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  • Posts by Eric P. Magnuson
    Partner

    Eric P. Magnuson co-chairs Nutter’s Business Litigation practice group. Blending practicality with tenacity and strategic thinking, Eric helps clients solve legal challenges so that his clients can focus on what they do ...

Court Denies lululemon’s Motion for Attorneys’ Fees Under Fee Shifting Provision

As reported here last summer, Judge Salinger denied lululemon’s motion to dismiss a summary process action brought by lululemon’s landlord, CWB Retail. Later in the litigation, CWB voluntarily dismissed the action with prejudice. lululemon then brought a motion for attorney’s fees under the parties’ lease.

Our Most Popular Posts of 2020

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:

Practice Pointer: Under Massachusetts Procedure, There’s No Right to Expert Depositions

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

Condo Owner’s Claims Seeking to Hold Developer Liable Survive Motion to Dismiss

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.    

Justice: Justice Green
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. 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. 

As we previously blogged, Facebook and Massachusetts Attorney General Maura Healey (AG) are embroiled in a dispute over documents. After Facebook refused to produce certain information created in the course of its “App Developer Investigation,” the AG filed a petition in the BLS to compel Facebook’s compliance with her civil-investigative demand. Facebook opposed the petition, claiming that the sought-after information was work product and protected by the attorney-client privilege. Judge Davis rejected Facebook’s arguments, ordering Facebook to produce documents within 90 days of his order.

After Judge Davis handed down his order, Facebook filed a notice of appeal and moved for a stay pending appeal. The AG opposed the stay. Judge Davis denied the motion.

Judge Davis grounds his denial on two main points.

First, according to Judge Davis, the automatic-stay provision of Mass. R. Civ. P. 62(a) does not apply to the court’s prior order compelling production of documents. That prior order, Judge Davis wrote, “is most appropriately viewed as ‘an interlocutory or final judgment in an action for an injunction,’ which does not qualify for an automatic stay under Rule 62(a).”

Second, Facebook failed to convince Judge Davis that he should exercise his discretion to stay the prior order.

Recognizing that this Judge represents a difficult audience to convince that the [prior order] is erroneous, the Court—viewing the question as objectively as it reasonably can—sees nothing in Facebook’s motion papers which lead it to believe that Facebook’s pending appeal is likely to prevail. The arguments that Facebook intends to pursue on appeal all were considered and rejected by this Court . . . . The Appeals Court may see it otherwise, but this Court remains of the humble opinion that [its prior order] was correctly decided and is likely to be affirmed—rather than overturned—on appeal. For this reason alone, the Court, acting within its discretion, chooses to deny Facebook’s request for a stay of the [prior order].

The Business Litigation Session of the Massachusetts Superior Court

Docket Number: 1984CV02597-BLS1

Case Name: Attorney General v. Facebook, Inc.

Dates of Decision: March 2, 2020

Judge: Brian A. Davis

Justice: Justice Davis
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. The AG’s decision to investigate Facebook was prompted, in part, by media reports about Cambridge Analytica’s misuse of Facebook user information, including private data associated with millions of Facebook users residing in Massachusetts.

Justice: Justice Davis
Governor Baker’s Emergency Order Closing Adult-Use Marijuana Establishments Survives Constitutional Challenge in BLS

To help slow the spread of the COVID-19 pandemic, Governor Baker has ordered businesses to suspend physical operations unless he deems them “essential.” Under his emergency orders, Governor Baker considers medical-marijuana treatment centers (MTCs) and liquor stores to be essential, but he considers adult-use marijuana establishments to be non-essential.

Establishment of Nation-Wide Class Rejected in Securities Case

In Jackie 888, Inc. v. Tokai Pharmaceuticals, Inc., Jackie 888 sued Tokai on behalf of itself and a putative class of individuals who had purchased Tokai stock, alleging Tokai made misleading statements in an IPO registration statement and prospectus. Jackie 888 moved for class certification.

Hotel’s Rejection of Confidentiality Agreement Constitutes Rejection of $83 Million Offer to Sell under 'Right of First Offer' Provision

In Headquarters Hotel v. LBV Hotel, Judge Davis ruled that Headquarters rejected LBV’s offer to sell a property interest under a right-of-first-offer provision by refusing to execute a confidentiality agreement included with the offer.

Under an agreement between the parties, LBV has an estate for years in the real estate owned by Headquarters at 154 Berkeley Street, Boston, until 2131 (2131 is not a typo). The agreement includes a right-of-first-offer provision. Under that provision, if either party wants to market its interest to third parties, the selling party must first offer the interest to the other party at the same price and on the same terms the selling party would offer to third parties.

Justice: Justice Davis

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