevailed on her Wage Act claim in the BLS, she appealed after the BLS judge did not treble a portion of the commissions she was owed. Parker, as discussed below, prevailed on appeal. 

Governor Baker’s Emergency Order Closing Adult-Use Marijuana Establishments Survives Constitutional Challenge in BLS

To help slow the spread of the COVID-19 pandemic, Governor Baker has ordered businesses to suspend physical operations unless he deems them “essential.” Under his emergency orders, Governor Baker considers medical-marijuana treatment centers (MTCs) and liquor stores to be essential, but he considers adult-use marijuana establishments to be non-essential.

For the second time, sanctions have been ordered against the plaintiff in Tam v. Federal Management Co., Inc., et al.

In 2016, we blogged about Judge Leibensperger’s sanction to disqualify Siew-Mey Tam as a class representative after finding that she made materially false and misleading statements in her affidavit to the court in support of her motion for class certification. These false statements came to light during post-certification discovery, when Tam’s deposition testimony revealed inconsistencies with her affidavit and cast substantial doubt on her credibility. Judge Leibensperger also decertified the class, in part, because of Tam’s inconsistent representations.

Justice: Justice Davis
Establishment of Nation-Wide Class Rejected in Securities Case

In Jackie 888, Inc. v. Tokai Pharmaceuticals, Inc., Jackie 888 sued Tokai on behalf of itself and a putative class of individuals who had purchased Tokai stock, alleging Tokai made misleading statements in an IPO registration statement and prospectus. Jackie 888 moved for class certification.

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