BLS Blog

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.

Judge Kaplan stayed a securities litigation filed in the BLS in favor of a securities litigation filed in federal court. The plaintiff in Lowinger v. Solid Biosciences Inc. filed his putative class action in the BLS. A day earlier, the plaintiff in Watkins v. Solid Biosciences Inc. filed his putative class action in the United States District Court for the District of Massachusetts. Both cases alleged that the defendant, Solid Biosciences Inc. (SBI), had violated the Securities Act of 1933 when shares of SBI stock were sold to SBI investors.

During discovery, plaintiff America’s Test Kitchen moved to compel production of documents withheld under a claim of attorney-client privilege. The defendants had withheld certain communications with an outside consultant to their business – CPK Media, LLC – regarding legal advice sought by the LLC.

Judge Kaplan recently ruled that the Superior Court does not have jurisdiction over an out-of-state defendant under the Massachusetts long-arm statute, G.L. c. 223A, § 3. The case involves two competing businesses that design and market apps for restaurants: SCVGR d/b/a LevelUp and Punchh.

In Parker v. EnerNoc, Inc., Judge Salinger considered the plaintiff’s request for attorneys’ fees after the plaintiff prevailed on her employment-based claims at trial. According to Judge Salinger, the plaintiff did not submit “any real evidentiary support” for her attorneys’ hourly rates. Judge Salinger nonetheless relied on his own experience of “prevailing market rates for similar services by persons with comparable experience” to determine whether the fees were reasonable.

Last summer, Judge Salinger ruled in Oxford Global Resources, LLC v. Hernandez that a plaintiff employer’s litigation against a former employee belonged in California, not Massachusetts. The defendant was employed in California by the plaintiff, which is headquartered in Massachusetts. Judge Salinger dismissed the case on forum non conveniens grounds—despite the presence of a Massachusetts choice of law provision and a Massachusetts forum selection provision in the employment agreement.

In a case concerning allegedly unfair student loan collection practices, Judge Salinger concluded that a Pennsylvania public corporation, the Pennsylvania Higher Education Assistance Agency (PHEAA), is a “person” potentially subject to Chapter 93A liability.

In Anesthesia Associates, Judge Salinger rejected the plaintiff’s motion for a preliminary injunction because, in essence, the motion constituted a premature creditor’s bill.

In McCarthy v. Genesee & Wyoming Railroad Services, an employee brought a lawsuit against his former employer, alleging that the employer breached the parties’ contract by failing to pay the employee severance benefits. The employer moved to dismiss the complaint, arguing that the contract requires the parties to arbitrate disputes about its enforcement or interpretation. The employee counterargued that the contract, at the very least, is ambiguous. The arbitration provision, according to the employee, conflicts with the contract’s forum-selection provision. That latter provision states that “each party . . . consents to the jurisdiction of a competent court in Massachusetts to hear any dispute arising out of this Agreement.”