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  • Posts by Alison C. Casey
    Associate

    Alison C. Casey is an associate in Nutter’s Litigation Department and works with clients primarily on civil litigation, with an emphasis on intellectual property, employment, and commercial law matters. Clients rely on ...

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.

Key Takeaway: While Massachusetts courts have jurisdiction over internal church disputes involving church property, they must defer to the decision-making process of a hierarchical religious organization when a dispute is intertwined with religious doctrine.

The comment period for the Superior Court Rules Committee’s proposed amendments to Rules 9A and 9C is open until February 15. While most of the amendments to Rule 9A are merely intended to simplify and reorganize the rule, some would bring more substantive changes. For example, proposed changes to the summary-judgment process include limiting statements of material facts (SOFs) to 20 pages and prohibiting the inclusion of background facts or quotations from contracts, trusts, agreements, statutes, regulations, or rules in SOFs. Background facts, however, would be permitted in a memorandum of law in support of a summary judgment motion, and quotations from the other materials described above could be submitted in an addendum.

Key Takeaway: Where there were “serious questions” about the independence of a board and the good faith of its decision not to pursue a derivative suit against a former director, Judge Kaplan refused to apply the business-judgment rule (BJR).

Background: When the Massachusetts Gaming Commission (MGC) awarded a gaming license to Wynn to operate a casino in Everett, Massachusetts, MGC effectively chose Wynn over Mohegan Sun, which sought a license to operate a casino in Revere, Massachusetts. Mohegan Sun brought suit in the BLS, seeking to vacate the MGC’s decision. Mohegan Sun alleges that MGC improperly favored Wynn throughout the application process. Mohegan Sun further alleges that MGC did not properly apply the statutory standards for granting a casino license. After commencing suit, Mohegan Sun filed a motion to “complete the administrative record,” which sought production of, among other documents, communications between a quorum of MGC commissioners regarding the licensing proceedings.

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