BLS Blog

In Butts, et al. v. Freedman, et al., Judge Sanders ruled that the language of a Massachusetts LLC operating agreement—disclaiming any “partnership” or “joint venture” relationship between the LLC members—did not bar an LLC member from pursuing a claim for breach of fiduciary duty against another LLC member. The language at issue, according to Judge Sanders, did not constitute “a clear and unequivocal elimination of one member’s fiduciary responsibility to another.”

Overriding a Massachusetts forum-selection provision found in an employment agreement, Judge Salinger ruled in Oxford Global Resources, LLC v. Hernandez that an employer’s litigation against a former employee belonged in California, not Massachusetts.

As we previously noted here, the SJC earlier this year issued its opinion affirming Judge Leibensperger’s decision in a matter arising out of the EMC-Dell merger. Taken together, those decisions set a landmark in Massachusetts corporate governance law by delineating the fiduciary duties of directors of Massachusetts corporations and differentiating them from Delaware’s precepts. EMC’s counsel, Tom Dougherty and Kurt Hemr, published an insightful Special Commentary about those decisions as a preface to the 2017 edition of CSC Lexis/Nexis Massachusetts Laws Governing Business Entities Annotated. We recommend the Special Commentary to our readers, which can be found here.

Note: Nutter filed an amicus brief with the SJC in this matter on behalf of the Associated Industries of Massachusetts.

Judge Salinger addressed an issue that divides federal district courts: Do state courts have subject matter jurisdiction over covered class actions under the Securities Act of 1933? Judge Salinger answered, in Fortunato v. Akebia Therapeutics, Inc., et al., that state courts have concurrent jurisdiction over these claims.