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  • Posts by Sara Lonks Wong
    Associate

    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 ...

Massachusetts Court Shields Email Communication Seeking Legal Advice About Draft Press Release

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.”

Massachusetts’ Highest Court Affirms Ruling Against Restaurants Seeking Insurance Coverage for Losses Arising from COVID-19 Dining Restrictions

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.

Massachusetts Court Bars “Reasonable Royalty” Evidence Based on Law of the Case Doctrine

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.

BLS April 2022 Detailed 42-Page Practice Guide

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.

BLS 2022 Preferences for Hearings, Conferences, Trials, and Filings

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.

Notes on BLS/Social Law Program and 2021 BLS Decisions—Including AG Healy v. Uber Technologies

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.

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