From footnote two of Massachusetts v. Equifax:
On June 11, the Boston Bar Association hosted its annual “Business Litigation Session Year in Review.” The BLS judges, including incoming Judge Brian Davis (who is taking over for Judge Leibensperger in BLS1), shared tips and other thoughts for attorneys practicing in the BLS to consider.
Key Takeaway: In Roche Brothers Supermarkets v. Continental Casualty Company, Judge Kaplan ruled that monies expended by an insured to prevent property damage were not recoverable under a commercial property insurance policy. The policy insured against the risk of loss of, or damage to, property—not the cost of eliminating the risk of loss of, or damage to, property.
Judge Sanders issued an interesting summary-judgment decision in Bassett v. Triton Technologies. She teed up the issue this way:
While litigants often invoke Rule 45 to discover documents from third parties during the course of litigation, courts have rarely ordered payment of the fees incurred by the third party to comply with the subpoena. Judge Leibensperger, however, recently ordered one of the parties in Medical Source, Inc. et al. v. Perkinelmer Health Sciences, Inc. who had issued a subpoena in the case to do just that.
In July 2018, Judge Brian Davis will replace Judge Edward Leibensperger as the judge for the July-December rotation period of BLS1. Governor Deval Patrick appointed Judge Davis to the Superior Court in 2013. Before his appointment, Judge Davis spent his legal career in private practice where he focused on complex commercial disputes, torts, product-liability defense, fraud and insurance, and corporate governance. More information on Judge Davis’s background can be found here and at Massachusetts Lawyers Weekly.
In Fratea, Judge Sanders held that an employee separation agreement that specifically referenced the waiver of Massachusetts Wage Act claims was enforceable. Judge Sanders applied the legal standard established by the SJC in Crocker v. Townsend Gulf Oil Co., Inc. In Crocker, the SJC held that a termination agreement that includes a general release will be enforceable as to Wage Act claims only if such an agreement is stated in clear and unmistakable terms: “[T]he release must be plainly worded and understandable to the average individual and must specifically refer to the rights and claims under the Wage Act that the employee is waiving.” The general release in Crocker failed because it did not reference the Wage Act.
Key Takeaway: In Ginsberg et. al. v. Ginsberg et. al., Judge Leibensperger ruled that a trust beneficiary could assert a trust was procured by fraud despite the presence of a in terrorem or no-contest clause. Judge Leibensperger noted that such a challenge “is an all or nothing venture by the challenging party.” If the challenging party is successful in proving fraud, the entire trust falls. But if the challenging party is unsuccessful, that party loses all benefits from the trust.
In Bay Colony, Judge Salinger denied the defendants’ motion to dismiss a contract claim as time barred even though one defendant (AMB) had sent a letter to the plaintiffs more than six years earlier disputing the existence of a binding agreement between the parties.
Key Takeaway: While Massachusetts courts have jurisdiction over internal church disputes involving church property, they must defer to the decision-making process of a hierarchical religious organization when a dispute is intertwined with religious doctrine.
- Senior Editor, Co-Chair, Business Litigation Practice Group