BLS Blog

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.

In Beninati, et al. v. Borghi, et al., Judge Sanders ruled that the plaintiffs in a successful action under G.L. c. 93A, § 11, were not entitled to recover $170,000 in attorneys’ fees incurred before the litigation began. The fees, according to the plaintiffs’ fee petition, related to “extensive settlement discussions” that predated the filing of the action. Judge Sanders wrote: “This Court is aware of no authority that permits the award of fees incurred before the litigation began and that do not bear directly on its preparation, which these fees clearly did not.”

We’ll have more to say about SCVNGR, Inc. v. Punchh, Inc., a case decided by the SJC on appeal from the BLS, in the days ahead. But for now, we want to alert judges and practitioners to two points.

The “mail box rule” found in Mass. Civ. P. 6(d) applies to deadlines triggered by “service of a notice or other papers,” not deadlines triggered by an event other than service. That is the key takeaway from Judge Salinger’s ruling in New England Patriots Fans v. National Football League.

In Butts, et al. v. Freedman, et al., Judge Sanders ruled that the language of a Massachusetts LLC operating agreement—disclaiming any “partnership” or “joint venture” relationship between the LLC members—did not bar an LLC member from pursuing a claim for breach of fiduciary duty against another LLC member. The language at issue, according to Judge Sanders, did not constitute “a clear and unequivocal elimination of one member’s fiduciary responsibility to another.”

Overriding a Massachusetts forum-selection provision found in an employment agreement, Judge Salinger ruled in Oxford Global Resources, LLC v. Hernandez that an employer’s litigation against a former employee belonged in California, not Massachusetts.

As we previously noted here, the SJC earlier this year issued its opinion affirming Judge Leibensperger’s decision in a matter arising out of the EMC-Dell merger. Taken together, those decisions set a landmark in Massachusetts corporate governance law by delineating the fiduciary duties of directors of Massachusetts corporations and differentiating them from Delaware’s precepts. EMC’s counsel, Tom Dougherty and Kurt Hemr, published an insightful Special Commentary about those decisions as a preface to the 2017 edition of CSC Lexis/Nexis Massachusetts Laws Governing Business Entities Annotated. We recommend the Special Commentary to our readers, which can be found here.

Note: Nutter filed an amicus brief with the SJC in this matter on behalf of the Associated Industries of Massachusetts.

As we previously noted, Judge Kaplan invalidated a directive issued by the Massachusetts Department of Revenue (DOR). Directive 17-1 would have required internet vendors outside of Massachusetts to collect and remit sales taxes to the DOR where certain thresholds of product sales into Massachusetts were met. Judge Kaplan ruled that because the directive substantially altered the rights and interests of internet vendors, the directive amounted to an improperly imposed regulation. That was chapter one.

In the American Catalog litigation, Judge Kaplan invalidated a directive issued by the Massachusetts Department of Revenue (DOR).

Although this blog focuses on BLS cases, a recent decision from the First Circuit merits attention here. The case highlights a key difference between federal and state practice on Chapter 93A claims, which are as commonly asserted in Massachusetts civil litigation as streets are jammed with traffic in Boston. In Full Spectrum Software, Inc. v. Forte Automation Systems, Inc., the First Circuit ruled that there is a right to a jury trial for Chapter 93A claims pending in federal court, at least in certain circumstances. The Supreme Judicial Court decided years ago in Nei v. Burley, in contrast, that no such right exists in connection with Chapter 93A claims pending in Massachusetts state courts.