THE MOST IMPORTANT OPINIONS

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1 Cite this page 41 MLW 1903 masslawyersweekly.com July 8, 2013 Massachusetts Lawyers Weekly 15 THE MOST IMPORTANT OPINIONS This annual section contains summaries of hundreds of important opinions that were published in Massachusetts Lawyers Weekly in the first six months of The Important Opinions of the Week that appear on the front page of the newspaper are selected from the decisions issued and received the previous week. The summaries cover rulings from the appellate and trial courts in Massachusetts, as well as from MCAD and other state agencies. The full text of any opinion from the 1st U.S. Circuit Court of Appeals, Bankruptcy Appellate Panel, U.S. District Court, U.S. Bankruptcy Court, U.S. magistrate judges, Supreme Judicial Court and Appeals Court can be obtained without cost by visiting masslawyersweekly.com. All other court opinions included in this section can be ordered from lwopinions.com. The complete Lawyers Weekly digest of any brief summary contained here can be found by searching Massachusetts Lawyers Weekly s archives at masslawyersweekly.com. Please note that, while Lawyers Weekly receives all decisions of the appellate courts in the state, the newspaper relies on individual judges and attorneys to inform it of trial court rulings that might be of interest to the bar. Please consider sending in these rulings whether or not they seem like significant cases. Upon request, the names of the attorneys of record in the case will be included in the paper. If you wish to submit a trial court decision, please mail it to: Thomas E. Egan, Massachusetts Lawyers Weekly, 10 Milk St., Suite 1000, 10th Floor, Boston, MA, , or it to ADMINISTRATIVE APA - Plausibility The plausibility standard does not apply to a complaint under the Administrative Procedure Act for judicial review of a final agency action, the 1st U.S. Circuit Court of Appeals says. Atieh, et al. v. Riordan, et al. (Lawyers Weekly No ) (9 AGENCY AND PARTNERSHIP Franchise A franchisor is vicariously liable for the conduct of its franchisee only where the franchisor controls or has a right to control the specific policy or practice resulting in harm to the plaintiff, the Supreme Judicial Depianti, et al. v. Jan-Pro Franchising International, Inc. (Lawyers Weekly No ) (29 ANTITRUST Conspiracy - Pleading standard In dismissing a conspiracy claim under 1 of the Sherman Antitrust Act, a judge (1) improperly applied a heightened pleading standard and (2) improperly occupied a factfinder role by choosing among plausible alternative theories interpreting the defendants conduct and by adopting as true allegations made by the defendants, the 1st U.S. Circuit Court of Appeals Evergreen Partnering Group, Inc. v. Pactiv Corporation, et al. (Lawyers Weekly No ) (40 Labor union - Conspiracy A defendant labor union must be awarded summary judgment on antitrust claims asserted by five plaintiff nonunion steel erectors, as the plaintiffs have failed to demonstrate an unlawful anticompetitive effect of any aspect of the union s accused conduct, a U.S. District Court judge American Steel Erectors, Inc., et al. v. Local Union No. 7, International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers (Lawyers Weekly No ) (23 APPEALS PACA - Bond The appeal provisions including the bond requirements of the Perishable Agricultural Commodities Act are mandatory and jurisdictional, the 1st U.S. Circuit Court of Appeals determines. The Alphas Company, Inc. v. Kopke, et al. (Lawyers Weekly No ) (10 ARBITRATION CBA - Reinstatement An arbitration award reinstating a discharged employee should be confirmed even though the employee violated the employer s safety policy, a U.S. District Court judge Angelica Textile Services, Inc. v. Local Union 170, International Brotherhood of Teamsters (Lawyers Weekly No ) (9 Class action waiver - Consumer contract A court is not foreclosed from invalidating an arbitration agreement that includes a class action waiver if a plaintiff can demonstrate that he or she effectively cannot pursue a claim against the defendant in individual arbitration according to the terms of the agreement, thus rendering his or her claim nonremediable, the Supreme Judicial Court says. Feeney, et al. v. Dell Inc., et al. (Lawyers Weekly No ) (52 Employee handbook An arbitration clause in an employee handbook is not applicable to a suit brought by a plaintiff employer alleging that the defendants her employer, its owner and her former supervisor interfered with her request for maternity leave under the Family and Medical Leave Act and retaliated against her by passing her over for promotion and demoting her to a part-time position, a U.S. District Court judge concludes. Domenichetti v. The Salter School, LLC, et al. (Lawyers Weekly No ) (12 Minor - Customer agreement Even though a plaintiff was a minor when she entered into a customer agreement containing an arbitration clause, the clause is binding because the plaintiff was acting as her parents authorized agent when she executed the agreement, a U.S. District Court judge Chung, et al. v. StudentCity.com, Inc. (Lawyers Weekly No ) (11 ATTORNEYS Bar counsel - BBO - Immunity Under S.J.C. Rule 4:01, 9, a complainant is entitled to absolute immunity from civil liability with respect to a complaint filed with bar counsel or the Board of Bar Overseers, as well as sworn testimony given or communications made to bar counsel or the BBO or any hearing committee, special hearing officer or hearing panel thereof, the Supreme Judicial Bar Counsel v. Farber (Lawyers Weekly No ) (16 Discipline - Cooperation An attorney s failure to cooperate in the disciplinary process, including her failure to respond to the petition for discipline, did not require imposition of more than a six-month suspension, the Supreme Judicial Court In the Matter of Gustafson, Lauren (Lawyers Weekly No ) (4 Estate plan - Duty of care A plaintiff executor has legal standing to bring a legal malpractice action against the defendant attorney who prepared the testator s estate plan, a Superior Court judge Masciari v. Fenichel (Lawyers Weekly No ) (8 Fees - G.L.c. 93A A defendant corporation must pay counsel fees in the amount of $703, even though close to half of the total fees claimed were for the period while the defendant was not, at least formally, a party, a Superior Court judge rules. Passatempo, et al. v. McMenimen, et al. (Lawyers Weekly No ) (15 Fees - Request In order to be awarded counsel fees under 42 U.S.C. 1988, a party must request costs and fees separately, the Jones, et al. v. Boykan, et al. (Lawyers Weekly No ) (23 Fees - Settlement offer In awarding a prevailing plaintiff only $30,000 of the nearly $170,000 in fees that she requested, a U.S. District Court judge acted improperly by (1) linking the amount of compensable fees to the amount of damages and (2) factoring in the plaintiff s refusal to accept the defendants settlement offer, the 1st U.S. Circuit Court of Appeals concludes. Joyce v. Town of Dennis, et al. (Lawyers Weekly No ) (43 G.L.c. 93A - Contingent fee agreement A judge committed no prejudicial error in concluding that an attorney misled two of his clients into an improper contingent fee agreement in violation of G.L.c. 93A, the Appeals Court decides in an unpublished opinion. Landry v. Haartz, et al. (Lawyers Weekly No ) (15 Malpractice - Vicarious liability A plaintiff trust beneficiary and coplaintiff trustee, alleging that an attorney mismanaged trust assets while serving as a co-trustee, cannot hold liable a defendant law firm that employed the attorney, as the firm had no attorney-client relationship with either plaintiff, a Superior Court judge rules. Yeomans, et al. v. Stackpole et al. (Lawyers Weekly No ) (8 Privilege - At issue waiver An at issue waiver of privilege between defendants and their corporate counsel must be found in a case in which the defendants relied on privileged communications to support their counterclaim that the plaintiff s decedent breached his fiduciary duties, the Supreme Judicial Court determines. Clair, et al. v. Clair, et al. (Lawyers Weekly No ) (25 Referral - Conflict - Trust - Estate An attorney who referred a claim against trustees who used to be his clients cannot be held liable to those former clients, as the mere referral of the claim against the trustees to separate counsel would not by itself constitute a breach of any duty or a betrayal, the Appeals Court rules in an unpublished opinion. Staten, et al. v. O Neill, et al. (Lawyers Weekly No ) (8 BANKRUPTCY ADHD - Fraud A U.S. Bankruptcy Court order denying a debtor s discharge because he omitted assets from his schedules should be affirmed despite the debtor s contention that he did not have the requisite fraudulent intent because he suffers from attention deficit hyperactivity disorder, which impairs his working memory, the Bankruptcy Appellate Panel In Re: McCarthy, Thomas P. (Lawyers Weekly No ) (22 Automatic stay - Successive petitions When a second bankruptcy petition is filed within a year of the dismissal of a previous petition, the automatic stay terminates in its entirety 30 days after the petition is filed as to all interests of the debtor, including property in the bankruptcy estate, a U.S. District Court judge says. St. Anne s Credit Union v. Ackell (Lawyers Weekly No ) (6 Commission - Trustee Debtors and creditors must be provided with notice concerning a Chapter 13 trustee s 10 percent commission, a U.S. Bankruptcy Court judge says. In Re: Tagliavia, Brian P., et al. (Lawyers Weekly No ) (5 Contractor - Willful and malicious injury Even though a homeowner obtained a state court judgment against a bankrupt contractor, the homeowner s complaint under 11 U.S.C. 523(a)(6) must be dismissed for failure to state a plausible claim for a willful and malicious injury by the debtor to another entity or to the property of another entity, a U.S. Bankruptcy Court judge rules. In Re: Spagnuolo, Robert E., Jr. (Lawyers Weekly No ) (7 Counsel fees - Trustee A U.S. Bankruptcy Court judge lacked the authority to award fees incurred by a debtor s attorney fees after the appointment of a Chapter 11 trustee, a U.S. District Court judge concludes. In Re: International Gospel Party Boosting Jesus Groups, Inc. (Lawyers Weekly No ) (14 Discharge injunction - Mortgage A mortgage lender did not violate the Bankruptcy Code s discharge injunction by refusing to foreclose or otherwise take title to the residence belonging to debtors who sought to surrender the residence, the 1st U.S. Circuit Court of Appeals rules. In Re: Canning, Ralph G. III, et al. (Lawyers Weekly No ) (18 Continued on page 16

2 16 Massachusetts Lawyers Weekly July 8, 2013 masslawyersweekly.com Cite this page 41 MLW 1904 Continued from page 15 Dismissal - Bar to refiling A serial filer who has exhibited an unwillingness to prosecute her cases in accordance with the law should be barred from filing another bankruptcy petition in any jurisdiction for two years, a U.S. Bankruptcy Court judge rules. In Re: Cameron, Helen (Lawyers Weekly No ) (10 In Re: Rosario, Felix, et al. (Lawyers Weekly No ) (101 Retirement contributions Section 541(b)(7) of the Bankruptcy Code excludes postpetition voluntary contributions to retirement plans and annuities from the scope of disposable income under 1325(b)(2), so long as made in good faith, a U.S. Bankruptcy Court judge states. In Re: Drapeau, Stephen M., Jr., et al. (Lawyers Weekly No ) (17 CIVIL PRACTICE Final judgment - Judge s sua sponte decision to vacate A judge may sua sponte vacate a final judgment after execution has issued, the District Court/BMC Appellate Division Cornerstone Land Consultants, Inc. v. Chapman (Lawyers Weekly No ) (6 Secured creditor - UCC Article 9 of the Uniform Commercial Code displaces the common law on the question of the proper measure of a secured creditor s recovery under G.L.c. 106, 9-405, the Supreme Judicial Reading Co-Operative Bank v. Suffolk Construction Company, Inc. (Lawyers Weekly No ) (22 Fraud - Collateral estoppel Following a jury verdict in state court holding a bankrupt defendant liable for fraud, the debtor is collaterally estopped from contesting his liability under 11 U.S.C. 523(a)(2)(A), a U.S. Bankruptcy Court judge states. In Re: Spagnuolo, Robert E., Jr. (Lawyers Weekly No ) (26 Homestead - Lease Two debtors are entitled to a homestead exemption even though title to their home is held by a residential cooperative housing corporation while they hold only a 99-year lease, a U.S. Bankruptcy Court judge says. In Re: Dougan, Liliana, et al. (Lawyers Weekly No ) (10 Homestead - Objection The only method for adjourning an 11 U.S.C. 341 meeting of creditors is by announcing the continued date and time at the meeting to be continued, coupled with the prompt filing of that announcement on the case docket, a U.S. Bankruptcy Court judge states. In Re: Vierstra, Eleanor Marie (Lawyers Weekly No ) (10 State income tax The state income tax liability of Chapter 7 debtors is dischargeable, that argument is convincing even though the debtors did not file their tax returns on time, a U.S. Bankruptcy Court judge In Re: Brown, John T., et al. (Lawyers Weekly No ) (10 Taxes A debtor s state taxes are nondischargeable, as the debtor s tax returns were filed late and thus did not satisfy the applicable filing requirements of 11 U.S.C. 523(a), a U.S. Bankruptcy Court judge states. In Re: Pendergast, Timothy P. (Lawyers Weekly No ) (12 Unpaid wages - Nondischargeability A judgment against a debtor for unpaid wages is exempt from discharge under 11 U.S.C. 523(a)(6), a U.S. Bankruptcy Court judge concludes. In Re: Ruhland, Karl H., et al. (Lawyers Weekly No ) (27 Pleading - Prima facie case It is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage, the 1st U.S. Circuit Court of Appeals determines. Rodríguez-Reyes, et al. v. Molina-Rodríguez, et al. (Lawyers Weekly No ) (18 SDP - Expert - Compensation In determining the reasonable compensation to be paid to an expert retained by an indigent petitioner seeking release from commitment as a sexually dangerous person, a judge (1) is bound by the hourly rate determined for that expert by the Committee for Public Counsel Services but (2) still retains the authority to determine whether the total amount billed is reasonable, the Supreme Judicial Edwards, petitioner (Lawyers Weekly No ) (18 CIVIL RIGHTS Public accommodation - Coffee shop - Race CONSTITUTIONAL Abortion - Buffer zone A state statute creating a fixed 35-foot buffer zone around the entrances, exits and driveways of abortion clinics is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others, the 1st U.S. Circuit Court of Appeals McCullen, et al. v. Coakley, et al. (Lawyers Weekly No ) (32 Second Amendment A state statute (G.L.c. 140, 131L(a)) which makes it unlawful to store a firearm that is not carried by or under the immediate control of the owner or other authorized user unless the firearm is secured in a locked container or equipped with a safety device that renders the firearm inoperable by anyone other than the owner or other authorized user falls outside the scope of the Second Amendment, the Supreme Judicial Court finds. Commonwealth v. McGowan (Lawyers Weekly No ) (19 Homestead - Remainder A debtor s one-quarter remainder interest in Massachusetts real estate subject to a life estate held by her mother may not be exempt under the homestead statute, as the debtor does not qualify as an owner under the statute, the Bankruptcy Appellate Panel states. In Re: Gordon, Nicole D. (Lawyers Weekly No ) (6 Homestead - Remainder An individual holding a remainder interest in real property does not qualify as an owner entitled to a homestead exemption under G.L.c. 188, a U.S. Bankruptcy Court judge says. In Re: Bertone, Paul A. (Lawyers Weekly No ) (6 Hybrid plan A debtor s Chapter 13 plan could not employ 11 U.S.C. 1322(b)(2) and (5) to reduce a bank s secured claim and, at the same time, pay that secured claim over a period beyond the plan s fiveyear term, the Bankruptcy Appellate Panel In Re: Bullard, Louis B. (Lawyers Weekly No ) (15 Legal fees - Divorce - False pretenses A law firm s claim for fees owed by a bankrupt client is excepted from discharge under 11 U.S.C. 523(a)(2)(A) as a debt arising from false representations, a U.S. Bankruptcy Court judge concludes. In Re: Kenneally, Erin G. (Lawyers Weekly No ) (18 Willful and malicious injury - G.L.c. 93A - Collateral estoppel A U.S. District Court judgment, holding a defendant debtor liable for breach of contract and for a willful and knowing violation of G.L.c. 93A, is not exempt from discharge under the willful and malicious injury provision of the Bankruptcy Code, a U.S. Bankruptcy Court judge rules. In Re: Swasey, Malcolm C. (Lawyers Weekly No ) (38 BANKS AND BANKING Negligence - Misappropriation A plaintiff law firm, alleging that two individuals stole more than $500,000 that the plaintiff had entrusted to them for federal employment tax payments, cannot hold liable under a negligence theory the two defendant banks through which the money passed, as the plaintiff has failed to show that the banks breached a duty of care, a U.S. District Court judge Bernkopf Goodman LLP v. Hebert, et al. (Lawyers Weekly No ) (11 Repossession - Yacht - Notice A bank s notice about a sale of a repossessed yacht was not deficient even though it did not specify the time and place of the sale, the 1st U.S. Circuit Court of Appeals concludes. Barclays Bank PLC v. Poynter, et al. (Lawyers Weekly No ) (14 A respondent coffee shop discriminated against the complainant, an African-American police detective, by requiring him to pay prior to being served while not requiring the same from the complainant s white colleagues, the Massachusetts Commission Against Discrimination concludes. Massachusetts Commission Against Discrimination, et al. v. Capitol Coffee House (Lawyers Weekly No ) (17 SDPs - Evaluation - Pharmacological treatment Two plaintiffs, who were civilly committed as sexually dangerous persons after completing their criminal sentences, must be evaluated by a qualified psychiatrist and, if appropriate, provide with pharmacological treatment, a U.S. District Court judge rules. Healey, et al. v. Murphy, et al. (Lawyers Weekly No ) (117 COMMERCIAL Limitations - Retroactivity The six-year statute of limitations set forth in G.L.c. 106, 3-118, applies to all negotiable instruments, sealed and unsealed, but is inapplicable to causes of action accruing prior to the statute s enactment in 1998, the Supreme Judicial Premier Capital, LLC v. KMZ, Inc. (Lawyers Weekly No ) (14 CONSUMER PROTECTION G.L.c. 93, 105(a) - Credit card transactions A plaintiff may bring an action for a violation of G.L.c. 93, 105(a), without alleging a claim of identity fraud, the Supreme Judicial Court concludes. When a merchant acquires personal identification information in violation of G.L.c. 93, 105(a), and uses the information for its own business purposes, whether by sending the customer unwanted marketing materials or by selling the information for a profit, the merchant has caused the consumer an injury that is distinct from the statutory violation itself and cognizable under G.L.c. 93A, 9, the SJC further concludes. Tyler v. Michaels Stores, Inc. (Lawyers Weekly No ) (22 G.L.c. 93A - Building code Building code violations may constitute unfair or deceptive conduct within the purview of G.L.c. 93A, the Klairmont, et al. v. Gainsboro Restaurant, Inc., et al. (Lawyers Weekly No ) (38 G.L.c. 93A - Injury Price premium injury is cognizable under the Massachusetts consumer protection statute, a U.S. District Court judge Bezdek v. Vibram USA Inc., et al. (Lawyers Weekly No ) (27 Petition preparer - Unauthorized practice of law A non-attorney bankruptcy petition preparer who has violated 11 U.S.C. 110 and has engaged in the unauthorized practice of law should be prohibited from preparing bankruptcy petitions in the District of Massachusetts subject to further review upon petition by the Defendants and for good cause shown, a U.S. Bankruptcy Court judge says. VISIT US ONLINE masslawyersweekly.com

3 Cite this page 41 MLW 1905 masslawyersweekly.com July 8, 2013 Massachusetts Lawyers Weekly 17 G.L.c. 93A - Wrongful death Having reserved for herself the decision on a G.L.c. 93A claim asserted by the plaintiff parents of a decedent, a trial judge was not bound by the jury s answers to special questions on causation in relation to the plaintiffs wrongful death claims, the Supreme Judicial Court concludes. The plaintiffs were entitled to bring a claim under G.L.c. 93A pursuant to the Massachusetts survival statute (G.L.c. 228, 1) distinct from their claims under the wrongful death act (G.L.c. 229, 2) but that may only recover damages under c. 93A to the extent that their son would have been able to recover, had he survived, the SJC further rules. Klairmont, et al. v. Gainsboro Restaurant, Inc., et al. (Lawyers Weekly No ) (38 Zip code A zip code may qualify as personal identification information under G.L.c. 93, 105(a), the Tyler v. Michaels Stores, Inc. (Lawyers Weekly No ) (22 CONTRACT Limitations - Commonwealth The three-year statute of limitations in G.L.c. 260, 3A, applies to all contract claims brought against the commonwealth, regardless of whether the contract was made under seal, the Appeals Court determines. Cameron Painting, Inc. v. University of Massachusetts (Lawyers Weekly No ) (11 Non-compete agreements - Promotions Non-competition clauses in the defendants employment agreements are unenforceable given that the plaintiff employer cannot prove that the employment agreements signed by the defendants were supported by further consideration upon their promotions, a Superior Court judge concludes. Interpros, Inc. v. Athy, et al. (Lawyers Weekly No ) (9 Non-solicitation agreement - First contact A non-solicitation agreement does not prevent a company from receiving business initiated by the client with no direct or indirect participation by the individual employee bound by the non-solicitation agreement, but this narrow carve-out from a non-solicitation agreement for receiving business does not allow a salesman to take active steps to persuade the client and actually solicit its business, a U.S. District Court judge concludes. Corporate Technologies, Inc. v. Harnett, et al. (Lawyers Weekly No ) (33 Offer - Purchase and sale agreement An enforceable agreement to sell land was not created by an response to the plaintiff s offer to purchase, as the response indicated a lack of intent to be presently bound on the part of the defendant owner, a Land Court judge determines. Host v. Gray (Lawyers Weekly No ) (16 Settlement agreement - A plaintiff s request for court enforcement of a settlement agreement should be granted because it is manifest from the exchange that the parties entered into a valid settlement agreement, a U.S. District Court judge Hansen v. Rhode Island s Only 24 Hour Truck & Auto Plaza, Inc., et al. (Lawyers Weekly No ) (9 CORPORATE Derivative suit - Futility A U.S. District Court judge s dismissal of a shareholder derivative suit based on a failure to properly plead demand futility is subject to de novo review, the 1st U.S. Circuit Court of Appeals says. Unión de Empleados de Muelles de Puerto Rico PRSSA Welfare Plan, et al. v. UBS Financial Services Inc. of Puerto Rico, et al. (Lawyers Weekly No ) (28 Privilege - Directors - Shareholders A closely-held corporation and its counsel and accountants can assert attorney-client privilege and work product protection against directorsshareholders whose interests are adverse to those of the corporation, the Supreme Judicial Court concludes. Chambers, et al. v. Gold Medal Bakery, Inc., et al. (Lawyers Weekly No ) (23 Profit-sharing plan - Trustees Plaintiff participants in a corporate profit-sharing plan could sue for the plan s total $46 million loss allegedly caused by the defendant trustees, rather than just the losses to the plaintiffs individual accounts, a U.S. District Court judge rules. Merriam, et al. v. Demoulas, et al. (Lawyers Weekly No ) (20 CRIMINAL Aggravated kidnapping The commonwealth must prove that a defendant is armed to make out a violation of G.L.c. 265, 26, third par., the Appeals Commonwealth v. Rodriguez (Lawyers Weekly No ) (12 Assault and battery - Serious injury While medical testimony may not be required in every instance to establish that a victim has suffered serious injury resulting in impairment to an organ, the commonwealth bears the burden of establishing the severity of an injury through its impact on the structure of the victim s organ and its consequent effect on the ability of the organ to perform its usual function, the Supreme Judicial Court concludes. Commonwealth v. Scott (Lawyers Weekly No ) (15 Illegal reentry - Vacated conviction A charge of illegal reentry following deportation must be dismissed now that the criminal conviction that precipitated the defendant s deportation has been vacated by the New Hampshire Superior Court, a U.S. District Court judge rules. United States v. Boliero (Lawyers Weekly No ) (33 Immigration consequences - Plea The U.S. Supreme Court s holding in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010) that defense counsel must advise noncitizen clients that pleading guilty may result in deportation requires counsel to inform a noncitizen client that conviction at trial may similarly carry immigration consequences, the Supreme Judicial Court states. Commonwealth v. Marinho (Lawyers Weekly No ) (47 Innocent possession instruction - Stolen firearm A conviction for possession of a stolen firearm must be vacated and the case remanded, as the trial judge erred by not instructing the jury on an innocent possession defense, the 1st U.S. Circuit Court of Appeals concludes. United States v. Baird (Lawyers Weekly No ) (25 Jury selection - Exclusion of family members Counsel may waive, with or without the defendant s express consent, the right to a public trial during jury selection if the waiver is a tactical decision as part of counsel s trial strategy, the Supreme Judicial Commonwealth v. Lavoie (Lawyers Weekly No ) (12 Marijuana - Cultivation A complaint charging a defendant with cultivating less than an ounce of marijuana should not have been, as the decriminalization of marijuana in the amount of one ounce or less did not affect the cultivation statute, the Supreme Judicial Court concludes. Commonwealth v. Palmer (Lawyers Weekly No ) (16 Marijuana - Distribution The social sharing of marijuana does not violate the distribution statute, G.L.c. 94C, 32C(a), the Supreme Judicial Court says. Commonwealth v. Jackson (Lawyers Weekly No ) (13 Misleading parole officer It is a crime under G.L.c. 268, 13B, to mislead a parole officer investigating a parolee s possible failure to comply with parole conditions, the Supreme Judicial Court rules. Commonwealth v. Figueroa (Lawyers Weekly No ) (12 Probable cause hearing - Timing A defendant who is charged initially by complaint with murder in the first degree is entitled under G.L.c. 276, 38, to a preliminary or probable cause hearing in the District Court as soon as practicable, the Supreme Judicial Court concludes. Commonwealth v. Perkins (Lawyers Weekly No ) (35 Probation - Sex offender registration While the Sex Offender Registry Act, G.L.c. 6, 178E(f), permits a judge in certain limited circumstances to relieve a sex offender from the registration requirement, it does not authorize a judge to order such registration, the Supreme Judicial Commonwealth v. Ventura (Lawyers Weekly No ) (17 Probation revocation - Informant - Identity When a defendant is facing probation revocation due to an alleged new criminal offense, it may be appropriate for a court to order disclosure of the identity of an informant who was a participant in the alleged offense, the only nongovernment witness to the offense and the only percipient witness to the entire alleged transaction, the Supreme Judicial Court says. Commonwealth v. Kelsey (Lawyers Weekly No ) (21 Self-defense - Prior violent acts When a defendant raising a claim of self-defense seeks to introduce evidence of prior violent acts by the alleged victim on the issue of identity of the first aggressor, the commonwealth may seek to present evidence of prior violent acts of the defendant for the same purpose, but only if (1) the commonwealth provides the defendant with sufficient advance notice of its intent to introduce such evidence and (2) the trial judge determines that introduction of the evidence is more probative of its intended purpose than prejudicial to the defendant, the Commonwealth v. Morales (Lawyers Weekly No ) (17 Sentencing A sentencing judge erred by selecting which guideline to apply on the basis of conduct not alleged in the indictment, the 1st U.S. Circuit Court of Appeals says. United States v. Almeida (Lawyers Weekly No ) (15 Speedy trial Arrest, indictment or criminal complaint issued pursuant to Massachusetts law, whichever comes first, will start the speedy trial clock, the Commonwealth v. Butler (Lawyers Weekly No ) (20 Speedy trial - Waiver A criminal defendant s lawyer may seek a continuance and the concomitant exclusion of time for Speedy Trial Act purposes without first securing the defendant s personal consent, the 1st U.S. Circuit Court of Appeals United States v. Gates (Lawyers Weekly No ) (28 Victim - Standing The victim of a criminal offense has no judicially cognizable interest in the defendant s criminal proceedings and lacks standing to challenge the sentence imposed on the defendant, the H.T. v. Commonwealth, et al. (Lawyers Weekly No ) (3 DAMAGES Class action - G.L.c. 93A - Fees An individual plaintiff s rejection of a reasonable settlement offer in the course of a class action does not preclude the entire class from recovering counsel fees pursuant to G.L.c. 93A, a U.S. District Court judge says. Hermida, et al. v. Archstone, et al. (Lawyers Weekly No ) (35 G.L.c. 93A - Contract Where (1) a jury returned a verdict for the plaintiff on claims of breach of contract and G.L.c. 93A and (2) the trial judge doubled the G.L.c. 93A damages, the entire amount of the verdict should have been doubled, the Appeals T. Butera Auburn, LLC, et al. v. Williams, et al. (and a companion case) (Lawyers Weekly No ) (22 G.L.c. 93A - Multiple damages - Death The death of a defendant charged with a willful or knowing violation of G.L.c. 93A precludes recovery of double or treble damages against the defendant s estate, the Supreme Judicial Kraft Power Corporation v. Merrill, et al. (Lawyers Weekly No ) (31 DOMESTIC RELATIONS Alimony - Tax consequences If presented with evidence of potential tax consequences, a judge should consider those consequences when creating or modifying alimony provisions in a divorce instrument, the Supreme Judicial Court says. L.J.S. v. J.E.S. (Lawyers Weekly No ) (11 Continued on page 18

4 18 Massachusetts Lawyers Weekly July 8, 2013 masslawyersweekly.com Cite this page 41 MLW 1906 Continued from page 17 EMPLOYMENT Adverse action - Termination-related benefit By alleging that the defendant denied her an important termination-related benefit, a plaintiff sufficiently pleaded an adverse employment action to state a Title VII claim, a U.S. District Court judge concludes. Tyree v. LaHood (Lawyers Weekly No ) (12 Age discrimination A comment by a defendant employer s vice president of sales about the need to re-energize [a] sales team does not constitute direct evidence of discriminatory animus on the basis of age, the 1st U.S. Circuit Court of Appeals Woodward v. Emulex Corporation, et al. (Lawyers Weekly No ) (17 Bonus - Wage Act A plaintiff who was terminated just months before he was to receive a $60,000 bonus cannot succeed on a Wage Act claim, as the bonus was contingent and never earned, the 1st U.S. Circuit Court of Appeals concludes. Weiss v. DHL Express, Inc. (Lawyers Weekly No ) (18 CFAA - Loyalty The term access that exceeds the scope of authorization in the Computer Fraud and Abuse Act should be interpreted narrowly so that the scope of authorized access is defined by the technologically implemented barriers that circumscribe that access, a U.S. District Court judge Advanced Micro Devices, Inc. v. Feldstein, et al. (Lawyers Weekly No ) (13 Discrimination - Gender Even if an employer relies on its performance evaluation process in deciding to terminate an employee, that process itself might be infected by the bias of those performing the evaluations, the Appeals Court holds in an unpublished opinion. Rochat v. L.E.K. Consulting, LLC, et al. (Lawyers Weekly No ) (19 Discrimination - Race - Probation officer The respondent Office of the Commissioner of Probation discriminated against a complainant on the basis of race by failing to promote him to a permanent or temporary probation officer position, the Massachusetts Commission Against Discrimination finds. Haywood, et al. v. Office of the Commissioner of Probation (Lawyers Weekly No ) (35 Harassment An award of summary judgment for an employer in a Title VII case must be affirmed absent evidence that the employee informed a supervisor that the harassment she was complaining of was sex-based, the 1st U.S. Circuit Court of Appeals Medina-Rivera, et al. v. MVM, Inc. (Lawyers Weekly No ) (19 Independent contractor statute - Out-of-state workers Plaintiffs who live and work in New York for a Massachusetts corporation could bring suit in the commonwealth claiming that they were misclassified as independent contractors in violation of a Massachusetts statute, the Supreme Judicial Taylor, et al. v. Eastern Connection Operating, Inc. (Lawyers Weekly No ) (15 Misclassification - Independent contractor The lack of a contract between the parties does not itself, without more, preclude liability under the independent contractor statute, the Supreme Judicial Court concludes. Depianti, et al. v. Jan-Pro Franchising International, Inc. (Lawyers Weekly No ) (29 Overtime - Collateral estoppel - Compulsory counterclaims A complaint filed by plaintiffs four months after their former employer instituted a related action against them in state court for breaching a noncompetition agreement must be dismissed, as the plaintiffs claims (for overtime pay, sales commissions and bonuses) are precluded by the doctrine of collateral estoppel or by Massachusetts rule regarding compulsory counterclaims, a U.S. District Court judge determines. Brennan, et al. v. Sentient Jet, LLC (Lawyers Weekly No ) (15 Retaliation - Pretext - Insubordination An award of summary judgment for a defendant, on a retaliation claim brought under the Americans with Disabilities Act by a plaintiff licensed practical nurse, must be vacated because of a genuine dispute of material fact as to whether the employer s stated reason for the nurse s termination insubordination was a pretext for retaliatory animus, the 1st U.S. Circuit Court of Appeals Kelley v. Correctional Medical Services, Inc. (Lawyers Weekly No ) (22 Wage Act An employer s failure to pay unpaid wages, as defined by G.L.c. 149, 148, cannot be mitigated by gratuitous, after-the-fact payments, the Wage Act - Extraterritoriality In deciding whether the private right of action under the Massachusetts Wage Act should be extended to a nonresident employee of a Massachusetts employer, the choice-of-law doctrine is applicable, the Appeals Court says. Dow v. Casale (Lawyers Weekly No ) (11 Wage Act - LLC A manager or other officer or agent of a limited liability company, limited liability partnership or other limited liability business entity may be a person having employees in his service, and thus may be civilly or criminally liable for violations of G.L.c. 149, 148, if he controls, directs, and participates to a substantial degree in formulating and determining policy of the business entity, the Supreme Judicial Court says. Cook v. Patient Edu, LLC, et al. (Lawyers Weekly No ) (15 Wage Act - Preemption A plaintiff s common-law claims for unpaid sales commissions are not superseded by the Wage Act, a U.S. District Court judge Mansfield v. Pitney Bowes, Inc. (Lawyers Weekly No ) (9 Wage Act - Sales commissions A terminated salesman s Wage Act claim for unpaid commission should not be dismissed despite the fact that the employer retained discretion to interpret the commission plan, a U.S. District Court judge concludes. McAleer v. Prudential Insurance Company of America, et al. (Lawyers Weekly No ) (24 Whistleblower - Retaliation An at-will employee s purported references to health threats posed by the defendant employer s products are too attenuated to implicate public policy and to grant her whistleblower protection, the Appeals Court determines in an unpublished opinion. Nelson v. Anika Therapeutics, Inc., et al. (Lawyers Weekly No ) (5 ENVIRONMENTAL CWA - Notice If the information contained in pre-suit notice under the Clean Water Act identifies the potential plaintiffs, provides basic contact information and allows the putative defendants to identify and remedy the alleged violations, the statutory requirements have been satisfied and an enforcement action may proceed, the 1st U.S. Circuit Court of Appeals rules. Paolino, et al. v. JF Realty, LLC, et al. (Lawyers Weekly No ) (22 FRAUD False Claims Act - First-to-file rule A first-filed qui tam complaint under the False Claims Act need not meet the heightened pleading standards of Rule 9(b) in order to bar a laterfiled complaint, the 1st U.S. Circuit Court of Appeals determines. United States ex rel. Heineman-Guta v. Guidant Corporation, et al. (Lawyers Weekly No ) (23 HABEAS CORPUS Hearsay - Codefendant s statements A petitioner convicted of second-degree murder must be granted a new trial because his constitutional rights were violated when the trial judge excluded statements a codefendant made to the petitioner s family members and former attorney, a U.S. District Court judge Hodge v. Mendonsa (Lawyers Weekly No ) (22 IMMIGRATION Motion to reconsider An alien whose application for withholding of removal has been denied by the Board of Immigration Appeals may not proffer, as the basis for a motion to reconsider, a ground for relief which, though previously available, was not previously asserted, the 1st U.S. Circuit Court of Appeals rules. Martinez-Lopez v. Holder (Lawyers Weekly No ) (9 Persecution - Withholding of removal An order denying an application for withholding of removal, filed by an attorney from Pakistan, must be vacated based on evidence that he was subjected to threats and violence that rose to the level of past persecution over his involvement in a case stemming from a conflict between rival political factions, the 1st U.S. Circuit Court of Appeals Javed v. Holder (Lawyers Weekly No ) (14 INSURANCE G.L.c. 176D - Admiralty - Preemption Federal admiralty law does not preempt the application of G.L.c. 93A and 176D to a vessel insurer s unfair settlement practices involving damage to a Massport wharf, a U.S. District Court judge says. MT BALTIC COMMANDER Schiffahrtsgesellshaft mbh & Co. KG v. Massachusetts Port Authority (Lawyers Weekly No ) (19 Drivers - Classification - Independent contractors A defendant delivery company s drivers performed services within the usual course of the defendant s business and consequently could not have been classified as independent contractors, a U.S. District Court judge Martins, et al. v. 3PD, Inc. (Lawyers Weekly No ) (53 FMLA - Notice - Retaliation Even though a defendant employer failed to provide a plaintiff employee with a timely eligibility notice or a timely designation notice as required by the Family Medical Leave Act, the defendant is nevertheless entitled to summary judgment because the plaintiff has shown no resulting harm, a U.S. magistrate judge determines. Bellone v. Southwick-Tolland Regional School District (Lawyers Weekly No ) (24 Dixon v. City of Malden (Lawyers Weekly No ) (12 Wage Act - Commissions - Damages Commissions constitute lost wages and other benefits within the meaning of G.L.c. 149, 150 so as to trigger the mandatory treble damages provision, the Appeals Court finds. Weber v. Coast to Coast Medical, Inc., et al. (Lawyers Weekly No ) (9 Wage Act - Expenses A plaintiff could pursue a Wage Act claim alleging that she was terminated in retaliation for expressing her displeasure over the defendant employer s expense reimbursement policy, the Appeals Court rules. Fraelick v. PerkettPR, Inc., et al. (Lawyers Weekly No ) (17 EVIDENCE Confrontation - Forensic examiner A trial judge s decision to allow a forensic examiner to testify about another examiner s prior examination of a seized laptop computer did not affect the defendant s substantial rights, the 1st U.S. Circuit Court of Appeals concludes. United States v. Soto (Lawyers Weekly No ) (17 Expert - Studies and guidelines A defendant insurer should not have been permitted during direct examination to elicit testimony regarding studies and guidelines as a basis for an expert witness s opinion concerning chiropractic treatment rendered by the plaintiff, the District Court/BMC Appellate Division rules. Kantorosinski Chiropractic Inc. v. Commerce Insurance Company (Lawyers Weekly No ) (9 Insolvency Fund - G.L.c. 93A - Fees When a plaintiff prevails in a consumer action against the Massachusetts Insurers Insolvency Fund under G.L.c. 93A, 9(1), the fund is liable for reasonable counsel fees under 9(4), the Supreme Judicial Court Wheatley v. Massachusetts Insurers Insolvency Fund (Lawyers Weekly No ) (13 LTD benefits - Risk of relapse A defendant insurance company acted arbitrarily and capriciously in refusing to consider whether an insured s risk of relapse into substance dependence swelled to the level of a disability, the 1st U.S. Circuit Court of Appeals determines. Colby v. Union Security Insurance Company & Management Company for Merrimack Anesthesia Associates Long Term Disability Plan, et al. (Lawyers Weekly No ) (24

5 Cite this page 41 MLW 1907 masslawyersweekly.com July 8, 2013 Massachusetts Lawyers Weekly 19 Proceeds - Causation Plaintiffs from whom insurance proceeds were misappropriated could not hold the defendant insurance company liable for making out the insurance proceeds check to the wrong trust entity, as the money would have been stolen even if the check had been made out correctly, the 1st U.S. Circuit Court of Appeals rules. Jakobiec, et al. v. Merrill Lynch Life Insurance Co. (Lawyers Weekly No ) (21 Rental car - Negligent entrustment An insured did not have a right to indemnification under her parents automobile liability policy for her negligent entrustment of a rental vehicle to an unauthorized operator who caused a collision, the Appeals Mahoney v. American Automobile Insurance Company (Lawyers Weekly No ) (27 Title - Duty to defend A title insurer does not have a duty to defend a policyholder in an entire lawsuit when one claim is within the scope of the title insurance coverage and other claims are not, the Supreme Judicial GMAC Mortgage, LLC v. First American Title Insurance Company (Lawyers Weekly No ) (20 JURISDICTION Condominium - Amount in controversy The amount-in-controversy requirement of G.L.c. 212, 3, does not apply to an in rem action to enforce a lien against a condominium unit for unpaid common expenses, the Appeals Court concludes. Residences at Cape Ann Heights Condominium Association v. Halupowski, et al. (Lawyers Weekly No ) (6 Forum non conveniens - China A complaint over an injury that occurred at the defendant s hotel in China should not be dismissed, as the defendant has failed to demonstrate that China would be an adequate forum to hear the plaintiffs claims, a U.S. District Court judge rules. Sullivan, et al. v. Starwood Hotels and Resorts Worldwide, et al. (Lawyers Weekly No ) (10 Forum selection clause - Online contract A forum selection clause in an online agreement cannot be enforced absent a showing that the provisions of the Terms of Service and Privacy Policy were reasonably communicated and accepted, the Appeals Court rules. Ajemian, et al. v. Yahoo!, Inc. (Lawyers Weekly No ) (22 Land Court - Permit session A case pending in the permit session of the Land Court may not be transferred to any other trial court department of the commonwealth, including the Housing Court, the Appeals Court states. Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox (Lawyers Weekly No ) (8 Personal - Ferry - Forum selection clause A negligence complaint against a defendant ferry operator should not be dismissed based on a forum selection clause that was included in the terms and conditions of tickets given to the plaintiffs no more than ten minutes before boarding, a U.S. District Court judge rules. Metcalf v. Bay Ferries Limited (Lawyers Weekly No ) (21 Personal - Website A Florida defendant s motion to dismiss for lack of personal jurisdiction must be denied because the defendant does business actively over the internet in Massachusetts by soliciting customers indiscriminately, a U.S. District Court judge Signazon Corporation v. Nickelson (Lawyers Weekly No ) (7 Removal - Fees Even though a case that the defendant removed from state court was ordered remanded, the plaintiff should not be awarded counsel fees, as the defendant had a sufficient basis for removal, a U.S. District Court judge determines. Massachusetts Biologic Laboratories of the University of Massachusetts v. MedImmune, LLC (Lawyers Weekly No ) (7 Removal - Remand - Tips A putative class action claiming a violation of the Massachusetts Tips Law as well as unjust enrichment under Massachusetts common law must be remanded from federal to state court for lack of complete federal preemption, a U.S. District Hernandez v. Harvard University (Lawyers Weekly No ) (14 Removal - Service In multi-defendant litigation, a non-forum defendant may not remove a case filed in state court before any defendant has been served when a properly joined co-defendant is a citizen of the forum state, a U.S. District Court judge Gentile v. Biogen Idec, Inc., et al. (Lawyers Weekly No ) (21 Removal - Waiver A defendant s agreement to accept venue in the courts of Middlesex County, Massachusetts is insufficient to demonstrate an intent to waive removal, a U.S. magistrate judge concludes. OsComp Systems, Inc. v. Bakken Express, LLC (Lawyers Weekly No ) (33 Subject matter - Legal malpractice - Bankruptcy A debtor s claims of negligence and legal malpractice on the part of a bankruptcy trustee and an attorney who served as the trustee s counsel must be dismissed for lack of subject matter jurisdiction given the debtor s failure to obtain leave from the U.S. Bankruptcy Court to bring suit, a U.S. District Court judge rules. Hutchins v. Shatz, Schwartz and Fentin, P.C. (Lawyers Weekly No ) (20 LANDLORD AND TENANT Damages A landlord cannot recover for posttermination damages under an indemnification clause in a lease until the end of the period specified in the lease, when the amount of indemnification is certain, unless the indemnification clause specifically provides that damages may be recovered earlier, the Supreme Judicial Court concludes. 275 Washington Street Corp. v. Hudson River International, LLC, et al. (Lawyers Weekly No ) (22 Lead paint - School records - Sibling The school records of a 10-year-old sibling of a plaintiff in a lead paint case should be reviewed in camera, a Superior Court judge Sapienza v. Beaulieu, et al. (Lawyers Weekly No ) (5 Voucher - Termination State regulations, authorizing the termination of a rental voucher for failing to give notice of a change in family composition, are impermissibly vague insofar as they do not define when an overnight guest becomes a household member for purposes of the voucher program, the Supreme Judicial Court concludes. Rivas v. Chelsea Housing Authority (Lawyers Weekly No ) (26 MORTGAGES Assignment - Standing A mortgagor has standing to challenge the assignment of a mortgage on her home to the extent that such a challenge is necessary to contest a foreclosing entity s status qua mortgagee, the 1st U.S. Circuit Court of Appeals Culhane v. Aurora Loan Services of Nebraska (Lawyers Weekly No ) (24 Dual tracking A mortgage lender is not entitled to dismissal of a claim against it for violating the covenant of good faith and fair dealing by dual tracking proceeding with foreclosure while the debtors were seeking a loan modification, a U.S. Bankruptcy Court judge concludes. In Re: Silveira, Carlos Roberto, et al. (Lawyers Weekly No ) (32 Foreclosure sale - Title A foreclosure deed is invalid in that the foreclosing party has not been shown to have had title to the mortgage at the time it commenced the foreclosure proceedings, a Land Court judge Bank of America, N.A. v. Goldsmith, et al. (Lawyers Weekly No ) (9 Mistakes - Foreclosure A foreclosure of a condominium unit was invalid where both the mortgage and foreclosure documents contained mistaken references to the number of the unit, a Housing Court judge concludes. East West Bank v. Chung (Lawyers Weekly No ) (5 Notary s certification There is a legal basis for a Chapter 7 trustee s claimthat a mortgage is void because the notary s certification has a blank space where the debtors names should have appeared, a U.S. Bankruptcy Court judge concludes. In Re: D Alessandro, Louis Albert, et al. (Lawyers Weekly No ) (12 Notice - Foreclosure A defendant borrower must be granted summary judgment in a post-foreclosure summary process case because the plaintiff s Notice of Intention to Foreclose did not comply with the requirements of G.L.c. 183, 21, and G.L.c. 244, 35A, a Housing Court judge Federal Home Loan Mortgage Corp. v. Sensini (Lawyers Weekly No ) (2 Rescission - MCCCDA A state regulation (209 CMR 32) is unenforceable to the extent that it extends the right of rescission to a party who gave a creditor a mortgage on a residence but did not become personally obligated in the transaction, a U.S. Bankruptcy Court judge determines. In Re: Smith-Pena, Theresa A. (Lawyers Weekly No ) (22 SCRA - Standing To establish standing in servicemember proceedings, plaintiffs must present such evidence as may be necessary and appropriate in the circumstances reasonably to satisfy the judge as to their status as mortgagees or agents thereof, the Supreme Judicial HSBC Bank USA, N.A. v. Matt (Lawyers Weekly No ) (17 MOTOR VEHICLES OUI - Field sobriety test When a motorist agrees to take a field sobriety test, the motorist s expressions of difficulty or inability to perform or to complete it such as I can t do this, I give up I ve had too much to drink are not the products of compulsion and thus are admissible, the Appeals Court states. Commonwealth v. Brown (Lawyers Weekly No ) (11 MUNICIPAL Apprenticeship - Preemption - ERISA The city of Quincy s requirement that all contractors bidding on city construction projects maintain an apprenticeship program approved by the Massachusetts Division of Apprentice Training is preempted by the Employee Retirement Income Security Act, a U.S. District Court judge states. Merit Construction Alliance, et al. v. City of Quincy (Lawyers Weekly No ) (5 MTCA Section 10(j) of the Massachusetts Tort Claims Act does not bar a claim that a public employer negligently supervised and trained an employee, a U.S. District Court judge LaPierre v. City of Lawrence, et al. (Lawyers Weekly No ) (11 NEGLIGENCE Accountant - G.L.c. 93A A G.L.c. 93A claim, asserted against a defendant accountant who allegedly the plaintiffs negligently to file amended corporate and personal tax returns, cannot succeed, as the plaintiffs have not shown how their situation, over time, would have been improved in the absence of the amendment urged by the defendant, the 1st U.S. Circuit Court of Appeals RTR Technologies, Inc., et al. v. Helming, et al. (Lawyers Weekly No ) (22 Credentialing A claim against a medical center for negligent credentialing of a doctor is cognizable under Massachusetts law, a Superior Court judge Rabelo v. Nasif, et al. (Lawyers Weekly No ) (9 Medical malpractice - Third party A medical professional other than a mental health professional owes no duty to a third person arising from any claimed special relationship between the medical professional and a patient, the Supreme Judicial Court says. Medina v. Hochberg (Lawyers Weekly No ) (15 Swimming pool - Open and obvious danger In cases where a negligent failure to warn is not the only viable theory of negligence, such as where the plaintiff alleges negligent design or negligent failure to comply with a company safety policy, a landowner may still owe a duty to a Continued on page 20

6 20 Massachusetts Lawyers Weekly July 8, 2013 masslawyersweekly.com Cite this page 41 MLW 1908 Continued from page 19 lawful entrant to remedy an open and obvious danger, the Dos Santos, et al. v. Coleta, et al. (Lawyers Weekly No ) (25 PARENT AND CHILD Support - Inconsistency In ruling on a divorced mother s modification complaint, a judge erred in applying a standard requiring a material and substantial change in circumstances rather than the standard set forth in G.L.c. 208, 28, which provides that a child support order shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines, the Supreme Judicial Court concludes. Morales v. Morales (Lawyers Weekly No ) (14 PATENT AND TRADEMARK Preliminary injunction - Consumer confusion A trademark defendant has no burden to prove anything until the plaintiff has first met its responsibility to show infringement by demonstrating that the defendant s use of its mark is likely to confuse consumers, the 1st U.S. Circuit Court of Appeals rules. Swarovski Aktiengesellschaft, et al. v. Building #19, Inc. (Lawyers Weekly No ) (23 PRISONS Strip searches - Class action A plaintiff should be granted class certification in a suit challenging a state prison s policy of permitting male correctional officers to videotape strip searches of female inmates, a U.S. District Court judge concludes. Baggett, et al. v. Ashe, et al. (Lawyers Weekly No ) (4 PRODUCTS LIABILITY Tobacco A jury award of $81 million in punitive damages against a defendant tobacco company must be vacated because the jurors were not adequately instructed on the theories of negligent design and marketing, the Supreme Judicial Looking for the latest decisions? Go to lwopinions.com Evans v. Lorillard Tobacco Company (Lawyers Weekly No ) (82 REAL PROPERTY Beach - Erosion - Prescriptive easement Absent clear intent to the contrary, it should be presumed that littoral properties contain fixed landward boundaries, the Supreme Judicial Court White, et al. v. Hartigan, et al. (Lawyers Weekly No ) (32 Deed - Acknowledgement A deed improvidently recorded with a latent defect concerning its acknowledgment is incapable of providing constructive notice to a subsequent purchaser for value, a Land Court judge Allen, et al. v. Allen (Lawyers Weekly No ) (28 Misrepresentation - Broker - Zoning designation A broker has a duty to exercise reasonable care in making representations as to a property s zoning designation, the Supreme Judicial Court DeWolfe v. Hingham Centre, Ltd., et al. (Lawyers Weekly No ) (17 Waiver - Planning board A planning board s subdivision rules and regulations, which state that a 14-foot width of road surface rule should in no instance... be waived, does not as a legal matter prevent the board, if and when presented with a meritorious application for waiver as to a road surface less than 14 feet, from granting a waiver, a Land Court judge rules. Cater, et al. v. Bednarek, et al. (Lawyers Weekly No ) (17 RETIREMENT ERISA - Widow A decedent s estranged wife qualifies as a surviving spouse, as the existence of a longstanding separation agreement and order of separate support between the decedent and the wife did not render the marriage a nullity, a U.S. District Court judge determines. Gallagher v. Gallagher (Lawyers Weekly No ) (11 Forfeiture - Firefighter - Criminal conduct A firefighter s pension could not be vacated by reason of his conviction for sexually abusing young boys, as there was no direct link between the criminal conviction and the position of firefighter, the Appeals Court Retirement Board of Maynard v. Tyler, et al. (Lawyers Weekly No ) (10 LTD benefits - Cooperation A long-term disability plan administrator s systematic failure to consider contradictory evidence in the medical analyses in the record undermines its attempt to justify denial of an application for benefits for failure to cooperate, a U.S. District Court judge finds. Petrone v. Long Term Disability Income Plan for Choices Eligible Employees of Johnson & Johnson and Affiliated Companies (Lawyers Weekly No ) (44 Offset - Benefits - Veteran A plaintiff s disability compensation under the Veterans Benefits Act was not other income for purposes of reducing the payments owed to the plaintiff by the defendant insurance company under an ERISA-qualified plan, the 1st U.S. Circuit Court of Appeals concludes. Hannington v. Sun Life and Health Insurance Company (Lawyers Weekly No ) (18 SEARCH AND SEIZURE Cell phone A warrantless search by the police of the data in a cell phone seized from a suspect as part of his lawful arrest exceeded the boundaries of the Fourth Amendment search-incident-to-arrest exception, the 1st U.S. Circuit Court of Appeals United States v. Wurie (Lawyers Weekly No ) (53 GPS - Standing A defendant lacked standing to move to suppress evidence derived from the warrantless installation and use of a global positioning system tracking device on a vehicle that he drove but that did not belong to him, a U.S. District Court judge United States v. Kabba (Lawyers Weekly No ) (12 SECURITIES Fraud - Drug maker A judgment dismissing a putative class action against a defendant pharmaceutical manufacturer must be vacated based on allegations that the defendant failed to disclose 23 reports of serious adverse effects including one death linked to the defendant s make-or-break drug, the 1st U.S. Circuit Court of Appeals rules. Silverstrand Investments, et al. v. AMAG Pharmaceuticals, Inc., et al. (Lawyers Weekly No ) (31 Loss causation - Merger An order dismissing a securities fraud complaint filed after a corporate merger must be reversed based on allegations that the defendants misrepresented the success of their integration of computer systems and the quality of customer service, the 1st U.S. Circuit Court of Appeals rules. Massachusetts Retirement Systems, et al. v. CVS Caremark Corporation, et al. (Lawyers Weekly No ) (33 TAXATION Corporate excise - Sham transaction A request for a corporate excise abatement must be denied because the state tax planning project at issue was specifically devised, touted and implemented as a tax avoidance scheme, the Appellate Tax Board states. Allied Domecq Spirits and Wines USA, Inc. v. Commissioner of Revenue (Lawyers Weekly No ) (43 Exemption - MBTA Real property leased by the Massachusetts Bay Transportation Authority to a for-profit limited liability company is exempt from taxation pursuant to G.L.c. 161A, 24,the Appellate Tax Board determines. Beacon So. Station Assocs. LSE v. Board of Assessors of the City of Boston (Lawyers Weekly No ) (24 Penalty - Equitable estoppel The doctrine of equitable estoppel does not bind the Internal Revenue Service to alleged assurances by IRS personnel not to assess a failureto-pay penalty, the 1st U.S. Circuit Court of Appeals Shafmaster, et al. v. United States (Lawyers Weekly No ) (20 TORT MTCA - Presentment - Wrongful death When a claim under the Massachusetts Tort Claims Act is for wrongful death, the claimant for purposes of the G.L.c. 258, 4, presentment must be the duly appointed executor or administrator of the deceased, the Appeals Estate of Gavin v. Tewksbury State Hospital, et al. (Lawyers Weekly No ) (24 Qualified privilege - Defamation Defendant police officers are protected by a qualified privilege from liability for defamation and intentional interference with advantageous relationships in connection with their report of an investigation of an entertainment license violation, the Appeals Court concludes. Dear v. Devaney, et al. (Lawyers Weekly No ) (15 UNEMPLOYMENT COMPENSATION Independent contractor - Model A model was an independent contractor not an employee of a modeling agency for unemployment compensation purposes, the Executive Office of Labor and Workforce Development Board of Review determines. Psallidas v. Click Model Management, Inc. (Lawyers Weekly No ) (7 WORKERS COMPENSATION Loss of psychiatric function Benefits for permanent loss of psychiatric function are recoverable under G.L.c. 152, 36(1)(j), the Department of Industrial Accidents says. In Re: Yeshaiau, Shoshana (Lawyers Weekly No ) (8 ZONING Standing - Privacy - Home occupation Plaintiff homeowners lack standing to challenge the Winchester zoning board s decision to grant their neighbor a special permit to conduct a home occupation, as none of the plaintiffs concerns about loss of privacy describe an infringement of any cognizable legal right, or any private interest protected by the By-law, a Land Court judge determines. Murphy, et al. v. Sampson, et al. (Lawyers Weekly No ) (17 Standing - View - Variance A plaintiff opposed to a neighbor s requested variance for the construction of a single-family home cannot establish standing based on a hypothetically diminished view, a Land Court judge Manasian v. The Town of Falmouth, et al. (Lawyers Weekly No ) (13

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