A few weeks ago, the Social Law Library sponsored its annual review of the BLS. Like most events over the past year, the 2020 Year in Review was conducted virtually with Judge Kenneth Salinger and BLS practitioners logging on to discuss significant decisions as well as practice tips and court procedures during these unusual times. While the way the BLS conducts its business changed in 2020, it is evident that the court’s ability to effectively manage complex business and commercial disputes has not. Below are five key takeaways from the 2020 Year in Review program:
1. Changes to BLS Judges and Personnel
The BLS will welcome a new judge in 2021. Massachusetts Superior Court Judge Michael Ricciuti will replace Judge Janet Sanders in BLS2 from July through December 2021. Judge Salinger of BLS2 will now serve as the court’s Administrative Justice and Judges Karen Green and Brian Davis will continue presiding over cases in BLS1.
In addition, Gloria Brooks (BLS1) and Brenda Shisslak (BLS2) have assumed new roles as BLS Clerks replacing Margaret Buckley and Richard Muscato. Their contact information can be found here.
2. COVID Litigation and Virtual Proceedings
Early on in the pandemic, the BLS was called on to hear argument in a case challenging Governor Baker’s emergency orders closing non-essential businesses in the Commonwealth. In CommCan, Inc. v. Baker, the plaintiffs objected to the Governor’s decision to close recreational marijuana shops after deeming them “non-essential,” while allowing medical marijuana treatment centers and liquor stores to remain open. Not only was this case noteworthy because of the interesting constitutional issues that it raised with respect to government action during the pandemic, but it also appears to be the first instance of a Massachusetts state court conducting a hearing by video conference. The oral argument for the plaintiffs’ motion for a preliminary injunction challenging the Governor’s order was live streamed on YouTube in mid-April. Since then, the BLS has routinely, and successfully, held virtual hearings by video conference.
3. New Approaches to Trial
Although jury trials have not yet resumed in the BLS, bench trials have been held virtually. In addition to traditional bench trials before a single judge, the BLS has introduced an alternative trial option by allowing litigants to have their cases tried before a three-judge panel. In this new format, one judge runs the trial, but all three weigh the evidence and decide the case together. Although the parties are required to waive detailed findings of fact under this new approach, the panel will answer special questions put forth by the litigants.
4. Non-traditional BLS Cases
The “meat and potatoes” of the BLS docket consists of complex business disputes. But the court has expanded its purview in recent years and 2020 was no exception. Take for example, Massachusetts Port Authority v. Turo Inc. and Baranofsky v. Rousselot Peabody, Inc. These cases dealt with trespass and nuisance—not typical BLS issues. Nevertheless, the common thread among all BLS cases is that they have complicated factual and legal issues requiring individualized attention. And although the BLS accepts a wide variety of cases, Judge Salinger clarified that there are some cases, like collection cases, that are not likely to be taken up by the court.
5. Notable Cases in 2020
The Year in Review program highlighted several cases that were also featured on Nutter’s BLS Blog in 2020. Analysis of these important cases and full decisions can be found at the BLS Blog links below:
Tam v. Federal Management Co., Inc. (imposing sanctions for plaintiff’s submission of affidavit and 32-page errata that substantially altered prior deposition testimony)
Attorney General v. Facebook, Inc. (ordering Facebook to produce documents related to internal investigation of user data policies and protections)
Baranofsky v. Rousselot Peabody, Inc. (denying motion to dismiss private nuisance and trespass claims related to invasion of odor)
Commcan, Inc. v. Baker (denying preliminary injunction challenging constitutionality of Governor’s COVID order related to closure of non-essential services)
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- Senior Editor, Co-Chair, Business Litigation Practice Group