In Mooney v. Diversified Business Comms., Judge Sanders addressed a number of discovery issues, including the relevance of requested documents, the redaction of non-relevant information in responsive documents, and privilege. The most notable—an issue of first impression in Massachusetts—was whether a former officer suing his old company could discover privileged communications that occurred when he had been employed with the company.
Background: When the Massachusetts Gaming Commission (MGC) awarded a gaming license to Wynn to operate a casino in Everett, Massachusetts, MGC effectively chose Wynn over Mohegan Sun, which sought a license to operate a casino in Revere, Massachusetts. Mohegan Sun brought suit in the BLS, seeking to vacate the MGC’s decision. Mohegan Sun alleges that MGC improperly favored Wynn throughout the application process. Mohegan Sun further alleges that MGC did not properly apply the statutory standards for granting a casino license. After commencing suit, Mohegan Sun filed a motion to “complete the administrative record,” which sought production of, among other documents, communications between a quorum of MGC commissioners regarding the licensing proceedings.
In Beninati, et al. v. Borghi, et al., Judge Sanders ruled that the plaintiffs in a successful action under G.L. c. 93A, § 11, were not entitled to recover $170,000 in attorneys’ fees incurred before the litigation began. The fees, according to the plaintiffs’ fee petition, related to “extensive settlement discussions” that predated the filing of the action. Judge Sanders wrote: “This Court is aware of no authority that permits the award of fees incurred before the litigation began and that do not bear directly on its preparation, which these fees clearly did not.”
This summer, the Boston Bar Association hosted its annual “Business Litigation Session Year in Review.” The current BLS bench—Judges Sanders, Salinger, Kaplan, and Liebensperger—shared tips for attorneys practicing in the BLS. Here are four takeaways from that event:
Key Issue: In G4S Technology LLC v. Massachusetts Technology Park Corporation, Judge Sanders faced the question of whether a state agency acting pursuant to a legislative mandate has standing to bring a claim under G.L. c. 93A, § 11.
Key Takeaway: The G4S decision follows a line of Massachusetts decisions holding that public entities acting under legislative mandates are not engaged in “trade or commerce” for purposes of Chapter 93A, even if the public entities are engaged in commercial transactions.
Proving that motions for reconsideration are not always futile, Judge Sanders exercised her discretion to undo part of her own prior ruling. Judge Sanders previously ruled in the case before her that the plaintiffs’ breach-of-fiduciary-duty claim survived summary judgment. The plaintiffs alleged that the defendants sold tilapia “without providing plaintiffs an opportunity to participate in these transactions.” In support of this allegation, the plaintiffs relied on their own interrogatory answer. Judge Sanders, on reconsideration, pointed out that the answer was “not based on personal knowledge and therefore d[i]d not constitute admissible evidence under Rule 56(e).” (Mass. R. Civ. P. 56(e) states that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”) For that reason, among others, Judge Sanders allowed the defendants’ motion for reconsideration and awarded summary judgment against the breach-of-fiduciary-duty claim.
Judge Sanders denied a summary judgment motion that involved questions of fact—such as a defendant’s knowledge and reasonable reliance—that almost always require determination by the finder of fact. The case involved claims of violation of the Massachusetts Securities Act, fraud, and negligent misrepresentation (among others) arising out of defendants’ sale of common stock of a closely held corporation to plaintiffs. Judge Sanders denied the defendants’ motion for summary judgment, noting in particular the high burdens placed on defendants under the Securities Act and issues of fact involved in the fraud and negligent misrepresentation claims.
- Senior Editor, Co-Chair, Business Litigation Practice Group