BLS Blog

Judge Krupp, sitting in the Massachusetts Business Litigation Session, awarded a defendant more than $240,000 in attorneys’ fees, expenses, and interest under G.L. c. 231, § 6F, the Massachusetts statute authorizing fee shifting for frivolous claims.

216-218 Newbury Street Realty LLC sued Tivoli Audio, Inc., seeking declaratory relief about the definition of “gross sales” in the parties’ lease. The complaint alleged “on information and belief” that Tivoli marketed audio equipment over the internet from the leased premises and had more than $500,000 in gross sales.

Joe Alves filed a class-action complaint against BJ’s Wholesale Club, alleging that BJ’s uses computer code, called Session Replay Code (SRC), to secretly record consumer activity on BJ’s website. Alves claims that BJ’s conduct violates the Massachusetts Wiretap Statute, G.L. c. 272, § 99, and the Massachusetts Right of Privacy Statute, G.L. c. 214, § 1B. BJ’s moved to dismiss. Judge Krupp, sitting in the Massachusetts Business Litigation Session, denied the motion.

BJ’s sells groceries, electronics, furniture, and other products through its website. According to the complaint, BJ’s embeds SRC on its website. SRC operates in the background unbeknownst to the BJ’s website visitors. SRC tracks mouse movements, clicks, scrolls, zooms, and keystrokes. Third-party service providers, in turn, create video replays of the visitors’ behaviors and provide them to BJ’s for analysis. Alves alleges that when he visited BJ’s website to shop for tires, SRC captured his website activity, and that activity was shared with third-party service providers for BJ’s monetary gain.

Judge Krupp, sitting in the Massachusetts Business Litigation Session, ruled that the statute of limitations barred the plaintiff’s tort, contract, and unfair and deceptive practices claims against Williams-Sonoma.

In Gattineri v. Williams-Sonoma Stores, the plaintiff, a former Williams-Sonoma sales employee, alleged that she showed her idea of “The Perfect Brownie Pan” to a Williams-Sonoma district manager in 2003. Although the district manager signed a non-disclosure agreement, the agreement did not signify that the manager was signing it in any representative capacity. Williams-Sonoma never developed the pan into a marketable product. In mid-2009, the plaintiff saw a television infomercial for a virtually identical product marketed under the name “The Perfect Brownie Pan.” In early 2018, the plaintiff learned that the district manager had shown the plaintiff’s prototype to an entity affiliated with the informercial back in 2003. The plaintiff sued Williams-Sonoma (as well as other defendants) in November 2021.

Considering Williams-Sonoma’s motion to dismiss, Judge Krupp observed that the Massachusetts “discovery rule” only “tolls the statute of limitations until a plaintiff knows, or reasonably should have known, that it has been harmed or may have been harmed by the defendant’s conduct.” A plaintiff may be put on inquiry notice that a cause of action has accrued, Judge Krupp wrote, “where it is informed of facts that would suggest to a reasonably prudent person in the same position that an injury has been suffered as a result of the defendant’s conduct.”

Judge Krupp ruled that because the “plaintiff saw her pan advertised on television in mid-2009,” she knew then “that someone else had brought her idea to market” and therefore the plaintiff at that time “had actual knowledge that she had been harmed.” According to Judge Krupp, the fact that the plaintiff “did not know the mechanism of injury—i.e., exactly how her idea for the Perfect Brownie Pan got from [the district manager] to [the advertiser]” in mid-2009—did not toll the statute of limitations. In mid-2009, the plaintiff “knew that she had been injured,” explained Judge Krupp.

Judge Krupp also rejected the plaintiff’s contention that the reasonable-person standard requires a court to look to every particular of a plaintiff’s circumstance. “Individual variations in judgment, intellect, or psychological health which are unrelated to the complained of conduct are not considered,” Judge Krupp wrote. “The reasonable person standard,” he explained, “requires the Court to consider whether a reasonable person who had invented ‘The Perfect Brownie Pan’ would have discovered, or should have discovered, that she had been harmed and who had caused that harm when she learned that the pan was being marketed on television.”

You can read the decision here.

In Kirk Ramey v. Trustees of Boston University, et al., Judge Krupp, sitting in the Business Litigation Session, ruled that Ramey, a former BU research scientist, was entitled to a trial on his claim that defendants, BU and Dr. Edward Damiano, breached an oral agreement to provide Ramey an equity stake in Beta Bionics, a medical device company.

The oral contract, Ramey alleges, arose from two conversations he had with Dr. Damiano, a BU biomedical engineering professor. One of the conversations took place before Ramey accepted a position in Dr. Damiano’s lab. Dr. Damiano did not dispute that the conversations took place, but denied that he had agreed to give Ramey an equity interest in Beta Bionics, which had not yet been formed when Ramey began work. Neither conversation was memorialized in writing.

Judge Krupp, sitting in the Massachusetts Business Litigation Session, granted Uber’s motion to compel documents containing the identities of drivers who shared information with the Attorney General about their work for Uber and Lyft.

In Healey v. Uber Technologies (see our prior update here), the AG invoked the investigatory privilege to resist production. The purposes of the investigatory privilege, according to the Supreme Judicial Court in Bougas v. Chief of Police of Lexington, include:

In conjunction with the Massachusetts Bar Association, the current BLS judges prepared personalized responses to practice-related questions. Those questions and answers were then turned into a practice guide, which you can link to here. The guide, presented in question-and-answer format, has a wealth of information on topics of interest to practitioners and clients alike.

The judges sitting in the BLS during calendar year 2022 recently adopted and published guidance about their preferences and practices on court proceedings and filings. These preferences and practices include:

• encouraging the active participation in court proceedings by junior attorneys;
• asking parties to include in motion papers a brief explanation of their preference between in-person versus virtual proceedings;
• promoting in-person trials and evidentiary hearings; and
• explaining the circumstances where paper or digital copies should accompany electronic filings.

The complete guidance can be found here.

Three new judges have joined the BLS rotation.

Judge Peter Krupp replaced Judge Karen Green for the January-June rotation period of BLS1. In 2013, Governor Deval Patrick appointed Judge Krupp to the Superior Court. Before his appointment, Judge Krupp founded Lurie & Krupp (n/k/a Lurie Friedman); worked for the Committee for Public Counsel Services; and served as an Assistant Federal Public Defender in the District of Massachusetts. Judge Krupp began his career as an Associate at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo. You can find more information about Judge Krupp’s background at Massachusetts Lawyers Weekly.