massachusetts

Volume 45, Issue No. 28 $9.00 per copy July 11, 2016

IMPORTANT OPINIONS OF THE WEEK HAC’s approval of Employment — 40B project upheld Whistleblower A jury award of punitive Affordable housing goals damages under the whistleblower provisions of trump planning concerns the Federal Railroad Safety Act must be affirmed, as the trial By Eric T. Berkman judge did not err by instructing Lawyers Weekly Correspondent LINKEDIN.COM/COMPANY/JOHN-HANCOCK-FINANCIAL-SERVICES the jury according to general common law principles rather The Housing Appeals Committee properly or- than the standard adopted by dered the town of Andover to issue a compre- any particular state, the 1st U.S. Insurance company’s bid hensive permit under Chapter 40B that would Circuit Court of Appeals rules. allow a mixed-income rental housing develop- PAGE 7 ment within an existing commercial and indus- to replace arbitrator fails trial park, the Appeals Court has determined. The town’s zoning board of appeals had previ- ously denied the permit, citing incompatibility Workers’ compensation — removal of a party-appointed arbitra- FAA doesn’t permit with master planning needs. Insurance tor prior to the issuance of an award. Under the Supreme Judicial Court’s 2013 deci- The debarment provision pre-award challenge “In the end, because John Hancock contained in G.L.c. 152, §25C(10) has not alleged that its concerns re- The full text of the ruling in applies when an employer fails By Pat Murphy garding Employers’ appointment of Eisai, Inc., et al. v. Housing to obtain or provide workers’ [email protected] [Denis] Loring raise questions about Appeals Committee can be found compensation insurance, ‘the very validity’ of the Agreement, at masslawyersweekly.com. whether or not that was the An insurance company was not enti- John Hancock’s attempt to cast its re- result of the employer’s intent tled to the pre-award removal of an ar- quest for pre-award judicial interven- to avoid higher insurance bitrator — who had been appointed by tion as a matter of contract enforce- premiums, the Appeals Court sion in Zoning Bd. of Appeals of the opposing party in a business dis- ment is unconvincing,” Casper wrote. O’FLAHERTY states. Lunenberg v. Housing Appeals pute — based on the argument that he The 16-page decision is John Han- Represents Comm., the HAC — in review- PAGE 17 failed to meet the qualifications spec- cock Life Insurance Company (U.S.A.) developer ing a zoning appeal board’s re- ified in the parties’ arbitration agree- v. Employers Reassurance Corporation, ment, a federal judge has found. Lawyers Weekly No. 02-251-16. The jection of a comprehensive permit — is charged Municipal — The plaintiff, John Hancock Life -In full text of the ruling can be found at with determining whether a town’s master plan Open meeting law surance Company U.S.A., argued that masslawyersweekly.com. has “shown results” in reaching affordable hous- the arbitration agreement’s express ing goals and, if so, whether the proposed proj- The members of the prohibition on the appointment of Amend the FAA? ect would undermine the town’s master plan- Wayland Board of Selectmen past or present John Hancock employ- John Hancock was represented by ning interests. violated G.L.c. 231 when they ees prevented the arbitrator selected by Ana M. Francisco of Boston. She de- The plaintiffs in the case before the Appeals began deliberating about the professional competence of the the defendant, Employers Reassurance clined to be interviewed, citing her Court, commercial abutters who opposed the town administrator by sending Corp., from sitting on the panel hear- client’s policy against commenting project, argued that a four-part analysis that the private email messages before ing the parties’ dispute. on active cases. HAC applied in reviewing the denial did not the commencement of an open But U.S. District Court Judge Denise Employers Reassurance Corp. was merely clarify the Lunenberg test, but impermis- meeting, a Superior Court judge J. Casper found no authority under the defended by Cambridge attorneys sibly “moved the goalposts,” creating an entirely holds. Federal Arbitration Act for a court’s Continued on page 32 Continued on page 33 PAGE 27

INSIDE THIS ISSUE Stepfather sued for abuse can

Back to work assert psychotherapy privilege He retired a couple years back, and then thought Testimony regarding ‘family session’ restricted better of it. A leader in the A man accused of sexually entering an order prohibiting field of municipal law explains abusing his stepdaughters could Dr. Judith Power from disclos- why he decided to set up assert the psychotherapist-pa- ing or testifying about any com- shop and resume practicing. tient privilege to restrict the tes- munications between her and PAGE 4 timony of a psychologist regard- the defendant at the March 5, ing a family therapy session the 1993, session. defendant attended in 1993, a “There can be situations in A question of fairness federal judge has ruled. which family members attend- When is it appropriate to The plaintiffs, Kimberley Me- ing a therapy session are mere criticize judges? The recent deiros and Wendy Sweeney, al- participants whose communica- stinging criticism of Judges leged that defendant Kevin M. tions are not privileged,” Bur- Aaron Persky and Gonzalo Campbell could not assert the roughs wrote. “Here, however, Curiel is held up to the light GRILLING SEASON BEGINS in a piece by retired federal privilege because he was not a given Dr. Power’s contempora- Judge Nancy Gertner. patient of the psychologist when neous treatment notes, as well Supreme Judicial Court nominee Frank M. Gaziano fields he attended the therapy session as the lack of any statement PAGE 39 questions from the Governor’s Council at his July 6 hearing, with the plaintiffs and their [by her] regarding confiden- with support from SJC Justice Geraldine S. Hines (in mother, Sheila Brayden. tiality or privilege, the Court foreground). See story on page 3. See full table of contents on page 2 But U.S. District Court Judge finds that Mr. Campbell was a Allison D. Burroughs disagreed, Continued on page 34 2 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com News Briefs Contact Alexandra Lapkin at [email protected]

publicly funded elementary and second- Online distribution is ary students in Massachusetts. The petition also concerned the stan- enough for jurisdiction dardized testing process used in Massa- A U.S. District Court judge has found a chusetts school districts: It would require basis for exercising personal jurisdiction the commissioner of Elementary and over defendants who published allegedly Secondary Education to publicly release defamatory press releases through an on- each year all of the questions and other line distributor. “test items” included in the prior year’s The plaintiff, Braintree lawyer Daniel P. comprehensive assessment tests that all Neelon, brought a defamation claim re- publicly funded students in elementa- garding information the defendants pub- ry and secondary schools are required lished about him online in connection to take. with a Mongolian gold mining scandal. “An initiative petition properly may The defendants claimed the court contain only subjects ‘which are related lacked personal jurisdiction because the or which are mutually dependent,’” Jus- publication was placed online from a tice Margot G. Botsford wrote for the computer in Canada. unanimous court. “[B]ecause the issues Judge Indira Talwani disagreed, find- combined in the petition are substan- ing that the defendants initiated and tively distinct, it is more likely that vot- drafted a press release, gratuitously in- ers would be in the ‘untenable position cluded the plaintiff’s name and member- of casting a single vote on two or more ship in the Massachusetts bar, and pub- dissimilar subjects,’ … which is the spe- lished the press release to readers in Mas- cific misuse of the initiative process that sachusetts, intending to cause damages the related subjects requirement was in- in Massachusetts. tended to avoid.” “On these facts, the defamatory state- The 22-page decision isGray, et al. v. ment was purposefully directed to- Attorney General, et al., Lawyers Week- wards Massachusetts residents and in- ly No. 10-092-16. The full text of the rul- tended to cause harm in Massachusetts ing and Lawyers Weekly’s opinion digest SCHOOLED IN JUSTICE and thus constitutes an in-forum act for of the case can be found at masslawyer- the purposes of [G.L.c. 223A,] section sweekly.com. hrista McAuliffe Charter School eighth-graders Erin Buckley (left) 3(c),” Talwani wrote. “In sum, Plaintiff — Thomas E. Egan and Megan Sidmore (right) pose with Middlesex County District has demonstrated by a preponderance of CAttorney Marian T. Ryan. Ryan was a featured speaker at the school’s the evidence that Defendants have main- Juvenile Justice Project Ceremony on June 1 in Framingham. The students’ tained ‘minimum contacts’ with the fo- Indictment upheld project explored the Middlesex DA’s Office’s Juvenile Diversion Program rum, ‘such that maintenance of the suit and its mission to keep juveniles out of the criminal justice system. does not offend traditional notions of for urging suicide fair play and substantial justice’ and that The Supreme Judicial Court has up- Defendants’ tortious misconduct result- held a Juvenile Court judge’s decision ing in publication in Massachusetts res- not to dismiss a youthful offender in- counsel in the Norfolk County District Councilor Michael J. Albano de- idents with the intent to cause harm in dictment on a charge of voluntary man- Attorney’s Office, was confirmed on an scribed Howard-Hogan as “the right Massachusetts constitutes an in-forum slaughter against Michelle Carter, who 8-0 vote to the seat formerly held by person at the right time,” noting that act for the purposes of section 3(c).” at the age of 17 encouraged Conrad Roy, Judge Francis L. Marini. she is a woman of color, a demograph- Consequently, Talwani denied the de- then 18, to commit suicide. Parole Board member Ina R. How- ic he said makes up 7 percent of the sit- fendants’ motion for judgment as a mat- “The grand jury could have found that ard-Hogan was confirmed to a seat on ting judiciary. ter of law. an ordinary person under the circum- the Cambridge District Court bench “She’s a tough cookie, and she’s going The 11-page decision isNeelon v. stances would have realized the gravity by a 5-2 vote, with Councilors Marilyn to serve the commonwealth very well Krueger, et al., Lawyers Weekly No. 02- of the danger posed by telling the victim, Petitto Devaney and Robert L. Jubin- on the District Court,” Councilor Jen- 249-16. The full text of the ruling and who was mentally fragile, predisposed to ville Jr. voting against her, and Coun- nie L. Caissie said. Lawyers Weekly’s opinion digest of the suicidal inclinations, and in the process cilor Eileen R. Duff voting present. case can be found at masslawyersweek- of killing himself, to get back in a truck Devaney said Howard-Hogan had ly.com. filling with carbon monoxide and ‘just twice been rejected by the Judicial Suit planned over bid — Jill Taintor do it,’” Justice Robert J. Cordy wrote for Nominating Commission when apply- the unanimous court. ing for judgeships in the past, and that for Muslim cemetery “In sum, we conclude that there was she had not been a practicing attorney A lawyer for a central Massachusetts Ballot question on probable cause to show that the coercive since 2008. quality of the defendant’s verbal con- mosque seeking to build a Muslim cem- education invalid duct overwhelmed whatever willpower From 2005 to 2008, Howard-Hogan etery said he planned to sue after town worked as an assistant attorney gen- The Supreme Judicial Court has found the eighteen-year-old victim had to cope officials denied the proposal a cru- that the attorney general did not com- with his depression, and that but for the eral. She went on to serve as gener- cial permit. ply with the state constitution in certi- defendant’s admonishments, pressure, al counsel to the Parole Board before The Worcester Telegram & Gazette re- fying an initiative petition on education- and instructions, the victim would not Gov. Deval L. Patrick appointed her to ported that Jason Talerman, lawyer for al standards. have gotten back into the truck and poi- the board. the Islamic Society of Greater Worcester, The petition sought to end the use of soned himself to death,” Cordy added. the Common Core State Standards in The 23-page decision is Common- defining the educational curriculum of wealth v. Carter, Lawyers Weekly No. INSIDE THIS ISSUE 10-091-16. The full text of the ruling and Lawyers Weekly’s opinion digest of the Bar Discipline 11 Opinion 38-39 ADVERTISING Judicial Vacancies case can be found at masslawyersweek- ly.com. BMC Assignments 12 People in the Law 40 ADR Directory 20 PROBATE & FAMILY COURT — Thomas E. Egan Hampden County Division Calendar 24 Classifieds 35-37 Deadline: July 22 The Practice 25 • Judge Council approves pair District Court Employment 35 Probate & Family LAND COURT for District Court bench Assignments 16 Deadline: July 28 Court Assignments 30 • Judge The Governor’s Council on July 6 ap- Experts & proved two nominees seeking District Federal Court Decisions 7 Litigation Support 26 Visit www.mass.gov and Court judgeships, unanimously send- State Court & www.mad.uscourts.gov for ing one to the bench and affirming the Agency Decisions 17 the complete policies on the other after two councilors raised con- Hearsay 4 Lawyer to Lawyer 22 application processes. cerns about her qualifications. Verdicts & Michele M. Armour, chief trial News Briefs 2 Settlements 5 Real Estate Classifieds 35 www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 3 NEWS BRIEFS [email protected] Lawyers Weekly Web Poll Results First of Baker’s three SJC picks Q. Does the SJC’s prohibition on inquiries into juror goes before Governor’s Council

deliberations unduly limit the state’s professional rule on By Kris Olson of Rights. juror contact? [email protected] Meanwhile, Gaziano said it was a TOTAL VOTERS: 37 “really difficult question to answer” Despite assurances by District in the abstract whether any legisla- Court Chief Justice Paul C. Dawley tion to bring the death penalty back and others that Superior Court Judge to Massachusetts in some form could Frank M. Gaziano’s overriding phi- pass constitutional muster. losophy is to work hard and seek the Gaziano addressed concerns that truth without an agenda, members had arisen earlier in the day, when of the Governor’s Council grilled the defense attorney Robert L. Sheketoff, 43% NO first of Gov. Charlie Baker’s three Su- who sat across the courtroom as Ga- preme Judicial Court nominees on a ziano prosecuted death penalty de- YES 57% variety of hot-button political topics, fendant Gary Lee Sampson, testified including abortion rights, immigra- on the judge’s behalf. Sheketoff had tion, the Second Amendment and the described the trial as “an intense ex- death penalty July 6. perience, to say the least.” Councilor Jennie L. Caissie, the “Judge Gaziano showed me ex- panel’s only Republican, asked about traordinary talent, the single best the constitutionality of municipal This poll is not scientific and reflects the opinions of only those Internet users who have chosen to participate. performance I’ve ever seen as a pros- leaders declaring their cities or towns ecutor in my 41 years of doing this,” “sanctuary cities” for undocument- This week’s poll question: Sheketoff said. ed immigrants, which Gaziano called Councilor Terrence W. Kennedy Are you satisfied with FBI Director James Comey’s recommendation that primarily a matter for the legislative said he is “completely opposed” to the no criminal charges should be brought against Hillary Clinton over her and executive branches. Gaziano de- death penalty, which he said was his use of private email servers while secretary of state? clined to offer an opinion without “biggest issue” with Gaziano. To vote, visit masslawyersweekly.com the benefit of having such an issue “I have a problem wrapping my briefed and argued before him. head around the Frank Gaziano that Gaziano disagreed that the “suit- intended to file suit in Land Court. inspect the original documents under can prosecute a death penalty case able person” standard the SJC estab- The dispute involves a recent decision the existing language of Rule 34(a). and the Frank Gaziano I see sitting lished in the context of appeals of by the Dudley Zoning Board of Appeals. To the extent that producing the origi- denials of licenses to carry in its de- on the bench that’s overly fair to de- The mosque has a purchase agreement nal is deemed unduly burdensome or ex- cision last year in Chief of Police of fendants,” Kennedy said. for 55 acres of former farmland that it pensive, the producing party may seek a the City of Worcester v. Holden is too Gaziano noted that his three con- wants to develop into the cemetery. Resi- protective order under Rule 26(c). Such vague, expressing confidence that a cerns about the death penalty — that dents oppose the cemetery based on traf- an order may restrict access to the origi- body of case law would be developed an innocent person will be execut- fic and environmental concerns, but Ta- nal document, or may allow access upon to bring the standard into focus. ed, that it will be applied in a racial- lerman suggested that anti-Muslim bias payment of costs associated with pro- But he agreed that the language the ly disparate way, and that a defen- is a factor. duction of the original. U.S. Supreme Court used in its unan- dant might suffer from ineffective -as Dudley’s Board of Health also denied Rule 34(c) was also amended to add imous reversal of the SJC in Caetano sistance of counsel — were not pres- the project a necessary approval. a cross-reference to Rule 45 (Rule 34(c) v. Massachusetts, effectively bringing ent in that case. The implication was (2)). Rule 45 had been amended in 2015 stun guns within the ambit of the Sec- that his participation in the Sampson to allow a “documents only” subpoena ond Amendment, is “pretty striking.” case is not indicative of how he might SJC OKs rule changes, against a nonparty (Rule 45(d)). “What I took from it is that the view a hypothetical future challenge Meanwhile, SJC Rule 3:07 was amend- Supreme Court is very protective of of a state death penalty law. go into effect Aug. 1 ed by changing comment 3 to Mass. R. Second Amendment jurisprudence,” Gaziano’s witnesses, too, were The Supreme Judicial Court has ap- Prof. C. 5.4 (a)(4), which now explicitly he said. quizzed on the broader issue of judicial proved amendments to Mass. R. Civ. P. permits a lawyer, with the client’s con- Gaziano further declared himself philosophy and how Baker appointees 1 and 34 and SJC Rule 3:07, all effective sent, to share certain fees with a qualified “pro-choice.” When Caissie asked might change the court’s makeup. Aug. 1. legal assistance organization that has re- whether that meant “anytime, any- “Do you see [the Baker court] as The amendment to Rule 1, adopted ferred the matter to the lawyer. where,” Gaziano replied that a wom- taking a shift to the right, and do from the Federal Rules of Civil Pro- Should abuses occur in the carrying an’s right to choose is well-estab- you see Frank Gaziano as part of that cedure, changed the second sentence out of such arrangements, they may con- lished under the state’s Declaration Continued on page 19 of the first paragraph, so that it reads: stitute a violation of Rule 5.4(c) or Rule “They [the Massachusetts Rules of Civ- 8.4(d) or (h). il Procedure] should be construed, The full text of the rule changes can be administered, and employed by the found at masslawyersweekly.com. court and the parties to secure the just, ARBITRATION speedy, and inexpensive determination of every action and proceeding.” The IndyCar organizers Commonwealth purposed change was to acknowledge that both the court and the parties have file for bankruptcy CMCI Mediation & the obligation to employ the rules for The organization that unsuccessfully M E DIATIO N the purposes set forth. tried to bring an IndyCar race to Boston Conciliation Inc. Rule 34 was amended to recognize has filed for bankruptcy, saying it has al- Our panel of neutrals include: the common practice of producing cop- most $9 million in liabilities and about ies of documents rather than permit- $60,000 in assets. ting inspection of the originals (Rule Boston Grand Prix said in its bank- 34(b)(2)(C)(ii)). The amendment re- ruptcy filing on July 5 that its liabilities ROBERT J. BERKS, ESQ. flects a similar amendment to the Fed- include more than $1.5 million owed to For more information about Attorney Berks eral Rules of Civil Procedure effective people who bought tickets for the race, in 2015. which was supposed to be held over La- or any of our other panelists, The 2016 amendment further states bor Day weekend. please visit our website or call our office. that, upon request, the producing par- The tickets went on sale in March, ty shall provide “all parties a fair oppor- but the race was canceled in April with tunity to verify the copies by compari- organizers saying the city was mak- BOSTON—BROCKTON—WORCESTER son with the originals.” That language, ing unreasonable demands. City offi- 1-800-540-CMCI SPRINGFIELD — CAPE COD which is not part of the federal rules, re- cials, in turn, said the race course group www.commonwealthmediation.com PROVIDENCE, RI, HARTFORD, CT. inforces the requesting party’s right to Continued on page 31

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Probate Court Chief Justice and brings boxes of files to and Solving a piece of Angela M. Ordonez calls it a from storage. “win-win situation.” “He has become more en- the autism puzzle While the courts get much gaging, he smiles more, he’s For years, Vanda M. needed help with digitizing a wonderful addition to the Khadem poked around for job their backlog of documents, staff,” says Grossman, a di- opportunities for her daughter, it’s also an opportunity for vorce lawyer. “It humaniz- a 20-year-old who’s on the au- young people who are willing es all of us to have him there. tism spectrum. Khadem con- to learn and need work expe- Some families that we work sidered all sorts of possibilities rience on their resumes, Or- with have special needs kids. — even farming — donez says. It’s a good reminder for what until she had an A regular in w e d o.” “epiphany.” Family Court — Alexandra Lapkin “I asked where she knows Sarah: ‘Why many of the judg- don’t you es, Khadem de- Just getting help me in my cided to ap- office?’” recalls proach Or- started … again Khadem, a solo donez with Boston’s THE BROWN RUDNICK CREW in Brookline. “I her court- Kopelman Attorneys and staff from Boston’s Brown Rudnick participated in a had a stack of fil- THINKSTOCK house intern- & Paige may rowing lesson with College Bound Dorchester, a five-time recipient of ing and spent half- ship proposal. have jumped Brown Rudnick Charitable Foundation Relationship Grant money. Col- an-hour showing Sarah how Ordonez says she was on the gun when lege Bound Dorchester will use the grant to support its Maritime Ap- to do it. And she nailed it. The board as soon as she heard it honored prentice Program, which serves an older, high-risk population in Boston through work and education programs. From left: Stephanie Calnan, stack of filing the details. co-founder “When I learned that Van- Harrison Freeman, Nicholas Kinnon, Xue Yi ‘Sherri’ Liao, Danielle Ama- was 6 inch- KOPELMAN Leonard Ko- bile, Albert Wallis, Elizabeth McGeoy and a student from the Maritime es thick, and da’s own daughter helped her pelman at a Apprentice Program she wouldn’t out at her office, it solidified “retirement” party in 2014. stop until she my decision,” she says. Kopelman says he never re- The problem for many stu- was done.” ally retired. And, in fact, it would go on to more or less specializing in municipal law. Khadem dents with autism is that looks like the 75-year-old has corner the market on repre- Kopelman says there are quickly re- they’re unable to pass the Mas- more chapters to write in his senting cities and towns in new approaches he wants to alized that sachusetts Comprehensive As- KHADEM legal career. Just last month, the commonwealth. try that he thought he couldn’t the job her sessment System test, Khadem for example, he announced the In 1974, Kopelman formed in a traditional firm setting. daughter was excelling in explains, forcing them to con- opening of Kopelman & Asso- Kopelman & Paige with Don- “I believe everything you do would be a good fit for oth- tinue attending school until ciates, a firm specializing in an ald G. Paige, who recently should try to have some inno- er young people with autism, they age out area he knows intimately: mu- passed away. Widely consid- many of whom are detail-ori- of the system vation to it,” he says. nicipal law. ered the state’s leader in pub- Kopelman plans to limit ented and meticulous and at 22. At that Kopelman is not just hang- lic sector law, the firm is in himself to representing just a have a laser focus for repeti- point, they re- ing out a shingle. The priority the midst of transitioning to few towns, with the narrower tive tasks. ceive a certif- now is to closely examine the a new firm name:KP|Law. focus enabling him to empha- So Khadem created the icate of atten- way legal services are currently According to its website, the size on getting ahead of prob- Paralegal Assistant Training dance instead delivered to municipal clients firm currently represents more lems and avoiding litigation. Program, or PLAT, as part of a high and to figure out if there might than a third of the state’s mu- ORDONEZ “I want to test out a con- of Autism Higher Education school diplo- not be a better way. nicipalities as city solicitor or cept of being proactive, of go- Foundation — also estab- ma, the lat- “I want to analyze it; I want town counsel. ing to the towns once a week, lished by Khadem, to provide ter of which is required to at- to study it,” Kopelman says. “I The parting of ways has meeting with the department people on the autism spec- tend college. know what I did at Kopelman been amicable, Kopelman says. heads, finding out what proj- trum with art, music and vo- “That bars your ability to & Paige. I want to see what I It’s a view that’s shared by the cational training through var- continue to learn,” she says. can do this way, talk to other members of his old firm. ects to be problematic and ious cultural and education- “If you can’t get to college or single practitioners, see what “Since Leonard’s retire- using strategies to get rid al institutions. community college, that be- they’re doing, and try to come ment in 2014, he has stayed in [of those problems],” Kopel- “There is not a lot of access comes a real problem.” up with a profile that works touch with the firm he found- man says. to continuing education and Khadem hopes PLAT be- best for not only winning cases ed and the lawyers who work He’ll also be focusing on vocational services [for peo- comes one solution to the but also keeping the costs un- here,” managing attorney Lau- municipal mediation, which ple with disabilities], and we problem, with schools and der c ont ro l .” ren F. Goldberg says in an he has found to be an invalu- felt the lack of access is real- courts across the state working Kopelman just may be the emailed statement. able tool for cities and towns ly an issue of civil rights,” says together to teach people with father of municipal law in Though he’s not going far in resolving old cases that keep Khadem, who practices spe- disabilities the skills they need Massachusetts. When he be- — his new office is in the “hanging arou n d .” cial education and family law. to be employable, including gan practicing in the field same 101 Arch St. building as “To do mediation proper- “People on the autism spec- appropriate office behavior. more than 40 years ago, he KP|Law — one might won- ly you need somebody who trum have a lot of interests She doesn’t recalls only one lawyer in der why he’d bother leaving knows the animal, who knows and gifts that we don’t nec- have to sell the state who represented as the municipal law firm he municipal law,” he says. essarily see until later on in Hindell S. many as two towns. Kopelman founded to start a solo practice — Pat Murphy their lives.” Grossman on For greater impact, Khadem the program. opened PLAT to people not Grossman only with autism but with dif- is already a “It is mind-boggling that certain small ferent kinds of developmental big believer, disabilities. By learning tasks GROSSMAN having em- town officials decided, on the heels of such as copying, filing, data ployed an au- entry and scanning, the hope tistic man at her Newton firm, a Supreme Judicial Court decision, to is that the participants will go Grossman & Associates, for on to find gainful employment the last five years. engage in almost precisely the same at law firms. For the most part the work- conduct disapproved by the highest LAW.RWU.EDU There are currently 15 PLAT er, Sam, communicates with participants from various office staff by email, Grossman court of Massachusetts — just two years earlier.” school districts who are in- says, adding that he comes to terning at Brookline District work with a job coach who Court and six Probate & Fam- typically supervises him from — Superior Court Judge Dennis J. Curran ily Court locations. The par- a distance. In addition to dig- in Boelter, et al. v. Wayland ticipants are accompanied by itizing files, Sam — who’s in school counselors who oversee his mid-20s — keeps track of Board of Selectmen their training. the office supply inventory www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 5 Verdicts & Settlements Contact Alexandra Lapkin at [email protected] EDITOR’S NOTE: Barring unusual circumstances, Lawyers Weekly publishes all verdict and settlement reports submitted to the newspaper by both plaintiffs’ lawyers and defense counsel. The information published here is taken directly from the submitting lawyer’s summary. Town sued after taking temporary easement from funeral home Part of public works in Belmont. The plaintiffs owned the properties was replaced. temporarily taken property rights. Suit 13,478-square-foot parcel at issue, where The easements were temporary in na- was thereafter filed seeking additional project in Belmont they operated a funeral home business. ture and expired after three years. Con- compensation under G.L.c. 79G. The taking was made in connection struction did not begin along the plain- The town argued that taking the ease- with a public works project for improv- tiffs’ sidewalk for nearly three years, but ment had no negative effect on the fair $39,500 settlement ing Trapelo Road, including the side- it was completed prior to the expiration market value of the property and that the walk. Similar easements were taken from of the easement rights. public project would only enhance the On Aug. 20, 2012, the town of Bel- many of the property owners along the Like all affected property owners property’s curb appeal and value. mont took a 469-square-foot temporary path of the project for the purpose of pas- along the project, the plaintiffs received The plaintiffs’ real estate valuation ex- easement from the plaintiffs’ commer- sage and storage of vehicles, equipment a pro tanto payment of $100 from the pert opined that a buyer would pay less cial property located on Trapelo Road and supplies, as the sidewalk abutting the town as purported compensation for the for the property, given the property rights taken by the town, the expansive language included in the order of tak- ing, and the uncertainties surrounding the construction project. Other issues Worker’s foot crushed in skid steer loader’s frame included operating a funeral home with construction noise and debris and occa- Safety interlock systems tween the bucket frame and the main negotiation prior to trial. sionally severed access. frame of the loader as the bucket descend- Action: Negligence and tort Action: Real property were bypassed by owner ed. An investigation revealed that the skid steer loader’s safety interlock systems were Injuries alleged: Permanent foot injury Injuries alleged: Taking of land intentionally bypassed by its owner. Case name: Withheld Case name: Cafasso v. Town of Belmont $300,000 settlement As a result of the incident, the worker Court/case no.: Withheld Court/case no.: Middlesex Superior Court/ suffered a permanent impairment of his The claimant, a 38-year-old union labor 2012-04531- MICV right foot. Jury and/or judge: N/A (settled) foreman, was injured when his right foot The defendant contended that the Amount: $300,000 Jury and/or judge: N/A (settled) was crushed while operating a skid steer claimant was contributorily negligent and Amount: $39,500 Date: April 2016 loader — a small engine-powered ma- that, despite the absence of safety inter- Date: Aug. 20, 2012 chine with lift arms used to attach a vari- locks, the skid steer loader was still safe Attorneys: Patrick T. Jones and Ralph ety of tools. to operate. R. Liguori, of Jones Kelleher, Boston (for Attorney: Jason R. Scopa of Law Offices of The plaintiff’s foot became caught be- The case was resolved through direct the plaintiff) Peter E. Flynn, Saugus (for the plaintiff)

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TOP VERDICTS & SETTLEMENTS: JULY 2015 - JULY 2016 Baby stops breathing during spinal tap, 63 cerebral palsy results 54

45 $9.02 million settlement The claim involved injury to a pre- 36 viously healthy 5-month-old baby boy and claims against five defendants: a 27 pediatric emergency physician, a hos- pital emergency department nurse, a IN MILLIONSIN 18 hospital emergency department tech- nician, the practice group employer 9 of the physician, and the hospital em- ployer of both the ER nurse and the 0 $32.3 M$29.9 M $14.64 M$12.8 $4.4 $9.02 M$8.45 $6 $5.75 $5 $256 M$125 M $101 M$5.4 M $1.4 M ER technician. M M M The baby was taken to a hospital M M M emergency department because he was crying inconsolably and demonstrat- ing signs of respiratory distress. The VERDICTS SETTLEMENTS GOVERNMENT defendant physician detected a slight- Dubuque, et al. v. Case name withheld; Five- SETTLEMENTS ly inflamed eardrum and diagnosed an $32.3M Cumberland Farms, $9.02M month-old baby left with cerebral ear infection and dehydration. The boy et al.; Woman killed when car crashes into palsy, neurological and cognitive deficits, and blindness U.S., et al. v. Millennium was prescribed an eight-day course of $256M Laboratories, et al.; Urine convenience store where she was shopping; after lumbar puncture test; Traver Clinton Smith Jr. of drug-testing lab accused of billing for unnec- antibiotic and discharged. Stephen E. Spelman and John J. Egan, of Law Offices of Jeffrey S. Glassman, Boston essary tests, providing kickbacks to doctors; Later that same day, the infant re- Egan, Flanagan & Cohen, Springfield; Robert Thomas M. Greene of Greene, Boston; Assistant turned to the same hospital emergen- J. Lefebvre of Gelinas & Lefebvre, Chicopee; Case name withheld; Woman, U.S. Attorneys George B. Henderson III and Paul S. Weinberg of Weinberg & Garber, $8.45M 30, struck and killed by vehicle at Abraham R. George, Boston; Douglas Rosenthal cy department. Again, he was crying Northampton outdoor event; Ralph F. Sbrogna and Roger J. Brunelle, of of the Department of Justice, Washington, D.C. inconsolably. The defendant physi- Sbrogna & Brunelle, Worcester U.S. v. Kindred Healthcare, cian then decided to perform a lum- Gallego, et al. v. $125M et al.; Post-acute health bar puncture test, or spinal tap, to rule Lebrun, et al.; care provider allegedly overcharges for services; $29.9M Case name withheld; Boy, 6, drowns in out meningitis. Newborn incurs severe brain damage during Assistant U.S. Attorneys Gregg Shapiro and Patrick $6M waterslide pool on first day of camp; James M. Callahan; Kriss Basil, Boston; Christelle Klovers The examination room contained a delivery; Robert M. Higgins of Lubin & Meyer, A. Swartz and Alan L. Cantor, of Swartz & Swartz, Boston and Rohith V. Srinivas, Washington, D.C.; Jeffrey pulse oximeter, which is used to detect Boston A. Newman, Marblehead (for the relators, who Case name withheld; received $23.8 million) the beginning of a decline in the pa- Exergen tient’s oxygen level or pulse rate. The Corporation $5.75M Construction worker breaks United States v. Warner $14.64M defendant nurse did not use the pulse v. Kaz USA, Inc.; Manufacturer sues back in fall from ladder; John C. DeSimone and Paul E. $101M Chilcott Sales (U.S.) L.L.C.; Mitchell, of Mitchell & DeSimone Boston Pharmaceutical co. said to illegally promote oximeter for the procedure. for infringement of patent on forehead drugs, pay doctors to prescribe them; U.S. thermometers; Kerry L. Timbers of Sunstein, The boy was crying and struggling, Case name withheld; Highway driver Attorney Carmen M. Ortiz and Assistant U.S. Kann, Murphy & Timbers, Boston Attorneys David S. Schumacher, Miranda Hooker, but about halfway through the test be- struck, killed by detached trailer wheel; Neil $5M Sonya Rao and Susan M. Poswistilo, of the U.S. came silent and ceased struggling. Af- Ray, et al. v. Nathe, Sugarman and Benjamin R. Zimmermann, of Sugarman Attorney’s Office, Boston (for Massachusetts) ter the needle was withdrawn, the phy- et al.; Baby suffers & Sugarman, Boston $12.8M Commonwealth v. sician noted that he was not breathing. catastrophic brain injury due to special-care $5.4M Santander USA Holdings nursery workers’ negligence; Robert M. Inc.; Auto lender allegedly charges excessive The plaintiff contended that the tech Higgins of Lubin & Meyer, Boston interest rates on subprime auto loans; Assistant and the physician again deviated from Attorney General Aaron B. Lamb and Insurance the standard of care by failing to timely East Boston Savings and Financial Services Division Chief Glenn S. institute CPR. When additional nurses $4.4M Bank v. Heras, et al.; Kaplan, Boston Borrowers fail to repay loans on time, twice Case name withheld; and doctors came in, they immediate- using same money market account as $1.4M Companies accused of falsely ly began CPR. The boy’s breathing was collateral; Timothy M. Cornell and Patrick J. certifying compliance with equal opportunity eventually restored. Dolan, of Cornell & Dolan, Boston requirements; Assistant Attorney General Alistair F. A. Reader and False Claims Division Chief Gillian After long hospitalizations, today R. Feiner, Boston the plaintiff suffers from permanent acquired cerebral palsy, neurologi- cal and cognitive deficits, and severe but not total blindness. He requires total assistive care. With appropri- ate care and resources, he is expected to have a near normal life expectancy. TRAUMATIC BRAIN INJURY He is not expected to ever walk, talk or MAKE IT ONTO feed himself. Representing Families of Victims of Wrongful Death The case was filed in court less than Our Team is Committed to $9,800,000 THE CHART two months after the boy was injured. Our Team is Committed to Superior Results The settlement was achieved three Superior Results $6,000,000 years after the injury. $3,600,000 Action: Medical malpractice ! $14,150,000.00 Injuries alleged: Cerebral palsy, spastic ! $7,000,000.00 $2,800,000 Submit a quadriplegia, legal blindness ! $2,500,000.00 $2,100,000 ! $1,375,000.00 verdict or Case name: Withheld ! $1,100,000.00 $1,500,000 Court/case no.: Withheld settlement Jury and/or judge: N/A (settled) $9.02 million A SixtyA Sixty Year Year Tradition Tradition of Excellence. of Excellence. Amount: report today Ten TremontTen Street,Tremont 7th Floor St., 7th Floor Date: Dec. 8, 2015 Boston, MABoston, 02108 Ma 02108 Attorney: Traver Clinton Smith Jr. of Law Phone:Phone: 617-227-7000 617-227-7000 masslawyersweekly.com Offices of Jeffrey S. Glassman, Boston www.shefflaw.comwww.shefflaw.com (for the plaintiff)

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arises. Rather, in order to effectuate Con- and characteristics. So, too, the court “Separately, Baker also filed on [debtor 1st U.S. CIRCUIT gress’s evident preference for ‘uniform[i- took into account the stark fact that the John E.] Hoover [III]’s behalf an objec- ty]’ in the ‘law[s], regulations, and orders appellant used his dwelling as a storage tion to a motion filed by the U.S. Trustee COURT OF APPEALS related to railroad safety,’ it makes sense facility for guns, magazines, and ammu- (the ‘Trustee’) to convert Hoover’s bank- Editor’s note: The full text of these de- to apply a single standard throughout the nition. Under these circumstances, we ruptcy case to a case filed under Chap- cisions can be found on Lawyers Weekly’s country. … discern no abuse of discretion in the sen- ter 7 of the U.S. Bankruptcy Code, or website, masslawyersweekly.com. “Additionally, the reasons that the tencing court’s linkage between commu- to dismiss it. The Trustee’s motion con- Court gave in Smith for adopting the nity-based considerations and the need cerned cash that the debtor was spend- Employment reckless disregard standard apply equal- for deterrence. ing even though the cash was subject to ly well here. In Smith, the Supreme Court “Nor does the length of the appellant’s a tax lien. The Trustee argued that this Whistleblower - determined that, at common law, ‘puni- sentence (90 months) seem indefensi- cash constituted ‘cash collateral’ under Punitive damages tive damages in tort cases may be award- ble. The offense of conviction is quite 11 U.S.C. §363(a), and, therefore, could ed not only for actual intent to injure or serious, the circumstances of its com- not be spent without the permission of Where a jury verdict awarded punitive evil motive, but also for recklessness, se- mission are particularly troubling, and the court. damages under the whistleblower provi- rious indifference to or disregard for the the sentence imposed represents only “Baker’s attempt to parry the Trust- sions of the Federal Railroad Safety Act rights of others, or even gross negligence.’ a modest increase over the sentence ee’s motion focused on a claim that ‘cash (49 U.S.C. §20109), the trial judge gave 461 U.S. at 48. And the Court concluded (72 months) that the appellant himself collateral’ only consists of cash or other the jury a correct instruction as to the that nothing about ‘the policies and pur- thought condign. Seen in this light, the property that is subject to a consensual standard for awarding punitive damages. poses of §1983 itself require a departure sentence fits comfortably within the uni- lien. As Baker now admits, no case law “On October 6, 2011, [defendant] from the rules of tort common law.’ … verse of reasonable sentencing outcomes. so holds. … Springfield [Terminal Railway Compa- “… Given that the Supreme Court We therefore reject the claim of substan- “… The court … decided to impose a ny] reported a leak of hydraulic fluid to looked to the common law in determin- tive unreasonableness.” non-monetary penalty ‘in the hope of ef- the Maine Department of Environmen- ing both the standard that should govern United States v. Bermúdez-Meléndez fecting a more lasting behavioral mod- tal Protection. At that time, the plaintiff, the award of punitive damages in Smith, (Lawyers Weekly No. 01-167-16) (13 pag- ification.’ ... It ordered Baker to ‘enroll [Jason] Worcester, was an employee of 461 U.S. at 34, and the standard that gov- es) (Selya, J.) (1st Circuit) Appealed from in and attend in person (not on-line) Springfield. He became involved in a dis- erns the award of other damages that the U.S. District Court for the District of a one semester, minimum three cred- pute with his supervisor about the safety Congress provided may be recovered un- Puerto Rico (Docket No. 14-2209) (June it-hour class on legal ethics or profes- implications of cleaning up the spill and der §1983, … we find persuasive the Ad- 28, 2016). sional responsibility in an ABA accredit- was eventually fired. He then brought ministrative Review Board’s decision to ed law school to be completed within 13 suit against Springfield under the FR- follow that same course in resolving the Bankruptcy months of this order.’ … SA’s whistleblower protection provision, uncertainty presented here. Accordingly, “… Paragraph 8 is a flat out misstate- 49 U.S.C. §20109. Following the trial, the there was no error in the District Court’s Sanction - Attorney ment of the cases cited therein. To put a jury awarded the plaintiff $150,000 in punitive damages instruction.” Where a U.S. Bankruptcy Court judge fine point on it, even now Baker is unable compensatory damages and an addition- Worcester v. Springfield Terminal Rail- imposed a sanction on an attorney for to make any argument that the statement al $250,000 in punitive damages. … way Company (Lawyers Weekly No. 01- twice describing the applicable law in a he made in Paragraph 8 is supported by “The FRSA’s whistleblower provision 169-16) (11 pages) (Barron, J.) (1st Circuit) manner that the judge deemed to be mis- the cases he cited. … explicitly provides for punitive damages. Appealed from the U.S. District Court for leading, the judge did not abuse his dis- “The bankruptcy court was familiar 49 U.S.C. §20109(e)(3). It does not spec- the District of Maine (Docket No. 14-1965) cretion in construing the attorney’s sub- with Baker and his writings. The infer- ify, however, the standard for awarding (June 29, 2016). missions as sufficiently misleading so as ence that the pertinent misstatement was punitive damages. The District Court in- to warrant a sanction. the product not of reasonable mistake, structed the jury that it could award pu- Criminal Affirmed. but of something worse, strikes us as rea- nitive damages if it found that Spring- “… [Attorney David G.] Baker argued sonable. … field acted ‘[w]ith malice or ill willor Sentencing that rescheduling [a] foreclosure sale “Baker fares no better, and perhaps with knowledge that its actions violat- Where a defendant challenges his up- constituted an improper continuation of worse, in defending the arguments he ed federal law or with reckless disregard wardly variant sentence for a firearms of- debt collection activity under §362 that advanced in his objection to the Trustee’s or callous indifference to the risk that fense by claiming an array of procedur- warranted sanctions and a cancellation motion to convert or dismiss. As we have its actions violated federal law’ (empha- al errors and asserting that the length of of the rescheduled sale. In support of this described it above, he fashioned support sis added). The District Court took this his sentence renders it substantively un- motion, Baker wrote as follows: for an otherwise unsupported position standard from Smith v. Wade, 461 U.S. reasonable, his claims must be reject- “‘8. Where a creditor has notice, con- by materially mischaracterizing what 30, 56 (1983). There, the Supreme Court ed because there was no clear error in- tinuation of a mortgage foreclosure sale the statute says, and by leaving out the looked to general common law prin- volved in his sentencing and the sentence post-petition, without obtaining relief most relevant, and to his argument, the ciples — rather than the standard for was reasonable. from the automatic stay, is a willful vio- most discrediting, portion of it. He took awarding punitive damages adopted by Affirmed. lation. See In re Lynn-Weaver, 385 BR 7 a statute that, in effect, said ‘A means B, any particular state — in determining “At the disposition hearing, the dis- (Bkrtcy.D.Mass. 2008), citing In re Her- and includes C,’ and rewrote it to say ‘A that this standard is the appropriate one trict court commented upon the appel- on Pond, LLC, 258 BR 529 (Bkrtcy.D. means C.’ … for awarding punitive damages under 42 lant’s frequent brushes with the law, the Mass. 2001) (both by Hillman, J.); Hart “Bankruptcy courts often need to act U.S.C. §1983. … seriousness of the offense of conviction, v. GMAC Mortgage Corp., 246 BR 709 quickly, and should be able to assume “Springfield argued below, as it argues and the need to promote both deterrence (Bkrtcy.D.Mass. 2000) (Feeney, J.). that counsel are truthful. Even when here, that the District Court was wrong and respect for the law. The court then “‘9. The cases cited in the previous they fail to deceive a court, filings sup- to adopt the standard that the Court ap- noted the joint sentencing recommen- paragraph held, in essence, that a single ported only by artifice serve to delay the proved in Smith. … dation and stated: ‘I don’t think that that continuance of a foreclosure sale is not proceedings and impose costs on the “… The Department of Labor is the is enough considering the nature of the a stay violation so long as the creditor other parties. Here, moreover, the mis- federal agency charged with administer- firearms, the amount of ammunition, the seeks relief from the stay prior to the sale leading assertions were not merely erro- ing the FRSA. ... The Department’s Ad- kind of magazines, the whole bit. It’s an date. However, Judge Hillman’s holding neous detours made in pursuit of other- ministrative Review Board has interpret- arsenal . . . .’ in Heron Pond was based on ‘the obscu- wise well-grounded filings. Rather, Bak- ed the FRSA standard for awarding puni- “This explanation is lean, but we think rity of the prevailing legal rule (at least er, in each instance, marshalled artifice tive damages to be the same as the Smith it sufficient to withstand plain error re- prior to this decision)’. That decision was to provide illusory support for positions standard. … And while Springfield ar- view. … about 13 years ago, and the Lynn-Weaver that were otherwise without an apparent gues that this administrative interpreta- “… [T]he appellant suggests that the decision was 6 years ago. The ‘prevailing basis. As the bankruptcy court observed, tion of the FRSA is not entitled to defer- court’s sentencing rationale was tainted legal rule’ is no longer obscure. See also In he has a record of using his knowledge ence under Chevron U.S.A. Inc. v. Natural by its concerns about community-based re Derringer, 375 BR 903 (10th Cir. BAP, and skills for improper purposes. The Resources Defense Council, Inc., 467 U.S. considerations. We do not agree. 2007).’ … Continued on page 8 837 (1984), we still find the Administra- “We have squarely held that a district tive Review Board’s ‘interpretation[] per- court may consider community-based s u a s i v e .’ … and geographic factors in formulating “Congress made clear that a prima- its sentence. … The court here did not A.A.DORITY ry purpose of the FRSA was that ‘[l]aws, stray beyond this limited grant of au- regulations, and orders related to railroad thority: though it decried the pervasive safety ... shall be nationally uniform to problems associated with violent crimes SURETY BONDS SINCE 1899 the extent practicable.’ 49 U.S.C. §20106. in Puerto Rico, it did so only glancing- That goal is hardly advanced by — as ly — and then, only in connection with FAST RESPONSE - EXCELLENT SERVICE - ALL TYPES OF BONDS Springfield argues we should — adopt- the need for deterrence. Throughout, the Phone: 617-523-2935 Fax: 617-523-1707 www.aadority.com ing in each individual case the state-law court remained attentive to the particu- punitive damages standard used by the lars of the appellant’s case and (as noted A.A. DORITY COMPANY, INC. particular state in which an FRSA action above) engaged with his personal history 262 Washington Street • Suite 99 • Boston, MA 02108 8 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

interstate nexus of the business in ques- $11.99 for a 90-day supply). Law Firm, Timothy G. Lynch, Swartz & 1st U.S. CIRCUIT tion was limited to: the purchase of ma- “The relators assert that the HSP Lynch, Neil P. Thompson, Robert P. Chris- chinery and parts for use in the store that framework was a carefully constructed tensen, Robert P. Christensen, P.A., James COURT OF APPEALS were manufactured in Rhode Island, but artifice that allowed CVS to fraudulent- G. Vander Linden and Levander & Vander Continued from page 7 obtained by Rivera from the Common- ly overbill Medicare Part D and Medic- Linden were on brief, for the relators-appel- bankruptcy court thus confronted, in wealth of Puerto Rico’s Treasury Depart- aid. … lants; Ken Paxton, Jeffrey C. Mateer, James short, not a lack of ability by counsel ment five years prior to the alleged rob- “But the filing of the relators’ action E. Davis, Raymond C. Winter, Cynthia but rather an excess of zeal. Sanction- bery; testimony regarding the possible did not mark the first occasion that O’Keeffe and Richard E. Salisbury on brief ing artifice that is the product of such purchase of replacement equipment and CVS’s HSP pricing came under scruti- for the state of Texas, amicus curiae; Grant zeal was well within the bankruptcy parts at some undefined time in the fu- ny. In February of 2010, a coalition of la- A. Geyerman, with whom Enu Mainigi, court’s discretion.” ture; evidence of sporadic purchases of bor unions under the banner ‘Change to Craig D. Singer, Roy S. Awabdeh and Wil- In Re: Hoover, John E. III (Lawyers lottery tickets produced in Puerto Rico Win’ issued a report comparing the HSP liams & Connolly were on brief, for the de- Weekly No. 01-168-16) (14 pages) (Kayat- by tourists visiting Caguas, a city in the drug prices charged by CVS with pric- fendants-appellees (Docket No. 15-1991) ta, J.) (1st Circuit) Appealed from a deci- center of Puerto Rico; and the inciden- es charged by CVS for the same drugs to (July 1, 2016). sion by Hillman, J., in the U.S. District tal use of the business’s gaming room by federal employees enrolled in the Federal Court for the District of Massachusetts. tourists who visited Caguas. Consider- Employee Health Benefits Program (FE- Habeas corpus David G. Baker, pro se; John Postulka, ing the sparsity and tenuousness of this HBP). The report concluded that in its with whom Eric K. Bradford, Ramona D. alleged interstate commerce connection, role as the FEHBP’s pharmacy benefits Child pornography Elliott, P. Matthew Sutko, Noah M. Schot- defense counsel should have at a mini- manager, CVS overcharged by ‘hundreds Where a petitioner used a library com- tenstein, William K. Harrington, Richard mum argued to the trial court the cave- of millions of dollars.’ ... News outlets puter to view and print an image of a T. King and Lisa D. Tingue were on brief, at given by the Supreme Court in United pounced upon the Change to Win report 12-year-old naked girl at the beach that for the appellee (Docket No. 15-2384) (June States v. López, 514 U.S. 549, 557 (1995), and reported its findings extensively. was obtained from a Russian photo shar- 29, 2016). and United States v. Morrison, 529 U.S. “The allegations attracted attention in ing website, he was properly convicted 598, 618 (2000), against expanding the Washington as well: a Change to Win of possessing child pornography despite Habeas corpus interstate commerce reach into what has representative testified before Congress his claims of First Amendment infringe- been clearly reserved to local police pow- in late February of 2010 and advocat- ment, unreasonable fact finding and in- Ineffective assistance - er jurisdiction. On these facts, no rea- ed revising the FEHBP prescription sufficient evidence. Hobbs Act sonable trier of fact could have found a drug program. In November of 2010, a Thus, the denial of his habeas corpus sufficient nexus between the lottery busi- Congressional Research Service (CRS) petition is affirmed. Where the petitioner contends that ness and interstate commerce, and Rive- report rehearsed some of Change to Sullivan v. Marchilli (Lawyers Weekly his trial attorney provided ineffective ra was entitled to have those charges dis- Win’s allegations. No. 01-172-16) (9 pages) (Souter, J.) (1st assistance of counsel in failing to move missed rather than submitted to the jury. “Meanwhile — after the issuance of the Circuit) Appealed from a decision by So- for a judgment of acquittal on a Hobbs “If Rivera’s counsel had objected to the Change to Win report but before the is- rokin, J., in the U.S. District Court for the Act charge, the district court’s denial of Government’s failure to present suffi- suance of the CRS report — Connecticut District of Massachusetts. Janet H. Pum- post-conviction relief must be upheld cient evidence to establish that the busi- altered its statutes to explicitly require phrey for the petitioner-appellant; Ryan E. because the petitioner is unable to show ness allegedly robbed by Rivera was en- CVS to take its HSP prices into account Ferch, with whom Maura Healey was on a substantial likelihood that he would gaged in interstate commerce, the court in its dealings with the state’s Medicaid brief, for the respondent-appellee (Docket have obtained a different outcome if his would have had to dismiss the charges program. … No. 15-1191) (June 30, 2016). attorney had done so. against Rivera. … “It was not until August of 2011 — over “[Appellant José] Rivera’s post-convic- “ … It is not reasonable for a trial at- a year after the outpouring of publicity tion claim that his attorney unreasonably torney to fail to challenge the sufficiency regarding CVS’s refusal to give Connecti- Bankruptcy failed to challenge the evidence on in- of the Government’s evidence when that cut the benefit of its HSP pricing — that Conversion - terstate commerce was presented to the evidence has in fact been insufficient. No the relators brought this suit. … Estate diminution same judge who presided over his trial. strategic choice or reasonable tactical de- “… The public disclosures spelled out In evaluating that claim, the trial judge cision could account for the trial attor- the workings of the alleged scheme in Where a U.S. Bankruptcy Court judge expressly agreed with the view of the ney’s failure in this regard. … the context of the Connecticut Medic- allowed the U.S. Trustee’s motion to First Circuit panel majority, holding that “Finding both prongs of Strickland’s aid program. The relators’ complaint de- convert a Chapter 11 case to one under ‘there was sufficient evidence to prove a test to have been met, I would grant Ri- scribed the same alleged scheme — and Chapter 7, the judge did not err in find- nexus to interstate commerce.’ This de- vera’s request, reverse his conviction and the scheme worked in essentially the ing that (1) cause existed to convert the termination means it is unlikely that a grant a new trial.” same way under both Medicare Part D case and (2) conversion was in the best motion for judgment of acquittal filed Rivera-Rivera v. United States (Lawyers and the range of other state Medicaid interests of creditors. during trial would have succeeded. In ef- Weekly No. 01-170-16) (15 pages) (Lipez, programs. … “Cause exists under section 1112(b) fect, the judge to whom such a motion J.) (Torruella, J., dissenting) (1st Circuit) “… We hold that the essential elements (4)(A) if there has been a ‘substan- would have been submitted has stated Appealed from the U.S. District Court for of the transactions and events underly- tial or continuing loss to or diminution that the motion would have been denied. the District of Puerto Rico (Docket No. 11- ing the relators’ allegations were public- of the estate and the absence of a rea- “Nor has Rivera shown the requisite 2132) (June 29, 2016). ly disclosed in the course of the earlier sonable likelihood of rehabilitation.’ 11 likelihood of a different result in the di- Connecticut dispute and that the scheme U.S.C. §1112(b)(4)(A). The bankruptcy rect appeal if this particular sufficiency depicted in those earlier disclosures was court’s finding of diminution in this case claim had been preserved at trial. To the Fraud substantially the same as the scheme de- was simple and straightforward: [debt- contrary, the majority strongly indicated False Claims Act - picted in the relators’ complaint. … or John E.] Hoover [III] conceded that that its conclusion would have been the “… Because the relators offer no new he was selling inventory without replac- same under a de novo review of the re- Public disclosure bar information that materially adds to ing it, and his monthly operating reports cord. Indeed, the issue turned primari- Where two relators brought a qui tam what previously appeared in public dis- (‘MORs’) showed insufficient profit to ac- ly on the interpretation and application action pursuant to the False Claims Act closures, they do not qualify as original count for (or replace) the sold inventory. of precedent, which both the majority over the defendants’ billing practices, the sources. … In short, the estate was diminishing. As and dissent discussed at some length. … public disclosure bar bars the relators “The short of it is that the relators’ for the likelihood of rehabilitation, the We thus see no chance that plenary re- from proceeding with their suit. suit depicts a scheme that was publicly court again pointed to the MORs, show- view would have changed the majori- Dismissal order affirmed. disclosed before the filing of their com- ing insufficient cash flow to pay costs and ty’s analysis. “The relators, Myron Winkelman and plaint. That scheme is substantially the debts. The court concluded: ‘This debtor “Finally, we note that Rivera also crit- Stephani Martinsen, brought this qui same as the scheme delineated in public- barely makes it. That’s what the numbers icizes his attorney for failing to develop tam action under the FCA and (in its ly disclosed materials. And because the tell me and barely makes it only by not evidence showing that ‘the business con- current form) the analogous statutes of relators have proffered nothing that ma- paying people ... and that’s no recipe for a tacts with interstate commerce were re- eleven states. In it, they challenged par- terially adds to the publicly disclosed in- reorganization.’ … mote and did not amount to the required ticular billing practices of CVS Caremark formation, they are not ‘original sources’ “… The Profit and Loss Statement nexus.’ However, this contention is mate- Corp. and certain affiliated companies as that term is used in the jurisprudence revealed that in 2013, Hoover’s busi- rially different from the issue on which (collectively, CVS). The main target of of the FCA. ness lost over $135,000, and the MORs we granted the certificate of appealabil- their complaint was CVS’s conduct with “We need go no further. For the rea- showed that, since filing for bankruptcy, ity, i.e., counsel’s failure to challenge the respect to a program that the company sons elucidated above, we find that the the business had generated only minimal adequacy of the evidence presented by had instituted in 2008. That program was sun has set on the relators’ claims: the profits despite selling off its inventory and the government on that element. More- known as the Health Savings Pass (HSP). public disclosure bar forbids their suit.” not paying anything to secured creditors. over, under the panel majority’s reason- A consumer could join the HSP pro- United States ex rel. Winkelman, et al. v. The court described, in detail, its view ing, we see no likelihood that additional gram by paying a nominal enrollment CVS Caremark Corporation, et al. (Law- of the evidence regarding whether there evidence would have changed the result. fee (originally $10 and later increased to yers Weekly No. 01-171-16) (28 pages) (Se- was a reasonable likelihood of rehabilita- $15). HSP membership entitled a con- lya, J.) (1st Circuit) Appealed from a deci- tion, noting a lack of sufficient funds and Dissenting judge’s comments sumer, among other things, to purchase a sion by Casper, J., in the U.S. District Court income to pay monthly expenses under a Torruella, J. “In this case, the Govern- range of generic prescription drugs from for the District of Massachusetts. Bri- Chapter 11 plan. The court, in its broad ment’s evidence concerning the alleged CVS at discounted prices (either $9.99 or an Wojtalewicz, with whom Wojtalewicz discretion, supportably declined to credit www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 9 THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

permit a Chapter 93A plaintiff to send a arbitration award. ... John Hancock ac- supporting the alleged distinction be- 1st U.S. CIRCUIT demand letter to only one defendant in a knowledges that there is a general rule tween bias-based challenges and qual- multi-defendant action, Young’s demand barring judicial removal of party-ap- ifications-based challenges, John Han- COURT OF APPEALS letter does not mention Wells Fargo, nor pointed arbitrators prior to the conclu- cock relies upon policy, arguing that ‘ad- Hoover’s testimony that he had plans for does it describe any unfair or deceptive sion of the arbitration. … John Hancock dressing the threshold issue of []Loring’s generating more income, finding those conduct committed by Wells Fargo. Ac- argues, however, that the prohibition on eligibility at this juncture promotes the plans both speculative and optimistic. … cordingly, the demand letter was insuf- judicial intervention is limited to pre- goals of speed and efficiency that arbitra- “Hoover argues to us, nevertheless, ficient to put Wells Fargo on notice of award challenges regarding the bias of ar- tion and the FAA are supposed to foster.’ that the creditors will mostly get nothing Young’s allegations, and summary judg- bitrators. ... In John Hancock’s view, there ... The policy aims of the FAA, however, on liquidation after both the administra- ment is warranted as to the Chapter 93A is an exception permitting pre-award ju- neither support pre-award judicial in- tive fees and his Massachusetts tax ob- claim against Wells Fargo. … dicial removal of an arbitrator where re- terference into arbitrator appointments ligation (in part) are paid. Therefore, he “As to Homeward, the district court moval is based upon ‘[the] arbitrator’s as a general matter nor support creating reasons, even a long shot at making a go methodically explained why the four failure to meet the criteria specified in the a separate rule based upon the nature of of it under Chapter 11 is worth it for the acts raised in Young’s demand letter did arbitration agreement.’ ... the challenge to the arbitrator.” creditors. Hoover, though, did not make not rise to the level of unfair or decep- “This Court agrees with the reasoning See news story on page 1. this argument to the bankruptcy court; tive conduct under Chapter 93A. ... On of the Fifth Circuit, Second Circuit and John Hancock Life Insurance Compa- therefore, we can consider the argument appeal, Young does not attack this anal- multiple district courts that have rejected ny (U.S.A.) v. Employers Reassurance Cor- waived. … Even if not waived, this argu- ysis, instead focusing on Homeward’s the argument that courts have jurisdic- poration (Lawyers Weekly No. 02-251-16) ment would fail. Confronted with two lack of ‘any internal mechanism to en- tion to remove an arbitrator pre-award sure its customers receive accurate and (16 pages) (Casper, J.) (USDC) (Civil Ac- likely bleak alternative outcomes, the dis- simply because the challenge to the ar- consistent information’ and its failure tion No. 15-cv-13626) (June 21, 2016). trict court had ample discretion to con- bitrator invokes a qualification set out in to respond to her demand letter. We are clude that a prompt conversion rather the arbitration agreement. … sympathetic to Young’s allegations: the “John Hancock interprets the FAA to than further diminution was in the best Evidence prospect of losing one’s home is diffi- allow for pre-award removal where the interests of creditors, especially where no cult enough, and Homeward’s inconsis- challenge to the arbitrator is based upon Privilege - Family therapy creditor opposed conversion as hostile to tent and confusing communications ren- qualifications. ... John Hancock takes the its interests.” Where a defendant charged with sexu- dered the process all the more stressful. position that a request for pre-award re- In Re: Hoover, John E. III (Lawyers ally abusing two plaintiffs has moved for But her allegations as to Homeward’s re- moval based upon arbitrator qualifica- Weekly No. 01-173-16) (12 pages) (Kayat- a protective order to prevent a therapist cordkeeping practices at most sound in tions is distinct from a court impermis- ta, J.) (1st Circuit) Appealed from a deci- from disclosing any information about negligence, and ‘a negligent act or acts, sibly intervening to remove a biased ar- sion by Hillman, J., in the U.S. District communications the defendant made at alone, do not violate [Chapter 93A].’ … bitrator because the qualifications-based a session he attended, the motion must Court for the District of Massachusetts. Rather, ‘the defendant’s conduct must request turns upon the express require- be allowed given the psychotherapist-pa- David G. Baker on brief for the debtor-ap- generally be of an egregious, non-negli- ments of the Agreement. ... This distinc- tient privilege. pellant. Robert J. Schneider Jr., Ramona D. gent nature.’ … tion, however, is not supported by the “In this action Plaintiffs Kimberley Me- Elliott, P. Matthew Sutko, Wendy L. Cox, “Moreover, Young fails to demonstrate language of the FAA. As emphasized by deiros and Wendy Sweeney allege that William K. Harrington, Richard T. King, economic injury. …” the Fifth Circuit inGulf Guaranty Life In- between 1979 and 1984, Defendant Kev- Eric K. Bradford and Lisa D. Tingue on Young v. Wells Fargo Bank, N.A., et al. surance Co. [v. Connecticut Gen. Life Ins. in [Matthew] Campbell sexually abused brief for the appellee (Docket No. 15-2383) (Lawyers Weekly No. 01-174-16) (18 pag- Co., 304 F.3d 476, 490 (5th Cir. 2002), the them. … (July 5, 2016). es) (Torruella, J.) (1st Circuit) Appealed FAA does not contain language autho- “Between January and March 1993, Ms. from a decision by Sorokin, J., in the U.S. rizing ‘court inquiry into the capacity of Medeiros received psychological treat- Mortgages District Court for the District of Massachu- any arbitrator to serve prior to issuance ment from Judith Power, Psy.D. During HAMP - Damages setts. Anthony Alva for the plaintiff-appel- of an arbitral award.’ ... The FAA provides that time, Ms. Medeiros attended nine lant. Marissa I. Delinks, with whom Maura no express authorization for pre-award sessions with Dr. Power. The pending mo- Where defendants were awarded sum- K. McKelvey and Hinshaw & Culbertson judicial intervention regardless of the tion concerns the eighth session, which mary judgment on a plaintiff borrower’s were on brief, for the defendants-appellees grounds for removal; whether an arbitra- took place on March 5, 1993, and which complaint over a mortgage modification, (Docket No. 15-1827) (July 5, 2016). tor satisfies a provision of the arbitration was attended by not only Ms. Medeiros, the judgment must be affirmed as to a agreement is a question of the arbitrator’s but also by co-Plaintiff Ms. Sweeney (Ms. breach of contract claim because of the capacity to serve just as much as a chal- Medeiros’ younger sister), Defendant Mr. plaintiff’s failure to plead damages. U.S. DISTRICT COURT lenge regarding the arbitrator’s bias is a Campbell (Ms. Medeiros’ stepfather), and “… On appeal, [plaintiff Susan K.] question of capacity to serve. John Han- non-party Sheila Brayden (Ms. Medeiros’ Editor’s note: The full text of these de- Young does not contend that a modifica- cock’s attempt to rely upon section 5 of mother). Citing the psychotherapist-pa- cisions can be found on Lawyers Weekly’s tion under [the Home Affordable Modi- the FAA to salvage its argument … is un- tient privilege, Mr. Campbell has moved website, masslawyersweekly.com. fication Program (HAMP)] would have availing. Even if John Hancock is correct to (1) preclude Dr. Power from testifying been more favorable than the tradition- that ‘this Court has statutory authority to about or disclosing any document that al modification she received. Instead, Arbitration enter an order compelling [Employers] to sets forth communications between Mr. Young asserts that she suffered damag- Removal of arbitrator - follow the method of naming or appoint- Campbell and Dr. Power during that ses- es in the form of penalties and fees due ing an arbitrator or arbitrators set out in sion; (2) prohibit any person or party who to the defendants’ handling of this mat- Qualifications the Agreement,’ … any order issued pur- currently has possession of any of the re- ter and was forced to pay out-of-pock- Where a plaintiff has filed a motion for suant to section 5 could only instruct that cords created in connection with the ses- et legal expenses prior to this litigation. the removal of an arbitrator designated the method for appointing an arbitra- sion from using the records in any manner But the district court already addressed by the defendant, the motion must be de- tor that is reflected in the Agreement is in this litigation; and (3) require any party these points, finding that the defendants nied because of a lack of judicial authori- followed; section 5 does not provide au- to this litigation, or any attorney for any ‘waived all late fees for the period be- ty to remove an arbitrator prior to the is- thority for judicial inquiry into a partic- party to this litigation, who has possession tween February and June’ and that [Jer- suance of the arbitration award. ular arbitrator’s qualifications. Thus, John of such records to return the records to Dr. ry] DeSalvatore offered pro bono assis- “… The [arbitration agreement] spec- Hancock’s request for pre-award removal Power. … tance. ... Young fails to so much as argue ifies that ‘[a]ll three arbitrators must be based upon Loring’s alleged lack of qual- “Because this is a diversity case, state why this analysis is amiss, let alone iden- officers of Life Insurance Companies or ifications — particularly given that it is law determines the scope of the psycho- tify evidence to rebut these conclusions. Life Reinsurance Companies, excluding undisputed that the Agreement granted therapist-patient privilege. … … however, officers of the two parties to Employers the right to appoint one ar- “Here, the parties dispute whether Mr. “In our previous decision, we warned this Agreement, their affiliates or subsid- bitrator, Employers appointed Loring in Campbell was a ‘patient’ during the March Young that damages would be critical lat- iaries or past employees of any of these a timely fashion and Employers proper- 5, 1993 session, and therefore whether the er in litigation. ... Young’s failure to heed entities.’ … ly notified John Hancock of its appoint- psychotherapist-patient privilege applies this advice is fatal to her claim, and we “… On September 4, 2015, [plaintiff] ment, … — is not authorized by section 5. to him. Plaintiffs argue that Ms. Medeiros therefore affirm the grant of summary John Hancock demanded that [defen- “In the absence of statutory language Continued on page 10 judgment as to breach of contract.” dant] Employers withdraw [Denis] Lor- ing; John Hancock contended that Lor- Chapter 93A claim ing could not serve as an arbitrator be- “Although Young asserts that both de- cause Loring was once employed by one ESSEX COUNTY SHERIFF’S DEPT. fendants violated Chapter 93A, she sent of John Hancock’s affiliates, specifical- DIVISION OF CIVIL PROCESS a demand letter to only [defendant] ly, John Hancock Mutual Life Insurance Homeward [Residential]. Young asserts Company. ... Employers refused to with- “We Serve ALL Types of Process” that her demand letter against Home- draw Loring. … Southern District Office: Northern District Office: ward is sufficient to sustain a Chapter “John Hancock’s request for removal is 45 Congress Street, Suite 4100 354 Merrimack Street, Entrance C, Suite 332 93A claim against [defendant] Wells Far- premised upon John Hancock’s conten- Salem, MA 01970 Lawrence, MA 01843 go based on legal theories of agency and tion that the FAA grants courts a limit- 978-750-1900, ext. 3590 • Fax: 978-741-2585 978-683-7810 • Fax: 978-683-8205 respondeat superior. Even if we were to ed authority to remove party-appointed SHERIFF FRANK G. COUSINS, JR. accept that an agency relationship may arbitrators prior to the issuance of the

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ative in assisting the insurer’s defense of dismissing her state-law claims without Officer McLaughlin told her of his own U.S. DISTRICT COURT a wrongful death suit, the insurer is en- prejudice, the Court will remand the case situation. The record currently before me Continued from page 9 titled to a default judgment on its re- to state court. … If at some point it be- shows that, until 2010, Plaintiff was un- was the only patient at the session and that quest for a declaration that it has no duty comes apparent that the plaintiff is in fact der the impression that she had been ter- the other three attendees were mere ‘par- to defend. alleging a federal claim, such a change minated pursuant to the DOC’s policies, ticipants’ that are not entitled to invoke “… Defendant Santos Remodeling, may constitute an event triggering the albeit with an allegedly shoddy investi- the privilege. Mr. Campbell counters that Inc. is a Massachusetts corporation with thirty-day window for removal pursuant gative procedure. She had no reason to the March 5, 1993 session was a family a principal place of business in Brockton, to 28 U.S.C. §1446(b)(3).” suspect that she had suffered any form of therapy session in which all four attendees Massachusetts. Santos is engaged in the Gracia v. City of New Bedford, et al. discrimination. Thus, until her encoun- were patients. business of landscape architecture, de- (Lawyers Weekly No. 02-050-16) (3 pages) ter with Officer McLaughlin in 2010, “The parties have submitted under seal sign, and construction. … (Saylor, J.) (USDC) (Civil Action No. 15- no amount of due diligence could have a copy of Dr. Power’s treatment notes for “On October 18, 2011, Juan G. Moli- 13260-FDS) (Feb. 4, 2016). caused Plaintiff to gather information Ms. Medeiros. ... The March 5, 1993 ses- na was working on a roof and construc- about male correction officers who had sion is titled ‘Family Session,’ and Dr. tion site in North Kingstown, Rhode Is- Employment had personal relationships with former Power’s notes include observations about land, when he fell to his death. ... Moli- inmates. In order to have known to seek each of the four attendees. [ECF No. 28 at na’s estate brought a wrongful death suit Discrimination - Gender - this information, Plaintiff would have to 6]. Her notes for the next session, which in Rhode Island against multiple defen- Claim preclusion have been clairvoyant. dants, including Santos. … “Moreover, some of the allegedly dis- only Ms. Medeiros attended, state that Where a plaintiff who was terminat- “Amguard [Insurance Company] al- parate dispositions of male officers did ‘[Ms. Medeiros] feels things got better in ed from her job as a correction officer leges that Santos breached its duties un- not even occur until after the first law- family afterfamily therapy session.’ Id. (em- has alleged discrimination on the basis der the policy because it never notified suit had begun. … This situation does phasis added). of gender, her complaint is not barred by Amguard of Molina’s death and has not not bear the signs of ‘gamesmanship’ “At the evidentiary hearing, Dr. Power claim preclusion, nor did she fail to ex- cooperated in Amguard’s defense of the or ‘claim-splitting’ that the doctrine of testified that she only considered Ms. Me- haust her administrative remedies. claim. ... Amguard further alleges that claim preclusion was designed to pre- deiros to be her client, and that she did not “The instant lawsuit is not Plaintiff’s Santos’s failure to cooperate has preju- vent, … nor could the two suits lead to intend to treat Mr. Campbell at the March first legal entanglement with the DOC. diced it in defending the suit. … inconsistent results. ... Thus, I find that 5 session. At previous sessions, according In 2006, the year after she was termi- “In sum, the Court has jurisdiction Plaintiff’s current claims rely on newly to Dr. Power, Ms. Medeiros had expressed nated, Plaintiff4 sued the DOC and the over the subject matter and parties; the discovered factual evidence, which she concerns about her family, and the fam- Commissioner of the DOC in her indi- allegations in the complaint state a spe- could not have acquired with due dil- ily had been invited so that Dr. Power vidual and official capacities, alleging cific, cognizable claim for relief; and igence during the pendency of the first could gain a better understanding of how that the DOC and the Commissioner Santos has had fair notice of its oppor- litigation. Accordingly, these claims are the family operated, for purposes of treat- had violated Plaintiff’s First and Four- tunity to object. Accordingly, the Court not precluded by her earlier suit.” ing Ms. Medeiros and not the family. Dr. teenth Amendment rights of associa- will grant plaintiff’s request for a default Poirier v. Massachusetts Department of Power testified that she did not remember tion and due process by terminating her judgment for declaratory relief. … Corrections (Lawyers Weekly No. 02-051- how the session began or ended, but that for having a personal relationship with a “For the foregoing reasons, judgment 16) (9 pages) (Hillman, J.) (USDC) (Civ- it is not her practice to address privilege former inmate. See Poirier v. Massachu- shall enter for plaintiff as follows: The il Action No. 4:14-CV-40106-TSH) (Feb. or confidentiality before beginning a ses- setts Dep’t of Correction, 532 F. Supp. 2d Court hereby declares that defendant 4, 2016). sion. … 275, 276, 278 (D. Mass. 2008) (hereinaf- Amguard Insurance Company has no “The session at issue took place over ter Poirier I). In 2008, the District Court duty to defend or indemnify Santos Re- twenty year ago, and it is therefore diffi- found that Plaintiff did not have a funda- Evidence modeling, Inc., in connection with the cult to get a complete picture of what took mental right to associate with the former lawsuit entitled Estate of Juan G. Molina Expert - OSHA regulations place. Although Dr. Power states that she inmate, and that the DOC’s rules prohib- v. Senesco Marine, LLC, et al., C.A. No. Where a defendant has moved to ex- only considered Ms. Medeiros to be her iting personal contact with inmates were 12-1810 (Providence Sup. Ct.), due to the clude the testimony of the plaintiff’s ex- client, her notes call it a ‘family session’ sufficient to pass rational basis review. failure of Santos to comply with its con- pert witness, the witness may testify and ‘family therapy session.’ ... Further- … Accordingly, the case was dismissed. tractual duties under the insurance poli- about Occupational Safety and Health more, because it was not Dr. Power’s prac- Plaintiff appealed, and the First Circuit cy issued by Amguard to Santos.” Administration regulations and whether tice to speak about privilege at the start affirmed the dismissal in 2009.See Poir- Amguard Insurance Company v. Santos the defendant complied with those regu- of a session, and no one recalls any such ier v. Massachusetts Dep’t of Correction, Remodeling, Inc. (Lawyers Weekly No. 02- lations, but may not testify as to his opin- statement, it is likely that the session was 558 F.3d 92, 94 (1st Cir. 2009) (hereinaf- 047-16) (6 pages) (Saylor, J.) (USDC) (Civil ions that the defendant owed the plain- not preceded by any statement delineating ter Poirier II). the limits of confidentiality or privilege. Action No. 14-14745-FDS) (Feb. 3, 2016). tiff a duty, that the defendant breached “Under the doctrine of federal claim its duty or that the defendant’s alleged “The purpose of the psychothera- preclusion, parties are barred from re- pist-patient privilege is to protect the ‘jus- breach caused the plaintiff’s injuries. Jurisdiction litigating claims that could have been “This is a negligence action arising out tifiable expectations of confidentiality’ of brought in an earlier suit. … people seeking psychotherapeutic help, Removal - Remand - of a workplace injury. Plaintiff Milton B. “Although not explicitly adopted in Adams, while working as an employee of and based on the foregoing, Mr. Camp- Police shooting this Circuit, other federal courts have es- bell could have justifiably expected that non-party Rockwood Corporation, fell Where a civil rights suit has been re- poused the general rule that claim pre- from a height of approximately 39 feet the statements he made to Dr. Power at moved from Superior Court at the de- clusion does not apply if the new suit is from scaffolding that had been at least the March 5, 1993 session were privileged. fendants’ request, a remand is warranted based on newly discovered evidence that partially constructed by defendant New There can be situations in which family given the plaintiff’s stipulation waiving could not with due diligence have been England Scaffolding, Inc. (‘NESI’). … members attending a therapy session are her federal claim under 42 U.S.C. §1983. previously discovered. … “1. There is no general prohibition mere participants whose communications “This action for negligence and civil “Here, the two lawsuits arose from against an expert describing the law (in- are not privileged. Here, however, given rights violations arises out of the shoot- overlapping events. The first lawsuit cluding specific regulations or a regula- Dr. Power’s contemporaneous treatment ing death of Malcolm Gracia, a fifteen- arose from Plaintiff’s relationship with tory framework). notes, as well as the lack of any statement year-old African American, by New Bed- a former inmate, the DOC’s year-long “2. An expert can describe the law only regarding confidentiality or privilege, the ford police officers. Defendants, the City investigatory process, and the termina- if that description is accurate. If there is Court finds that Mr. Campbell was a pa- of New Bedford and several police offi- tion of Plaintiff’s employment. She chal- a dispute as to the law, it is for the court tient participating in family therapy and cers, removed the case from Superior lenges her termination in both suits, but to resolve. that he may invoke the privilege. Dr. Pow- Court on the basis of 28 U.S.C. §1441(a). under different legal theories. Howev- “3. There is no general prohibition er and all other witnesses are prohibited Plaintiff, the sister of the decedent and er, the second suit relies on additional against an expert describing the applica- from disclosing or testifying about any the personal representative of his estate, facts; namely, the DOC’s allegedly dis- tion of facts to law, or stating a conclu- communications made between Dr. Pow- filed a motion for remand. The Court de- parate treatment of male correction offi- sion based on that application. However, er and Mr. Campbell at the March 5, 1993 nied the motion to remand without prej- cers who also had personal relationships any such testimony must not be, in form session. …” udice, finding that it had subject-mat- with former inmates. Of the six male of- or substance, an opinion as to a disputed See news story on page 1. ter jurisdiction over the case because ficers identified in Plaintiff’s complaint, issue of law. the complaint, which referred multiple she asserts that four were disciplined — “4. All expert testimony concerning Medeiros, et al. v. Campbell (Lawyers times to violations of the decedent’s fed- but not terminated — for similar con- the law must be helpful to the jury in Weekly No. 02-257-16) (5 pages) (Bur- eral constitutional rights, appeared to duct between the years 2005 and 2009. accordance with Fed. R. Evid. 402. Tes- roughs, J.) (USDC) (Civil Action No. 15-cv- state a claim for excessive force under Plaintiff filed her first lawsuit in 2006; timony by an expert concerning an ul- 11547-ADB) (June 27, 2016). the Fourth Amendment and 42 U.S.C. thus, some of the DOC’s actions regard- timate legal conclusion is not likely to §1983. ing her male comparators occurred be- be helpful, and therefore should rarely Insurance “Plaintiff has now moved for reconsid- fore she initiated the first suit, while oth- be admitted. Duty to defend - Notice - eration. … ers occurred after. “5. All expert testimony concerning “[B]ecause the federal claim will be “According to Plaintiff’s filings, how- the law is subject to the limitations of Lack of cooperation dismissed, the Court will decline to ex- ever, she did not have a reason to seek Fed. R. Evid. 403. … Where an insurance company alleges ercise its supplemental jurisdiction information about the treatment of “… [I]t is undisputed that [David L.] that a policyholder has been uncooper- over any state-law claims. Rather than any male colleagues until 2010, when Continued on page 12 www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 11 Bar Discipline Contact Thomas Egan at tom.egan@ lawyersweekly.com

The following summaries were com- dent again let her insurance coverage In 2014, the client made repeated ef- did not notify CPCS or the board of piled by the Board of Bar Overseers based lapse. On April 24, 2014, the respon- forts to obtain repayment of the funds these lapses in coverage. On June 12, on the record filed with the Supreme Ju- dent filed with the board her attor- he had entrusted to the respondent. 2012, during the third lapse in cover- dicial Court. The complete court orders ney annual registration statement, on When those efforts failed, the client age, the respondent filed her annual are available by contacting the clerk of which she knowingly false certified brought the matter to the attention of registration statement with the board. the SJC. that she was covered by professional li- bar counsel. After the respondent be- In it, she negligently certified that she ability insurance. came aware that bar counsel was inves- was covered by professional liability in- SJC No. BD-2016-055 The respondent’s conduct in failing tigating the matter, the respondent re- surance when she was not. At the time, IN RE: SHARON B. ROPER to notify the Board of Bar Overseers paid the client $20,000. the respondent mistakenly believed that her insurance had lapsed with- By failing to place the client’s funds that she had additional time to renew P.O. Box 145 in thirty days of the date the insur- in a separate, interest-bearing trust ac- her coverage before it would lapse. Quincy, MA 02171 ance lapsed violated Mass. R. Prof. C. count, the respondent violated Mass. CPCS later initiated a random audit 8.4(c), (d) and (h), as in effect prior to R. Prof. C. 1.15(e)(5), as then in effect. of a bill submitted by the respondent SJC order of term suspension en- July 1, 2015. By repeatedly and intentionally mis- on a CPCS assigned client matter. At tered by Justice Cordy on May 20, The respondent’s conduct in know- using the client’s funds for his own the time, the respondent was covered 2016, with an effective date of June ingly falsely certifying to the Board of benefit and purposes, the respondent 19, 2016 by professional liability insurance. Bar Overseers that she was covered by violated Mass. R. Prof. 1.15(b), 8.4(c), Shortly afterwards, the respondent vol- Summary professional liability insurance violat- and 8.4(h). untarily obtained a retroactive profes- ed Mass. R. Prof. C. 8.4(c), (d) and (h), On July 27, 2015, bar counsel filed a The respondent was duly admitted sional liability insurance policy with as in effect prior to July 1, 2015. petition for discipline charging the re- to practice in the Commonwealth of an effective date of July 1, 2008, there- The respondent’s conduct in accept- spondent with the above misconduct. Massachusetts on December 20, 1990. by insuring her for possible claims ing appointments from CPCS know- The respondent waived a hearing and From about 1991 to 2013, the respon- filed by her clients for any events oc- ing that she did not have in effect pro- stipulated to the factual allegations of dent accepted appointments from the curring during one of the lapses in fessional liability insurance violated the petition. Committee for Public Counsel Services her coverage. Mass. R. Prof. C. 8.4(c), (d) and (h), as On March 7, 2016, the board vot- (CPCS) for mental health and care and Accordingly, the respondent en- in effect prior to July 1, 2015. ed unanimously to recommend that protection cases. The respondent knew gaged in the following professional the respondent be disbarred from the that she was not permitted by CPCS to In mitigation, at the time of the mis- misconduct. First, by failing to notify practice of law. On May 19, 2016, the accept assigned counsel appointments conduct in issue, the respondent was the board that her insurance had lapsed unless she had in effect professional li- suffering from anxiety and depression, single justice issued an order of disbar- for more than thirty days, she violat- ability insurance with minimum cov- which contributed to the neglect of her ment, effective immediately. ed Mass. R. Prof. C. 8.4(d) and 8.4(h). obligations concerning malpractice in- Second, by negligently certifying cov- erage amounts of $100,000/$300,000 *** or $250,000/$250,000, and a maxi- surance. The respondent is in treat- erage to the board at a time when she ment that has alleviated her symptoms. was not covered, the respondent vio- mum deductible of $10,000. SJC No. BD-2016-057 This matter came before the Board lated Mass. R. Prof. C. 8.4(h). Lastly, The respondent was required by IN RE: ALICIA M. MCKINLEY S.J.C. Rule 4:02, §2A, to certify on of Bar Overseers on a stipulation of by accepting appointments from CPCS facts and joint recommendation for a her annual registration statement P.O. Box 424 when she did not have professional lia- suspension for six months, with three filed with the Board of Bar Overseers North Grafton, MA 01536 bility insurance, the respondent violat- whether or not she was covered by pro- months served and three months ed Mass. R. Prof. C. 8.4(d) and 8.4(h). fessional liability insurance, and to no- stayed for the period of one year on SJC order of term suspension/stayed The respondent’s misconduct was tify the board in writing within thirty condition that the respondent consult entered by Justice Botsford on June mitigated in certain respects. Specifi- days if the insurance policy providing with Lawyers Concerned for Lawyers 10, 2016 cally, during the lapses in professional coverage lapsed or was terminated for (LCL) and follow their recommenda- liability insurance at issue, the respon- any reason without immediate renew- tions. On April 11, 2016, the Board of Summary dent was experiencing difficult per- al or replacement with substitute cov- Bar Overseers voted unanimously to As set forth below, the respondent sonal circumstances, including a seri- erage. The respondent knew that CPCS accept the stipulation and to recom- received a one-month suspension, ous medical illness of a family mem- confirmed that assigned counsel had mend the agreed-upon disposition to stayed on conditions, for accepting ber, which had a negative impact on malpractice coverage based on the cer- the Supreme Judicial Court. The Court assignments from the Committee for her law office management. Addition- tifications on the registration state- (Cordy, J.) so ordered on May 20, 2016. Public Counsel Services (CPCS) with- ally, during bar counsel’s investigation, out professional liability insurance and the respondent consulted with the Law ments filed with the board. *** Between June 22, 2011, and October for certifying insurance coverage to Office Management Program (LO- MAP) to address those issues. And, in 4, 2013, the respondent was not cov- SJC No. BD-2015-041 the Board of Bar Overseers at a time further mitigation, on each occasion, ered by professional liability insur- IN RE: EDWARD J. LANG when she was not covered. ance. Throughout that period, the re- Between 2006 and 2014, the respon- the respondent remedied the lapse in spondent accepted appointments from 1001 Crane Brook Way dent accepted appointments from insurance on her own and without the CPCS and collected legal fees from Peabody, MA 01960 CPCS to represent indigent criminal intervention of a third party. CPCS in knowing violation of her ob- defendants. Under the policies and On March 18, 2016, the parties sub- ligation to have in effect professional SJC judgment of disbarment entered procedures of CPCS, the respondent mitted a stipulation to the board in liability insurance. She did not inform by Justice Cordy on May 19, 2016 was required to maintain profession- which the respondent admitted the either CPCS or the board that her in- al liability insurance. The respondent truth of the above facts and stipulated surance had lapsed. Summary also was required, under S.J.C. Rule to the above rule violations. The par- On March 13, 2012 and March 28, The respondent was admitted to the 4:02, §2A, to certify on her annual reg- ties recommended that the respon- 2013, the respondent filed with the bar of Massachusetts on May 19, 1989. istration statement filed with the board dent receive a one-month suspension, Board of Bar Overseers her attor- On May 19, 2016, he was disbarred for whether she was covered by profes- stayed on the following conditions: (i) ney annual registration statements on converting funds entrusted to him by sional liability insurance. If such insur- the respondent will adhere to the rec- which she knowingly falsely certified a client following the settlement of a ance lapsed or terminated, the respon- ommendations of LOMAP; and (ii) that she was covered by professional li- personal injury case. dent had to notify the board in writing she will continue to maintain retroac- ability insurance. The respondent represented an el- within thirty days. tive professional liability insurance for In May of 2013, the respondent was derly and disabled client in regard to The respondent was not covered by the next two years. selected by CPCS for a random au- a 2003 motor vehicle accident. Follow- professional liability insurance during On April 11, 2016, the board voted dit of one of her bills. The respondent ing a settlement of that claim in 2007, the following periods of time: (1) July to accept the stipulation of the parties failed to comply on multiple occasions the respondent agreed to hold $37,500 1, 2008 through December 5, 2008; and their proposed sanction. with requests by CPCS for proof of in- of the client’s settlement proceeds in a (2) December 5, 2010, through June On June 10, 2016, the Supreme Ju- surance coverage, which resulted in “separate IOLTA and to preserve and 1, 2011; and (3) June 1, 2012, through dicial Court for Suffolk County (Bots- the suspension of her billing privileg- protect these funds for [the client’s] March 29, 2013. The respondent con- ford, J.) entered an order adopting the es on August 15, 2013. On October 4, benefit.” The respondent deposited the tinued to accept appointments from board’s recommendation, effective on 2013, the respondent obtained a pro- funds into a separate IOLTA account. CPCS during these time periods. She the date of entry. fessional liability insurance policy and Thereafter, he disbursed $17,500 of the provided proof of coverage beginning funds in accordance with the client’s on October 4, 2013. CPCS continued instructions. However, through a se- to request proof of insurance coverage ries of transactions between Novem- for 2012-2013. On January 14, 2014, ber 24, 2010, and November 1, 2012, READ US ONLINE the respondent finally informed CPCS the respondent intentionally misused that her prior insurance coverage was the remaining $20,000 in the account terminated on June 22, 2011. for his own benefit, without the client’s masslawyersweekly.com On February 26, 2014, the respon- knowledge or approval. 12 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

That description, however, must be accu- the motion must be denied because (1) transactions on Rife’s website. Accord- U.S. DISTRICT COURT rate, and not misleading; for example, if the plaintiff has met its burden of show- ingly, the Court cannot conclude on the Continued from page 10 asked, Berard must acknowledge the exis- ing that each defendant purposeful- basis of Rife’s website alone that Rife pur- Berard has substantial experience as an tence of the exception. And that descrip- ly availed itself of the privilege of doing posefully availed itself of the laws and OSHA compliance officer, professional tion may not include editorial comment business in Massachusetts, (2) the suit protections of the Commonwealth. … engineer, and safety instructor. After a re- or opinion as to the meaning or purpose arises out of their contacts with the fo- “… This Court is persuaded by Acush- view of his qualifications and other mate- of the regulations. … rum state and (3) the exercise of jurisdic- net’s argument that [defendant] Nex- rials in the record, the Court finds that he “Assuming that he lays a proper factu- tion would not run afoul of the princi- en [Corporation] ‘established a nation- is sufficiently qualified to testify as an ex- al foundation, Berard may explain why, ple of fairness embodied in the Due Pro- wide channel of distribution in the Unit- pert on the application of OSHA regula- in his opinion, the scaffolding at issue did cess Clause. ed States, including Massachusetts’ by tions concerning scaffolding. … not comply with the regulation — for ex- “The arguments surrounding the ex- making its allegedly infringing products “NESI further seeks to exclude Berard’s ample, because it was not ‘fully planked or ercise of personal jurisdiction over the available for sale on golfballs.com, an testimony to the extent that it refers to the decked’ or because Adams was not ‘pro- Moving Defendants in this case largely ‘authorized dealer’ of Nexen products. … requirements of 29 C.F.R. §1926.451(b) tected from falling’ by an appropriate turn on this Court’s interpretation of the Taking as true Acushnet’s allegation that and §1926.451(g). Berard’s opinion as to guardrail or fall arrest system. Any such Defendants’ online presence and con- golfballs.com is an ‘authorized dealer’ of those regulations is that together they re- testimony must be carefully tied to the duct. The Supreme Court has yet to rule Nexen’s allegedly infringing golf balls to quired that the scaffolding used by Adams language of the regulation. He may also definitively on the nature and degree of consumers across the United States, in- cluding Massachusetts, and considering be fully planked and include guardrails for acknowledge any factual assumptions on online activities sufficient to render the Acushnet’s claim that it purchased Nexen fall protection. which his opinion is based, such as wheth- exercise of personal jurisdiction over an products in Massachusetts, … there are “It appears that NESI does not dispute er, as a factual matter, the scaffolding was out-of-state defendant constitutionally sufficient grounds on which to conclude that Berard’s reading of those regulations not ‘used solely by employees performing permissible. Nonetheless, courts at the that Nexen purposefully availed itself of is correct. Instead, the dispute between scaffold erection or dismantling.’ … district and circuit level have reasoned the privilege of doing business in Massa- the parties seems to center on whether the “… [A]ssuming Berard establish- that, in evaluating whether a defendant’s chusetts. … regulations apply at all under the circum- es the factual basis for his opinion, he online activity provides a basis for per- “As for Rife, Acushnet failed to show stances. NESI instead contends that under may testify that NESI violated 29 C.F.R. sonal jurisdiction, ‘the likelihood that that Rife exercised control over the con- an exception to §1926.451(b), the regula- §§1926.451(b) and 1926.451(g). … personal jurisdiction can be constitu- tents of the third-party websites on tion does not apply to ‘platforms used ... “… Berard effectively states a conclu- tionally exercised is directly proportion- which its allegedly infringing products solely by employees performing scaffold sion that NESI owed Adams a legal duty, ate to the nature and quality of commer- were listed for sale, but successfully es- erection or dismantling.’ ... It further con- that NESI breached its duty, and that NE- cial activity that an entity conducts over tablished that Rife purposefully availed tends that either a guardrail or a fall ar- SI’s breached caused Adams’ injuries. the Internet.’ … itself of the privilege of doing business rest system was required under the regu- Those conclusions overstep the bounds of “[Defendants] Dixon [Golf, Inc.] and in Massachusetts under the stream-of- lation, and that Rockwood supplied the permissible expert testimony by effective- Rife [Golf] both operate transactional commerce theory. Rife claims that it nei- necessary fall arrest system. The parties’ ly telling the jury how to decide the ulti- websites on which the allegedly infring- ther formed contractual relationships disagreement as to the applicability of the mate legal issue of negligence.” ing products were available for sale. ... In with ‘brick and mortar’ retailers in Mas- regulations thus turns on factual ques- Adams v. New England Scaffolding, Inc. the case of Dixon, [plaintiff] Acushnet’s sachusetts nor sold the product at issue tions, such as whether the scaffolding at (Lawyers Weekly No. 02-614-15) (18 pag- own purchase of the allegedly infringing to such a retailer, … but its own website issue was being used ‘solely’ by employ- es) (Saylor, J.) (USDC) (Civil Action No. 13- golf balls from Dixon’s website … is ev- contradicts these assertions, as it shows a ees performing ‘erection or dismantling’ 12629-FDS) (Dec. 22, 2015). idence that Dixon purposefully availed number of dealers or retailers (described at the moment Adams fell from the plat- itself of the privilege of doing business as ‘carr[ying] Rife Products’) located in form, and whether Rockwood supplied a in Massachusetts by transacting with Jurisdiction Massachusetts. …” fall arrest system. purchasers in Massachusetts directly Acushnet Company v. Zimventures, LLC, “Under the circumstances, the regula- Personal - Websites through its website. As for Rife, howev- et al. (Lawyers Weekly No. 02-615-15) (19 tions may be admitted in evidence, and Where three defendants have moved to er, Acushnet failed to show that any Mas- pages) (Young, J.) (USDC) (Civil Action Berard may describe those regulations. dismiss a patent infringement complaint, sachusetts customers actually engaged in No. 15-11524-WGY) (Dec. 23, 2015).

BMC JUDGES’ ASSIGNMENTS: JULY 11-15 Corporate A complete list of assignments for all courts for the entire month can be found on our website, masslawyersweekly.com. (Click on “Judges/ Successor liability Courts” at the top of the page.) Following is a list of judicial assignments for the Boston Municipal Court. Please contact the judges lobby Where the plaintiff Massachusetts In- if you have any questions or scheduling concerns: (617) 788-8700. *AJ = Adjunct Administrative Judge, Central Division surers Insolvency Fund has demanded reimbursement from two defendants MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY for litigation expenses incurred in de- July 11 July 12 July 13 July 14 July 15 fending several asbestos-related law- Brighton Donnelly (FJ) Donnelly (FJ) Donnelly (FJ) Donnelly (FJ) Donnelly (FJ) suits, the complaint must be dismissed Joun Joun Joun Joun Joun because the insured parties in those Summerville suits no longer exist and the Fund has BMC Central Breen Breen Breen Breen Breen not presented a convincing basis for Horgan (FJ) Horgan (FJ) Horgan (FJ) Horgan (FJ) Grant holding either defendant liable under Byrne Byrne Byrne Coyne Horgan (FJ) theories of successor liability or pierc- Kelly Coyne Coyne Horgan (FJ) Kelly ing the corporate veil. Lyons Horgan (FJ) Horgan (FJ) Kelly Lyons “Defendant Beacon Roofing Sup- McManus Lyons Kelly Lyons Summerville ply, Inc. (BRS), is a publicly traded dis- Summerville McCormick Lyons Summerville tributor of roofing and complementary Summerville building products, as well as the parent Charlestown McCormick McCormick (FJ) McCormick (FJ) McCormick (FJ) McCormick (FJ) and owner of defendant Beacon Sales Dorchester Coffey, J. (FJ) Coffey, J. (FJ) Coffey, J. (FJ) Coffey, J. (FJ) Coffey, J. (FJ) Acquisition, Inc. (BSAI), d/b/a Beacon Coyne Georges Georges Georges Grant LA Sales Company, Inc. … Georges Grant LA Grant LA Grant LA Kaplanes “Beacon Sales Company, Inc. (Bea- Grant LA Kaplanes Kaplanes Kaplanes Tynes con I), was a Massachusetts corpo- Tynes McManus McManus McManus ration (established in 1928) that sold Tynes Tynes Tynes roofing and building materials. In Oc- East Boston Shopteese Shopteese Shopteese Shopteese Shopteese tober of 1984, Andrew Logie and sev- McDonald (FJ) McDonald (FJ) McDonald (FJ) McDonald (FJ) McDonald (FJ) eral minority shareholders incorporat- Roxbury Dashiell Dashiell Dashiell Dashiell Dashiell ed Roofing Supply, Inc., and purchased DelVecchio DelVecchio DelVecchio DelVecchio DelVecchio the assets and trade name of Beacon I. Fiandaca Fiandaca Fiandaca (a.m.) Fiandaca Fiandaca The new owners then changed Roof- Grant Grant Kelly Poole Poole ing Supply’s corporate name to Beacon Weingarten (FJ) Kelly Weingarten (FJ) Weingarten (FJ) Weingarten (FJ) Sales Company, Inc. (Beacon II). A year Weingarten (FJ) later, Beacon I was formally dissolved. South Boston Bolden (FJ) Bolden (FJ) Bolden (FJ) Bolden (FJ) Bolden (FJ) “From October of 1984 until January West Roxbury Driscoll Coffey, K. (FJ) Coffey, K. (FJ) Coffey, K. (FJ) Coyne of 1989, Beacon II was insured under Sarason Driscoll Driscoll Driscoll Driscoll a general-liability coverage policy by Sarason Sarason Sarason Centennial Insurance Company (Cen- tennial). … For other judges’ assignments: District Court, page 16; Probate & Family Court, page 30 “In the 1990s, a private equity fund, Code, Hennessy & Simmons II, LLP www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 13 THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

original owners sold the assets of Bea- Defendants can put forth no adequate U.S. DISTRICT COURT con II in a fraudulent attempt to evade Civil rights justification for retaliating against an (CHS), approached Beacon II to dis- Beacon II’s liabilities. … Police officer - employee who reports sexual harass- cuss a leveraged buyout. On May 30, “… Because in this case there is no First Amendment ment. For purposes of these motions, evidence of fraud in the acquisition Pomponio has shown that he engaged in 1997, Beacon II shareholders accepted Where a plaintiff has alleged that while CHS’s offer. In July of 1997, the parties of Beacon II by BRS and BSAI, the constitutionally protected speech against court cannot justify imposing succes- working as an Ashland police officer he which Defendants retaliated. incorporated Beacon Holding Corpora- was harassed and retaliated against for tion (subsequently renamed BRS) and sor liability.” “Defendants argue that, even if Pom- Massachusetts Insurers Insolvency reporting sexual misconduct, a mo- ponio has stated a claim for a constitu- its subsidiary BSAI in Delaware. The tion by the defendants for judgment on transaction closed in August of 1997. At Fund v. Beacon Roofing Supply, Inc., et al. tional violation, they are nevertheless (Lawyers Weekly No. 02-053-16) (14 pag- the pleadings must be denied as to a 42 protected by qualified immunity. De- the closing, Beacon II and BSAI execut- U.S.C. §1983 count and claims for inten- ed an Asset Purchase Agreement (APA) es) (Stearns, J.) (USDC) (Civil Action No. fendants only make a general claim of 15-12291-RGS) (Feb. 5, 2016). tional and negligent infliction of emo- qualified immunity and do not direct conveying Beacon II’s trade name ‘Bea- tional distress, defamation and battery. con Sales Company, Inc.’ and assets their arguments to Pomponio’s First Amendment claim; moreover, the re- to BSAI. Section 1983 Employment cord is not sufficiently developed at this “Under the APA, Beacon II sold vir- Overtime - Sale of “[Plaintiff] Edward Pomponio (‘Pom- stage to evaluate this claim. Accordingly, tually all of its assets to BSAI, includ- ponio’) began as a patrol officer for the the court therefore does not find at the ing its trade name, offices, real and -in restaurant Ashland Police Department in March pleading stage that Defendants are enti- tellectual property, inventory, equip- Where a plaintiff claiming to be owed 2008. ... In 2008, Pomponio was disci- tled to qualified immunity. … The mo- ment, vehicles, and its employee con- overtime moved for a preliminary in- plined for the accidental discharge of tion for judgment on the pleading is de- tracts. However, the APA expressly ex- junction to enjoin the sale of a restaurant, his firearm. ... He alleges that immedi- nied as to Pomponio’s Count VIII.” cluded ‘[a]ll Seller’s Insurance Policies the motion should be denied in light of ately following that discharge, and up and rights with respect thereto, includ- the fact that a U.S. magistrate judge has to 2013, he was subjected to name call- Other claims ing rights with respect to retrospective already ordered a writ of attachment of ing, harassment, humiliation, emotion- “Defendants’ arguments relating to premium adjustments.’ ... The APA also the defendants’ real estate up to $250,000 al and physical distress from Defendants Mass. Gen. Laws ch. 231, §59H are de- disclaimed ‘liabilities arising out of or to secure any eventual recovery. Richard Briggs, Michael Dionne, Grego- nied without prejudice to being raised in in connection with ... death of or inju- “… However, the parties sharply dis- ry Fawkes, Christopher Alberini, Robert a special motion to dismiss. … ry to persons occurring on or prior to agree as to the amounts owed to the MacQuarrie, Luann Tomaso, and Allena “To state a claim under Mass. Gen. the Closing Date and involving prod- plaintiff above the amount already se- Downey. … Laws ch. 12, §11I, the Massachusetts ucts manufactured by Seller or services cured. In his complaint, the plaintiff at- “In December 2011, Pomponio re- Civil Rights Act (‘MCRA’), Plaintiffs performed by Seller on or prior to the tached a letter in which the defendants ported sexual misconduct allegedly oc- must allege that ‘(1) the exercise or en- Closing Date.’ … admitted owing the plaintiff $77,214 curring within the police department. … joyment of some constitutional or statu- “Following the closing, Beacon II for services performed. ... The parties “Fawkes, MacQuarrie, and Dionne tory right; (2) has been interfered with, ceased doing business and renamed it- agree that the defendants paid $32,500 subsequently filed a complaint (herein- or attempted to be interfered with; and self Beacon Liquidation. To confuse of that amount before the plaintiff filed after the ‘Union Complaint’) on behalf (3) such interference was by threats, in- matters further, BSAI then incorporat- suit, but the plaintiff claims he was owed of members of the Ashland Police As- timidation, or coercion.’ … ed a new subsidiary under the name much more than $77,214 in unpaid over- sociation. … Outside investigators later “Pomponio does not sufficiently -al Beacon Sales Company, Inc. (Beacon time compensation. determined that the Union Complaint lege threats, intimidation, or coercion. III). On February 28, 2003, Beacon Liq- “The plaintiff initially claimed he contained false and misrepresented facts Pomponio asserts that the Union Com- uidation (Beacon II) filed Articles of worked ninety hours per week for two and was ‘drafted in an effort to embar- plaint was ‘drafted in an effort toembar - Dissolution with the Secretary of the years and between fifty-five and seven- rass Pomponio and Chief Rohmer and rass’ Pomponio and Chief Rohmer and Commonwealth. The Secretary sub- ty-seven hours per week for one and a force them to resign.’ ... In January 2012, ‘force them to resign.’ First Am. Compl. sequently revived Beacon Liquidation half years, entitling him to $165,538 in following the filing of the Union Com- ¶77 (emphasis added). This allegation each year from 2006 to 2009 to enable unpaid overtime compensation before plaint, Fawkes and Dionne informed does not involve intimidation, threats, or ongoing litigation against it. … mandatory trebling. ... In support, he Chief Rohmer that the complaint against moral or physical force sufficient to sup- “The terms of the APA were explicit submitted text messages from the de- Chief Rohmer would be withdrawn if the port a claim under the MCRA. … in stating that neither BRS or BSAI were fendants asking him to help with work investigation regarding the sexual mis- “The filing of the Union Complaint, assuming past or future obligations of tasks outside of his assigned hours. In re- conduct were terminated. … which allegedly contained lies about Beacon II and that the insurance pol- sponse to the Court’s concerns that the “Under the first part of the Decotiis Pomponio in a concerted effort to have icies would stay with Beacon Liquida- estimates seemed inflated and unsup- [v. Whittemore, 635 F.3d 22, 30 (1st Cir. him leave the police department, may, tion for the express purpose of address- ported, he adds that, even if he worked a 2011)] analysis, Pomponio must allege at least at this stage, suffice to allege ex- ing any such liabilities. The Fund does mere ten hours per week of overtime for that his ‘speech touched upon a matter treme and outrageous conduct. … Pom- not dispute this, and focuses its argu- two years, with mandatory trebling, the of public concern’ and that he spoke as a ponio will face an uphill battle if he can- ments instead on the ‘de facto merger’ defendants would be liable for $84,240. citizen rather than as an employee. … He not muster evidence to support the truth and ‘mere continuation’ exceptions. … “The defendants state under oath that has done so. of his allegations or the level of mali- “BSAI does not dispute that Beacon the plaintiff refused to punch the time “First, sexual harassment and oth- ciousness allegedly displayed by Defen- II effectively ceased business operations clock like other employees, and hung er discriminatory misconduct within a dants. … But, at this stage, the intention- upon the sale of virtually all of its as- around after his work hours, occasional- police department are matters of public al infliction claim may proceed and the sets, and that BSAI absorbed its loca- ly helping out, and treated the restaurant concern. … motions for judgment on the pleadings tions, personnel, customers, stocks, and like a second home because of a trou- “Second, Pomponio plausibly alleges are denied as to Pomponio’s Count I. … lines of business. Rather, BRS and BSAI bled home life. They hotly dispute that that he was speaking as a citizen. When “Defendants move for judgment on contend that the theory of a ‘de facto the plaintiff regularly worked overtime ‘public employees make statements pur- the pleadings Count II on the ground merger’ fails because the shareholders except for his work at Gannon Country suant to their official duties, the employ- that they are immune from negligence of Beacon II were compensated in cash Club from Memorial Day to Labor Day ees are not speaking as citizens for First claims under the Massachusetts Tort ($29 million) and did not receive shares 2013. The Court has an inadequate ba- Amendment purposes, and the Consti- Claims Act (‘MTCA’). … of the new company. While the absence sis for resolving this credibility dispute tution does not’ protect their commu- “Although Defendants identified of shareholder continuity is a major fac- as to how much overtime is owed. … nications. However, ‘the mere fact that themselves as employees of the Police tor in determining the existence of a de Even when the possible overtime at Gan- a citizen’s speech concerns information Department in the Union Complaint, facto merger, ‘there is no requirement non, conceded by the defendants, is add- acquired by virtue of his public employ- they were not engaging in conduct that that there be complete shareholder ed to the undisputed amount owed, the ment does not transform that speech they were hired to perform as police of- identity between the seller and a buyer $250,000 security from the writs of at- into employee — rather than citizen — ficers. Additionally, they were allegedly before corporate successor liability will tachment is sufficient. speech.’ … Instead, the ‘critical question’ motivated by a purpose to embarrass and attach.’ … However, shareholder con- “Moreover, the defendants do not ob- is ‘whether the speech at issue is itself or- injure Pomponio and Chief Rohmer, not trol matters. … ject to a court order ‘incorporating their dinarily within the scope of an employ- to serve their employer. ... The motions “While continuity of management is offer to, upon any sale, provide an ac- ee’s duties, not whether it merely con- for judgment on the pleadings are there- a factor in determining the existence counting of all payments of restau- cerns those duties.’ ... While this issue fore denied as to Pomponio’s Count II. … of a de facto merger, it only becomes rant debts from proceeds, and place the may be disputed, the allegations are suf- “Accepting for purposes of this motion so when the acquisition is undertaken net proceeds in escrow.’ ... According- ficient to survive a motion to dismiss. Pomponio’s claim that the statements in with the intent to defraud creditors or ly, any prejudice from a sale is alleviat- “Under the second part of the Decoti- the Union Complaint were false, made dissenting shareholders. … ed. I so order. Otherwise, I adopt the re- is analysis, the court observes wheth- with malice and caused in part his ter- “There is simply no evidence in the port and recommendation of the magis- er Pomponio’s interest in reporting al- mination, he has stated a claim for def- record that Beacon II entered the APA trate judge.” leged sexual harassment outweighed amation. Defendants published in the to ‘shed its debts ... [and] continue its Guevara-Salgado v. Hayes-Meninno, Defendants’ interest in promoting the Union Complaint various statements business operations ... and [to] have no LLC, et al. (Lawyers Weekly No. 02-054- efficiency of the public services the -po about (and naming) Pomponio. These further obligation to pay [creditors].’ 16) (4 pages) (Saris, C.J.) (USDC) (Civil lice department performs. … Taking statements, which accused Pomponio ... Nor is there any evidence that the Action No. 15-12294-PBS) (Feb. 5, 2016). all of Pomponio’s allegations as true, Continued on page 14 14 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

enrolled in the Plan; the fact of enroll- the complaint is granted, and the claims would not address the DOC’s specific se- U.S. DISTRICT COURT ment was within the discretion of First against the individual defendants are curity concerns. Continued from page 13 Tek. But Starmark’s application of that hereby dismissed without prejudice.” “At present, NGE members can only of physical assault, threatening to harm undisputed fact in denying benefits is Camerano v. United States (Lawyers engage in corporate worship in the pres- police officers’ families, misusing police entitled to deference. Consequently, for Weekly No. 02-059-16) (2 pages) (Saylor, J.) ence of an NGE volunteer and do not resources, spreading rumors of a sexual purposes of this dispute, so long as Star- (USDC) (Civil Action No. 15-13075-FDS) have their own designated space for wor- nature about a police officer, and pres- mark acted reasonably, under the terms (Feb. 8, 2016). ship. Plaintiff argues that the lack of a suring that police officer to file a sexual of the Plan, in denying benefits based dedicated worship space imposes a sub- harassment report, were defamatory be- on the lack of enrollment, it is entitled stantial burden that implicates his free- cause they would ‘hold the plaintiff up to to summary judgment. … U.S. MAGISTRATE dom to practice his faith and so violates scorn, hatred, ridicule or contempt.’ … “… No notice of any kind was given his rights under the RLUIPA. This con- Accordingly, the motion for judgment to First Tek in the relevant 30 day peri- tention is not persuasive. Limiting an in- od. Accordingly, this provision did not JUDGES mate’s ability to practice religion, but still on the pleading is denied as to Pompo- Editor’s note: The full text of these de- nio’s Count IV. … give Baby Boy coverage under the Plan. allowing the practice, does not constitute “… The plan did not promise Mr. cisions can be found on Lawyers Weekly’s a substantial burden. … “At the hearing on the instant mo- website, masslawyersweekly.com. tions, Plaintiffs conceded that they do Kurma coverage for his son without “Plaintiff seeks for NGE practitioners not state a claim for tortious interfer- both notices; it delivered on the promis- to be allowed to invite other inmates to ence. Accordingly, Count VI is dis- es it did make by allowing the eventual Prisons attend the four annual NGE cultural ob- missed. … enrollment of Baby Boy as a late ‘special RLUIPA servances. … Plaintiff has failed to estab- “… Because all claims that Paula enrollee’ with coverage effective Janu- lish that the DOC’s policy not to allow Where the plaintiff prisoner, who ac- Pomponio brought except for loss of ary 1, 2011. … The Plan set up a mech- NGE members to invite other inmates to tively practices the faith of the Nation of consortium are dismissed, so is Pom- anism to enroll newborns; Mr. Kurma attend NGE’s four annual cultural obser- Gods and Earths (NGE), alleges claims ponio’s loss of consortium claim. But, failed to engage that mechanism prop- vances creates a substantial burden on under the Religious Land Use and In- because this court is not dismissing all erly and Starmark was entitled to deny his religious exercise. Courts have long stitutionalized Persons Act (RLUIPA) of Pomponio’s underlying claims, the coverage on those grounds. … recognized a need to defer to the judg- for constraints on his ability to practice motions as to Paula Pomponio’s loss of “The plain text of the Plan requires ment and expertise of prison adminis- NGE during his incarceration, summary consortium claim are denied. … that notice of a newborn’s birth be pro- trators in making such decisions. … A judgment must enter for the defendants “Pomponio brings a battery claim vided within 30 days to both Starmark prisoner’s right to practice religion is not because the limits placed on the plain- against Defendant Fawkes for forceful- and First Tek for the baby to be imme- absolute. … The DOC’s policy refusing tiff’s ability to practice religion do not ly removing from Pomponio a sheet of diately covered. Mr. Kurma did not no- to allow inmates to invite other inmates constitute a substantial burden given the paper, a complaint that was filed against tify First Tek of Baby Boy’s birth with- to participate in their Holy days or Reli- defendants’ compelling interest in main- Fawkes. … Courts in various jurisdic- in 30 days of its occurrence and so gious Feast days services does not consti- taining security. tions have held that offensive contact the Plan did not by its terms provide tute a substantial burden as that term has “Plaintiff argues that he is prohibited with an object attached to or identified for coverage. As unfortunate as it has been interpreted; there is no ‘tendency to turned out to be for a formality to bear from celebrating NGE’s four Holy/Hon- coerce.’ Whatever impact the DOC’s pol- with the plaintiff’s body can constitute or Days or participating in other corpo- battery. … Pomponio will have to prove such outsized financial consequenc- icy may have on inmates seeking to au- es, no legal doctrine allows Mr. Kurma rate or group worship. It is obligatory dit NGE, it does not implicate Plaintiff’s that Fawkes’s actions amounted to an that NGE adherents attend Civilization offensive contact battery to prevail on to avoid the unambiguous operation ability to practice his religion or partici- of the Plan in this case. Accordingly, I Classes, which are weekly study meet- pate in NGE’s four cultural observances this claim. But, at this stage, Pomponio ings between members, Rallies, which has stated a claim that Fawkes intended must grant Starmark’s motion for sum- throughout the year.” mary judgment.” are held on the third Sunday of each McGee v. O’Brien, et al. (Lawyers to harmfully or offensively touch an ob- month for members to discuss their les- ject associated with Pomponio’s body. Kurma v. Starmark, Inc. (Lawyers Weekly No. 05-005-16) (20 pages) (Kel- Weekly No. 02-056-16) (22 pages) (Wood- sons, and Parliaments, which are held ley, U.S.M.J.) (Civil Action No. 14-13765- … Therefore, the motion for judg- on the fourth Sunday of each month for ment on the pleadings as to Count XII lock, J.) (USDC) (Civil Action No. 12- MPK) (Feb. 5, 2016). 11810-DPW) (Feb. 9, 2016). members to educate each other on their is denied.” lessons. … Pomponio, et al. v. Town of Ashland, et “Plaintiff’s claim regarding the obser- Insurance al. (Lawyers Weekly No. 02-055-16) (Tal- Tort vance of NGE Holy/Honor Days is moot. LTD benefits - Objective wani, J.) (USDC) (Civil Action No. 15-cv- FTCA - Federally supported The Handbook specifically provides that 10253-IT) (Feb. 5, 2016). NGE adherents be allowed to observe evidence requirement health care center the four Holy/Honor days in group (cor- Where a defendant insurance com- Insurance Where a plaintiff filed a wrongful death porate) worship in the presence of an pany terminated a plaintiff’s long-term Health plan - Newborn complaint naming as defendants the East NGE volunteer. … disability benefits, the matter must be Boston Neighborhood Health Center “Plaintiff is permitted ‘to pray/ac- remanded to the defendant for further Where the defendant, the claims and five individuals, the United States knowledge God individually through- administrative proceedings because (1) processor for a health care plan, de- must be substituted as the proper defen- out the day’ … ‘worship, study and pray the insurer deprived the plaintiff of a full nied coverage for treatment of a plain- dant under the Federal Tort Claims Act. in his cell’ …, and ‘seek spiritual coun- and fair review of his claim and (2) its tiff plan participant’s newborn son, the “… The government contends that seling and guidance from Minister Ran- decision to deny his request for benefits defendant must be awarded summary at the time of the alleged incidents, the dy’ …, the Nation of Islam Chaplain at was unreasonable. judgment on the plaintiff’s ERISA com- East Boston Neighborhood Health Cen- MCI-Norfolk. However, Plaintiff argues “The plaintiff, Bruce Tracia (‘Tracia’), plaint because of the plaintiff’s failure to ter was a federally-supported health care that he is yet unable to engage in Civili- was employed as a business account ex- notify his employer of the birth of his center. With its motion, the government zation Classes, Rallies, and Parliaments, ecutive at Comcast Cable Communi- child within 30 days. filed a certification by the United States insofar as he and other NGE adherents cation Management, LLC (‘Comcast’). “Plaintiff Suresh Kurma’s son was Attorney stating that the five individu- cannot participate in such activities with- On May 10, 2011, he stopped working born approximately two months pre- al defendants were employees of the De- out the supervision of an approved NGE due to ankle related pain, for which he mature. He was immediately hospital- partment of Health and Human Services volunteer. Several Courts of Appeals subsequently underwent surgery. Tra- ized and he remained in intensive care at the time of the alleged incidents and have concluded ‘that the requirement of cia was later diagnosed with chronic re- for over two months. His hospital bills were acting in the course and scope of an outside volunteer did not place a sub- gional pain syndrome and degenerative ran in excess of $667,000. At the time, their employment pursuant to the Feder- stantial burden on the plaintiff’s religious disc disease, among other medical con- Mr. Kurma was a participant in a health ally Supported Health Care Centers As- exercise under RLUIPA,’ … which ends ditions. On December 23, 2013, Tracia care plan for which the defendant, Star- sistance Act of 1992. 42 U.S.C. §233(a). the inquiry. … brought this action, pursuant to the Em- mark, Inc., was the claims processor. “… At the time of the incidents out of “Defendants have demonstrated that ployee Retirement Income Security Act, “Starmark has denied coverage for the which plaintiff’s negligence claims arise, the DOC has a compelling interest, 29 U.S.C. §§1132 et seq. (‘ERISA’), to re- hospitalization of Mr. Kurma’s newborn the East Boston Neighborhood Health namely, prison security and the avoid- cover long-term disability (‘LTD’) bene- son because the child was not proper- Center was a federally-supported health ance of violence, in burdening Plaintiff’s fits under the terms of an LTD benefits ly enrolled in the health care plan. Star- care center, and, according to the Unit- religious exercise. Deference is due to policy that was issued and administered mark contends that Mr. Kurma failed to ed States Attorney’s certification, the five the DOC’s expertise in the area of pris- by the defendant, Liberty Life Assurance notify his employer, First Tek Technolo- individual defendants were acting with- on safety. … By requiring the presence of Company of Boston (‘Liberty’). … Al- gies, Inc. (‘First Tek’) of the birth within in the scope of their employment at that an NGE volunteer when conducting cor- though Liberty determined that Tracia 30 days as required for coverage by the facility. Therefore, plaintiff’s claims for porate worship so as to aid adherents in was disabled and entitled to LTD bene- terms of the health care plan. Mr. Kur- negligence fall within the FTCA and his properly interpreting NGE texts and te- fits for the first 12 months, it concluded ma has filed suit pursuant to the Em- exclusive remedy is against the United nets in order to avoid inciting violence, after the initial period that he no longer ployee Retirement Income Security Act States of America. Defendants have tailored the least re- qualified as disabled under the terms of seeking to recover health benefits for “Accordingly, the government’s mo- strictive means of furthering that inter- the policy. Accordingly, Liberty termi- his son. … tion to substitute the United States of est. … The option of allowing NGE ad- nated his LTD benefits after November “Starmark is not owed any deference America as the proper party defendant is herents to meet solely under the super- 14, 2012. for a determination that Baby Boy was granted, the plaintiff’s motion to amend vision of two correctional officers simply “In connection with its decision to www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 15 THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

circumstances of this case warrant a re- Court determines that the purchase of the kind described in §362(a)(1) through U.S. MAGISTRATE mand to the claims administrator for the estate’s beneficial interest in the Re- (6), which resulted in the restraint on the further administrative proceedings.” alty Trust triggered Goodwill’s right of Debtor’s accounts. E.I. did not willfully JUDGES Tracia v. Liberty Life Assurance Compa- first refusal; 5) whether the principles violate the automatic stay in connection terminate Tracia’s benefits, Liberty relied ny of Boston, et al. (Lawyers Weekly No. 05- set forth in the First Circuit’s decision in with the financial institutions’ actions in primarily on the opinions of third-par- 006-16) (42 pages) (Dein, U.S.M.J.) (Civil Brandt v. Lazard Freres & Co., LLC. (In re restraining the Debtor’s accounts. ty physicians who reviewed the medi- Action No. 13-13248-JGD) (Feb. 10, 2016). Healthco Internat’l, Inc.), 310 F.3d 9 (1st “The next issue is whether E.I. willful- cal records and other information con- Cir. 2002) (administrative expense pri- ly violated the automatic stay through tained in the plaintiff’s claim file, and ority granted to attorneys’ fees incurred its inaction when it refused to release its determined that there was no objective U.S. BANKRUPTCY by defendants who were successful in trustee process attachments postpetition evidence showing that the plaintiff’s im- defending a fraudulent transfer action on January 4, 2016, when it had actu- pairments and associated pain preclud- COURT brought by a trustee against them), ap- al notice of the Debtor’s bankruptcy fil- ed his ability to perform full-time seden- plies to attorneys’ fees incurred by Kava- ing. E.I.’s stated reason for failing to re- tary work. Tracia asserts that Liberty act- Editor’s note: The full text of these de- nagh in defense of Goodwill’s claims; and lease the attachments was the Debtor’s ed improperly by requiring objective ev- cisions can be found on Lawyers Weekly’s 6) whether the potential loss by Kavana- refusal to assure it that he would not dis- idence to support his claim of disabling website, masslawyersweekly.com. gh is sufficient to confer administrative sipate the funds in the account, which pain, and that its reliance on the opin- expense status.” contained both exempt and nonexempt ions of the reviewing physicians was ar- Bankruptcy In Re: Corbett, Daniel P. (Lawyers Week- funds, and because it had the right to bitrary and capricious. In addition, Tra- ly No. 04-008-16) (5 pages) (Feeney, J.) seek adequate protection. cia asserts that Liberty’s decision to ter- Administrative expense - (USBC) (Chapter 7 Case No. 11-13667- “The Court finds that E.I. did not vio- minate his benefits was influenced by a Right of first refusal JNF) (Feb. 9, 2016). late the automatic stay through its inac- tion and failure to take action to effectu- conflict of interest arising from its dual Where the purchaser of a Chapter 7 es- ate a release of the attachments, especial- role in making benefits determinations tate’s beneficial interest in a realty trust Bankruptcy ly considering the unique circumstances and paying claims. … has requested payment of an adminis- of this Chapter 7 case. The Debtor filed “Although Tracia has challenged Lib- trative expense incurred in opposing a Automatic stay - the Motion a mere six days following erty’s decision on a number of different claim by another party of a right of first Trustee process the petition date, and one day after [Mi- grounds, the fundamental issues pre- refusal, the purchaser and the Chapter Where a plaintiff Chapter 7 debtor has chael] Jarmusik credibly testified that he sented by the parties’ motions are wheth- 7 trustee must be ordered to file memo- alleged that a defendant creditor violated first became aware of the Debtor’s bank- er Liberty unfairly imposed an objective randa of law on the legal issues raised by the automatic stay in connection with a ruptcy filing. The Section 341 meeting of evidence requirement on Tracia that was the request. inconsistent with terms of the Policy, state court trustee process order, no stay creditors was scheduled for February 4, “[O]n January 5, 2016, Cathleen E. Ka- violation occurred because the defen- 2016, and the Trustee has 30 days from and whether its decision to terminate his vanagh, Trustee of the April Realty Trust LTD benefits for failing to provide objec- dant’s actions predated the debtor’s filing that date, i.e., March 7, 2016, to challenge (‘Kavanagh’), filed a Request for Payment of his petition. the Debtor’s claim of exemptions. … The tive support for his claim that he was un- of Administrative Expense. … able to perform full-time sedentary work “The matter before the Court is the Debtor’s unilateral demand for release of “[I]n her Request for Payment, Kava- was based on substantial evidence. … ‘Motion for Sanctions Against E.I. Fran- the attachments on December 31st made nagh states that the April Realty Trust “… Here, Liberty reasonably interpret- chise Company and Request for Emer- no distinction between the exempt and was the successful bidder for the estate’s ed the Policy to require objective eviden- gency Determination’ (the ‘Motion’) filed nonexempt portion of the funds in the beneficial interest in the 218 Andover tiary support for Tracia’s claim of disabil- by the Chapter 7 debtor, Kevin M. Rielly accounts. … The Court finds that E.I.’s Street Peabody Realty Trust (the ‘Real- ity. Nevertheless, this court finds that its (the ‘Debtor’), through which he seeks a request that the Debtor not dissipate ty Trust’), which holds title to real estate decision was arbitrary and capricious be- determination that E.I. Franchise Com- the funds was a reasonable, prudent and located at 218 Andover Street, Peabody, cause it failed to inform Tracia what type pany, LLC (‘E.I.’) willfully violated the good faith effort to preserve the rights of Massachusetts, as well as the estate’s in- of objective evidence would be required automatic stay when it attached and lev- all parties. The Debtor’s attorney’s failure terest in a limited liability company, to support his claim of disabling pain. … ied on the Debtor’s checking and broker- to give such assurance was unwarranted namely 218 Andover Street Peabody LLC “… [I]t was well within Liberty’s dis- age accounts pursuant to a state court and unreasonable and has led to the pro- (collectively, the ‘property’), and that, on cretion to require objective evidence trustee process order and refused to re- tracted litigation which could have been August 31, 2012, this Court entered an showing that Tracia lacked the ability lease the attachments on those accounts avoided had he simply agreed to preserve to engage in gainful work activity. The Order Authorizing and Approving the despite notice of the commencement of the status quo while all affected parties problem with Liberty’s argument is that Private Sale of property to Kavanagh. … the bankruptcy case. … determined their rights to the funds. … it never informed Tracia what evidence “Kavanagh argues that it is entitled to “… All actions to secure and serve the E.I.’s refusal to release the attachments was required to make the necessary an administrative expense for fees it in- Trustee Process Order taken by E.I. oc- on the accounts preserved the rights of showing in light of his subjective symp- curred it defending its title to the bene- curred prior to the petition date. E.I. ob- the Trustee. toms, and it relied on the opinions of re- ficial interest in the Realty Trust, includ- tained the Trustee Process Order from “… Moreover, unlike the creditor in viewing physicians who never examined ing opposing Goodwill [Enterprises, Inc. the Middlesex Superior Court on De- Thompson [v. Gen. Motors Acceptance the plaintiff or otherwise obtained ob- d/b/a Auto Mall Collections’] Motion to cember 16, 2015 and served the respec- Corp., LLC, 566 F.3d 699 (7th Cir. 2009)], jective evidence regarding the effect that Modify and responding to Goodwill’s tive summonses on TD Ameritrade and which had possession of the Chapter 13 the plaintiff’s pain had on his ability to complaint in the Land Court. … Citizens on the same date. Although the debtor’s car, E.I. never sought or obtained engage in work-related functional ac- “[O]n or before March 4, 2016, counsel ‘Affidavit of Garnishee’ contained on the possession of the Debtor’s funds as they tivities. Under these circumstances, this to the Chapter 7 Trustee and Kavanagh response of TD Ameritrade to the Trust- were held by third party financial insti- court finds that its decision to deny his shall file post-hearing memoranda of law ee Summons reflects that it received the tutions. Indeed, there is no way to know claim for LTD benefits after November on the legal issues raised by the Request Summons on December 18, 2015, that whether Citizens and/or TD Ameritrade 14, 2012 was not supported by substan- for Payment of Administrative Expense, date is almost two weeks prior to the pe- would have released the funds in the ac- tial evidence. … including, but not limited to, the follow- tition date. The December 31, 2015 letter counts to the Debtor even had E.I. ac- “… In addition to Liberty’s failure to ing: 1) whether Kavanagh has a breach from TD Ameritrade advising E.I. that it quiesced to the Debtor’s demand to re- specify the type of objective evidence of warranty claim under the Order Au- had ‘restrained’ the Debtor’s account was lease the trustee process attachments. In necessary to support a claim for benefits thorizing and Approving Private Sale of dated one day after the petition date, but other words, even if E.I. released the at- based on pain, this court finds that the Interest in 218 Andover Street Peabody this action was not taken by E.I. tachments, the financial institutions may reports of the reviewing physicians, as LLC and Interest in 218 Andover Street “To the extent the Debtor complains have continued to restrict the Debtor’s well as the reports of the vocational ex- Peabody Realty Trust, the ‘Member- that his accounts first became inacces- access to the funds in the accounts to perts, were not reliable, and that Liberty’s ship/Beneficial Interest Purchase Agree- sible after the petition date due to the await further instruction from the Court decision to credit those reports was not ment,’ or the ‘Assignment of Member- prepetition Trustee Process Order, he has and/or the Trustee. …” supported by substantial evidence. … ship Interest;’ 2) whether the principles failed to show that E.I. exercised any con- In Re: Rielly, Kevin M. (Lawyers Week- “… Furthermore, because the opinions set forth in Reading Co. v. Brown, 391 trol or influence over the postpetition ac- ly No. 04-009-16) (22 pages) (Feeney, J.) of Liberty’s vocational experts were pre- U.S. 471 (1968), apply in Chapter 7 cas- tions of the third party institutions where (USBC) (Chapter 7 Case No. 15-15003- mised upon the faulty assessments of the es; 3) whether the present contingent na- the funds were located. Indeed, as noted JNF) (Feb. 11, 2016). file reviewers, this court finds that Lib- ture of any administrative expense Kava- above, E.I. took all of its actions with re- erty acted improperly by adopting their nagh may have, which is dependent on a spect to the Trustee Process Order and Bankruptcy conclusions that Tracia had the ability to judgment against Kavanagh in the pend- Summonses well in advance of the pe- perform the sedentary occupations of a ing Land Court litigation commenced by tition date and Citizens and TD Amer- Sanctions - ‘Safe harbor’ sales representative, customer service Goodwill, affects its allowance as ‘actual, itrade, inexplicably and independent- Where judgment creditors have re- representative and an order clerk, and by necessary costs and expenses of preserv- ly, waited until after the petition date to quested that a debtor and his former legal denying Tracia’s claim for LTD benefits ing the estate’ under 11 U.S.C. §503(b); effectuate the restraint on the Debtor’s counsel be sanctioned for filing a motion on that basis. … 4) whether Kavanagh is entitled to an accounts. E.I. perfected its attachments to stay the creditors from proceeding in “… Tracia asserts that ‘[t]he appropri- administrative expense, either direct- prepetition on December 16, 2015 when Superior Court, the request must be de- ate remedy is reinstatement of benefits ly or through principles of indemnifica- it served the Summonses to Trustees. … nied pursuant to the “safe harbor” rule. retroactive to the date of termination.’ ... tion, against the estate for either damag- In short, the Debtor failed to show that “… The provisions of Fed. R. Bankr. This court disagrees, and finds that the es or attorneys’ fees in the event the Land E.I. intended any postpetition actions of Continued on page 16 16 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

DISTRICT COURT JUDGES’ ASSIGNMENTS: JULY 11 – 15 U.S. BANKRUPTCY A complete list of assignments for all courts for the entire month can be found on our website, masslawyersweekly.com. (Click on the COURT “Judges’ Assignments” bar on the left side of the page.) Following is a list of judicial assignments for some of the larger District Courts in Continued from page 15 Massachusetts for this week. C: Civil session; NRA: No Replacement Available; SA: Special Assignment (i.e. a case that will take all day); ES: Extra Session (judge is on call if extra session is needed); R2 Judge: Judge from Region II; R5 Judge: Judge from Region V. For further P. 9011(c)(1)(A) preclude a request for explanation about any of these codes, call the respective court or regional office that uses the code(s) sanctions initiated by a party unless the party has provided the opposing party MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY with a 21-day period for correcting or withdrawing the offending pleading. The July 11 July 12 July 13 July 14 July 15 so-called ‘safe harbor provisions’ of Fed. BARNSTABLE Hand Hand (a.m.) Hand Edmonds Edmonds (a.m.) R. Bankr. P. 9011 require a party seek- Welch Welch Edmonds O’Grady Julian ing sanctions under the rule to serve a BROCKTON Bernard Amrhein Bernard Bernard Bernard separate motion on the attorney who Guzman Clifford (a.m.) Amrhein Canavan Amrhein is the target of the sanctions request 21 Mandell Leoney Clifford Clifford Leoney days before filing it with the court. Fed. Ostrach Mandell Mandell Mandell Mandell R. Bankr. P. 9011(c)(1)(A). The majori- Ostrach Ostrach Ostrach Ostrach ty of courts has ruled that the safe har- CAMBRIDGE Sragow Sragow Sragow Sragow Sragow bor provisions must be strictly observed Wexler Hogan Hogan Hogan Wexler and that sanctions cannot be awarded No jurors Jennings where the prerequisites to filing have not CHELSEA Nestor Nestor Nestor Nestor Nestor been followed and where an opportunity Livingston Barnes Livingston Livingston Barnes to withdraw the pleading or motion has No jurors all week not been provided, including in circum- DEDHAM Pomarole Pomarole Pomarole Pomarole Clifford stances where an order has been entered McGuinness Hogan Sullivan (p.m.) McGuinness McGuinness Thomas disposing of the offending pleading or McGuinness Ziemian motion. … Although this Court agrees Ziemian that courts should refuse to draw a bright FITCHBURG Loconto, C. Loconto, C. Loconto, C. Loconto, C. Loconto, C. line prohibiting the filing of a Rule 11 or Sargent Sargent Sargent Sargent Sargent 9011 motion in all circumstances where FITCHBURG JURY the offending pleading has been denied, FRAMINGHAM Frank Frank Frank Frank Frank … and that technical compliance with LAWRENCE Rooney Rooney Rooney Rooney Gaffney the safe harbor provisions can be ex- Gaffney Gaffney Gaffney Gaffney Uhlarik cused, … the present case does not pres- Sullivan Brooks Sullivan Sullivan Broadbent ent circumstances for excusing compli- ance with the safe harbor provisions. Broadbent Uhlarik Uhlarik Uhlarik “… [T]he Creditors’ request for sanc- Broadbent Broadbent Broadbent tions set forth in their Opposition was LOWELL Uhlarik Brennan Brennan Brennan (a.m.) Brennan procedurally defective as it was not Crane Caulo Caulo Caulo Fortes made in a separate motion as required Pearson Crane Crane Crane Crane by Fed. R. Bankr. P. 9011(c)(1)(A). Un- Pearson Pearson Fortes der the circumstances of this case, ex- Hourihan cusing compliance with the safe harbor LYNN Conlon Conlon (a.m.) Conlon Conlon Conlon (a.m.) provisions is not appropriate, particular- Flatley Flatley Flatley Flatley Flatley ly where the sanctions request was pro- Machera Lamothe Lamothe Lamothe Machera cedurally flawed when first made, the Mori Swan (a.m.) Wexler Wexler Wexler Court quickly denied the Motion to Stay Wexler (a.m.) and clarified the Creditors’ rights under MALDEN Johnson Johnson Johnson Johnson Johnson the Order dated August 6, 2015, and the Barnes Livingston Barnes Barnes Patten Debtor’s Former Attorneys did not press Patten Patten Patten Patten an argument that the Creditors’ actions PEABODY Barretto Barretto Barretto Barretto Barretto seeking dismissal of the Debtor’s appeal Mori Mori Mori Mori in the Superior Court violated the auto- PLYMOUTH McCallum Sullivan Sullivan Sullivan Edmonds matic stay. Stapleton Barrett Barrett McCallum McCallum “It is significant in the Court’s analysis Julian that the Creditors acted prematurely and QUINCY Coven Coven Coven Coven Coven in a procedurally improper fashion when Moriarty Canavan Canavan Heffernan Canavan they requested sanctions in their Opposi- Orfanello Hourihan Moriarty Moriarty Moriarty tion to the Motion to Stay. The Creditors Ziemian Moriarty (a.m.) Orfanello Orfanello Orfanello should have contacted Debtor’s Former Orfanello Attorneys and indicated their intention to seek sanctions in the event the motion SALEM Brennan Brennan Brennan Brennan Brennan was not withdrawn. They did not first Karsetter Machera Karstetter Karstetter Karstetter request that Debtor’s Former Attorneys Machera Machera withdraw the Motion for Stay in their SOMERVILLE Flynn Flynn Flynn Flynn (a.m.) Flynn opposition before seeking sanctions, and Yee Karsetter Jennings Yee Yee they did not comply with the safe har- Yee (a.m.) Yee bor provisions of Rule 9011. The Debt- SPRINGFIELD Contant (a.m.) Groce Groce Groce Groce or’s Former Attorneys had no opportu- Groce Hadley (a.m.) Hadley Hadley Contant (a.m.) nity to withdraw the motion which the Poehler Mulcahy (a.m.) Poehler Murphy Hadley Creditors contend is sanctionable under Ripps Poehler Ripps Non-Region 6 Judge MacLeod Fed. R. Bankr. P. 9011(b). The Creditors Shea Ripps Sanabria-Vega (a.m.) Poehler Murphy (a.m.) did not comply with the separate motion Smyth Ripps requirement of Rule 9011, which further WALTHAM Flynn Flynn (a.m.) Flynn Flynn Flynn delayed their request for sanctions until Archilla Archilla Archilla after the Court had denied the Motion WORCESTER Loconto, P. Loconto, P. Loconto, P. Loconto, P. Despotopulos to Stay. At the hearing on the Motion to BENCH/JURY Despotopulos Despotopulos Despotopulos McGuiggan McGuiggan Stay, the Debtor’s Former Attorneys did McGuiggan McGuiggan Ginsburg Ginsburg Sabbs not pursue an argument that the Cred- Ginsburg Ginsburg Pellegrini Pellegrini itors were violating the stay. Instead, at Pellegrini Pellegrini D’Angelo D’Angelo the hearing, they reframed their argu- D’Angelo D’Angelo McGill McGill ment as a request for clarification of the McGill McGill Harbour Harbour Court’s order allowing relief from stay to Harbour Harbour defend the appeal. “Although the Court found the Motion For other judges’ assignments: BMC, page 12; Probate & Family Court, page 30 to Stay unmeritorious, a review of all of the circumstances of this case compels www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 17 THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

grand jury could have found that an or- not comply with art. 48, The Initiative, effect of a “yes” vote are misleading and U.S. BANKRUPTCY dinary person under the circumstanc- II, §3, of the Amendments to the Massa- must be amended. es would have realized the gravity of the chusetts Constitution because it contains “… The one-sentence statements assert: COURT danger posed by telling the victim, who provisions that are not related or mutual- “‘A YES VOTE would allow the posses- the Court to conclude that the signing was mentally fragile, predisposed to sui- ly dependent. sion, use, distribution, and cultivation of and filing of the Motion to Stay were cidal inclinations, and in the process of “[A]t the core of the related subjects marijuana, including tetrahydrocannab- not frivolous or made in bad faith, war- killing himself, to get back in a truck fill- requirement is the condition that the ini- inol (THC), in limited amounts by per- ranting sanctions under Fed. R. Bankr. ing with carbon monoxide and ‘just do tiative petition’s provisions share a ‘com- sons 21 and older and would provide for P. 9011. The Court finds that it would be it.’ ... And significantly, the grand jury mon purpose,’ …; put slightly different- the regulation and taxation of commer- inappropriate to excuse compliance with also could have found that the defendant ly but making the same point, the peti- cial sale of such marijuana, marijuana the safe harbor provisions under the cir- — the victim’s girl friend, with whom he tion’s provisions, considered together, accessories, and marijuana products. cumstances of this case. The Court finds was in constant and perpetual contact — must present a ‘unified statement of pub- “‘A NO VOTE would make no change that sua sponte sanctions of the Debtor’s on a subjective basis knew that she had lic policy’ that the voters can accept or in current laws relative to marijuana.’ … Former Attorneys under Fed. R. Bankr. some control over his actions. reject as a whole. … “… As to the title, … the proposed P. 9011 in furtherance of its inherent “... In sum, we conclude that there was “An initiative petition properly may measure has three main features — le- powers is not warranted under the cir- probable cause to show that the coercive contain only subjects ‘which are related galization, regulation, and taxation — cumstances of this case.” quality of the defendant’s verbal con- or which are mutually dependent.’ Art. and that it is unfair and clearly mislead- In Re: Gianasmidis, Savvas V. (Law- duct overwhelmed whatever willpower 48, The Initiative, II, §3. The two subjects ing to characterize the measure solely as yers Weekly No. 04-010-16) (5 pages) (Fee- the eighteen year old victim had to cope in this petition are clearly not ‘mutually ‘Marijuana Legalization.’ We therefore ney, J.) (USBC) (Chapter 11 Case No. 15- with his depression, and that but for the dependent.’ In fact, the opposite seems order that the title be amended to read, 12119-JNF) (Feb. 11, 2016). defendant’s admonishments, pressure, true. That is, whether the diagnostic as- ‘Legalization, Regulation, and Taxation and instructions, the victim would not sessment tests are based on the common of Marijuana.’ have gotten back into the truck and poi- core standards or some previous set of With respect to the ‘yes’ statement, soned himself to death. Consequently, academic standards — the focus of sec- we conclude that it is clearly mislead- SUPREME JUDICIAL the evidence before the grand jury was tions 1 through 3 of the petition — will ing in some respects and order that it be sufficient for a finding of probable cause not affect in any way the commissioner’s amended as follows: COURT that the defendant, by wanton or reckless obligation under section 4 to release be- “‘A YES VOTE would allow persons Editor’s note: The full text of these de- conduct, caused the victim’s death. fore the start of every school year all of 21 and older to possess, use, and trans- cisions can be found on Lawyers Weekly’s “It is important to articulate what this the previous year’s test items in order to fer marijuana and products containing website, masslawyersweekly.com. case is not about. It is not about a per- inform educators about the testing pro- marijuana concentrate (including edible son seeking to ameliorate the anguish of cess; the commissioner’s obligation will products) and to cultivate marijuana, all Criminal someone coping with a terminal illness exist independently of the specific cur- in limited amounts, and would provide and questioning the value of life. Nor is riculum content on which the tests are for the regulation and taxation of com- Manslaughter - it about a person offering support, com- based. … mercial sale of marijuana and marijua- Encouraging suicide fort, and even assistance to a mature “There is significant public debate in na products.’” adult who, confronted with such circum- Massachusetts and the nation about the Hensley, et al. v. Attorney General, et Where a defendant was indicted as a stances, has decided to end his or her life. value of the common core standards; al; Allen, et al. v. Attorney General, et al. youthful offender under G.L.c. 119, §54, These situations are easily distinguishable there is also a great deal of debate about (Lawyers Weekly No. 10-093-16) (38 pag- on a charge of involuntary manslaugh- from the present case, in which the grand the value of standardized testing. That es) (Gants, C.J.) (SJC) Case reported by ter, her motion to dismiss the indict- jury heard evidence suggesting a system- both may be controversial public issues Spina, J., sitting as single justice. John S. ment was correctly denied based on ev- atic campaign of coercion on which the in the domain of elementary and second- Scheft for Josephine Hensley and others; idence that the defendant, at the age of virtually present defendant embarked — ary education, however, does not, by it- Robert E. Toone for the defendants; Thom- 17, encouraged an 18-year-old to com- captured and preserved through her text self, bring them within the related sub- as R. Kiley, of Cosgrove, Eisenberg & Kiley, mit suicide. messages — that targeted the equivocat- jects requirement of art. 48, The Initia- for Matthew John Allen and others; David “We have never required in the re- ing young victim’s insecurities and acted tive, II, §3. The combination of these G. Evans, of New Jersey, submitted a brief turn of an indictment for involuntary to subvert his willpower in favor of her two issues in one initiative petition does for Massachusetts Hospital Association manslaughter that a defendant commit own. On the specific facts of this case, not offer the voters a unified‘ statement and others, amici curiae (Docket Nos. SJC- a physical act in perpetrating a victim’s there was sufficient evidence to support of public policy’ (emphasis added). ... 12106 and 12117) (July 6, 2016). death. We also never have had occasion a probable cause finding that the defen- In other words, we cannot say that ‘the to consider such an indictment against dant’s command to the victim in the fi- similarities of [the petition’s] provisions a defendant on the basis of words alone. nal moments of his life to follow through dominate what each [provision] provides This is not, however, the first time that on his suicide attempt was a direct, caus- separately’ so that the petition, consid- APPEALS COURT we have contemplated the charge of in- al link to his death.” ered as a whole, ‘is sufficiently coherent Editor’s note: The full text of these de- voluntary manslaughter against a de- Commonwealth v. Carter (Lawyers to be voted on ‘yes’ or ‘no’ by the voters.’ cisions can be found on Lawyers Weekly’s fendant where the death of the victim is Weekly No. 10-091-16) (23 pages) (Cordy, ... Rather, because the issues combined website, masslawyersweekly.com. self-inflicted. … J.) (SJC) Case reported by Botsford, J., sit- in the petition are substantively distinct, “… We need not — and indeed can- ting as single justice. Dana Alan Curhan it is more likely that voters would be in not — define where on the spectrum Workers’ (Joseph P. Cataldo with him) for the defen- the ‘untenable position of casting a single between speech and physical acts invol- dant; Shoshana E. Stern (Katie Cook Ray- vote on two or more dissimilar subjects,’ compensation untary manslaughter must fall. Instead, burn with her) for the commonwealth; Eva … which is the specific misuse of the ini- the inquiry must be made on a case-by- tiative process that the related subjects Insurance - Debarment G. Jellison and David J. Nathanson, both case basis. requirement was intended to avoid. ...” Where an employer has been de- of Wood & Nathanson, submitted a brief “Here, the particular circumstances of Gray, et al. v. Attorney General, et al. barred from bidding on state and mu- for Youth Advocacy Division of the Com- the defendant’s relationship with the vic- (Lawyers Weekly No. 10-092-16) (22 pag- nicipal contracts, the debarment or- mittee for Public Counsel Services and an- tim may have caused her verbal commu- es) (Botsford, J.) (SJC) Case reported by der must be affirmed because of the other, amici curiae (Docket No. SJC-12043) nications with him in the last minutes of Cordy, J., sitting as single justice. Thadde- employer’s failure to provide workers’ (July 1, 2016). his life on July 12, 2014, to carry more us A. Heuer and Andrew M. London, both compensation insurance. weight than mere words, overcoming any of Foley Hoag, for the plaintiffs; Juliana de- “The Workers’ Compensation Act, independent will to live he might have Elections Haan Rice (Michael B. Firestone with her) G.L.c. 152 (act), provides that when- had. … The grand jury heard that the Initiative petition - for the defendants (Docket No. SJC-12064) ever the Commissioner of the Depart- victim, after the defendant command- (July 1, 2016). ment of Industrial Accidents (the de- ed him to ‘get back in,’ obeyed, returning Education partment) determines that an employ- to the truck, closing the door, and suc- Where the Attorney General has certi- Elections er has not provided the insurance re- cumbing to the carbon monoxide. fied an initiative petition that would (1) quired by law, ‘a stop work order shall “In our view, the coercive quality of end the use of the Common Core State Ballot question - Marijuana be served on said employer, requir- that final directive was sufficient in the Standards in defining the educational Where plaintiffs have challenged the ing the cessation of all business opera- specific circumstances of this case to curriculum of publicly funded elemen- Attorney General’s certification of an tions at the place of employment or job support a finding of probable cause. tary and secondary students in the com- initiative petition that would legalize, site.’ G.L.c. 152, §25C(1), as amended Those circumstances included the defen- monwealth and (2) require the Com- regulate and tax marijuana and prod- through St. 1989, c. 341, § 82. The stop dant’s virtual presence at the time of the missioner of Elementary and Second- ucts that contain marijuana concentrate, work order takes effect upon service on suicide, the previous constant pressure ary Education to publicly release each the Attorney General did not err in cer- the employer, and remains in effect un- the defendant had put on the victim, and year all of the questions and other “test tifying the petition for inclusion on the til the employer satisfies the commis- his already delicate mental state. In sum, items” included in the prior year’s com- ballot, as the petition contains only re- sioner that it has obtained the required there was ample evidence to establish prehensive assessment tests that all pub- lated subjects and the Attorney Gener- insurance and paid the $100 per day probable cause that the defendant’s con- licly funded students in elementary and al’s summary of the petition was fair, but civil penalty for each day it was in vi- duct was wanton or reckless, under either secondary schools are required to take, the title assigned to the petition and the olation of the law, beginning with the a subjective or an objective standard. The the Attorney General’s certification did one-sentence statement describing the Continued on page 18 18 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com Arbitration “The defendant Bilbo is entitled to ar- of the cell phone records procured by APPEALS COURT bitration of her professional teacher sta- grand jury subpoena, and more than a Continued from page 17 Professional teacher status - tus and, if the arbitrator determines that month after Doxsey and his counsel re- date of service of the order. ... Section FMLA she enjoys such status, ultimately of the ceived the records as part of the Com- merits of any dismissal. The judgment of monwealth’s pretrial notice of discovery. 25C also provides for additional civ- Where a public school teacher has il and criminal penalties against em- the Superior Court is reversed and a new As our case law makes clear, suppres- claimed arbitration over the ending of judgment shall enter on all counts of the sion is not an appropriate remedy ab- ployers who do not obtain the insur- her employment, it must be left for the ance required by law. ... Subsection (10) complaint and counterclaim consistent sent a showing that the erroneously sub- arbitrator to decide whether the teacher with this opinion.” poenaed evidence caused prejudice. … of §25C sets forth one of the addition- attained professional teacher status. al civil penalties that an employer who Plymouth Public Schools v. Education “There was no prejudice shown here. “Defendant Kristen Bilbo taught in the Association of Plymouth & Carver, et al. The relevant question is whether the de- fails to obtain the insurance required plaintiff Plymouth Public Schools (dis- by the act may face. It reads as follows: (Lawyers Weekly No. 11-077-16) (14 pag- fendant received the material sufficient- trict) over the course of five consecutive es) (Massing, J.) (Appeals Court) Case ly before trial in order to prepare a de- ‘(10) In addition to being subject to the school years. She took maternity leave civil penalties herein provided, an em- heard by Gaziano, J., on motions for sum- fense. … Doxsey and his counsel were during two of them. The district tendered mary judgment. Matthew D. Jones (Ash- provided a copy of the records on Sep- ployer who fails to provide for insurance a notice of nonrenewal at the end of the or self insurance as required by this chap- ley F. Call with him) for the defendants; tember 10, 2009; trial began on Febru- fifth year. Bilbo asserts that her service, Michael J. Long, of Long & DiPietro, for ary 17, 2011, allowing Doxsey and his ter or knowingly misclassifies employees, interrupted only by her leave permitted to avoid higher premium rates, will be the plaintiff (Docket No. 15-P-906) (June counsel approximately one and one- under the Family and Medical Leave Act, 30, 2016). half years to prepare. … immediately debarred from bidding or 29 U.S.C. §§2601 et seq. (FMLA), enti- participating in any state or municipal “To the extent that Doxsey claims tles her to professional teacher status, that suppression of his cell phone re- funded contracts for a period of three giving her rights including arbitration of Criminal years and shall when applicable be sub- cords was required because the Com- her dismissal. The district contends that Malicious destruction - monwealth’s procurement of the re- ject to penalties provided for in section Bilbo is not entitled professional teacher fourteen’ (emphasis supplied). The is- Burning - CSLI cords violated his constitutional rights, status or arbitration because she did not the claim fails. Massachusetts does not sue before us, which is one of first im- Where two defendants appeal from serve three consecutive full years. We recognize a reasonable privacy interest pression, is whether the phrase ‘to avoid convictions of malicious burning of conclude that whether Bilbo has attained in cell phone records such as those at higher premium rates,’ as it appears in property and malicious destruction of professional teacher status is for the arbi- issue here. … Doxsey’s motion to sup- subsection (10), modifies the two pre- property over $250, their convictions trator to decide. … press cell phone records was proper- ceding clauses (‘who fails to provide for must be upheld despite their conten- “If Bilbo’s five school years of service, ly denied. insurance or self insurance as required tions that (1) their motions to suppress interrupted only by maternity leave in Commonwealth v. Balboni (and three by this chapter or knowingly misclas- documentary evidence obtained from year one and year four, entitled her to companion cases) (Lawyers Weekly No. sifies employees’) or modifies only the third parties should have been allowed, professional teacher status, then the dis- 11-078-16) (23 pages) (Cypher, J.) (Ap- immediately preceding clause (‘know- (2) their motions to strike certain wit- trict’s action amounted to a ‘dismiss- peals Court) Motions to suppress evi- ingly misclassifies employees’). ness testimony were erroneously denied al’ under §42, triggering the procedur- dence heard by Roach, J., and cases tried “The plaintiff, New England Survey and (3) the evidence of willful and mali- al and substantive rights that accompa- before Fahey, J., in Superior Court. Mark Systems, Inc. (NESS), contends that the cious burning was insufficient. ny professional teacher status — includ- G. Miliotis for Samuel Doxsey; Patrick placement of the comma after the word “... The challenged evidence includes ing arbitration. If not, then the district’s J. Noonan, of the Law Office of Gerald ‘employees’ means that the phrase ‘to historical [cellular site location infor- action was simply a ‘nonrenewal’ under Noonan, for Scott Balboni; Eric A. Haskell avoid higher premium rates,’ modifies mation (CSLI)] and telephone (phone) §41. ... ‘A dismissal is not the same as a for the commonwealth (Docket Nos. 14-P- the two preceding clauses with the effect records associated with [defendant nonrenewal of a contract.’ Laurano v. Su- 697 and 14-P-698) (July 1, 2016). that an employer like NESS — against perintendent of Schs. of Saugus, 459 Mass. Samuel] Doxsey’s cell phone number whom a stop work order issued due to 1008, 1009 (2011), quoting from Down- and credit card records from accounts its failure to have the insurance required ing v. Lowell, 50 Mass. App. Ct. 779, 782 belonging to Doxsey and [defendant Evidence by law, but who was not shown to have (2001). If Bilbo ‘was not dismissed from Scott] Balboni. … Same-sex pornography - acted with the intent to avoid higher in- her position,’ then ‘she was not entitled “There is no dispute that the war- surance premiums — is not subject to to the safeguards provided in G.L.c. 71, rant requirement announced in [Com- Statutory rape automatic debarment. In essence, NESS §42,’ Laurano, supra — including arbi- monwealth v. Augustine, 467 Mass. 230 Where a defendant was convicted of claims that prior to implementing the tration. Thus, the threshold question (2014) (Augustine I)] applies to the statutory rape, indecent assault and bat- penalty of debarment, the department whether Bilbo has professional teacher Commonwealth’s efforts to obtain Dox- tery on a child under the age of 14 and was required to prove that NESS’s ad- status is determinative of whether she is sey’s CSLI in this case. We therefore dissemination of matter harmful to mi- mitted failure to provide insurance was entitled to arbitration of any dismissal. consider whether the Commonwealth is nors, all but the dissemination convic- motivated by a desire to avoid high- “We have previously held that this able to meet the search warrant require- tion must be vacated because evidence er premium rates. The department, question is within the scope of the arbi- ment through a demonstration of prob- of the defendant’s possession of video- on the other hand, asserts that under trator’s authority. … able cause in the affidavit originally sub- tape depictions of adult men engaged in §25C(10), debarment occurs whenev- “As an arbitrator has the authority to mitted to support the §2703(d) order. … same-sex sex was improperly admitted. er a stop work order issues against an determine whether a person ‘shall be “The CSLI sought by the Common- “We have held evidence that a defen- employer who failed to obtain or pro- considered a teacher’ within the mean- wealth had the potential to reveal dant possessed pornography admissible vide the required insurance, regardless ing of G.L.c. 71, § 41, we perceive no rea- whether Doxsey travelled from New to prove a sexual interest in a child vic- of the employer’s intent or motivation. son why an arbitrator does not equally Hampshire to Lexington on the night tim where some feature of the pornog- While we agree with NESS that the pen- have the authority to determine wheth- of the fire, and whether he was near the raphy or the circumstances in which it alty of debarment for three years is a se- er a person ‘has served in the public scene where [Daniel] Feehan’s truck was was found was specifically probative of vere sanction, we do not agree with its schools of a school district for the three set ablaze around the time that the fire that interest. … reading of subsection (10). Instead, we previous consecutive school years’ with- was discovered. … In sum, the affidavit “As the judge in this case recognized, conclude that the words used by the in the meaning of the same sentence of established probable cause to conclude however, and as this court has held, ev- Legislature express its intention that the the same statute. ... that Doxsey was involved in the mali- idence of an adult’s homosexuality is ir- debarment provision contained in sub- “In addition, we have held that an ar- cious burning of Feehan’s truck. … Ac- relevant to sexual interest in children. … section (10) applies when an employer bitrator may properly consider a simi- cordingly, the Commonwealth properly “The judge thus acknowledged what fails to obtain or provide workers’ com- lar question: whether a lengthy break in obtained Doxsey’s CSLI records under the [Commonwealth v. Baran, 74 Mass. pensation insurance, without the need service deprives a teacher of professional Augustine I’s probable cause standard. App. Ct. 256, 287 (2009)] court con- to establish that this was the result of teacher status. … “Doxsey challenges the denial of his cluded, that the myth that homosexu- the employer’s intent to avoid higher “Given ‘the strong public policy favor- motion to suppress his cell phone re- al men have an interest in sex with un- insurance premiums. Accordingly, we ing arbitration,’ … the preference for ar- cords, which, he claims, the Common- derage children has been discredited. affirm the ruling made by the Superi- bitration expressed in the Education Re- wealth unlawfully obtained from Veri- … The use of evidence of an adult’s ho- or Court judge which, in turn, is consis- form Act of 1993, and our prior deci- zon Wireless without prior judicial ap- mosexuality to demonstrate a sexual in- tent with the interpretation followed by sions, we hold that the issue whether Bil- proval. … terest in underage boys (or, indeed, un- the department.” bo has professional teacher status must “At the outset, the Commonwealth derage children of either gender) is thus New England Survey Systems, Inc. be decided by an arbitrator. … properly used its investigative powers impermissible. Given this, we agree with v. Department of Industrial Accidents “Both parties contend that important to bring the cell phone records before the defendant that evidence of his inter- (Lawyers Weekly No. 11-076-16) (20 pag- public policy considerations require a the grand jury. … Although the Com- est in viewing depictions of adult males es) (Agnes, J.) (Appeals Court) Case heard determination in their favor on the issue monwealth did not follow the rule 17(a) engaged in generic acts of same-sex sex, by McIntyre, J., on a motion for judgment of professional teacher status. … (2) protocol mandated in [Common- absent any additional factors like the on the pleadings. Timothy K. Cutler, of “… Because of the view we take on the wealth v. Odgren, 455 Mass. 171 (2009) ones present in [Commonwealth v. Wal- Cutler & Wilensky, for the plaintiff; Doug- threshold question of arbitration, we de- (Odgren)] by moving to resummons the lace, 70 Mass. App. Ct. 757 (2007)], is ir- las S. Martland for the Department of In- cline to address the parties’ public poli- cell phone record evidence in advance of relevant to whether he has an interest in dustrial Accidents (Docket No. 15-P-331) cy arguments, which are in any event un- trial, Odgren was decided after the Com- sexual contact with an underage boy. (June 30, 2016). ripe at this juncture. … monwealth was already in possession “The impropriety of admitting this www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 19 First of Baker’s three SJC picks goes before Governor’s Council Continued from page 3 they don’t give the right political answer,” working and not working and the impact the bench. shift?” Kennedy asked Sheketoff. Caissie said. on the community.” He recalled a “grizzled” and bemused Sheketoff responded that he thinks Hines said that rather than finding out Sentencing guidelines “can be helpful, court clerk who chuckled and asked, of Gaziano “as a centrist” and flexi- where a nominee stands on a particular especially for newer judges,” he said, not- “Judge, who told you the job was going to ble thinker. issue, she believes it is more important to ing that he himself has sought out data on be easy?” “I think what you will find is a per- “find out how willing people are to put the average sentence for various offenses From that, Gaziano said, he was re- son who did not have a particular polit- aside what their views might be.” as he was considering a particular sanc- minded that “judges don’t select winners ical agenda,” Boston attorney Martin F. “What their views are don’t matter tion. However, he added that the federal and losers. They are required to follow the Murphy said of Gaziano. “There is un- for much,” Hines said. “What matters is system is “running away from guidelines.” facts and the law wherever they lead.” der the Massachusetts Constitution a whether you’re willing to struggle with “I don’t think we should be running to- In addition to parents and grandpar- very strong set of principles that protect what you think about a particular ques- ward them,” he added. ents who taught him the value of hard a woman’s right to choose. I see nothing tion and come to the right resolution.” Gaziano tread carefully when asked work and the importance of treating peo- in Judge Gaziano’s background, certainly In addition to the political topics, Ga- about disgraced former state drug lab ple from all walks of life with respect, Ga- in my personal experience with him, that ziano also was quizzed about mun- chemists Annie Dookhan and Sonja ziano made special mention of his daugh- would suggest he would substitute per- dane-yet-vital aspects of court adminis- Farak, noting that litigation is ongoing. ter, Andrea, who died of leukemia two sonal views to the extent he has any for tration. Like Councilor Robert L. Jubin- But he said the situation “really strikes at years after he became a judge. He said he any settled expectations that the law has ville Jr., Gaziano said he had some reser- the heart of the integrity of the system.” is inspired by her “strength and grace ev- provided on reproductive rights.” vations about the move away from human “If people aren’t confident about the fo- ery day.” Clustered into a corner of the packed court reporters to a digital recording sys- rensic testing, it undermines what we do,” Earlier in the day, the word “superstar” hearing room and recording comments tem, noting the number of cases in which he said. was used repeatedly as witnesses testified made on abortion rights were a group words muttered at sidebar or by lawyers Gaziano expressed less concern than on Gaziano’s behalf. of volunteers from NARAL Pro-Choice talking over one another could impact Caissie about the SJC’s issuance of stand- “Judge Gaziano is a superstar in every Massachusetts. Earlier in the day, the or- the outcome. ing orders violating the separation of sense of the word,” Sheketoff said. “He’s ganization held a press conference at As is his habit with all judicial nomi- powers, which she equated to quasi-laws unflappable, he’s honest, he’s straight- which its supporters criticized the gov- nees, Jubinville also asked Gaziano about with economic consequences. She cit- forward, he’s modest and he’s super ernor for not guaranteeing his SJC nomi- addiction and drug cases. ed an example of one such order in the well-prepared.” nees would uphold abortion rights. Gaziano noted that the Superior Court, Probate Court, which requires parent- Also testifying for Gaziano were retired A Baker spokeswoman said the gov- where he sits, is effectively the end of the ing classes. Superior Court Judges Christine M. McE- ernor “is pro-choice and does not be- line for addicts, “like the emergency room Noting his service on the Criminal voy and Suzanne V. DelVecchio. A group lieve in single-issue litmus tests for judi- in the hospital.” Rules Committee, Gaziano said he could of uniformed court officers who work with cial appointments.” “I think courts need to recognize [ad- personally attest to the fact that com- Gaziano attended the hearing in a show of Caissie asked SJC Justice Geraldine S. diction] as an illness and treat it before ments from the public and particular- support, though they did not testify. Hines whether she believed the council they come to see me in Superior Court,” ly members of the bar are weighed very The hearings for Gaziano’s fellow nomi- should have a litmus test for nominees on he said, adding that judges need to be sen- carefully as rules are being developed. nees have been scheduled in two-week in- social issues. sitive to the fact that “relapse is part of re- Gaziano focused his opening remarks tervals, with Superior Court Judge David “It seems that unless nominees give covery” and factor that into the decision on the two aspects of his life he said have A. Lowy coming before the Governor’s certain answers that are consistent with of whether to send someone to jail for shaped him as a person and as a judge: Council on July 20 and Kimberly S. Budd — I’ll just say it — the Democratic agen- failing a court-mandated drug test. his 12 years on the Superior Court bench on Aug. 3. The Governor’s Council is ex- da or the Democratic platform, unless Gaziano noted there has been a “bi- and his family. pected to vote on the nominees one week they give those really progressive answers partisan shift in the debate” over man- Gaziano recounted being deeply trou- after each hearing. on whatever the issue is, the social issue of datory-minimum sentencing. He ex- bled by being forced to rule against an in- Material from a State House News Ser- the day, the sentiment that I hear a lot of pressed support for taking a “hard look” jured plaintiff with inadequate insurance vice story by Katie Lannan was used times is that they’re not qualified because at the fairness of such sentences, “what’s coverage during his early days sitting on in article. THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com individuals render evidence such as that G.L.c. 208, §49(d). In January, 2015, APPEALS COURT introduced here unfairly prejudicial. … APPEALS COURT – the Supreme Judicial Court ruled that evidence to show the defendant’s state Even though there was other evidence the Act’s cohabitation provision applies of mind and sexual interest with respect that the defendant here, who never dis- UNPUBLISHED prospectively, and ‘therefore afford[s] to boys becomes clear if one imagines puted his sexual orientation, was gay, Following are the summaries of decisions no basis’ for modifying an alimony ob- that the evidence was about adult het- and that he owned pornography, the er- issued by the Appeals Court pursuant to ligation established prior to the act’s ef- erosexual pornography and the victim ror in the admission of the explicit de- Rule 1:28. In reporting these unpublished fective date. Chin v. Merriot, 470 Mass. were a girl. No court properly could find scriptions of his interest in same-sex decisions, Massachusetts Lawyers Weekly 527, 528-529 (2015). Accordingly, al- a defendant’s mere possession of adult sex, exacerbated by the instruction on reminds readers that the decisions may be imony obligations established prior heterosexual pornography relevant to its permissible use, was prejudicial. ... cited for their persuasive value but not as to March 1, 2012, continue to be gov- proving his sexual interest in a female “This error with respect to intent and binding precedent. erned by the familiar ‘material change child. … ‘It is no more reasonable to as- state of mind requires reversal on all Editor’s note: The full text of these deci- in circumstances’ test. … As such, if, ‘as sume that a preference for same gender counts except that for dissemination, sions can be ordered at lwopinions.com. a result of cohabitation, the recipient adult sexual partners establishes a pro- with respect to which the jury were ex- spouse’s economic circumstances have clivity for sexual gratification with same pressly informed they could not use this Domestic relations materially changed, then the court may gender children than it is to assume that evidence. … alter or eliminate alimony. However, a preference for opposite gender adult “Although we express no opinion on Alimony - Cohabitation judge may not modify a judgment sole- sexual partners establishes a proclivi- the defendant’s guilt or innocence of the Where a Probate & Family Court ly on the basis of a finding of cohabita- ty for sexual gratification with oppo- very serious charges against him, for the judge reduced the weekly alimony paid tion.’ … site gender children.’ State v. Ellis, 820 reasons described supra, the defendant’s by the former husband from $1,000 to “Here, because the judge in this case S.W.2d 699, 702 (Mo. Ct. App. 1991). convictions on one of statutory rape $550, the modification order must be did not have the benefit ofChin , the “To the extent the Commonwealth charges must be reversed, the verdict set vacated because (1) the Alimony Re- correct standard was not applied. The reads our decision in Wallace, on which aside, and the indictment thereon dis- form Act’s cohabitation provision does judge expressly relied on the act’s ‘co- the judge understandably relied, to sup- missed, and the defendant’s convictions not apply retroactively and (2) there habitation’ provision in reducing the port the admission of this evidence, it on the remaining statutory rape charges was no material change in circum- husband’s alimony obligation in the reads it too broadly. In Wallace, adult and the indecent assault and battery on stances that would otherwise justify 2014 modification judgment. More- pornography was found together with a child under the age of fourteen charge the modification. over, as the wife’s cohabitation began pictures of children and child-sized un- must be reversed, and the verdicts set “On March 1, 2012, the Alimony prior to 2012, that was not a material derwear and was found to have proba- aside. The conviction on the dissemina- Reform Act of 2011, St. 2011, c. 124 change in her living situation as of 2014. tive value. Here, only adult pornogra- tion charge is affirmed.” (act), went into effect. The act’s cohab- … There is no indication that the wife’s phy was found. The admission of the Commonwealth v. Christie (Lawyers itation provision states that ‘[g]eneral earning capacity or expenses had mate- descriptions of these videotapes for the Weekly No. 11-079-16) (19 pages) (Ru- term alimony shall be suspended, re- rially changed between 2012 and 2014. purpose of showing interest in sex with bin, J.) (Appeals Court) Cases tried be- duced or terminated upon the cohabi- In both 2012 and 2014, the wife report- an underage boy was thus error, as was fore Lowy, J., and a motion for new trial tation of the recipient spouse when the ed a weekly contribution from house- the instruction permitting the jury to heard by him. Alexei Tymoczko for the de- payor shows that the recipient spouse hold members of $100. To the extent use the evidence for this purpose. fendant on appeal; Kenneth E. Steinfield has maintained a common household that the judge chose to attribute a great- “The ingrained stereotypes and for the commonwealth (Docket No. 12-P- ... with another person for a continu- er weekly contribution of $524 from the mistaken views still held by some 1659) (July 5, 2016). ous period of at least [three] months.’ Continued on page 20 20 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

plaintiffs. Rather, the plaintiffs argue that the denial of his motion to compel arbi- APPEALS COURT – Attorneys [defendant Savvas] Gianasmidis waived tration was an abuse of discretion. Ac- Contingency fee - his right to arbitrate by defaulting and by cordingly, the May 21, 2015, order deny- UNPUBLISHED failing to file timely and proper motions ing the motion to compel arbitration is Continued from page 19 Arbitration to compel arbitration. … reversed, the judgment is reversed, and wife’s household members, that addi- Where (1) a plaintiff law firm brought “… Here, although a substantial de- the matter is remanded to the Superior tional amount was offset by the wife’s suit to recover a contingency fee from lay was created by Gianasmidis’s fail- Court for further proceedings consistent loss of $500 per week in income follow- the defendant client and (2) after deny- ure to answer the complaint in a timely with this memorandum and order.” ing the termination of child support in ing the defendant’s attempt to have the manner, upon appearing in the action he Russo & Minchoff, et al. v. Gianasmidis 2012. Additionally, the husband’s in- matter proceed to arbitration as provid- moved immediately to compel arbitra- (Lawyers Weekly No. 81-651-16) (8 pages) come had not ‘significantly changed,’ ed for in the fee agreement, a judge en- tion and consistently asserted his right (Appeals Court – Unpublished) (No. 15-P- and his expenses had actually decreased tered a default judgment against him to do so. In addition, at the time he ini- 1170) (June 28, 2016). since 2012. It is therefore apparent that and assessed damages in the amount of tially moved to compel arbitration, a de- the reduction in alimony was not based $1,527,931.30, the order denying the de- fault had not yet entered, no discovery or upon a material change in the parties’ fendant’s renewed motion to compel ar- motion practice had occurred, and trial Workers’ financial circumstances. …” bitration was in error. was not imminent. In these circumstanc- compensation Brumleave v. Ouellette (Lawyers “As to the merits, there is no dispute es, given the strong public policy favor- Weekly No. 81-649-16) (6 pages) (Ap- that the parties had a binding contrac- ing the arbitration of disputes general- Canadian employer peals Court – Unpublished) (No. 15-P- tual obligation to arbitrate any disagree- ly, … we conclude that Gianasmidis did Where the employee, a United States 294) (June 28, 2016). ment concerning the fee owed to the not waive his right to arbitration and that citizen and Massachusetts resident, was

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trust fund is required to pay her benefits defines an ‘employee’ subject to the stat- strates that the employee was entitled to APPEALS COURT – pursuant to G.L.c. 152, §65(2)(e)(i). This ute as ‘any person in the service of Her workers’ compensation under §4(1) be- interpretation of GECA depends upon Majesty who is paid a direct wage or sal- cause she was ‘an employee who [was] UNPUBLISHED an overly restrictive view of the statute. ary by or on behalf of Her Majesty.’ … caused personal injury by an accident injured while working for a locally-en- Moreover, this interpretation of §65(2) The parties do not dispute that [Cynthia] arising out of and in the course of [her] gaged staff member for the Consulate (e)(i) is inconsistent with the guidance of Merlini is an employee under GECA. employment at the Consulate.’ … Sec- General of Canada in Boston, her enti- the Supreme Judicial Court and the plain Rather, the employee contends that pay- tion 7(1) does not apply to the employ- tlement to workers’ compensation bene- language of the statute. … ment of workers’ compensation to her ee in this case because Canada is not re- “The trust fund was established pur- was discretionary under Canadian law. quired by Massachusetts, or any other fits from Canada precludes her from ob- suant to G.L.c. 152, §65, as amended by This misreads GECA’s statutory scheme. State in the United States, to pay into a taining benefits from Massachusetts. St. 1991, c. 398, §85. Section 65(2)(e)(i) … workers’ compensation trust fund. Sec- Thus, a decision awarding her Massa- provides that a person seeking workers’ “Here, the board properly found that tion 7(2) provides, however, that work- chusetts benefits was properly reversed. compensation benefits from the trust the Canadian government does not ers’ compensation may be paid direct- “The employee argues that Canada fund is entitled to such benefits only if have discretion whether to pay workers’ ly by the Consulate or the agency over- paid her workers’ compensation by mis- ‘the claimant is not entitled to workers’ compensation benefits as the employee seeing the Consulate, the Department of take and that the board misinterpreted compensation benefits in any other juris- claims, because §7 of GECA addresses Foreign Affairs and International Trade. the Canadian Government Employees diction’ … only the manner in which compensation … Indeed, the employee received work- Compensation Act (GECA) to disqual- “The question at the heart of this ap- is paid, not whether an employee is enti- ers’ compensation benefits from Canada ify the claim she submitted to the trust peal is whether the employee is entitled tled to such benefits. for six months.” fund. Accordingly, she argues that the to benefits under Canadian law. GECA “A plain reading of GECA demon- Continued on page 22

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of depositions at trial as a substitute for not argued, let alone shown, that his sub- whether to revoke the defendant’s proba- APPEALS COURT – live testimony is permissible. … Here, stantial rights were affected. … tion based upon the substantiated viola- Monahan was present in the court room “There was no error in the scope or tions. … UNPUBLISHED at the time the judge made her rul- the form of the special jury questions “As the defendant correctly observes, Continued from page 21 ing. Monahan testified at trial and was submitted to the jury under appropri- the burden is on the Commonwealth Merlini’s Case (Lawyers Weekly No. 81- subjected to examination by Bayoumi. ate instructions from the judge. The spe- to establish that the defendant violated 652-16) (5 pages) (Appeals Court – Un- During the subsequent colloquy about cial questions properly covered the re- a condition of his probation. Proof that published) (No. 15-P-847) (June 29, 2016). the state of the exhibits to be sent to the quired elements of the type of discrim- the defendant left one Alcoholics Anon- jury, the judge may have made an incor- ination claim brought by Bayoumi. … ymous (AA) meeting early does not con- Employment rect reference about Bayoumi’s failure to If, as requested by Bayoumi, the judge stitute proof that he did not attend five move to seek introduction of the depo- had submitted only one question regard- meetings in that week. Absent proof in Age discrimination sition in evidence. However, any mis- ing MGH’s discriminatory animus, she another form that the defendant attended Where a jury found for the defendant statement was harmless, as the deposi- would have improperly lightened Bayou- fewer than five AA meetings in any week, employer in an age discrimination case, tion was properly excluded on the basis mi’s burden of proof.” the Commonwealth has not proven a vi- the judge (1) did not abuse her discre- of Monahan’s live testimony. Bayoumi v. Massachusetts General Hos- olation of this condition of probation.” tion in her evidentiary rulings, (2) cor- “Fourth, to the extent Bayoumi claims pital (Lawyers Weekly No. 81-654-16) (5 Commonwealth v. Hurlburt (Lawyers rectly instructed the jury on the law and error in the judge’s exclusion of the files pages) (Appeals Court – Unpublished) (No. Weekly No. 81-655-16) (3 pages) (Appeals (3) made no error in submitting special of the four individuals that were hired by 15-P-1093) (June 30, 2016). Court – Unpublished) (No. 15-P-1494) jury questions to the jury. [defendant Massachusetts General Hos- (June 30, 2016). Affirmed. pital (MGH)] to fill the pharmacy tech- Criminal “… First, the judge did not violate nician position, Bayoumi never moved [plaintiff Samir] Bayoumi’s constitution- to introduce this evidence. Because these Probation - Revocation Damages al rights or err by refusing to allow him files were never introduced into evi- Where a judge revoked a defendant’s Offset - to present his case to the jury through a dence, the judge did not err by refus- probation, a remand is necessary be- Settlement with counsel PowerPoint presentation. The exclusion ing to allow Bayoumi to discuss the files cause one of the violations was not of a of the computer presentation fell with- during his summation. … probation condition but instead was of a Where the defendants’ attorney paid in the exercise of the judge’s considerable “Based on our review of the entire release condition. the plaintiff damages in a separate, in- discretion. … charge, we conclude that the judge cor- “As the Commonwealth acknowledges, dependent suit the plaintiff filed against “Second, Bayoumi failed to establish rectly instructed the jury on the govern- one of the five probation violations relied him, that amount should not have been any abuse of discretion in the judge’s rul- ing principles of Massachusetts law. The upon by the judge was not a violation of credited against the amount the defen- ings that excluded Bayoumi’s Massachu- judge could reasonably have concluded a probationary condition but instead was dants owe to the plaintiff. setts Commission Against Discrimina- that the omitted instruction, though a a violation of a release condition. The de- Accordingly, the Superior Court judg- tion (MCAD) evidence. … correct statement of the law, was irrele- fendant does not dispute two of the four ment ordering the total amount of dam- “Third, there was no error in the pre- vant to any facts in evidence and argu- remaining violations. We according- ages against the defendants to be reduced trial exclusion of Matthew Monahan’s ably misleading to the jury. … Even as- ly vacate the order revoking the defen- by the amount of the settlement in the at- deposition. Our procedural rules pro- suming, arguendo, that the instruction dant’s probation, and remand the matter torney’s case is reversed. vide for situations where the admission should have been given, Bayoumi has to the District Court for reconsideration “[Plaintiff K.G.M. Custom Homes, Lawyer to Lawyer Scott Ziegler at [email protected] or at 617-218-8211

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“We do not find the judge’s use of by Mr. Clark’s settlement amount be- taking the gasoline constituted deliber- APPEALS COURT – the one satisfaction rule persuasive in cause KGM’s c. 93A claim against Mr. ate misconduct in wilful disregard of the this instance. First, the Proskys and Mr. Clark is ‘analytically independent of the employer’s interest, within the meaning UNPUBLISHED Clark are not coobligors; and second, the wrong that supported [KGM]’s claim of G.L.c. 151A, §25(e)(2). Inc. (KGM)] argues that the judge erro- claims against the Proskys and Mr. Clark against [the Proskys].’ …” “In her marginal endorsement, the neously concluded that the amount [At- are analytically independent and there- K.G.M. Custom Homes, Inc. v. Prosky, et judge stated that she was reversing the torney Peter] Clark paid in settlement of fore are not a single indivisible harm al. (Lawyers Weekly No. 81-666-16) (8 pag- department’s decision ‘for the reasons KGM’s c. 93A claim against him must be even though they arose under the same es) (Appeals Court – Unpublished) (No. 15- stated on the record,’ though the tran- credited against the amount the [defen- nucleus of operative facts. The Proskys, P-1333) (July 1, 2016). script of the hearing does not contain a dants Karen Monteiro, Stephen J. Prosky through Mr. Clark’s actions, breached statement of reasons. To the extent the and Joan Stormo] owe KGM in this sepa- a contract, i.e., the purchase and sale Unemployment judge intended to adopt by reference the rate contract action. In order to evaluate agreement. Mr. Clark knowingly and argument pressed in the plaintiff’s mem- wilfully misrepresented that there was orandum in support of his complaint for this claim, we first analyze whether the c. compensation another purchaser of the land, which was review in the District Court, the mem- 93A claim against Mr. Clark is preclud- the basis of the c. 93A claim. Misconduct orandum furnishes inadequate basis to ed by the liquidated damages clause in “We address the general release in the Where a decision of the Department overturn the department’s decision. the purchase and sale agreement, and if c. 93A action against Mr. Clark because of Unemployment Assistance, denying “The judgment is reversed. A new not, whether Mr. Clark’s settlement of his the judge found that ‘[t]he reservation of benefits to a city of Malden employee, judgment shall enter, affirming the deci- individual claim can be allocated to the rights language in KGM’s release of Clark was reversed in District Court, the judge sion of the department.” judgment against the Proskys. … does not alter the Proskys’ rights because erred in her application of the standard Nolan v. Director and Commissioner of “Above all, even if we assume, arguen- they were not parties to that agreement.’ of review to the administrative record, the Department of Unemployment Assis- do, that the liquidated damages clause of The general release states, ‘nothing in under G.L.c. 30A, §14(7). tance, et al. (Lawyers Weekly No. 81-668- the purchase and sale agreement shield- this agreement shall be construed to re- “In the present case, the review exam- 16) (4 pages) (Appeals Court – Unpub- ed the Proskys from liability under G.L.c. lease any of the claims asserted in, or in iner found that the plaintiff took gasoline lished) (No. 15-P-907) (July 1, 2016). 93A, §11, the provision has no effect on any other way affect or impact, the mat- for personal use without authorization, the independent liability of Mr. Clark, ter of K.G.M. Custom Homes, Inc. v. Ste- and that the plaintiff did not request au- * * * who was not a party to the agreement. … phen Prosky.’ The judge also stated that thorization to take the gasoline because Although Mr. Clark was acting as a fidu- ‘KGM and the Proskys explicitly agreed he knew that the director of public works Appeals ciary of the Proskys, he is still personal- [in the purchase and sale agreement] would most likely have denied such a re- ly liable for his own misrepresentation in that in case of a breach of contract by the quest and required the plaintiff to ob- Judgments affirmed violation of G.L.c. 93A, §11. … Proskys, KGM’s loss would be calculat- tain reimbursement (for monies he ad- The Appeals Court has affirmed, -pur “The judge applied the one satisfaction ed under the liquidated damages provi- vanced on behalf of the water and sew- suant to Rule 1:28, judgments in the fol- rule to determine that KGM can only re- sion in their contract.’ The provisions of er department) by filing an invoice and lowing cases. Although the decisions do cover once for a single, indivisible harm the purchase and sale agreement, howev- receipt. The review examiner’s finding in not appear to address any substantive is- and allocated Mr. Clark’s $595,000 settle- er, could not be applied to limit KGM’s that regard was supported by substantial sues of law, the full text of each decision ment to the amount the Proskys owed to rights against Mr. Clark. The amount of evidence. We likewise agree with the re- may be ordered using the appropriate KGM. … damages should not have been reduced view examiner that the plaintiff’s act in Continued on page 27

LAWYER TO LAWYER Scott Ziegler at [email protected] or at 617-218-8211

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Boston Bar Association; 5:30- House, Newburyport; Info: 28 | THURSDAY 10 | WEDNESDAY July 7:30 p.m.; 16 Beacon St., Carole Wagan, carolewagan@ Boston; Info: Neha Deshpande me.com, 617-875-5297 What’s It REALLY Like Becoming An Evidence Master; [email protected] Working In Boston’s Tech Sponsor: Massachusetts 11 | MONDAY ‘First Look’ At Transgender Space; Sponsor: Boston Bar Academy of Trial Attorneys; Patent Office Exam Course Updates In Employment, Association; 12:30-2 p.m.; 16 3-4:15 p.m.; Webinar; Info: Family Law Mediation 2016; Sponsor: Practicing School, Health Care Access Beacon St., Boston; Info: Neha www.massacademy.com Workshop 2016; Sponsor: Law Institute; 8 a.m., course MCLE; 8:30 a.m.-5 p.m.; 10 And Public Accommodations Deshpande, ndeshpande@ continues through July Law; Sponsor: MCLE; 12-2 bostonbar.org Winter Place, Boston; Info: 17; Suffolk Law School; www.mcle.org p.m.; 10 Winter Place, Boston; 18 | THURSDAY www.pli.edu Info: www.mcle.org Employee Leave And Accom- Summer Networking Series Ses- Trial Advocacy Workshop modations Law In Massachu- Developing Nursing Home sion III; Sponsor: Massachu- 2016: Practical Strategies For setts: Nuts And Bolts, Nuanc- Rules To Frame Your Case; setts Bar Association; 5:30-7 Drafting, Updating, Enforcing es, And Navigating The In- Sponsor: Massachusetts 19 | TUESDAY p.m.; Tia’s, 200 Atlantic Ave., And Challenging Employee teractive Dialogue Process; Academy of Trial Attorneys; Handbooks And Policies; Guns, Drugs And Money: Get Sponsor: MCLE; 2-5 p.m.; 10 Boston; Info: www.massbar.org 3-4:15 p.m.; Webinar; Info: Sponsor: MCLE; 8:30 a.m.-5:30 Street-Smart And Learn The Winter Place, Boston; Info: www.massacademy.com Plymouth County Bar Associ- p.m.; 10 Winter Place, Boston; Best Way To Litigate Gun And www.mcle.org Info: www.mcle.org Drug Cases; Sponsor: MCLE; ation Goes To The Theatre; Massachusetts Black Sponsor: PCBA; 5:30-10:30 Lawyers Association 1-5 p.m.; MCLE Conference Maximizing The Value Of Center, 10 Winter Place, Boston; M.I.S.T. 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Sponsor: Women’s Bar Golf Tournament; Sponsor: org or 617-778-1984 Foundation; 5-7 p.m.; Ropes 3 | WEDNESDAY Worcester County Bar Lawyers Concerned For & Gray, Boston; Info: MBA Monthly Dial-A-Law- Association; 10:30 a.m.; Lawyers; Sponsor: LCL; 7:30- What’s It REALLY Like www.womensbar.org yer Program; Sponsor: Mas- Kettlebrook Golf Club, 8:15 a.m.; 1585 Mass. Ave., Working In Legal Services: sachusetts Bar Association; Paxton; Info: Candice Staples, Wasserstein Hall, Room WCC Summer Career Series; 5:30-7:30 p.m.; Statewide di- 508-752-1311 3008, Cambridge; Info: Lottie, Sponsor: Boston Bar 26 | TUESDAY al-in: 617-338-0610; Info: 617-482-9600 Association; 12:30-2 p.m.; 16 Massachusetts Paid Sick Leave www.massbar.org Beacon St., Boston; Info: Neha Legal Marketing Association Law: Let The Enforcement Summer Associate, Law Clerk Deshpande, ndeshpande@ Summer Soiree; Sponsor: LMA Family Lawyer’s Discovery Begin; Sponsor: Massachu- And Intern Reception; bostonbar.org New England; 6 p.m.; Sterlings, Toolkit: Unearthing Informa- setts Bar Association; 12:30-2 Sponsor: Women’s Bar 60 State St., Boston; Info: tion In A Family Court Case; p.m.; 20 West St., Boston; Info: Association; 6-8 p.m.; www.legalmarketing.org Duane Morris, Boston; Info: 18 | MONDAY Sponsor: MCLE; 2-5 p.m.; 10 www.massbar.org www.womensbar.org Winter Place, Boston; Info: Workers’ Comp Settlements Af- Admiralty Law For The GP; www.mcle.org Let’s Get Real 2016: Surviving Sponsor: Greater Newburyport 27 | WEDNESDAY ter ‘DiCarlo’; Sponsor: Massa- chusetts Bar Association; 4:30- And Succeeding As A Diverse Bar Association; 10 a.m.-1 p.m.; Young Lawyers Division Quest 7 p.m.; Holiday Inn, Taunton; Attorney In Boston; Sponsor: Maritime Museum/Custom Night At Boda Borg; Sponsor: 4 | THURSDAY Info: www.massbar.org Massachusetts Bar Association; Seminar: A Year In Municipal 6-9 p.m.; 90 Pleasant St., Mal- Government And Finance; den; Info: www.massbar.org Sponsor: Massachusetts 22 | THURSDAY Calendar submissions Municipal Lawyers Association; Grand Rounds: Probate & 11:30 a.m.-5 p.m.; The Publick Practicing With Professional- should be sent to: Family Court; Sponsor: House, Sturbridge; Info: James ism; Sponsor: Massachusetts Alexandra Lapkin, Massachusetts Bar Association; Lampke, 781-749-9922 Bar Association; 8:30 a.m.- Massachusetts Lawyers Weekly, 8:30 a.m.-1 p.m.; Suffolk 4:30 p.m.; University of Mas- 10 Milk St., 10th Floor, Probate & Family Court, Brooke sachusetts Lowell Inn & Con- Boston, MA 02108; Courthouse, Boston; Info: 7 | SUNDAY ference Center, Lowell; Info: or emailed to Barbara Siegel, 617-423-0648, www.massbar.org [email protected]. Ext. 123 Solo & Small Firm Commit- tee Annual Summer Pot Luck MBA House Of Delegates Please send all items at least three weeks Successful Appellate Strategies; Picnic; Sponsor: Women’s Bar Meeting; Sponsor: in advance of the event. A contact name Sponsor: Massachusetts Association; 11 a.m.-1 p.m.; Massachusetts Bar Association; and phone number must be included with Academy of Trial Attorneys; Castle Island, Boston; Info: Ai- 4-6 p.m.; 20 West St., Boston; each submission. 3-4:15 p.m.; Webinar; Info: mee Bonacorsi, bonacorsi.law@ Info: Gwen Landford, www.massacademy.com gmail.com 617-338-0694 www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 25 The Practice Advice for the busy lawyer Savvy marketing: where to start, where to focus By Ellen M. Keiley Social media Leveraging social media is another sim- One of the biggest ple and effective way to market. In to- challenges for law- day’s world, active engagement on Linke- yers — who are often dIn, Twitter and Facebook can’t be over- forced to wear many stated. It’s amazing how much reach just hats trying to balance one post or “Like” can have when viewed the practice of law and shared. with family and other Participation in social media doesn’t activities — is focusing on marketing. have to take a lot of time and effort if one In an advanced information age stays disciplined and focused in his or her with a range of communications tools, approach to using this powerful commu- lawyers often don’t know where to nications tool. start or where they should focus their As with any marketing activity, social marketing efforts. That’s not surpris- media has a learning curve. I advise any ing, since many were not formally lawyer who doesn’t understand how to use trained in marketing and may find the it to simply ask others, particularly those extent of their education in this area in marketing and business development. to be a “Marketing 101” college class. Additionally, there is a wealth of infor- Still, any successful lawyer will tell mation and how-to videos on social me- dia strategy on the internet. you savvy marketing is a necessity. THINKSTOCK The most effective strategy for law- Speaking and writing engagements yers is to produce a marketing and Another way for lawyers to market doesn’t mean they shouldn’t ever step that often induces fear and hesitation, business development plan specif- themselves is to establish themselves as ic to their unique strengths, inter- out of their comfort zone and try mar- since it involves walking into a room thought leaders through speaking and ests and expertise. Randomly engag- keting activities that, at first, may feel filled with strangers — a prospect writing opportunities. The key is to focus ing in various marketing activities is uncomfortable. However, it does make many find overwhelming. on one’s area(s) of expertise. not effective. sense to focus the bulk of their mar- There are other ways to network. Directing one’s marketing efforts to the The more lawyers focus their ener- keting time on activities that they en- Community engagement, committee right places will inevitably put a lawyer gy in the right places, the better. That joy doing and in which they have the involvement, small group get-togeth- ahead of the game and free up time for most expertise. ers and one-on-one lunches, to name him or her to focus on practice, clients Ellen M. Keiley is president of EMK a few, are all effective ways. and family. Consulting Group, which offers busi- Networking The key is consistency. Lawyers Develop a plan of action, schedule time ness development coaching and consult- This is a very effective method for should be networking, interacting every week for marketing and business ing, public relations, and training for law lawyers to market themselves, in- outside their usual social circle, and development activities, be disciplined, firms. She can be contacted at ellenkei- crease brand awareness, and develop getting their name out in a way that and stay accountable. That’s the recipe [email protected]. new business leads. Still, it’s an activity works for them. for business success. Loans: learn how to negotiate for mutual benefit By Edward Poll to use the loan for and Rapid growth. Di- how you in- saster recovery. Op- tend to pay it erating consider- ations. Technolo- back. Include gy expenditures. all supporting financial information Those are all reasons and consider taking your accountant to that you might need the meeting, too. Be prepared to show a loan in the business proof of and answer questions about of law. Getting a loan involves some the following: groundwork, but if you have a good • Whether your accounting is done working relationship with your bank, on a cash basis (collections and expens- the process should run smoothly. And es only, which is more common for if you have prepared properly, you will small firms) or an accrual basis (which likely see a desirable result. also includes work in progress and ac- When you’re ready to request a loan, counts receivable); THINKSTOCK you need to set up a meeting with your • What your current profit margin is and whether you are implementing any banker. By this time, your banker should filing fees and other charges. Always re- the opportunity to negotiate and com- have all the essentials to evaluate wheth- cost-containment strategies; • How much you have in work- quest a commitment letter for the loan promise by accepting the lesser amount, er you will receive the loan. that the bank agrees to give you. which is easier to do if you have asked The essentials include your credit ing capital; In general, it is a good idea to ask for for more than you needed, in exchange score, your “4 C’s” of credit profile, busi- • What your current receivables are more money than you actually need be- for something such as a longer term or ness plans and business documentation. and how they reflect your realization cause your loan request can be received reduced interest rate. Just to be sure, take copies of your plan rates when expressed as a percentage of in one of four ways: The lending process should be the summaries and important documents booked hours billed and a percentage of with you to the meeting. billed hours collected; 1. You get everything you ask for. culmination of everything that you have You should also prepare a one-page • Where you stand on your utilization 2. Your request is granted but for a established at the bank and should val- summary, sometimes called an execu- rate, i.e., the percentage of a workweek, lower amount than you asked for. idate your firm’s viability and future tive summary, stating what you want usually expressed as an annual average, 3. Your request is granted in full growth prospects. that you actually bill; but at a higher interest rate than Preparation and groundwork, as in Edward Poll is the principal of LawBiz • A listing of work in progress by cli- you expected. everything else, are critical to the bank- Management. He coaches lawyers and is ent, which will become accounts receiv- 4. Your loan application is rejected. ing relationship. A good banker will the creator of “Life After Law,” a program able at a future date. If you’ve established an effective bank- make it possible for you to grow your that helps attorneys plan for profitable Make sure that you understand the ing relationship, the latter three eventu- business within the parameters required exits. He can be contacted at edpoll@law- time frame for approval and that you are alities are less likely. But if the second or by both the bank and the federal regula- biz.com. clear about all fees involved, including third alternative occurs, you may have tory agencies. 26 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com

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injury” within the meaning of G.L.c. 265, of counsel) (No. 14-P-1830) (July 5, 2016). disturbing history of repeated violations APPEALS COURT – §13A; testimony by the victim that he was • Commonwealth v. Odusina (Lawyers of the Open Meeting Law by Wayland unable to see out of his right eye for approx- Weekly No. 81-674-16) (7 pages) (assault town officials in recent years, evidenced UNPUBLISHED imately one week following the defendant’s and battery; larceny over $250; defendant’s by the cases cited above, it is time to en- Continued from page 23 assault; jury instruction that there is no re- argument that the trial judge erroneously ter a permanent injunction in the proce- “Lawyers Weekly No.” listed after the quirement that the loss or impairment of a denied his motions to exclude the victim’s dure detailed below, against that town’s case name. bodily function be substantial in order to medical records and for a missing witness public officials ordering them to comply • Commonwealth v. Moody (Lawyers meet the definition of a serious bodily inju- instruction) (No. 14-P-1984) (July 5, 2016). with the state Open Meeting Law in con- Weekly No. 81-650-16) (5 pages) (posses- ry) (No. 15-P-549) (July 1, 2016). • Commonwealth v. Soto (Lawyers ducting the people’s business. … sion of cocaine and heroin with the intent • Commonwealth v. Putnam (Lawyers Weekly No. 81-675-16) (4 pages) (assault “Orchestrated private exchanges of to distribute; defendant’s argument that his Weekly No. 81-663-16) (7 pages) (causing and battery by means of a dangerous weap- opinions on the professional compe- motion to suppress was erroneously denied) the death of Luke Marshall by negligent op- on; defendant’s argument that a witness’s tence of an employee between individual (No. 15-P-1043) (June 28, 2016). eration of a motor vehicle; defendant’s con- out-of-court witness identification was members of a public body and its chair, • Ry-Co International, Ltd. v. Vonider- tention that his trial counsel was constitu- tainted “by unduly suggestive circumstanc- as occurred here, are prohibited. … stein, et al. (Lawyers Weekly No. 81-653- tionally ineffective for failing to request a es” and that a police officer’s trial testimo- “… There was no benefit of public -in 16) (7 pages) (Land Court judge’s ruling jury instruction on “intervening and su- ny regarding the assembly of a photograph- put; the communications were done in that, by application of G.L.c. 260, §33, the perseding cause”) (No. 14-P-838) (July ic array was improperly admitted, each be- secret; the public had been cut off from plaintiff’s mortgage had been discharged, 1, 2016). ing an error that created a substantial risk access to the contents of the evalua- five years after the expiration of its stat- • Commonwealth v. Vallejo (Lawyers of a miscarriage of justice) (No. 14-P-1002) tions; and this clever-by-a-half stratagem ed term, as a matter of law; plaintiff’s ar- Weekly No. 81-664-16) (13 pages) (armed (July 5, 2016). of skirting the clear legislative require- gument that §33 works an injustice by in- home invasion, kidnapping, aggravated • Cooper v. Superintendent, Massachu- ments set forth by the law of an Open fringing on RCI’s vested real property inter- rape, armed robbery and assault and bat- setts Correctional Institution, Norfolk, et Meeting was plainly disregarded by a ests; plaintiff’s contention that §33’s peri- tery by means of a dangerous weapon; de- al. (Lawyers Weekly No. 81-676-16) (16 Board that seems to have cared neither od of repose must be extended to six years fendant’s argument that (1) the admission pages) (inmate’s appeal from a judgment of for the law, not their sworn obligations to (from the current five-year period mandat- of recordings of his codefendant’s telephone the Superior Court affirming a guilty find- that law. Instead, by the time the public ed by §33), or that its mortgage be equita- calls from jail to third persons including his ing against him in a prison disciplinary meeting occurred, the issue of the town bly reinstated, in order to prevent an un- sister violated the defendant’s constitution- proceeding for unauthorized possession of administrator’s continued tenure had al- fair windfall inuring to the benefit of the al right to confrontation; (2) the recordings an item likely to be used in an escape in vio- ready been decided, and the meeting was property owners) (No. 14-P-1083) (June of telephone calls made by the codefendant lation of Department of Correction regula- a charade. 29, 2016). to the defendant from jail were not properly tions based on his possession of a cellphone) “This is almost the very same proce- • Commonwealth v. Watkins (Lawyers authenticated; (3) the commonwealth’s fail- (No. 15-P-1448) (July 5, 2016). dure condemned by the Supreme Ju- Weekly No. 81-656-16) (3 pages) (stalking, ure to provide an expert’s report during dis- • Dixon’s Case (Lawyers Weekly No. 81- dicial Court in District Attorney of the assault and battery, threats and assault by covery was prejudicial; and (4) the judge’s 677-16) (7 pages) (decision of the reviewing Northern District v. School Committee of means of a dangerous weapon; defendant’s failure to declare a mistrial in the defen- board of the Department of Industrial Ac- Wayland, 455 Mass. 561, 570-571 (2009). assertion that he is entitled to a new trial dant’s case or to give an adequate curative cidents, affirming an administrative judge’s It is mind-boggling that certain small because of prosecutorial misconduct, inef- instruction regarding the flipping of the ta- allowance of the insurer’s complaint to dis- town officials decided, on the heels of a fective assistance of counsel and voidness of ble by the codefendant created a substantial continue temporary total incapacity bene- Supreme Judicial Court decision — to his arrest warrant and the supporting affi- risk of a miscarriage of justice) (No. 12-P- fits under G.L.c. 152, §34) (No. 15-P-147) engage in almost precisely the same con- davit for being based on false statements) 1794) (July 1, 2016). (July 5, 2016). duct disapproved by the highest court of (No. 15-P-439) (June 30, 2016). • Fraser v. Fraser (Lawyers Weekly No. Massachusetts — just two years earlier. • Mark Bombara Interior Design v. 81-665-16) (2 pages) (husband’s motion for … Bowler (Lawyers Weekly No. 81-657-16) (8 relief from judgment; allegations of fraud SUPERIOR COURT “… The dissemination of private and pages) (home renovation; counterclaim al- or misrepresentation) (No. 15-P-1082) Editor’s note: The full text of these deci- secret exchange of members in advance leging that the plaintiff’s violation of G.L.c. (July 1, 2016). sions can be ordered at lwopinions.com. of a meeting is illegal. The law is clear: all 142A constituted a violation of G.L.c. 93A) • LSREF2 Clover, LLC v. Callahan, et al. deliberations must occur only at a prop- (No. 15-P-234) (June 30, 2016). (Lawyers Weekly No. 81-667-16) (6 pages) erly-noticed meeting open to the public. • Marshall v. Department of Industrial (action to enforce a commercial mortgage Municipal There is nothing difficult to understand Accidents, et al. (Lawyers Weekly No. 81- loan) (No. 15-P-1111) (July 1, 2016). Open meeting law - about this basic, simple democratic prin- 658-16) (3 pages) (claim for reimburse- • Speranza v. Department of Industrial ciple. … ment for chiropractic services; plaintiff’s Accidents, et al. (Lawyers Weekly No. 81- Email deliberations “The plaintiffs’ motion for summa- failure to pay the statutorily required IME 669-16) (3 pages) (rate of reimbursement Where plaintiffs filed a complaint un- ry judgment having been allowed, it fee) (No. 15-P-1373) (June 30, 2016). for travel to medical appointments; moot der the open meeting statute alleging is hereby ordered that: • Worcester Retirement Board v. Con- appeal) (No. 15-P-1260) (July 1, 2016). that the Wayland board of selectmen de- “1.) Judgment shall enter forthwith for tributory Retirement Appeal Board, et • ACE American Insurance Company v. liberated by email the professional com- the plaintiffs declaring that the Wayland al. (Lawyers Weekly No. 81-659-16) (10 Riley Brothers, Inc. (Lawyers Weekly No. petence of the town administrator, the Board of Selectmen violated the Massa- pages) (Superior Court judgment affirm- 81-670-16) (10 pages) (plaintiff insurance board should be permanently enjoined chusetts Open Meeting Law, G.L.c. 30A, ing a decision of the Contributory Retire- company’s subrogation action for damage from continuing to violate the statute. sections 1-9 when it began deliberating ment Appeal Board, concluding that a ju- to an underground steam line owned by the “The plaintiffs, registered voters in the the town administrator’s professional nior custodian for the Worcester Public plaintiff’s insured; $1,282,946 jury verdict town of Wayland, have sued their town competence by private written messages Library proved by a preponderance of ev- on the plaintiff’s negligence claim; amend- officials, this time their board of select- before the commencement of a meeting idence that her disability was proximately ed final judgment entered in the amount of men, for again violating the Massachu- open to the public; and caused by a work injury) (No. 15-P-1271) $3,134,562; defendant’s challenges to the setts Open Meeting Law, G.L.c. 30A, sec- “2.) A Permanent Injunction shall (June 30, 2016). sufficiency of the evidence and the amend- tions 18-25. See District Attorney for the enter that the Wayland Board of Se- • 47 Newbury World Realty Trust v. ment of the judgment assessing additional Northern District v. School Committee of lectmen shall henceforth discontinue JAM Enterprises, LLC (Lawyers Weekly damages) (No. 15-P-650) (July 5, 2016). Wayland, 455 Mass. 561 (2009) and Col- such practice.” No. 81-660-16) (3 pages) (decision by the • Belanger v. Laurel Hill Inn, Ltd. (Law- lins et al v. Wayland Board of Selectmen, Boelter, et al. v. Wayland Board of Se- city council of Peabody to grant the defen- yers Weekly No. 81-671-16) (6 pages) Middlesex Superior Court Docket No. lectmen (Lawyers Weekly No. 12-084-16) dant a special permit to construct a bill- (judgment dismissing the plaintiff’s breach 2011-0158, 31 Mass. L. Rptr. No. 8, pp. (8 pages) (Curran, J.) (Middlesex Superior board sign; Superior Court judge’s conclu- of contract action on statute of limitations 189, 190 (June 17, 2013). They also seek Court) (Docket No. 14-CV-0591-H) (June sion that the plaintiff lacked standing to grounds; plaintiff’s acceptance of a position yet another declaratory judgment under 29, 2016). challenge the city council’s decision approv- based on the defendant’s “promise” that G.L.c. 231, sections 1 through 9 that the ing the billboard because Newbury was not she would receive supervision by “’licensed board violated the Open Meeting law harmed by that decision) (No. 15-P-1383) professionals’ who met the requirements for when it began deliberating the profes- Consumer protection (July 1, 2016). her licensure” as a mental health counselor) sional competence of the town adminis- Class certification - • Adoption of Xanthus (Lawyers Week- (No. 15-P-1146) (July 5, 2016). trator by sending private email messag- ly No. 81-661-16) (7 pages) (termination of • Commonwealth v. Bernandez (Lawyers es before the commencement of an open Vehicle leases parental rights; parents’ contention that the Weekly No. 81-672-16) (8 pages) (armed meeting; and finally, they seek an Order Where a plaintiff has alleged that the judge based her findings on stale evidence robbery; defendant’s motion to withdraw permanently enjoining the Board from motor vehicle lease she entered into with regarding their care of two older children; his guilty pleas, claiming that he was in- such future practice. the defendant in February 2013 con- parents’ contention that the judge abused competent at the time he pleaded guilty) “The Board counters that the claim is tained unlawful terms that violate the her discretion by failing to order posttermi- (No. 15-P-1289) (July 5, 2016). moot and asserts that it acted legally. federal Consumer Leasing Act, a class nation and postadoption visitation because • Commonwealth v. Jean-Baptiste (Law- “For the reasons detailed below, the should be certified consisting of all per- no preadoptive family has been identified) yers Weekly No. 81-673-16) (5 pages) Court concludes that this action should sons who entered into consumer motor (No. 15-P-1413) (July 1, 2016). (armed home invasion; defendant’s claim not be dismissed as moot because the vehicle leases with the defendant con- • Commonwealth v. Sbordone (Lawyers that the judge improperly denied the repeat- registered voters have raised issues of taining one or more provisions allegedly Weekly No. 81-662-16) (2 pages) (aggra- ed motions to revise or revoke his sentence public importance that are likely to evade unlawful under federal law. vated assault and battery; “serious bodily and that he received ineffective assistance further judicial review. Further, given the Continued on page 28 28 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

— defined in the order below — to pro- (Lawyers Weekly No. 12-076-16) (14 pag- employment by the Hospital, including SUPERIOR COURT ceed solely on the claims asserted under es) (Salinger, J.) (Suffolk Superior Court) but not limited to emails to and from Ca- Continued from page 27 the federal Consumer Leasing Act and (Docket No. 1284CV01193-BLS2) (June bi’s Hospital colleagues and other emails “In its prior ruling, the Court allowed for declaratory relief in the third amend- 21, 2016). containing Cabi’s work signature. The Defendant’s motion for judgment on the ed complaint. … Hospital has not demonstrated that it pleadings as to the claim under c. 93A “… The Court hereby certifies a class Employment owns any of these files. because [plaintiff Sharon] Grant does defined as follows: ‘All persons who have “On this record the Court cannot de- not allege that she suffered any actual in- not released any claims against State Research fellow - termine whether they are subject to the jury from State Road’s allegedly decep- Road Auto Sales, Inc., under the federal Computer files - Ownership Acceptable Use Policy. … Consumer Leasing Act and who entered “Nor has the Hospital demonstrated tive conduct; it denied judgment on the Where a plaintiff hospital has requested into consumer motor vehicle leases with that any of these files belong to it under pleadings as to Grant’s other claims. … a declaration of its ownership of five cat- State Road Auto Sales, Inc., that were in the IP Policy, the Data Policy, or the Par- “Grant seeks reconsideration on the egories of files stored on the laptop of a effect on or after October 21, 2013, and ticipation Agreement. … ground that the Court could and should defendant who worked as a post-doctor- that contain one or more of the unlawful “Category 4 consists of files that, ac- have certified a class consisting of all al research fellow, the hospital owns the provisions set forth in Count I of the First cording to the Hospital, contain evidence people who leased cars from State Road contents of, but not the metadata associ- Amended Complaint. The only claims that Mr. Cabi was trying to form a compa- subject to terms that violate the federal ated with, the files in categories 1 and 2. to be litigated on behalf of this class are ny to commercialize research conducted Consumer Leasing Act, while specifying “… However, there is no way to tell the claims under the federal Consum- at the Hospital. Assuming that the Hos- that no claims under G.L.c. 93A will be from the undisputed evidence before the er Leasing Act and for declaratory relief pital’s characterization of these files is ac- litigated or decided in this action. … Court whether [plaintiff Children’s] Hos- that are asserted in Counts I, II, and III of curate, that would not be sufficient to es- “Grant failed to make this argument in pital owns any of the files, or the contents the First Amended Complaint.’ …” tablish that the Hospital owns any of these support of its prior motion. She instead of any of the files, in categories 3, 4, or 5 Grant v. State Road Auto Sales, Inc. files. … [T]he Hospital’s ownership rights raises it for the first time in her motion of the motion. … (Lawyers Weekly No. 12-075-16) (4 pag- are limited to research results, data, and for reconsideration. Grant has no right to “Category 1 encompasses 449 files that es) (Salinger, J.) (Suffolk Superior Court) other intellectual property. The Hospital do so. … On the other hand, since final contain one or more of 11 search terms (Docket No. 1484CV03292-BLS2) (June does not own everything Cabi ever wrote, judgment has not entered, the Court has that directly relate to the obesity-treat- 21, 2016). sent, or received merely because it some- ‘broad discretion’ to reconsider all prior ment research that [defendant Serkan] how relates to his work at the Hospital. … rulings in this case. … Cabi participated in while working at and “Category 5 consists of 248 folders. The “The Court concludes, in the exer- Corporate for the Hospital. The Court concludes Hospital has not shown that it owns any cise of discretion, that it is appropriate that the Hospital owns the contents of Stock purchase agreement - of the files contained in those folders. Nei- to reconsider its prior rulings in light of these files under its Participation Agree- ther the name of a folder nor the date a Grant’s new argument in favor of certify- Taxes ment with Cabi. folder was created is sufficient to demon- ing a class for a limited purpose. If Grant Where the purchasers of all stock in a “But the Court agrees with Mr. Cabi strate that any or all of the files saved in were correct that State Road has violat- company have brought suit claiming that that the Hospital does not own the meta- that folder contain research results, data, ed the legal rights of thousands of con- the defendant seller owes $19.29 million data associated with these files, even or other intellectual property that belongs sumers by inserting unlawful provisions for pre-closing taxes, the defendant is though they contain information that be- to the Hospital.” in their motor vehicle leases, that a class entitled to set off all receivables actual- longs to the Hospital. The Participation The Children’s Hospital Corporation v. action would allow those consumers to ly owed by customers at the time of the Agreement, IP Policy, and Data Policy Cabi (Lawyers Weekly No. 12-077-16) (6 seek to vindicate their rights under the closing with respect to value added tax- provide that the Hospital owns relevant pages) (Salinger, J.) (Suffolk Superior Court) Consumer Leasing Act, and that none of es on prior purchases from the company. research results, inventions, data, and (Docket No. 1584CV03103-BLS2) (June those consumers who suffered actual in- “In 2011 Fortune Brands, Inc., sold other intellectual property, even if stored 23, 2016). jury would be precluded from bringing a all stock in the Acushnet Company for on Cabi’s personal laptop. But nothing in claim against State Road for damages un- $1.225 billion, subject to post-closing this contract or these two policies gives der c. 93A if a class were certified only to adjustments. Although Fortune sub- the Hospital ownership of software or Employment litigate Grant’s claims under federal law, sequently changed its name to Beam, hardware that Cabi used to store that in- Stock - then it would be in the interests of justice Inc., the Court will refer to Defendant tellectual property. As a result, the Hos- to determine whether the requirements as ‘Fortune’ because this lawsuit con- pital has no basis under the Participation Severance agreement for class certification are met and a class cerns events that occurred before the Agreement, the Acceptable Use Policy, or Where a plaintiff has claimed a right should be certified. … name change. the Data Policy for claiming ownership of to 250 shares of the defendant employer’s “Upon reconsideration, the Court con- “After the closing Acushnet asked For- metadata associated with the files in Cat- preferred stock, that claim is barred by a cludes that if certifies a class to proceed tune to pay $19.29 million for pre-clos- egory 1. If Cabi had written down data release contained in the plaintiff’s 2009 only with respect to relief sought under ing taxes pursuant to the allocation of tax or other intellectual property belonging severance agreement. the federal Consumer Leasing Act, then liability agreed to by the buyers of Acush- to the Hospital by hand, on paper, and “This is a breach of contract case brought class members who suffered actual inju- net and Fortune, as seller, in their Stock filed it away in a manila folder, the Hos- by plaintiff Alan MacDonald against his ry from the allegedly deceptive conduct Purchase Agreement (the ‘SPA’). For- pital would own the contents of the file. former employer, defendant Jenzebar Inc. by State Road would have incentive and tune took the position that it was entitled But if Mr. Cabi had written notes on the (Jenzebar) seeking damages and other re- indeed no opportunity to seek relief in to deduct and setoff $16.62 million in folder itself regarding when he or others lief for Jenzabar’s refusal to give him cer- this action under G.L.c. 93A, and as a re- Acushnet customer account receivables wrote down, looked at, modified, or pho- tain shares in the company. That stock sult litigation of this case as a class action for value added taxes, because those VAT tocopied the data, the Hospital would not falls into two categories. The first consists would not have claim preclusive effect Receivables constitute ‘amounts credit- own those notes because they are outside of 250 shares of Jenzabar Series B Junior and operate as a bar as to claims under c. ed against or with respect to Taxes’ with- the scope of the information to which Preferred Stock (the Preferred Shares), 93A against State Road on behalf of any in the meaning of § 8.01(b) of the SPA. the Hospital asserted ownership rights in which MacDonald claims that he is enti- class members. … Fortune therefore made payment of the its contract and these policies. The same tled to receive pursuant to his 2004 Em- “The Court also finds and concludes $2.67 million difference. is true of electronic metadata associated ployment Agreement. The second catego- that the prerequisites for certifying a “Acushnet claims that Fortune with electronic files containing intellectu- ry consists of 1,516,000 shares of Jenzabar class on claims other than under c. 93A breached the parties’ contract by setting al property that belongs to Hospital. Common Stock which MacDonald claims are all satisfied in this case. The Court off the $16.62 million. Both sides moved “The Acceptable Use Policy is different, he should have received as a result of ex- finds that the requirements of Mass. R. for summary judgment, but the court and appears to reach metadata. Under ercising options granted to him under Civ. P. 23(a) are satisfied because the pro- (Sanders, J.) ruled that the contract is that policy, Hospital owns any electronic two Incentive Stock Option Agreements posed class is so numerous that joinder ambiguous and thus that the issue could files stored on devices owned by the Hos- (ISO’s) executed at the same time as the of all members is impracticable, there only be decided after both sides had the pital or transmitted over any computer Employment Agreement. … are questions of law or fact common to opportunity at trial to present parole or or network resources owned by the Hos- “As Jenzebar pointed out in its origi- the class, the claims or defenses of Sha- extrinsic evidence regarding the mean- pital. This policy is broad enough to en- nal summary judgment motion, the Gen- ron Grant are typical of the claims or ing of the phrase quoted above. That trial compass metadata that is part of or asso- eral Release that MacDonald execut- defenses of the proposed class, and Ms. was recently completed. ciated with an electronic file that belongs ed when he left Jenzebar’s employment Grant will fairly and adequately pro- “The Court now finds and concludes to the Hospital. is quite broad and is part of a Severance tect the interests of the class. The Court that Fortune has a contractual right to “But the Hospital has not established Agreement which by its terms ‘terminates also finds that the requirements of Rule set off all receivables actually owed by that any of the documents in Category 1 and supersedes all other oral and written 23(b) are met because the questions of customers to Acushnet at the time of the were ever stored on or transmitted using agreements or arrangements.’ See Section law or fact common to the members of closing with respect to value added tax- any of the Hospital’s computer or network 2 and Section 7 of Severance Agreement. the class predominate over any questions es on prior purchases from Acushnet, resources. It therefore has not shown that Jenzebar argued that this broad Release affecting only individual members and a that the proper setoff amount was $15.65 it owns the electronic files themselves, or meant that MacDonald gave up both his class action is superior to other available million, and that Acushnet is there- the associated metadata. It only owns the right to receive the Preferred Shares and members for the fair and efficient adjudi- fore entitled to judgment in its favor in intellectual property stored within these his right to the Common Stock options. cation of the controversy. the amount of $972,288 plus prejudg- files. … The ambiguity arose (in this Court’s view) “In the exercise of its discretion, the ment interest.” “Category 3 consists of other files because of Section 6 of the Severance Court will certify an appropriate class Acushnet Company v. Beams, Inc. that the Hospital asserts relate to Cabi’s Agreement, which extended the term of www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 29 THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

any effort by Liccardi or Ascentek to ob- transfer [the IUA] or any of its rights or Agreement.’ Sprint clearly proposes to use SUPERIOR COURT tain that business. There is no indication obligations’ to (1) ‘Clearwire Affiliates’ or plaintiffs’ channel capacity. There being no MacDonald’s confidentiality/non-compe- that Liccardi has or will use the informa- (2) ‘any entity that acquires all or substan- assignment, the arrangement is necessari- tition agreement ‘in light of (i) your se- tion he has to lure Integrated clients to As- tially all of the assets of the Clearwire sub- ly viewed as a sublicense under the IUAs. nior role and position with the Compa- centek, The harm to Integrated is specula- sidiaries that hold the U.S. operating com- To interpret it as the defendants suggest ny previously as its Chief Financial Of- tive, at best. On the other hand, Liccardi panies’ if Clearwire provides prior notice. would render all of these provisions es- ficer and as a M&A Research Developer will be seriously harmed if the requested Neither exception applies here. sentially meaningless.” and (i) [sic] the Company’s grant to you of a injunction is granted. He will lose his job “Clearly, Sprint is not a Clearwire ‘Affil- Norther American Catholic Education- considerable number of options to purchase and will be severely restricted in his abil- iate,’ a term defined in Section 6(c)(i) of al Programming Foundation, Inc., et al. v. common stock.’ (Italics added). That provi- ity to work anywhere within a reasonable the IUAs. Defendants instead rely on the Clearwire Spectrum Holdings II LLC, et al. sion seems to contemplate that MacDon- distance of his home if the requested in- second exception, asserting that Sprint ac- (Lawyers Weekly No. 12-080-16) (7 pages) ald continued to have a right to exercise junctive relief is put in place. In the cir- quired Clearwire assets. This is precise- (Sanders, J.) (Suffolk Superior Court) (Civil options to purchase common stock and cumstances of this case, the balance of the ly the same argument that the defendants Action No. 15-3118 BLS2) (June 24, 2016). that this was in fact the consideration for harms tips in Liccardi’s favor.” made in opposing plaintiffs’ request for his promise not to compete with Jenzebar Integrated IT Solutions, Inc. v. Liccardi, et injunctive relief and, for the same reasons, Consumer protection for five years. Significantly, however, Sec- al. (Lawyers Weekly No. 12-079-16) (5 pag- this Court concludes that it has no merit. tion 6 did not (as the defendant pointed es) (Henry, J.) (Middlesex Superior Court) Sprint purchased the equity in Clearwire Debt collection - Law firm out in its motion to reconsider) say any- (C.A. No. 16 CV 1661) (June 28, 2016). so as to give it control over Clearwire’s as- Where the Massachusetts Division thing about the Series B Preferred Shares. sets; it did not acquire the assets them- of Banks has moved to dismiss a com- This Court now agrees with Jenzebar that Contract selves. Thus, the spectrum lease rights at plaint filed by a plaintiff law firm con- the Severance Agreement, when con- issue are still owned by Clearwire entities. cerning G.L.c. 93, §24, the dismiss- strued as a whole, unambiguously extin- Broadband services - The FCC Order approving the transaction al motion must be allowed on moot- guished MacDonald’s right to receive the Sublicensing makes that perfectly clear. ness grounds. Preferred Shares.” Where a plaintiff has alleged that the “In an attempt to avoid this result, de- “Plaintiff Lustig, Glaser & Wilson, MacDonald v. Jenzabar, Inc. (Lawyers defendant breached an agreement un- fendants argue that the spectrum usage P.C. (LGW) is a law firm that represents Weekly No. 12-078-16) (4 pages) (Sanders, der which the plaintiff granted access to a agreements between Clearwire and Sprint clients in connection with the collection J.) (Suffolk Superior Court) (Civil Action No. portion of their wireless communications are not sublicenses at all. Specifically, they of consumer debts. The defendant Massa- chusetts Division of Banks (the Division), 2012-3121-BLS2) (May 31, 2016). spectrum, the plaintiff must be award- contend that Clearwire leased the plain- among other things, is charged with the ed summary judgment because there was tiffs’ broadband capacity and that plain- regulation of debt collection. ... This case Employment no consent by the plaintiff to a sublicens- tiffs cannot therefore meet their burden of arose out of a dispute regarding the Divi- ing arrangement. showing that the arrangement Clearwire Non-compete - sion’s interpretation of G.L.c. 93, §24, and “Plaintiffs are non-profit entities that has with Sprint to use this broadband ca- whether firms like LGW were debt collec- Unlimited scope hold licenses from the Federal Commu- pacity is a sublicense so as to trigger Sec- tion 10. But Section 8 of the IUAs express- tors within the meaning of that statute. … Where a plaintiff has requested a pre- nications Commission (FCC) to operate ly states that any rights of a ‘third party’ “… Count I requested a declaratory liminary injunction to enforce a former Educational Broadband Services (EBS) — which Sprint unquestionably is — to judgment to the effect that LGW is not a employee’s non-disclosure, non-solici- channels in certain geographic markets. use plaintiffs’ channel capacity ‘are to be debt collector subject to regulation by the tation and non-competition agreement, The FCC permits EBS license holders like handled in accordance with the assign- Division. In Count II, LGW asserted that the plaintiff has not shown a likelihood of plaintiffs to grant access to a portion of ment or sublicensing provisions of this Continued on page 30 success on the merits, so the request must their wireless communications spectrum be denied. to commercial wireless broadband pro- “The evidence before me at this time is viders. In 2006, plaintiffs granted this ac- not sufficient to show that the plaintiff has cess to the defendants Clearwire Spectrum a likelihood of success on the merits. First, Holdings II, LLC and Clearwire Legacy, The Mass.Guide the restrictions in the Agreement are not LLC (Clearwire) pursuant to certain writ- reasonably restricted geographically or ten agreements. In 2013, the defendant temporally. The Agreement as written puts Sprint Spectrum L.P. (Sprint), a share- to Evidence has no geographic limitation on the reach of holder in Clearwire’s parent, acquired all any restraint on [defendant Josh] Liccar- the remaining stock in the parent, and be- been thoroughly di’s employment efforts. While two years gan to use for its own commercial pur- can be a reasonable period of limitation, poses those portions of the spectrum that there is no apparent reason for the two- plaintiffs had licensed to Clearwire. revised for 2016! year limitation. While this court could re- “On October 14, 2015, plaintiffs filed form a vague agreement, the lack of rea- the instant action claiming that Clearwire sonable restrictions in the Agreement is a had effectively sublicensed its use of the factor militating against enforcement. broadband spectrum to Sprint and that “Secondly, there is strong evidence in this was in breach of the agreements be- the form of the affidavit of [Chris] Little tween Clearwire and plaintiffs, who had The 2016 Edition of the Mass. Guide to Evidence is now available, and not given their written consent to such that it was [plaintiff] Integrated’s failings includes important civil and criminal updates concerning exclusions of that led to the decision of [Sleep Medicine an arrangement as those agreements re- Services of Western Massachusetts (SMS) quired. On November 9, 2015, this Court evidence, attorney-client privilege, hearsay, and unavailable witnesses, to terminate its contract with Integrat- allowed plaintiffs’ Motion for a Prelimi- as well as recording of custodial interrogations, Miranda rights, prior ed and to seek the services of [codefen- nary Injunction. In concluding that plain- and subsequent bad acts, informants, DNA evidence, civil commitment dant] Ascentek and Liccardi. She supports tiffs had demonstrated a substantial like- proceedings, and more. the assertions of Liccardi and of Freder- lihood of prevailing on the merits, this ick that they did not solicit the business of Court agreed with the plaintiffs that the The Official Print Edition of the 2016 Guide is available exclusively from SMS. There is no other indication of any- relevant agreements did indeed require Lawyers Weekly. It is the only edition with the exact same pagination, index thing that Liccardi or Ascentek has done plaintiffs’ written consent and that such and table of authorities as the version all Massachusetts state judges to lure business or customers of Integrat- consent was not given. This case is now receive from the Flaschner Judicial Institute. It lets you be literally “on the ed. There is no showing by Integrated that before the Court on plaintiffs’ Motion for Liccardi has disclosed any confidential in- Partial Summary Judgment, which focus- same page” with the judge! formation about Integrated or its custom- es on this single issue of consent. Defen- ers or its accounts or its business practices. dants not only oppose that motion but The Guide assembles existing Massachusetts evidence law in an easy-to- There is no showing that Liccardi has con- have themselves moved for summary use document with extensive explanatory notes and citations. Everything tacted any other customers of Integrated judgment. For the reasons that follow, this in the Guide has been approved by the SJC, and it has been cited hundreds or taken any steps to use confidential in- Court concludes that the plaintiffs’ Mo- of times by the SJC and the Appeals Court. formation to which he may have been ex- tion must be Allowed and the defendants’ posed during his three months of employ- Motion must be Denied. … ment at Integrated. In short, I do not find a “Section 10(b) of the [Individual Use Get yours today! Available only at the likelihood of success on the merits. Agreements (IUAs)] permits Clearwire Lawyers Weekly Books website: “Furthermore, Integrated has not to sublicense the use of Clearwire capac- shown either that it will suffer immedi- ity only with the ‘advance written consent http://books.lawyersweekly.com ate and irreparable harm if the injunction of Licensee’ — namely, the plaintiffs. … is not granted or that the balance of the There are only two exceptions to this con- harms weighs in its favor. As. noted above, sent requirement, neither of which is ap- it was Integrated’s failings which led to the plicable here. Under Section 10(c), Clear- termination of the SMS contract and not wire may ‘sell, assign, sublease, delegate or 30 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

later, in which the Division interpreted persuading the court that the challenged new employer competes with the plaintiff. SUPERIOR COURT G.L.c. 93, §24 to require LGW to obtain a conduct [i.e., statutory interpretation] “Plaintiff Simplivity Corporation … de- Continued from page 29 debt collector’s license. The Division said cannot reasonably be expected to start up velops and sells so-called ‘hyperconverged the advisory opinion set out in the Letter that it would give LGW, and similarly sit- again.’ Stated differently, the fact that for a infrastructure solutions’ which converge a constituted a violation of its due process uated law firms, until August to submit an period of a few months, the Division post- number of functionalities or applications rights under the United States and Mas- application for a license before instituting ed an advisory opinion letter on its web- into ‘all-in-one’ products. … sachusetts constitutions and therefore a any kind of action against the firms un- site that contained a statutory interpre- “When he was hired, [defendant John] violation of 42 U.S.C. §1983 and G.L.c. der Chapter 93. There is no evidence that tation that it now agrees was erroneous, Hofdahl signed a Proprietary Informa- 12, §11I. Count III requested an injunc- LGW ever submitted an application. Then, does not suggest that ‘subsequent litiga- tion and Inventions Agreement (the Em- ployment Agreement). Of relevance to tion enjoining the Division from enforc- on April 1, 2016, it retracted its Novem- tion as to the identical subject matter will this case, the Employment Agreement ing chapter 93 against LGW. … On Jan- ber 2, 2015 letter stating that ‘after further ensue’ in the future. …” provided that Hofdahl could not disclose uary 25, 2016, LGW filed an amended consideration of the statutory language ... Lustig, Glaser & Wilson, P.C. v. Cotney, any Simplivity Proprietary Information, complaint, which divided its request for the Division will not require LGW, or oth- et al. (Lawyers Weekly No. 12-081-16) (7 which included all business, technical and declaratory relief into two counts: Count er similarly situated law firms, to become pages) (Kaplan, J.) (Suffolk Superior Court) financial information that Hofdahl ob- licensed solely because LGW is primari- (Civil Action No. 2015-03703-BLS1) (June I was premised on improper statutory in- tained during his employment. Also, Hof- ly engaged in consumer debt collection or 23, 2016). terpretation, and the new Count II assert- dahl agreed that’[f]or the period of one regularly collects consumer debt.’ For the ed an alternative argument that, as inter- year immediately following termination preted by the Division, G.L.c. 93, §24 vio- avoidance of any doubt, at oral argument Employment of [his]employment with the Company lates the separation of powers provision of on this motion, the court asked the assis- Non-compete - (for any reason, whether voluntary or in- the Massachusetts Declaration of Rights. tant attorney general representing the Di- Software sales voluntary), [Hofdahl] will not directly or … vision whether the Division agreed with indirectly: (i) Cause any person to leave “… LGW was never actually subject to LGW that the interpretation of §24 set out Where a defendant regional sales man- their employment with the Company; (ii) any administrative act by the Division. in the November 2, 2015 letter was in er- ager left the employ of the plaintiff corpo- Cause any person who was employed by LGW asked for an advisory opinion. The ror, and she replied, on the record, that the ration, the plaintiff is entitled to prelimi- the Company at any time during the past Division was under no obligation to pro- Division did. Under these circumstances, nary injunctive relief, but the defendant six months to become an employee of [h] vide one, but responded with the Novem- the court has no difficulty concluding that should not be prevented from working for is or a third party, (iii) Solicit any busi- ber 2, 2015 letter, issued some two years the Division has met its ‘heavy burden of his new employer absent evidence that the ness partner; or (iv) Act in any capaci- ty in or with respect to any Competing Business located within the Common- PROBATE & FAMILY COURT JUDGES’ ASSIGNMENTS: JULY 11 – 15 wealth of Massachusetts, the rest of the re- A complete list of assignments for all courts for the entire month can be found on our website, www.masslawyersweekly.com. (Click on the “Judges’ gion known as New England, the rest of Assignments” bar on the left side of the page.) Following is a list of judicial assignments for the Probate & Family Courts in Massachusetts for this week. the United States, or anywhere else in the w or l d .’ … MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY “Simplivity claims that it has developed July 11 July 12 July 13 July 14 July 15 unique techniques in selling software that BARNSTABLE Roach Scandurra Scandurra Scandurra Scandurra constitutes a new, ‘disruptive’ technolo- Ryley Ryley gy produced by a new company that does BERKSHIRE Simons Simons Simons Simons Simons not yet have a track record of success. It Dacyczyn Dacyczyn Dacyczyn claims that this information is included in BRISTOL its Sales Manual that was shared with Hof- New Bedford McMahon Jacobs dahl in March, 2014, when he was trained, Fall River Smola McMahon McMahon McMahon McMahon and which was collected from him after the Smola Smola training, apparently to preserve its confi- Taunton Field Field Field Field Field dentiality. Perhaps so, but all that was pre- Jacobs Jacobs Jacobs sented to the court was Simplivity’s con- ESSEX clusory opinion that such sales techniques Salem Bisenius Bisenius Bisenius Bisenius Bisenius exist and are unique. Simplivity’s believing DiGangi DiGangi DiGangi DiGangi Giordano in the uniqueness of its approach is not the Giordano Giordano Giordano same as proving that these techniques are Lawrence Sahagian Sahagian Sahagian Sahagian Sahagian dissimilar from those of other successful, FRANKLIN Crawford Crawford Crawford Crawford start-up, technology companies. … HAMPDEN Rainaud Geoffrion Geoffrion Geoffrion Geoffrion “The court, however, does find that Sacks Hyland Hyland Hyland Hyland Hofdahl received important, confidential Rainaud Rainaud Rainaud Sacks information at the quarterly business re- Sacks Sacks Sacks views where all of the sales representatives HAMPSHIRE Crawford Dacyczyn Dacyczyn discussed their wins and losses in compet- MIDDLESEX itive sales situations. While much infor- Cambridge St. Donnelly Donnelly Abber Donnelly Abber mation concerning the different products Abber Abber Gargas Abber Gargas sold by competing vendors in the hyper- McSweeny Gargas McSweeny Gargas Peterson converged infrastructure market is pub- Peterson McSweeny Peterson McSweeny lished by market analysts, the open discus- Peterson sion among the Simplivity sales represen- Third St. Gorman Gorman Gorman Gorman Monks tatives, and the engineers that supported Kaplan Kaplan Kaplan them, concerning the strengths and weak- Monks Monks Monks nesses of Simplivity’s products, the indus- NORFOLK Casey Casey Casey Casey Casey tries in which it worked the best, and the Menno Menno Menno Menno Menno sales approaches that worked well and less Moriarty Moriarty Moriarty Moriarty Moriarty well is both confidential and valuable. It Phelan Phelan Phelan Phelan Phelan certainly could give Hofdahl an advantage PLYMOUTH in a competition in which Maxta [Inc.] Brockton Boyle Boyle Boyle Boyle Connelly and Simplivity were trying to sell software Connelly Connelly Connelly Connelly Roberts to the same potential customer. … Roberts Roberts Roberts Roberts “... However, it is undisputed that Sim- Plymouth Stanton Stanton Stanton Stanton Stanton plivity has never competed with Maxta for SUFFOLK Armstrong Armstrong Armstrong Armstrong Armstrong a sale; indeed, it has never even encoun- Dunn Dunn Dunn Dunn Dunn tered Maxta in the market place. … Ross Ross Ross Ross Ross “The court finds the question of wheth- Ward Ward Ward Ward Ward (a.m.) er to enforce the covenant not to com- WORCESTER pete and enjoin Hofdahl from working for Worcester Keamy Keamy Keamy Keamy Keamy Maxta for some period by the entry of a Bailey Bailey Bailey Bailey Bailey preliminary injunction a very close one. German German German German … Roach Roach Roach “While imperfect at best, the court will attempt to fashion a preliminary injunc- For other judges’ assignments: BMC, page 12; District Court, page 16 tion that protects Simplivity from the pos- sibility that Maxta becomes its competitor. www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 31 THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

“On the basis of the evidence pre- Scharaffa, Rose and Chmielinski) (ATB) a grievance claiming a violation of Article SUPERIOR COURT sented, the Board found that the appel- David G. Saliba, of Saliba and Saliba, for Four of the collective bargaining agree- … lant failed to present to the Board cred- the appellant; Laura Caltenco for the ap- ment via the City’s disparate treatment “The defendant John Hofdahl is prelim- ible and persuasive evidence sufficient to pellee (Docket Nos. F315053, F315055, of him in comparison to those employees inarily enjoined from engaging in the fol- undermine the subject assessments. As a F319797, and F319799) (Feb. 3, 2016). who worked at City Hall. The grievance lowing activities: basic preliminary observation, the Board was denied at all steps by the City and re- “1. Until March 30, 2017, soliciting noted that the subject property was en- sulted in the instant arbitration. … any current employee of Simplivity to cumbered by several long-term residen- DEPARTMENT OF “… The Union’s claim is that the City work for Maxta or suggesting to any oth- tial tenancies, including three that were has treated disparately DPW employees, er third-party that it recruit a Simplivi- over thirty years old. The Board thus LABOR RELATIONS who are required to work during weath- ty employee. found that Mr. Stewart erred by not ad- er emergencies. The Union argues that be- Editor’s note: The full text of these deci- “2. Disclosing any Simplivity Propri- justing several of the subject’s residen- cause City Hall employees were given time sions can be ordered at lwopinions.com. etary Information. tial leases, which he admitted were not at off with pay on three occasions for weath- “3. Until March 30, 2017, directly, or market rental rates. Mr. Stewart’s failure er related closures of City Hall, DPW em- indirectly, contacting any Simplivity cus- to remedy this basic flaw called his ap- Labor ployees should be entitled to compensato- tomer or any potential Simplivity custom- praisal into question. Disparate treatment - ry leave. This argument is unpersuasive. er that Hofdahl contacted with a view to “Mr. Stewart’s testimony and apprais- First and foremost, none of the employ- selling it a Simplivity product while Hof- al contained several additional errors and ‘Snow days’ ees who were directed to stay home and dahl was employed at Simplivity. shortcomings, including, but not limit- Where a bargaining unit member em- were subsequently paid are bargaining “4. Until August 19, 2016, directly, or ed to: failure to include a basic analysis ployed by the Attleboro Department of unit members under the DPW’s collec- indirectly, contacting any customer iden- of the highest and best use of the subject Public Works was required on several tive bargaining agreement, and thus were tified as in Simplivity’s ‘pipeline’ of po- property; failure to offer any images of the winter days to operate a snow plow while in no manner similarly situated. The City tential customers at the February, 2016, subject property’s interior; failure to ana- City Hall employees were given each day is not required to treat members of differ- Simplivity western region quarterly busi- lyze or address two timely sales of nearby, off, the city did not violate its collective ent bargaining units similarly in respect to ness review. large apartment buildings or the leases for bargaining agreement with the Massachu- employee benefits. The current employ- “5. Until March 30, 2017, if Maxta space in these buildings; his use of actual setts Laborers’ District Council. ee benefit package in the DPW collective finds itself in competition with Simpliv- rents even while admitting that several of “… The grievant, James Proulx (Prou- bargaining agreement was collectively ity to sell its product to a particular po- the rents were below market rate and fur- lx/Grievant), works in the City’s Depart- bargained by the Union and the City and, tential customer, Hofdahl shall not par- ther admitting that an undisclosed num- ment of Public Works (DPW), and is a as stated above, does not provide for pay- ticipate either directly or indirectly in that ber of units were highly desirable based bargaining unit member. City employ- ment of compensatory leave to DPW em- sales opportunity. on their light view and/or bay windows; ees working at City Hall are either non- ployees when City Hall is closed. The City “The plaintiff’s request for preliminary his use of vacancy and expense figures union employees or employees of a sepa- is required to adhere to the agreed upon injunctive relief is otherwise denied.” based not on market data but instead on rate bargaining unit of the Attleboro La- terms of the Union’s collective bargaining Simplivity Corporation v. Hofdahl (Law- unexplained assumptions for which he borers’ Association. agreement, nothing more and more im- yers Weekly No. 12-082-16) (17 pages) (Ka- presented no concrete evidence; his mis- “On January 26 and 27, 2015, City portantly, nothing less. The benefits that plan, J.) (Suffolk Superior Court) (Civil Ac- taken assumption that the leases were on Hall was closed due to a snow storm. The the City has agreed to provide other em- tion No. 16-1541 BLS1) (June 23, 2016). a gross basis while the evidence suggested City directed all non-essential employees ployees, both unionized and non-union- at least some tenant reimbursement; and to stay home and paid them for the day. ized, have no bearing on the benefits to finally, discrepancies between his report The grievant, as an essential employee of which DPW bargaining unit members and the actual leases for various factors, the DPW, was required to report to work are entitled. APPELLATE TAX including square footage. Because the ap- and perform his assigned work duties as a “For the reasons stated above, I find pellant’s evidence was so fundamental- snow plow operator. He was compensat- that the City did not violate the collective BOARD ly flawed, the Board found that it lacked ed as outlined in the DPW collective bar- bargaining agreement when it gave cer- Editor’s note: The full text of these deci- sufficient probative value. As a result, the gaining agreement. tain City employees a day off from work sions can be ordered at lwopinions.com. Board found that the appellant failed to “On February 2, 2015, City Hall was due to snow incidents, while at the same meet its burden of proving a value for the closed for half of the day and non-essen- time directing bargaining unit employ- Taxation subject property that was less than its as- tial employees were not required to work ees to operate snow plows. The grievance sessed value for either fiscal year at issue. during the closure and were compensat- is denied.” Multi-use building “Accordingly the Board issued decisions ed as if they had worked. The grievant, as In the Matter of the Arbitration Between Where the report of a landowner’s ap- for the appellee in the instant appeals.” an essential employee of the DPW, was re- the City of Attleboro and Massachusetts La- praiser was fundamentally flawed, the Kaufman v. Board of Assessors of the City quired work the full day and perform his borers’ District Council (Lawyers Weekly owner (of three parcels improved by a of Boston (Lawyers Weekly No. 20-001-16) assigned work duties as a snow plow oper- No. 21-004-16) (8 pages) (Hatfield, Arbitra- multi-use building in Boston) has not (20 pages) (Commissioner Good heard the ator. He was compensated as outlined in tor) (DLR) Daniel Brown for the city; Sal- demonstrated that he is entitled to a appeals and was joined in the decision by the DPW collective bargaining agreement. vatore Romano for the union (Docket No. tax abatement. Chairman Hammond and Commissioners “On February 4, 2015, the grievant filed ARB-15-4481) (Jan. 8, 2016). NEWS BRIEFS [email protected]

Continued from page 3 and (2) the sale by any business with- amended to read, ‘Legalization, Regula- was disorganized. in the commonwealth of “shell” eggs, Pot question gets nod tion, and Taxation of Marijuana,’” Gants Creditors include several former “whole veal meat” and “whole pork stated. “With respect to the ‘yes’ statement, sponsors of the race and the Indianapo- meat” that the business owner or oper- for November ballot we conclude that it is clearly misleading in lis-based national IndyCar organization, ator “knows or should know” was pro- The Supreme Judicial Court has ap- some respects and order that it be amend- which says it is owed $4.2 million. duced from animals so confined. proved the attorney general’s certification ed as follows: ‘A YES VOTE would allow “We conclude that the subjects con- of an initiative petition that, if approved persons 21 and older to possess, use, and transfer marijuana and products contain- tained in the petition are sufficient- by the voters in the November election, Farm animal question ing marijuana concentrate (including edi- ly related to meet the requirements of would legalize, regulate and tax marijua- ble products) and to cultivate marijuana, art. 48 [of the Amendments to the Mas- na and products that contain marijua- deemed valid for ballot na concentrate. all in limited amounts, and would provide sachusetts Constitution], and that the The Supreme Judicial Court has “We conclude that the Attorney Gen- for the regulation and taxation of com- brief statement of purpose in the pro- found that the attorney general acted eral did not err in certifying the petition mercial sale of marijuana and marijua- posed measure does not render it unfit properly by certifying an initiative peti- for inclusion on the ballot under art. 48 na products.’” for submission to the voters,” Chief Jus- tion entitled “An Act to prevent cruelty because the petition contains only relat- The 38-page decision isHensley, et al. v. to farm animals.” tice Ralph D. Gants wrote for the unan- ed subjects,” Chief Justice Ralph D. Gants Attorney General, et al.; Allen, et al. v. Attor- The petition proposed a new law imous court. wrote for the unanimous court. “We also ney General, et al., Lawyers Weekly No. 10- that would prohibit (1) confinement The 25-page decision isDunn, et al. v. conclude that her summary of it is fair.” 093-16. The full text of the ruling and Law- of egg-laying hens, calves raised for Attorney General, et al., Lawyers Week- The SJC went on to find, however, that yers Weekly’s opinion digest of the case can veal, and breeding pigs on a commer- ly No. 10-094-16. The full text of the the title assigned to the petition — “Mar- be found at masslawyersweekly.com. cial farm “in a cruel manner,” i.e., under ruling and Lawyers Weekly’s opinion ijuana Legalization” — and the one-sen- — Thomas E. Egan conditions that prevent them from ly- digest of the case can be found at mas- tence statement describing the effect of a Material from The Associated Press ing down, standing up, fully extending slawyersweekly.com. “yes” vote are misleading. and State House News Service was used their limbs, or turning around freely; — Thomas E. Egan “We therefore order that the title be to compile News Briefs. 32 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com Insurance company fails in bid to replace arbitrator Continued from page 1 that, it said, implicitly arose under Sec- Scott P. Lewis and Melissa C. Allison, tions 4 and 5 of the FAA. who did not respond to a request for Section 4 allows parties “aggrieved comment prior to deadline. by the alleged failure, neglect, or refus- But Boston civil litigator Thomas M. al of another to arbitrate under a writ- Bond said neither the language of the ten agreement for arbitration” to seek a FAA nor the case law interpreting the court order compelling that “arbitration statute supported John Hancock’s posi- proceed in the manner provided for in tion that courts can make a pre-award such agreement.” inquiry into an arbitrator’s qualifications. Section 5 directs parties to follow “The only inquiry that can be made any method for appointing arbitrators pre-arbitration is whether there is a val- provided in the arbitration agreement. id and binding arbitration agreement,” Moreover, Section 5 grants courts the Bond said. authority to appoint an arbitrator when Bond also found no merit to the pub- the arbitration agreement does not pro- lic policy argument that parties should be able to settle any dispute as to an ar- he opposes amending the FAA to provide under certain insurance policies. vide a method for appointing arbitra- bitrator’s qualifications before expend- a pre-award mechanism for removing ar- A dispute arose as to Employers’ tors, when a party fails to “avail him- ing time and money on an arbitration. bitrators selected by the parties. right to increase reinsurance premiums self of such method,” or “if for any other Instead, Bond saw allowing such chal- “If there were judicial procedures for charged to John Hancock. Unable to re- reason there shall be a lapse in the nam- lenges as taking away from the benefits resolving issues of arbitrator bias or ap- solve the dispute through negotiation, ing of an arbitrator.” of arbitration in the commercial setting. pointment prior to the matter proceed- John Hancock demanded arbitration In rejecting John Hancock’s proposed “When you agree to arbitration, you ing, I could see 25 percent or more of pursuant to a clause in the contract. exception, Casper first noted that nei- want to avoid judicial intervention, you the cases that I handle go to court,” Cook The contract’s arbitration clause pro- ther Section 4 nor Section 5 includ- want to streamline the process, trad- said. “That completely undoes the benefit vided for each party to appoint one ar- ed express language concerning the ing procedural safeguards for savings in of arbitration.” bitrator. The two arbitrators named removal of an arbitrator. Instead, the time and expense,” he said. “You don’t While agreeing that Casper got it right by the parties would select a third ar- judge wrote that the FAA specified the want to open Pandora’s box, getting in rejecting the removal request, Bos- bitrator to complete the panel hearing avenues for a District Court to review the court involved in every single [dis- ton civil litigator Seth J. Robbins said the the dispute. arbitration proceedings, notably Sec- agreement] before the arbitration even case raises the more intriguing question of The agreement specified that “[a]ll tion 10’s listing of grounds for vacating takes place.” what John Hancock does now. The com- three arbitrators must be officers of Life an award including “evident partiality David A. Hoffman, a Boston-based ar- pany is facing an arbitration it thinks is Insurance Companies or Life Reinsur- or corruption in the arbitrators,” arbi- bitrator and mediator, said Casper’s de- “tainted” from the start, one that may well ance Companies, excluding however, trator “misbehavior,” and arbitrators ex- cision was a proper application of the have to be done over again once a court officers of the two parties to this Agree- ceeding their powers. Similarly, Section FAA. However, he said the case high- reviews the award, he said. ment, their affiliates or subsidiaries or 11 allows parties to petition a District lights a flaw in the statute itself. Robbins suggested that, depending on past employees of any of these entities.” Court to modify an arbitration award. After John Hancock initiated arbitra- Casper observed that under both tion in August 2015, Employers select- Section 10 and Section 11 it was “essen- ed Denis Loring as an arbitrator. tial for the district court’s jurisdiction” “The problem here is the FAA. It should allow pre- John Hancock demanded that Em- that the arbitrator’s decision was “final.” arbitration review of the selection of arbitrators, so ployers withdraw Loring, contending that his appointment violated the agree- “Thus, based upon the express terms that the parties and counsel don’t waste their time ment’s prohibition on the appointment of the FAA, challenges to a party-ap- of past or present employees. According pointed arbitrator, such as allegations of on a lengthy arbitration, only to find that they have to John Hancock, Loring was ineligible bias, are properly considered by courts to repeat the process because one of the selected because he was a former employee of only at the conclusion of the arbitra- John Hancock Mutual Life Insurance. tion,” she wrote. arbitrators was ineligible.” Employers contended that Loring Casper observed that the 2nd and — David A. Hoffman, Boston met the agreement’s qualifications for 5th U.S. Circuit Court of Appeals had arbitrators because he left John Han- already rejected John Hancock’s argu- cock Mutual Life Insurance before it be- ment that an exception exists in the came affiliated with John Hancock. Em- FAA that permits a District Court to re- “The problem here is the FAA. It the language of the parties’ arbitration ployers further asserted that John Han- move an arbitrator before the conclu- should allow pre-arbitration review of agreement, John Hancock may have a cock Mutual Life Insurance was no lon- sion of arbitration when removal is pre- the selection of arbitrators, so that the right to commence a separate arbitration ger affiliated with John Hancock. mised on contract-based qualifications. parties and counsel don’t waste their to resolve the parties’ disagreement over When Employers refused to with- John Hancock argued that a request time on a lengthy arbitration, only to who qualifies as an arbitrator under the draw Loring, John Hancock filed an ac- for pre-award removal based on arbi- find that they have to repeat the process terms of the agreement. The resolution of tion in federal court seeking his remov- trator qualifications is distinct from a because one of the selected arbitrators that issue could help John Hancock both al and an order directing Employers to court impermissibly intervening to re- was ineligible,” he said in an email. in its current dispute and should Employ- “name a replacement arbitrator in com- move an arbitrator because of bias. Boston business litigator Charles A. ers attempt to make similar appointments pliance with the Agreement.” But Casper found no basis in the Cook has represented parties in numer- in the future, he said. language of the FAA for making such ous arbitrations both in the U.S. and “Let’s say an arbitration panel comes No removal exception a distinction. internationally. Cook said he was not back and says here is what we believe this John Hancock acknowledged that the “The FAA provides no express autho- surprised by Casper’s interpretation of [arbitrator qualification] clause means,” FAA generally prohibits a court from rization for pre-award judicial inter- the FAA. Robbins said. “Then Employers is on no- removing party-appointed arbitrators “The agreement delegates to the arbi- tice that there’s an award in place essential- prior to the conclusion of the arbitra- vention regardless of the grounds for trators the resolution of ‘any controver- ly saying that your appointee is invalid.” tion. However, John Hancock argued removal; whether an arbitrator satis- sy or claim arising out of or relating to’ that the bar on judicial intervention was fies a provision of the arbitration agree- the agreement,” Cook said. “The quali- Reinsurance dispute limited to pre-award challenges regard- ment is a question of the arbitrator’s ca- fications and eligibility of the arbitrator The parties entered into a reinsurance ing the bias of arbitrators and did not ex- pacity to serve just as much as a chal- appointed by the defendant is for the ar- agreement in 1999. Under the agree- tend to qualification-based challenges. lenge regarding the arbitrator’s bias is a bitration panel, not the court, to decide.” ment, Employers accepted a percentage John Hancock urged the court to rec- question of capacity to serve,” the judge As a matter of public policy, Cook said, of John Hancock’s retention of liability ognize an exception to the general rule wrote.

SHARE YOUR EVENTS WITH THE LEGAL COMMUNITY Submit photos and captions to Alexandra Lapkin [email protected] www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 33 Appeals Court affirms HAC approval of 40B development Continued from page 1 not, in fact, outweigh the need for afford- new analytical scheme. able housing. Accordingly, on Feb. 10, But the Appeals Court disagreed, af- 2014, the HAC ordered the board to is- firming an earlier ruling in Superi- sue a comprehensive permit. or Court. The board did not appeal, but the “The four so-called ‘new’ factors delin- abutters, as interveners, sought judicial eated by the HAC are simply a more de- review in Superior Court pursuant to tailed explication of the two factors pre- G.L.c. 30A, §14. viously described in the Lunenberg deci- In January 2015, Judge Edward P. sion,” Judge Gregory I. Massing wrote for Leibensperger affirmed the HAC’s deci- the court, adding that it is a recognized sion. The abutters then appealed to the principle of administrative law that an Appeals Court. agency may adopt policies through both adjudication and rulemaking. Simple clarification The 23-page decision isEisai, Inc., et Before addressing the merits of the al. v. Housing Appeals Committee, Law- case, the Appeals Court found that, de- yers Weekly No. 11-072-16. The full text spite the developer’s arguments to the of the ruling can be found at masslawyer- contrary, the abutters did have stand- sweekly.com. Agostino said he was “skeptical” of the industrial park in Andover. ing to seek judicial review under Chap- court’s conclusion that the abutters had The park consists of 10 large business- ter 30A. Confirmation of power standing to appeal the HAC’s decision to es and a vacant lot, which the develop- Specifically, the court found that the The defendant developer’s attorney, the Superior Court under Chapter 30A, er purchased from the prior owner, who developer had failed to provide evidence Kevin P. O’Flaherty of Boston, said the which allows entities aggrieved by an had unsuccessfully marketed the lot for to rebut the presumption that, as abut- decision does not change the law in any agency decision to seek judicial review. commercial development. ters, the plaintiffs were aggrieved parties. way. Instead, he said, it provides confir- “The decision [does not] reference the The proposed development would Turning to substantive issues in the mation that the HAC has the administra- other avenue of appeal available to abut- consist of 248 rental units in four build- HAC’s decision, the Appeals Court re- tive expertise and discretion to make the ters, which is Chapter 40A, Section 17,” ings, a pool and a clubhouse. A quarter jected the abutters’ arguments that the rulings it makes. he said. “So now the Appeals Court is “The abutters argued that the HAC saying abutters also have the right to ap- was changing the rules,” O’Flaherty said. peal under Chapter 30A, creating yet an- “But this wasn’t the case. Here, the HAC other forum for abutters to potentially “These are significant issues for these businesses. [The just went further than it has in other cas- delay projects just through appeals. That developer] can try and say, ‘Don’t worry, this won’t es to explain its thinking in reaching the means the abutters in this case could conclusion it reached.” continue this appeal under Chapter 30A, affect you. We’ll confirm that our residents understand O’Flaherty also said the decision helps and then, if they’re not satisfied, they clarify for developers and municipali- might still claim a right to appeal under that they’re moving into an industrial park.’ But once ties that when affordable housing rep- Chapter 40A, which has a different stan- the residents are there, if they’re uncomfortable with resents less than 10 percent of a town’s dard of review with completely different housing stock, as is the case in Andover, issues at play.” the situation, the town will have to deal with that.” opponents face a very heavy burden in Robertson confirmed that his cli- — Christopher Robertson, Boston demonstrating that local concerns out- ents, in fact, currently have a 40A pend- weigh the need for affordable housing. ing in Essex Superior Court over Ando- Christopher Robertson, counsel for ver’s issuance of the permit following the the abutters, said his clients have not de- HAC decision. of the units would be reserved for afford- HAC’s four-part analysis represented an cided whether to appeal to the SJC. Donald R. Pinto Jr. of Boston, who able housing. impermissible creation of a new stan- But if the decision holds, the Boston represented a former abutter at an earli- When the developer filed the applica- dard of review. lawyer said, industrial and commercial er stage in the proceedings, said that if it tion, Andover’s affordable housing per- Instead, the court said, the HAC was developers will no longer be able to trust was not already clear afterLunenberg , it centage was 9.3 percent, which, under merely applying the Lunenberg analy- assurances from Massachusetts commu- is clear now that the so-called “municipal state law, creates a rebuttable presump- sis as to whether recognized municipal nities that there will not be residential de- planning defense” for denying a compre- tion that the local need for affordable planning interests outweighed the need velopments in industrially zoned areas. hensive permit is a “dead letter.” housing outweighs other local concerns. for affordable housing — and explaining Robertson added that his clients, ma- “If the HAC is hearing the case in the Nonetheless, on Sept. 7, 2012, after a in detail how it undertook the analysis. jor companies that had options to lo- first place, it means that a town hasn’t number of public hearings, the town’s “The first two factors in the restated cate elsewhere, including out of state, reached the statutory threshold of 10 zoning board denied the application on test assist the HAC in identifying specific made the decision to set up shop where percent affordable housing,” Pinto said. grounds that the proposal was inconsis- municipal planning interests and deter- they did based on the understanding that “And if the town hasn’t reached the 10 tent with “decades” of municipal plan- mining the extent to which the proposed there would be no residential develop- percent threshold, the HAC will invariDon’t- ning, economic Miss development Another strategies, Issue! plan interferes with those interests,” ment in the park, which has been zoned ably find that the town’s planning inter- and planning with owners and tenants Massing stated. “The third and fourth for industrial use since the 1950s. ests don’t outweigh the local need for af- of the abutting commercial/industri- factors attempt to quantify the extent to Now, his clients, which operate 24/7 fordable housing.” Renewal properties. your The boardsubscription also cited con- which today. municipal planning has actually with a constant flow of traffic, face the Still, Pinto found it noteworthy that cerns that proximity to the commer- shown results in terms of promoting af- prospect of residents complaining about the Appeals Court called out the HAC cial and industrial sites would threat- fordable housing.” trucks at 3 a.m., and of security concerns on a statement in its own order that 10 en theGo health to My and safetyAccount of residents on of the Finally,navigation the Appeals bar. Court found that over children crossing the street, he said. percent is a “relatively low goal” and that the development. the HAC’s decision was justifiable under “These are significant issues for these well more than 10 percent of most com- The developer appealed to the HAC, the law. businesses,” he said. “[The developer] can munities’ housing stock would need to whichLog granted in on permission the Account to the abut- Center“Balancing Login what page.it found to be rel- try and say, ‘Don’t worry, this won’t affect be low or moderate income to satisfy af- ters to participate in the proceedings atively weak interests asserted by the you. We’ll confirm that our residents un- fordable housing needs. as interveners. board and the abutters against Andover’s derstand that they’re moving into an in- “The court nipped in the bud any no- InHit reviewing RENEW the board’s on decision,your Account the failure Centerto meet the page. statutory minimum dustrial park.’ But once the residents are tion that the HAC itself could raise the HAC applied a four-part test in which ten-percent affordable housing obliga- there, if they’re uncomfortable with the 10 percent threshold, saying in no uncer- it considered the extent to which the tion the HAC concluded that the board situation because of all the reasons we’ve tain terms that once a town meets that proposedYou’re housing all set.conflicted with local ‘has not sustained its burden of proof, identified as reasons why you shouldn’t requirement, it can deny a comprehen- planning concerns; the importance of but that, on the contrary, the local con- have a residential development there, the sive permit and the HAC is compelled to the specific planning concerns present- cerns it has asserted do not outweigh the town will have to deal with that.” affirm the decision,” he said. ed; the quality of the town’s master plan, regional need for affordable housing,’” Boston lawyer Christopher R. Agos- in particular the housing element of the Massing wrote. tino, who was not involved in the case Administrative order plan and the extent to which it promotes Accordingly, giving appropriate def- but has handled similar issues, said he On Aug. 19, 2011, defendant Hanover affordable housing; and the amount and erence to the HAC as an administrative found a portion of the decision address- R.S. Limited Partnership filed an appli- type of affordable housing that has re- agency, the Appeals Court concluded ing the standing of an abutter to appeal cation for a comprehensive permit to sulted from the master plan. that requiring Andover to issue the com- a decision by the HAC to be particular- build a mixed-income rental housing deNeed- Using assistance? the test, the HAC Call decided 1-800-451-9998 that prehensive permit would not be arbi- ly significant. velopment within an existing office and the town’s municipal planning needs did trary, capricious or against the law.

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$ READ US ONLINE masslawyersweekly.com Octo 10 Milk St. Boston, MA 02108 • rilawyersweekly.com H4ZREN 34 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com Stepdad sued for abuse can assert psychotherapy privilege Continued from page 1 defendant moved for a protective order. patient participating in family therapy Asserting the psychotherapist-patient and that he may invoke the privilege.” privilege, the defendant sought to pre- The five-page decision is Medeiros, et clude Dr. Power from testifying about al. v. Campbell, Lawyers Weekly No. 02- or disclosing any document relating to 257-16. The full text of the ruling can be communications between the defen- found at masslawyersweekly.com. dant and Dr. Power during the March 1993 session. Harsh result? In opposing the motion, the plaintiffs Boston lawyers Mitchell Garabedian contended that the only “patient” at that and William H. Gordon represented the session was Medeiros and, therefore, the plaintiffs. Garabedian said he could not defendant was not entitled to claim the comment due to a court order sealing a protection of Massachusetts’ psycho- relevant document in the case. therapist-patient privilege statute. Ross A. Kimball of Boston and Atlanta attorneys Jeffrey B. Bogart and George R. Privilege enforced Ference represented the defendant. Kim- Under G.L.c. 233 §20B, “a patient shall ball also declined to comment, citing the have the privilege of refusing to disclose, sensitive nature of the case. In concluding that the government Massachusetts courts have a long his- and of preventing a witness from dis- Annette Gonthier-Kiely, president subpoena should have been quashed, tory of protecting the psychotherapy closing, any communication, wherever of the Massachusetts Academy of Tri- the SJC held that the state’s psychother- privilege, particularly in cases in which made, between said patient and a psy- al Attorneys, questioned whether Bur- apist-patient privilege statute does not the therapist does not provide a clear, up- chotherapist relative to the diagnosis or roughs’ decision was consistent with permit a weighing of the public interest front explanation to the participant that treatment of the patient’s mental or emo- the purpose of the psychotherapist-pa- — in that case, the furtherance of a gov- what they say during the course of the tional condition.” tient privilege as codified at G.L.c. 233, ernment investigation into the doctor’s session is not privileged, Cichello said. The privilege applies to “patients en- §20B to protect “justifiable” expectations treatment practices — against the inter- In that light, Cichello said he could un- gaged with a psychotherapist in mari- of confidentiality. ests protected by the privilege. derstand why Burroughs did not find Dr. tal therapy, family therapy, or consul- “The first prerequisite is you have to For the same reasons expressed by Power’s testimony determinative on the tation in contemplation of such ther- be a patient,” she said. “It was a compel- the SJC in Doe, Cirel said, it would have issue of whether the defendant qualified apy.” The statute defines patient as “a ling fact that, at the evidentiary hearing, been improper for Burroughs to weigh as her patient during the 1993 session. person who, during the course of diag- Dr. Power testified that only the plaintiff, the public interest in protecting victims “I am sure that the therapist thought nosis or treatment, communicates with Ms. Medeiros, was her client and that she of sexual abuse in deciding whether to of the daughter with whom she had mul- a psychotherapist.” did not consider Mr. Campbell a patient. tiple therapy sessions as ‘the client,’” he As a threshold issue, Burroughs found Right there I think he should not be af- said. “But [Dr. Power] clearly treated it “likely” that the March 5, 1993, thera- forded the privilege.” or talked about the situation as a fami- py session was not preceded by any state- Gonthier-Kiely also noted that the “In the absence of ly therapy session, which carries with it ment limiting confidentiality or privi- judge appeared to give less weight to the implications which she may or may not lege. The finding was based both on the doctor’s testimony than she did to a nota- a clear statement have thought through.” fact that none of the participants could tion on the doctor’s notes labeling the ap- of ‘what you tell Cichello said he sees Burroughs’ de- recall such a disclaimer and because Dr. pointment in question a “family” session. cision as essentially recognizing what Power testified at an evidentiary hear- “It was a family session in the sense me is not going amounts to be a “default” rule protect- ing that it was not her practice to speak that family members attended,” Gon- ing the privilege in the family thera- to be privileged,’ about privilege at a session. thier-Kiely said. “In this setting, when py setting. Turning to the larger issue, Burroughs we’re talking about a minor who was [an the judge felt it was reasonable “In the absence of a clear statement of was unpersuaded by the plaintiffs’ evi- alleged] victim of sexual abuse and the ‘what you tell me is not going to be priv- for this man to assume that his dence that the defendant was not a pa- protections that should be afforded [to ileged,’ the judge felt it was reasonable tient within the meaning of §20B. Me- such victims], the weight should go to communications were going to for this man to assume that his commu- deiros indicated in an affidavit that she protecting that minor.” nications were going to be confidential,” believed the March 5 session was for her Gonthier-Kiely cited the public poli- be confidential.” Cichello said. cy embodied in G.L.c. 119, §51A, which — Anthony J. Cichello, Boston benefit alone and not for the treatment of imposes a mandatory duty on cer- Sexual abuse allegations any of the other participants. tain professionals to report suspected The defendant, who now resides in Moreover, Dr. Power testified that she child abuse. Georgia, became the plaintiffs’ stepfather did not intend to treat Campbell at the when he married Brayden in 1980. At March 5 session and that the family was “Right there is the implicit under- pierce the psychotherapist privilege as- standing that if you convey a crime such the time, Medeiros was 11 and Sweeney invited so the doctor could get a better serted by the defendant in Medeiros. as that to a psychotherapist, it’s not pro- was 8. The plaintiffs alleged the defen- understanding of the family for the pur- According to Cirel, the Legislature in tected,” she said. “That psychotherapist is dant began sexually abusing them when pose of treating Medeiros. statutorily recognizing the psychothera- mandated to report it.” he became their mother’s live-in boy- But Burroughs found compelling ev- pist-patient privilege has already deter- But Boston attorney Paul R. Cirel said friend before the marriage and that the idence that Dr. Power titled her treat- mined that the weight is in favor of pro- Burroughs was “spot on” in concluding abuse occurred between 1979 and 1984 ment notes for the March 5 appoint- that the defendant could assert the privi- tecting those communications. while the family lived in Massachusetts. ment “Family Session.” In addition, the lege. In addition, Cirel said, the Supreme “The purpose of the privilege is to en- Medeiros received psychological psychologist referred to that session as Judicial Court has rejected a balancing courage a full, fair and honest disclosure treatment from Dr. Power in early 1993. a “family therapy session” in the treat- of public policy considerations when of information within the ‘cone of silence’ The defendant was a participant in one ment notes for her next appointment it comes to the psychotherapist-pa- of therapy,” Cirel said. “Family therapy is of Medeiros’ nine sessions with Dr. Pow- with Medeiros. tient privilege. precisely that. [Here,] the family was in- er. Specifically, on March 5, 1993, the de- “The purpose of the psychothera- “Privileges aren’t a balancing test,” he vited in. What good would it be for the fendant attended a session that, in addi- pist-patient privilege is to protect the said. “We have very few of them in Mas- patient who was initially being treated, as tion to Medeiros, was attended by Swee- ‘justifiable expectations of confidential- sachusetts, and the few we have are pret- well as to the other family members, if ney and Brayden. ity’ of people seeking psychotherapeu- ty absolute.” there was not a thorough disclosure and The plaintiffs, who are residents of tic help, and based on the foregoing, Mr. In 2010, Cirel argued Board of Registra- unburdening of whatever the issues are?” Massachusetts, sued the defendant in Campbell could have justifiably expected tion in Medicine v. Doe, one of the land- Boston health care lawyer Antho- federal court in 2015, asserting claims that the statements he made to Dr. Power mark cases on the psychotherapist-pa- ny J. Cichello said many lawyers might for assault, battery, and both intention- at the March 5, 1993 session were privi- tient privilege. He represented a psychia- see Medeiros as a harsh result given the al and negligent infliction of emotion- leged,” the judge wrote. trist in blocking a government subpoena troubling allegations in the case. But the al distress. — Pat Murphy of more than 20 patient files. judge was on legally firm ground, he said. During the course of discovery, the [email protected]

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Contact Joan McGonagle at joan.mcgonagle LOOKING FOR A NEW JOB? @lawyersweekly. CLASSIFIEDS.MALAWYERSWEEKLY.COM com, or call 1-617-218-8119. TO PLACE YOUR EMPLOYMENT ADS, CALL JOAN MCGONAGLE AT 617-218-8119 OR EMAIL [email protected] CLASSIFIEDS. MALAWYERSWEEKLY.COM OFFICE SPACE Call Joan McGonagle at (617) 218-8119 or email [email protected] to reserve your office space advertisement. 38 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com Opinion More guidance needed on juror contact robbery. The case was ex- The SJC agreed in a unan- the “individual or collec- encounter in trying to nav- EDITORIAL tremely high profile, in part imous decision, holding that tive thought processes of ju- igate the restrictions the because one of the victims the new rule applies retroac- rors, the reasons for their de- Moore decision places on A recent decision from was a 2-year-old. A notice of tively to cases either pending cision, or the substance of Rule 3.5(c), the most helpful the Supreme Judicial Court appeal was filed in January on appeal or for which the their deliberations.” makes clear that a revi- approach for the court would 2013, but the appeal has not appeal period has not yet run. In other words, lawyers sion to Massachusetts Rule yet been briefed or argued. But the court also conclud- of Professional Conduct 3.5(c) eliminating the pro- The change to Rule 3.5(c) ed that some aspects of its de- hibition on juror contact ap- went into effect on July 1, cision in Commonwealth v. Lawyers can ask if anything improperly influenced plies retroactively. 2015. After that date, attor- Fidler, which provides that the jury’s deliberations, but they can’t ask the next But while the opinion pro- neys were permitted to reach attorneys can contact jurors vides a straightforward reso- out to jurors post-trial, al- only under court supervi- logical question: How exactly did those improper lution of that issue, it creates though jurors could decline sion and direction and puts influences affect deliberations? a potential problem for trial to speak and judges had the restrictions on the scope of attorneys by concluding that discretion to place jurors even approved contact, sur- portions of a 1979 decision off limits. vived the changes to Rule The appellate attorneys for 3.5(c). can ask if anything improp- be to incorporate clarifying restricting juror contact are erly influenced the jury’s de- the defendant in Moore ar- Specifically, the court held language into the comments still good law. liberations, but they can’t gued that they should be per- that post-verdict inquiries to the rule. The defendant in the case ask the next logical ques- mitted to contact jurors in must be limited to matters Explaining the distinc- before the court, Common- tion: How exactly did those his case even though the trial related to “extraneous in- wealth v. Moore, was convict- improper influences af- tions between what may and ed in 2012 of murdering four ended before the rule change fluences” and may not stray fect deliberations? may not be explored through people during a drug-related went into effect. into questions regarding That’s a very fine line to post-trial questions would walk, and lawyers who fail to ensure the rule is fully con- sistent with the holding in Massachusetts Lawyers Weekly’s Editorial Advisory Board provides knowledge and guidance for the editorials that appear on this page. do so could find themselves Moore and avoid creating a The board is an advisory panel only, with no official voting or participation record. The input from the board is a tremendous resource to in ethical hot water. Lawyers Weekly, however, the editorials represent the position of the newspaper and its editorial staff, not the members, nor any given In light of the difficul- trap for unwary trial attor- member, of the board. ties attorneys are likely to neys. BOARD OF EDITORS: Joseph S. Berman, Boston; Paula S. Bliss, Boston; Andrea J. Cabral, Boston; Randy S. Chapman, Chelsea; John M. Connors, Salem; Michael C. Gilleran, Boston; Hon. Edward M. Ginsburg, Newton; Marguerite T. Grant, Canton; L. Scott Harshbarger, Boston; MASSACHUSETTS

Martin W. Healy, Boston; Hon. Margaret R. Hinkle, Boston; Thomas M. Hoopes, Boston; Hon. Rudolph Kass, Boston; Marsha V. Kazarosian, ESTABLISHED 1972 Haverhill; Renee M. Landers, Boston; Richard L. Levine, Boston; Eric J. Parker, Boston; Michelle R. Peirce, Boston; C. Max Perlman; Boston; STATEWIDE GENERAL CIRCULATION Patricia M. Rapinchuk, Springfield; Martin R. Rosenthal, Boston; Jeffrey Sacks, Boston; Albert W. Wallis, Boston 617- 451-7300 LETTER TO THE EDITOR PUBLISHER / EDITOR-IN-CHIEF AUDIENCE DEVELOPMENT MANAGER Susan A. Bocamazo, Esq. Ext. 12191 JoAnn Griffin, Ext. 12164 Opposition to zoning reform measure reflects [email protected] [email protected] EDITOR ADVERTISING DIRECTOR Henriette Campagne, Ext. 12192 Scott Ziegler, Ext. 12211 [email protected] groups’ ‘thorough, well-documented concerns’ [email protected] OPINION EDITOR SENIOR ACCOUNT EXECUTIVE To the editor: have a great appreciation of the there is practical and conform- Thomas E. Egan, Esq. Ext. 12166 Melanie Footer, Ext. 12121 The June 13 editorial (“Leg- practical implications of this ing frontage on a public way [email protected] islature should pass long-need- legislation. Some of the main (or an approved private way), [email protected] OPINION DIGESTER BUSINESS DEVELOPMENT CONSULTANT - ed zoning reform”) advocating concerns are as follows. results in the loss of one of Jill Taintor, Esq. the current legislative initia- The Certified Communi- the only fast-track permitting [email protected] CLASSIFIED tive for zoning reform is mis- ties Program would allow for methods for land development. Joan McGonagle, Ext. 12119 NEWS REPORTERS [email protected] placed and misdirected, espe- some municipalities to opt-in As stated by Undersecretary Patrick Murphy, Esq. cially with regard to the stated and obtain greater “privileges of the Department of Housing [email protected] ACCOUNT EXECUTIVES goals of uniform laws, prompt and powers” regarding zoning and Community Development Elaine Fanning, Ext. 12222 Kristopher R. Olson, Esq. Ext. 12188 [email protected] and predictable permitting, in- and land use, creating disparate Chrystal Kornegay, the truth of [email protected] creased housing density, in- treatment from one communi- the matter is that municipalities Lindsay Rice, Ext. 12134 Sheri Qualters, Ext. 12131 [email protected] creased housing choice, and ty to the next for the same type currently have all the tools they [email protected] ADVERTISING TRAFFIC MANAGER mixed use development. of development. That would se- need under existing zoning and DIGITAL EDITOR & EVENTS DIRECTOR In fact, contrary to the impli- verely erode uniformity of laws subdivision laws to improve Natalie Miller, Ext. 12190 Carla Jewett, Ext. 12145 cation that the real estate com- throughout the commonwealth. development options, promote [email protected] [email protected] munity supports this effort, the Second, the lowering of req- growth, and address the needs EDITORIAL ASSISTANT main organizations involved in uisite voting percentages in the for housing choice and hous- Alexandra Lapkin, Ext. 12152 Designated as an authorized source for the [email protected] housing, office and industrial passage of zoning amendments ing affordability. Communities publication of all rules of court and other development — including the may generate new and creative do not need a drastic statuto- Member of New England Newspaper notices by the: Homebuilders and Remodelers zoning districts, but it could ry re-write of the zoning law to & Press Association. • Supreme Judicial Court, Association of Massachusetts, erode the stability currently af- achieve those goals. 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Rates quoted on request. and land use development, I which is allowed only where Westborough www.masslawyersweekly.com July 11, 2016 | Massachusetts Lawyers Weekly | 39 OPINION Criticize judges for how they rule, not who they are By Nancy Gertner old, discredited ideas — concern Rep. Paul Ryan noted. Trump’s comment the needs of the constituency, gen- only for the privileged male de- Reducing a human be- about Judge Curiel flies der, race or ethnic group to which In recent fendant and his future prospects, ing — let alone a judge in the face of decades that judge belongs. A judge’s di- weeks, two none for the victim or her consid- — to his or her ethnic of substantial efforts to verse life experiences are supposed judges have erable pain, which she had bravely heritage or race or gen- diversify the American to be filtered through the require- come in for described in her court statement. der is precisely what bench, which for most ments of the law, the demands of strong criti- Criticism of what the judge did the civil rights move- of our history has been precedent, the constitutional oath. cism, one for — but even more, what he said ment has fought against AARON PERSKY overwhelmingly white And what emerges from that filter what he did — is entirely fair (although a re- for decades. and male. is all the more legitimate because and the other call of the judge, for a single case, More than just racist, Sens. Elizabeth War- it is not the product of one gender, for who he is — or more impor- may not be). Judging is a pub- Trump’s comments un- ren and John Markey status or ethnicity. tantly, what his father and moth- lic trust. The public has a right to dermine the very legit- went even further, seek- Judge Persky can be fairly crit- er are. scrutinize his decisions in this case imacy of the court; not ing more than gen- icized for what he did. Perhaps a Judge Aaron Persky of the San- and others. just of this judge but der and racial diversi- different judge, with a different set ta Clara County Superior Court But criticism that is not even all judges. When law- ty. They put together of experiences, would have bet- in California is being criticized for close to fair, justified or appropri- yers defending a race an advisory committee ter understood how much Brock the six-month sentence he gave ate is Donald Trump’s criticism of and gender discrimi- to recommend candi- Turner’s sentencing reflected years GONZALO CURIEL Brock Turner, a Stanford Universi- U.S. District Court Judge Gonzalo nation case sought to dates for federal vacan- of benighted attitudes to women. ty student convicted of rape. Curiel, the judge presiding over a disqualify Judge Con- cies and tasked it with But there is nothing suspect The facts seemed clear. A jury lawsuit on behalf of students who stance Baker Motley because she encouraging diversity of experi- about Judge Curiel’s decisions in found Turner guilty of rape — be- claimed to have been defrauded was a black woman who had been ence. (I was chair of that adviso- the Trump University case. In- yond a reasonable doubt, the most by the Trump University real es- a civil rights lawyer, she said: “If ry committee.) Too often the ju- deed, in a nod to Trump’s nom- rigorous standard in the criminal tate school. background or sex or race of each dicial ranks were filled with for- ination, he decided to postpone justice system. There was noth- Judge Curiel was slammed by judge were, by definition, sufficient mer prosecutors or lawyers from the jury trial in the case until after ing remotely consensual about the presumptive Republican pres- grounds for removal, no judge on large firms, not small-firm lawyers, the election. the encounter: The woman was idential nominee just because his this court could hear this case, or former public defenders, lawyers He should not be criticized for unconscious, attacked behind parents were born in Mexico, al- many others.” representing labor or civil rights who he is, the family into which he a dumpster. though the judge himself was born Take, for example, Judge Mary- plaintiffs. Trump would turn back was born. Perhaps a different can- The judge’s remarks reflected in Indiana. anne Trump Barry, Donald’s sister the clock on those efforts. didate, with a better understand- Stereotyping about one’s atti- and senior judge on a federal ap- Contrary to Trump’s comments, ing of the Constitution, let alone Nancy Gertner, a professor at tudes based on his country of birth peals court. Should litigants move a representative bench does not our country’s history of racism, Harvard Law School, is a retired (his parents’ country, to boot) is to disqualify her because of her mean a bench that acts like a legis- would have understood the dif- U.S. District Court judge. the very definition of racism, as brother’s affiliations? lature, deciding cases according to ference between the two. LETTERS TO THE EDITOR Veterans deserve more from state’s Child Support Guidelines To the editor: to us not understanding that their the children suffer. But these fam- that are uninformed or that unin- Working with these veterans Veterans Legal Services recently right to be involved in their chil- ilies and these children are already tentionally treat veterans and ser- firsthand has highlighted how presented oral testimony and de- dren’s lives is equally important suffering. Parents who do not want vicemembers more harshly than seemingly small details in policies tailed written recommendations and distinct from their financial their children to face the stigma those who have not served. like the Child Support Guidelines to the Child Support Guidelines obligations. Many of these veter- of having a parent who is home- An indigent veteran receiving can have a huge impact on indi- Task Force regarding specific ways ans have the misconception that less, has a disability, or is living in needs-based state veterans’ ben- viduals’ lives when they have the the Massachusetts Child Support parenting time is contingent upon poverty, often distance themselves efits should not be treated differ- force of the law behind them. Guidelines can be adjusted to be paying. Even when the veteran un- from their children. ently than someone who has never In the eight years I have worked more fairly and consistently ap- derstands these are legally distinct The guidelines can do more to served our country and is on Sup- with VLS, I have sadly had several plied to cases involving veterans responsibilities, a parent strug- discourage that, and to recognize plemental Security Income simply clients express thoughts of suicide and military families. gling financially may not pursue the reality that leaving one parent because the current guidelines do or self-harm. Many had an issue Veterans Legal Services as- parenting time in order to avoid a without the basic resources to live not recognize that some forms of with child support that became sists more than 500 homeless and confrontation with the other par- independently and participate in veterans’ benefits are means-tested. so overwhelming they felt totally low-income veterans each year, ent, or returning to court while his or her child’s life damages and A veteran who relocates to Mas- hopeless and did not know what many of whom are dealing with behind on payments, or simply devalues that parent-child rela- sachusetts to access VA health care else to do. Many had tried to navi- child support issues. At VLS, we because they are ashamed about tionship in a manner that is not in should not have the Massachusetts gate the court system on their own believe everyone who has a child their circumstances. the child’s best interests. guidelines improperly applied to and failed, often multiple times. must meet the responsibilities of The reality is there are often It is not enough to say that we modify an out-of-state order. Yet none of these veterans’ chil- parenthood, but these responsi- simply not enough resources to go thank our veterans for their ser- A deployed servicemember dren would have been better off bilities are much more than mere- around. It can be tempting to say vice. If we value service as a coun- should not bear the responsibili- losing their parent or not hav- ly monetary. better that the non-custodial par- try and a commonwealth, we have ty of educating the system on the ing a meaningful relationship VLS’s clients frequently come ent bears that burden than having a responsibility to improve systems Servicemembers Civil Relief Act. with him or her. It is simply not in And a disabled veteran on So- any child’s best interests for that cial Security Disability should not to happen. Supreme Court’s ‘Strieff’ another ‘shameful ruling’ have to fight in order to receive The Child Support Guidelines proper credit for the child’s depen- Task Force can help these fami- To the editor: used against me. warrant, and if there is one, dency benefits paid because of his lies. This review offers a chance to Regarding the U.S. Supreme Everyone else? By a 5-3 ma- make an arrest and a search, or her work history. demonstrate that the state values Court’s recent decision in Utah jority, the Supreme Court of because the subsequent dis- These are all examples of the parents who serve our country by v. Strieff: I am an older white the United States just said (to covery of the warrant now problematic results VLS has seen establishing guidelines that make man, usually dressed like a be polite), “too bad.” To Citi- permits the prosecution’s use in real cases that could be reme- the child support system better in- lawyer. I am not going to be zens United, which helped the of the fruits of the initially ille- died or avoided with discrete, but formed, easier to navigate, more consistent, and more fair — for randomly stopped by a police plutocrats tighten their con- gal stop. Got that? essential, changes to the current officer and made to explain trol over what is left of our veterans and servicemembers. The deterrence effect of the Child Support Guidelines. why I am doing what I am do- democracy, we can add this Massachusetts has the oppor- Fourth Amendment is skirt- Nearly every veteran VLS works ing or why I am where I am. shameful ruling, which gives tunity to lead the nation in mak- ed by a neat end run. Hats off, with is deeply ashamed of their I am not going to be ordered rogue police officers the incen- ing its Child Support Guidelines at least, to the three dissent- inability to do more for their chil- to produce identification so a tive to flout our former Fourth dren both financially and other- among the most well-versed in ers, who by chance are mi- search can be made for out- Amendment protections. wise. Nearly every single one has the country with regard to those nority women — Madame standing warrants. I am not Here’s the new, abusive po- been through some form of hor- who serve. going to be arrested if there is licing modus operandi, at least Justices Ginsburg, Kagan rifying trauma and has disabili- The question is, will we take it? an outstanding warrant for an in poor communities: Make and Sotomayor. ties such as post-traumatic stress, Anna Schleelein Richardson unpaid fine. I am not going to an illegal stop, demand iden- Gregory R. Barison traumatic brain injury, anxiety, Veterans Legal Services be searched for evidence to be tification, run a search for a Boston depression and various physi- The writer is co-executive director cal impairments. and chief counsel of VLS in Boston. 40 | Massachusetts Lawyers Weekly | July 11, 2016 www.masslawyersweekly.com People in the Law Contact Alexandra Lapkin at [email protected] Best-selling author headlines bar’s annual awards dinner The Massachusetts Bar Association held its annual dinner at the Westin Boston Waterfront, featuring Dorchester native Dennis Lehane, author of “Mystic River” and “Gone, Baby, Gone,” as keynote speaker. Senate President Stan- ley C. Rosenberg received the 2016 MBA Legislator of the Year Award, while lawyer George G. Hardiman and Bos- 1 MBA President Robert W. ton Municipal Court Clerk-Magistrate Daniel J. Hogan both received President’s Awards. Harnais (center) with his family and Lehane (third from right) 2 MBA officers, from left: Secretary John J. Morrissey, Chief Legal Counsel and Chief Operating Officer Martin W. Healy, Lehane, President Robert W. Harnais, Treasurer Christopher P. Sullivan and President-elect Jeffrey N. Catalano 3 From left: MBA COO Martin 1 2 W. Healy, Superior Court Chief Justice Judith Fabricant, Celeste Healy and Lehane 4 From left: Celeste Healy, Supreme Judicial Court Chief Justice Ralph D. Gants, Trial Court Chief Justice Paula M. Carey and MBA COO Martin W. Healy 5 The BMC’s Hogan (left) with MBA President Robert W. Harnais 6 Hardiman (left) and MBA 3 4 President Robert W. Harnais 7 Senate President Rosenberg (left) and MBA President Robert W. Harnais 8 MBA President Robert W. Harnais (left) with Oliver Wendell Holmes Jr. Scholarship recipient Lauren N. Schaal and President-elect Jeffrey N. Catalano 9 2016 MBA Access to Justice Award winners, from left: 5 6 7 Defender Award, Benjamin H. Keehn; Legal Services Award, Valerie Fisk; Pro Bono Award for Law Firms, Kenneth R. Berman accepting for Nutter, McClennen & Fish; Pro Bono Publico Award, Ingrid S. Martin; Lifetime Achievement Award, Andrew McIntosh accepting for his father, T. Richard McIntosh; Prosecutor Award, Ellen Berger; Rising Star, Margaretta Homsey Kroeger; and Pro Bono Publico Award, Charles R. Casartello Jr. 8 9

Karen A. Lacourse has joined Nelson, Leah M. Houghton, Jeremy B. Kan- New associations Mullins, Riley & Scarborough in Boston as trowitz, Samuel R. Rowley, Lawrence Professional groups Richard J. Hindlian, who practic- a senior technical specialist in the intellec- T. Stanley and Jason P. Traue Jr. have Glenn G. Pudelka, counsel in Locke es tax and business law, has joined Da- tual property group. been named partners at Morgan Lewis in Lord’s intellectual property department vis, Malm & D’Agostine in Boston as Priya K. Amar has joined Boston’s Goul- Boston, effective Oct. 1. in Boston, was elected vice president and a shareholder. ston & Storrs as an associate in the private president-elect of the Copyright Soci- Jonathan R. DeBlois has joined Sun- client and trust practice group. Michelle L. Kelley has been named ety of the USA. After serving a two-year stein, Kann, Murphy & Timbers in Bos- acting clerk-magistrate at the Wrentham term in the position, Pudelka will be- ton as a litigation associate. Promotions District Court, succeeding Edward J. come president. Robert A. Fisher has joined the Bos- Ruth H. Silman has been named of- Doherty upon his retirement in Septem- Juvenile Court Chief Justice Amy ton office of Seyfarth Shaw as a partner fice managing partner at Nixon Peabody ber. She was previously the court’s assis- Nechtem has been elected to Suffolk in the labor and employment group. in Boston. tant clerk-magistrate. University’s board of trustees.