BLS Blog

It was another eventful year at the BLS, which included Judge Green replacing Judge Kaplan in the BLS1. As 2020 concludes, check out our top five widely read posts:

• 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.
• Community Health Systems Affiliate Found Subject to Personal Jurisdiction in Massachusetts: In Steward Health Care System v. CHSPSC, Judge Sanders found that CHSPSC, an affiliate of Community Health Systems (CHS), is subject to personal jurisdiction in Massachusetts for claims made under transition-services agreement (TSAs) signed along with an asset-purchase agreement (APA).
• lululemon’s Motion to Dismiss Eviction Case Denied: In CWB Retail Limited Partnership v. Lululemon USA, Inc., lululemon moved to dismiss a summary-process action brought by its landlord, CWB Retail Limited Partnership.
• Comcast Prevails in Dispute over Interpretation of Commercial Lease: Maynard Industrial Properties Associates Trust (MIPA), a commercial landlord, sued Comcast of Massachusetts III, Inc. (Comcast). The dispute focused on the amount Comcast would owe under an extension of the amended lease.
• John J. Donovan Loses Again: Court Rules that Award in Derivative Action be Distributed Based on Shareholders’ Investment to Avoid Windfall to Disloyal Fiduciary: In Brining v. Donovan, the latest blow to former MIT business professor, John J. Donovan, Judge Davis held that shareholders in Donovan’s failed internet start-up, SendItLater (SIL), could recover more than $700,000 in attorneys’ fees in addition to a December 2019 award of $1.57 million in damages.

Under Massachusetts procedure, a party has the right to compel an opponent to disclose its testifying expert’s opinions through interrogatories. But unlike federal procedure, a party under Massachusetts procedure must obtain leave of court to depose a testifying expert. See Mass. R. Civ. P. 26(b)(4)(A). That relief is warranted, according to Judge Salinger writing in Lubin & Meyer, P.C. v. Manning, only if an expert deposition is “reasonable and necessary.”

As Judge Salinger observed in Lubin & Meyer, a party can typically make that showing where a deposition “is needed to obtain information effectively to cross-examine the expert, and that doing so will likely streamline the presentation of the case at trial.” Or as Judge Salinger wrote (quoting Nelson G. Apjohn, Further Discovery of Expert Witnesses Under Massachusetts Rule of Civil Procedure 26, 88 Mass. L. Rev. 197, 199 (2004)), “‘a court should allow a motion for further discovery under Rule 26(b)(4) if it is satisfied that the moving party’s interest is limited to obtaining the information needed for cross-examination and not designed to build her own case on the work of an opposing party’s expert.’”

Lubin & Meyer, Judge Salinger ruled, failed to make the requisite Rule 26(b)(4)(A) showing.

Judge Salinger first noted that the defendant’s expert “provided a 47-page report that discusses his relevant background and expertise, identifies the case materials he has reviewed, describes his understanding of the case, and explains in detail the opinions and conclusions [he] reached.”

He then rejected the plaintiff’s two arguments in favor of allowing the expert deposition.

First, Plaintiff argues that it should be allowed to ask the witness whether he has opinions that are not disclosed in his report. But there is no need to depose any expert regarding opinions that they have not disclosed. At trial, the expert’s testimony will be limited to what is contained in his expert report.

Second, Plaintiff says it will be challenging the admissibility of this witness’s opinions on the ground that he is not qualified to testify on these topics, the proffered opinions are irrelevant, and the issues addressed in the expert’s report are not the appropriate subject of expert testimony. But Plaintiff does not explain why it needs to depose the witness in order to raise such challenges. The expert’s written report either does or does not establish that he is qualified to testify about the disclosed opinions and conclusions. And Defendant either can or cannot show that those opinions are relevant and the proper subject of expert testimony. There is no apparent need for an expert deposition on any of those gatekeeper issues of admissibility.

Judge Salinger concluded: “In sum, Plaintiff has not shown that deposing Defendant’s expert is reasonable and necessary. The Court will therefore deny the motion.”

The Business Litigation Session of the Massachusetts Superior Court:

Docket Number: 1784CV02352-BLS2

Case Name: LUBIN & MEYER, P.C. V. JOHN J. MANNING

Date of Decision: March 9, 2020

Judge: Kenneth W. Salinger, Justice of the Superior Court

In Hershey v. Mount Vernon Partners, LLC, Judge Green faced dueling motions to dismiss in a dispute arising from the purchase of an “ultra-luxury” condominium in Beacon Hill. Judge Green granted Brett Hershey’s motion, in part, dismissing counterclaims for interference with business relations and violation of the Massachusetts Wiretap Act brought by the defendants, Mount Vernon Partners, LLC, Marcel D. Safar, Chevron Partners, LLC and Chevron Builders, LLC. Judge Green also denied most of the defendants’ motion to dismiss, allowing all but one of Hershey’s claims (a claim against Safar in his individual capacity) to proceed.    

Maynard Industrial Properties Associates Trust (MIPA), a commercial landlord, sued Comcast of Massachusetts III, Inc. (Comcast). The dispute focused on the amount Comcast would owe under an extension of the amended lease.

The amended lease had a base rent of $8.75 per square foot and stated that the lease term would expire on May 31, 2019. The amended lease gave Comcast the option to extend the lease. If exercised, the first option would commence on June 1, 2019, and last five years, with a base rent of 100% of the then-prevailing market rate for similar quality buildings in Maynard, Massachusetts, provided that the rate would not be less than the current rent of $8.75 per square foot and not more than 110% of the rent for the preceding lease year.

In CWB Retail Limited Partnership v. Lululemon USA, Inc., lululemon moved to dismiss a summary-process action brought by its landlord, CWB Retail Limited Partnership. CWB sought to evict lululemon after CWB sent three notices of default. The notices alleged that lululemon was unlawfully storing goods in a corridor leading to an emergency exit. lululemon moved to dismiss the action on three grounds: (1) the notices of default were ineffective because they were sent to the wrong address; (2) the notices were inadequate because they did not specify what code provision lululemon had violated; and (3) the claimed defaults were not serious enough to warrant forfeiture of the lease. Judge Salinger denied the motion. 

In Brining v. Donovan, the latest blow to former MIT business professor, John J. Donovan, Judge Davis held that shareholders in Donovan’s failed internet start-up, SendItLater (SIL), could recover more than $700,000 in attorneys’ fees in addition to a December 2019 award of $1.57 million in damages. Relying on equitable principles, Judge Davis also prohibited Donovan’s company and SIL shareholder, Securenet Holdings, LLC (Securenet), from sharing in the award. Judge Davis also ruled that the award must be distributed to the remaining shareholders based on each shareholder’s investment, rather than per-share basis, so as to render shares obtained by Donovan’s wife, Linda Donovan, under “suspect” conditions effectively worthless.

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.

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. 

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.

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.