Business Litigation

After Adam Ercolini collided with a Commerce insured vehicle and suffered collision damage to his car, Commerce paid to repair Ercolini’s car and restore it to its prior condition. Ercolini nevertheless sued Commerce on his own behalf (as a third-party claimant) and on behalf of a putative class. According to Ercolini, Commerce had to pay for “inherent diminished value” damages (or IDV damages), the alleged difference in market value of a car that has been fully repaired after an accident compared to the market value of the same car before the collision. The underlying theory: there is an alleged stigma attached to vehicles that have been in an accident, regardless of repair. Ercolini asserted claims for breach of contract, declaratory judgment, and alleged violations of G.L. c. 93A.

Commerce moved for summary judgement. Judge Salinger granted the motion. Judge Salinger grounded his decision, in part, on his synthesis of Massachusetts tort law: “[W]here damaged property has been fully repaired, and the responsible party has paid the full repair costs, . . . the property owner is not entitled to collect and the responsible party is not obligated to pay any additional amount for residual diminution of value.” He concluded: “[U]nless and until the appellate courts change this rule, the policy language at issue here does not give [Ercolini] any right to recover for alleged IDV damages in addition to recovering the full cost to repair [his] vehicle[].”

Nelson Apjohn and Eric Magnuson led the Nutter team. Melanie Woodward and Joe Toomey assisted in early investigation of the facts and legal issues and in serving and responding to discovery. Nehal Khorraminejad and Maya Ginga assisted in preparing the motion for summary judgment. The entire team was assisted by Kate Johns, Paige Smith, Jennifer Catarius, Chris Feldman, Kelly Cannizzaro, and Lila Abraham.

In November 2019, a Nutter trial team received a jury verdict in their favor for Nutter’s client, a Big Four accounting firm. Nutter’s client was alleged to have committed accounting malpractice for not detecting a fraud during the course of its annual audits. The plaintiff was seeking approximately $30 million in alleged actual and punitive damages. After a three-week trial in the Business Litigation Session of the Massachusetts Superior Court, the jury returned a verdict in favor of Nutter’s client and the judge dismissed all remaining claims. Nutter’s trial team included Ian Roffman, Nelson Apjohn, and Melanie Woodward, and they tried the case with co-counsel George Salter of Hogan Lovells (NY).

Nutter filed a successful amicus brief on behalf of the Greater Boston Chamber of Commerce in Calixto, et al. v. Coughlin, et al. that warned against expanding the Massachusetts Wage Act beyond earned wages. According to the brief authors, doing so would have created uncertainty for employers and have had a detrimental effect on distressed businesses.

Nelson Apjohn represented The Commerce Insurance Company, the largest vehicle insurer in Massachusetts, in a putative class action claiming that its policy and Massachusetts regulations required Commerce to pay sales tax when settling a total-loss claim made by a third-party claimant, who fails to show that he or she incurred a sales tax purchasing a replacement vehicle. He argued the summary judgment motion before the Superior Court, which granted the motion and entered judgment in favor of Commerce.  Nelson also successfully argued on behalf of Commerce the plaintiff’s appeal before the Massachusetts Court of Appeals, which affirmed the judgment. Ramirez v. Commerce Ins. Co., 91 Mass. App. Ct. 144 (2017).

Pursuing and defending against claims of breaches of non-competition and non-disclosure agreements for a diverse group of employers across the country.

Representing a professional services firm against RICO claims, claims which were dismissed by a federal court in a ruling that was affirmed at the appellate level.

Nelson Apjohn defended The Commerce Insurance Company in a putative class action in which the plaintiff claimed that Commerce violated policy provisions for collision coverage by deducting for so-called betterments when paying collision claims. After briefing and a hearing, Nelson obtained summary judgment on behalf of Commerce from the Massachusetts Superior Court (Business Litigation Session).

Representing individual defendants as part of trial team against claims of breach of fiduciary duty and freeze-out in close corporation. Following a five day hearing, the arbitrator ruled in favor of the clients on all claims.

Representing an equipment leasing company against claims of breach of contract and tortious interference claims which the court dismissed before trial.

Nelson Apjohn successfully argued an appeal before the Supreme Judicial Court, reversing summary judgment against Commerce and an Appeals Court affirmance of that decision. The lower court decisions held that an insurer could not terminate personal injury protection benefits under the applicable statute based on an independent medical examination by a practioner licensed under a medical specialty different from the specialty of the treating or billing practioner. Boone v. Commerce Insurance Company, 451 Mass. 192 (2008). Massachusetts Lawyer’s Weekly ranked the Supreme Judicial Court opinion as one of the most important insurance opinions of 2008.

Nelson Apjohn successfully argued an appeal before the Supreme Judicial Court on behalf of The Commerce Insurance Company in a putative class action, overturning a lower court summary judgment holding that the Massachusetts standard motor vehicle policy provided collision coverage for so-called "inherent diminished value." Given v. Commerce Insurance Company, 440 Mass. 207 (2003). Massachusetts Lawyers Weekly ranked the decision as one of the ten most important decisions of 2003.

We obtained a defense verdict after a four-week jury trial in U.S. District Court (D. Mass.). The case was brought by an Italian luxury hotel chain against our client, a Massachusetts-based building products manufacturer. The claims, which were for amounts in excess of $80 million, arose under Italian law and were brought in connection with our client’s decision to host a conference for its customers at the plaintiff's hotel in Rome. After extensive discovery and legal motions involving the interpretation of foreign law, we won outright before a federal jury. We are now seeking to recover the client’s fees and costs in connection with the case. 

We successfully defended an investment bank in an arbitration brought by 42 former employees seeking more than $550 million in damages arising out of employment contracts, deferred compensation agreements, oral promises, and RICO claims.

We successfully defended our client where the plaintiff, an investment banker retained to raise money for corporation through debt or equity financing, claimed that it was entitled to a more than $2 million success fee because our client purchased all of the outstanding shares of a corporation through a tender offer. The Massachusetts Appeals Court held that our client was entitled to directed verdict/summary judgment because the tender offer did not constitute raising money for the corporation.

We defended a large motor vehicle insurer in a putative class action in which the plaintiff claimed that the insurer violated policy provisions for collision coverage by deducting for so-called betterments when paying collision claims. We obtained summary judgment on behalf of the insurer from the Massachusetts Superior Court (Business Litigation Session).

We were retained as lead counsel for a class of 500 insurance companies in litigation against AIG and its affiliates where damages sought are in excess of $1 billion in relation to premiums on workers compensation insurance policies.

We won dismissal of all claims in a civil RICO action brought against a regional hospital and healthcare complex.

We represented several companies and their boards in successful resolution of shareholder strike suits brought in connection with corporate mergers.

We successfully negotiated resolution of a dispute on behalf of selling shareholders of a privately-held software business.

We represented a bank in a two-week jury trial resulting in a verdict finding breach of contract and violation of Article 9 (Secured Transactions) of the UCC against a construction company. The case arose out of the triangular relationship between the bank, the construction company, and its subcontractor. Despite receiving notice of an assignment of the subcontractor’s account receivables to the bank, the construction company issued multiple payments to the subcontractor. Overcoming a multitude of defenses, we obtained for our client a judgment of more than $3 million, plus prejudgment interest.

On behalf of high-level executives of a Fortune 50 company serving on a board of an affiliated company, we obtained summary judgment against an insurer that disclaimed coverage under a D&O policy.

We obtained a jury verdict for defendant owner of commercial property that one plaintiff’s purchase option had not been exercised properly and that second plaintiff’s right of first refusal had not been triggered, so that owner retained title to property.

We obtained summary judgment for owner of painting by 20th century American master against gallery that defaulted on $9 million purchase.

We obtained dismissal of putative class action of purchasers of “scalped” tickets.

On behalf of a bank, we successfully resolved a case arising under the Electronic Funds Transfer Act (“EFTA”). The plaintiff alleged that that when he withdrew funds from the bank’s ATM, there was no notice posted “on or at” the ATM informing him that he would be charged a fee. The plaintiff claimed that the absence of an on-machine notice violated the EFTA, thereby entitling him to statutory damages, costs, and attorneys’ fees. The bank moved to dismiss the litigation, arguing that the plaintiff did not have standing under Article III of the Constitution. Shortly thereafter, the parties agreed to dismiss the case, with no money paid to the plaintiff.

We obtained dismissal in Illinois Chancery Court of claims by would-be purchaser of corporation against successful purchaser.

We obtained jury verdicts in plaintiff’s consolidated breach of contract cases against investment group. To enforce judgments, we secured a post-trial injunction based on the group’s fraudulent transfers.

Represented client in suit against former employer for claims of breach of contract and 93A violations arising from a stock repurchase agreement. Mediation resulted in an award of $2 million, which was the full value of the shares that the client sought to enforce pursuant to the agreement.

Nelson Apjohn, Eric Magnuson, and Cynthia Guizzetti represented a bank that commenced suit as a secured creditor in the Business Litigation Session of the Massachusetts Superior Court against a construction company, claiming that the company had misdirected payments to a subcontractor in violation of contract and Article 9 of the UCC. In connection with a credit agreement with the bank, the subcontractor had assigned its payment rights to the bank, which the construction company acknowledged and agreed to. After an approximately 10-day trial, the jury returned a special verdict, finding that the construction company had misdirected payments—totaling $3,015,000.49—to the subcontractor.  On June 15, 2010, based on the special verdict, the Superior Court ordered entry of judgment for the bank in the amount of $3,015,000.49, plus prejudgment interest at a rate of 12% per annum from May 25, 2006, for distribution pursuant to the UCC provisions.