In Lubin & Meyer v. John J. Manning, Judge Salinger, sitting in the Business Litigation Session, ruled that Lubin & Meyer’s claims for breach of fiduciary duty against its former associate, John Manning, survived summary judgment.
According to Judge Salinger, Lubin & Meyer claimed that Manning breached his duty of loyalty to the firm by “continu[ing] to work on cases that the firm had rejected, l[ying] to clients about whether the firm was representing them, and l[ying] to the firm about what he was doing.”
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.”
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.
FTI sued three of its former employees who went to work for Berkeley Research Group (Berkeley), an FTI competitor. The former employees, FTI alleged, breached their FTI employment contracts and their fiduciary duty of loyalty owed to FTI. FTI also sued Berkeley, alleging that Berkeley aided and abetted the former employees’ breach of their fiduciary duties.
The defendants moved to strike the fiduciary-duty claims. Judge Salinger allowed the motion in part, striking the claim for breach of fiduciary duty against the former employees. But Judge Salinger denied the motion to the extent that it aimed to strike the aiding and abetting claim against Berkeley.
Judge Salinger dismissed a real estate developer’s counterclaims against a project manager, ruling that the counterclaim allegations did not “plausibly suggest that [project manager] [wa]s liable for the contractor’s missteps.”
In Gerhardt v. Burr, the developer hired a project manager to oversee construction of a commercial property. According to the developer, a contractor defectively installed flooring during construction. The project manager filed suit, alleging insufficient payment. The developer, in turn, counterclaimed that the project manager “‘failed to perform his duties and fulfill his obligations’ because he was ‘responsible for ensuring that the Project was completed properly’ and the project was completed improperly.”
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.
In Bertolino v. Fracassa, Judge Salinger ruled that the advice-of-counsel defense did not insulate Frederick McDonald, a defendant in the case, from liability under the Massachusetts Uniform Securities Act (MUSA), G.L. c. 110A, § 410. McDonald claimed that because he relied on his counsel’s advice to determine what he needed to disclose when soliciting investors, he could not be held liable for failing to disclose material facts to potential investors when he offered and sold membership units in his LLC. Rejecting McDonald’s argument, Judge Salinger reasoned that, because the advice-of-counsel defense is available only “to rebut the scienter element of a crime or civil charge requiring a willful or intentional violation of the law” and “willful or intentional misconduct is not an element of liability under MUSA,” McDonald couldn’t rely on that defense. Judge Salinger also reasoned that, even if the advice-of-counsel defense were viable under MUSA, McDonald proffered no evidence that “he made [a] complete disclosure to counsel, sought advice as to the legality of his conduct, received advice that his conduct was legal, [or] relied on that advice in good faith.”
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.
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.
SubscribeGet the latest from Nutter >
- Senior Editor, Co-Chair, Business Litigation Practice Group