BLS Blog

Judge Salinger dismissed a real estate developer’s counterclaims against a project manager, ruling that the counterclaim allegations did not “plausibly suggest that [project manager] [wa]s liable for the contractor’s missteps.”

In Gerhardt v. Burr, the developer hired a project manager to oversee construction of a commercial property. According to the developer, a contractor defectively installed flooring during construction. The project manager filed suit, alleging insufficient payment. The developer, in turn, counterclaimed that the project manager “‘failed to perform his duties and fulfill his obligations’ because he was ‘responsible for ensuring that the Project was completed properly’ and the project was completed improperly.”

Judge Ricciuti ruled that the plaintiff, whose educational-travel trip was cancelled because of the COVID-19 pandemic, stated a viable Chapter 93A claim that the contractual remedy provided by the tour operator improperly limited available regulatory remedies.

In Godines, et al. v. EF Explore America, Inc., the contract permitted the tour operator to cancel the plaintiff’s trip due to an “Extraordinary Event.” There was no dispute that the COVID-19 pandemic was such an event. The contract further provided that, in the event of cancellation, customers would receive a voucher for future travel, less non-refundable fees. But the applicable consumer-protection regulation,  940 CMR 15.06, provides that if a trip is cancelled, a travel company must offer a full refund, a substitution travel service of equal value, or a lower-valued travel service and refund the difference. The contract, in other words, offered “more limited relief,” and the tour operator issued only a partial refund.

The judges sitting in the BLS during calendar year 2022 recently adopted and published guidance about their preferences and practices on court proceedings and filings. These preferences and practices include:

• encouraging the active participation in court proceedings by junior attorneys;
• asking parties to include in motion papers a brief explanation of their preference between in-person versus virtual proceedings;
• promoting in-person trials and evidentiary hearings; and
• explaining the circumstances where paper or digital copies should accompany electronic filings.

The complete guidance can be found here.

In Bertolino v. Fracassa, Judge Salinger ruled that the advice-of-counsel defense did not insulate Frederick McDonald, a defendant in the case, from liability under the Massachusetts Uniform Securities Act (MUSA), G.L. c. 110A, § 410. McDonald claimed that because he relied on his counsel’s advice to determine what he needed to disclose when soliciting investors, he could not be held liable for failing to disclose material facts to potential investors when he offered and sold membership units in his LLC. Rejecting McDonald’s argument, Judge Salinger reasoned that, because the advice-of-counsel defense is available only “to rebut the scienter element of a crime or civil charge requiring a willful or intentional violation of the law” and “willful or intentional misconduct is not an element of liability under MUSA,” McDonald couldn’t rely on that defense. Judge Salinger also reasoned that, even if the advice-of-counsel defense were viable under MUSA, McDonald proffered no evidence that “he made [a] complete disclosure to counsel, sought advice as to the legality of his conduct, received advice that his conduct was legal, [or] relied on that advice in good faith.”