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The comment period for the Superior Court Rules Committee’s proposed amendments to Rules 9A and 9C is open until February 15. While most of the amendments to Rule 9A are merely intended to simplify and reorganize the rule, some would bring more substantive changes. For example, proposed changes to the summary-judgment process include limiting statements of material facts (SOFs) to 20 pages and prohibiting the inclusion of background facts or quotations from contracts, trusts, agreements, statutes, regulations, or rules in SOFs. Background facts, however, would be permitted in a memorandum of law in support of a summary judgment motion, and quotations from the other materials described above could be submitted in an addendum.

Ruling on an issue of first impression in Massachusetts, Judge Kaplan determined that he had authority under Mass. R. Civ. P. 12(f) to strike class allegations from a complaint. Judge Kaplan framed the issue this way: “[T]he practical issue raised by [the defendant’s] motion [to strike] is whether there are sufficient facts pled in the Complaint to permit the class claims to proceed and the plaintiff to take class discovery from [the defendant].” Noting the absence of any Massachusetts cases addressing the issue, Judge Kaplan turned to Federal law and followed the First Circuit’s decision in Manning v. Boston Medical Center Corp., 725 F.3d 34 (1st. Cir. 2013). “In reliance of the federal court decisions interpreting Rules 23 and 12(f),” Judge Kaplan wrote, “this court concludes that . . . a Massachusetts trial court can dismiss class allegations under Mass. R. Civ. P. 12(f).”

Key Takeaway: Where there were “serious questions” about the independence of a board and the good faith of its decision not to pursue a derivative suit against a former director, Judge Kaplan refused to apply the business-judgment rule (BJR).

In Mooney v. Diversified Business Comms., Judge Sanders addressed a number of discovery issues, including the relevance of requested documents, the redaction of non-relevant information in responsive documents, and privilege. The most notable—an issue of first impression in Massachusetts—was whether a former officer suing his old company could discover privileged communications that occurred when he had been employed with the company.

Background: When the Massachusetts Gaming Commission (MGC) awarded a gaming license to Wynn to operate a casino in Everett, Massachusetts, MGC effectively chose Wynn over Mohegan Sun, which sought a license to operate a casino in Revere, Massachusetts. Mohegan Sun brought suit in the BLS, seeking to vacate the MGC’s decision. Mohegan Sun alleges that MGC improperly favored Wynn throughout the application process. Mohegan Sun further alleges that MGC did not properly apply the statutory standards for granting a casino license. After commencing suit, Mohegan Sun filed a motion to “complete the administrative record,” which sought production of, among other documents, communications between a quorum of MGC commissioners regarding the licensing proceedings.

In Beninati, et al. v. Borghi, et al., Judge Sanders ruled that the plaintiffs in a successful action under G.L. c. 93A, § 11, were not entitled to recover $170,000 in attorneys’ fees incurred before the litigation began. The fees, according to the plaintiffs’ fee petition, related to “extensive settlement discussions” that predated the filing of the action. Judge Sanders wrote: “This Court is aware of no authority that permits the award of fees incurred before the litigation began and that do not bear directly on its preparation, which these fees clearly did not.”

We’ll have more to say about SCVNGR, Inc. v. Punchh, Inc., a case decided by the SJC on appeal from the BLS, in the days ahead. But for now, we want to alert judges and practitioners to two points.

The “mail box rule” found in Mass. Civ. P. 6(d) applies to deadlines triggered by “service of a notice or other papers,” not deadlines triggered by an event other than service. That is the key takeaway from Judge Salinger’s ruling in New England Patriots Fans v. National Football League.

Posted in Fiduciary Duty, LLC

In Butts, et al. v. Freedman, et al., Judge Sanders ruled that the language of a Massachusetts LLC operating agreement—disclaiming any “partnership” or “joint venture” relationship between the LLC members—did not bar an LLC member from pursuing a claim for breach of fiduciary duty against another LLC member. The language at issue, according to Judge Sanders, did not constitute “a clear and unequivocal elimination of one member’s fiduciary responsibility to another.”

Overriding a Massachusetts forum-selection provision found in an employment agreement, Judge Salinger ruled in Oxford Global Resources, LLC v. Hernandez that an employer’s litigation against a former employee belonged in California, not Massachusetts.

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