BLS Blog

This month, Judge Karen Green is replacing Judge Mitchell Kaplan as the judge for the January - June rotation of BLS1. Governor Charlie Baker appointed Judge Green to the Superior Court in 2016. Before her appointment, Judge Green was a senior partner in Wilmer Cutler Pickering Hale and Dorr LLP’s Boston office where she focused her practice on complex business litigation. During her legal career, she served in various public service positions, including as an Assistant US Attorney. More information about Judge Green can be found here.  

In B. Bullen et al. v. CohnReznick LLP, investors in a defunct hedge fund sued CohnReznick, the outside auditor and accountant of the fund. The investors claimed, among other things, that CohnReznick had conspired with the fund to defraud its investors. Judge Salinger dismissed the case, ruling that CohnReznick, a New Jersey LLP headquartered in New York, was not subject to personal jurisdiction in Massachusetts.

After prevailing at trial, Cedar Hill Retreat Center sought sanctions against the plaintiffs under G.L. c. 231, § 6F. That statute authorizes a judge to award a moving party reasonable attorneys’ fees and costs if the judge finds that “all or substantially all of the claims, defenses, setoffs or counterclaims . . . made by any party who was represented by counsel . . . were wholly insubstantial, frivolous and not advanced in good faith.” Judge Salinger denied the motion because he was not convinced that “all or even substantially all of the claims against Cedar Hill were frivolous and not advanced in good faith.”

That is not to say, however, that the court did not find one of the claims “troubling.” Judge Salinger struggled to “discern what good faith basis the [Reed] Foundation had for alleging that Cedar Hill’s challenged activities were in trade or commerce and therefore subject to c. 93A, or that those activities constitute unfair or deceptive acts or practices and would have violated c. 93A if the statute applied in the first place.” But even if he assumed that the 93A claim was wholly insubstantial and not asserted in good faith, that was not enough, according to Judge Salinger, to impose § 6F sanctions. Cedar Hill did not show, Judge Salinger wrote, “that all or substantially all of the Reed Foundation’s claims . . . were both frivolous and not asserted in good faith” (emphasis added).

Wildlands Trust of Southeastern Massachusetts, Inc. v. Cedar Hill Retreat Center, Inc., et al. (September 3, 2019)

Judge Sanders denied a plaintiff’s motion seeking the court’s blessing of the plaintiff’s confidentiality designations. Pursuant to a confidentiality order, the plaintiff classified as “Confidential — Attorney’s Eyes Only” more than 650,000 pages of documents. The plaintiff claimed that a review of a few hundred of the documents showed that they contained competitively sensitive information. Judge Sanders stated, however, that “the designation of documents as attorney’s eyes only should be sparingly used.” She also explained that the plaintiff failed to show how or why the documents deserved confidentiality protection. At the end of the day, the plaintiff failed to satisfy its burden under the confidentiality order, according to Judge Sanders.

Clean Harbors Environmental Services, Inc. v. Sheppard, et al. (August 27, 2019)

In Lewis PR v. Murphy, Judge Kaplan quashed the plaintiff’s subpoena requesting 20 months of the defendant’s cell phone records. Judge Kaplan found that the subpoena was abusive and “stunning in its over breadth.”

The plaintiff sued the defendant for alleged breach of a restrictive covenant in an asset purchase agreement. In discovery, the plaintiff subpoenaed Verizon to produce records reflecting all telephone bills, text messages, and call data for the defendant’s personal cell phone for a period of 20 months. The defendant moved to quash the subpoena.

Ruling on a motion seeking the return of inadvertently produced privilege materials, Judge Kaplan elaborated on the meaning of “inadvertent” in the context of Massachusetts Rule of Civil Procedure 26(b)(5) and so-called clawback agreements.  

In Renova Partners v. Michael Singer and Greenlight Development Partners, Judge Sanders granted Greenlight’s motion to dismiss for lack of personal jurisdiction because, among other things, Greenlight was “not even in existence” when the allegedly tortious acts occurred.

Judge Sanders granted partial summary judgment in favor of Raw Seafoods, Inc. (RSI), a seafood processor, in a coverage dispute with its insurer, Hanover Insurance Group (Hanover). Judge Sanders held that Hanover was bound by a federal court’s finding that the damage to an RSI seafood shipment was caused by RSI’s negligence, rather than from a disqualifying intentional act.

Earlier this year, the Social Law Library hosted the “2018 Business Litigation Year in Review.” The presenters, including BLS Judge Kenneth W. Salinger, offered commentary on some recent BLS decisions.  

Judge Kaplan’s recent ruling in the “Burns Bridge” litigation provides helpful guidance on the interplay between breach of contract and professional negligence claims.

In The Middlesex Corporation, Inc. v. Fay, Spofford, & Thorndike, Inc., plaintiff The Middlesex Corporation, Inc. (Middlesex) alleged that defendant Fay, Spofford, & Thorndike, Inc. (FST) negligently prepared engineering designs and drawings that caused Middlesex to underestimate steel costs by $4 million for the Kenneth F. Burns Memorial Bridge rehabilitation project.  In its motion for summary judgment, FST argued in part that Middlesex’s breach of contract claim must be dismissed because the “gist” of the claim is for professional negligence, a claim that Middlesex had also alleged.