- Posts by Sara Lonks WongAssociate
Sara Lonks Wong is an associate in Nutter’s Litigation Department. She focuses her practice on a broad range of matters, including complex commercial litigation, intellectual property litigation, and product liability ...
Joe Alves filed a class-action complaint against BJ’s Wholesale Club, alleging that BJ’s uses computer code, called Session Replay Code (SRC), to secretly record consumer activity on BJ’s website. Alves claims that BJ’s conduct violates the Massachusetts Wiretap Statute, G.L. c. 272, § 99, and the Massachusetts Right of Privacy Statute, G.L. c. 214, § 1B. BJ’s moved to dismiss. Judge Krupp, sitting in the Massachusetts Business Litigation Session, denied the motion.
BJ’s sells groceries, electronics, furniture, and other products through its website. According to the complaint, BJ’s embeds SRC on its website. SRC operates in the background unbeknownst to the BJ’s website visitors. SRC tracks mouse movements, clicks, scrolls, zooms, and keystrokes. Third-party service providers, in turn, create video replays of the visitors’ behaviors and provide them to BJ’s for analysis. Alves alleges that when he visited BJ’s website to shop for tires, SRC captured his website activity, and that activity was shared with third-party service providers for BJ’s monetary gain.
In Vicarious Surgical Inc. v. Beth Tragakis, Judge Salinger, sitting in the Massachusetts Business Litigation Session, dismissed a robotics company’s Chapter 93A claim for lack of any allegations that the robotics company was harmed by a former employee’s alleged copying and retention of its technical information.
The robotics company, Vicarious Surgical, alleged that its former employee, Beth Tragakis, copied and retained the company’s trade secrets and other proprietary information. Tragakis was employed at Vicarious for over three years, first as Director of Quality Systems and later as Vice President of Quality. Vicarious nowhere alleged in its complaint that Tragakis disclosed or used those materials after she left Vicarious and started her new job.
Under its recently issued Standing Order 1-22 (link here), the Massachusetts Superior Court increased the number of hearing types that it will “presumptively” conduct by videoconference. The standing order applies to Massachusetts state trial courts, including the Massachusetts Business Litigation Session.
The Superior Court, according to Chief Justice Heidi Brieger, designated the types of hearings that it will presumptively hold by videoconference or in-person “consistent with constitutional, statutory, and other applicable rights, and in the interest of justice.”
Judge Krupp, sitting in the Massachusetts Business Litigation Session, ruled that the statute of limitations barred the plaintiff’s tort, contract, and unfair and deceptive practices claims against Williams-Sonoma.
In Gattineri v. Williams-Sonoma Stores, the plaintiff, a former Williams-Sonoma sales employee, alleged that she showed her idea of “The Perfect Brownie Pan” to a Williams-Sonoma district manager in 2003. Although the district manager signed a non-disclosure agreement, the agreement did not signify that the manager was signing it in any representative capacity. Williams-Sonoma never developed the pan into a marketable product. In mid-2009, the plaintiff saw a television infomercial for a virtually identical product marketed under the name “The Perfect Brownie Pan.” In early 2018, the plaintiff learned that the district manager had shown the plaintiff’s prototype to an entity affiliated with the informercial back in 2003. The plaintiff sued Williams-Sonoma (as well as other defendants) in November 2021.
Considering Williams-Sonoma’s motion to dismiss, Judge Krupp observed that the Massachusetts “discovery rule” only “tolls the statute of limitations until a plaintiff knows, or reasonably should have known, that it has been harmed or may have been harmed by the defendant’s conduct.” A plaintiff may be put on inquiry notice that a cause of action has accrued, Judge Krupp wrote, “where it is informed of facts that would suggest to a reasonably prudent person in the same position that an injury has been suffered as a result of the defendant’s conduct.”
Judge Krupp ruled that because the “plaintiff saw her pan advertised on television in mid-2009,” she knew then “that someone else had brought her idea to market” and therefore the plaintiff at that time “had actual knowledge that she had been harmed.” According to Judge Krupp, the fact that the plaintiff “did not know the mechanism of injury—i.e., exactly how her idea for the Perfect Brownie Pan got from [the district manager] to [the advertiser]” in mid-2009—did not toll the statute of limitations. In mid-2009, the plaintiff “knew that she had been injured,” explained Judge Krupp.
Judge Krupp also rejected the plaintiff’s contention that the reasonable-person standard requires a court to look to every particular of a plaintiff’s circumstance. “Individual variations in judgment, intellect, or psychological health which are unrelated to the complained of conduct are not considered,” Judge Krupp wrote. “The reasonable person standard,” he explained, “requires the Court to consider whether a reasonable person who had invented ‘The Perfect Brownie Pan’ would have discovered, or should have discovered, that she had been harmed and who had caused that harm when she learned that the pan was being marketed on television.”
You can read the decision here.
Adversaries often challenge each other’s privilege calls in the thick of litigation, and sometimes those challenges are elevated to a court’s in camera review. In Governo Law Firm LLC v. CMBG3 Law LLC, et al., Judge Salinger, sitting in the Massachusetts Business Litigation Session, ruled that the attorney-client privilege protected from production a confidential email from the defendants to their counsel “seeking feedback on a draft press release . . . embedded in the text of the email.”
After reviewing the email in camera, Judge Salinger ruled that “it is evident that this defendant sent this confidential communication to counsel in order to elicit legal advice as to whether issuing a press release in this form could create any legal exposure for the Defendants.” Although the communication “does not contain legal advice,” “that does not matter,” explained Judge Salinger. “Any confidential communication between attorney and client, in either direction, is privileged if it [is] made for the purpose of obtaining or giving legal advice—whether the communication conveys legal advice or not.”
In Verveine Corp., et al., v. Strathmore Insurance Company, et al., the Massachusetts Supreme Judicial Court (SJC) held that claims for business losses made by three restaurants arising from COVID-19 dining restrictions were not covered by “all-risk” property insurance policies because the losses were not “direct physical loss or damage” under those policies.
In spring 2020, Governor Baker issued an emergency order prohibiting in-person dining at restaurants and bars in the Commonwealth. Two of the plaintiffs responded by offering takeout and delivery services, while the third plaintiff suspended operations. Though limited in-person dining resumed in June 2020, the plaintiffs continued to lose revenue due to the restrictions. The restaurants filed insurance claims for the lost income. Strathmore Insurance Company denied the claims. The restaurants then brought a declaratory judgment action against Strathmore and asserted claims for breach of contract and violation of G. L. c. 93A and G. L. c. 176D. Superior Court Judge Sanders dismissed the claims, ruling that the restaurants did not suffer “direct physical loss or damage,” as required by the policies.
After successfully appealing a judgment and obtaining a remand of its Chapter 93A claim to the Massachusetts BLS, the Governo Law Firm moved to admit expert testimony about a “reasonable royalty” measure of damages. Governo had sued six former nonequity partners whom the law firm alleged had misappropriated proprietary databases and electronic files. Deciding Governo’s motion, Judge Salinger ruled that Governo had waived its right to challenge the admission of the damages testimony because Governo had failed to raise the argument on appeal.
Judge Salinger’s decision turned on the procedural history of the case.
In conjunction with the Massachusetts Bar Association, the current BLS judges prepared personalized responses to practice-related questions. Those questions and answers were then turned into a practice guide, which you can link to here. The guide, presented in question-and-answer format, has a wealth of information on topics of interest to practitioners and clients alike.
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.
Last month, the Social Law Library sponsored the Business Litigation Session 2021 Year in Review. The panel included Judge Kenneth Salinger, the BLS Administrative Justice, as well as Michael Tuteur and Andrew Yost, attorneys at Foley & Lardner LLP.