THE MOST IMPORTANT OPINIONS - Massachusetts Lawyers Weekly

Cite this page 41 MLW 1903 | masslawyersweekly.com July 8, 2013 | Massachusetts Lawyers Weekly | 15 

THE MOST 

IMPORTANT OPINIONS 

January - June, 2013 

This annual section contains summaries of 

hundreds of “important opinions” that were 

published in Massachusetts Lawyers Weekly 

in the first six months of 2013. 

The “Important Opinions of the Week” 

that appear on the front page of the newspaper 

are selected from the decisions issued 

and received the previous week. The summaries 

cover rulings from the appellate and 

trial courts in Massachusetts, as well as from 

MCAD and other state agencies. 

The full text of any opinion from the 1st 

U.S. Circuit Court of Appeals, Bankruptcy 

Appellate Panel, U.S. District Court, U.S. 

Bankruptcy Court, U.S. magistrate judges, 

Supreme Judicial Court and Appeals Court 

can be obtained without cost by visiting 

masslawyersweekly.com. 

All other court opinions included in this 

section can be ordered from lwopinions.com. 

The complete Lawyers Weekly digest of any 

brief summary contained here can be found 

by searching Massachusetts Lawyers Weekly’s 

archives at masslawyersweekly.com. 

Please note that, while Lawyers Weekly receives 

all decisions of the appellate courts in 

the state, the newspaper relies on individual 

judges and attorneys to inform it of trial court 

rulings that might be of interest to the bar. 

Please consider sending in these rulings 

whether or not they seem like significant cases. 

Upon request, the names of the attorneys of 

record in the case will be included in the paper. 

If you wish to submit a trial court decision, 

please mail it to: Thomas E. Egan, Massachusetts 

Lawyers Weekly, 10 Milk St., Suite 1000, 10th 

Floor, Boston, MA, 02108-4649, or email it to 

tom.egan@lawyersweekly.com. 

ADMINISTRATIVE 

APA - Plausibility 

The plausibility standard does not apply to a 

complaint under the Administrative Procedure 

Act for judicial review of a final agency action, 

the 1st U.S. Circuit Court of Appeals says. 

Atieh, et al. v. Riordan, et al. (Lawyers Weekly No. 

01-152-13) (9 pages). 

AGENCY AND 

PARTNERSHIP 

Franchise 

A franchisor is vicariously liable for the conduct 

of its franchisee only where the franchisor 

controls or has a right to control the specific policy 

or practice resulting in harm to the plaintiff, 

the Supreme Judicial Court holds. 

Depianti, et al. v. Jan-Pro Franchising International, 

Inc. (Lawyers Weekly No. 10-112-13) (29 pages). 

ANTITRUST 

Conspiracy - Pleading standard 

In dismissing a conspiracy claim under §1 of 

the Sherman Antitrust Act, a judge (1) improperly 

applied a heightened pleading standard and (2) 

improperly occupied a factfinder role by choosing 

among plausible alternative theories interpreting 

the defendants’ conduct and by adopting 

as true allegations made by the defendants, the 

1st U.S. Circuit Court of Appeals holds. 

Evergreen Partnering Group, Inc. v. Pactiv Corporation, 

et al. (Lawyers Weekly No. 01-151-13) (40 pages). 

Labor union - Conspiracy 

A defendant labor union must be awarded summary 

judgment on antitrust claims asserted by five 

plaintiff nonunion steel erectors, as the plaintiffs 

have failed to demonstrate an unlawful anticompetitive 

effect of any aspect of the union’s accused 

conduct, a U.S. District Court judge decides. 

American Steel Erectors, Inc., et al. v. Local Union 

No. 7, International Association of Bridge, Structural, 

Ornamental & Reinforcing Iron Workers (Lawyers 

Weekly No. 02-151-13) (23 pages). 

APPEALS 

PACA - Bond 

The appeal provisions — including the bond requirements 

— of the Perishable Agricultural Commodities 

Act are mandatory and jurisdictional, the 

1st U.S. Circuit Court of Appeals determines. 

The Alphas Company, Inc. v. Kopke, et al. (Lawyers 


ARBITRATION 

CBA - Reinstatement 

An arbitration award reinstating a discharged 

employee should be confirmed even though the 

employee violated the employer’s safety policy, a 

U.S. District Court judge holds. 

Angelica Textile Services, Inc. v. Local Union 170, 

International Brotherhood of Teamsters (Lawyers 


Class action waiver - 

Consumer contract 

A court is not foreclosed from invalidating an 

arbitration agreement that includes a class action 

waiver if a plaintiff can demonstrate that he 

or she effectively cannot pursue a claim against 

the defendant in individual arbitration according 

to the terms of the agreement, thus rendering his 

or her claim nonremediable, the Supreme Judicial 

Court says. 

Feeney, et al. v. Dell Inc., et al. (Lawyers Weekly No. 

10-103-13) (52 pages). 

Employee handbook 

An arbitration clause in an employee handbook 

is not applicable to a suit brought by a 

plaintiff employer alleging that the defendants 

— her employer, its owner and her former supervisor 

— interfered with her request for maternity 

leave under the Family and Medical Leave Act 

and retaliated against her by passing her over for 

promotion and demoting her to a part-time position, 

a U.S. District Court judge concludes. 

Domenichetti v. The Salter School, LLC, et al. 

(Lawyers Weekly No. 02-186-13) (12 pages). 

Minor - Customer agreement 

Even though a plaintiff was a minor when she 

entered into a customer agreement containing 

an arbitration clause, the clause is binding because 

the plaintiff was acting as her parents’ authorized 

agent when she executed the agreement, 

a U.S. District Court judge decides. 

Chung, et al. v. StudentCity.com, Inc. (Lawyers 


ATTORNEYS 

Bar counsel - BBO - Immunity 

Under S.J.C. Rule 4:01, §9, a complainant is 

entitled to absolute immunity from civil liability 

with respect to a complaint filed with bar counsel 

or the Board of Bar Overseers, as well as 

sworn testimony given or communications made 

to bar counsel or the BBO or any hearing committee, 

special hearing officer or hearing panel 

thereof, the Supreme Judicial Court holds. 

Bar Counsel v. Farber (Lawyers Weekly No. 10-062- 

13) (16 pages). 

Discipline - Cooperation 

An attorney’s failure to cooperate in the disciplinary 

process, including her failure to respond 

to the petition for discipline, did not require imposition 

of more than a six-month suspension, 

the Supreme Judicial Court decides. 

In the Matter of Gustafson, Lauren (Lawyers Weekly 

No. 10-067-13) (4 pages). 

Estate plan - Duty of care 

A plaintiff executor has legal standing to bring 

a legal malpractice action against the defendant 

attorney who prepared the testator’s estate plan, 

a Superior Court judge holds. 

Masciari v. Fenichel (Lawyers Weekly No. 12-190- 

12) (8 pages). 

Fees - G.L.c. 93A 

A defendant corporation must pay counsel 

fees in the amount of $703,524.87 even though 

close to half of the total fees claimed were for 

the period while the defendant was not, at least 

formally, a party, a Superior Court judge rules. 

Passatempo, et al. v. McMenimen, et al. (Lawyers 


Fees - Request 

In order to be awarded counsel fees under 42 

U.S.C. §1988, a party must request costs and fees 

separately, the Supreme Judicial Court states. 

Jones, et al. v. Boykan, et al. (Lawyers Weekly No. 

10-016-13) (23 pages). 

Fees - Settlement offer 

In awarding a prevailing plaintiff only $30,000 

of the nearly $170,000 in fees that she requested, 

a U.S. District Court judge acted improperly 

by (1) linking the amount of compensable fees to 

the amount of damages and (2) factoring in the 

plaintiff’s refusal to accept the defendants’ settlement 

offer, the 1st U.S. Circuit Court of Appeals 

concludes. 

Joyce v. Town of Dennis, et al. (Lawyers Weekly No. 

01-148-13) (43 pages). 

G.L.c. 93A - Contingent fee agreement 

A judge committed no prejudicial error in concluding 

that an attorney misled two of his clients 

into an improper contingent fee agreement in violation 

of G.L.c. 93A, the Appeals Court decides 

in an unpublished opinion. 

Landry v. Haartz, et al. (Lawyers Weekly No. 81- 

631-13) (15 pages). 

Malpractice - Vicarious liability 

A plaintiff trust beneficiary and coplaintiff 

trustee, alleging that an attorney mismanaged 

trust assets while serving as a co-trustee, cannot 

hold liable a defendant law firm that employed 

the attorney, as the firm had no attorney-client 

relationship with either plaintiff, a 

Superior Court judge rules. 

Yeomans, et al. v. Stackpole et al. (Lawyers Weekly 

No. 12-022-13) (8 pages). 

Privilege - ‘At issue’ waiver 

An “at issue” waiver of privilege between defendants 

and their corporate counsel must be 

found in a case in which the defendants relied on 

privileged communications to support their 

counterclaim that the plaintiff’s decedent 

breached his fiduciary duties, the Supreme Judicial 

Court determines. 

Clair, et al. v. Clair, et al. (Lawyers Weekly No. 10- 

010-13) (25 pages). 

Referral - Conflict - Trust - Estate 

An attorney who referred a claim against 

trustees who used to be his clients cannot be 

held liable to those former clients, as the mere 

referral of the claim against the trustees to separate 

counsel would not by itself constitute a 

breach of any duty or a betrayal, the Appeals 

Court rules in an unpublished opinion. 

Staten, et al. v. O’Neill, et al. (Lawyers Weekly No. 

81-005-13) (8 pages). 

BANKRUPTCY 

ADHD - Fraud 

A U.S. Bankruptcy Court order denying a 

debtor’s discharge because he omitted assets 

from his schedules should be affirmed despite 

the debtor’s contention that he did not have the 

requisite fraudulent intent because he suffers 

from attention deficit hyperactivity disorder, 

which impairs his working memory, the Bankruptcy 

Appellate Panel decides. 

In Re: McCarthy, Thomas P. (Lawyers Weekly No. 

03-008-13) (22 pages). 

Automatic stay - Successive petitions 

When a second bankruptcy petition is filed 

within a year of the dismissal of a previous petition, 

the automatic stay terminates in its entirety 

30 days after the petition is filed as to all interests 

of the debtor, including property in the bankruptcy 

estate, a U.S. District Court judge says. 

St. Anne’s Credit Union v. Ackell (Lawyers Weekly 

No. 02-147-13) (6 pages). 

Commission - Trustee 

Debtors and creditors must be provided with notice 

concerning a Chapter 13 trustee’s 10 percent 

commission, a U.S. Bankruptcy Court judge says. 

In Re: Tagliavia, Brian P., et al. (Lawyers Weekly No. 

04-017-13) (5 pages). 

Contractor - 

Willful and malicious injury 

Even though a homeowner obtained a state 

court judgment against a bankrupt contractor, 

the homeowner’s complaint under 11 U.S.C. 

§523(a)(6) must be dismissed for failure to state 

a plausible claim for a “willful and malicious injury 

by the debtor to another entity or to the 

property of another entity,” a U.S. Bankruptcy 

Court judge rules. 

In Re: Spagnuolo, Robert E., Jr. (Lawyers Weekly No. 

04-038-13) (7 pages). 

Counsel fees - Trustee 

A U.S. Bankruptcy Court judge lacked the authority 

to award fees incurred by a debtor’s attorney 

fees after the appointment of a Chapter 11 

trustee, a U.S. District Court judge concludes. 

In Re: International Gospel Party Boosting Jesus 

Groups, Inc. (Lawyers Weekly No. 02-076-13) (14 

pages). 

Discharge injunction - Mortgage 

A mortgage lender did not violate the Bankruptcy 

Code’s discharge injunction by refusing to foreclose 

or otherwise take title to the residence belonging to 

debtors who sought to surrender the residence, the 

1st U.S. Circuit Court of Appeals rules. 

In Re: Canning, Ralph G. III, et al. (Lawyers Weekly 

No. 01-034-13) (18 pages). 

Continued on page 16

16 | Massachusetts Lawyers Weekly | July 8, 2013 masslawyersweekly.com | Cite this page 41 MLW 1904 

THE MOST IMPORTANT OPINIONS 


Continued from page 15 

Dismissal - Bar to refiling 

A serial filer who has exhibited an unwillingness 

to prosecute her cases in accordance with 

the law should be barred from filing another 

bankruptcy petition in any jurisdiction for two 

years, a U.S. Bankruptcy Court judge rules. 

In Re: Cameron, Helen (Lawyers Weekly No. 04- 

034-13) (10 pages). 

In Re: Rosario, Felix, et al. (Lawyers Weekly No. 04- 

042-13) (101 pages). 

Retirement contributions 

Section 541(b)(7) of the Bankruptcy Code excludes 

postpetition voluntary contributions to retirement 

plans and annuities from the scope of 

disposable income under §1325(b)(2), so long as 

made in good faith, a U.S. Bankruptcy Court 

judge states. 

In Re: Drapeau, Stephen M., Jr., et al. (Lawyers 


CIVIL PRACTICE 

Final judgment - 

Judge’s sua sponte decision to vacate 

A judge may sua sponte vacate a final judgment 

after execution has issued, the District 

Court/BMC Appellate Division decides. 

Cornerstone Land Consultants, Inc. v. Chapman 


Secured creditor - UCC 

Article 9 of the Uniform Commercial Code displaces 

the common law on the question of the 

proper measure of a secured creditor’s recovery 

under G.L.c. 106, §9-405, the Supreme Judicial 

Court holds. 

Reading Co-Operative Bank v. Suffolk Construction 

Company, Inc. (Lawyers Weekly No. 10-038-13) (22 

pages). 

Fraud - Collateral estoppel 

Following a jury verdict in state court holding 

a bankrupt defendant liable for fraud, the debtor 

is collaterally estopped from contesting his liability 

under 11 U.S.C. §523(a)(2)(A), a U.S. Bankruptcy 

Court judge states. 

In Re: Spagnuolo, Robert E., Jr. (Lawyers Weekly No. 

04-039-13) (26 pages). 

Homestead - Lease 

Two debtors are entitled to a homestead exemption 

even though title to their home is held 

by a residential cooperative housing corporation 

while they hold only a 99-year lease, a U.S. Bankruptcy 

Court judge says. 

In Re: Dougan, Liliana, et al. (Lawyers Weekly No. 

04-005-13) (10 pages). 

Homestead - Objection 

The only method for adjourning an 11 U.S.C. 

§341 meeting of creditors is by announcing the 

continued date and time at the meeting to be 

continued, coupled with the prompt filing of that 

announcement on the case docket, a U.S. Bankruptcy 


In Re: Vierstra, Eleanor Marie (Lawyers Weekly No. 

04-030-13) (10 pages). 

State income tax 

The state income tax liability of Chapter 7 

debtors is dischargeable, that argument is convincing 

even though the debtors did not file their 

tax returns on time, a U.S. Bankruptcy Court 

judge holds. 

In Re: Brown, John T., et al. (Lawyers Weekly No. 

04-019-13) (10 pages). 

Taxes 

A debtor’s state taxes are nondischargeable, 

as the debtor’s tax returns were filed late and 

thus did not satisfy the “applicable filing requirements” 

of 11 U.S.C. §523(a), a U.S. Bankruptcy 


In Re: Pendergast, Timothy P. (Lawyers Weekly No. 

04-051-13) (12 pages). 

Unpaid wages - Nondischargeability 

A judgment against a debtor for unpaid wages is 

exempt from discharge under 11 U.S.C. §523(a)(6), 

a U.S. Bankruptcy Court judge concludes. 

In Re: Ruhland, Karl H., et al. (Lawyers Weekly No. 

04-022-13) (27 pages). 

Pleading - Prima facie case 

It is not necessary to plead facts sufficient to establish 

a prima facie case at the pleading stage, 

the 1st U.S. Circuit Court of Appeals determines. 

Rodríguez-Reyes, et al. v. Molina-Rodríguez, et al. 


SDP - Expert - Compensation 

In determining the reasonable compensation 

to be paid to an expert retained by an indigent 

petitioner seeking release from commitment as a 

sexually dangerous person, a judge (1) is bound 

by the hourly rate determined for that expert by 

the Committee for Public Counsel Services but 

(2) still retains the authority to determine 

whether the total amount billed is reasonable, 

the Supreme Judicial Court holds. 

Edwards, petitioner (Lawyers Weekly No. 10-035- 

13) (18 pages). 

CIVIL RIGHTS 

Public accommodation - 

Coffee shop - Race 

CONSTITUTIONAL 

Abortion - Buffer zone 

A state statute creating a fixed 35-foot buffer 

zone around the entrances, exits and driveways 

of abortion clinics “is a content-neutral, narrowly 

tailored time-place-manner regulation that protects 

the rights of prospective patients and clinic 

employees without offending the First Amendment 

rights of others,” the 1st U.S. Circuit Court 

of Appeals decides. 

McCullen, et al. v. Coakley, et al. (Lawyers Weekly 

No. 01-011-13) (32 pages). 

Second Amendment 

A state statute (G.L.c. 140, §131L(a)) — which 

makes it unlawful to store a firearm that is not 

carried by or under the immediate control of the 

owner or other authorized user unless the 

firearm is secured in a locked container or 

equipped with a safety device that renders the 

firearm inoperable by anyone other than the 

owner or other authorized user — falls outside 

the scope of the Second Amendment, the 

Supreme Judicial Court finds. 

Commonwealth v. McGowan (Lawyers Weekly No. 

10-011-13) (19 pages). 

Homestead - Remainder 

A debtor’s one-quarter remainder interest in 

Massachusetts real estate subject to a life estate 

held by her mother may not be exempt under the 

homestead statute, as the debtor does not qualify 

as an “owner” under the statute, the Bankruptcy 

Appellate Panel states. 

In Re: Gordon, Nicole D. (Lawyers Weekly No. 03- 

007-13) (6 pages). 

Homestead - Remainder 

An individual holding a remainder interest in 

real property does not qualify as an “owner” entitled 

to a homestead exemption under G.L.c. 

188, a U.S. Bankruptcy Court judge says. 

In Re: Bertone, Paul A. (Lawyers Weekly No. 04- 

013-13) (6 pages). 

‘Hybrid’ plan 

A debtor’s Chapter 13 plan could not employ 

11 U.S.C. §1322(b)(2) and (5) to reduce a bank’s 

secured claim and, at the same time, pay that secured 

claim over a period beyond the plan’s fiveyear 

term, the Bankruptcy Appellate Panel holds. 

In Re: Bullard, Louis B. (Lawyers Weekly No. 03- 

017-13) (15 pages). 

Legal fees - Divorce - False pretenses 

A law firm’s claim for fees owed by a bankrupt 

client is excepted from discharge under 11 U.S.C. 

§523(a)(2)(A) as a debt arising from false representations, 

a U.S. Bankruptcy Court judge concludes. 

In Re: Kenneally, Erin G. (Lawyers Weekly No. 04- 

041-13) (18 pages). 

‘Willful and malicious’ injury - 

G.L.c. 93A - Collateral estoppel 

A U.S. District Court judgment, holding a defendant 

debtor liable for breach of contract and 

for a willful and knowing violation of G.L.c. 93A, 

is not exempt from discharge under the “willful 

and malicious injury” provision of the Bankruptcy 

Code, a U.S. Bankruptcy Court judge rules. 

In Re: Swasey, Malcolm C. (Lawyers Weekly No. 04- 

014-13) (38 pages). 

BANKS AND 

BANKING 

Negligence - Misappropriation 

A plaintiff law firm, alleging that two individuals 

stole more than $500,000 that the plaintiff 

had entrusted to them for federal employment 

tax payments, cannot hold liable under a negligence 

theory the two defendant banks through 

which the money passed, as the plaintiff has 

failed to show that the banks breached a duty of 

care, a U.S. District Court judge holds. 

Bernkopf Goodman LLP v. Hebert, et al. (Lawyers 


Repossession - Yacht - Notice 

A bank’s notice about a sale of a repossessed 

yacht was not deficient even though it did not 

specify the time and place of the sale, the 1st U.S. 

Circuit Court of Appeals concludes. 

Barclays Bank PLC v. Poynter, et al. (Lawyers Weekly 

No. 01-063-13) (14 pages). 

A respondent coffee shop discriminated 

against the complainant, an African-American 

police detective, by requiring him to pay prior to 

being served while not requiring the same from 

the complainant’s white colleagues, the Massachusetts 

Commission Against Discrimination 

concludes. 

Massachusetts Commission Against Discrimination, 

et al. v. Capitol Coffee House (Lawyers Weekly 

No. 22-012-13) (17 pages). 

SDPs - Evaluation - 

Pharmacological treatment 

Two plaintiffs, who were civilly committed as 

sexually dangerous persons after completing 

their criminal sentences, must be evaluated by a 

qualified psychiatrist and, if appropriate, provide 

with pharmacological treatment, a U.S. District 

Court judge rules. 

Healey, et al. v. Murphy, et al. (Lawyers Weekly No. 

02-188-13) (117 pages). 

COMMERCIAL 

Limitations - Retroactivity 

The six-year statute of limitations set forth in 

G.L.c. 106, §3-118, applies to all negotiable instruments, 

sealed and unsealed, but is inapplicable 

to causes of action accruing prior to the 

statute’s enactment in 1998, the Supreme Judicial 

Court holds. 

Premier Capital, LLC v. KMZ, Inc. (Lawyers Weekly 

No. 10-033-13) (14 pages). 

CONSUMER 

PROTECTION 

G.L.c. 93, §105(a) - 

Credit card transactions 

A plaintiff may bring an action for a violation of 

G.L.c. 93, §105(a), without alleging a claim of identity 

fraud, the Supreme Judicial Court concludes. 

When a merchant acquires personal identification 

information in violation of G.L.c. 93, §105(a), 

and uses the information for its own business purposes, 

whether by sending the customer unwanted 

marketing materials or by selling the information 

for a profit, the merchant has caused the consumer 

an injury that is distinct from the statutory violation 

itself and cognizable under G.L.c. 93A, §9, the SJC 

further concludes. 

Tyler v. Michaels Stores, Inc. (Lawyers Weekly No. 

10-036-13) (22 pages). 

G.L.c. 93A - Building code 

Building code violations may constitute unfair 

or deceptive conduct within the purview of 

G.L.c. 93A, the Supreme Judicial Court states. 

Klairmont, et al. v. Gainsboro Restaurant, Inc., et al. 


G.L.c. 93A - Injury 

“Price premium” injury is cognizable under 

the Massachusetts consumer protection statute, 

a U.S. District Court judge holds. 

Bezdek v. Vibram USA Inc., et al. (Lawyers Weekly 

No. 02-075-13) (27 pages). 

Petition preparer - 

Unauthorized practice of law 

A non-attorney bankruptcy petition preparer 

who has violated 11 U.S.C. §110 and has engaged 

in the unauthorized practice of law should be prohibited 

from preparing bankruptcy petitions in the 

District of Massachusetts — subject to further review 

upon petition by the Defendants and for good 

cause shown, a U.S. Bankruptcy Court judge says. 

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G.L.c. 93A - Wrongful death 

Having reserved for herself the decision on a 

G.L.c. 93A claim asserted by the plaintiff parents 

of a decedent, a trial judge was not bound by the 

jury’s answers to special questions on causation 

in relation to the plaintiffs’ wrongful death 

claims, the Supreme Judicial Court concludes. 

The plaintiffs were entitled to bring a claim 

under G.L.c. 93A pursuant to the Massachusetts 

survival statute (G.L.c. 228, §1) distinct from their 

claims under the wrongful death act (G.L.c. 229, 

§2) but that may only recover damages under c. 

93A to the extent that their son would have 

been able to recover, had he survived, the SJC 

further rules. 

Klairmont, et al. v. Gainsboro Restaurant, Inc., et al. 


Zip code 

A zip code may qualify as personal identification 

information under G.L.c. 93, §105(a), the 

Supreme Judicial Court states. 

Tyler v. Michaels Stores, Inc. (Lawyers Weekly No. 

10-036-13) (22 pages). 

CONTRACT 

Limitations - Commonwealth 

The three-year statute of limitations in G.L.c. 

260, §3A, applies to all contract claims brought 

against the commonwealth, regardless of 

whether the contract was made under seal, the 

Appeals Court determines. 

Cameron Painting, Inc. v. University of Massachusetts 


Non-compete agreements - 

Promotions 

Non-competition clauses in the defendants’ employment 

agreements are unenforceable given that 

the plaintiff employer cannot prove that the employment 

agreements signed by the defendants 

were supported by further consideration upon their 

promotions, a Superior Court judge concludes. 

Interpros, Inc. v. Athy, et al. (Lawyers Weekly No. 

12-026-13) (9 pages). 

Non-solicitation agreement - 

‘First contact’ 

A non-solicitation agreement does not prevent 

a company from receiving business initiated by 

the client with no direct or indirect participation 

by the individual employee bound by the non-solicitation 

agreement, but “this narrow carve-out 

from a non-solicitation agreement for receiving 

business does not allow a salesman to take active 

steps to persuade the client and actually solicit its 

business,” a U.S. District Court judge concludes. 

Corporate Technologies, Inc. v. Harnett, et al. 


Offer - 

Purchase and sale agreement 

An enforceable agreement to sell land was not 

created by an email response to the plaintiff’s offer 

to purchase, as the response indicated a lack of intent 

to be presently bound on the part of the defendant 

owner, a Land Court judge determines. 

Host v. Gray (Lawyers Weekly No. 14-027-13) (16 

pages). 

Settlement agreement - 

Email 

A plaintiff’s request for court enforcement of a 

settlement agreement should be granted because 

“it is manifest from the email exchange 

that the parties entered into a valid settlement 

agreement,” a U.S. District Court judge holds. 

Hansen v. Rhode Island’s Only 24 Hour Truck & 

Auto Plaza, Inc., et al. (Lawyers Weekly No. 02-280- 

13) (9 pages). 

CORPORATE 

Derivative suit - Futility 

A U.S. District Court judge’s dismissal of a shareholder 

derivative suit based on a failure to properly 

plead demand futility is subject to de novo review, 

the 1st U.S. Circuit Court of Appeals says. 

Unión de Empleados de Muelles de Puerto Rico 

PRSSA Welfare Plan, et al. v. UBS Financial Services 

Inc. of Puerto Rico, et al. (Lawyers Weekly No. 01-003- 

13) (28 pages). 

Privilege - Directors - Shareholders 

A closely-held corporation and its counsel and 

accountants can assert attorney-client privilege 

and work product protection against directorsshareholders 

whose interests are adverse to 

those of the corporation, the Supreme Judicial 

Court concludes. 

Chambers, et al. v. Gold Medal Bakery, Inc., et al. 


Profit-sharing plan - Trustees 

Plaintiff participants in a corporate profit-sharing 

plan could sue for the plan’s total $46 million 

loss allegedly caused by the defendant trustees, 

rather than just the losses to the plaintiffs’ individual 

accounts, a U.S. District Court judge rules. 

Merriam, et al. v. Demoulas, et al. (Lawyers Weekly 

No. 02-268-13) (20 pages). 

CRIMINAL 

Aggravated kidnapping 

The commonwealth must prove that a defendant 

is “armed” to make out a violation of 

G.L.c. 265, §26, third par., the Appeals Court holds. 

Commonwealth v. Rodriguez (Lawyers Weekly No. 

11-022-13) (12 pages). 

Assault and battery - Serious injury 

While medical testimony may not be required 

in every instance to establish that a victim has 

suffered serious injury resulting in impairment to 

an organ, the commonwealth bears the burden 

of establishing the severity of an injury through 

its impact on the structure of the victim’s organ 

and its consequent effect on the ability of the organ 

to perform its usual function, the Supreme 

Judicial Court concludes. 

Commonwealth v. Scott (Lawyers Weekly No. 10- 

025-13) (15 pages). 

Illegal reentry - Vacated conviction 

A charge of illegal reentry following deportation 

must be dismissed now that the criminal 

conviction that precipitated the defendant’s deportation 

has been vacated by the New Hampshire 

Superior Court, a U.S. District Court judge 

rules. 

United States v. Boliero (Lawyers Weekly No. 02- 

067-13) (33 pages). 

Immigration consequences - Plea 

The U.S. Supreme Court’s holding in Padilla v. 

Kentucky, 130 S. Ct. 1473, 1486 (2010) — that 

defense counsel must advise noncitizen clients 

that pleading guilty may result in deportation — 

requires counsel to inform a noncitizen client 

that conviction at trial may similarly carry immigration 

consequences, the Supreme Judicial 

Court states. 

Commonwealth v. Marinho (Lawyers Weekly No. 

10-005-13) (47 pages). 

‘Innocent possession’ instruction - 

Stolen firearm 

A conviction for possession of a stolen firearm 

must be vacated and the case remanded, as the 

trial judge erred by not instructing the jury on an 

“innocent possession” defense, the 1st U.S. Circuit 

Court of Appeals concludes. 

United States v. Baird (Lawyers Weekly No. 01-085- 

13) (25 pages). 

Jury selection - 

Exclusion of family members 

Counsel may waive, with or without the defendant’s 

express consent, the right to a public 

trial during jury selection if the waiver is a tactical 

decision as part of counsel’s trial strategy, the 

Supreme Judicial Court holds. 

Commonwealth v. Lavoie (Lawyers Weekly No. 10- 

004-13) (12 pages). 

Marijuana - Cultivation 

A complaint charging a defendant with cultivating 

less than an ounce of marijuana should 

not have been, as the decriminalization of marijuana 

in the amount of one ounce or less did not 

affect the cultivation statute, the Supreme Judicial 


Commonwealth v. Palmer (Lawyers Weekly No. 10- 

057-13) (16 pages). 

Marijuana - Distribution 

The social sharing of marijuana does not violate 

the distribution statute, G.L.c. 94C, §32C(a), 

the Supreme Judicial Court says. 

Commonwealth v. Jackson (Lawyers Weekly No. 

10-059-13) (13 pages). 

Misleading parole officer 

It is a crime under G.L.c. 268, §13B, to mislead 

a parole officer investigating a parolee’s possible 

failure to comply with parole conditions, the 

Supreme Judicial Court rules. 

Commonwealth v. Figueroa (Lawyers Weekly No. 

10-023-13) (12 pages). 

Probable cause hearing - Timing 

A defendant who is charged initially by complaint 

with murder in the first degree is entitled 

under G.L.c. 276, §38, to a preliminary or probable 

cause hearing in the District Court as soon as 

practicable, the Supreme Judicial Court concludes. 

Commonwealth v. Perkins (Lawyers Weekly No. 10- 

008-13) (35 pages). 

Probation - Sex offender registration 

While the Sex Offender Registry Act, G.L.c. 6, 

§178E(f), permits a judge in certain limited circumstances 

to relieve a sex offender from the 

registration requirement, it does not authorize a 

judge to order such registration, the Supreme Judicial 

Court holds. 

Commonwealth v. Ventura (Lawyers Weekly No. 

10-089-13) (17 pages). 

Probation revocation - 

Informant - Identity 

When a defendant is facing probation revocation 

due to an alleged new criminal offense, it 

may be appropriate for a court to order disclosure 

of the identity of an informant who was a 

participant in the alleged offense, the only nongovernment 

witness to the offense and the only 

percipient witness to the entire alleged transaction, 


Commonwealth v. Kelsey (Lawyers Weekly No. 10- 

018-13) (21 pages). 

Self-defense - Prior violent acts 

When a defendant raising a claim of self-defense 

seeks to introduce evidence of prior violent 

acts by the alleged victim on the issue of identity 

of the first aggressor, the commonwealth may 

seek to present evidence of prior violent acts of 

the defendant for the same purpose, but only if (1) 

the commonwealth provides the defendant with 

sufficient advance notice of its intent to introduce 

such evidence and (2) the trial judge determines 

that introduction of the evidence is more probative 

of its intended purpose than prejudicial to the 

defendant, the Supreme Judicial Court states. 

Commonwealth v. Morales (Lawyers Weekly No. 

10-017-13) (17 pages). 

Sentencing 

A sentencing judge erred by selecting which 

guideline to apply on the basis of conduct not alleged 

in the indictment, the 1st U.S. Circuit Court 

of Appeals says. 

United States v. Almeida (Lawyers Weekly No. 01- 

059-13) (15 pages). 

Speedy trial 

Arrest, indictment or criminal complaint issued 

pursuant to Massachusetts law, whichever 

comes first, will start the speedy trial clock, the 


Commonwealth v. Butler (Lawyers Weekly No. 10- 

053-13) (20 pages). 

Speedy trial - Waiver 

A criminal defendant’s lawyer may seek a 

continuance and the concomitant exclusion 

of time for Speedy Trial Act purposes without 

first securing the defendant’s personal consent, 

the 1st U.S. Circuit Court of Appeals 

holds. 

United States v. Gates (Lawyers Weekly No. 01- 

057-13) (28 pages). 

Victim - Standing 

The victim of a criminal offense has no judicially 

cognizable interest in the defendant’s criminal 

proceedings and lacks standing to challenge 

the sentence imposed on the defendant, the 


H.T. v. Commonwealth, et al. (Lawyers Weekly No. 

10-100-13) (3 pages). 

DAMAGES 

Class action - G.L.c. 93A - Fees 

An individual plaintiff’s rejection of a reasonable 

settlement offer in the course of a class action 

does not preclude the entire class from recovering 

counsel fees pursuant to G.L.c. 93A, a 

U.S. District Court judge says. 

Hermida, et al. v. Archstone, et al. (Lawyers Weekly 

No. 02-293-13) (35 pages). 

G.L.c. 93A - Contract 

Where (1) a jury returned a verdict for the 

plaintiff on claims of breach of contract and 

G.L.c. 93A and (2) the trial judge doubled the 

G.L.c. 93A damages, the entire amount of the 

verdict should have been doubled, the Appeals 

Court holds. 

T. Butera Auburn, LLC, et al. v. Williams, et al. (and a 

companion case) (Lawyers Weekly No. 11-051-13) (22 

pages). 

G.L.c. 93A - Multiple damages - Death 

The death of a defendant charged with a 

willful or knowing violation of G.L.c. 93A precludes 

recovery of double or treble damages 

against the defendant’s estate, the Supreme Judicial 

Court holds. 

Kraft Power Corporation v. Merrill, et al. (Lawyers 


DOMESTIC 

RELATIONS 

Alimony - Tax consequences 

If presented with evidence of potential tax 

consequences, a judge should consider those 

consequences when creating or modifying alimony 

provisions in a divorce instrument, the 

Supreme Judicial Court says. 

L.J.S. v. J.E.S. (Lawyers Weekly No. 10-024-13) (11 

pages). 






EMPLOYMENT 

Adverse action - 

Termination-related benefit 

By alleging that the defendant denied her an 

important termination-related benefit, a plaintiff 

sufficiently pleaded an adverse employment action 

to state a Title VII claim, a U.S. District Court 

judge concludes. 

Tyree v. LaHood (Lawyers Weekly No. 02-198-13) 

(12 pages). 

Age discrimination 

A comment by a defendant employer’s vice 

president of sales — about “the need to re-energize 

[a] sales team” — does not constitute direct 

evidence of discriminatory animus on the basis of 

age, the 1st U.S. Circuit Court of Appeals holds. 

Woodward v. Emulex Corporation, et al. (Lawyers 


Bonus - Wage Act 

A plaintiff who was terminated just months 

before he was to receive a $60,000 bonus cannot 

succeed on a Wage Act claim, as the bonus 

was contingent and never “earned,” the 1st U.S. 

Circuit Court of Appeals concludes. 

Weiss v. DHL Express, Inc. (Lawyers Weekly No. 01- 

139-13) (18 pages). 

CFAA - Loyalty 

The term “access that exceeds the scope of 

authorization” in the Computer Fraud and Abuse 

Act should be interpreted narrowly so that the 

scope of authorized access is defined by the 

technologically implemented barriers that circumscribe 

that access, a U.S. District Court judge 

decides. 

Advanced Micro Devices, Inc. v. Feldstein, et al. 


Discrimination - Gender 

Even if an employer relies on its performance 

evaluation process in deciding to terminate an 

employee, that process itself might be infected by 

the bias of those performing the evaluations, the 

Appeals Court holds in an unpublished opinion. 

Rochat v. L.E.K. Consulting, LLC, et al. (Lawyers 


Discrimination - Race - 

Probation officer 

The respondent Office of the Commissioner of 

Probation discriminated against a complainant 

on the basis of race by failing to promote him to 

a permanent or temporary probation officer position, 

the Massachusetts Commission Against 

Discrimination finds. 

Haywood, et al. v. Office of the Commissioner of 

Probation (Lawyers Weekly No. 22-011-13) (35 

pages). 

Harassment 

An award of summary judgment for an employer 

in a Title VII case must be affirmed absent 

evidence that the employee informed a supervisor 

that the harassment she was complaining of 

was sex-based, the 1st U.S. Circuit Court of Appeals 

decides. 

Medina-Rivera, et al. v. MVM, Inc. (Lawyers Weekly 

No. 01-087-13) (19 pages). 

Independent contractor statute - 

Out-of-state workers 

Plaintiffs who live and work in New York for a 

Massachusetts corporation could bring suit in 

the commonwealth claiming that they were misclassified 

as independent contractors in violation 

of a Massachusetts statute, the Supreme Judicial 

Court holds. 

Taylor, et al. v. Eastern Connection Operating, Inc. 


Misclassification - 

Independent contractor 

The lack of a contract between the parties 

does not itself, without more, preclude liability 

under the independent contractor statute, the 

Supreme Judicial Court concludes. 

Depianti, et al. v. Jan-Pro Franchising International, 


Overtime - Collateral estoppel - 

Compulsory counterclaims 

A complaint filed by plaintiffs — four months 

after their former employer instituted a related 

action against them in state court for breaching 

a noncompetition agreement — must be dismissed, 

as the plaintiffs’ claims (for overtime pay, 

sales commissions and bonuses) are precluded 

by the doctrine of collateral estoppel or by Massachusetts 

rule regarding compulsory counterclaims, 

a U.S. District Court judge determines. 

Brennan, et al. v. Sentient Jet, LLC (Lawyers Weekly 

No. 02-234-13) (15 pages). 

Retaliation - Pretext - 

Insubordination 

An award of summary judgment for a defendant, 

on a retaliation claim brought under the 

Americans with Disabilities Act by a plaintiff licensed 

practical nurse, must be vacated because 

of a genuine dispute of material fact as to 

whether the employer’s stated reason for the 

nurse’s termination — insubordination — was a 

pretext for retaliatory animus, the 1st U.S. Circuit 

Court of Appeals decides. 

Kelley v. Correctional Medical Services, Inc. 


Wage Act 

An employer’s failure to pay unpaid wages, as 

defined by G.L.c. 149, §148, cannot be mitigated 

by gratuitous, after-the-fact payments, the 


Wage Act - Extraterritoriality 

In deciding whether the private right of action 

under the Massachusetts Wage Act should be extended 

to a nonresident employee of a Massachusetts 

employer, the choice-of-law doctrine is 

applicable, the Appeals Court says. 

Dow v. Casale (Lawyers Weekly No. 11-076-13) (11 

pages). 

Wage Act - LLC 

A manager or other officer or agent of a limited 

liability company, limited liability partnership 

or other limited liability business entity may be a 

“person having employees in his service,” and 

thus may be civilly or criminally liable for violations 

of G.L.c. 149, §148, if he “controls, directs, 

and participates to a substantial degree in formulating 

and determining policy” of the business 

entity, the Supreme Judicial Court says. 

Cook v. Patient Edu, LLC, et al. (Lawyers Weekly No. 

10-105-13) (15 pages). 

Wage Act - Preemption 

A plaintiff’s common-law claims for unpaid 

sales commissions are not “superseded” by the 

Wage Act, a U.S. District Court judge decides. 

Mansfield v. Pitney Bowes, Inc. (Lawyers Weekly 

No. 02-118-13) (9 pages). 

Wage Act - Sales commissions 

A terminated salesman’s Wage Act claim for 

unpaid commission should not be dismissed despite 

the fact that the employer retained discretion 

to interpret the commission plan, a U.S. District 

Court judge concludes. 

McAleer v. Prudential Insurance Company of America, 


Whistleblower - Retaliation 

An at-will employee’s purported references to 

health threats posed by the defendant employer’s 

products are too attenuated to implicate 

public policy and to grant her “whistleblower” 

protection, the Appeals Court determines in an 

unpublished opinion. 

Nelson v. Anika Therapeutics, Inc., et al. (Lawyers 


ENVIRONMENTAL 

CWA - Notice 

If the information contained in pre-suit notice 

under the Clean Water Act identifies the potential 

plaintiffs, provides basic contact information 

and allows the putative defendants to identify 

and remedy the alleged violations, the statutory 

requirements have been satisfied and an enforcement 

action may proceed, the 1st U.S. Circuit 

Court of Appeals rules. 

Paolino, et al. v. JF Realty, LLC, et al. (Lawyers 


FRAUD 

False Claims Act - First-to-file rule 

A first-filed qui tam complaint under the False 

Claims Act need not meet the heightened pleading 

standards of Rule 9(b) in order to bar a laterfiled 

complaint, the 1st U.S. Circuit Court of Appeals 

determines. 

United States ex rel. Heineman-Guta v. Guidant 

Corporation, et al. (Lawyers Weekly No. 01-137-13) 

(23 pages). 

HABEAS CORPUS 

Hearsay - Codefendant’s statements 

A petitioner convicted of second-degree murder 

must be granted a new trial because his constitutional 

rights were violated when the trial 

judge excluded statements a codefendant made 

to the petitioner’s family members and former 

attorney, a U.S. District Court judge holds. 

Hodge v. Mendonsa (Lawyers Weekly No. 02-295- 

13) (22 pages). 

IMMIGRATION 

Motion to reconsider 

An alien whose application for withholding of 

removal has been denied by the Board of Immigration 

Appeals may not proffer, as the basis for a 

motion to reconsider, a ground for relief which, 

though previously available, was not previously asserted, 

the 1st U.S. Circuit Court of Appeals rules. 

Martinez-Lopez v. Holder (Lawyers Weekly No. 01- 

005-13) (9 pages). 

Persecution - Withholding of removal 

An order denying an application for withholding 

of removal, filed by an attorney from Pakistan, 

must be vacated based on evidence that 

he was subjected to threats and violence that 

rose to the level of past persecution over his involvement 

in a case stemming from a conflict 

between rival political factions, the 1st U.S. Circuit 

Court of Appeals decides. 

Javed v. Holder (Lawyers Weekly No. 01-133-13) 

(14 pages). 

INSURANCE 

G.L.c. 176D - Admiralty - Preemption 

Federal admiralty law does not preempt the 

application of G.L.c. 93A and 176D to a vessel insurer’s 

unfair settlement practices involving 

damage to a Massport wharf, a U.S. District 

Court judge says. 

MT “BALTIC COMMANDER” Schiffahrtsgesellshaft 

mbH & Co. KG v. Massachusetts Port Authority 


Drivers - Classification - 

Independent contractors 

A defendant delivery company’s drivers performed 

services within the usual course of the 

defendant’s business and consequently could not 

have been classified as independent contractors, 


Martins, et al. v. 3PD, Inc. (Lawyers Weekly No. 02- 

204-13) (53 pages). 

FMLA - Notice - Retaliation 

Even though a defendant employer failed to 

provide a plaintiff employee with a timely eligibility 

notice or a timely designation notice as required 

by the Family Medical Leave Act, the defendant 

is nevertheless entitled to summary 

judgment because the plaintiff has shown no resulting 

harm, a U.S. magistrate judge determines. 

Bellone v. Southwick-Tolland Regional School District 


Dixon v. City of Malden (Lawyers Weekly No. 10- 

032-13) (12 pages). 

Wage Act - Commissions - 

Damages 

Commissions constitute “lost wages and other 

benefits” within the meaning of G.L.c. 149, §150 

so as to trigger the mandatory treble damages 

provision, the Appeals Court finds. 

Weber v. Coast to Coast Medical, Inc., et al. 


Wage Act - Expenses 

A plaintiff could pursue a Wage Act claim alleging 

that she was terminated in retaliation for 

expressing her displeasure over the defendant 

employer’s expense reimbursement policy, the 

Appeals Court rules. 

Fraelick v. PerkettPR, Inc., et al. (Lawyers Weekly 

No. 11-071-13) (17 pages). 

EVIDENCE 

Confrontation - Forensic examiner 

A trial judge’s decision to allow a forensic examiner 

to testify about another examiner’s prior 

examination of a seized laptop computer did not 

affect the defendant’s substantial rights, the 1st 

U.S. Circuit Court of Appeals concludes. 

United States v. Soto (Lawyers Weekly No. 01-153- 

13) (17 pages). 

Expert - Studies and guidelines 

A defendant insurer should not have been permitted 

during direct examination to elicit testimony 

regarding studies and guidelines as a basis 

for an expert witness’s opinion concerning chiropractic 

treatment rendered by the plaintiff, the 

District Court/BMC Appellate Division rules. 

Kantorosinski Chiropractic Inc. v. Commerce Insurance 

Company (Lawyers Weekly No. 13-071-12) (9 pages). 

Insolvency Fund - G.L.c. 93A - Fees 

When a plaintiff prevails in a consumer action 

against the Massachusetts Insurers Insolvency 

Fund under G.L.c. 93A, §9(1), the fund is liable 

for reasonable counsel fees under §9(4), the 

Supreme Judicial Court decides. 

Wheatley v. Massachusetts Insurers Insolvency 

Fund (Lawyers Weekly No. 10-094-13) (13 pages). 

LTD benefits - Risk of relapse 

A defendant insurance company acted arbitrarily 

and capriciously in refusing to consider whether 

an insured’s risk of relapse into substance dependence 

swelled to the level of a disability, the 1st U.S. 

Circuit Court of Appeals determines. 

Colby v. Union Security Insurance Company & 

Management Company for Merrimack Anesthesia Associates 

Long Term Disability Plan, et al. (Lawyers 

Weekly No. 01-018-13) (24 pages).




Proceeds - Causation 

Plaintiffs from whom insurance proceeds were 

misappropriated could not hold the defendant 

insurance company liable for making out the insurance 

proceeds check to the wrong trust entity, 

as the money would have been stolen even if the 

check had been made out correctly, the 1st U.S. 

Circuit Court of Appeals rules. 

Jakobiec, et al. v. Merrill Lynch Life Insurance Co. 


Rental car - Negligent entrustment 

An insured did not have a right to indemnification 

under her parents’ automobile liability 

policy for her negligent entrustment of a rental 

vehicle to an unauthorized operator who caused 

a collision, the Appeals Court holds. 

Mahoney v. American Automobile Insurance Company 


Title - Duty to defend 

A title insurer does not have a duty to defend 

a policyholder in an entire lawsuit when one 

claim is within the scope of the title insurance 

coverage and other claims are not, the Supreme 

Judicial Court holds. 

GMAC Mortgage, LLC v. First American Title Insurance 

Company (Lawyers Weekly No. 10-056-13) (20 

pages). 

JURISDICTION 

Condominium - 

Amount in controversy 

The amount-in-controversy requirement of 

G.L.c. 212, §3, does not apply to an in rem action 

to enforce a lien against a condominium unit for 

unpaid common expenses, the Appeals Court 

concludes. 

Residences at Cape Ann Heights Condominium Association 

v. Halupowski, et al. (Lawyers Weekly No. 

11-032-13) (6 pages). 

Forum non conveniens - China 

A complaint over an injury that occurred at 

the defendant’s hotel in China should not be dismissed, 

as the defendant has failed to demonstrate 

that China would be an adequate forum to 

hear the plaintiffs’ claims, a U.S. District Court 

judge rules. 

Sullivan, et al. v. Starwood Hotels and Resorts Worldwide, 


Forum selection clause - 

Online contract 

A forum selection clause in an online agreement 

cannot be enforced absent a showing that 

the provisions of the “Terms of Service and Privacy 

Policy” were reasonably communicated and 

accepted, the Appeals Court rules. 

Ajemian, et al. v. Yahoo!, Inc. (Lawyers Weekly No. 

11-057-13) (22 pages). 

Land Court - Permit session 

A case pending in the permit session of the Land 

Court may not be transferred to any other trial 

court department of the commonwealth, including 

the Housing Court, the Appeals Court states. 

Buccaneer Development, Inc. v. Zoning Board of 

Appeals of Lenox (Lawyers Weekly No. 11-179-12) (8 

pages). 

Personal - Ferry - 

Forum selection clause 

A negligence complaint against a defendant 

ferry operator should not be dismissed based on 

a forum selection clause that was included in the 

terms and conditions of tickets given to the 

plaintiffs no more than ten minutes before 

boarding, a U.S. District Court judge rules. 

Metcalf v. Bay Ferries Limited (Lawyers Weekly No. 

02-150-13) (21 pages). 

Personal - Website 

A Florida defendant’s motion to dismiss for 

lack of personal jurisdiction must be denied because 

the defendant “does business actively 

over the internet in Massachusetts by soliciting 

customers indiscriminately,” a U.S. District Court 

judge holds. 

Signazon Corporation v. Nickelson (Lawyers Weekly 

No. 02-302-13) (7 pages). 

Removal - Fees 

Even though a case that the defendant removed 

from state court was ordered remanded, 

the plaintiff should not be awarded counsel fees, 

as the defendant had a sufficient basis for removal, 

a U.S. District Court judge determines. 

Massachusetts Biologic Laboratories of the University 

of Massachusetts v. MedImmune, LLC (Lawyers 


Removal - Remand - Tips 

A putative class action claiming a violation of 

the Massachusetts Tips Law as well as unjust enrichment 

under Massachusetts common law 

must be remanded from federal to state court for 

lack of complete federal preemption, a U.S. District 

Court holds. 

Hernandez v. Harvard University (Lawyers Weekly 

No. 02-170-13) (14 pages). 

Removal - Service 

In multi-defendant litigation, a non-forum defendant 

may not remove a case filed in state 

court — before any defendant has been served 

— when a properly joined co-defendant is a citizen 

of the forum state, a U.S. District Court judge 

holds. 

Gentile v. Biogen Idec, Inc., et al. (Lawyers Weekly 

No. 02-080-13) (21 pages). 

Removal - Waiver 

A defendant’s agreement to “accept venue in 

the courts of Middlesex County, Massachusetts” 

is insufficient to demonstrate an intent to waive 

removal, a U.S. magistrate judge concludes. 

OsComp Systems, Inc. v. Bakken Express, LLC 


Subject matter - 

Legal malpractice - Bankruptcy 

A debtor’s claims of negligence and legal malpractice 

on the part of a bankruptcy trustee and 

an attorney who served as the trustee’s counsel 

must be dismissed for lack of subject matter jurisdiction 

given the debtor’s failure to obtain 

leave from the U.S. Bankruptcy Court to bring 

suit, a U.S. District Court judge rules. 

Hutchins v. Shatz, Schwartz and Fentin, P.C. 


LANDLORD 

AND TENANT 

Damages 

A landlord cannot recover for posttermination 

damages under an indemnification clause 

in a lease until the end of the period specified 

in the lease, when the amount of indemnification 

is certain, unless the indemnification 

clause specifically provides that damages may 

be recovered earlier, the Supreme Judicial 


275 Washington Street Corp. v. Hudson River International, 

LLC, et al. (Lawyers Weekly No. 10-071-13) 

(22 pages). 

Lead paint - School records - Sibling 

The school records of a 10-year-old sibling of a 

plaintiff in a lead paint case should be reviewed 

in camera, a Superior Court judge holds. 

Sapienza v. Beaulieu, et al. (Lawyers Weekly No. 

17-004-13) (5 pages). 

Voucher - Termination 

State regulations, authorizing the termination 

of a rental voucher for failing to give notice of a 

change in family composition, are impermissibly 

vague insofar as they do not define when an 

overnight guest becomes a household member 

for purposes of the voucher program, the 


Rivas v. Chelsea Housing Authority (Lawyers Weekly 

No. 10-021-13) (26 pages). 

MORTGAGES 

Assignment - Standing 

A mortgagor has standing to challenge the assignment 

of a mortgage on her home to the extent 

that such a challenge is necessary to contest 

a foreclosing entity’s status qua mortgagee, the 

1st U.S. Circuit Court of Appeals holds. 

Culhane v. Aurora Loan Services of Nebraska 


‘Dual tracking’ 

A mortgage lender is not entitled to dismissal 

of a claim against it for violating the covenant of 

good faith and fair dealing by “dual tracking” — 

proceeding with foreclosure while the debtors 

were seeking a loan modification, a U.S. Bankruptcy 


In Re: Silveira, Carlos Roberto, et al. (Lawyers 


Foreclosure sale - Title 

A foreclosure deed is invalid in that the foreclosing 

party has not been shown to have had title 

to the mortgage at the time it commenced 

the foreclosure proceedings, a Land Court judge 

decides. 

Bank of America, N.A. v. Goldsmith, et al. (Lawyers 


Mistakes - Foreclosure 

A foreclosure of a condominium unit was invalid 

where both the mortgage and foreclosure documents 

contained mistaken references to the number 

of the unit, a Housing Court judge concludes. 

East West Bank v. Chung (Lawyers Weekly No. 17- 

001-13) (5 pages). 

Notary’s certification 

There is a legal basis for a Chapter 7 trustee’s 

claimthat a mortgage is void because the notary’s 

certification has a blank space where the 

debtors’ names should have appeared, a U.S. 

Bankruptcy Court judge concludes. 

In Re: D’Alessandro, Louis Albert, et al. (Lawyers 


Notice - Foreclosure 

A defendant borrower must be granted summary 

judgment in a post-foreclosure summary 

process case because the plaintiff’s “Notice of Intention 

to Foreclose” did not comply with the requirements 

of G.L.c. 183, §21, and G.L.c. 244, 

§35A, a Housing Court judge holds. 

Federal Home Loan Mortgage Corp. v. Sensini 


Rescission - MCCCDA 

A state regulation (209 CMR 32) is unenforceable 

to the extent that it extends the right of 

rescission to a party who gave a creditor a mortgage 

on a residence but did not become personally 

obligated in the transaction, a U.S. Bankruptcy 

Court judge determines. 

In Re: Smith-Pena, Theresa A. (Lawyers Weekly No. 

04-001-13) (22 pages). 

SCRA - Standing 

To establish standing in servicemember proceedings, 

plaintiffs must present such evidence 

as may be necessary and appropriate in the circumstances 

reasonably to satisfy the judge as to 

their status as mortgagees or agents thereof, the 

Supreme Judicial Court holds. 

HSBC Bank USA, N.A. v. Matt (Lawyers Weekly No. 

10-007-13) (17 pages). 

MOTOR VEHICLES 

OUI - Field sobriety test 

When a motorist agrees to take a field sobriety 

test, the motorist’s expressions of difficulty or 

inability to perform or to complete it — such as 

“I can’t do this,” “I give up” “I’ve had too much 

to drink” — are not the products of compulsion 

and thus are admissible, the Appeals Court states. 

Commonwealth v. Brown (Lawyers Weekly No. 11- 

079-13) (11 pages). 

MUNICIPAL 

Apprenticeship - Preemption - 

ERISA 

The city of Quincy’s requirement that all contractors 

bidding on city construction projects 

maintain an apprenticeship program approved 

by the Massachusetts Division of Apprentice 

Training is preempted by the Employee Retirement 

Income Security Act, a U.S. District Court 

judge states. 

Merit Construction Alliance, et al. v. City of Quincy 


MTCA 

Section 10(j) of the Massachusetts Tort Claims 

Act does not bar a claim that a public employer 

negligently supervised and trained an employee, 


LaPierre v. City of Lawrence, et al. (Lawyers Weekly 

No. 02-200-13) (11 pages). 

NEGLIGENCE 

Accountant - G.L.c. 93A 

A G.L.c. 93A claim, asserted against a defendant 

accountant who allegedly the plaintiffs 

negligently to file amended corporate and personal 

tax returns, cannot succeed, as the plaintiffs 

have not shown how their situation, over 

time, would have been improved in the absence 

of the amendment urged by the defendant, the 

1st U.S. Circuit Court of Appeals decides. 

RTR Technologies, Inc., et al. v. Helming, et al. 


Credentialing 

A claim against a medical center for “negligent 

credentialing” of a doctor is cognizable under 

Massachusetts law, a Superior Court judge holds. 

Rabelo v. Nasif, et al. (Lawyers Weekly No. 12-016- 

13) (9 pages). 

Medical malpractice - Third party 

A medical professional — other than a mental 

health professional — owes no duty to a third 

person arising from any claimed special relationship 

between the medical professional and a patient, 


Medina v. Hochberg (Lawyers Weekly No. 10-079- 

13) (15 pages). 

Swimming pool - 

Open and obvious danger 

In cases where a negligent failure to warn is 

not the only viable theory of negligence, such as 

where the plaintiff alleges negligent design or 

negligent failure to comply with a company safety 

policy, a landowner may still owe a duty to a 






lawful entrant to remedy an open and obvious 

danger, the Supreme Judicial Court states. 

Dos Santos, et al. v. Coleta, et al. (Lawyers Weekly 

No. 10-084-13) (25 pages). 

PARENT AND CHILD 

Support - Inconsistency 

In ruling on a divorced mother’s modification 

complaint, a judge erred in applying a standard 

requiring a material and substantial change in 

circumstances rather than the standard set forth 

in G.L.c. 208, §28, which provides that a child 

support order shall be modified “if there is an inconsistency 

between the amount of the existing 

order and the amount that would result from application 

of the child support guidelines,” the 


Morales v. Morales (Lawyers Weekly No. 10-037- 

13) (14 pages). 

PATENT AND 

TRADEMARK 

Preliminary injunction - 

Consumer confusion 

A trademark defendant has no burden to 

prove anything until the plaintiff has first met its 

responsibility to show infringement by demonstrating 

that the defendant’s use of its mark is 

likely to confuse consumers, the 1st U.S. Circuit 

Court of Appeals rules. 

Swarovski Aktiengesellschaft, et al. v. Building #19, 


PRISONS 

Strip searches - Class action 

A plaintiff should be granted class certification 

in a suit challenging a state prison’s policy of 

permitting male correctional officers to videotape 

strip searches of female inmates, a U.S. District 


Baggett, et al. v. Ashe, et al. (Lawyers Weekly No. 

02-246-13) (4 pages). 

PRODUCTS LIABILITY 

Tobacco 

A jury award of $81 million in punitive damages 

against a defendant tobacco company must 

be vacated because the jurors were not adequately 

instructed on the theories of negligent 

design and marketing, the Supreme Judicial 

Court holds. 

Looking for 

the latest 

decisions 

Go to lwopinions.com 

Evans v. Lorillard Tobacco Company (Lawyers 


REAL PROPERTY 

Beach - Erosion - 

Prescriptive easement 

Absent clear intent to the contrary, it should 

be presumed that littoral properties contain fixed 

landward boundaries, the Supreme Judicial Court 

holds. 

White, et al. v. Hartigan, et al. (Lawyers Weekly No. 

10-022-13) (32 pages). 

Deed - Acknowledgement 

A deed improvidently recorded with a latent 

defect concerning its acknowledgment is incapable 

of providing constructive notice to a subsequent 

purchaser for value, a Land Court judge 

holds. 

Allen, et al. v. Allen (Lawyers Weekly No. 14-002- 

13) (28 pages). 

Misrepresentation - Broker - 

Zoning designation 

A broker has a duty to exercise reasonable 

care in making representations as to a property’s 

zoning designation, the Supreme Judicial Court 

holds. 

DeWolfe v. Hingham Centre, Ltd., et al. (Lawyers 


Waiver - Planning board 

A planning board’s subdivision rules and 

regulations, which state that a 14-foot width of 

road surface rule should “in no instance ... be 

waived,” does not as a legal matter prevent 

the board, if and when presented with a meritorious 

application for waiver as to a road surface 

less than 14 feet, from granting a waiver, a 

Land Court judge rules. 

Cater, et al. v. Bednarek, et al. (Lawyers Weekly No. 

14-012-13) (17 pages). 

RETIREMENT 

ERISA - Widow 

A decedent’s estranged wife qualifies as a 

“surviving spouse,” as the existence of a longstanding 

separation agreement and order of separate 

support between the decedent and the 

wife did not render the marriage a nullity, a U.S. 

District Court judge determines. 

Gallagher v. Gallagher (Lawyers Weekly No. 02- 

091-13) (11 pages). 

Forfeiture - Firefighter - 

Criminal conduct 

A firefighter’s pension could not be vacated 

by reason of his conviction for sexually abusing 

young boys, as there was no “direct link” between 

the criminal conviction and the position 

of firefighter, the Appeals Court decides. 

Retirement Board of Maynard v. Tyler, et al. 


LTD benefits - Cooperation 

A long-term disability plan administrator’s systematic 

failure to consider contradictory evidence 

in the medical analyses in the record undermines 

its attempt to justify denial of an 

application for benefits for failure to cooperate, a 

U.S. District Court judge finds. 

Petrone v. Long Term Disability Income Plan for 

Choices Eligible Employees of Johnson & Johnson and 

Affiliated Companies (Lawyers Weekly No. 02-199-13) 

(44 pages). 

Offset - Benefits - Veteran 

A plaintiff’s disability compensation under the 

Veterans’ Benefits Act was not “other income” 

for purposes of reducing the payments owed to 

the plaintiff by the defendant insurance company 

under an ERISA-qualified plan, the 1st U.S. Circuit 

Court of Appeals concludes. 

Hannington v. Sun Life and Health Insurance Company 


SEARCH AND 

SEIZURE 

Cell phone 

A warrantless search by the police of the data 

in a cell phone seized from a suspect as part of 

his lawful arrest exceeded the boundaries of the 

Fourth Amendment search-incident-to-arrest exception, 

the 1st U.S. Circuit Court of Appeals 

holds. 

United States v. Wurie (Lawyers Weekly No. 01- 

126-13) (53 pages). 

GPS - Standing 

A defendant lacked standing to move to suppress 

evidence derived from the warrantless installation 

and use of a global positioning system 

tracking device on a vehicle that he drove but 

that did not belong to him, a U.S. District Court 

judge decides. 

United States v. Kabba (Lawyers Weekly No. 02- 

099-13) (12 pages). 

SECURITIES 

Fraud - Drug maker 

A judgment dismissing a putative class action 

against a defendant pharmaceutical manufacturer 

must be vacated based on allegations that the 

defendant failed to disclose 23 reports of serious 

adverse effects — including one death — linked 

to the defendant’s “make-or-break” drug, the 1st 

U.S. Circuit Court of Appeals rules. 

Silverstrand Investments, et al. v. AMAG Pharmaceuticals, 

Inc., et al. (Lawyers Weekly No. 01-037-13) 

(31 pages). 

Loss causation - Merger 

An order dismissing a securities fraud complaint 

filed after a corporate merger must be reversed 

based on allegations that the defendants 

misrepresented the success of their integration 

of computer systems and the quality of customer 

service, the 1st U.S. Circuit Court of Appeals rules. 

Massachusetts Retirement Systems, et al. v. CVS 

Caremark Corporation, et al. (Lawyers Weekly No. 01- 

131-13) (33 pages). 

TAXATION 

Corporate excise - ‘Sham’ transaction 

A request for a corporate excise abatement 

must be denied because “the ‘state tax planning 

project’ at issue was specifically devised, touted 

and implemented as a tax avoidance scheme,” 

the Appellate Tax Board states. 

Allied Domecq Spirits and Wines USA, Inc. v. Commissioner 

of Revenue (Lawyers Weekly No. 20-017- 

13) (43 pages). 

Exemption - MBTA 

Real property leased by the Massachusetts 

Bay Transportation Authority to a for-profit limited 

liability company is exempt from taxation pursuant 

to G.L.c. 161A, §24,the Appellate Tax 

Board determines. 

Beacon So. Station Assocs. LSE v. Board of Assessors 

of the City of Boston (Lawyers Weekly No. 20- 

011-13) (24 pages). 

Penalty - Equitable estoppel 

The doctrine of equitable estoppel does not 

bind the Internal Revenue Service to alleged assurances 

by IRS personnel not to assess a failureto-pay 

penalty, the 1st U.S. Circuit Court of Appeals 

holds. 

Shafmaster, et al. v. United States (Lawyers Weekly 

No. 01-039-13) (20 pages). 

TORT 

MTCA - Presentment - 

Wrongful death 

When a claim under the Massachusetts Tort 

Claims Act is for wrongful death, the claimant for 

purposes of the G.L.c. 258, §4, presentment must 

be the duly appointed executor or administrator 

of the deceased, the Appeals Court holds. 

Estate of Gavin v. Tewksbury State Hospital, et al. 


Qualified privilege - Defamation 

Defendant police officers are protected by a 

qualified privilege from liability for defamation 

and intentional interference with advantageous 

relationships in connection with their report of 

an investigation of an entertainment license violation, 

the Appeals Court concludes. 

Dear v. Devaney, et al. (Lawyers Weekly No. 11- 

026-13) (15 pages). 

UNEMPLOYMENT 

COMPENSATION 

Independent contractor - Model 

A model was an independent contractor — 

not an employee of a modeling agency — for 

unemployment compensation purposes, the Executive 

Office of Labor and Workforce Development 

Board of Review determines. 

Psallidas v. Click Model Management, Inc. 


WORKERS’ 

COMPENSATION 

Loss of psychiatric function 

Benefits for permanent loss of psychiatric 

function are recoverable under G.L.c. 152, 

§36(1)(j), the Department of Industrial Accidents 

says. 

In Re: Yeshaiau, Shoshana (Lawyers Weekly No. 25- 

003-13) (8 pages). 

ZONING 

Standing - Privacy - Home occupation 

Plaintiff homeowners lack standing to challenge 

the Winchester zoning board’s decision to 

grant their neighbor a special permit to conduct 

a home occupation, as none of the plaintiffs’ 

concerns about loss of privacy “describe an infringement 

of any cognizable legal right, or any 

private interest protected by the By-law,” a Land 

Court judge determines. 

Murphy, et al. v. Sampson, et al. (Lawyers Weekly 

No. 14-020-13) (17 pages). 

Standing - View - Variance 

A plaintiff opposed to a neighbor’s requested 

variance for the construction of a single-family 

home cannot establish standing based on a hypothetically 

diminished view, a Land Court judge 

decides. 

Manasian v. The Town of Falmouth, et al. (Lawyers 

Weekly No. 14-095-12) (13 pages).

THE MOST IMPORTANT OPINIONS - Massachusetts Lawyers Weekly

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