- Posts by Alison C. CaseyAssociate
Alison C. Casey is an associate in Nutter’s Litigation Department and works with clients primarily on complex intellectual property and commercial litigation as well as labor and employment matters. Clients rely on Alison’s ...
In Lewis PR v. Murphy, Judge Kaplan quashed the plaintiff’s subpoena requesting 20 months of the defendant’s cell phone records. Judge Kaplan found that the subpoena was abusive and “stunning in its over breadth.”
The plaintiff sued the defendant for alleged breach of a restrictive covenant in an asset purchase agreement. In discovery, the plaintiff subpoenaed Verizon to produce records reflecting all telephone bills, text messages, and call data for the defendant’s personal cell phone for a period of 20 months. The defendant moved to quash the subpoena.
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.
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.
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.
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.
“Under Massachusetts law,” Judge Salinger observed in Stone v. Remillard, “a corporation does not owe a fiduciary duty to its shareholders.” In support of that blackletter law, Judge Salinger cited to footnote three of Merola v. Exergen Corp., 423 Mass. 461 (1996).
Key Takeaway: In Roche Brothers Supermarkets v. Continental Casualty Company, Judge Kaplan ruled that monies expended by an insured to prevent property damage were not recoverable under a commercial property insurance policy. The policy insured against the risk of loss of, or damage to, property—not the cost of eliminating the risk of loss of, or damage to, property.
While litigants often invoke Rule 45 to discover documents from third parties during the course of litigation, courts have rarely ordered payment of the fees incurred by the third party to comply with the subpoena. Judge Leibensperger, however, recently ordered one of the parties in Medical Source, Inc. et al. v. Perkinelmer Health Sciences, Inc. who had issued a subpoena in the case to do just that.
In Fratea, Judge Sanders held that an employee separation agreement that specifically referenced the waiver of Massachusetts Wage Act claims was enforceable. Judge Sanders applied the legal standard established by the SJC in Crocker v. Townsend Gulf Oil Co., Inc. In Crocker, the SJC held that a termination agreement that includes a general release will be enforceable as to Wage Act claims only if such an agreement is stated in clear and unmistakable terms: “[T]he release must be plainly worded and understandable to the average individual and must specifically refer to the rights and claims under the Wage Act that the employee is waiving.” The general release in Crocker failed because it did not reference the Wage Act.
- Senior Editor, Co-Chair, Business Litigation Practice Group