Earlier this year, the Social Law Library hosted the “2018 Business Litigation Year in Review.” The presenters, including BLS Judge Kenneth W. Salinger, offered commentary on some recent BLS decisions.
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.
Judge Sanders refused to grant summary judgment for America’s Test Kitchen (ATK) on Christopher Kimball’s defamation claim. According to Kimball, ATK defamed him when it posted information on its website after the litigation began. That information included, among other things, ATK’s complaint against Kimball, a chronology of events, and a section on frequently asked questions.
In Lukas v. Unidine Corp., et al., Judge Davis held that, under the Massachusetts Wage Act, GL c. 149, § 148, employee commissions can be conditioned on receipt of customer payments on which the commissions are based. Judge Davis found that the Wage Act did not require Unidine to make further commission payments to the plaintiff following her resignation and granted summary judgment in favor of Unidine.
Judge Sanders certified a class of more than 18,000 Six Flags seasonal employees complaining that the amusement park failed to pay overtime.
The park pays its seasonal employees on an hourly basis, but not overtime. In support of this policy, Six Flags relied on G.L. c. 151, § 1A(20), which excuses amusement parks from paying overtime if they do not operate more than 150 calendar days a year. The plaintiffs countered that in recent years Six Flags recorded attendance at the park on 150 days or more—in addition to days when the park is open for private or special events. Judge Sanders granted the motion for class certification because the plaintiffs’ claim that Six Flags operated more than 150 days of the year was common to all members of the overtime class.
Judge Davis’s recent denial of an anti-SLAPP motion to dismiss provides helpful guidance on how to distinguish between counterclaims used as solely as a “cudgel” and meritorious claims in breach of contract cases. The ruling also underscores the importance of drafting clear release language in a settlement agreement.
In the litigation between Equifax and Massachusetts Office of the Attorney General, Judge Sanders rejected certain provisions of Equifax’s proposed protective order for the production of sensitive discovery materials, including documents about Equifax’s network and cybersecurity program. Equifax moved for the protective order in Commonwealth of Massachusetts v. Equifax, a case arising from the 2017 Equifax data breach that affected roughly 143 million U.S. consumers. Judge Sanders’ ruling on the protective order follows Judge Salinger’s denial of Equifax’s motion to dismiss on April 2, 2018.
Michael Leard, a Nutter associate, recently interviewed Judge Brian A. Davis for a feature in the Massachusetts Bar Association’s Complex Commercial Litigation (ComCom) Quarterly. The article, Judge Brian A. Davis Discusses Business Litigation, highlights Judge Davis’s preferences and practices at various stages of litigation, including:
- circumstances where he may encourage the submission of courtesy copies;
- ways he may facilitate an expeditious and cost-effective discovery process;
- topics he may address at the final trial conference; and
- his voir dire process.
Judge Davis presides in BLS1 for the July – December rotation period. (Judge Kaplan presides in BLS1 for the January – June rotation period.)
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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.
It’s been a busy year at the BLS Blog. As we wrap up 2018, take a look at our top five most well-read posts:
- America’s Test Kitchen Faces Abuse of Process Claim: Judge Salinger denied
America’s Test Kitchen’s motion to dismiss an abuse-of-process claim asserted by William Thorndike, Jr. According to Thorndike, America’s Test Kitchen brought a baseless lawsuit to hinder Christopher Kimball’s efforts, supported by Thorndike, to compete against America’s Test Kitchen. That assertion, according to Judge Salinger, was sufficient to state an abuse-of-process claim.
- Senior Editor, Co-Chair, Business Litigation Practice Group