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.