BLS Blog

Last month, the Social Law Library sponsored the Business Litigation Session 2021 Year in Review. The panel included Judge Kenneth Salinger, the BLS Administrative Justice, as well as Michael Tuteur and Andrew Yost, attorneys at Foley & Lardner LLP.

In Caper v. Foley Lardner, LLP, Adam Caper is suing his attorneys, claiming that they committed malpractice, breached their fiduciary duties, made misrepresentations (negligent and intentional), and violated G.L. c. 93A. Caper’s theory is twofold. Caper alleges that his attorneys committed malpractice when they advised him that he could defer salary payments to his business’s chief operating officer. Caper also alleges that his attorneys stopped legal work, focused on refinancing his business, to coerce him to release his malpractice claim.

Judge Sanders refused to grant summary judgment for America’s Test Kitchen (ATK) on Christopher Kimball’s defamation claim. According to Kimball, ATK defamed him when it posted information on its website after the litigation began. That information included, among other things, ATK’s complaint against Kimball, a chronology of events, and a section on frequently asked questions.

In Lukas v. Unidine Corp., et al., Judge Davis held that, under the Massachusetts Wage Act, GL c. 149, § 148, employee commissions can be conditioned on receipt of customer payments on which the commissions are based. Judge Davis found that the Wage Act did not require Unidine to make further commission payments to the plaintiff following her resignation and granted summary judgment in favor of Unidine.

On June 11, the Boston Bar Association hosted its annual “Business Litigation Session Year in Review.” The BLS judges, including incoming Judge Brian Davis (who is taking over for Judge Leibensperger in BLS1), shared tips and other thoughts for attorneys practicing in the BLS to consider.

Key Takeaway: While Massachusetts courts have jurisdiction over internal church disputes involving church property, they must defer to the decision-making process of a hierarchical religious organization when a dispute is intertwined with religious doctrine.

Proving that motions for reconsideration are not always futile, Judge Sanders exercised her discretion to undo part of her own prior ruling. Judge Sanders previously ruled in the case before her that the plaintiffs’ breach-of-fiduciary-duty claim survived summary judgment. The plaintiffs alleged that the defendants sold tilapia “without providing plaintiffs an opportunity to participate in these transactions.” In support of this allegation, the plaintiffs relied on their own interrogatory answer. Judge Sanders, on reconsideration, pointed out that the answer was “not based on personal knowledge and therefore d[i]d not constitute admissible evidence under Rule 56(e).” (Mass. R. Civ. P. 56(e) states that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”) For that reason, among others, Judge Sanders allowed the defendants’ motion for reconsideration and awarded summary judgment against the breach-of-fiduciary-duty claim.

Judge Sanders denied a summary judgment motion that involved questions of fact—such as a defendant’s knowledge and reasonable reliance—that almost always require determination by the finder of fact. The case involved claims of violation of the Massachusetts Securities Act, fraud, and negligent misrepresentation (among others) arising out of defendants’ sale of common stock of a closely held corporation to plaintiffs. Judge Sanders denied the defendants’ motion for summary judgment, noting in particular the high burdens placed on defendants under the Securities Act and issues of fact involved in the fraud and negligent misrepresentation claims.