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Justice: Justice Salinger.
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. 

Judge Salinger Thaws Defendants’ Attempt to 'Chill' Malicious Prosecution Claims under Massachusetts’ Anti-SLAPP Statute

In Crotty v. Continuum Energy Technologies, Judge Salinger granted Thomas Crotty’s special motion to dismiss counterclaims for tortious interference brought by Continuum Energy Technologies (CET) and John Preston under the Massachusetts anti-SLAPP statute.   

This is the latest litigation chapter in "the unravelling of a lengthy business relationship" between CET’s co-founders, John Preston and Christopher Nagel, after Nagel resigned in 2014 to form a competing business, IDL Development, Inc. (IDL). Preston and CET brought claims against Nagel and IDL alleging that Nagel had utilized and exploited CET’s proprietary information without a license. In March 2018, the parties entered into settlement and licensing agreements, under which CET licensed certain intellectual property to IDL. Crotty had participated in these settlement negotiations on behalf of IDL as its lead investor. IDL subsequently defaulted on its payment obligations and declared bankruptcy. 

‘Notice Pleading’ Passes the Smell Test in Noxious Odor Matter

Emphasizing the concept of “notice pleading” under Mass. R. Civ. P. 8, Judge Salinger recently denied a gelatin factory’s motion to dismiss. In Baranofsky v. Rousselot Peabody, Inc., a proposed class of neighboring City of Peabody residents brought nuisance, negligence, and trespass claims against Rousselot Peabody, Inc. based on “overpowering smells of rotting flesh” allegedly emitted by its factory.

In Parker v. EnerNOC, Parker alleged that she was terminated less than one month after closing the most lucrative client contract in EnerNOC’s history in part because she complained about the amount of her commission for the contract. Although Parker prevailed on her Wage Act claim in the BLS, she appealed after the BLS judge did not treble a portion of the commissions she was owed. Parker, as discussed below, prevailed on appeal. 

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.

In B. Bullen et al. v. CohnReznick LLP, investors in a defunct hedge fund sued CohnReznick, the outside auditor and accountant of the fund. The investors claimed, among other things, that CohnReznick had conspired with the fund to defraud its investors. Judge Salinger dismissed the case, ruling that CohnReznick, a New Jersey LLP headquartered in New York, was not subject to personal jurisdiction in Massachusetts.

After prevailing at trial, Cedar Hill Retreat Center sought sanctions against the plaintiffs under G.L. c. 231, § 6F. That statute authorizes a judge to award a moving party reasonable attorneys’ fees and costs if the judge finds that “all or substantially all of the claims, defenses, setoffs or counterclaims . . . made by any party who was represented by counsel . . . were wholly insubstantial, frivolous and not advanced in good faith.” Judge Salinger denied the motion because he was not convinced that “all or even substantially all of the claims against Cedar Hill were frivolous and not advanced in good faith.”

That is not to say, however, that the court did not find one of the claims “troubling.” Judge Salinger struggled to “discern what good faith basis the [Reed] Foundation had for alleging that Cedar Hill’s challenged activities were in trade or commerce and therefore subject to c. 93A, or that those activities constitute unfair or deceptive acts or practices and would have violated c. 93A if the statute applied in the first place.” But even if he assumed that the 93A claim was wholly insubstantial and not asserted in good faith, that was not enough, according to Judge Salinger, to impose § 6F sanctions. Cedar Hill did not show, Judge Salinger wrote, “that all or substantially all of the Reed Foundation’s claims . . . were both frivolous and not asserted in good faith” (emphasis added).

Wildlands Trust of Southeastern Massachusetts, Inc. v. Cedar Hill Retreat Center, Inc., et al. (September 3, 2019)

Earlier this year, the Social Law Library hosted the “2018 Business Litigation Year in Review.” The presenters, including BLS Judge Kenneth W. Salinger, offered commentary on some recent BLS decisions.  

Earlier this fall, the Social Law Library sponsored a panel discussion entitled Written Motion Practice at the BLS: A Deep Dive on Effective Techniques. The four BLS judges—Judges Davis, Kaplan, Salinger, and Sanders—participated on the panel. Three lawyers also joined the panel: Maureen Mulligan, Peabody & Arnold LLP; David H. Rich, Todd & Weld LLP; and Daniel P. Tighe, Donnelly, Conroy & Gelhaar, LLP. Eric Magnuson served as moderator.

Our Most Popular Posts of 2018

It’s been a busy year at the BLS Blog. As we wrap up 2018, take a look at our top five most well-read posts:

  • America’s Test Kitchen Faces Abuse of Process Claim: Judge Salinger denied
    America’s Test Kitchen’s motion to dismiss an abuse-of-process claim asserted by William Thorndike, Jr. According to Thorndike, America’s Test Kitchen brought a baseless lawsuit to hinder Christopher Kimball’s efforts, supported by Thorndike, to compete against America’s Test Kitchen. That assertion, according to Judge Salinger, was sufficient to state an abuse-of-process claim.

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