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massachusetts Volume 43 Issue No. 38 $9.00 per copy May 11, 2015

Recent decisions signal expansion of arbitration rights

IMPORTANT OPINIONS OF THE WEEK Criminal — Confrontation A defendant’s constitutional right to confrontation was not violated by the admission of an FBI agent’s testimony about undercover purchases of drugs by a cooperating informant, the 1st U.S. Circuit Court of Appeals determines.

By Brandon Gee [emailprotected]

that Stearns rejected AGC’s contract claim, Rich is gratified that his client was awarded substantial compensation for its role in getting the Planet Fitness deal done. “Planet Fitness accepted these services, knowing that they weren’t gratuitous or unwanted, they in fact directed, encouraged and accepted the work, and they benefited from the work,” said Rich. “If it wasn’t compensable within the scope of the contract, then it had to be compensable outside of the contract.” Planet Fitness was represented by Peter L. Welsh and Jesse M. Boodoo of Ropes & Gray in Boston. In an email to Lawyers Weekly, Welsh said that AGC had no right to equitable relief because a contract in the form of an engagement letter governed the parties’ relationship. “Massachusetts law going back decades holds that equitable relief may not be granted where an enforceable contract covers the same subject matter that is under dispute,” wrote Welsh. “This body of law is intended to prevent parties

The willingness of Massachusetts courts to send lawsuits to arbitrators has been underscored by two recent decisions allowing defendants to compel arbitration — even though they weren’t parties to the underlying arbitration agreements. In TIBCO Software Inc. v. Zephyr Health Inc., et al., plaintiff TIBCO sued former employee Kevin Willoe for allegedly violating a non-competition clause in his employment agreement. As is common in non-compete cases, TIBCO also sued Willoe’s new employer, Zephyr, for tortious interference with contractual relations. In response to TIBCO’s emergency motion for a temporary restraining order, the defendants filed a motion to compel arbitration, citing a clause in Willoe’s employment agreement with TIBCO. On March 31, Superior Court Judge Mitchell H. Kaplan granted the motion as to both defendants. “The court finds that although KAPLAN defendant Zephyr Health, Inc. is not a signatory to the Employ- Granted motion to compel ment Agreement it may enforce the arbitration clause against TIBCO … as the claims that TIBCO asserts against Zephyr arise directly out of the restrictions imposed on Willoe under … his contract with TIBCO,” Kaplan wrote. Two weeks later, in Machado, et al. v. System4 LLC, et al., the Supreme Judicial Court overturned a Superior Court judge who found that an arbitration clause in franchise agreements could not be enforced by a defendant that was not a party to the agreements. The plaintiffs had sued NECCS, a regional sub-franchisor of commercial janitorial cleaning businesses, and System4, the master franchisor under the Wage Act. The plaintiffs had signed franchise agreements containing arbitration clauses with only NECCS, not System4. “When the signatory’s claims against a nonsignatory refer to or presume the existence of the written agreement that compels arbitration, the signatory’s claims may be considered to arise out of

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Bankruptcy — Mortgage A mortgage on registered land could be avoided by a Chapter 7 trustee because of the absence of a proper acknowledgment, a U.S. Bankruptcy Court judge rules. PAGE 11

Employment — Whistleblower A plaintiff attorney discharged from employment at the Office of Senate Counsel could not sue the Massachusetts Senate or the commonwealth for harassment and retaliation, as her pursuit of remedies under the Massachusetts Whistleblower Act triggered a waiver of those claims, a Superior Court judge holds. PAGE 23

INSIDE THIS ISSUE

Watch it The proliferation of wearable devices and smartwatches offers a rich new source of evidence for attorneys. PAGE 4

More breath test investigation needed This week’s editorial urges Attorney General Maura Healey to appoint an independent investigator to look into the reliability of the state’s breath test machines. PAGE 38

ALSO INSIDE Editorial. . . . . . . . . . . . . . . . 38 Employment . . . . . . . . . . . . 35 Hearsay. . . . . . . . . . . . . . . . . . 4 News Briefs . . . . . . . . . . . . . . 2 On the Town . . . . . . . . . . . 40 Verdicts & Settlements . . . . 5 See full table of contents on page 2

AP PHOTO

Bank awarded $3.2M over Planet Fitness deal Ruling seen as ‘textbook’ case for equitable remedies By Pat Murphy [emailprotected]

A federal judge has awarded more than $3.2 million in damages and interest to a Boston investment bank that was denied a fee for its role in arranging the sale of the Planet Fitness health club chain in 2012. Commercial litigators see the judgment issued by U.S. District Court Judge Richard G. Stearns in America’s Growth Capital, LLC v. PFIP, LLC as a rare example of equitable relief being granted in a contract case decided under Massachusetts law and a “textbook case” on unjust enrichment and quantum meruit. David H. Rich of Todd & Weld in Boston represented the plaintiff, America’s Growth Capital, LLC d/b/a AGC Partners, in the lawsuit against the Newington, N.H.-based defendant, PFIP, LLC d/b/a Planet Fitness. Although disappointed

Med-mal claim wrongly dismissed by tribunal Alleged negligence not excused by patient’s failure to follow up By Eric T. Berkman Lawyers Weekly Correspondent

A breast cancer victim could sue a radiologist for allegedly misreading her mammogram and failing to order tests that could have led to a more timely diagnosis even though she didn’t follow his instruction to get another mammogram in six months, the Appeals Court has ruled. The defendant doctor pointed out that the cancer was diagnosed when the plaintiff finally returned for a follow-up mammogram 13 months after he saw her the first time, meaning that

only six months of delay were attributable to any deviation from the standard of care on his part. Because both of the plaintiff ’s experts addressed a 13-month delay rather than a 6-month delay in diagnosis, the doctor argued that she had provided insufficient proof of causation for her claim to proceed. But the Appeals Court disagreed, reversing a medical malpractice tribunal’s dismissal of the plaintiff ’s claim. “When a negligent act, such as one yielding a failure to diagnose cancer, is followed by a reasonably foreseeable intervening event, such as a patient’s delay

in attending a routine follow-up appointment that eventually leads to the diagnosis of cancer, ‘the causal chain of events remains intact and the original negligence remains a proximate cause of a plaintiff ’s injury,’” wrote Judge Peter Agnes for the court, quoting its 2005 decision in Delaney v. Reynolds. “It is not unforeseeable that a patient might delay undergoing a routine, six-month follow-up examination when informed erroneously that there has been no change in her condition.” The 15-page decision is Goudreault v. Nine, Lawyers Weekly Continued on page 33

SHUTTERSTOCK.COM

A radiologist could be sued for misreading a mammogram even though the plaintiff didn’t get a follow up exam as instructed.

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News Briefs Contact Matt Yas at [emailprotected]

Hearing ordered over ‘tainted’ jury changes to the Code of Professional Conduct, which will permit Massachusetts attorneys to contact jurors post-trial. The changes, he said, will put attorneys on equal footing with insurance By Thomas E. Egan and Kris Olson company representatives and members Following a defense verdict in a prod- of the media, who have long been at libucts liability case arising out of a fatal erty to reach out to jurors. helicopter crash, the trial judge should In this case, Angueira noted, if he or have granted the plaintiffs’ request for his investigator been able to reach out a hearing over allegations to jurors to substanthat the jurors had improper tiate the allegations, The full text of the ruling knowledge of a confidential it might have obviatin Bouret-Echevarría, et settlement offer, the 1st U.S. ed the need for an eval. v. Caribbean Aviation Circuit Court of Appeals has identiary hearing. Maintenance Corp., et al. can be ruled in a split decision. Anthony V. Agudefound at masslawyersweekly. In denying the plaintiffs’ lo of Sugarman, Rogcom. motion for an evidentiaers, Barshak & Cory hearing pursuant to Fedhen, vice chair of the eral Rule of Civil Procedure Massachusetts Bar Association’s civil lit60(b)(6), the trial judge found that the igation section, said the 1st Circuit got motion was untimely because it was it right, adding that it was unlikely the filed 18 months after the entry of fi- decision would open the floodgates to nal judgment. similar challenges. The judge also found that the materi“The court was clear in explaining als filed in support of the motion were that ordinarily mere ‘rumor’ is insuffiinsufficient since the plaintiffs present- cient to justify convening an evidentiaed “only hearsay evidence of the sup- ry hearing and that it takes ‘exceptional posed tainted jury deliberations.” circ*mstances’ to ‘justify the extraordiThe 1st Circuit reversed. nary relief of vacating the finality of a “We hold that the district court judgment,’” said Agudelo. abused its discretion in denying appelHe noted that the plaintiff still must lants’ Rule 60(b)(6) motion because it clear “many significant hurdles” to get a made three mistakes in weighing the new trial. “What the 1st Circuit did was factors relevant to a request for relief to keep the door open just a sliver for under Rule 60(b)(6),” Judge Kermit V. this plaintiff/appellant, rather than to Lipez wrote for the majority. “In deny- yank it wide open.” ing this request, the district court misEfforts to reach Martínez were unsuccalculated the timeliness of the mo- cessful as of press time. tion, did not assume, as required by law, the truth of fact-specific statements set Crash aftermath The case arose from a helicopter crash forth in affidavits supporting the Rule 60(b)(6) motion, and did not appreciate in November 2008 that killed a passenthe inability of appellants, under the un- ger, Diego Vidal-Gonzalez. The plainusual circ*mstances here, to avoid reli- tiffs-appellants — the decedent’s widow, ance on hearsay in seeking Rule 60(b) Dr. Lizzette Bouret-Echevarria, and her three minor children — brought a prod(6) relief.” ucts liability action against the helicopJudge David J. Barron dissented. “[T]he core allegation — namely, that ter’s manufacturer and repair company. According to the plaintiffs, prior jurors became aware of settlement discussions and used this awareness to re- to jury deliberations, their trial attorject [the plaintiffs]’ claims against the ney, Carlos J. Morales-Bauza, received defendants — was an ‘unsubstantiated a confidential settlement offer of $3.5 conclusion[]’ resting on indirect sourc- million, comprised of $3 million from es,” Barron wrote. “And I do not believe one defendant and $500,000 from ana different view about how discretion other defendant. The plaintiffs rejected the offer and should be exercised in the face of a petition based on such an unsubstantiated proceeded to trial. On March 16, 2012, the jury returned rumor — made well after a final verdict — supplies a sufficient reason to con- a unanimous verdict finding that defenclude that discretion was abused or ex- dant Caribbean Aviation Maintenance Corp., or CAM, was not negligent in its ercised unreasonably.” The 29-page decision is Bouret-Eche- repair of the helicopter and that co-devarría, et al. v. Caribbean Aviation Main- fendant Robinson Helicopter Co.’s detenance Corp., et al., Lawyers Weekly sign of the helicopter was not defective. No. 01-108-15. The full text of the rul- Final judgment was entered on March ing can be found at masslawyersweek- 19, 2012. On Sept. 4, 2013, the plaintiffs filed ly.com. Boston attorney David P. Anguei- their Rule 60(b)(6) motion alleging ra argued the appeal on behalf of the that extraneous prejudicial informaplaintiffs. He was opposed by Louis R. tion, namely their rejection of the settlement offer, was improperly injected Martínez of New York. into jury deliberations. Focus on possible misconduct Affidavits in support of the motion Angueira said the decision comes reported that Luis Irizarry, an aviaat a time of heightened judicial focus tion expert witness who testified on beon cases in which juror misconduct half of the plaintiffs during their trial, is implicated. was the source of the allegation of ju“There’s been an interest by all courts ror misconduct. in weeding this stuff out,” he said, pointIn May 2013, subsequent to the triing to the U.S. Supreme Court’s willing- al, Irizarry provided expert services in ness to take on the juror-misconduct an unrelated aviation case in which he alcase Warger v. Shauers, decided late legedly met an individual who claimed to last year. Angueira also noted the forthcoming Continued on page 30

At issue: settlement offer in helicopter crash case

Lawyers Weekly Web Poll Results Q. Should Sec. 230 of the Communications Decency Act be

amended to make consumer-review websites and those that aid in human trafficking more responsible for their content?

YES 49%

31%

For both.

YES

But just with respect to human trafficking.

20%

NO

The law is essential protection for the likes of Facebook, Twitter, Yelp and YouTube.

TOTAL VOTERS: 55

This poll is not scientific and reflects the opinions of only those Internet users who have chosen to participate.

This week’s poll question: Should the SJC uphold a 1946 law that makes it a crime to spread lies about political candidates? To vote, visit masslawyersweekly.com

Family gets $4.8M in cyberharassment suit A Superior Court jury has awarded a couple and their two sons $4.8 million in damages after finding a would-be real estate developer harassed the family via the Internet as part of a squabble over potential new construction. The Essex County jury on April 22 found for James and Bernadette Lyons on their claims of intentional infliction of emotional distress and interference with an advantageous business relationship. The Lyonses had lived in their neighborhood, part of a historic district in Andover, with their two sons for approximately 15 years when developer William Johnson bought a lot at the end of the street. Several years later, he announced that he was going to purchase the parcel of land behind the plaintiffs’ home and develop it. The Lyonses, having enjoyed the wooded area for many years, opposed the building plans and corresponding bid for a variance. The family subsequently began receiving harassing emails from an unknown sender, including negative comments on social media about the couple, their children and their local business. The Lyonses obtained the IP address for the account in question and turned it over to the police, who traced it back to Johnson and a friend. Authorities also

found related emails on the computer of William’s wife, Gail Johnson, showing that she was involved in the harassment. After a five-day trial, the jury awarded James and Bernadette $1.25 million each, plus $500,000 to each of their sons, and lost profits of $1.3 million. The plaintiffs were represented by Michael K. Gillis of Gillis & Bikofsky in Newton.

Lien on real property valid post-bankruptcy A credit union’s judicial lien on real property remained valid after the landowner received a Chapter 7 discharge, the Supreme Judicial Court has ruled. “The issue on appeal is whether judicial liens on real property remain valid after the owner of the property receives a discharge under Chapter 7 of the Bankruptcy Code,” Chief Justice Ralph D. Gants wrote for a unanimous court. “We conclude that the judicial liens survive the discharge where, as here, the Bankruptcy Court judge did not avoid them.” The SJC stated that it was “not persuaded that we should alter the long-standing balance of interests between debtors and creditors, reflected in Federal law and our common law, by extinguishing both actions in personam and actions in rem against the discharged debtor.” The 14-page decision is Christakis v. Jeanne

INSIDE THIS ISSUE Bar Discipline 12

News Briefs 2

ADVERTISING

BMC Assignments 16

On the Town 40

Calendar 26

Opinion 38, 39

District Court Assignments 27

Probate & Family Court Assignments 32

Experts & Litigation Support 31

Editorial 38

State Court Decisions 11

Lawyer to Lawyer 22, 23

Federal Court Decisions 7

The Practice 25

Professional Announcements 14

Hearsay 4

Verdicts & Settlements 5

Real Estate Classifieds 35

ADR Directory 18,19 Classifieds 35 - 37 Employment 35

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NEWS BRIEFS [emailprotected]

SCHOOLHOUSE MOCK

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hirty-two students from Southeastern Regional Vocational High School participated in mock trials of the O.J. Simpson and Casey Anthony murder cases in Taunton District Court. The student advocates are pictured with Judge Kevan J. Cunningham, who presided over the trials, and Pam Foster, a criminal justice teacher at Southeastern Regional who prepared the students and accompanied them to court.

D’Arc Credit Union, et al., Lawyers Weekly No. 10-075-15. The full text of the ruling and Lawyers Weekly’s opinion digest of the case can be found at masslawyersweekly.com. — Tom Egan

Former FBI agent indicted for perjury Federal prosecutors have charged former FBI agent Robert Fitzpatrick with perjury and obstruction of justice in an indictment that alleges he lied during the 2013 trial of South Boston mobster James “Whitey” Bulger. “During the course of that testimony, Fitzpatrick made false material declarations designed to aid Bulger’s defense,” the indictment states. “Fitzpatrick also made false material declarations to enhance his own credibility as a former FBI official by making false claims about his professional accomplishments as an FBI agent.” Bulger was indicted in 1999 for racketeering and related crimes including 19 murders, many of which occurred while he acted as an informant for the FBI from 1975 to 1990. He ultimately was convicted of 31 of 32 counts. Fitzpatrick — who also has testified at civil wrongful death trials, gave an interview to “60 Minutes” and co-authored a book — worked in the Boston office of the FBI from 1980 to 1986. The indictment alleges that he “has falsely held himself out as a whistleblower who tried to end the FBI’s relationship with Bulger.” Fitzpatrick also testified he was retaliated against for reporting corruption, while the indictment alleges he was demoted for falsifying a report. The indictment also alleges that Fitzpatrick lied about arresting mob boss Jerry Angiulo and being the first person to discover the rifle used to kill Martin Luther King Jr. “Mr. Fitzpatrick adamantly maintains his innocence and looks forward to challenging the government’s accusations as soon as possible,” Fitzpatrick’s lawyer, Robert M.

Goldstein of Boston, said.

— Brandon Gee

Convicted cop killer awarded new trial A man convicted of killing a Boston police detective in 1993 has been granted a new trial. Sean Ellis was convicted of first-degree murder for shooting Detective John Mulligan five times in the face while he slept in his car while on a security detail in September 1993. Suffolk Superior Court Judge Carol S. Ball on May 5 granted Ellis’ motion for a new trial because authorities withheld information from Ellis’ trial lawyer. Ellis’ attorney, Rosemary C. Scapicchio of Boston, said the information withheld included the alleged involvement of Mulligan and other officers in an armed robbery. Ellis was convicted at his third trial following two hung jury trials. He is currently serving a life sentence. The Suffolk District Attorney’s Office said it “strongly disagrees” with the decision to vacate Ellis’ conviction and is reviewing its options.

Rosenberg: courts look to consolidate Massachusetts court officials are eyeing consolidation plans, including potentially combining and closing courthouses and reducing clerical staff, according to Senate President Stanley C. Rosenberg. “We have many more courts than most states of this population and size, and so they’re looking at consolidation of courts without reducing access to services,” Rosenberg said. Court staffers are also “unevenly distributed,” so some places that have high caseloads have fewer staffers available for cases and other places have the reverse, according

to Rosenberg. Court closures and consolidations have been considered over the years, often running into opposition from lawmakers and the communities that host the facilities. Rosenberg recently met with Supreme Judicial Court Chief Justice Ralph J. Gants, Trial Court Chief Justice Paula M. Carey and Court Administrator Harry Spence. “They’ve identified a series of practices that they’re already quietly fixing that will make the courts more efficient in terms of the administration,” Rosenberg told former news anchor R.D. Sahl as part of a “In the News” forum put together by Boston-based communications firm Denterlein. “Not the quality of the justice, but the actual execution and administration of the paperwork and all of that.”

Ambulance co. liable in patient’s fatal fall

The largest ambulance company in the United States has been found responsible by a Middlesex Superior Court jury for the death of a Massachusetts woman, whose family will receive $1.5 million in wrongful death damages. After a two-week trial, the jury found on May 4 that two EMTs negligently dropped Barbara Grimes, a 67-year-old dialysis patient, on her head while rolling her on a stretcher. In 2009, Grimes was being transported on an ambulance stretcher after receiving dialysis treatment in Plymouth, according to the family’s attorney, Marc L. Breakstone of Boston’s Breakstone. White & Gluck. While rolling the stretcher to the back of the ambulance, the AMR crew tipped it, causing Grimes to strike her head on the pavement. The blow caused a massive brain hemorrhage and Grimes died five days later. The incident was investigated by the Department of Public Health, which cited AMR for numerous clinical deficiencies. It was revealed during the trial that AMR withheld documents from a state investigator from the Office of Emergency Medical Services, which regulates ambulance services in Massachusetts. American Medical Response, based in Greenwood Village, Colorado, has more than 18,000 employees in 40 states and was responsible for more than 3 million patient transports in 2014.

Man suspected in slaying of parents

A 24-year-old Sudbury man is suspected of fatally stabbing his parents during a family vacation in the U.S. Virgin Islands and then fleeing the three-island Caribbean territory,

investigators said May 5. Acting police Commissioner Delroy Richards said police officers found the bloody bodies of Kenneth and Jane Young of Sudbury on May 4 at a rental condominium in a resort complex of the U.S. dependency’s main island. Territory authorities issued an arrest warrant for their son, Mikhail, and he was detained by police in Sudbury. Authorities said there were no other suspects. Richards said the family arrived together April 28 on the island of St. Thomas. Early on May 2, the son went to the resort office and told staff he needed a taxi to the airport, then departed alone on a flight to the U.S. mainland and returned to his hometown, Richards said. The bodies of his 73-year-old father and 66-year-old mother were found two days later with multiple stab wounds, according to investigators. Sudbury police said Young was arrested on a warrant for a probation violation, which a district attorney said was on a charge of indecent exposure. During an appearance in Framingham District Court, he was ordered held without bail on the arrest warrant from the U.S. Virgin Islands.

Man who sent guns to Hernandez gets 2 years A man who shipped guns to former New England Patriots player and convicted killer Aaron Hernandez was sentenced May 5 to two years in federal prison. Oscar Hernandez Jr., no relation to Aaron, had pleaded guilty to charges including gun conspiracy and lying to a grand jury. In a January plea deal, he admitted shipping several guns from Florida to Aaron Hernandez in Massachusetts months before the then-star tight end killed Boston resident Odin Lloyd in 2013. Oscar Hernandez, who did not supply the murder weapon used in Lloyd’s killing, will receive credit for roughly one year already served in prison. Hernandez’s public defender, Charles P. McGinty, had sought a sentence of one year and one day. Prosecutors had sought a harsher punishment of two years and eight months that could serve as a deterrent to illegal gun sales. In sentencing Oscar Hernandez, U.S. District Court Judge William G. Young said shipping illegal guns is among the most severe crimes the federal court deals with. He said Hernandez had only compounded that crime by lying and encouraging others to lie under oath about it. Material from The Associated Press and State House News Service was used to compile News Briefs.

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Hearsay [emailprotected]

Watch it Attorneys are long accustomed to mining email for evidence. And recordings, text messages and location data from cellphones have increasingly played an important role in both criminal and civil trials. But now lawyers have to consider whether the smartwatches on their clients’ wrists might at this very moment be collecting information that could wind up in court. A new era of e-discovery was marked by a recent article in Forbes Magazine about a personal injury case in Canada. The plaintiff ’s lawyers planned to use physical activity data from their client’s Fitbit tracker to show at trial how her lifestyle had been severely impacted by her injuries. According to Forbes, it was the first known case in which data from so-called “wearables” was used in court. The proliferation of wearable devices such as Fitbit wrist bands and smartwatches promises to be a rich source of evidence for attorneys across a broad spectrum of practice areas. “There’s more electronic data out there that people are going to try to access, and lawyers are going to fight about whether it should be admissible,” says Kevin P. DeMello,

Breath left in this story

The state’s Executive Office of Public Safety and Security recently announced that its review of approximately 39,000 breath test results “found no evidence that breath test instruments in use in the Commonwealth are functioning improperly.” End of story, right? Hardly, say OUI defense lawyers, who have long looked askance at the evidence these machines generate. Indeed, they say the recent scandal has only strengthened longheld suspicions. To review: In 2011, the state adopted a new breath-test machine, the Alcotest 9510, manufactured by Draeger Safety Diagnostics Inc. of Irving, Texas. But someone — the state hasn’t said who — forgot to ask Draeger to tailor the machines to Massachusetts’ regulations. So while the factory version of the devices greenlights any test in which a calibration step first yields a blood-alcohol concentration between .07 and .09 percent, Massachusetts’ regulations set a narrower range for calibration (.074 to .086 percent). Felix Browne, a spokesman for the Executive Office of Public Safety, says that the state knew about the issue when it received the new machines. A recent press release explains that the solution was to ask officers in the field to “complete an additional manual step to validate

PHOTO ILLUSTRATION BY JAMES NEEDHAM

a civil litigator at Houser & Allison in Boston. Personal injury attorney Vincent L. Greene of Motley Rice in Providence likewise sees the potential for evidence obtained from wearable devices. “Five years from now, it will be commonplace for lawyers to be asking questions about what kind of data do you have running on your Apple watch,” says Greene, president of the Rhode Island Association for Justice. DeMello thinks the standard for discoverability and admissibility will be somewhat subjective. “The standard that we’ve been using in this area of privacy versus electronic devices, what’s available for discovery and what’s not, is results using the Massachusetts standards.” According to the release, “fewer than 150” of the 39,000 cases that were reviewed yielded calibration results outside the state’s acceptable range but within the manufacturer’s (i.e., either from .07 to .073 or from .087 to .089) which the “manual step” failed to catch. The press release takes great pains to suggest that there was no “malfunction with the breath test instruments themselves.” Rather, it stresses that the failure to cover for the machine’s shortcomings was “operator error.” The release also notes that an expected software patch will preclude the need for the additional manual step. In the meantime, the Office of Public Safety is working with the state’s DAs to identify defendants who may have been affected, and The Boston Globe has reported that DAs are likely to resume prosecuting cases using breathtest evidence in the near future. Some attorneys are less ready to absolve the machines, however. Steven W. Panagiotes of Fitchburg, who claims to be the state’s most prolific OUI defender, says he has unearthed documentation suggesting that the state knew for months that the manual step was failing to catch all calibration problems. For example, an Oct. 3, 2014, email from a forensic scientist working for the Office of Alcohol Testing reminds police officers about the manual step and instructs

whether you have a reasonable expectation of privacy,” DeMello says. “That’s balanced against the probative value of the data and how prejudicial it is to the person you’re getting it from.” Greene rejects the notion that a personal injury plaintiff, by bringing suit, waives his right to privacy regarding health and physical activity data that may be recorded by a wearable device. “Just because a plaintiff is placing their physical condition into controversy doesn’t mean you get to invade every aspect of their life,” he says. Fall River workers’ compensation attorney Deborah G. Kohl agrees. “You have a privacy expectation with respect to your personal devices,” says Kohl, who chairs the them to take machines out of service and contact OAT if calibration issues arise. Taunton attorney Thomas E. Workman Jr., who has written and testified extensively about breathtest machines, likens this situation to the scandal involving former state crime lab chemist Annie Dookhan, which was initially thought to involve only a handful of cases but mushroomed to more than 30,000. There are “likely thousands of tests that are scientifically invalid,” he says, pointing to the dozens of problematic tests that did not involve arrestees but instead were “periodic tests” conducted to ensure that the machines were functioning properly. Noting the Oct. 3 admonition that machines with problematic periodic tests be taken out of service, “science would say that all of the tests since the last successful periodic test and until the machine is repaired and demonstrated to be correct are invalid,” Workman says. Further, the acknowledgement of a software problem raises the possibility that the calibration is only “one symptom” of a larger issue, says Workman. One thing that both Panagiotes and Workman say would help is the opportunity to take a closer look at the software behind breath test machines. A case argued before the Supreme Judicial Court on Feb. 5 could offer some assistance. The issue in Commonwealth v. Camblin is whether a motion judge improperly relied on a New Jersey Supreme Court opinion in refusing to hold a hearing on the reliability of a breathalyzer machine. A finding in the defendant’s favor would require the government to disclose the breath test machine’s software source code, Workman says.

— Kris Olson

Massachusetts Bar Association’s Workers’ Compensation Section. Because of privacy issues, Kohl thinks it would be hard for an employer or insurer to gain access to data collected by a wearable device owned by the employee, but the same might not be true for a device supplied by the employer as a condition of employment. “If the employer owns it, you may have lost your privacy rights,” Kohl says. “If you bought it, I don’t think they can get to it.” Kohl notes that some employers, such as UPS, have already equipped their employees with tracking devices. “They not only GPS these folks, but they can also tell how many steps it takes to get from one place to another,” she says. In the workers’ comp context, Kohl foresees that wearable devices with a GPS function will be most useful in verifying or discrediting an employee’s claim that his injury occurred on the job. A good indication of where the technology is heading is a new app called Alibi recently unveiled by Android. A device running Alibi discreetly records location data, audio and photographs of a user’s surroundings in a continuous onehour loop, which is saved to the user’s local storage only when the

user elects to do so. Billed as “a witness for every moment,” the developers promise the app will “provide evidence of any situation from police interactions, vehicle accidents, altercations, arguments, workplace harassment, and much more.” Criminal defense attorney Peter T. Elikann of Charlestown says that police likely would need to get a search warrant in order to access data recorded by a suspect’s wearable device. “It’s clearly a Fourth Amendment search, and yet the issue is always going to boil down to whether it’s an unreasonable search,” says Elikann, vice chairman of the MBA’s Criminal Justice Section. Evidence from wearable devices with a GPS function could cut both ways, Elikann notes, citing his experience with the GPS monitoring of defendants and probationers. In one recent case, he saw a client exonerated when a GPS device showed he never came near the home of a woman who complained he was harassing her. On the other hand, another of Elikann’s clients was charged with murder when a GPS monitor appeared to place him at the scene of a homicide at the exact time it occurred.

— Pat Murphy

S Christmastime’s Episode VII has reached such a frenzy tar Wars-mania is peaking yet again. The hype over

that the most recently released trailer — a 60-second preview, for Obi-Wan’s sake — reportedly added $2 billion to parent company Disney’s value. There may never have been such a certainty in terms of sure-fire delivery — not unlike the following attorneys’ promise of legal excellence. The biggest news for fans was that the producers had re-assembled the holy trinity of Hamill, Ford and Fisher to reunite and take part in the project — no easy task, considering Leanna is in Hingham, Alexandra is on the Cape and David B. is in Tarrytown, New York (and retired). There may be another Skywalker, but there’s only one Sywak-Erb — or there would be, if Pamela L. and Donald W. ever decided to bridge the gap between their practices in Boston and Fitchburg and team up for a most Forceful pairing. Of course, “Captain” Kristen Solo, forever the lone wolf, is content to remain solitary in Colorado Springs — aside from the occasional mission alongside Chu-Baca, the battletested team of Susan in Woburn and Andrew J. in Peabody. Loyal as they come, sure — but word is that the relationship can, on occasion, get a bit hairy. The big question for many fans is whether the elusive Bobo-Fetting will make an appearance in the sequels. Not likely, I’m afraid — Merton A. has long since left the bounty of the law behind for Corpus Christi, Texas, while Virginia M. continues her hunt for legal justice in Walpole.

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Verdicts & Settlements Contact Matt Yas at [emailprotected]

EDITOR’S  NOTE: Barring unusual circ*mstances, Lawyers Weekly publishes all verdict and settlement reports submitted to the newspaper by both plaintiffs’ lawyers and defense counsel. The information published here is taken directly from the submitting lawyer’s summary.

Postal worker struck by car, injured while sorting mail $1.56 million arbitration award/$250,000 settlement The plaintiff was in his 22nd year of employment with the U.S. Postal Service. On Dec. 9, 2010, he was standing outside of his truck sorting mail when he suddenly was hit by a car that had come from his right. As the car struck him, it pushed him into the open truck door.

The damage was severe to both vehicles. The defendant’s car was totaled, while the plaintiff’s truck sustained significant damage to the door and quarter panel. The plaintiff was not severely injured. He was taken to the hospital but released later the same day with 10 stitches in his thigh and generalized complaints of pain. Within days, however, he began complaining of significantly increased pain in his shoulders, knees and hips. Although all

PCP accused of overlooking cancer $800,000 settlement A 65-year-old disabled teacher was diagnosed with Stage IV bladder cancer in June 2012. According to plaintiff’s counsel, the defendant primary care physician had overlooked several instances of bloody urine in his patient over a two-year period. Three co-defendant hospitalists who saw the patient during two brief hospitalizations in 2010 and 2011 had no available record of written communication with the PCP, who did not have staff privileges at the hospital. The hospitalists were dismissed from the suit as part of the settlement, which was paid by the PCP’s insurer. The patient died in January 2013, leaving behind a wife and two adult sons. According to plaintiff’s counsel, the case was notable in that it presented issues in an area of

medical-malpractice law that is not fully developed: the responsibilities of hospitalists in terms of communication with their patients’ primary care physicians regarding follow-up care after hospitalization. Action: Medical malpractice Injuries alleged: Delay in cancer diagnosis preceding death Case name: Withheld Court/case no.: Withheld Jury and/or judge: N/A (settled) Amount: $800,000 Date: Oct. 24, 2014 Attorney: Philip N. Beauregard of the Law Offices of Beauregard, Burke & Franco, New Bedford (for the plaintiff)

diagnostic tests were negative, doctors did not dispute that the plaintiff was in significant pain. After approximately five months of conservative treatment, doctors decided to perform a debridement procedure on the plaintiff’s left quadriceps laceration, which had become infected. After approximately 10 months, the plaintiff was referred to an orthopedic surgeon, who decided that his ongoing shoulder complaints warranted an arthroscopic procedure. He was found to have a rotator cuff tear, which was repaired. Thereafter, the plaintiff underwent different types of physical therapy for his shoulder, knees and lower back. In total, the plaintiff amassed $54,000 in medical expenses. As an employee of the federal government, the plaintiff was forced to undergo a medical examination at the request of the U.S. Department of Labor. The department’s choice of physician stated that he did not believe that the plaintiff could return to work as a letter carrier. An expert economist determined that, as a result of losing his job, the plaintiff likely lost approximately $1.34 million, an amount that represented the difference between what he would have earned had he continued with the postal service and what he likely would earn as a 44-year-old high school graduate. Defense counsel’s independent medical examiner’s report stated that the plaintiff had no lasting injuries and that he was capable of returning to the postal service. In addition, during the arbitration proceeding, the defense had numerous hours of surveillance showing

the plaintiff riding a motor cycle, carrying heavy objects, shoveling snow and other activities. The defense also vigorously argued that the IME performed on behalf of the Department of Labor was flawed, shoddy and unsupportable. Plaintiff’s counsel argued that the defendant’s IME, the surveillance tapes, and even the manner in which the Department of Labor examination was conducted were immaterial to the case. In the end, the plaintiff lost his job as a direct result of the injury received in the accident and lost $1.34 million in lifetime wages as determined by the plaintiff’s economic expert, which was entered into evidence unchallenged. An arbitrator agreed with the plaintiff’s argument and awarded him $1.5 million. One month later, the parties arbitrated the Chapter 93A/176D claim. While waiting for the arbitrator’s decision, the parties agreed to settle for an additional payment of $250,000. Action: Motor vehicle negligence Injuries alleged: Shoulder, knee and back injuries Case name: Withheld Court/case no.: Withheld Jury and/or judge: N/A (arbitrated, settled) Amount: $1.75 million ($1.5 million arbitration award; $250,000 settlement) Date: January 2015 Attorneys: Darin M. Colucci and Thomas T. Worboys, of Colucci, Colucci, Marcus & Flavin, Milton (for the plaintiff)

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VERDICTS & SETTLEMENTS [emailprotected]

TOP VERDICTS & SETTLEMENTS: MAY 2014 - MAY 2015* 63

IN MILLIONS

54 45 36 27 18 9 0

$ $ $1 $1 $1 1.3 11 M 10 M 3.9 2.2 M 4M 8M

VERDICTS

$13.94M

Calandro v. Radius Management Services II, Inc., et al.; Nursing home patient dies after months of gross neglect; David J. Hoey and Krzysztof G. Sobczak, of Law Offices of David J. Hoey, N. Reading

$12.28M * Statistics in effect as of press time

Anderson, et al. v. American International Group, Inc., et al.; Insurer committed fraud to reduce payment to man struck by bus; Leonard H. Kesten and Richard S. Brody, of Brody, Hardoon, Perkins & Kesten, Boston

$11.3M $11M $10M

$3 $1 25 8.6 M M

$325M

$9 M

$8 $7 8.7 M M

$8 M

$18.6M

Cross & Bennett LLC v. Thorpe, et al.; Law firm sues former whistleblower clients who fired it for not reducing fees; Thomas M. Greene, Michael Tabb, Sarah E. Godfrey and Margaret N. Rosenberg, of Greene, Boston

$14M

Ellis v. Clarke; Doctor fails to diagnose lung cancer; patient dies at 47; Robert M. Higgins and Barrie duch*esneau, of Lubin & Meyer, Boston

$9M

Case name withheld; Two industrial workers die in explosion; Douglas K. Sheff, Donald R. Grady Jr., Frank J. Federico Jr. and Benjamin R. Gagliardi, of Sheff Law, Boston

$ $ $2 .5 2.1 1.3 M M M

GOVERNMENT SETTLEMENTS

SETTLEMENTS

Harden Manufacturing Corporation, et al. v. Pfizer Inc., et al.; Third-party payors settle with drug-maker over fraudulent marketing allegations; Thomas M. Greene of Greene, Boston; Thomas M. Sobol of Hagens, Berman, Sobol & Shapiro, Cambridge; Elizabeth J. Cabraser of Lieff, Cabraser, Heimann & Bernstein, San Francisco; Don Barrett of Barrett Law, Lexington, Mississippi

Lebel v. Thornton, et al.; Doctors overlook ovarian cancer in 35-yearold; William J. Thompson of Lubin & Meyer, Boston

Kelley v. Kelley; Sisters sexually abused by father throughout and beyond adolescence; Kristin M. Knuuttila and Adam R. Doherty, of Prince, Lobel, Tye, Boston

$1 4M

$88.7M

Perini-Kiewit-Cashman v. Commonwealth; Delays cause joint venture’s costs to balloon during “Big Dig”; Joel Lewin of Hinckley, Allen & Snyder, Boston

$7M

In the Matter of Standard & Poor’s Financial Services, LLC; S&P accused of making false statements about rating methods; Gillian Feiner, Jacqueline Rompre and Stephanie Kahn, of AG’s Office, Boston

$2.5M

Case name withheld; Wealth management co.’s internal presentation to advisors omits required language; Secretary of State William F. Galvin, Boston

$2.1M

Commonwealth v. GlaxoSmithKline; Drug co. accused of unlawfully promoting asthma, antidepressant meds; Eric M. Gold of AG’s Office, Boston

Case name withheld; Plaintiff: doctors mistakenly suspect stroke victim feigning illness; Stella E. Xanthakos and Michael G. Malkovich, of Xanthakos & Malkovich, Northampton; Elizabeth N. Mulvey of Crowe & Mulvey, Boston

$8M

Case name witheld; Tugboat engineer dies after being trapped in oil fire; Carolyn M. Latti and David F. Anderson, of Latti and Anderson, Boston.

$1.3M

Commonwealth v. Verizon; Telecommunications co. allegedly overbills government entities; Glenn S. Kaplan and Lynda A. Freshman, of AG’s Office, Boston

Hospitalized asthma patient dies after receiving drug $2.5 million settlement A 54-year-old married mother of adult children began experiencing difficulty breathing and chest pain while at work. She was taken by ambulance to the local emergency department, where she previously had been seen on more than 19 occasions for episodes of asthma and asthma exacerbation. Her symptoms of shortness of breath and chest pain were common for her episodes. By the time she arrived at the emergency department, she was noted to be pain-free. Serial enzymes were all negative. Auscultation of her lungs noted decreased breath sounds with expiratory wheezing. The emergency room physician noted that she was having another “acute asthma exacerbation.” She received a nebulizer treatment with Albuterol. The nurse practitioner attending to her in the ER ordered a cardiology consult and an exercise tolerance test for the following day, and the patient was admitted. Overnight, she requested and received further Albuterol treatment for her asthma, and at 6:45 a.m., auscultation confirmed that she still had diminished breath sounds in all four lobes of her lungs and was experiencing expiratory wheezing. She had no other symptoms. A few hours later, she was seen by a cardiology nurse practitioner, who noted her significant past history of asthma. However, that nurse changed the earlier order for an exercise tolerance test to a pharmacological stress test using Adenosine, an antiarrhythmic, which is contraindicated in asthma patients. At deposition, the defendant nurse practitioner testified that she had conferred with her supervising physician, who concurred with her

plan for the Adenosine test. That defendant doctor testified at deposition that he had no memory of examining or evaluating the patient prior to her stress test, nor is there any indication in the medical record that he did so. He did state, however, that if the nurse practitioner testified that she had consulted with him prior to changing the stress test order, he must have spoken with her and concurred with the change. No request was made for a pulmonology consult, despite the fact that the patient’s longstanding pulmonologist was on staff at the same hospital and there was no urgency to perform the stress test, given that her cardiac enzymes and EKG were normal and she had been without chest pain since the day before. Several hours after the change in the order, the stress test was commenced. Immediately after the administration of the Adenosine, the patient became short of breath and suffered respiratory/PEA arrest. A code was called for “respiratory failure,” and the defendant doctor finally appeared to participate. As a result of the arrest, the patient suffered irreversible anoxic brain damage and died. The plaintiff was prepared to present at trial a board-certified cardiologist and board-certified pulmonologist, who were expected to testify unequivocally that given the patient’s long history of severe asthma, her recent acute exacerbation, her diminished breath sounds, and her expiratory wheezing only a few hours earlier, the ordering and administration of Adenosine constituted a grave and substantial departure from applicable standards of care by both defendants. The pulmonology expert was expected to testify that the patient was experiencing “active” asthma up until the time of the Adenosine

infusion and, therefore, such an infusion was clearly contraindicated. The defendants named both a cardiologist and a pulmonologist in the pre-trial memorandum with the expectation that they would testify in diametrical opposition to the plaintiff’s experts. The case settled three weeks before trial. Action: Medical malpractice Injuries alleged: Wrongful death

Case name: Withheld Court/case no.: Withheld Jury and/or judge: N/A (settled) Amount: $2.5 million Date: Jan. 8, 2015 Attorneys: Robert A. Shuman and Risa SchneiderFine, of the Law Offices of Robert A. Shuman & Associates, Sharon (for the plaintiff)

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This Week’s Decisions For full opinions, visit lwopinions.com

1st U.S. CIRCUIT COURT OF APPEALS

Editor’s note: The full text of these decisions can be found on Lawyers Weekly’s website, masslawyersweekly.com.

Criminal

Confrontation - Cooperating informant Where a defendant has been convicted of distribution of heroin and conspiracy to do so, his constitutional rights under the Confrontation Clause and the Due Process Clause were not violated. Confrontation issue “… [Defendant Nicholas] Occhiuto’s challenge takes aim at the testimony FBI Special Agent Jeffrey Wood provided at his trial. … “Wood testified at trial about how the investigating officers arranged for a cooperating informant, whom we will call ‘A.J.’, to make undercover purchases from Occhiuto that law enforcement agents would secretly record by video. … “Occhiuto objects specifically to the portion of Wood’s testimony in which Wood stated that the drugs in evidence were the same drugs that Occhiuto had sold to A.J. on the dates covered by the surveillance. Occhiuto argues that Wood’s testimony about the controlled buys relied on, and thus necessarily relayed to the factfinder, what A.J. had said to Wood about what occurred during her encounters with Occhiuto. And thus, Occhiuto argues, this aspect of Wood’s testimony violated the Confrontation Clause because it implicitly — but necessarily — related the out-of-court statements made by the informant, A.J., about her transactions with Occhiuto. “To support this contention, Occhiuto relies on United States v. Meises, 645 F.3d 5 (1st Cir. 2011). … “But this case is not at all like Meises. Nothing in Wood’s testimony suggested that a reasonable factfinder ‘could only have understood [Wood] to have communicated that [A.J.] had’ told Wood that Occhiuto had sold her the drugs. Wood did not purport to recount anything during his testimony that A.J. had said to him about the buys. Wood did recount that he ‘debriefed’ A.J. after the controlled buys in his description of what control measures that law enforcement undertook. But, despite Occhiuto’s assertion that A.J. must have told Wood about the controlled buys during the debriefings, nothing in Wood’s testimony referenced the content of these debriefings. Wood testified, throughout, without reference — direct or indirect — to any statement A.J. may have made to him about what had been exchanged, and Occhiuto identifies nothing in the record to suggest otherwise. … “Occhiuto nonetheless argues that Wood must have been relying on statements that A.J. made to him at the time of the transactions because the evidence showed gaps in Wood’s knowledge of what happened during the controlled buys that could only have been filled by such statements. …

“But the fact that there may have been holes in Wood’s testimony that drugs were exchanged and that those drugs were the drugs in evidence does not show that Wood was therefore relaying out-of-court statements from A.J. in offering that testimony. Wood based this testimony on surveillance that might have been imperfect. But, at most, the imperfections could support a challenge to the weight to be accorded Wood’s testimony. They cannot show that Wood’s testimony, because less than airtight, was other than it was: testimony that relayed Wood’s own observations and not statements made out of court by someone Occhiuto could not confront at trial. Thus, there was no Confrontation Clause violation.” Due process issue “Occhiuto next argues that the District Court deprived him of his constitutional right to present a defense by denying his request to call a particular witness, Victor Bizzell. Occhiuto contends that Bizzell’s testimony would have provided ‘evidence in the form of an admission by [A.J.] that she ripped off the buy money in one of the controlled buys with Occhiuto.’ … “There was no abuse of discretion here. Occhiuto, by his own description, sought to admit Bizzell’s testimony in order to prove the truth of what A.J. had said to Bizzell — namely, that she was actually involved in a scam at the time of her ‘controlled buys’ with Occhiuto. Thus, Bizzell’s testimony as to A.J.’s out-of- court statements to Bizzell — because such testimony would have been introduced to prove the truth of the matter asserted within — would have constituted hearsay. ... And Occhiuto has not demonstrated how Bizzell’s testimony would have been admissible under any exception to the hearsay rule. In consequence, the District Court acted well within its discretion in declining to permit Bizzell’s testimony.” Sentence “Finally, Occhiuto challenges the substantive reasonableness of his sentence. The District Court imposed a sentence of 105 months, a term at the higher end of the applicable Guidelines range. … “Occhiuto argues that the District Court inadequately considered his history of mental illness and previous brain injury because the District Court did not mention these mitigating factors at sentencing. But the District Court did state at the sentencing hearing that it had read the materials submitted by the parties, and Occhiuto’s materials identified these same factors. The record thus supports the conclusion that the District Court simply focused on other considerations that it implicitly deemed more important, including the defendant’s history of violent behavior. … “Occhiuto also argues that the District Court lengthened his sentence in order to promote his ‘rehabilitation’ in violation of Tapia v. United States, 131 S. Ct. 2382 (2011). … But the record does not show that the District Court imposed the sentence — or extended its length — in order to effect the defendant’s rehabilitation. The District Court instead repeatedly referred to the need to protect the public. … “And while the District Court did mention

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the ‘need for the defendant to get the ... services that can help him eventually become a productive law-abiding citizen, including educational, vocational, and perhaps mental health treatment options,’ the context shows that the District Court did not make the reference in order to justify the sentence itself. In like circ*mstances, we have held that ‘no Tapia error occurs unless rehabilitative concerns are being relied upon either in deciding whether to incarcerate or in deciding the length of the incarcerative sentence to be imposed. Thus, the mere mention of rehabilitative needs, without any indication that those needs influenced the length of the sentence imposed, is not Tapia error.’ United States v. Del Valle-Rodríguez, 761 F.3d 171, 175 (1st Cir. 2014). And so we find no such error here as well.” United States v. Occhiuto (Lawyers Weekly No. 01-114-15) (16 pages) (Barron, J.) (1st Circuit) Appealed from a judgment entered by O’Toole, J., in the U.S. District Court for the District of Massachusetts. John M. Thompson, with whom Robert F. Hennessy and Thompson & Thompson were on brief, for the defendant-appellant; Kelly Begg Lawrence, with whom Carmen M. Ortiz was on brief, for the United States (Docket No. 132299) (May 4, 2015).

Criminal

Sentencing - Bank fraud Where a defendant pleaded guilty to conspiracy to commit bank fraud, the sentencing judge properly calculated the victim’s loss attributable to him for sentencing purposes, correctly calculated the total offense level and Guidelines sentencing range and sentenced him to a within-the-Guidelines sentence that was both procedurally and substantively reasonable. Therefore, the sentence is affirmed. Calculation of loss “[Defendant Harry] Maisonet challenges the calculation of loss component of his total offense level and its resulting Guidelines range. Specifically, he argues that the district court miscalculated the amount of loss by disregarding U.S.S.G. §2B1.1(b) (1) Application Note 3(E) (Credits Against Loss), which resulted in an incorrect total offense level of twenty instead of fourteen, and thus a higher Guidelines sentencing range. … Maisonet claims that, because he did not know of any criminal investigation when he restituted close to three-fourths of the amount obtained by fraud, the district court erred by failing to discount the restituted amount from the amount of loss and, instead, using the entire amount of loss for sentencing purposes. We disagree. … “Maisonet’s contention that he was not on notice of any criminal investigation and that Pentagon did not seek to have criminal charges brought against him is irrelevant because what is determinative under the Guidelines is the time of detection of the offense by either the victim or the government. … Pursuant to the clear language of the Guidelines, in order to be entitled to a deduction in the loss amount, Maisonet must have restituted the money before either Pentagon or the government detected the offense. … That clearly did not happen

here. The district court correctly found that Pentagon detected the offense and filed suit in state court in April 2006 seeking reimbursem*nt of ‘the monies that had been fraudulently obtained.’ The court further found that ‘any restitution made was a result of the Settlement Agreement’ reached by the parties on May 1, 2008, in the civil case. It then correctly concluded that Maisonet did not restitute any money before the offense was detected and, thus, was not entitled to any offset. “In conclusion, because Maisonet failed to begin restitution of the $445,000 loss amount before Pentagon (the victim) discovered the offense, the district court correctly found that the loss amount was more than $400,000 but did not exceed $1,000,000 and, thus, the sentence enhancement of fourteen levels was appropriate pursuant to U.S.S.G. §2B1.1(b)(1)(H). The resulting total offense level and Guidelines range were also correct.” Double counting “Maisonet’s next procedural challenge — that the district court engaged in impermissible double counting by taking into consideration his prior criminal history in analyzing the 18 U.S.C. §3553(a) sentencing factors, even though this was already accounted for in his Criminal History Category — fails as well. “Double counting concerns usually involve the use of a single factor more than once to calculate the Guidelines sentencing range. … Here, the district court did not use the same factor twice to calculate the Guidelines sentencing range. It merely used Maisonet’s prior criminal history to calculate his Criminal History Category, which in turn was factored into the Guidelines sentencing range, and then considered all the section 3553(a) sentencing factors, which included Maisonet’s history and characteristics, the need to promote respect for the law, and to afford adequate deterrence. … This overlap between the Guidelines and other sentencing factors enumerated in 18 U.S.C. §3553(a) did not constitute double counting and is neither surprising nor impermissible. …” Remorse “Maisonet also argues that the court committed clear error by concluding that he lacked remorse for his commission of the offense. … “At the sentencing hearing, the district court made a specific finding that Maisonet did not show any repentance. The district court supported this finding with the fact that Maisonet was the one responsible for devising and running the entire fraudulent scheme; he was the main player, who recruited and paid others to participate with him in the scheme; and he was the sole holder of the bank account where the fraud proceeds were deposited. Yet, Maisonet had tried to minimize his participation during his allocution. The court stated that the way Maisonet behaved during his allocution was a reflection of how he has always proceeded in life. Specifically, it stated that throughout his life, Maisonet ‘has displayed a conduct in which he has managed to get away Continued on page 8

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1st U.S. CIRCUIT COURT OF APPEALS Continued from page 7

with whatever he wants, and that his conduct reflects so,’ and that ‘even his demeanor ... betrayed him ... in court.’ Based on the evidence on the record, we do not find that the district court’s conclusion that Maisonet lacked remorse was erroneous, clearly or otherwise.” Denial of downward departure “Maisonet next argues that the district court did not ‘acknowledg[e] the combination of factors that could justify’ the imposition of a non-Guidelines sentence of time served. He, however, failed to develop this argument. In fact, he did not discuss, or even mention, which were the factors that allegedly justified a sentence below the Guidelines. Thus, this argument is waived. … “Finally, we reject Maisonet’s broader challenge that the district court should have granted a ‘downward departure’ and imposed a non-Guidelines sentence of time served, as recommended by the parties in the plea agreement. “ … Here, the district court met the reasonableness standard. It considered Maisonet’s arguments but found them unpersuasive because of Maisonet’s leading role in the offense, his criminal history, his clear disregard for the law and the rights of his victims, the seriousness of his offense, and the timing of its occurrence, having been committed while on probation for a previous offense. We find no abuse of discretion. “In sum, although Maisonet and the government requested a sentence of time served, the district court, within its discretion, found that a sentence within the applicable Guidelines sentencing range was sufficient but not greater than necessary. The district court carefully considered all relevant factors and explained in detail the basis for its conclusion that Maisonet warranted a Guidelines sentence. This was a defensible result, and the court stated a plausible rationale for reaching it. …” United States v. Maisonet-González (Lawyers Weekly No. 01-112-15) (19 pages) (Torruella, J.) (1st Circuit) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 13-2003) (May 4, 2015).

Search and seizure

Child p*rnography - Nexus Where a judge denied a child p*rnography defendant’s motion to suppress evidence seized by the police pursuant to two search warrants, the motion should have been allowed because the police affidavits in support of the warrants were too conclusory to establish probable cause. A remand must be ordered, however, with respect to the defendant’s motion to suppress evidence seized later with the consent of the defendant’s then-wife. Lack of probable cause “This appeal concerns a district court’s decision to deny a sweeping motion to suppress evidence in a federal child p*rnography prosecution. The defendant contends that all of the evidence that he seeks to suppress may be traced to two allegedly unconstitutional searches that the Puerto Rico police carried out before he was even under suspicion on the federal charges. “The defendant seeks first to suppress any evidence that was acquired in those two searches. And we agree that, under the established precedent of the Supreme Court and our Circuit, the searches carried out by the Puerto Rico police did violate the Fourth Amendment and that any evidence that the government wishes to use that was acquired only from those searches must be suppressed. “The more difficult issue concerns the defendant’s attempt to suppress the evidence

that federal agents later acquired after receiving the consent of the defendant’s thenwife to examine certain electronic devices taken from her and the defendant’s home. The defendant contends that this evidence also must be suppressed because the federal agents initiated their investigation — and thus carried out the consent-based examinations — only after the Puerto Rico police supplied a tip that was premised solely on information the Puerto Rico police acquired from the two prior unlawful searches. “We have previously held that the taint from a prior unconstitutional search may render evidence obtained from a subsequent consent-based search illegal ‘fruits of the poisonous tree’ that must be suppressed. … Unfortunately, however, the record in this appeal contains little that would help us decide whether such suppression is required here. The District Court made no factual findings on the relationship between the searches the Puerto Rico police conducted and the subsequent federal investigation, which resulted in federal authorities obtaining the consent of the defendant’s then-wife. Instead, the District Court ruled — erroneously — that the two searches the Puerto Rico police carried out did not violate the Fourth Amendment. For that reason, the District Court had no occasion to address whether those unlawful searches taint the evidence federal authorities later acquired pursuant to the consent the defendant’s then-wife provided. “The parties do appear to ask us to resolve this issue on the basis of the record before us, notwithstanding its undeveloped state. But because the issue is so fact dependent, we vacate and remand so that the District Court may hold an evidentiary hearing to determine whether the Puerto Rico police’s prior searches so tainted the evidence the federal agents later obtained pursuant to the consent that the defendant’s then-wife supplied that such evidence must be suppressed. If the District Court determines suppression is required, then the District Court also must determine what specific evidence in fact must be suppressed in consequence. … “… [Defendant Hilton Alexis Cordero-Rosario] was not being investigated for possession of illegal p*rnography. He was being investigated for committing certain lewd acts. The affidavit, however, supplies no basis for connecting the p*rnography that was the object of the search to that particular offense, which, in its nature, does not necessarily involve the use of p*rnography at all. In this regard, the affidavit does not state at any point that the alleged lewd and lascivious acts were carried out in a manner that involved the use of p*rnography, which is on its own legal to possess. In fact, the affidavit says nothing at all about why the existence of otherwise lawful p*rnography on a home desktop computer would be relevant to this particular criminal investigation. Nor does the affidavit state or even intimate that the ‘p*rnographic material’ in question involved the injured minor, or any minor at all. … “The affidavit, in other words, was conclusory as to all the key points concerning nexus. And such a conclusory affidavit is plainly not sufficient to establish the necessary probable cause. … “The affidavit relating to the second search warrant is even less detailed. This affidavit is thus even less capable of establishing the needed probable cause. … “As a result of the foregoing analysis, we hold that the Puerto Rico police’s February 4 and February 26 searches were undertaken in violation of the Fourth Amendment and that no exception to the exclusionary rule applies to evidence that was obtained only during those two searches. Much of the evidence against Cordero, however, including the evidence specifically described in his conditional plea agreement, was found in a ‘subsequent forensic examination’ after federal agents became involved in the case. We thus must consider whether the federal agents’ investigatory efforts provide a

separate basis for the use of such evidence against Cordero. And that brings us to Cordero’s final contention.” Need for remand “Cordero’s first argument is that his thenwife’s consent did not suffice to permit the federal authorities’ search because the federal authorities neither sought nor received consent from Cordero himself. … “But Cordero contends that even though D.M.C. apparently had ‘common authority’ over the computer and other electronic devices that the federal authorities examined, his then-wife’s consent still could not substitute for his own because he ‘was free on bail and available at that time.’ ... Cordero thus argues that the evidence the federal authorities obtained pursuant to D.M.C.’s consent must be suppressed because, on the facts of this case, her consent was no substitute for his. “But this is not the law. … “… Cordero’s mere availability — and asserted inclination to object to a search if asked — provides no basis for not giving effect to his then-wife’s actual consent. … “Cordero’s second ground for arguing that the evidence obtained pursuant to D.M.C.’s consent must be suppressed has more force. According to Cordero, the federal government sought to obtain his thenwife’s consent only due to a tip from Puerto Rico police that was itself the result of the Puerto Rico police’s prior unlawful searches. Cordero thus contends that the evidence federal authorities obtained pursuant to the consent-based examinations was necessarily ‘tainted’ by the earlier unlawful searches that the Puerto Rico police conducted. And, for that reason, Cordero argues, all such evidence must be suppressed as illegal ‘fruits’ of those prior unconstitutional searches. … “[T]he success of Cordero’s suppression motion turns on whether the evidence obtained pursuant to D.M.C.’s voluntary consent was tainted by the prior unlawful searches by the Puerto Rico police. But that inquiry, as we have previously said, is necessarily highly fact dependent and ‘amorphous.’ … “Because the inquiry ‘require[s] the particular circ*mstances of [the] case to drive the analysis,’ … we decline to undertake it now. The District Court never considered any of the relevant factors — or made findings with respect to them — for the simple reason that it held that the searches by the Puerto Rico police did not violate the Fourth Amendment. Thus, we lack sufficient information to determine whether D.M.C.’s consent was obtained by exploitation of the underlying illegality. … “For the foregoing reasons, we vacate the District Court’s suppression ruling. On remand, if the District Court should find that the Puerto Rico police’s unlawful searches did not taint the federal authorities’ consent-based search, then the District Court must decide which, if any, of the government’s evidence stemmed solely from the Puerto Rico police’s searches. If, however, the District Court should decide the taint issue in Cordero’s favor, then the District Court must decide which, if any, evidence the government seeks to introduce must be suppressed in consequence of that tainted relationship. But given that those are issues about which we lack sufficient facts to determine, the District Court should only decide them following an evidentiary hearing on the matter.” United States v. Cordero-Rosario (Lawyers Weekly No. 01-113-15) (31 pages) (Barron, J.) (1st Circuit) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 14-1007) (May 4, 2015).

Criminal

Sentencing - ‘Crime of violence’ Where a U.S. District Court judge, in sentencing a defendant for a federal gun crime,

deemed the defendant’s prior conviction for domestic violence under Puerto Rico law to be a “crime of violence” under the Sentencing Guidelines, the judge committed no plan error. “Taken together, the text of Article 3.1 and the Puerto Rico Supreme Court’s interpretation of it strongly suggest the statute’s physical-force element involves the kind of violent force ‘capable of causing physical pain or injury to another person.’ … And that is the kind of force required by the crime of violence sentencing guidelines’ force clause. … “[Defendant Wilson Serrano-Mercado] argues, however, that he still should win because it is at least possible he was convicted of an offense under Article 3.1 that does not qualify as a crime of violence. And that is because, he contends, that statute is divisible and the elements of ‘psychological abuse, intimidation or persecution’ plainly do not set forth an offense that is a crime of violence…. “Here, … no First Circuit precedent, later overruled, established at the time of sentencing that the conviction for the underlying offense categorically qualified as a crime of violence. And so the defendant’s failure to contest the pre-sentence report’s and the District Court’s characterization of those prior convictions is, as [United States v. Davis, 676 F.3d 3 (1st Cir. 2012)] held in applying [United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. 2006)], key to our assessment that he has not met his burden of showing prejudice. And while Davis is itself a case with facts like [United States v. Torres-Rosario, 658 F.3d 116 (1st Cir. 2011)], that does not make its express adoption of Turbides-Leonardo’s prejudice analysis any less controlling in a case like this one, which mirrors the facts in Turbides-Leonardo rather the facts in Torres-Rosario. We thus do not address how Davis and Torres-Rosario’s analysis of the prejudice issue should be reconciled in a case presenting the distinct facts presented in those cases.” Concurring judge’s comments Lipez, J. “A defendant whose sentence is enhanced because of violent crimes he committed in the past will face substantially more time in prison than someone without a record of violence. Although I do not question sentencing enhancements for defendants with violent criminal histories, we must ensure that aggravated penalties are imposed only when the criminal histories justify them. Here, appellant challenges the district court’s unsupported assumption that his conviction under a ‘divisible’ statute was in fact for a crime of violence. I reluctantly agree with my colleagues that First Circuit precedent requires us to reject appellant’s claim. However, our case law on how to evaluate plain error in this context is inconsistent, and it cannot be reconciled with the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005). I therefore urge our court to rehear this case en banc so that we may closely examine, and fairly resolve, an important and complex question of law: how does the government’s burden to establish that a conviction under a divisible statute qualifies as a predicate offense intersect with a defendant’s burden to show plain error?” United States v. Serrano-Mercado (Lawyers Weekly No. 01-115-15) (55 pages) (Barron, J.) (Lipez, J., concurring) (1st Circuit) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 13-1730) (May 1, 2015).

U.S. DISTRICT COURT

Editor’s note: The full text of these decisions can be found on Lawyers Weekly’s website, masslawyersweekly.com.

Constitutional Gun statute

Where various plaintiffs challenge the enforceability of 940 C.M.R §16.05(3), a state regulation that requires load indicators or magazine disconnects on handguns sold by

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U.S. DISTRICT COURT handgun dealers, even those plaintiffs who have standing to sue cannot demonstrate that the regulation is vague or that it violates their Second Amendment rights. Accordingly, the defendants’ motion to dismiss is allowed. “Defendant contends that the two organization plaintiffs lack standing because they do not allege harm to themselves or to their members. … “Organization plaintiffs respond that they have standing to sue in their own right despite never having attempted to purchase a Gen3/4 Glock pistol in Massachusetts because they have spent time and resources analyzing the regulation and that they have incurred financial loss in sponsoring the lawsuit. These investments do not, however, serve as a concrete injury to the organizations. … The organization plaintiffs therefore lack standing to sue on their own behalf. “With respect to its standing to sue on behalf of its members, Second Amendment Foundation claims to have 8,066 ‘members and supporters’ in Massachusetts, of which 1,847 are current paid members. It has not identified, however, any specific members who have attempted to purchase Glocks in the Commonwealth or who were dissuaded from selling Glocks because of the regulation. … “Commonwealth Second Amendment likewise has failed to identity affected members. In fact, it not does appear to have members. … The organization cannot, therefore, sue on behalf of members who do not exist. Accordingly, the organization plaintiffs will be dismissed for lack of standing. “Defendant asserts that the dealer plaintiffs do not have standing because they fail to make a sufficient allegation of injury related to their challenge of the regulation. … The Court agrees that the dealer plaintiffs have sufficiently alleged an injury caused by the regulation and redressable by injunctive relief. “Finally, defendant contends that consumer plaintiffs lack standing because the regulation does not implicate the Second Amendment and therefore they have failed to allege a cognizable injury. …The Court concludes that the consumer plaintiffs have standing because they have submitted evidence indicating that various consumer plaintiffs attempted to purchase a Gen3/4 Glock pistol but were unable or dissuaded to do so because of the regulation. … “The dealer plaintiffs contend that the regulation’s definition of ‘load indicator’ is facially vague in violation of the Fourteenth Amendment’s Due Process Clause. … “Here, defendant has offered several examples of firearms where it is clear that they would fail to meet the regulation’s standards. … Accordingly, plaintiffs’ facial challenge to the regulation will be dismissed. “The dealer plaintiffs contend that the regulation is vague as applied because they cannot determine with any reasonable certainty whether Gen3/4 Glock pistols are compliant. … “The Court concludes that the plaintiffs’ knowledge and receipt of actual notice that the Gen3/4 Glock pistols are noncompliant defeat their as-applied challenge to the regulation. … “To the extent that the dealer plaintiffs contend that the regulation is vague with respect to potential sales restrictions of other handguns, their argument fails. Civil regulations that govern commercial conduct are held to a lower standard than criminal statutes in the vagueness analysis. … The words are straightforward both individually and in context because they describe that the purpose of a load indicator in a handgun is to inform a user unequivocally that the gun is loaded. The Court concludes that the language of the regulation provides clear guidance for and fair notice to firearms dealers of ordinary intelligence. Plaintiffs’ vague as-applied challenge to the regulation will

therefore be dismissed. … “The consumer plaintiffs contend that the regulation burdens their Second Amendment rights because the vague regulatory definition of ‘load indicator’ prevents them from purchasing Gen3/4 Glock pistols. … “The regulation at issue requiring a load indicator or magazine safety disconnect in handguns sold or transferred in the Commonwealth similarly does not violate the Second Amendment for three reasons: “1. The regulation fits comfortably among the categories of regulation that [District of Columbia v. Heller, 554 U.S. 570 (2008)] suggested would be ‘presumptively lawful’ because it ‘impos[es] conditions and qualifications on the commercial sale of arms.’ … “2. The regulation does not substantially burden the right to bear arms in self-defense in one’s home because the ban on two kinds of Glock pistols in no way prevents citizens from obtaining a wide array of firearms. … “3. Even if the regulation did impinge on Second Amendment rights, the Court finds that it passes constitutional muster under any standard of scrutiny. The defendant has demonstrated a strong showing of a ‘substantial relationship’ between the restrictions imposed by the regulation and the important government objective of protecting the safety of its citizens. “Accordingly, Count II of the plaintiffs’ complaint will be dismissed.” Draper, et al. v. Healey (Lawyers Weekly No. 02-110-15) (18 pages) (Gorton, J.) (USDC) (Civil Action No. 14-12471-NMG) (March 5, 2015).

Employment

Retaliation - False Claims Act Where a plaintiff has alleged retaliatory termination in violation of the anti-retaliation provision of the False Claims Act, the defendant employer must be awarded summary judgment based on evidence of the plaintiff ’s misconduct. “[Plaintiff] Blair Hamrick began work at [defendant] GSK as a pharmaceutical sales representative in Colorado in 1997. On January 30, 2002, plaintiff met with a GSK Compliance Officer to discuss plaintiff ’s allegations regarding off-label drug presentations sponsored by GSK. … “There is no dispute that Hamrick was engaged in protected activity and that GSK was aware of that activity from as early as 2002. The decision to terminate Hamrick came only shortly after implicit confirmation to GSK that he was, in fact, a qui tam relator. This temporal proximity is, perhaps, sufficient to give an inference of animus, so I assume, without deciding, that plaintiff ’s prima facie burden was met. “Defendant provides a substantial non-retaliatory basis for its decision to terminate Hamrick, linked to three main things. First, the company cites Hamrick’s erratic

behavior and verbal threats made before and during a company retreat in March 2004. Second, it points out Hamrick’s failure to disclose to the company his conviction of [driving while alcohol impaired (DWAI)], in contravention of company policy requiring its disclosure. Third, GSK notes that company policy requires the termination of employees who refuse to cooperate with internal investigations, and defendant’s refusal to fully comply with GSK’s investigation into his erratic behavior and fitness for duty, by setting conditions to his meeting with the company. These events, taken together, are more than enough to shift the burden back to plaintiff. “The remaining question is whether plaintiff can point to sufficient evidence to allow a reasonable jury to find that, but for his protected whistleblowing activity, he would not have been terminated. Plaintiff is right that he may, to some extent, rely on timing-driven inference to make out his case for retaliation to a jury. … However, other than a generic pattern of alleged mistreatment, going back several years and attributable to many causes unrelated to his protected activity, plaintiff has produced no evidence whatsoever, other than the loose temporal inference, to support his allegation of retaliatory firing. In the face of the overwhelming and largely undisputed evidence of defendant’s serious misconduct immediately preceding the termination of his employment, he has failed to produce any evidence to create a genuine issue of material fact, i.e., to provide a basis for a reasonable jury to conclude that, but for his whistleblowing, he would not have been terminated.” United States ex rel. Thorpe, et al. v. GlaxoSmithKline plc, et al. (Lawyers Weekly No. 02-112-15) (8 pages) (Zobel, J.) (USDC) (Civil Action No. 03-10641-RWZ) (March 6, 2015).

Prisons

RLUIPA - Wiccan Where the plaintiff prisoner has brought 12 claims against the Massachusetts Department of Correction and its superintendent under the Religious Land Use and Institutionalized Persons Act, seeking declaratory and injunctive relief from what he claims are unlawful burdens on the practice of his Wicca faith, both the plaintiff ’s and the defendants’ motions for summary judgment must be granted in part and denied in part. “The first section of [plaintiff Daniel] LaPlante’s complaint alleges that his religious exercise is burdened by the DOC’s rules regarding when he can engage in corporate worship (that is to say, worship with other Wiccans at MCI-Norfolk). … Wiccans structure their worship around the phases of the moon … “The Court agrees with LaPlante that

the undisputed facts of the current schedule for Wiccan worship demonstrate a substantial burden under RLUIPA. Forcing a religious ceremony to take place at a time different than the one mandated by the faith strips the ceremony of its meaning and functionally amounts to a bar on the proper practice of that religion. … “LaPlante also asks the Court to order the DOC to provide him with thirty-six different kinds of ritual oils. … “The Court rules that LaPlante adequately has demonstrated that the limits on the kinds of oils available are a substantial burden on his religious exercise. By barring his access to the required scents, the Defendants prevent LaPlante from engaging in an essential part of Wiccan practice. … “Third, LaPlante requests that the Defendants allow him access to twenty-three different ritual herbs. … “Summary judgment cannot enter for the Defendants on this point. All of their proffered justifications for the denial of any herbs to the Wiccans of MCI-Norfolk are exceptionally broad, and in one case slightly hypothetical. … The Court cannot rule that LaPlante is entitled to summary judgment either. There appears to be a dispute over several material facts, including storage space and the cost and toxicity of the herbs in question. … Thus, both LaPlante’s and the Defendants’ motions for summary judgment are denied as to the request for ritual herbs. “Fourth, LaPlante asks that the Court order the Defendants to provide him with sixteen different ritual teas. … “As with the ritual herbs, the Court cannot grant summary judgment to the Defendants here. When faced with the specific facts offered by LaPlante and drawing Continued on page 10

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U.S. DISTRICT COURT Continued from page 9

inferences in his favor, it would require more deference to the Defendants than is due to rule that their broad assertions carry the burden of proving that their flat denial of the requested teas is the least restrictive means of serving a compelling government interest. Similarly, the Court cannot grant summary judgment to LaPlante either, as there are sufficient disputes over material facts … “Fifth, LaPlante asks that he and other Wiccans at MCI-Norfolk be allowed to wear ceremonial robes during their corporate worship. … He offers no argument, however, as to how the Defendants’ refusal to provide him with these robes forces him to violate his religious beliefs. … “Sixth, LaPlante requests that the Defendants provide nine different ceremonial medallions, each of which is used to ‘identify those serving a specific function (or role) within a ritual.’ … [T]he burden placed on LaPlante and the other Wiccans of MCI-Norfolk by the Defendants’ refusal to give him the requested medallions is incidental at best. … “Seventh, LaPlante demands that the Defendants provide him with a variety of fruits and nuts … If the Defendants’ denial of fruit and nuts prevents LaPlante from properly summoning the Wiccan God and Goddess to his worship, this denial functionally strips the worship of its religious significance and constitutes a constructive bar to proper practice of the faith … “Eighth, LaPlante requests that the Wiccans at MCI-Norfolk be allowed to worship outside. … “There are critical material facts here that remain in dispute - namely, whether MCI-Norfolk has sufficient staffing to oversee outdoor worship for the Wiccan group. Accordingly, both LaPlante’s and the Defendants’ motions for summary judgment must be denied on this point, as the outcome of this factual dispute would be critical for finding in favor of either party. … “Ninth, LaPlante requests that the Defendants allow the Wiccan group to have a communal meal on each of the eight seasonal festivals celebrated by members of the religion. … “ … Given the posture of the case, the Court does not think it appropriate to order that some intermediate number of meals be given, and accordingly, the Court denies both LaPlante’s and the Defendants’ motions for summary judgment on this point. “Tenth, LaPlante requests different varieties of cake for each of the monthly Full Moon celebrations. … “ … While it cannot be disputed that it would be more exciting to get a different kind of cake every month, LaPlante has not offered enough evidence to show that the uniformity of the cake provided by the Defendants has forced him to alter or abandon his religious practice in some material way. … “Eleventh, LaPlante requests an array of ‘everyday items’ … that he claims are necessary for the performance of Wiccan rituals and ceremonies. … “ … [A]s to the baking soda, flour, honey, molasses, oatmeal, and sugar, the Court rules that LaPlante has not carried his burden and that the Defendants are entitled to summary judgment. … “Last, LaPlante requests that he be given colored pens in order to write in his Book of Shadows, as is required by the Wicca faith. … “The Court rules that LaPlante has not adequately shown a substantial burden under RLUIPA.” LaPlante v. Massachusetts Department of Correction, et al. (Lawyers Weekly No. 02-113-15) (36 pages) (Young, J.) (USDC) (Civil Action No. 13-10606-WGY) (March 6, 2015)

Corporate

Derivative suit - Demand Futility Where a shareholder derivative suit derivatively has been against defendant corporate directors and officers for alleged breaches of fiduciary duty, misappropriation of confidential information, insider trading and a violation of the Securities Exchange Act, the complaint must be dismissed because the plaintiff has not made a demand on the board of directors and has not sufficiently alleged that demand would have been futile. “Because ARIAD [Pharmaceuticals, Inc.]’s board is comprised of eight members, Plaintiff is required to plead that demand would have been futile as to only four ARIAD board members. ... As to Defendant [Harvey J.] Berger — ARIAD’s President, CEO, and Chairman of the Board — the amended complaint adequately alleges that he is disqualified from exercising independent, disinterested judgment. ... Plaintiff, however, has not sufficiently pled that demand would have been futile as to any other director. Plaintiff contends that the outside directors are interested because they face personal liability. … “Plaintiff argues that the directors, and in particular, those on ARIAD’s Audit Committee, face a substantial likelihood of liability for (1) knowingly or recklessly authorizing the disclosure of materially false or misleading statements in certain of the company’s public filings, and/or (2) failing to act in good faith to discharge their duties to exercise reasonable inquiry, oversight, and supervision over the company. ... Plaintiff argues that ‘the massive liability exposure posed by the instant litigation rendered each Director Defendant interested.’ … “Plaintiff has not put forth sufficient particularized factual allegations demonstrating that the outside directors are subject to a substantial likelihood of liability based on these claims because they do not sufficiently plead that the outside directors either consciously ignored their duties under Caremark [Int’l Derivative Litig., 698 A.2d 959 (Del. Ch. 1996)] or acted with intent in authorizing the disclosure of materially false or misleading statements. …” Liang v. Berger, et al. (Lawyers Weekly No. 02-114-15) (19 pages) (Talwani, J.) (USDC) (Civil Action Nos. 13-cv-12816-IT and 13097-IT) (March 9, 2015).

Retirement ERISA - ‘Float’

Where defendants have moved to dismiss a purported class action that alleges misappropriation of “float” income, the complaint must be dismissed on the ground that float income is not an asset of the retirement plans in which the plaintiffs have participated. “Plaintiffs bring this purported class action on behalf of the retirement plans (the ‘Plans’) in which they have been participants or an administrator alleging that Defendants FMR LLC, Fidelity Management Trust Company (‘FMTC’), Fidelity Management and Research Company (‘FMRC’), and Fidelity Investments Institutional Operations Company, Inc. (‘FIIOC’) (collectively, ‘Fidelity’) have violated the Employee Retirement Income Securities Act (‘ERISA’), 29 U.S.C. §1001 et seq. … “Plaintiffs include participants in retirement plans and an administrator for a retirement plan that entered into trust agreements with Fidelity to establish trusts to hold Plan assets. … Fidelity’s trust agreements would generally provide that FMTC would charge only three types of fees to the Plans: (1) an asset-based fee based on a percentage of Plan assets held in a particular Plan investment; (2) a fixed administrative fee per Plan participant; and (3) fees for individual participant services. … “Plaintiffs allege that Fidelity’s ERISA violations arise from ‘(1) their practice of appropriating float earned on Plan assets to

pay banking fees that Fidelity was required to pay, and (2) their practice of misappropriating float income for the use of clients other than the participants in the Plans.’ ... According to the operative complaint, when Plan participants withdrew funds from the Plan a lump-sum disbursem*nt was triggered (unless the Plan participant had entered retirement and was receiving regular retirement payments). ... Fidelity’s disbursem*nt process occurred in multiple steps. When Fidelity received a withdrawal request, it sold the mutual fund shares and moved the funds from the relevant investment option account to a redemption bank account. ... Electronic disbursem*nts were paid to plan participants from the redemption bank account. ... Overnight, Fidelity would transfer the funds into an interest bearing account owned and controlled by Fidelity and the principal of the funds would be transferred back to the redemption bank account the following day. ... Any interest earned overnight was not transferred to the redemption bank account. ... This interest is generally referred to as ‘float.’ ... For participants who did not elect to receive an electronic disbursem*nt, the withdrawn funds were transferred from the redemption bank account to an interest bearing disbursem*nt bank account, which issued a check to the participant in the amount of the withdrawn funds, but not including interest. ... Participants received the funds after they cashed or deposited the check. ... Fidelity would retain some portion of the float income generated during the disbursem*nt process and the remainder was credited to mutual funds. … “Although all of the accounts described above incurred bank expenses, these expenses were part of Fidelity’s ordinary operating expenses for recordkeeping and administering the Plans. ... Thus, Fidelity used float income — which Plaintiffs allege belong to them — to pay these recordkeeping and administrative expenses. ... Plaintiffs allege that these expenses were outside the scope of the agreed-upon fees they would pay Fidelity and, therefore, Fidelity’s practice amounted to a violation of Fidelity’s fiduciary duties. … “At base, Plaintiffs’ allegations rise and fall on the premise that float income is a Plan asset. … “In sum, Plaintiffs have not pointed the Court to any allegations that establish that the float was a Plan asset. … “Alternatively, even if float were a Plan asset, it is also the case that Fidelity is not an ERISA fiduciary as to float. …” In re Fidelity ERISA Float Litigation (Lawyers Weekly No. 02-118-15) (16 pages) (Casper, J.) (USDC) (Civil Action No. 1310222-DJC) (March 11, 2015).

Evidence

Discovery - Privilege Where a U.S. magistrate judge has recommended allowing a motion by defendants to compel production of documents, the recommendation should not be adopted insofar as it would compel production of documents that the plaintiff contends are protected by his clients’ privileges or protections. “The magistrate judge ruled that Plaintiff ’s privilege log was ‘manifestly inadequate’ because it: (1) ‘does not assert the privilege as to individual documents but rather as to categories of documents,’ and (2) the information included in the log falls short of ‘meeting the burden of establishing an entitlement to the privilege.’ … “Although a categorical log may be allowable if thorough review is still possible, the log Plaintiff produced here was inadequate. … Plaintiff needed to provide information sufficient to show, at the least, the existence of each element described above. Plaintiff ’s log — which grouped documents by relationship or overall transaction — does not contain such detail, making it difficult for Defendants or the court to test the applicability of the asserted privilege as to each document sought to be withheld. …

“In sum, a finer, more document-specific screening was required to meet Plaintiff ’s obligations under Federal Rule of Civil Procedure 26(b)(5)(A) as to both his assertions of the attorney-client privilege (as explained above) and other privileges and protections. The magistrate judge’s ruling that the privilege log provided by Plaintiff provided inadequate detail regarding the putatively privileged documents and that he waived his privileges and protections as to such documents (except as to presumptively privileged documents) was not clearly erroneous and is affirmed, except as provided below. … “The magistrate judge found that ‘communications between Plaintiff and his counsel in the instant litigation’ were ‘presumptively privileged’ and need not be disclosed. ... Defendants do not object to this finding. “The magistrate judge refused to extend this ruling to sections of the privilege log dealing with communications between Plaintiff and his counsel involved in California- and Quebec-based litigation arising from the same set of facts and against the same defendants. ... As to these communications, the magistrate judge ruled that he had ‘no idea what the subject of these communications were [sic] much less whether they involved legal advice.’ ... Plaintiff and Defendants were opposing parties in these other cases and Plaintiff ’s statements provided the court with adequate notice of that fact. … The magistrate judge’s finding to the contrary was clearly erroneous. Accordingly, the court finds that Plaintiff ’s communications with counsel in the California- and Quebec-based litigation (limited to the time period in which Plaintiff was involved in those actions) are presumptively privileged and need not be disclosed. … “The magistrate judge found that, in light of Plaintiff ’s delay in producing an adequate privilege log and the closing (with limited exceptions) of discovery, there was no longer time to submit a more thorough log and have subsequent litigation over the adequacy of that corrected log. Accordingly, the magistrate judge ordered Plaintiff to produce all responsive documents which had been withheld on the basis of any privilege or protections (the only exception being documents including communications between Plaintiff and his instant trial counsel, which the magistrate judge held to be privileged). … “The magistrate judge’s order required the disclosure of a number of communications between Plaintiff and his clients for which he claims the attorney-client privilege attached. This includes not only communications between Plaintiff and Georges Cohen (who Plaintiff argues was a client but Defendants assert was also Plaintiff ’s business partner in various undertakings related to this litigation), but also to or from other of Plaintiff ’s clients. … “The attorney-client privilege belongs to the client, not the attorney. … An order requiring disclosure of documents based on Plaintiff ’s inadequate privilege log, therefore, would be subject to immediate challenge by Plaintiff ’s clients. … In that event, the record, including the deficient privilege log, would be inadequate for meaningful appellate review of the clients’ rights. ... “Accordingly, although further consideration of the attorney-client privilege will delay proceedings here, such review is necessary to ensure that the court, having found Plaintiff ’s assertions of privilege and protection waived, also addresses any privileges and protections alleged by his clients. …” Neelon v. Krueger, et al. (Lawyers Weekly No. 02-119-15) (11 pages) (Talwani, J.) (USDC) (Civil Action No. 12-cv-11198-IT) (March 10, 2015).

Immigration Visa - Consular nonreviewability

Where a plaintiff Massachusetts company and a coplaintiff employee of a

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U.S. DISTRICT COURT Russia-based affiliate have requested (1) a writ of mandamus to compel the defendants to conduct a visa interview for the employee at the U.S. Embassy in Moscow “in accordance with all legal requirements” and (2) a preliminary injunction to enjoin the defendants from returning the employee’s visa application to U.S. Citizenship and Immigration Services, the complaint must be dismissed under the doctrine of consular nonreviewability. “Under the doctrine of consular nonreviewability, courts are generally not authorized to review the decisions of consular officers. … “Plaintiffs argue, however, that the doctrine of consular nonreviewability should not apply to this case for two reasons. First, Plaintiffs argue that ‘[w]hen the court is reviewing the procedural validity of a consular action rather [than] a visa denial’ the doctrine does not apply. ... Next, Plaintiffs argue that under the exception articulated by the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753, 762 (1972), the Court has authority to review visa denials that lack a ‘“facially legitimate and bona fide reason.”’ … “… Plaintiffs contend that due to the consular officer’s allegedly improper behavior and the resulting alleged procedural violations, the denial of [Marina] Kostochka’s visa was not a ‘decision for purposes of the consular non-reviewability doctrine.’ … “… Here, the consul did not refuse to act, as was the case in Patel [v. Reno, 134 F.3d 929 (9th Cir. 1997)]. Rather, on October 29, 2014, the consular office in Moscow refused Kostochka’s visa application pursuant to INA §221(g), instructing that the application be returned to DHS ‘for reconsideration/revocation of petition.’ ... Unlike in Patel, the consular office in this case took timely action in deciding to deny the visa application. Therefore, the doctrine of consular nonreviewability, which applies to the decisions of consular officers, is applicable. Furthermore, allegations of procedural irregularities and errors of law are not sufficient to circumvent the doctrine of consular non-reviewability and ‘[c]ourts will not review the decisions of consular officers even where those decisions are based on action unauthorized by the INA, on procedural irregularities or on errors of law.’ … “… Mandel review requires ZigZag [LLC] to allege, at minimum, some constitutional interest, if not a First Amendment challenge. … ZigZag has made no such allegation here, see generally, … and in the absence of a constitutional issue the Mandel exception is inapposite. … As a result, the limited review that is potentially authorized under Mandel is unavailable, and the doctrine of consular nonreviewability applies.

“Although the treatment of Kostochka’s visa application, at least as alleged in the complaint, may cry out for some remedy, given the clear application of the consular nonreviewability doctrine to this case, it is not a judicial one. Accordingly, the Court lacks the authority to review the consular officer’s decision to deny Kostochka’s visa application. … “… In light of this Court’s decision to allow Defendants’ motion to dismiss, Plaintiffs cannot demonstrate a likelihood of success on the merits. Accordingly, the Court need go no further, and Plaintiffs’ motion for a preliminary injunction … is denied.” ZigZag, LLC, et al. v. Kerry, et al. (Lawyers Weekly No. 02-120-15) (13 pages) (Casper, J.) (USDC) (Civil Action No. 1414118-DJC) (March 10, 2015).

Civil practice Protective order Impoundment

Where the parties have filed a “Stipulation and Confidentiality Order,” their request, treated as a motion for a protective order, should be allowed with respect to the exchange of documents and information between them, but denied without prejudice as to the use of confidential information in any court proceeding or court filing. “… [N]othing in the protective order limits this court’s power to make orders concerning the disclosure or impoundment of documents produced in discovery or at trial. To that end, the motion is denied without prejudice to a party making a particularized showing for the need for impoundment. “This court is guided in this regard by First Circuit precedent and Local Rule 7.2. Because the public has a ‘presumptive’ right of access to judicial documents, ‘“only the most compelling reasons can justify non-disclosure of judicial records that come within the scope of the common-law right of access.”’ The burden is thus on the impoundment-seeking party to show that impoundment will not violate the public’s presumptive right of access. For that reason, when seeking to file under seal any confidential information, a party must show this court good cause for the impoundment. Specifically, the party seeking impoundment must make ‘“a particular factual demonstration of potential harm, not ... conclusory statements”’ as to why a document should be sealed. This court ‘will not enter blanket orders’ for impoundment.” Mejia v. Fertility Solutions, P.C., et al. (Lawyers Weekly No. 02-121-15) (2 pages) (Talwani, J.) (USDC) (Civil Action No. 14-cv-13005-IT) (March 11, 2015)..

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U.S. BANKRUPTCY COURT

Editor’s note: The full text of these decisions can be found on Lawyers Weekly’s website, masslawyersweekly.com.

Bankruptcy

Mortgage - Acknowledgement Where a Chapter 7 trustee has challenged the validity of a mortgage, the mortgage may be invalidated by the trustee because of a defective acknowledgment. “… Based upon the ambiguous language in the acknowledgment it is unclear whether the Mortgage was signed ‘voluntarily and for its stated purpose’ by [John] Molloy, or by Malloy under his power of attorney. Indeed, the language in the acknowledgment is unclear as it is capable of two different interpretations as to who personally appeared before the notary, either Malloy or the Debtors. Thus, if the property were not registered, this Court’s inquiry could cease. “The question in these adversary proceedings, however, is whether the registration of the property and the appearance of the Mortgage and the Assignment on the Memoranda of Encumbrances accompanying the Certificate of Title compels a result that is different than the result for recorded land. … “The court in [Mbazira v. Ocwen Loan Serv., LLC (In re Mbazira), 518 B.R. 11 (Bankr. D. Mass. 2014) (Mbazira I)], and [Mbazira v. Ocwen Loan Serv., LLC (In re Mbazira), No. 13-16586-WCH, Adv. P. No. 14-1055, 2015 WL 1543908 (Bankr. D. Mass. Mar. 31, 2015) (Mbazira II)], as well as in courts in other jurisdictions with Torrens Systems, hold that registration does not provide constructive notice to bankruptcy trustees of mortgages with defective acknowledgments. … This Court is persuaded by the rationales set forth in Mbazira I and Mbazira II with respect to registered land and predicts the Supreme Judicial Court would reach the same result. … “In the absence of a proper acknowledgment, … the Mortgage, though accepted for registration, did not provide notice to third parties. … “Because the defective acknowledgment, which is virtually identical to that found to be defective in In re Kelley, 498 B.R. 392 (B.A.P. 1st Cir. 2013), the holdings in cases such as Kelley, Agin v. Mortg. Elec. Registration Sys. (In re Bower), 10–10993–WCH, 2010 WL 4023396 (Bankr. D. Mass. Oct. 13, 2010), and Agin v. Mortg. Elec. Registration Sys. (In re Giroux), No. 08–14708, 2009 WL 1458173 (Bankr. D. Mass. May 21, 2009), aff ’d, Mortg. Elec. Registration Sys. v. Agin, No. 09–CV–10988, 2009 WL 3834002 (D. Mass. Nov. 17, 2009), become relevant and dictate the outcome of the case. Courts in

those decisions ruled that a material defect in an acknowledgment does not provide constructive notice to subsequent purchasers. In other words, a mortgage with a materially defective acknowledgment cannot provide constructive notice of the encumbrance. … Thus, pursuant to Mass. Gen. Laws ch. 185, §§57 and 67, the Mortgage operates only as a contract between the parties to it and may be avoided by the Trustee. … “… Because of the absence of any dispute as to the material facts, the Court shall issue orders HSBC to show cause why it should not enter summary judgment in favor of the Trustee on Counts I and II of his Complaints pursuant to Fed. R. Civ. P. 56(f).” In Re: Demore, Andrew A.; Lassman v. HSBC Bank, et al. (Lawyers Weekly No. 04-032-15) (39 pages) (Feeney, J.) (USBC) (Chapter 7 Case Nos. 13-16160-JNF and 1317344-JNF; Ad. P. Nos. 14-1016 and 1018) (April 29, 2015).

SUPREME JUDICIAL COURT

Editor’s note: The full text of these decisions can be found on Lawyers Weekly’s website, masslawyersweekly.com.

Attorneys

Discipline - Standing Where a petitioner sought judicial review of bar counsel’s decision not to take action against attorneys who allegedly committed breaches of the rules of professional conduct in connection with proceedings involving the revocation and reinstatement of the petitioner’s license to carry firearms, the petition was correctly denied by a single justice for lack of standing. “… A single justice denied [Jay Edward] Simkin’s petition without a hearing, reasoning that an ‘individual who files a complaint with the board lacks standing to challenge in a court action the board’s decision not to prosecute the complaint.’ Simpkin appeals. “The single justice properly denied relief because, regardless of the mechanism employed, a private individual cannot prosecute a judicial action for attorney discipline. ‘There simply is no such private right of action.’ … That is essentially what Simkin seeks to accomplish here. He filed complaints with the board, as was his right; bar counsel investigated but declined to pursue them; and, after review, the board determined not to proceed. Simkin has no further standing in the matter. …” In the Matter of Simkin (Lawyers Weekly No. 10-071-15) (2 pages) (Rescript) (SJC) Jay Edward Simkin, pro se (Docket No. SJC11750) (April 29, 2015). Continued on page 14

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Bar Discipline Contact Thomas Egan at tom.egan@

The following summaries were compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court. The complete court orders are available by contacting the clerk of the SJC.

SJC No. BD-2008-0016 IN THE MATTER OF GAIL M. THALHEIMER Reinstatement hearing The Board of Bar Overseers will hold a public hearing on the petition for reinstatement of Gail M. Thalheimer, of Norton, MA, who has been suspended since 2008. The hearing will be on Monday, June 22, 2015, at 10:00 AM, at the Office of the Board, 99 High Street, Boston, MA. Hearings are subject to rescheduling without notice. Parties interested in attending or offering testimony should contact the Administrative Assistant of the Board at (617) 728-8700 in advance of the hearing date. Petition for reinstatement Gail M. Thalheimer respectfully petitions this Honorable Court, pursuant to Supreme Judicial Court Rule 4:01, Sect. 18(4), to be reinstated as a member of the bar of the Supreme Judicial Court for the Commonwealth, and in support hereof states as follows: 1. The Petitioner was first admitted as a member of the bar of the Supreme Judicial Court of the Commonwealth of Massachusetts on June 19, 1985. 2. On July 23, 2008, this Court, Cordy J., entered an Order that the Petitioner be indefinitely suspended from the practice of law before the Courts of the Commonwealth of Massachusetts.

3. The Petitioner filed for reinstatement to the practice of law in 2013, and, after a hearing before the Board of Bar Overseers and the Supreme Judicial Court, her application was denied. The Court, Cordy, J, granted the Petitioner the right to resubmit her application for reinstatement as of September, 2014. This Petition for Reinstatement is filed pursuant to the Order of the Supreme Judicial Court, Cordy, J., entered on March 12, 2015. The Petitioner respectfully resubmits her Petition at this time, such reinstatement to be effective, if granted, on such date as may be determined by this Court following proceedings before the Board of Bar Overseers. 4. In accordance with Supreme Judicial Court Rule 4:01 Sec. 18(4), the Petitioner states as follows: (a) The Petitioner has complied with the terms and conditions of the Order of Suspension; (b) No costs were assessed against the Petitioner under Section 23 of this rule, so there are no outstanding orders for payment of such costs; (c) There was no determination by the Supreme Judicial Court that the Petitioner should make restitution to any clients or others injured by the Petitioner’s conduct, so there is no outstanding order of reimbursem*nt; (d) No funds were paid by the Client’s Security Board, to any clients of the Petitioner, so there is no order or obligation on the part of the Petitioner to reimburse any such funds; (e) The Petitioner took the Multi-State Professional Responsibility Examination

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and was informed that she received a passing grade as established by the Board of Bar Examiners; (f ) The Petitioner has already filed a reinstatement questionnaire, with supporting documentation. Said documentation, if needed, will be amended by affidavit of Petitioner. 5. The Petitioner prays that this Court find that she has complied with the orders and conditions relating to her suspension from the practice of law, and that she has the necessary moral qualifications, competency and learning in law that her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest. Supreme Judicial Court Rule 4:01, Sect. 18. The Petitioner prays that this Court approve her reinstatement to the practice of law, and membership in the Bar of the Supreme Judicial Court of the Commonwealth of Massachusetts.

No. BD-2012-107 IN RE: LAURENCE M. STARR Address: 167 Corey Road, Suite 209A Brighton, MA 02135 Judgment of disbarment entered by Lenk, J., on Jan. 23, 2015 MEMORANDUM OF DECISION This matter came before me on an information and recommendation of the Board of Bar Overseers (board) that, pursuant to S.J.C. Rule 4:01, §8(6), the respondent be disbarred from the practice of law in the Commonwealth. At a hearing before me on December 11, 2014, the respondent’s counsel conceded, as he did before the hearing committee, that the facts set forth in bar counsel’s petition for discipline are accurate, and that the respondent engaged in the misconduct alleged therein. Because the respondent does not challenge the board’s findings of misconduct, the only issue to be addressed is the appropriate sanction. For the reasons discussed below, I agree with bar counsel and the board that disbarment is the appropriate sanction in this case. Accordingly, an order shall enter disbarring the respondent from the practice of law in the Commonwealth, and his name shall be stricken from the roll of attorneys. 1. Procedural background. In November, 2012, the respondent was administratively suspended from the practice of law in the Commonwealth after he failed to comply with bar counsel’s investigation into asserted improprieties involving his IOLTA account, including checks issued, with insufficient funds. The respondent thereafter failed to respond to a subpoena duces tecum, and appeared at a hearing before bar counsel on February 14, 2013, without many of the requested documents. On March 18, 2013, bar counsel filed a petition for contempt in this court. After a hearing on June 6, 2013, this court entered an order on June 7, 2013, compelling the respondent to comply with the terms of the administrative suspension within thirty days. On June 19, 2013, the respondent filed an affidavit of compliance with attachments, and also filed a petition to vacate his administrative suspension and for reinstatement. Following another hearing before this court on June 25, 2013, the respondent’s petition for reinstatement was denied; and bar counsel’s petition for contempt was also denied. A letter from the respondent to the Chief Justice, regarding the respondent’s petition for reinstatement, as thereafter referred to bar counsel for such action as bar counsel deemed appropriate.

On July 15, 2013, bar counsel filed a petition for discipline. The petition asserted that the respondent failed to maintain proper records of the funds in his IOLTA account; commingled client funds with his own; failed to make timely payment of settlement proceeds in a personal injury matter to his client; and intentionally misused client funds for his own purposes. Bar counsel asserted further that the respondent had engaged in a “check-kiting scheme” in which he intentionally deposited a minimal amount of money into a new bank account and then wrote checks that he knew would be dishonored; engaged in a “methodical, serial conversion of [a client’s] funds for his own use”; deliberately disobeyed this court’s order of administrative suspension and continued to practice law; and made material false statements concerning his bank accounts in letters to bar counsel and to the Chief Justice of this court. Bar counsel stated that this conduct was in violation of Mass. R. Prof. C. 1.15(b) (trust property to be held separately), (c) (prompt notice and delivery of funds), (e) (making cash withdrawals from trust account), (f ) (failure to keep individual ledgers and to reconcile bank statements); Mass. R. Prof. C. 1.16(a) (requirement to withdraw if continuing representation will result in violation of Rules of Professional Conduct); Mass. R. Prof. C. 1.4(a) (keeping client informed of status of client’s matter), (b) (explaining matter to extent necessary for client to make informed decisions); Mass. R. Prof. C. 3.3(a) (knowing false statement of material fact to tribunal); Mass. R. Prof. C. 3.4(c) (knowing disobedience of rules of tribunal); Mass; R. Prof. C. 5.5(a) (practicing in violation of regulations of legal profession), (b) (holding out to public that lawyer is admitted to practice when lawyer is not so admitted); Mass. R. Prof. C. 8.1(a) (knowing false statement of fact in connection with bar disciplinary matter), 8.1(b) (knowing failure to respond to lawful demand for information from disciplinary authority); and Mass. R. Prof. C. 8.4(b) (criminal act that reflects adversely on lawyer’s honesty), (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), (d) (conduct prejudicial to administration of ,justice), (g) (failure, without good cause to cooperate with bar counsel), (h) (conduct that reflects adversely on fitness to practice law). A hearing committee conducted an evidentiary hearing on January 27 and 31, 2014, at which the respondent was the only witness. Forty-five exhibits were admitted. The parties thereafter filed their proposed findings and rulings. On May 21, 2014, the committee submitted its report. The committee found much of the respondent’s testimony not to be credible, and did not credit his claims that he was confused or mistaken in his handling of several bank accounts. The committee determined that the respondent had engaged in the misconduct asserted, and recommended disbarment based on the respondent’s “broad and extensive misconduct,” and the “range and severity” of his misconduct. The committee pointed in particular to the respondent’s intentional misuse of client funds, without restitution; the fact that he “knowingly defrauded” two banks, engaging in a repeated “pattern of fraud”; his knowing misrepresentations in a letter to the Chief Justice of this court and to bar counsel; and his false statements to bar counsel. At a hearing on October 6, 2014, after reviewing the record in the case, the board voted to file an information with this court, recommending that the

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checks, and his multiple sets of accounts. The committee discredited this testimony, and discredited the respondent’s assertions that he did not intend to misuse client funds. In making its recommendation of disbarment, the committee concluded that there were no factors in mitigation. The committee did not find the respondent’s medical problems, or asserted mental health issues of “stress” to be mitigating, and also did not find the respondent’s advanced age and financial difficulties to be mitigating. The committee noted that much of the asserted misconduct occurred before the medical issues the respondent experienced in October, 2012, and concluded that, in any event; the medical conditions noted would not have caused the misuse of clients funds, a failure to cooperate with bar counsel, or misrepresentations to a tribunal. The committee found that the respondent had not provided any evidence in support of a mental health condition. In aggravation, the committee noted the respondent’s extensive experience, much of it as a solo practitioner. See Matter of Luongo, 416 Mass. 308, 312 (1993). The committee also pointed to the respondent’s lack of candor before it, and what it deemed to be an intent to deceive the hearing committee. See Matter of Eisenhauer, 426 Mass. 448, 457, cert. denied, 524 U.S. 919 (1998). In addition, the committee cited the respondent’s multiple violations. See Matter of Saab, 406 Mass. 315, 326-327 (1998). 3. Appropriate sanction. The primary consideration in determining the appropriate sanction to be imposed in attorney disciplinary proceedings “is the effect upon, and perception of, the public and the bar.” Matter of Crossen, 450 Mass. 533, 573 (2008), quoting Matter of Finnerty, 418 Mass. 831, 829 (1994). See Matter of Alter, 389 Mass. 153, 156 (1983). The appropriate sanction is one which is necessary to deter other attorneys from the same type of conduct and to protect the public. See Matter of Foley, 439 Mass. 324, 333 (2003), citing Matter of Concemi, 422 Mass. 326, 329 (1996). In addition, the sanction imposed must not be “markedly disparate” from sanctions imposed on other attorneys for similar misconduct. See Matter of Goldberg, 434 Mass. 1022, 1023 (2001), and cases cited. Ultimately, however, “[e]ach case must be decided on its own merits, and every offending attorney must receive the disposition most appropriate in the circ*mstances.” Matter of the Discipline of an Attorney, 392 Mass. 827, 837 (1984). The presumptive sanction for intentional misappropriation of client funds, resulting in actual deprivation, is indefinite suspension or disbarment. Matter of McBride, 449 Mass. 154, 163-164 (2007); Matter of Schoepfer, 426 Mass. 183, 187 (1997). In choosing between these two sanctions, the court “generally considers whether restitution has been made.” Matter of LiBassi, 449 Mass. 1014, 1017 (2007). Where an attorney has failed to make restitution; and in the absence of mitigating factors, disbarment, rather than indefinite suspension, is the appropriate sanction. Matter of LiBassi, supra. See Matter of McCarthy, 23 Att’y Discipline Rep. 469, 470 (2007) (making restitution “is an outward sign of the recognition of one’s wrongdoing and the awareness of a moral duty to make amends to the best of one’s ability. Failure to make restitution, and failure to attempt to do so, reflects poorly on the attorney’s moral fitness”). Making restitution as a result of court action is not considered a factor in mitigation. Matter of Bauer, 452 Mass. 56, 75 (2008). As the board noted, in addition to the intentional misappropriation of client funds, many of the respondent’s other violations of the rules of professional

conduct would themselves warrant a lengthy suspension. See Matter of Luongo, supra (indefinite suspension for multiple violations where at least two violations themselves warranted term suspension). Knowingly defrauding two banks (absent a criminal conviction) would warrant a suspension of more than one year. See, e.g., Matter of Hilson, 448 Mass. 603, 618-619 (2007) (indefinite suspension for misappropriation of third party’s funds. within attorney’s practice of law); Matter of Leo, 17 Mass. Att’y Disc. R. 371, 376-377 (2001) (thirteen-month suspension for conversion of one certificate of deposit belong to bank). Deliberate false statements to a court, with the intent to deceive, would also warrant a suspension of more than one year. See, e. g., Matter of Shaw, 427 Mass 764, 769-770 (1998); Matter of McCarthy, 416 Mass. 423, 431 (1993). Practicing while administratively suspended, coupled with intentionally false statements under oath to bar counsel, also warrant such a sanction. See, e.g., Matter of Linnehan, 26 Mass. Att’y Disc. R. 310 (2010) (eighteen-month suspension for practicing while administratively suspended, false statement under oath to bar counsel that attorney had not engaged in practice of law while administratively suspended, failure to deposit settlement funds into IOLTA account and failure to maintain proper records). The respondent seeks a sanction of a term of suspension, without specifying what that term might be. The respondent, however, has not shown any reason why disbarment should not be imposed. See Matter of Cobb, 445 Mass. 452, 479 (2005) (presumption of disbarment “is bolstered by the seriousness of [the respondent’s]

additional misconduct”). See also Matter of Bauer, supra at 74-75, citing Matter of Tobin, 417 Mass. 81, 88 (1994) (in deciding sanction, it is appropriate to consider cumulative effective of multiple violations). The respondent’s arguments that he has already “paid a heavy price” for his misconduct and is suffering financially because he has been unable to practice, that he has expressed remorse, that he has a lengthy history of practice, and that he intends to make restitution at some point, are not mitigating. Indeed, as discussed, the board properly considered the respondent’s extensive experience as a factor in aggravation, see Matter of Luongo, supra, and payment of restitution as a result of disciplinary proceedings, even if restitution were in fact to be paid at some point in the future, is not mitigating. See Matter of Bauer, supra at 75; Matter of Johnson, 444 Mass. 1002, 1004 (2005). Nor did the hearing committee or the board give much weight to the respondent’s statements of purported remorse, coupled, as they were, with his ongoing intent to deceive. The board noted also that, notwithstanding the respondent’s asserted inability to practice law, he had deliberately practiced law in violation of this court’s order of administrative suspension for a substantial period. The board’s conclusions on these points are persuasive. 4. Disposition. An order shall enter barring the respondent from the practice of law in the Commonwealth. 1 The fee agreement in that client’s matter provided that the respondent was to receive “reasonable” compensation, not to exceed one-third of any settlement agreement, plus expenses.

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respondent be disbarred. The parties thereafter appeared before me at a hearing on December 11, 2014, at which the respondent conceded his misconduct and the sole issue raised was the sanction to be imposed. 2. Respondent’s misconduct. I summarize the facts found by the hearing committee and adopted by the board; as stated, the respondent does not contest the board’s findings. The respondent was admitted to the Massachusetts bar in May, 1969, and operated a solo practice beginning in 1983 and continuing through the disciplinary proceedings at issue. The committee found that the respondent’s practice has been “broad and varied,” and involved, inter alia, real property matters, estate administration, probate, domestic relations, guardianships, bankruptcies, worker’s compensation, personal injury, and, landlord tenant matters. Over the past decade, he has had no employees or accountants, has handled all bookkeeping matters, and, as sole signatory, has written all checks on his business and IOLTA accounts. The committee’s report details the respondent’s intentional misuse of two of his former clients’ funds. In one instance, the respondent deposited in his IOLTA account, then misused, a $6,500 settlement check that the respondent received in a personal injury matter, without advising the client that the check had been received, or disbursing any of the funds to the client. In the other instance, the respondent received a check in the amount of $1,000 that was to be used to pay a client’s medical expenses, and, instead, wrote various checks to himself for $956.97 of this money. The respondent repaid $5,000 to the first client, via a cashier’s check and not from his IOLTA account, after bar counsel began an investigation into the respondent’s businesspractices.1 Although the respondent’s counsel stated at the hearing before me that the respondent knows he must make restitution to the other client, counsel said that the respondent has yet to do so because of his serious financial difficulties, including the potential loss of his home. The committee further, found that, between June 22, 2010, and May 23, 2012, the respondent deposited personal funds into his IOLTA account, held personal and client funds in the account, wrote thirteen checks to personal creditors from the account, and made forty cash withdrawals totaling $10,175.46. The committee’s report also details a complex scheme by the respondent to defraud two banks, in which the respondent deposited checks he wrote from one account into another account at a different bank, knowing that the account on which he wrote the checks did not contain sufficient funds for the total amount of the checks written. The respondent then withdrew funds in cash before the checks were dishonored. The respondent also wrote $14,557 in checks from his IOLTA account to a business associate who was no longer a client; although the respondent testified that he had hired the business associate in part as a consultant to refer clients, he was unable to produce a written agreement, invoice, or statement of time expended, and pointed to only one client referral. Between July 9, 2012, and September 11, 2012, the respondent deposited $68.00 into one account, and wrote checks totalling $13,009.65. As to the other account, between July 20, 2012, and September 7, 2012, the respondent deposited $6,500 in client funds, and a false check in the amount of $3,000, from a personal account he knew had no available funds, and wrote checks in the amount of $13,490.75. The respondent has not reimbursed the banks for the dishonored checks. The respondent claimed that he was confused over closed accounts, missing checkbooks, duplicate

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THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

SUPREME JUDICIAL COURT Continued from page 11

Appeals

Equal protection - Sentencing Where the petitioner contends that G.L.c. 278, §28A, violates equal protection guarantees because it permits women to appeal sentences to a reformatory for women for terms exceeding five years, but has no comparable provision for men sentenced to a house of correction for more than five years, the statute does not implicate equal protection concerns. Therefore the judge correctly found that the petitioner’s sentences to the house of correction were not within the jurisdiction of the Appellate Division. Denial of petition affirmed. “General Laws c. 278, §28A, limits the jurisdiction of the Appellate Division to the ‘review of sentences to the state prison imposed by final judgments in criminal cases ... and [to] the review of sentences to the reformatory for women for terms of more than five years imposed by final judgments in such criminal cases.’ The petitioner contends that G.L.c. 278, §28A, violates equal protection guarantees because it permits both men and women to appeal State prison sentences to the Appellate Division and, on its face, permits women to appeal sentences to a reformatory for women for terms

exceeding five years, but has no comparable provision for men sentenced to a house of correction for more than five years. We rejected a similar argument in Commonwealth v. Alfonso, 449 Mass. 738 (2007), and, for essentially the same reasons, reject the petitioner’s argument here. “The historic distinction ‘between felony sentences to the reformatory for women and felony sentences to the State prison was based on circ*mstances and legislative schemes that are no longer operative.’ … As we observed in Alfonso, ‘[i]n 1993, the Legislature enacted comprehensive sentencing reform that included measures to abolish gender distinctions in sentencing.’ … Among other things, the legislation ‘repealed various portions of the General Laws that authorized gender distinctions in sentencing, as well as repealing indeterminate sentences and reformatory sentences.’ … “We must construe G.L.c. 278, §28A, in light of the sentencing reform amendments enacted in 1993, Alfonso, … and conclude, as we did in Alfonso, that the ‘reformatory for women’ clause is a ‘historical artifact designed to address the disparate sentencing structure that once existed for men and women.’ … Whether a sentence is presently appealable to the Appellate Division therefore turns on whether the sentence is a felony sentence to the State prison — more precisely, ‘whether the facts necessary for conviction or the length of the sentence make it evident that the sentence is a ‘state prison’ sentence,’ … — and not on any differing treatment between men and women or on

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the phraseology of a particular sentencing order or mittimus. … “The petitioner attempts to capitalize on a statement we made in Alfonso, that ‘the portion of G.L.c. 278, §28A, pertaining to appeals by women remains operative.’ … He reads that statement out of context, however. The single justice correctly understood that the statement was made in the context of deciding that women, like men, may appeal to the Appellate Division from a State prison sentence of any length. We did not, and do not, construe the statute to give women greater or lesser rights than men. Indeed, as we said, ‘[i]n light of the equal protection jurisprudence mandated by art. 1 of the Massachusetts Declaration of Rights, ... we cannot admit an interpretation of G.L.c. 278, §28A, that, as the defendant would have it, authorizes men to appeal from a State prison sentence of any length, including one of less than five years, but denies the same right to women.’ … By the same token, under the current sentencing scheme, neither men nor women may appeal to the Appellate Division from a sentence that is not evidently a State prison sentence. … The statute therefore does not implicate equal protection concerns. “For these reasons, we agree with the single justice that the petitioner’s sentences to the house of correction were not within the jurisdiction of the Appellate Division.” Starks v. Commonwealth (Lawyers Weekly No. 10-072-15) (3 pages) (Rescript) (SJC) Alexei Tymoczko for the defendant; Mary Lee for the commonwealth (Docket No. SJC11735) (April 29, 2015).

Murder

Where a defendant was convicted of killing his wife with deliberate premeditation, the judgment must be upheld despite his arguments that (1) the admission of photographs prejudicially depicted the victim’s body in an advanced state of decomposition; (2) the judge should have granted a mistrial after the medical examiner testified that the victim’s death was a homicide, when the defense was that it was a suicide; (3) parts of the defendant’s statement to police should have been redacted; and (4) a voir dire of jurors should have been conducted after at least one juror was exposed to prejudicial extraneous material. Photographs “The defendant argues that the admission in evidence of two postmortem photographs of the victim’s body in an advanced state of decomposition was prejudicial, with no offsetting probative value related to any issue in the case. … “The judge took measures to mitigate any potential prejudice from the two photographs by alerting the venire during jury selection that graphic photographs might be admitted in evidence, and she asked potential jurors if that might cause anyone particular difficulty. She excused potential jurors who responded affirmatively. The judge prohibited the Commonwealth from displaying the photographs on a high-resolution video screen, and invited jurors who did not wish to view the photographs to pass them along. She cautioned the jury four times that the photographs were only to be considered for ‘clinical’ and ‘medical issues,’ ‘the nature of the injuries, or the nature of the incident itself,’ and not ‘to evoke sympathy or emotion’ for the deceased. She also limited the Commonwealth to two postmortem photographs. The judge proceeded with the degree of care and special attention that we have recommended for the admission of such photographs. … There was no abuse of discretion.” Motion for mistrial “Defense counsel filed a motion in limine that sought to prevent the medical examiner from testifying, as he had before the

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grand jury, that the cause of death was ‘homicide, poisoned by another, [and] homicidal violence.’ … At trial, when asked for his opinion as to cause of death, the medical examiner said ‘homicidal violence.’ Defense counsel immediately objected and moved for a mistrial. … The judge denied the motion for a mistrial but said she would strike the answer and give a curative instruction to the effect that the doctor’s answer was beyond his area of expertise and must be disregarded. … “ … This court has said that the term ‘homicide’ implies no liability in law. … However, its use by the medical examiner here, particularly where the defense was suicide, probably created the impression that death was brought about by criminal means. This was an impermissible expression of opinion that intruded on the function of the jury. … “Where the judge promptly struck the improper testimony and gave a highly specific curative instruction, the judge acted appropriately and within her discretion. … The curative instruction was acceptable to very experienced defense counsel, which is some indication of its effectiveness. Moreover, the medical examiner had been unable to articulate a precise cause of death due to the advanced state of decomposition. The jury are presumed to follow the judge’s instruction, … and we see no reason to think otherwise. “Finally, the judge instructed the jury in her final instructions, five times, that the Commonwealth had to prove beyond a reasonable doubt that the defendant caused the victim’s death, that it was not an accident, that he intended to kill the victim, and that the defendant acted with deliberate premeditation. She also reminded the jury that they were not to consider any matter that she had struck and told them to disregard. We are satisfied that any potential prejudice that flowed from the medical examiner’s testimony was neutralized by the judge’s careful attention and her curative instruction.” Defendant’s statement “The defendant had given a statement to two State police officers that was video recorded and shown to the jury. … Portions of the interview contain numerous accusations that he was lying to the officers, statements by the officers implying they had inculpatory evidence beyond that presented to the jury, and hearsay statements that violated his right of confrontation. The defendant now argues that those portions should have been redacted. … “Had an objection been made, there is no question that the portions complained of should have been redacted. There is also no question that trial counsel did not object because the unredacted portions of the defendant’s interview figured prominently in the theory of the defense. The defendant maintained his innocence, he contended that his wife had committed suicide, he realized no one would believe that he did not kill her, and the portions of his interview that he now argues should not have been admitted were relied on by trial counsel to support his theory of police bias and his Bowden attack on the integrity of the police investigation. … Trial counsel informed the jury of the defense in his opening statement. … The portions of the video recording in question were admitted in evidence and played to the jury by express agreement. … “Trial counsel cross-examined one of the two interrogators, reminding him of his assertion in the video recording about keeping ‘an open mind.’ … Trial counsel specifically advised the judge that the purpose of his inquiry was to call into question the integrity of the police investigation, pursuant to Bowden. The judge, in her final instructions to the jury, at the request of trial counsel, gave a Bowden instruction. … “ … By allowing the jury to see the contested portions of the interview, trial counsel was able to present the defendant as someone who consistently admitted that he made a mistake in judgment by not

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SUPREME JUDICIAL COURT contacting the police when he discovered his wife had died, but who steadfastly maintained his innocence. The defense was well conceived, well considered, and well anchored in the evidence. “The decision of trial counsel to agree to the admission of otherwise inadmissible evidence that supported the defense was a conscious strategic decision that was not unreasonable at the time it was made. We have recognized the validity of such a strategy on many occasions. … We conclude there was no error, i.e., ineffective assistance of counsel, much less a substantial likelihood of a miscarriage of justice. …” Jurors “ … During the morning of the second day of deliberations the foreperson sent a note to the judge informing her that four numbered pages of one juror’s transcript contained text, but the same numbered pages in the other jurors’ transcripts were blank. … The pages in question contain references to the defendant’s ownership of a gun, and a reference to the defendant’s polygraph examination — with a comment that he ‘didn’t do well.’ The four pages in question constituted material that the parties had agreed would be redacted from the transcripts, and had been redacted from the video recording. … “The defendant argues that the judge erred

by failing to conduct a voir dire either individually or collectively after it became clear that at least one juror had been exposed to extraneous material. … “The judge was entitled to rely on the answers of the foreperson and juror no. 10 to the questions she asked. … It was apparent from the voir dire of those jurors that the only person exposed to the four unredacted transcript pages was juror no. 10, and that juror no. 10 had only read the first line, which was merely a question by one of the interrogators. The judge acted within her discretion when she determined that juror no. 10 had not been a source of extraneous influence on the other jurors, and that the material to which juror no. 10 had actually been exposed supported a finding that there was no serious question of possible prejudice that required a voir dire of 19 other jurors. …” Commonwealth v. Amran (Lawyers Weekly No. 10-073-15) (19 pages) (Spina, J.) (SJC) Case was tried before Kenton-Walker, J., in Superior Court. Leslie W. O’Brien on appeal for the defendant; Stephen J. Carley for the commonwealth (Docket No. SJC-11686) (April 30, 2015).

Attorneys

Bar admission Where the Board of Bar Examiners found an applicant not qualified for admission, the board’s finding should be upheld based on his lack of candor and lack of respect for the judicial process.

Professional Announcements

‘Character and fitness’ issue “In his application, [Randy A.] Britton disclosed that he had been ‘wrongfully terminated’ by two employers, and that he had brought multiple lawsuits involving separate incidents against former employers, attorneys, police officers, and a media outlet alleging, among other things, wrongful termination, violation of civil rights, defamation, breach of contract, malicious prosecution, and abuse of process. In addition, he reported that his application for admission to the Connecticut bar had been pending since 2004. The board’s investigation revealed additional involvement with the legal system and other matters, which he had failed to disclose in his application. … “In support of his application, Britton submitted three letters of recommendation. One of those letters was from an attorney who had obtained a criminal complaint against Britton and whom Britton had sued. After investigation, the board determined that the criminal complaint was dismissed with an order that Britton pay restitution, and that the civil matter was settled under terms requiring the attorney to provide a positive letter of recommendation. In his application, Britton stated that the attorney had written the letter ‘[i]n an effort to minimize the damage he has done.’ The board found that Britton attempted to mislead it as to the nature of the recommendation. “In addition, the board’s investigation revealed that Britton twice had been charged criminally. Although neither charge resulted in a conviction, Britton failed accurately

to disclose his criminal history as the bar application required. Likewise, the board found that Britton failed to disclose a civil complaint he had filed that unsuccessfully challenged the denial of his request for a firearms identification card and a license to possess an assault weapon. Finally, the board determined that Britton violated his ‘continuing duty’ to disclose relevant information by failing to report that he had filed a petition for redetermination of a tax deficiency with the United States Tax Court. … “The board found that Britton has a substantial history of initiating pro se legal actions, the majority of which have been unsuccessful, and some of which have resulted in sanctions or an order to pay restitution. … “In 2005, Britton brought an action against the city of Lawrence and its police officers for false arrest, civil rights violations, malicious prosecution, and other crimes, arising out of criminal proceedings against him that eventually were dismissed. The civil case was dismissed, in part because of Britton’s ‘history of disregard of his discovery obligations, and ...for his disobedience of the [c]ourt’s ... order.’ After multiple requests for extensions of time, his appeal also was dismissed. “In 1993, Britton commenced an action in the United States District Court for the Southern District of New York seeking damages in excess of $50 million against a former employer and others, claiming that he had been wrongfully terminated, and for breach of a settlement agreement. He subsequently Continued on page 16

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SUPREME JUDICIAL COURT Continued from page 15

commenced a second action arising out of the same facts, adding additional parties. After the actions were consolidated, and the second action was stayed, Britton nonetheless continued to issue subpoenas in the second case, resulting in an order not to issue subpoenas or document requests without leave of court. The first action was resolved adversely to Britton, and the second action was dismissed. His appeals were unsuccessful. Britton disclosed only the first action in his application. … “In October, 2007, a reviewing committee of the Connecticut Statewide Grievance Committee found that Britton had engaged in the unauthorized practice of law in Connecticut. … “Britton’s conduct in filing multiple lawsuits that have resulted in sanctions or orders to pay costs and fees and in repeatedly failing to comply with court orders demonstrates lack of respect for the judicial process. … Likewise, Britton’s failure to disclose relevant and material information, both in his application and during the board’s investigation, shows a marked lack of candor. … Britton’s conduct in Connecticut is consistent with the conclusion that he lacks the necessary character and fitness for admission to practice here. “There is no merit to Britton’s claims that the board’s proceedings were defective or unlawful. Although he claims that the board ‘illegally’ circumvented sealed record and criminal offender record information statutes in the course of its investigation, the single justice properly concluded that the statues neither prohibit the type of investigation conducted by the board nor forbade the board from inquiring into his criminal history. … Moreover, there is nothing to suggest that the board considered Britton’s history to be evidence of misconduct: rather, it was his failure to disclose that history, and the explanation he gave for omitting the information, that demonstrated a lack of candor. Whether a bar applicant is of good moral character and fitness ‘is a most serious issue,’ and ‘[q]uestions exploring this issue are not to be answered by gamesmanship.’

Matter of Moore, 442 Mass. 285, 295 (2004). Finally, the record amply supports the single justice’s observation that Britton’s criminal history was obtained by the board through his own disclosures, including disclosures in Connecticut, and publicly available court filings. … “We also reject Britton’s claim that the board failed to provide him with adequate constitutional safeguards in the investigation and hearing process. Britton was given ample notice of the board’s formal hearing, and was provided in advance of the hearing with the character and fitness report prepared by the board’s special counsel. He had a ‘full and fair opportunity to present evidence in support of his case and to call witnesses, including those identified in the special counsel’s report.’ ... No more is required. While the proceedings were lengthy, there is nothing to suggest that either the process itself or the duration of the proceedings amounted to a due process violation. Indeed, as the single justice concluded, ‘[t]he time (and expense) needed to discover that which [Britton] should have disclosed is attributable entirely to [Britton], not to the board.’ “On the record before us, therefore, we are ‘left with grave doubt about [Britton’s] present character and fitness to practice law. We resolve that doubt “in favor of protecting the public by denying admission.”’ ... Britton has not met his burden of demonstrating that he presently ‘possesses the necessary qualification to practice law in the Commonwealth.’ … As the board found, ‘Britton’s disregard for the rules and standards by which the legal system operates and for which the legal process is structured, show his unwillingness to conduct himself with respect for the law and his inability to use sound judgment in conducting professional business.’ This, coupled with his demonstrated lack of candor, amply supports the board’s recommendation that the application be denied.” Britton v. Board of Bar Examiners (Lawyers Weekly No. 10-074-15) (6 pages) (Rescript) (SJC) Appealed from a decision by Spina, J., sitting as single justice. Randy A. Britton, pro se; Sara Gutierrez Dunn and Robert G. Jones, both of Ropes & Gray, for the Board of Bar Examiners (Docket No. SJC-11703) (April 30, 2015).

APPEALS COURT

Editor’s note: The full text of these decisions can be found on Lawyers Weekly’s website, masslawyersweekly.com.

Negligence

Medical malpractice Mammogram Where a medical malpractice tribunal found the evidence presented by a plaintiff with breast cancer to be insufficient “to raise a legitimate question of liability appropriate for judicial inquiry,” the dismissal of the complaint must be reversed because the evidence of causation was sufficient despite the plaintiff ’s failure to follow up on the defendant physician’s recommendation of another mammogram in six months. “The plaintiff, Barbara Goudreault, filed a medical malpractice suit alleging that on February 7, 2011, the defendant radiologist Erik Nine, M.D., failed to properly interpret her mammogram results and recommend necessary follow-up tests, delaying her breast cancer diagnosis and worsening her prognosis. … “Viewing the evidence in the light most favorable to Goudreault, the tribunal was presented with an offer of proof, including expert witness opinions from Dr. [Kishan] Yalavarthi and Dr. [Andrew] Schneider, that both identified Dr. Nine’s deviation from the appropriate standard of care on February 7, 2011, and the relationship between that deviation and the harm suffered by Goudreault. The offer of proof here explicitly stated that, when Dr. Nine read Goudreault’s February 7, 2011, mammogram films and failed to report an enlarged mass in the upper outer region of the left breast and order further tests immediately, he deviated from the appropriate standard of care. Both doctors specifically identified the causal relationship between that departure on February 7, 2011, and a delay in diagnosis of her breast cancer, leading to a worsened prognosis, and actual harm. “Dr. Yalavarthi stated that, had Dr. Nine made the appropriate diagnosis on February 7, 2011, and ordered the appropriate tests, it is more likely than not that Goudreault

BMC JUDGES’ ASSIGNMENTS: MAY 11 – 15 A complete list of assignments for all courts for the entire month can be found on our website, masslawyersweekly.com. (Click on “Judges/Courts” at the top of the page.) Following is a list of judicial assignments for the Boston Municipal Court. Please contact the judges lobby if you have any questions or scheduling concerns: (617) 788-8700. *AJ = Adjunct Administrative Judge, Central Division Brighton BMC Central Charlestown Dorchester East Boston Roxbury South Boston West Roxbury

MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY May 11 May 12 May 13 May 14 May 15 Bernstein Bernstein Bernstein Bernstein Conference Breen Breen Breen Breen Donnelly (FJ) Donnelly (FJ) Donnelly (FJ) Joun Byrne Byrne Byrne Byrne Conference Coyne Joun Lyons Lyons DelVecchio Lyons McKenna McKenna Joun McCormick Sinnott Sinnott Lyons McKenna Summerville Summerville McKenna Sinnott Sinnott Summerville Summerville McCormick (FJ) McCormick (FJ) McCormick (FJ) Conference Coffey, J. (FJ) Coffey, J. (FJ) Coffey, J. (FJ) Coffey, J. (FJ) Conference Georges Georges Georges Georges Grant, L.A. Grant, L.A. Grant, L.A. Grant, L.A. Kaplanes Kaplanes Kaplanes Kaplanes McManus McManus Tynes Tynes Tynes Tynes McDonald (FJ) McDonald (FJ) Joun McDonald (FJ) Conference Dashiell Dashiell Dashiell Dashiell Conference Fiandaca Fiandaca Fiandaca (a.m.) Fiandaca Grant Grant Grant Grant Poole Poole McManus McManus Shopteese Shopteese Shopteese Shopteese Weingarten (FJ) Weingarten (FJ) Bolden (FJ) Bolden (FJ) Bolden (FJ) Bolden (FJ) Conference Coffey, K. (FJ) Coffey, K. (FJ) Coffey, K. (FJ) Coffey, K. (FJ) Conference Driscoll Driscoll Driscoll Driscoll Sarason Sarason Sarason Sarason

For other judges’ assignments: District Court, page 27; Land Court, page 24; Probate & Family Court, page 32

would have benefitted from a diagnosis of cancer ‘as early as February 2011.’ Dr. Schneider reiterated that, ‘more likely than not, her cancer would have been diagnosed as early as February 2011, when it was at an earlier stage and amenable to cure.’ Therefore, based on Dr. Yalavarthi’s and Dr. Schneider’s expert opinions, it may be inferred that had Dr. Nine complied with the appropriate standard of care, Goudreault’s cancer would have been diagnosed nearly one year earlier, and at a time when it was ‘amenable to cure.’ These expert opinions, along with the relevant medical records, satisfied Goudreault’s obligation to make an offer of proof to the tribunal that establishes the existence of both medical negligence and causation. ... “Dr. Nine argues that his care on February 7, 2011, at most, delayed Goudreault’s diagnosis by six months because he recommended that she follow up with another mammogram six months from the date he read and interpreted her mammogram. It was Goudreault herself, Dr. Nine points out, who chose not to attend her six-month follow-up appointment, despite receiving calls and letters from the office. Under this theory, because only six months of delay were attributable to Dr. Nine’s deviation from the standard of care, and the remainder was attributable to Goudreault, she had an obligation to submit an offer of proof addressing the harm caused by the six-month delay. Instead, the theory goes, because both of Goudreault’s expert opinion letters refer to a delay of thirteen months, they necessarily fall short. While Dr. Nine is correct that his conduct was not the only factor that contributed to the thirteenth-month delay, this does not diminish the sufficiency of Goudreault’s offer of proof. Based on the opinions of Goudreault’s experts, Dr. Nine violated the standard of care he owed to her when he failed to order further diagnostic tests immediately at her February 7, 2011, exam — tests that would have detected the cancer at the time. When a negligent act, such as one yielding a failure to diagnose cancer, is followed by a reasonably foreseeable intervening event, such as a patient’s delay in attending a routine follow-up appointment that eventually leads to the diagnosis of cancer, ‘the causal chain of events remains intact and the original negligence remains a proximate cause of a plaintiff ’s injury.’ Delaney v. Reynolds, 63 Mass. App. Ct. 239, 242 (2005). It is not unforeseeable that a patient might delay undergoing a routine, six-month follow-up examination when informed erroneously that there has been no change in her condition. … “We determine that the plaintiff presented a sufficient offer of proof to raise a ‘legitimate question of liability appropriate for judicial inquiry.’ G.L.c. 231, §60B. The judgment is reversed, the finding of the tribunal is set aside, and a new tribunal finding shall enter in favor of the plaintiff. The case is remanded for further proceedings consistent with this opinion.” Goudreault v. Nine (Lawyers Weekly No. 11-041-15) (15 pages) (Agnes, J.) (Appeals Court) Motion to dismiss heard by Welch, J., in Superior Court. Barrie E. duch*esneau for the plaintiff; Allyson N. Hammerstedt, of Foster & Eldridge, for the defendant (Docket No. 14-P-359) (April 30, 2015).

See news story on page 1.

Contract

G.L.c. 93A - Tortious interference Where a judge dismissed a G.L.c.93A claim in a reinsurance dispute, the dismissal order must be reversed because the allegations in the complaint raise the possibility that the complained-of conduct occurred in Massachusetts. A judgment dismissing a claim of tortious interference with contractual relations must be reversed as to plaintiff National Indemnity Co., but affirmed as to coplaintiff Resolute

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APPEALS COURT

Management, which was not a party to the contracts at issue. “As a threshold matter, we note that the defendants have cited no appellate case in which the center of gravity of a §11 claim was determined adversely to a plaintiff upon a motion to dismiss (as compared to a motion for summary judgment or after trial), and we are aware of none. In light of the multiple factors to be applied, and the nuanced and flexible approach to assessing them, as articulated in Kuwaiti Danish [Computer Co. v. Digital Equip. Corp., 438 Mass. 459 (2003)], we find it difficult to imagine how such an assessment might be made on the basis of the allegations of the complaint alone — at least where, as in the present case, the loss occurred in Massachusetts, and substantial numbers of the claims upon which the bills Resolute submitted to [defendant] Transatlantic were based related either to Massachusetts insurers or claimants. Though the defendants assert that many of the activities upon which the plaintiffs’ claims are based occurred outside the Commonwealth, the complaint includes no allegation or other indication to support the assertion. “To be sure, in light of the defendants’ principal physical presence in New York (of which the judge took judicial notice, …), it is entirely possible that the principal communications between the defendants concerning their determination to refuse further payments to Resolute took place outside the Commonwealth. Less influential, in our view, is the fact that certain of the insurers with which National contracted under the [administrative service agreements (ASAs)] were headquartered outside Massachusetts — at least if, as alleged in the complaint, the claims National (or Resolute acting as National’s agent) sought to adjust for them were based in Massachusetts. In any event, we are aware of no rule requiring a §11 plaintiff to plead facts with particularity sufficient to withstand a claim by the defendant that the center of gravity of his claim is not within the Commonwealth. In our view, the allegations of the complaint are sufficient to warrant discovery and development of a factual record adequate to allow a judge to conduct that assessment. In the present procedural posture of the case, it was error to dismiss the plaintiffs’ claims under G.L.c.93A, §11. … “A similar (though not identical) concern shapes our view of the judge’s conclusion that New York law should be applied to the plaintiffs’ claims of tortious interference with contractual relations. … “For reasons quite similar to those discussed supra, the allegations of the complaint, standing alone, are inadequate to determine as a matter of law whether New York or Massachusetts law should be applied. … As in our c. 93A discussion, discovery and development of a factual record are required to conduct the functional assessment envisioned by the Restatement. We accordingly must reverse the judgment insofar as it dismissed National’s claim of tortious interference with contractual relations based on the premise that it failed to allege an element of that claim that is essential under New York law but not under Massachusetts law. …” Resolute Management Inc., et al. v. Transatlantic Reinsurance Company, et al. (Lawyers Weekly No. 11-040-15) (13 pages) (Green, J.) (Appeals Court) Motion to dismiss heard by Billings, J., in Superior Court. Bryce L. Friedman, of New York (Kevin O’Connor, of Hermes, Netburn, O’Connor & Spearing, with him) for the plaintiffs; John N. Thomas, of New York (Ben T. Clements, of Clements & Pineault, with him) for the defendants (Docket No. 14-P-573) (April 29, 2015).

Criminal

Resisting arrest Where a defendant led a pursuing officer into dangerous terrain and then struggled as the officer was trying to place him under

arrest, the defendant’s conduct presented a substantial risk of bodily injury to the officer sufficient for a conviction of resisting arrest. “ … Here, the defendant had been told that he was going to be arrested, and his ensuing actions and flight were clearly in response to that communication. … The defendant twice led the pursuing officer in the late night darkness onto a dug-up, public roadway under construction with various terrain and object obstacles that posed a substantial risk of injury. Moreover, motor vehicles could have been traveling on that roadway, to the danger of the officer in hot pursuit. That no pedestrians or vehicles were observed at 2 A.M. does not mean that there was no substantial risk of bodily injury from potential traffic on a street that is ordinarily busy during daytime and nighttime hours. … “Furthermore, ‘conduct ... [that] represents an active, physical refusal to submit to the authority of the arresting officers, and opposition to their efforts to effect the arrest,’ constitutes circ*mstances that can create a substantial risk of injury to the arresting officer. … “Here, the first time the officer caught up with the defendant, the officer grabbed onto the jacket worn by the defendant and a ‘scuffle’ ensued, during which the defendant evaded the officer’s effort to effect an arrest, as the defendant turned and ‘wiggled out’ of the jacket. The second time the officer caught up with the defendant, they were on the ground and there was a ‘struggle’ to gain control of the defendant’s arms as he ‘kept pulling away’ from the officer. Here, … the officer’s ‘characterization of the defendant’s behavior as ‘resisting’ or ‘struggling’ is not mere opinion but grounded in the evidentiary narrative. It was only after the officer deployed the Taser that he was able to overcome the defendant’s ‘resistance’ and place handcuffs on him. “We conclude that a rational trier of fact could have found the defendant’s conduct presented a substantial risk of bodily injury to the officer.” Commonwealth v. Sylvia (Lawyers Weekly No. 11-042-15) (7 pages) (Katzmann, J.) (Appeals Court) Case tried before Kane, J., in Superior Court. Thomas C. Foley for the defendant; Corey T. Mastin for the commonwealth (Docket No. 14-P-364) (May 5, 2015).

Civil practice

SDP - Classification hearing Timing Where a plaintiff claims that his sex offender classification hearing, which was held seven months before his earliest possible release date and 20 months before his ultimate release, was unreasonably premature, the Sex Offender Registry Board did not act unreasonably under the circ*mstances. “To ensure that the offender’s rights to notice, a hearing, and representation by counsel are honored may require more than sixty days, the minimum time required by statute for the board to commence classification proceedings. In this case, for example, the board first informed [plaintiff John] Doe of his obligation to register, and its preliminary classification, on March 13, 2008. Doe promptly requested representation by the Committee for Public Counsel Services (CPCS). The record does not establish exactly when counsel was appointed, but the board issued its first notice to appointed counsel on June 25, 2008, slightly more than three months after Doe’s request, indicating reasonably prompt action by CPCS and the board. After two continuances, the hearing was ultimately held nearly fourteen months after the initial notice of the obligation to register and preliminary classification. “At the hearing before the examiner, … Doe did not ask for a further continuance or argue that the hearing was premature. Nor was he foreclosed from offering evidence that he had been participating in sex offender treatment. To the contrary, he argued that

he had specifically sought a transfer to a different facility so that he could participate in sex offender treatment. … When the subject of Doe’s release date was raised -- in the context of counsel’s request for twenty-one days to file requested findings of fact or rulings of law — counsel represented that, if Doe were paroled, his earliest possible release date would be December, 2009, just seven months later. “In the Superior Court, Doe argued for the first time that his hearing date, while he was still incarcerated, was scheduled prematurely because it denied him an opportunity to further rehabilitate himself by completing sex offender treatment. He did not seek to offer any supplemental evidence of further rehabilitation, as he was permitted to do under G.L.c. 30A, §14(6). … Under these circ*mstances, the Superior Court had no basis to conclude that the hearing date was, as a matter of law, unreasonably premature. … “In support of his claim that he was prejudiced by an unreasonably premature hearing, Doe notes that the hearing examiner stated in her classification decision, ‘It is too soon to tell whether he has sufficiently internalized treatment concepts, in light of less than a year in treatment, such to sufficiently avoid reoffense once released, especially when balanced against his exhibition of violence and history of lawlessness.’ Even if Doe had had additional time to create a better record on this factor, however, it is not clear that it would have affected his classification. … “As the hearing examiner was operating under the possibility that Doe’s earliest possible release date might be only seven months off, and as Doe did not ask for a postponement, we cannot state, as a matter of law, that the board acted unreasonably.” Doe, Sex Offender Registry Board No. 203108 v. Sex Offender Registry Board (Lawyers Weekly No. 11-043-15) (15 pages) (Cypher, J.) (Appeals Court) Motion for judgment on the pleadings heard by Brieger, J., in Superior Court. Inna Landsman for the plaintiff; Patrick M. Grogan for the defendant (Docket No. 13-P-848) (May 5, 2015).

Criminal

Closing argument - Right to be present Where a jury convicted a defendant of assault and battery, he must be awarded a new trial because of an improper closing argument by the prosecutor. “… During closing argument, the prosecutor said: ‘Who does have motivation to lie in this case? The Defendant does. He’s — he’s the only person that has something to lose from this case. He’s got every reason to lie to you. He’s got the opportunity to lie to you. Where was everyone else while testimony was going on? All the other witnesses [sic] outside the courtroom. Where’s the Defendant when all the other evidence, all the other witnesses were coming in? Sitting right here. It’s the opportunity to tailor his version of events to what you already know.’ At that point, the judge told the prosecutor, ‘[B]e careful down that road, okay? Be careful.’ At the conclusion of the prosecutor’s closing, defense counsel objected to that portion of the closing, and now argues that the standard of review should be whether there was prejudicial error. The Commonwealth points out, however, that since the defendant was satisfied with the curative instruction, the standard of review should be whether any error created a substantial risk of a miscarriage of justice. We need not decide which is the proper standard because we conclude that under either standard the defendant is entitled to a new trial. … “… Here, there was no evidence to support the prosecutor’s statement. Also, the error went to the heart of the case — the credibility of the witnesses, in particular, the defendant, who testified. Whether the jury convicted the defendant depended entirely on whether the jury believed the testimony

of Sandy [Alphonse] or the defendant. Although in his curative instruction the judge correctly advised the jury regarding the meaning of sequestration of the witnesses, he did not advise the jury that the defendant had a constitutional right to be present at trial and that his presence should not be used against him. The judge should have given such an instruction. The curative instruction therefore compounded the original error by drawing further attention to the possibility that the defendant had the opportunity to tailor his testimony. ... In these circ*mstances, whether viewed under a prejudicial error standard or a substantial risk standard, a new trial is required.” Commonwealth v. Alphonse (Lawyers Weekly No. 11-044-15) (6 pages) (Cypher, J.) (Appeals Court) Case tried before McGovern, J., in District Court. Barry A. Bachrach on appeal for the defendant; Audrey Anderson for the commonwealth (Docket No. 13-P1944) (May 5, 2015).

APPEALS COURT – UNPUBLISHED

Following are the summaries of decisions issued by the Appeals Court pursuant to Rule 1:28. In reporting these unpublished decisions, Massachusetts Lawyers Weekly reminds readers that the decisions may be cited for their persuasive value but not as binding precedent. Editor’s note: The full text of these decisions can be ordered at lwopinions.com.

Criminal

Waiver - Right to counsel Where a defendant never received a full colloquy warning him of the perils of representing himself, he did not knowingly and voluntarily waive his right to counsel, so he is entitled to a new trial. “As the defendant observes, the defendant never received a full colloquy warning him of the perils of representing himself. … Moreover, unlike the circ*mstances in cases such as Commonwealth v. Pena, 462 Mass. 183, 194 (2012), the defendant was not warned that he would be required to proceed without an attorney unless he obtained counsel by a date certain. The first time a judge addressed the defendant on the topic of counsel was the day of trial; accordingly, he was not ‘previously warned by a judge against the misconduct’ of causing delay by his failure to secure counsel. … The defendant’s indication on signed pleadings that he was acting ‘pro se’ is without consequence, both because he did not receive a full colloquy and because he expressly reserved ‘the right to secure representation of a lawyer in the future.’ The authorities relied upon by the Commonwealth for a contrary conclusion are inapposite because they involve Continued on page 18

LOST WILL Anne T. Skrocki Currently of Lancaster and formerly of Worcester, Massachusetts. If you or your firm has any information regarding the Will of Anne T. Skrocki, please contact: Attorney Audrey O’Shaughnessy Bowditch & Dewey, LLP 175 Crossing Blvd #500 Framingham, MA 01702 508-416-2403

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THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

APPEALS COURT – UNPUBLISHED

in excluding from evidence the letter of Dr. Steven Nielsen dated December 31, 2003, as it satisfied the statutory requisites of G.L.c. 233, §79G. Third, the motion judge did not abuse his discretion, and otherwise acted within his authority in issuing the criminal harassment complaint against the defendant. …” Commonwealth v. Patch (Lawyers Weekly No. 81-344-15) (4 pages) (Appeals Court – Unpublished) (No. 10-P-555) (April 30, 2015).

Continued from page 17

circ*mstances in which defendants forced counsel to withdraw, or attempted to do so, without good cause and despite warnings by the judge. The defendant is entitled to a new trial. “Our conclusion that the defendant is entitled to a new trial obviates the need to consider his claims of error in the probation revocation proceedings following his conviction. We comment briefly on certain of the defendant’s other claims. First, the evidence was sufficient under Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), to support the defendant’s conviction of criminal harassment, for substantially the reasons explained in the Commonwealth’s brief at pages thirty-one to thirty-three. Second, though we discern no material prejudice resulting from the error, the trial judge erred

Jury and jurors Voir dire - Criminal responsibility

Where defense counsel requested an individual voir dire of jurors concerning the defendant’s defense of lack of criminal responsibility, the judge’s failure to conduct one warrants reversal of the convictions. “ … Here, the defendant was advancing a defense of lack of criminal responsibility due to mental defect and, therefore, was

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Employment

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ALTERNATIVE DISPUTE RESOLUTION LORETTA T. ATTARDO

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APPEALS COURT – UNPUBLISHED

concerning the club’s ‘After School’ program, offering education, fitness, career development, recreational, and artistic programs to elementary school children after the school day and into the early evening. The program is of a category, involving nonresidential custody and care of young children, that is subject to supervision by the Massachusetts Department of Early Education and Care (department or EEC). ... Such programs are subject to licensure by the department, unless they qualify for an exemption under the criteria set forth in the department’s exemption policy #20100601. The club ‘self-identified its [program] as exempt from [the department’s] licensing.’ “In January of 2013 Moriarty submitted the club’s application for ongoing exemption from licensing for the program to the department. After the department informed

Moriarty that licensing was required for the program, the club submitted a revised application in June of 2013. Thereafter, Moriarty informed the defendants that he believed the program required licensure, and that the club was misrepresenting the program by describing it as ‘open door.’ Moriarty also requested permission to contact the department to ‘discuss this issue.’ “The individual defendants replied in a series of electronic mail messages (e-mails) disputing Moriarty’s stated position, emphasizing that the club had not run the program under licensure in the past, stating that licensure is ‘completely contrary to the philosophy, business plan and guiding principles of the Club,’ questioning whether Moriarty shared ‘similar goals,’ and suggesting a meeting with the chair of the governance committee to assess Moriarty’s ‘willingness to participate in the mission, philosophy and strategic plan of the Club and its board.’ The defendants expressed concern that under licensure the club’s ‘building, as constructed, would necessitate fewer children

ALTERNATIVE DISPUTE RESOLUTION

program would determine that licensure was required.3 While he referred to the perceived misrepresentation as ‘inadvertent,’ and the application’s characterization of the program as ‘inaccurate,’ he also couched his objections in terms that invoked regulatory strictures (‘I am concerned that the Club’s characterization [is] a means of avoiding EEC [licensing] requirements’) and principles of integrity (‘I have a moral and ethical obligation to bring these matters to your attention’). “The defendants assert that these statements must be interpreted as nonactionable policy disagreements. … While this interpretation can be inferred from the record, it is not inescapable. The messages from Moriarty to the defendants also permit a reasonable fact finder to conclude that Moriarty was alerting them of his concern that the revised application was an attempt to evade the licensing requirements imposed by a duly and legislatively authorized public Continued on page 20

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APPEALS COURT – UNPUBLISHED

allegations, took deposits for which he failed to account, and, at the closing, failed to disburse the required amounts as reflected on the HUD form. “The plaintiff made no payments on the Continued from page 19 loan. [Defendant] Sovereign began forecloagency. General Laws c. 15D, §§6 and 15, resure proceedings. The plaintiff filed an apquire that the program be either licensed or plication seeking a loan modification, but no exempt from licensure, and impose criminal modification was granted by Sovereign. penalties for failure to comply. … “First, with respect to the indirect agen“We therefore conclude, viewing the allecy theories which seek to hold the bank regations of the complaint as true and drawsponsible for Strojny’s actions, Sovereign ing reasonable inferences in Moriarty’s fasubmits that its liability is limited by G.L.c. vor, that Moriarty has stated a cause of ac93, §70, to title defects and that, in any event, tion sufficient to survive a motion under Sovereign cannot be held liable indirectly on rule 12(b)(6). …” agency principles for Strojny’s misrepresenOther claims tations. … We agree that the dismissal of all “The defendants assert that Moriarty’s let- Negligence - Loan approval counts seeking to hold Sovereign vicariouster of August 8, 2013, explicitly citing the Where a judge dismissed a plaintiff bor- ly liable for Strojny’s actions was proper. … “We turn now to count XVI which is a club’s whistleblower policy contained in the rower’s complaint against a defendant lendemployee handbook, cannot support his er, the dismissal order must be (1) vacated negligence count pleaded directly against claim for breach of an implied contract of as to a claim that the defendant negligent- Sovereign. Specifically, count XVI of the employment, as he had already been termi- ly approved the plaintiff ’s loan application amended complaint alleges Sovereign negnated on August 1 or 2. Insofar as we consid- but (2) affirmed as to counts seeking to hold ligently approved the loan, and Sovereign er that evidentiary proceedings are required the defendant liable for the acts of a clos- negligently failed to properly review the plaintiff ’s loan application which, on its face, to resolve Moriarty’s claim that his previous ing attorney. messages sent before August 1 fall within the “… In 2008, the plaintiff contacted [Ste- shows the plaintiff ’s financial inability to rehandbook’s whistleblower protection provi- ven] Strojny about financing a home pur- pay the loan. … “… The amended complaint in count XVI sion, we need not address this argument. We chase; Strojny was an attorney and principal express no opinion on the actual date that of LoanQuest, a mortgage company (and re- alleges that the plaintiff ’s loan application Moriarty ceased to be employed for purpos- lated companies, …). Strojny allegedly made submitted to Sovereign showed that a subes of protection as a putative whistleblower. many false statements to the plaintiff regard- stantial amount of her income came from … ing the financing, causing her to believe she Social Security benefits for her child, and these payments were to terminate when “Finally we note that Moriarty’s claim could afford the property. couched as ‘interference with employment’ “When the plaintiff initially objected to the child turned eighteen. Count XVI furis closely related to his breach of contract the terms of the loan disclosed to her prior ther alleges that these Social Security payclaim. His interference claim, however, to closing, Strojny fraudulently assured her ments should not have been included in her also requires a showing of improper means that a new loan with a lower rate was immi- total annual income. In addition, this paror motive on the part of the individual de- nent and that he would make the first few ticular count alleged that, even if the Sofendants who allegedly induced the club payments himself if new financing terms cial Security benefits were to be included in to breach his employment contract. In this were not available at the time of closing. her income, the plaintiff ’s income was still context the requirement of improper means In his closing settlement agent role, Stro- too low to meet the loan payments to Sovor motive is equated to ‘actual malice.’ ... The jny, according to the amended complaint ereign. Thus, according to count XVI, the facts alleged regarding an insufficiently low income to support the loan were patent on the financing application loan documents. In sum, the count alleges that, if a proper review of the application had been conducted by Sovereign, the loan could not reaEVIDENTIARY ISSUES AND PROTECTION AND AND EVIDENTIARY INCARE CARE AND PROTECTION EVIDENTIARYISSUES ISSUESIN IN CARE AND PROTECTION AND sonably have been financially justified and TERMINATION RIGHTS CASES TERMINATIONOF OFPARENTAL PARENTAL RIGHTS CASES TERMINATION OF PARENTAL RIGHTS CASES Sovereign was negligent in not so reviewing the application. Co-Sponsored with with the Co-Sponsored the the Co-Sponsored with Co-Sponsored with the “Turning to specific numbers, count XVI MassachusettsJuvenile Juvenile Association Massachusetts Bar Association Massachusetts JuvenileBar Bar Association contains detailed allegations that the loan EVIDENTIARY ISSUES IN CARE AND Massachusetts Juvenile BarPROTECTION AssociationAND application showed $900 in monthly inTERMINATION OF RIGHTS CASES Wednesday, May 20,PARENTAL 2015 3:30 pm 5:30 pm Wednesday, May 20, 2015 • 3:30 pm to Wednesday, May 20, 2015 3:30 pmtoto 5:30 pm5:30 pm come (for the child’s Social Security benWednesday, May 20, 2015 Co-Sponsored with the3:30 pm to 5:30 pm efits) which should have been excluded. In Hon. Dana M. Gersherngorn, Juvenile Court (Norfolk) Hon. Dana M. Gershengorn, Juvenile Court (Norfolk) Hon.Massachusetts Dana M. Gersherngorn, Juvenile Court (Norfolk) Juvenile Bar Association addition, count XVI alleges that, even were Hon. Stephen M. Limon, Program Chair Hon.Hon. Stephen M. M. Limon, Juvenile Court (Suffolk), Program Stephen Program Chair Chair Hon. Dana M.Limon, Gersherngorn, Court (Norfolk) that $900 in Social Security income to be inHon. John S. Spinale, JuvenileJuvenile Court (Bristol) Hon. John Juvenile Court Hon. John S.Spinale, Spinale, Juvenile Court (Bristol) cluded, these child support payments would Wednesday, May 20, 2015 3:30 pm to(Bristol) 5:30 pm Chair Hon. Stephen M. S. Limon, Program terminate within the loan repayment time proceedings—has become so particularized that Spinale, an understanding of the general principles of evidence is not Hon. S. Juvenile Court (Bristol) The law of evidence inJohn child protective cases—both parental unfitness and termination of Hon. Dana M. Gersherngorn, Juvenile Court (Norfolk) frame. The total monthly income from all proceedings—has become so particularized that an understanding of the general principles of evidence is not parental proceedings—has become soenlarged particularized that that an understanding Indeed, therights body of(TPR) C&P and TRP evidentiary law has become so and specialized Supreme Judicialof sources was $2,020, from which the plaintiff Hon. Stephen M. Limon, Programthe Chair Court Committee Evidence expanded the forthcoming 2015 editionthis of the theAdvisory general principles of evidence islaw nothas sufficient for those who practice specialty. Indeed, the body of C&P on andMassachusetts TRP evidentiary become so enlarged and specialized that theMassachusetts Supreme Judicial would bear monthly mortgage payments of proceedings—has become so particularized that an understanding of the general principles of evidence is not Hon. John S.evidentiary Spinale, Juvenile Court to Evidence to include an C&P entirely new section to expanded explicate “Evidentiary Issues(Bristol) inso Care and Protection and CourtGuide Advisory Committee on Massachusetts Evidence has the forthcoming 2015 edition ofand the specialized Massachusetts Indeed, the body of and TPR law has become enlarged $1,538.93. Termination of Parental Rights Cases. ” Guide to Evidence to includeJudicial an entirely newAdvisory section toCommittee explicate “Evidentiary Issues in Care and Protection and that thewill Supreme Court on Massachusetts Evidence expanded Thisbody CLE the and evidentiary concepts outlined in new chapter the Guide.has Taught Indeed, the ofsurvey C&P andmajor TRPcases evidentiary law has become so enlarged and of specialized that the Supreme Judicial “... Here, we conclude the complaint conTermination of Parental Rights Cases. ” proceedings—has so particularized that an understanding ofprinciples the general principles ofinclude evidence is not by the threeforthcoming judges, thebecome presentations will include notMassachusetts only the evidentiary outlined the Guide, butan also 2015 the Guide to Evidence tothe This CLE will survey on theMassachusetts major edition cases andof evidentiary concepts outlined new chapterinof Guide. Taught ourt Advisory Committee Evidence has expanded theinforthcoming 2015 edition ofentirely the Massachusetts tained sufficient factual allegations ‘to raise indispensable practice tips when they arise during pretrial and at trial. new section to explicate “Evidentiary Care and principles Protection and Termination ofProtection Parental judges, the presentations will include not Issues only to theinevidentiary outlined in Guide, but also Guidebytothree Evidence to include an entirely new section Issues inthe Care and Indeed, the body of C&P and TRP evidentiary law hasexplicate become so“Evidentiary enlarged and specialized that the Supreme Judicialand a right to relief above the speculative level ... Rights Cases. ” tips when indispensable practice they pretrial and at trial. ermination ofAdvisory Parental Rights Cases. ” arise during Court Committee on Massachusetts Evidence has expanded the forthcoming 2015 edition of the Massachusetts [based] on the assumption that all the alleThis CLEthe will survey theand major cases to and evidentiary concepts in the newGuide. chapter Guide to Evidence to include an entirely new section explicate “Evidentiary Issues inoutlined Care and Protection and Taught This CLE will survey major cases evidentiary concepts outlined in new chapter of The Supreme Judicial Court has designated gations in the complaint are true.’ …” ofpresentations Parental Rightsby Cases. ” Flaschner of thethe Guide. Taught three judges, the include not thethe evidentiary the Institute as the will exclusive publisher ofonly the in by three Termination judges, will include not Judicial onlypresentations the evidentiary principles outlined Guide, but also This CLE will survey the major cases and evidentiary concepts outlined in new chapter of the Guide. Taught The Supreme Judicial Court has designated Conley v. Sovereign Bank (Lawyers Week“OFFICIAL PRINT EDITION” of the MASSACHUSETTS TO they arise during principles outlined inthey the Guide, but also indispensable practice tipsGUIDE when ndispensable practice tipspresentations when arise during pretrial and at trial. by three judges, the will include not only the outlined in the Guide, but also the Flaschner Judicial Institute theprinciples exclusive publisher of the EVIDENCE distributed toevidentiary every as judge in Massachusetts. The goal is ly No. 81-357-15) (6 pages) (Appeals Court – pretrial and at trial. indispensable practice tips when they pretrial and trial. “OFFICIAL PRINT EDITION” ofatthe MASSACHUSETTS to arise have during both the trial bar and the bench “on the same GUIDE page” ofTO the Unpublished) (No. 13-P-196) (May 4, 2015). SJC’s authoritative bench guide judge to evidence. Since this program will is EVIDENCE distributed to every in Massachusetts. The goal e-mails sent to Moriarty by the individual defendants permit the inference that the individual defendants were frustrated and unhappy with his approach to the issue of licensure; whether they also provide the requisite element of a ‘spiteful malignant purpose, unrelated to the legitimate corporate interest,’ … while a much more difficult question, is ultimately one that here, and as a rule, is susceptible to a factual determination.” Moriarty v. Boys and Girls Club of Marshfield, et al. (Lawyers Weekly No. 81-350-15) (8 pages) (Appeals Court – Unpublished) (No. 14-P-921) (May 1, 2015).

Mortgages

MASSACHUSETTS GUIDE TO EVIDENCE 2015 Edition

MASSACHUSETTS GUIDE Official Print Edition TO EVIDENCE of the

SUPREME JUDICIAL COURT ADVISORY COMMITTEE 2015 Edition ON MASSACHUSETTS EVIDENCE LAW

Official Print Edition of the

thethe Guide’s on C&P TPR cases,ofthe tofocus haveon both trialentirely barThe andnew thechapter benchJudicial “on the and same page” the Supreme Court has designated Flaschner Institutebench will The sellguide registrants the newCourt 2015 has edition at the will SJC’s authoritative to evidence. Since thisdesignated program Supreme Judicial thediscounted Flaschner Judicial as the exclusive publisher of the of entirely $44Institute –Institute it usually sells foron $79. focus the price Guide’s newas chapter C&Ppublisher and TPR of cases, theon Flaschner Judicial the exclusive the the “OFFICIAL PRINT MASSACHUSETTS Flaschner Institute will sell registrants the new 2015 edition at the TO “OFFICIAL PRINT EDITION” EDITION” ofof thethe MASSACHUSETTS GUIDEGUIDE TO EVIDENCE distributed every judge in Massachusetts. discounted of $44 –toto itevery usually sells $79. EVIDENCEprice distributed judge infor Massachusetts. The goalThe is goal is CPCS approved for 2 hours credit by the Children and Family Law Division panel (CAFL). toofhave both the trial bar thethe bench “on the same ofpage” the to have both the trial barand and bench “on the page” same of the SUPREME JUDICIAL COURT ADVISORY COMMITTEE ON MASSACHUSETTS EVIDENCE LAW

Affiliated with the Social Law Library Major funding by the Massachusetts Bar Foundation

MASSACHUSETTS GUIDE TO EVIDENCE

MASSACHUSETTS GUIDE TO EVIDENCE

Affiliated with the Social Law Library 2015 Edition Major funding by the Massachusetts Bar Foundation

2015 Edition

Official Print Edition of the

Official Print Edition of the

Appeals

Dismissal - Additional time

OURT SUPREME JUDICIAL C SUPREME JUDICIAL COURT ADVISORY COMMITTEE ADVISORY COMMITTEE ON MASSACHUSETTS ON EVIDENCE LAW EVIDENCE LAW MASSACHUSETTS

Where an order has been entered granting the plaintiff additional time to perfect her appeal, the appeal should instead have been dismissed because of the plaintiff ’s sediscounted price of $44 – it usually sells for $79. rious missteps. Online registration is encouraged. For questions on group discounts, special billing, program content, out-of-state CLE credits, and general CLE information call “The plaintiff purports to appeal from CPCS approved for 2hours hours credit by in the Children and Family Law panel (CAFL). CPCS for ofofcredit by the Children and Family Law Division panel (CAFL). Andrew Hyland at approved 617-226-1361. Space is2limited. Registrations accepted order of receipt. Same day registrations areDivision $5.00 extra. Registration fees are nonrefundable. Registrants for this program acknowledge that during the program their photographic or videographic images may be incidentally taken; registrants the dismissal, by a judge of the Probate and CPCS approved for 2 hours of credit by the Children and Family Law Division panel (CAFL). Program only: $65 Program and book: agree that the submission of their registrations for this program constitutes their written consent to the Social Law$99 Library’s Program only: $65 Program and book: $99 use of any such image in print and Family Court, of her equity and declaratoOnlineonline registration is encouraged. For questions on group discounts, special billing, and program out-of-state credits, and general CLE information call materials solely for promotion of the Library’s noncommercial CLE seminars other content, educational events andCLE activities. Program only: $65 Program and book: Andrew Hyland at 617-226-1361. Space is limited. Registrations accepted in order of receipt. Same day registrations are$99 $5.00 extra. Registration fees are nonry action by which she sought to hold the Law Library, John that Adams Courthouse, 4 photographicthorFloor, Boston, MA may 02108 refundable. RegistrantsSocial for this program acknowledge during the program their videographic images be incidentally taken; registrants defendants, Elissa Bradley Clews (whom we agree that the submission of their registrations for this program constitutes their written consent to the Social Law Library’s use of any such image in print and online materials solely for promotion of the Library’s noncommercial CLE seminars and other educational events and activities. shall refer to as ‘Hickey,’ her current name), Online registration is encouraged. For questions group discounts, special billing,content, programout-of-state content, out-of-state CLE call Online registration is encouraged. For questions on group on discounts, special billing, program CLE credits,CLE andcredits, generaland CLEgeneral information th and the trustees of trusts controlled by HickSocial Library, Adams Courthouse, 4 of receipt.accepted Floor, MA 02108 information callLaw Andrew HylandisJohn atlimited. 617-226-1361. Space is limited. Registrations inregistrations orderBoston, of receipt. Sameextra. day registrations are $5.00 Andrew Hyland at 617-226-1361. Space Registrations accepted in order Same day are $5.00 Registration fees are nonrefundable. Registrants for this acknowledge that during photographic or videographic images be incidentally taken; registrants ey, legally responsible for supporting the extra. Registration feesprogram are non-refundable. Registrants forthe thisprogram programtheir acknowledge that during the program theirmay photographic or videographic agree that the submission of their registrations for this program constitutes their written consent to the Social Law Library’s use of any such image in print and e registration is encouraged. For questionsregistrants on groupagree discounts, special billing, program content, out-of-state CLE credits, and general CLE information call images may beforincidentally that the submission of their for thisevents program plaintiff, Maura Blalock, and her children online materials solely promotiontaken; of the Library’s noncommercial CLE seminars andregistrations other educational andconstitutes activities. their written consent to the ew Hyland at 617-226-1361. Space limited. Registrations in order receipt. Same day registrations are $5.00 extra. Registration nonSocial Law Library’s use ofisany such image in print andaccepted online materials solelyoffor promotion of the Library’s noncommercial CLE seminars and other fees are born out th dable. Registrants for this program Library, acknowledge that during the program their photographic or videographic images may be incidentally taken; registrants of wedlock. The basis of Blalock’s Floor, Boston, MA 02108 educationalSocial events Law and activities. John Adams Courthouse, 4 that the submission of their registrations for this program constitutes their written consent to the Social Law Library’s use of any such image in print suitand was an alleged promise of support from e materials solely for promotion the Library’sJohn noncommercial CLECourthouse, seminars and other 4th educational events and activities. Social LawofLibrary, Adams Floor, Boston, MA 02108 Hickey, the mother of the defendant Jerry B. th Clews, who, in turn, is the father of Blalock’s Social Law Library, John Adams Courthouse, 4 Floor, Boston, MA 02108 SJC’s authoritative guide to evidence. SinceSince this program will SJC’s authoritative bench guide tobook: evidence. this program will Program only: $65 bench Program and $99 focus the Guide’s entirely new chapter onLaw C&P and cases, CPCS approved for 2 hours of credit byGuide’s the Children and Family panel (CAFL). focus ononthe entirely new chapter onDivision C&PTPR and TPRthe cases, the Flaschner Institute will sell registrants the new 2015 edition at the Flaschner registrants new 2015 edition at the Program only:Institute $65 Program and book: $99 discounted price ofwill $44 –sell it usually sells forthe $79. Affiliated with the Social Law Library Major funding by the Massachusetts Bar Foundation

Register at: www.socialaw.com/evidence2015 Affiliated with the Social Law Library Major funding by the Massachusetts Bar Foundation

Register at: www.socialaw.com/evidence2015 Register at: www.socialaw.com/evidence2015

Register at: www.socialaw.com/evidence2015

two children. … “The defendants contend that the judge abused his discretion in failing to dismiss the plaintiff ’s appeal. … “… The certification under rule 9(c) was required to be filed within ten days of the filing of the plaintiff ’s notice of appeal. Here, it was not filed until January 2, 2014, some two and one-half years later. On this record, the plaintiff has needlessly and inexcusably failed to satisfy her burden to move this appeal along expeditiously. “Furthermore, as we have noted, the plaintiff did not avail herself of the provisions of rule 10(c) by curing her noncompliance with rule 9(c) while her motion to extend time was pending; nor was her motion accompanied with an affidavit that gave the court any basis to conclude that her neglect in the equity case was excusable; indeed, no explanation was given. By captioning all three docket numbers in a single motion to extend time, without authorization to consolidate, and whether inadvertent or otherwise, her affidavit misleadingly shielded her neglect in the equity case and misdirected the judge’s attention to the explanation given in connection with the support cases. Excusable neglect has not been shown, nor is it to be presumed. … Under the circ*mstances of this case, and in consideration of the Rules of Appellate Procedure and probate rule 30, given the lack of both an affidavit in compliance with the relevant rules, and any explanation for the delay, it was an abuse of discretion for the judge to grant further time to the plaintiff to perfect her appeal in the equity action. It should have been dismissed. Consequently, for these serious missteps, we conclude that the plaintiff ’s appeal must be dismissed. …” Blalock v. Clews, et al. (Lawyers Weekly No. 81-359-15) (8 pages) (Appeals Court – Unpublished) (No. 14-P-70) (May 5, 2015).

Workers’ compensation Deterioration

Where the reviewing board of the Department of Industrial Accidents summarily affirmed a decision of an administrative judge denying an employee’s request for reinstatement of workers’ compensation benefits, the employee did not meet his burden to prove a deterioration in his condition. Affirmed. “The employee applied for and received temporary total incapacity benefits. In 2007, the insurer moved to terminate the employee’s benefits after conducting surveillance of him. The employee joined a psychiatric claim. An AJ, after viewing the surveillance video recordings and taking considerable additional evidence, discontinued the employee’s benefits, generally reasoning that ‘[t]here is certainly no reason, based on the [surveillance] videotapes, that [Johnny] Hines could not be doing that sort of job [personal care attendant] today.’ The board affirmed that decision, and this court dismissed the appeal from the board’s decision for a lack of prosecution. “The employee then filed a claim on May 20, 2010, for ongoing benefits pursuant to G.L.c. 152, §§13, 13A, 30, 34, 34A, and 35, from November 24, 2009, to date and continuing, in effect for the reinstatement of his benefits, generally arguing that both his physical and mental condition had deteriorated. A second AJ allowed both parties to submit additional medical evidence and both did so. After considering the evidence, the AJ essentially determined that ‘Mr. Hines’[s] condition has not deteriorated either orthopedically or in relation to his mental health.’ … “The employee essentially argues that the AJ’s decision should be set aside because it is beyond the scope of her authority and is otherwise arbitrary or capricious. Specifically, he contends that the AJ failed to consider his vocational expert’s written opinion, dated July 14, 2008, and that the AJ’s subsidiary findings are inadequate. “First, the employee claims that since the

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May 11, 2015 | Massachusetts Lawyers Weekly | 21

THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

APPEALS COURT – UNPUBLISHED

AJ did not make specific mention in her decision of the report from Rhonda Jellenik, the employee’s vocational expert, he failed to consider it. While it is true that the introductory exhibit list in the AJ’s decision identifies exhibit 9 only as the expert’s curriculum vitae (CV), it is clear from the hearing transcript that the report and CV had been admitted in evidence together as exhibit 9. Additionally, this report was the subject of a specific discussion during the hearing — regarding its previous admission in evidence during the expert’s testimony at the July 18, 2008, hearing on the insurer’s discontinuance petition, and regarding its not having been updated since that time. Furthermore, during the hearing at issue here, counsel for the employer and insurer requested, and the AJ agreed, to take judicial notice of the transcript of counsel’s cross-examination of the expert at the prior hearing. We are satisfied that the AJ considered the report and, as she stated during the current hearing, gave it appropriate weight, but chose to expressly credit the opinions given by the insurer’s vocational expert. “It having been determined previously that the employee was not disabled, the employee bore the burden of proving that his condition had changed between the date of the prior evidentiary hearing and the date of the evidentiary hearing in the present case. … “The AJ concluded, supportably in our view, that the employee had not met his burden to prove a deterioration in his condition. Consequently, the AJ’s decision that the employee’s condition had not deteriorated and

that the employee’s present physical problems are not causally related to his 2005 industrial accident is neither arbitrary nor capricious, the AJ having given credit to the various medical experts providing opinions on the physical and psychiatric issues. Questions of fact decided by an AJ or the board will not be reexamined if there is evidence to sustain the findings. …” Hines’s Case (Lawyers Weekly No. 81-36315) (5 pages) (Appeals Court – Unpublished) (No. 14-P-1072) (May 5, 2015).

Mortgages

Right to cure notice Where a defendant borrower was awarded summary judgment in a Housing Court summary process action, that judgment must be reversed because the judge’s ruling that the plaintiff lender was required to strictly comply with the right to cure requirements of G.L.c. 244, §35A, conflicts with an intervening Supreme Judicial Court decision, U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014). Wells Fargo Bank, NA v. O’Neill, et al. (Lawyers Weekly No. 81-364-15) (4 pages) (Appeals Court – Unpublished) (No. 14-P686) (May 5, 2015).

Appeals

Judgments affirmed The Appeals Court has affirmed, pursuant to Rule 1:28, judgments in the following cases. Although the decisions do not appear to address any substantive issues of law, the full text of each decision may be ordered using the appropriate “Lawyers Weekly No.” listed after the case name. • Commonwealth v. Hope (Lawyers Weekly

No. 81-341-15) (5 pages) (aggravated assault and battery; defendant’s argument that the victim’s testimony regarding (1) subsequent threats against her, (2) a restraining order and (3) outstanding warrants was in each instance impermissible character evidence) (No. 13-P-1261) (April 29, 2015). • Commonwealth v. Murga (Lawyers Weekly No. 81-342-15) (6 pages) (assault and battery; assault and battery by means of a dangerous weapon; defendant’s argument that the trial judge erred when he (1) refused to instruct the jury as to defense of another and (2) limited the scope of defense counsel’s cross-examination of a witness to establish motive and bias) (No. 14-P-244) (April 29, 2015). • Doe, Sex Offender Registry Board No. 8745 v. Sex Offender Registry Board (Lawyers Weekly No. 81-343-15) (5 pages) (Level 2 sex offender’s argument that the hearing examiner lacked substantial evidence to support his classification and that SORB failed to determine that his risk of sexual reoffense is current) (No. 14-P-160) (April 29, 2015). • Commonwealth v. Romero (Lawyers Weekly No. 81-345-15) (3 pages) (trafficking in heroin; defendant’s claim that the judge erred by permitting the commonwealth to admit in evidence his prior bad acts (three prior sales of heroin to an undercover officer)) (No. 14-P-580) (April 30, 2015). • Commonwealth v. Vidal (Lawyers Weekly No. 81-346-15) (3 pages) (assault and battery causing serious bodily injury; defendant’s claim that the judge of the Superior Court abused her discretion in denying the defendant’s timely motion to sever this case from that of the codefendant, his sister) (No. 12-P1994) (April 30, 2015). • Department of Revenue v. Moriconi (Lawyers Weekly No. 81-348-15) (10 pages) (paternity; judgment awarding child support, maintenance and education expenses; father’s

assertion that the judge erred in awarding retroactive extracurricular, educational and uninsured medical expenses and in ordering the father to pay a share of future educational expenses) (No. 14-P-856) (May 1, 2015). • FSL Associates, Inc. v. Goldberg (Lawyers Weekly No. 81-349-15) (9 pages) (suit alleging fraud, conversion and breach of contract against the plaintiff ’s former bookkeeper; damages in the amount of $1,013,669.70; defendant’s convictions for larceny and false entry) (No. 14-P-799) (May 1, 2015). • Commonwealth v. Bell (Lawyers Weekly No. 81-351-15) (9 pages) (assault and battery; defendant’s contention on appeal that the trial judge coerced a verdict in violation of G.L.c. 234, §34, by sending the jury out twice to deliberate after they reported they were at an impasse without obtaining the jury’s consent) (No. 13-P-941) (May 4, 2015). • Commonwealth v. Bocchino (Lawyers Weekly No. 81-352-15) (5 pages) (armed assault with intent to rob; defendant’s claim it was error for the judge not to allow his motion pursuant to G.L.c. 278A, §3(b), seeking forensic or scientific analysis, including DNA analysis, of a baseball hat worn by the defendant) (No. 14-P-771) (May 4, 2015). • Commonwealth v. Karanja (Lawyers Weekly No. 81-353-15) (6 pages) (rape; indecent assault and battery on a mentally retarded person; prosecutor’s reference during closing argument to the DNA testimony as showing “an exact match” and “identical” results; defendant’s argument that the conviction of indecent assault and battery on a mentally retarded person was a lesser included offense of rape) (No. 14-P-117) (May 4, 2015). • Commonwealth v. Melton (Lawyers Weekly No. 81-354-15) (3 pages) (motion to withdraw guilty plea; violating a restraining order; defendant’s contention that his counsel Continued on page 22

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22 | Massachusetts Lawyers Weekly | March 9, 2015

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THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

APPEALS COURT – UNPUBLISHED Continued from page 21

was ineffective for not filing a motion to dismiss under Commonwealth v. McCarthy, 385 Mass. 160 (1982); defendant’s argument that the evidence presented to the grand jury was insufficient as to the indictments for larceny of a motor vehicle and larceny in a building) (No. 14-P-367) (May 4, 2015). • Commonwealth v. Poto (Lawyers Weekly No. 81-355-15) (6 pages) (operating a motor vehicle under the influence of drugs, fourth offense; marijuana and Vicodin; defendant’s challenge to the admission of: (a) urine sample analysis results that showed the presence of additional drugs in his system (including opiates, benzodiazepins and cetirizine), and (b) related testimony from a state chemist “that the effect of the marijuana would have been compounded by the presence of these drugs”) (No. 14-P-931) (May 4, 2015). • Commonwealth v. Todisco (Lawyers Weekly No. 81-356-15) (5 pages) (rape of a child by force; indecent assault and battery; defendant’s claim of error in the admission of an independent expert opinion as to DNA evidence and in the denial of both his motion in limine to pierce the rape shield statute and his motion for new trial) (No. 12-P-1168) (May 4, 2015). • Adoption of Douglas (and five companion cases) (Lawyers Weekly No. 81-358-15) (11 pages) (postadoption and posttermination visitation; mother’s argument that trial counsel provided ineffective assistance when she failed to inform the judge, prior to the colloquy, that the mother’s agreement to

stipulate to unfitness and termination of parental rights was premised on the placement of all of the children with relatives; children’s argument that the judge erred in not ordering posttermination and postadoption visitation with their parents and that such denial of visitation was contrary to the evidence presented at trial) (No. 14-P-1005) (May 5, 2015). • Commonwealth v. Cal C., a juvenile (Lawyers Weekly No. 81-360-15) (4 pages) (adjudications of delinquency for carrying a firearm without a license and defacing a firearm serial number; juvenile’s challenge to the judge’s denial of his motion to suppress evidence found as a result of police frisking his backpack) (No. 14-P-861) (May 5, 2015). • Commonwealth v. Cruz (Lawyers Weekly No. 81-361-15) (11 pages) (armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, unlawful possession of a firearm and possession of a firearm in commission of a felony; motion for new trial; defendant’s contention that he received ineffective assistance of counsel when his counsel failed to: (1) file a motion to suppress prejudicial identification evidence; (2) present a ballistics expert; (3) object to evidence that the defendant used numerous aliases; (4) object to the admission of prior bad act allegations; (5) object to improper closing argument by the prosecutor; and (6) request a “Bowden” jury instruction to the effect that inferences favorable to the defense could be drawn from the government’s failure to conduct gunshot residue testing) (No. 11-P1843) (May 5, 2015). • Commonwealth v. Hudson (Lawyers Weekly No. 81-362-15) (17 pages) (second and third motions for a new trial; second-degree murder, assault and battery by means of a dangerous weapon, armed assault with

intent to murder, armed assault with intent to rob and unlawful possession of a firearm) (No. 14-P-735) (May 5, 2015).

Wills and trusts

Reformation - Revocation Where a testator executed a new trust with the intention of disinheriting his children but died before he was able to execute his new pour-over will, a Probate & Family Court judge erroneously reformed the second trust to make it amend, rather than revoke, the first trust. Accordingly, the first trust is revoked, and in the absence of a new will, the residue of his estate shall be distributed according to the laws of intestacy. “Here, even accepting that [testator] Paul’s ultimate intent was to complete an estate plan which omitted his children as beneficiaries of his estate, no mistake occurred that is amenable to reformation. The Second 2005 Trust contains no drafting errors. The Second 2005 Trust, substantially different from the first in virtually all respects, exactly express Paul’s wishes. No terms were omitted. Nor is it clear to us that the attorney erred in drafting a new trust rather than amending the first trust considering the substantial differences between the two trusts. “Paul’s attorney testified that he intended to create a comprehensive estate plan which would have consisted of the Second 2005 Trust and a new will. It was the attorney’s intention, shared with Paul, that the second trust and a new will would operate in conjunction with one another to effectuate Paul’s ultimate estate planning goals. The attorney testified that they agreed Paul would come back to sign the will another day. No

one was aware that Paul’s illness was such that it would cause his imminent death and neither Paul nor his attorney anticipated the possibility of Paul dying before he could execute a new will. With regard to wills and trusts, it has been said that ‘[w]hile intent is the lodestar of testamentary construction, it cannot be used ... to supply a missing clause or to permit speculation as to what the [testator] might have intended had [he] foreseen or contemplated events as they actually turned out, but for which [he] had made no provision.’ … “Thus, the reason the estate plan does not effectuate Paul’s ultimate intentions is not due to any scrivener’s or drafting error in the trust itself. Nor is it necessarily due to the attorney’s failure to understand that by law, a will cannot pour into a subsequently created trust. It is due to the fact that Paul died before executing a new will which would pour over into the second trust. Reformation of a trust instrument is not a remedy for failing to complete an estate plan, and specifically, for failing to execute a will. “Where a will and trust are intended to form integrally related components of a single testamentary scheme, we view them as parts of an interrelated whole. … While we have allowed reformation of trust instruments upon full, clear, and decisive proof that a drafting error has caused it to fail to conform to a settlor’s intent, we have done so only in the context of a completed estate plan. Here, an essential component of the estate plan was not executed by the settlor. Moreover, it is clear that Paul was aware that he had only partially executed his estate plan. “It is true that the seemingly simple reformation of the second trust to label it an

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MENTAL HEALTH LAW Gary Zalkin brings more than ten years experience as a psychotherapist to his practice of mental health law, helping treatment providers, the families of mentally ill individuals, and mentally ill individuals themselves by pursuing Guardianships and Conservatorships and advocating for appropriate treatment. Attorney Zalkin is also available to consult with attorneys with complicated mental health law cases. Zalkin Law Firm, PC Ten Laurel Avenue Second Floor Wellesley, Massachusetts 02481 781 239 1113 [emailprotected] www.zalkinlaw.com

DRIVER LICENSE APPEAL/ REGISTRY OF MOTOR VEHICLES/TRAFFIC TICKETS Geoffrey G. Nathan

Over 20 years’ experience at the RMV Driver Control Unit (DCU) and Board of Appeals for driver license driver license hardships consideration. Also criminal clerk magistrate hearings and judges reviews of civil motor vehicle infractions (CMVI). Appeared in judicial review as featured in MLW 1/16/14. Refer to article, ‘Overturned license suspension highlights OUI strategy’. Corporate references available.

Geoffrey G. Nathan

132 Boylston Street, 5th Floor Boston, MA 02116 TEL (617) 472-5775

www.massachusettsspeedingticket.com

Cite this page 43 MLW 1463 | masslawyersweekly.com

March 9, 2015 | Massachusetts Lawyers Weekly | 23

Cite this page 23 MLW 1420 | www.masslawyersweekly.com

May 11, 2015 | Massachusetts Lawyers Weekly | 23

THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

APPEALS COURT – UNPUBLISHED amendment of the first trust would render it unnecessary for Paul to execute a second will. We cannot say on this record, however, that it was Paul’s intention by executing the second trust, alone, to complete his estate plan. Where he anticipated executing a new will and thereby complete his estate plan, it is not for the courts to step in and render that additional step unnecessary and even less to anticipate the form his will ultimately would have taken when signed. “For the foregoing reasons we conclude that the judge erred in reforming the Second 2005 Trust to have it amend rather than revoke the First 2005 Trust. Accordingly, the First 2005 Trust was revoked when Paul signed the Second 2005 Trust. As Paul did not also execute a new will before he died, the pour-over provisions of his first will, the only will he executed, lapse by operation of G.L.c. 203, §3B, as then in effect, and for want of a beneficiary. The residue of Paul’s estate, therefore, shall be distributed according to our laws of intestacy.” Lesanto, et al. v. Lesanto (Lawyers Weekly No. 81-319-15) (12 pages) (Appeals Court – Unpublished) (No. 12-P-1111) (April 21, 2015).

Appeals

Judgments affirmed The Appeals Court has affirmed, pursuant to Rule 1:28, judgments in the following cases. Although the decisions do not appear to address any substantive issues of law, the full

text of each decision may be ordered using the appropriate “Lawyers Weekly No.” listed after the case name. • Commonwealth v. Jacobs (Lawyers Weekly No. 81-303-15) (5 pages) (firearms; constructive possession) (No. 14-P-483) (April 15, 2015). • Commonwealth v. Jones (Lawyers Weekly No. 81-304-15) (5 pages) (defendant’s argument that he is entitled to an additional 12 months and 22 days of sentence credit) (No. 14-P-813) (April 15, 2015). • Commonwealth v. Portillo (Lawyers Weekly No. 81-305-15) (5 pages) (murder in the second degree; defendant’s challenges to (1) the intoxication instruction and (2) the absence of a manslaughter instruction) (No. 13P-1745) (April 15, 2015). • Commonwealth v. Toldness (Lawyers Weekly No. 81-306-15) (5 pages) (defendant’s attack on his wife with a wooden stick while she slept; expert evidence regarding domestic violence; defendant’s argument that the judge’s use of the term “victim” during jury selection was prejudicial and that counsel was ineffective for not objecting) (No. 13-P-1546) (April 15, 2015). • Commonwealth v. Lopes (Lawyers Weekly No. 81-307-15) (4 pages) (assault and battery by means of a dangerous weapon; assault and battery on a police officer; defendant’s claims that (1) the judge abused his discretion by not conducting a voir dire of two jurors suspected of sleeping; (2) the judge abused his discretion in admitting evidence of the defendant’s uncharged misconduct; and (3) the prosecutor improperly referred to the defendant’s ethnicity and language) (No. 12-P-332) (April 16, 2015). • Commonwealth v. Morton (and a companion case) (Lawyers Weekly No. 81-310-15)

29 years trial experience. Member of Florida & NY Bars, Proven record of success in NY & Florida Courts. Published author in the field of proving PI damages through the use of diagnostic testing. 1981 graduate of Boston University - magna cum laude. We will visit & interview clients personally and without delay. Visit our website at www.personalinjurylawyer.ws Law Offices of Randy C. Botwinick, Miami office - 150 Alhambra Circle, Suite 1100, Coral Gables, FL 33134. 305-895-5700 • Fax: 305-445-1169 Palm Beach office 2385 NW Executive Center Drive, Suite 100, Boca Raton, Fl. 33141 561-995-5001 • Fax: 561-962-2710

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COMMERCIAL EVICTIONS & COLLECTIONS With 20 years of experience, Frank A. Flynn, Esq., represents commercial landlords, owners and commercial property managers. An expert on commercial eviction, Mr. Flynn, the managing partner of Flynn Law Group, is also the author of a chapter on Termination of Commercial Tenancies in "Residential and Commercial Landlord-Tenant Practice in Massachusetts." Flynn Law Group 185 Devonshire Street Suite 401 Boston, MA 02110 Phone: 617-988-0633 [emailprotected] www.flynnlaw-ne.com

firearm without a license; possessing ammunition without a firearm identification (FID) card; defendant’s contention that the judge erred in admitting a recording of a 911 call because it contained hearsay that was testimonial and therefore violated his confrontation right where the caller was not available for cross-examination at trial; defendant’s argument that the judge abused her discretion in failing to give a missing witness instruction) (No. 14-P-835) (April 17, 2015). • Commonwealth v. Morris (Lawyers Weekly No. 81-317-15) (10 pages) (assault with intent to rape; indecent assault and battery; assault and battery; defendant’s argument that first complaint testimony was improperly admitted, along with improper testimony about the victim’s demeanor, and that the prosecutor improperly bolstered the credibility of the commonwealth’s rebuttal witness during closing argument) (No. 13-P-1409) (April 21, 2015). • McCloskey v. Chandonnet (Lawyers Weekly No. 81-318-15) (6 pages) (father’s appeal from the dismissal of his complaint for modification seeking increased visitation with the parties’ two minor children) (No. 14-P-568) (April 21, 2015).

SUPERIOR COURT

Editor’s note: The full text of these decisions can be ordered at lwopinions.com.

Employment

Waiver - Whistleblower Where a plaintiff attorney has alleged retaliatory discharge from the Office of Senate Counsel, her common-law and statutory Continued on page 24

Kelsey Karimi at [emailprotected] or at 617-218-8134

LAWYER TO LAWYER FLORIDA PERSONAL INJURY

(11 pages) (rape; defendant’s argument that (1) evidence that his DNA was on the victim’s breast should have been excluded as irrelevant or, in the alternative, as more prejudicial than probative, (2) the judge erred in excluding, under the rape shield statute, evidence that the victim had been seen socializing with and kissing another man at a bar earlier in the evening, (3) it was error, under the doctrine of verbal completeness, to prevent the defendant from introducing an exculpatory statement made by the defendant, (4) the judge erred in failing to declare a mistrial after a key witness changed his testimony mid-trial, (5) the prosecutor’s closing was improper and (6) the defendant’s confrontation right was violated when the commonwealth’s DNA expert relied on testing performed by a nontestifying analyst) (No. 13-P-795) (April 17, 2015). • Commonwealth v. Nadeau (Lawyers Weekly No. 81-311-15) (5 pages) (making a false report of a crime; making a false motor vehicle insurance claim; defendant’s contentions that (a) the judge erroneously left it to the jury to determine whether a witness was qualified to offer an expert opinion; (b) it was improper for the prosecutor to ask that witness for his opinion to a reasonable degree of “scientific” certainty; and (c) the evidence was insufficient to support the convictions) (No. 14P-859) (April 17, 2015). • Commonwealth v. Paulino (Lawyers Weekly No. 81-312-15) (6 pages) (SDP; defendant’s contention that the trial judge improperly denied his motion for a directed verdict; defendant’s contention that the commonwealth failed to show the defendant suffered from a mental abnormality that was acquired or congenital) (No. 14-P-817) (April 17, 2015). • Commonwealth v. Pinder (Lawyers Weekly No. 81-314-15) (8 pages) (carrying a

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Geoffrey G. Nathan 20+ years experience as retained criminal defense attorney offering flat rate fees. Forensic experts and sentencing guideline consultants utilized in federal court. Attorney Nathan regularly seen on NewsMax TV & One America News Network providing live criminal defense analysis. County and State Court appearances. Also preparation and appearances for clerk magistrate matters.

Geoffrey G. Nathan, Esq. 52 Temple Place Boston, MA 02111 Tel: (617) 682-9211 • Fax: (617) 451-1070 www.bergstresser.com

CONDOMINIUM AND GENERAL REAL ESTATE Michael W. Merrill and Rita M. McGeary, partners, Merrill & McGeary As counsel to over 200 Condominium Associations we are experienced in all aspects of the legal representation of Condominium Associations throughout Massachusetts including litigation in all Courts. Prompt, reliable, expert services at reasonable rates. Referrals accepted. Member: Massachusetts Bar Association and Community Association Institute.

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TRAVEL AND TRANSPORTATION LAW Rodney E. Gould brings over 30 years experience in counseling and litigating on behalf of a wide range of travel and transportation related entities including numerous tour operators, cruise lines, airlines and others. Litigation and expert testimony includes clients and venues in matters throughout the United States, Europe, South America and Africa. Rodney E. Gould, Esq. Rubin, Hay & Gould, P.C. 205 Newbury Street P.O. Box 786 Framingham, MA 01701

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www.masslawyersweekly.com | Cite this page 24 MLW 1421

24 | Massachusetts Lawyers Weekly | May 11, 2015

THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

SUPERIOR COURT Continued from page 23

claims against the governmental defendants must be dismissed as waived by her decision to bring a separate count under the Massachusetts Whistleblower Act. “… The gravamen of this action is that, in 2008, [plaintiff Eileen] Fitzgerald blew the whistle (in writing) on what she believed to be her employer’s discriminatory treatment of a disabled co-worker. This legally protected conduct is alleged to have prompted the defendants to initiate a campaign of retaliation against plaintiff. … Plaintiff was discharged from employment in July, 2012, and commenced the present retaliation suit in July, 2014. … “In Count I of the Complaint, plaintiff alleges that defendants Commonwealth of Massachusetts and Massachusetts Senate subjected her to on the job harassment and an eventual retaliatory discharge from employment, thereby violating the covenant of good faith and fair dealing implied in her employment contract. In Count II of the Complaint, plaintiff charges all of the defendants with unlawful retaliation against Ms. Fitzgerald on account of her having opposed discriminatory conduct prohibited by G.L.c. 151B. The public employer defendants, Commonwealth of Massachusetts and Massachusetts Senate, have moved to dismiss each of these claims, arguing that plaintiff ’s pursuit of remedies under the Massachusetts Whistleblower Act, G.L.c. 149, Sec. 185, triggered a statutory waiver of these claims. The Court agrees. … “After reciting the remedies available to prevailing whistleblowers, the Whistleblower Act goes on to provide that plaintiffs who institute claims under this statute

LAND COURT JUDGES’ ASSIGNMENTS MAY 11 – JUNE 12 (Dates and times when non-dispositive motions may be marked for hearing before each Land Court judge) Date Monday, May 11 Tuesday, May 12 Tuesday, May 19 Wednesday, May 20 Wednesday, May 27 Wednesday, June 3 Friday, June 12

Time 10 a.m. 10 a.m. 10 a.m. 10 a.m. 10 a.m. 10 a.m. 10 a.m. 10 a.m.

Judge Piper, J. Cutler, C.J. Scheier, J. Piper, J. Cutler, C.J. Speicher, J. Cutler, C.J. Piper, J.

*To schedule a motion hearing before either Judge Foster or Judge Long, please contact their sessions clerks directly. Sessions clerk contact information is on the Land Court web page. Non-dispositive motions may be marked for hearing before the judge to whom the case is assigned. Parties and counsel are strongly encouraged to confirm dates and times with other parties before marking non-dispositive motions for hearings. Only non-dispositive motions may be marked for hearing by a party. Dispositive motions under Mass. R. Civ. P. 12 (b) (1), 12 (b) (6), 12 (c) and 56 will be scheduled by the court in all cases, See Land Court Rule 4. Please add the name of the judge assigned to your case on your pleadings. All sessions at the Land Court, 3 Pemberton Sq., Boston. CONFIRM COURTROOM ASSIGNMENTS AT THE LAND COURT’S FRONT COUNTER ON THE 5TH FLOOR ON THE DAY OF HEARING. For other judges’ assignments: BMC, page 16; District Court, page 27; Probate & Family Court, page 32

necessarily waive most state law claims arising out of the same underlying allegations. … “Although appellate guidance is lacking, the foregoing provision of the Whistleblower Act has been consistently construed in reported decisions at the trial court level to bar the assertion of statutory and common law damage claims that in substance derive from the same conduct forming the basis for a retaliation claim instituted under G.L.c. 149, Sec. 185(d). … “In the case at bar, there can be no question but that Ms. Fitzgerald has in Counts I and II of her Complaint brought workplace harassment and wrongful discharge claims (Count I at common law and Count II under Chapter 151B) that are substantively indistinguishable from the whistleblower retaliation claims brought under Chapter 149, Section 185 in Count IV. Under the plain language of Section 185(f), as construed by the above-cited authorities which the undersigned today joins, these claims have been waived as to the Commonwealth of Massachusetts and Massachusetts Senate by operation of plaintiff ’s initiation of Whistleblower Act retaliation claims against these defendants. “In her Opposition to Defendants’ Motion to Dismiss, plaintiff argues that she should be permitted to ‘plead in the alternative,’ litigate all of her retaliation claims at trial, and then elect her preferred remedy after the jury returns its verdict. In support of this argument, plaintiff emphasizes the language in Section 185(f) providing that ‘[n]othing in this section shall be deemed to diminish the rights, privileges or remedies of an employee under any other federal or state law or regulation, or under any collective bargaining agreement or employment contract.’ Plaintiff ’s reliance upon this language is misplaced; for while it is surely meant to preserve a plaintiff ’s right to elect remedies, the decision point for such election is before plaintiff commences an action under the Whistleblower Act and not after such an action has been tried to verdict. The text plaintiff cites in Section 185(f) preserves an employee’s right to choose between Whistleblower Act and other legal remedies by making clear that the statute was not meant to preempt all other statutory and common law causes of action. If the Whistleblower Act were preemptive, retaliation plaintiffs would be required to litigate their claims exclusively under this law. No other statutory or common law retaliation claims would avail in the public employment setting. The ‘no diminish’ language Ms. Fitzgerald cites in her Opposition, however, expresses the Legislature’s intent that retaliation plaintiffs will continue to have a choice of remedies. … “But the fact that the Whistleblower Act does not preempt other statutory and common law retaliation claims does not mean that all of these claims may be brought concurrently. Plaintiff does have a choice of remedies, and is free to litigate statutory and common law theories of retaliation other than pursuant to the Whistleblower Act. Once she elects to pursue a Whistleblower Act remedy by ‘instituting’ a claim under this statute, however, that election has been made and operates from that point forward as a waiver of all other claims resting upon the same underlying grounds. ... Plaintiff ’s contention that she might not ultimately prevail on her Whistleblower Act claim at trial, and should thus be permitted to litigate alternate theories of liability premised on the same allegations of retaliation, defies the clear language and unmistakable intentions of Section 185(f). This Court has previously confronted the very argument plaintiff now presses in other cases, and rejected it squarely. … “For the foregoing reasons, plaintiff ’s claims for general harassment, breach of contract and unlawful retaliation in violation of G.L.c. 151B cannot survive her institution of overlapping retaliation claims

under the Whistleblower Act. Defendants’ Motion to Dismiss Counts I and II of the Complaint, therefore, must be allowed as to the Commonwealth of Massachusetts and Massachusetts Senate.” Other claims “Turning next to Count III of the Complaint (Tortious Interference with Contractual and Advantageous Business Relations against defendants [Alice E.] Moore and [Maura D.] McLaughlin), defendants argue that these claims fail as a matter of law because they are merely a common law recasting of plaintiff ’s statutory aiding and abetting and retaliation claims under the Fair Employment Practices Act, G.L.c. 151B. The Court agrees. Although plaintiff correctly notes that Chapter 151B does not categorically and in all instances preclude the assertion of common law claims that overlap the subject matter of the statute, … our appellate courts have long made clear that common law claims that are ‘merely recast versions’ or ‘proxies’ of allegations actionable under Chapter 151B are barred by the statute’s exclusivity provision. … “An examination of the tortious interference allegations underlying Count III of the Complaint finds that they are a restatement of the aiding and abetting a retaliatory discharge claim asserted against the individual defendants in Count II. Given that the Chapter 151B claims against these defendants will go forward under Count II, the Court sees no reason to preserve substantively duplicative tort claims against these same defendants in Count III. In accordance with the foregoing authorities, therefore, Defendants’ Motion to Dismiss Count III of the Complaint will be allowed in its entirety. “Finally, the parties appear to be in agreement that Count IV of the Complaint (Massachusetts Whistleblower Act) states no viable claim against the individual defendants. G.L.c. 149, Sec. 185 provides a cause of action against a ‘public employer,’ defined in the statute to mean ‘the commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof.’ G.L.c. 149, Sec. 185(a). It is well settled that claims under this statute may not be asserted against individual managers, supervisors or co-workers. … Accordingly, Defendants’ Motion to Dismiss Count IV of the Complaint as to defendants Moore and McLaughlin will be allowed.” Fitzgerald v. Commonwealth, et al. (Lawyers Weekly No. 12-049-15) (10 pages) (Gordon, J.) (Suffolk Superior Court) (Civil Action No. 14-2203-C) (Feb. 26, 2015).

Jury and jurors Deadlock - SDP

Where a defendant has moved to dismiss the commonwealth’s petition for his commitment as a sexually dangerous person, the dismissal motion must be denied despite the fact that mistrials have been declared because of deadlocked juries. “[Defendant Gordon] Flood’s counsel has submitted a compelling and articulate appeal as to why he ought to be released. He argues that the language of G. L.c. 123A, §14(d) requires a verdict, and if no verdict is rendered, the petition must be dismissed and the individual must be released from custody. … He contends that because the statute is silent on the issue of a deadlocked jury, the only possible conclusion is that a verdict is required. He poignantly argues that G.L.c. 123A, §9 specifically provides that normal civil practice procedures apply, while §14 contains no such provisions. He contends that the Massachusetts legislature’s failure to make a similar provision in §14 means that the normal practice of declaring a mistrial for a deadlocked jury is inapplicable. “Further, Mr. Flood’s counsel admits

— quite candidly — that his argument that if the jury deadlocks, then the case must be dismissed, is without precedent. Criminal juries are required to return unanimous verdicts, Mass. R. Crim. P. 27(a), while civil juries are required to have the agreement of five-sixths of its members, G.L.c. 234, §34A. In either case, a failure of a proper number of jurors to agree does not amount to a failure to meet the burden of proof. As unusual as this proposition sounds, it is a matter of law. … The Appeals Court has held that in a trial under G.L.c. 123A, §14, ‘[t]he decision whether to declare a mistrial is within the discretion of the judge.’ … The jury’s failure to reach a unanimous verdict that Mr. Flood is a sexually dangerous person as required under the statute is not equivalent to a verdict that he is not a sexually dangerous person. Nothing in the statutory language or the case law compels a court to direct a verdict or dismiss a petition if the jury does not reach a verdict. “Mr. Flood argues that due process requires that the petition be dismissed. ‘While G.L.c. 123A proceedings are technically classified as civil proceedings, the potential deprivation of liberty mandates that due process protections apply.’ … Permitting retrial after a mistrial does nothing to harm Mr. Flood’s due process rights; the same protections that applied during his previous trials will continue to apply at the retrial. “Neither G.L.c. 123A, §14 nor due process requires the dismissal of the petition because the jury was unable to reach a unanimous verdict. Therefore, despite counsel for Mr. Flood’s counsel’s eloquent advocacy (both oral and written), his motion to dismiss must be denied.” Other matter “Mr. Flood also seeks to modify the terms of his confinement and asks that the court move him from the Massachusetts Treatment Center to the Boston Pre-Release Center, a minimum security and pre-release correctional facility. “Section 12(c) requires that the court hold a hearing to determine if there is probable cause to believe the individual is a sexually dangerous person. … “In this case, Mr. Flood waived his right to a hearing under G.L.c. 123A, §12(c), and stipulated to a finding of probable cause that he was a sexually dangerous person. … Once the Commonwealth petitioned for a trial, the statute requires that Mr. Flood be held in a secure facility until the trial is over. ... Therefore, this court lacks the authority to modify Mr. Flood’s terms of confinement. … Accordingly, Mr. Flood’s motion to modify the terms of confinement must be denied.” Commonwealth v. Flood (Lawyers Weekly No. 12-050-15) (4 pages) (Curran, J.) (Suffolk Superior Court) (Civil Action No. 10CV-4981) (April 22, 2015).

Contract

Settlement agreement Assent Where a plaintiff has moved to vacate a judgment enforcing a settlement agreement, the motion must be denied because the plaintiff has not shown that the defendants changed a material term. Enforceable agreement “This case arises out of a dispute over an agreement between the plaintiff, DealerStock, LLC, and the defendants, Marcello Zouain and Natick Auto Center, Inc., for the consignment and sale of cars. After the parties reported that they had reached a settlement, a nisi period entered after which a judgment entered dismissing all claims. … “The Settlement Agreement provided that the parties agreed to settle the litigation for $25,000 and enter a stipulated judgment in that amount. The Agreement further provided that if Mr. Zouain delivered Continued on page 27

Cite this page 25 MLW 1422 | www.masslawyersweekly.com

May 11, 2015 | Massachusetts Lawyers Weekly | 25

The Practice Advice for the busy lawyer

Service: a counterweight to commoditization By Edward Poll In recent years, the “Two C’s”— convergence and commoditization — have become major issues for national and large regional law firms, as well as small-firm and solo practitioners. Convergence is the trend among clients to reduce their legal expenses. Lawyers need to counter the trend by offering exceptional service. Commoditization Large corporate clients reduce their legal expenses by paring down to a few dozen or less the hundreds of outside law firms that they previously used. The survivors of the parings are frequently expected to provide certain kinds of work with relatively steady volume, such as patent filings or employment litigation, at fixed rates over a cerEdward Poll is the principal of LawBiz Management. He coaches lawyers and is the creator of “Life After Law,” a program that helps attorneys plan for profitable exits. He can be contacted at [emailprotected].

tain period of time, turning those matters into the legal equivalent of a commodity. With commoditized services, lawyers focus on specific targets, such as settling cases for the lowest legal cost and settlement amount, where warranted. Commoditization is also increasingly an issue for small firms and solos, too, particularly in areas such as wills, bankruptcy filings and divorces. Spend just a little time on the Internet and you’ll see a whole host of these services that target individual consumers and are being offered by lawyers at low, fixed prices. There are even software packages claiming to make the purchasers their own lawyer in those practice areas. I’m reminded of the H&R Block television commercial depicting a husband preparing the family tax return. He is stuck. The wife approaches him and suggests that he ask “the box” for help. You know, of course, the answer from the box: silence. Then a voice-over speaks, explaining that help from H&R Block is only a phone call away. Essentially, low-price pitches meet with success because too many lawyers have done a poor job of addressing the value and

benefits that they bring to the matter — the worth, as opposed to the cost, of the services provided. Productization When clients increasingly want to see the dynamic shift toward the commodity model, the momentum can be hard to resist, at least completely. So what type of options do lawyers have in response? One way is to consider “productizing” your practice by providing a tangible product that opens the door to the intangible, value-added services that you want to offer. For example, an estate planning lawyer might combat do-it-yourself websites and software by establishing a password-protected section on his firm website that has authoritative forms and research prepared and evaluated by the attorney. For a flat fee, a client could access that material and draw from it at will, and if the client has a question or problem that the materials do not answer, there’s the attorney’s secret weapon: the availability of legal expertise. The lawyer is available to

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provide personalized counsel, perhaps at a special rate, that recognizes the relationship established through the website. Another example might be a blog that, for a subscription fee, combines the lawyer’s observations on breaking legal or regulatory issues with specialized content and research — again, with the option of asking specific questions outside of the access fee. There are numerous value-added offerings that you could create based on your practice area and target market — and that’s just what many creative lawyers and firms are currently considering or actually doing.

When the client perceives the work you do as having high value, you’ll be able to charge more, of course. The way to ensure that clients recognize your real value and expertise is to offer real service. Clients consult lawyers because they need help with problems that they cannot resolve on their own. But clients value what any person values in a potential hire — be it a plumber, doctor or other service provider: show up on time, do what you say you will do and finish what you start — and say please and thank you. MLW

Eat the frog, find your Power Hour and cast aside procrastination By Shawn Healy One of the best aspects of being a solo practitioner is being your own boss. It’s also one of the worst. Disorganization in the life of a solo practitioner can result in wasted time, loss of income, loss of good clients, and, in the worst cases, disciplinary complaints. There’s no one to make sure you do the work. You need to be naturally organized or have external systems in place to help you get and stay organized. All too often, disciplinary complaints are filed because of a missed deadline or court date or failure to respond to client communications. The vast majority of the affected solos are not incompetent; they are simply overwhelmed. Internally speaking, a common contributor to disorganization is procrastination, an issue with which many of us struggle. While the vast majority of people admit to procrastinating at some point, about 20 percent of people self-identify as chronic procrastinators. So let’s combat it by understanding it. Simply put, procrastination is avoidance. At a very basic level, our brains assess things very quickly in terms of whether they are desirable (approach) or undesirable (avoid/ withdraw). We do this because we are motivated by two basic experiences: seeking pleasure and avoiding pain. Research shows that we Dr. Shawn Healy is a licensed clinical psychologist on staff with Lawyers Concerned for Lawyers of Massachusetts, where he provides clinical services and groups and writes and presents on a variety of topics germane to the practice of law. He can be contacted at [emailprotected].

are actually more motivated to avoid pain than we are to pursue pleasure. That shapes our behavior, our personalities and our lives in general. Most of these basic assessments go unnoticed and do not dramatically impact our daily lives; however, patterns can emerge through which we consistently avoid painful experiences by withdrawing from or postponing a task. Even though we know that the task does not disappear and gets worse with time, we nevertheless seek the immediate relief of making the discomfort stop. The harsh reality is that when we repeatedly avoid something, we’re actually sending ourselves subtle messages that the uncomfortable task is more painful than it actually is, and that we are less capable of handling it than we actually are. That leads to putting things off, task buildup, increased stress and disorganization. You may tell yourself, “But I work best under pressure of a close deadline.” You don’t. That’s just something you tell yourself to make yourself feel better about procrastinating. The reality is that your work is better when you have more time. You may have a habit of only working once a deadline is looming; however producing more mediocre work is different than working at your best. The biggest hurdle to getting organized will be fighting the habit of avoiding the initial discomfort. The solution is simple, even if it is easier said than done: • Set small, achievable goals. The only way you will ever achieve something great is to start with taking a small step. Breaking a goal down into small steps is one of the

Office Assistance Program about law practice management software to organize, coordinate and streamline your law practice.

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most effective ways to achieve success. It will give you a realistic task to focus on, decrease the discomfort and increase your rate of success, which will encourage you to continue making progress. • Write it down in an organized way and free up your mental energy. The simple act of putting something on paper not only makes for quick prioritization of a task, but also frees the mind from constantly repeating the large number of tasks we all have to get done over and over. Such internal repetition is a common and very inefficient use of our brain power. Writing down tasks frees up mental space so that you can dedicate those resources to actually achieving your goals. • Use your “Power Hour.” The idea behind the Power Hour is that we all have a period of time during our day when we are the most productive. Whether that is first thing in the morning, right after your second cup of coffee, post-lunch or later in the evening, if you know when

your Power Hour is, you can plan your time accordingly. For an extra boost, start it off by Eating the Frog. • Eat the frog. Mark Twain is credited with saying that if you eat a frog first thing in the morning, nothing worse will happen to you the rest of the day. Eating the frog is all about confronting the most uncomfortable task first: the opposite of procrastination. By tackling the most difficult task first, you will feel more confident the rest of your day and you will feel less temptation to avoid things. Once you slay a dragon, the rest of your day seems easy. • Use technology to your benefit. E-calendars, reminders, law practice management systems — using technology well can help cut down on wasted time. A good place to start is with an electronic calendar. Schedule deadlines and court dates, reminders of tasks that are about to become due, and tasks that need uninterrupted time to complete. I would recommend speaking to our colleagues at the Massachusetts Law

• Eliminate or reduce distractions. In the same way that using your calendar can help prioritize tasks, eliminating interruptions and distractions can significantly increase your productivity. Anything that takes you off-task briefly (such as an alert that you got a new email) has the potential to steal significant time. So when you need to be the most productive, turn off your email alerts, put your phone on “Do Not Disturb” and shut your door. Create the most distraction-free environment you can. • Schedule breaks. Giving yourself regular breaks throughout your work day is not only a nice thing to do for yourself, but it will actually make you more productive. Research has shown that our pain tolerance increases if we know when the pain will stop. If you are working on a difficult task with no end in sight, your pain tolerance decreases and your desire to avoid that pain increases (hence escaping to YouTube, Facebook, etc.). So give yourself a break. It will actually make you stronger. • Reward yourself. While we are primarily motivated to avoid pain, seeking pleasure is a strong motivator too. Giving yourself a meaningful reward for your hard work can help motivate you to continue pursuing your goals. Start today. Set a small goal and make the commitment to accomplish it. Repeat tomorrow. MLW

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26 | Massachusetts Lawyers Weekly | May 11, 2015

Calendar

Contact Matt Yas at [emailprotected]

May 12 | TUESDAY MATA Annual Dinner; Sponsor: Massachusetts Academy of Trial Attorneys; 9 a.m. – 5 p.m; Sheraton, 1657 Worcester Road, Framingham; Info: Kaleigh@ massacademy.com, 781-425-5040 Lawyers Concerned For Lawyers; Sponsor: LCL; 1 - 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 An Evening With Natalie B. Choate, Estate Planning Expert, Presented By Merrimack Valley Estate Planning Council And Greater Lowell Community Foundation; Sponsors: First Financial Trust, PennMutual - New England Region, Wealth Management Advisors, AndoverLaw, GW & Wade, F.L.Putnam Investment Management Co., Eastern Bank; 4 – 8 p.m.; Andover Country Club, 60 Canterbury St., Andover; Info: T. Michael Sullivan, msullivan@ andoverlaw.com

13 | WEDNESDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 7:30 – 8:15 a.m.; 1585 Mass. Ave., Wasserstein Hall, Room WCC 3008; Info: Lottie, 617-482-9600 Practicing With Professionalism; Sponsor: Massachusetts Bar Association; 9 a.m. – 5 p.m.; UMass Medical School, 55 Lake Ave. North, Worcester; Info: www.massbar.org Executive Insights: Learning From The Leaders In Marketing & Business Development; Sponsor: Legal Marketing Association, New England chapter; 5:30 p.m.; Nutter, McClennen & Fish, 155 Seaport Blvd., Boston; Info: www.legalmarketing.org/ newengland Landlord/Tenant Practice Training; Sponsors: North Shore Community Action Programs, Northeast Legal Aid and Northeast Justice Center; 12 – 4:30 p.m.; Northeast Housing Court, Ruane Judicial Center, 56 Federal St., Salem; Info: Kristen, 978-8880621, [emailprotected]. NSWLA Spring Networking Breakfast; Sponsor: North Shore Women Lawyers’ Association; 7:30 – 8:30 a.m.; Red’s Kitchen & Tavern, Route 1 North, 131 Newbury St., Peabody; Info: Beth O’Donnell, [emailprotected]

14 | THURSDAY Excellence In The Law; Sponsors: Lawyers Weekly and the Massachusetts Bar Association; 5:45 – 8:15 p.m.; Marriott Long Wharf Hotel, Boston; Info: kelsey. [emailprotected], 617-218-8134 Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 Trademark Acquisition And Enforcement – The Good, The Bad And The Ugly; Sponsor: Massachusetts Bar Association; 12 – 2

3 | WEDNESDAY

PLACES TO BE ELEMENTS M & A CONFERENCE – Building Blocks of the Deal

The ELEMENTS CONFERENCE is an element by element, building block by building block, introduction to the process of selling a closely held business; taught by an industry leader in each ELEMENT. The Conference is specifically targeted towards the business owner who wants to learn about selling a business without the high pressure sales pitch and meet the needs of the professional advisor (CPA, Lawyer) who wants to better understand the elements outside their own specialty. Sponsored by: Beacon Equity Advisors • Pabian Russell • Radius Bank •Business Legacy Consulting

Friday, May 15, 2015 7:30 AM - 4:30 PM Embassy Suites Hotel - Waltham Content sponsored by ELEMENTS CONFERENCE

To register and view complete list of topics and speakers http://elementsconference.cvent.com

LAWYERS WEEKLY EVENT Excellence in the Law, an annual event co-hosted by Lawyers Weekly and the Massachusetts Bar Association, will take place on Thursday, May 14, from 5:45 to 8:15 p.m., at the Marriott Long Wharf Hotel, 296 State St., Boston. Awards will be handed out in the following categories: Up & Coming Lawyers and Excellence in Pro Bono, Paralegal, Marketing and Firm Administration. Honors also will go out for Judicial Excellence and Excellence in Legal Journalism. To register and for more information, contact Kelsey Karimi at [emailprotected] or (617) 218-8134. p.m.; MBA, 20 West St., Boston; Info: www.massbar.org; real-time webcast at www.massbar.org/ ondemand Young Lawyers Networking Event; Sponsor: Massachusetts Bar Association; 6:30 – 8 p.m.; Mezcal Tequila Cantina, 30 Major Taylor Blvd., Worcester; Info: www.massbar.org

15 | FRIDAY 2015 National Lawyers Guild Testimonial Dinner; Sponsor: NLG Massachusetts Chapter; 6 p.m.; Dante Alighieri Cultural Center, 41 Hampshire St., Cambridge; Info: 617-227-7335, [emailprotected]

19 | TUESDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; Red Rose Restaurant, 1074 Main St., Springfield; Info: Mark P., 413-733-3100 Western Mass. Dial-A-Lawyer Program; Sponsor: Massachusetts Bar Association; 4 – 7:30 p.m.; Statewide dial-in: 413-782-1659; Info: www.massbar.org How Judges Judge – The Role Of Personal Values In Judicial Decisions; Sponsor: Ryna Greenbaum Jewish Community Center for the Arts; 7:30 p.m.; Leventhal-Sidman JCC, 333 Nahanton St., Newton; Info: 617965-5226, [emailprotected], www.bostonjcc.org/hotbuttons

20 | WEDNESDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 7:30 – 8:15 a.m.;

1585 Mass. Ave., Wasserstein Hall, Room WCC 3008; Info: Lottie, 617-482-9600

WBF 2015 Comedy Night; Sponsor: Women’s Bar Foundation; 6 p.m.; Boston Harbor Hotel, 70 Rowes Wharf, Boston; Info: www.womwnsbar.org/calendar Trends In Legal Custody; Sponsor: Massachusetts Bar Association; 4 – 6 p.m.; MBA, 20 West St., Boston; Info: www.massbar.org; real-time webcast at www.massbar.org/ ondemand Shift Training: Helping Clients Manage Their Human Rights Risks — What Business Lawyers Need to Know; Sponsor: Northeastern University School of Law and Shift; 8:30 a.m. – 5:30 p.m.; NU School of Law; Dockser Hall, 65 Forsyth St., Boston; Info: Pat Voorhies, [emailprotected]

21 | THURSDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 Lawyers Concerned For Lawyers; Sponsor: LCL; 6 – 7:30 p.m.; Law Offices of Bob Kelly, Quincy; Info: Bob K., 617-479-8133

27 | WEDNESDAY BBA Law Day Dinner 2015; Sponsor: Boston Bar Association; 5:30 p.m.; Seaport World Trade Center, 200 Seaport Blvd., Boston; Info: Erica, [emailprotected] Lawyers Concerned For Lawyers; Sponsor: LCL; 7:30 – 8:15 a.m.; 1585 Mass. Ave., Wasserstein Hall, Room WCC 3008; Info: Lottie, 617-482-9600

Lawyers Concerned For Lawyers; Sponsor: LCL; 7:30 – 8:15 a.m.; 1585 Mass. Ave., Wasserstein Hall, Room WCC 3008; Info: Lottie, 617-482-9600 MBA Monthly Dial-A-Lawyer Program; Sponsor: Massachusetts Bar Association; 5:30 – 7:30 p.m.; Statewide dial-in: 617-338-0610; Info: www.massbar.org

4 | THURSDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 Certificate In Trust & Estate Planning – Fed. & Mass. Issues (706 & M706); Sponsor: Foundation For Continuing Education; 9 a.m. – 1 p.m.; Hampton Inn, Natick; Info: Adele, 978-468-6528 Minimizing Discovery Disputes and Controlling Your Client’s Legal Spending; Sponsor: Massachusetts Bar Association; 2 – 5 p.m.; MBA, 20 West St., Boston; real-time webcast at www.massbar.org/ ondemand

5 | FRIDAY

Tech Tips For Lawyers — Organization And Efficiency; Sponsor: Massachusetts Bar Association; 12 – 2 p.m.; MBA, 20 West St., Boston; Real-time webcast at www.massbar.org/ondemand

Certificate In Trust & Estate Planning – Estate PlanningIntermediate/Advanced; Sponsor: Foundation For Continuing Education; 9 a.m. – 3 p.m.; Hampton Inn, Natick; Info: Adele, 978-468-6528

28 | THURSDAY

9 | TUESDAY

Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 Lawyers Concerned For Lawyers; Sponsor: LCL; 5:30 – 6:30 p.m.; Blessed Sacrament Church, Worcester; Info: Jim C. 978-345-2671 MBA House Of Delegates Meeting; Sponsor: Massachusetts Bar Association; 4 – 6 p.m.; MBA, 20 West St., Boston; Info: www.massbar.org

29 | FRIDAY How To Start And Run A Successful Solo Or Small Firm Practice; Sponsor: Massachusetts Bar Association; 9 a.m. – 5 p.m.; Lombardo’s, 6 Billings St., Randolph; Info: www.massbar.org

June 2 | TUESDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 Certificate In Trust & Estate Planning – Trust Basics (The Key to Understanding); Sponsor: Foundation For Continuing Education; 9 a.m. – 1 p.m.; Hampton Inn, Natick; Info: Adele, 978-468-6528

Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600

10 | WEDNESDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 7:30 – 8:15 a.m.; 1585 Mass. Ave., Wasserstein Hall, Room WCC 3008; Info: Lottie, 617-482-9600

11 | THURSDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600

12 | FRIDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2:30 p.m.; Shadi’s Restaurant, North Andover; Info: Dan S., 978-390-3979

16 | TUESDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; LCL, Boston; Info: Lottie, 617-482-9600 Lawyers Concerned For Lawyers; Sponsor: LCL; 1 – 2 p.m.; Red Rose Restaurant, 1074 Main St., Springfield; Info: Mark P., 413-733-3100

17 | WEDNESDAY Lawyers Concerned For Lawyers; Sponsor: LCL; 7:30 – 8:15 a.m.; 1585 Mass. Ave., Wasserstein Hall, Room WCC 3008; Info: Lottie, 617-482-9600

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May 11, 2015 | Massachusetts Lawyers Weekly | 27

THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

SUPERIOR COURT Continued from page 24

a check for $10,000 by October 31, 2015 to DealerStock’s counsel, then the stipulated judgment would be deemed satisfied in full. Section 6 of the Settlement Agreement was titled ‘Future Lawsuits.’ Section 6(c) provided: ‘Natick Auto and Zouain will cooperate with DealerStock’s discovery efforts in determining where the disputed monies were lost. This includes, but is not limited to sharing corporate and personal financial records, and providing an Affidavit detailing what he did with the missing money and vehicles. Any documents provided by Natick Auto and Zouain shall be maintained as confidential.’ “The Settlement Agreement also included provisions to dismiss the pending litigation, mutual release of all claims, and a covenant by Mr. Zouain not to sue DealerStock. Other parts of the Settlement Agreement included various common boilerplate provisions, such as confidentiality, an integration clause, and a choice of law clause. “On December 9, 2014, Attorney Zakarian sent an email to Attorney Carter that read: ‘When we spoke yesterday, you said that your client had signed the agreements but made a few changes that you said I “would not care about.” I asked you to please send me copies of whatever he signed or tell me what these supposed changes are. Please do that TODAY so that we can get this finalized, report the settlement to the Court, and not have to proceed with tomorrow’s final pretrial conference.’ (Emphasis in original). Later that same day, Attorney Carter emailed Attorney Zakarian with a revised draft of the Settlement Agreement containing his changes, signed by Mr. Zouain. The defendants’ draft added a sentence to the end of Section 6(c) that read: ‘However, since Natick Auto and Zouain have no such records, DealerStock shall prepare any such Affidavit.’ “On December 10, 2014, the parties notified the court that they had settled the matter, and the court (Giles, J.) entered an order for entry of dismissal nisi as to all parties and claims in thirty days. … “DealerStock argues that the Settlement Agreement is unenforceable because the defendants changed a material term, and DealerStock never assented to the change. … “Here, the terms of the Settlement Agreement were clearly definite and had been reduced to writing in formal terms, complete with boilerplate and other standard language in DealerStock’s proposed draft. DealerStock contends that no agreement was reached between the parties because the defendants changed a material term in the Settlement Agreement before signing it. However, the parties reported to the court that they had reached a settlement, which strongly suggests that the parties did agree to all material terms. ... Presumably, Attorney Zakarian reviewed the proposed changes before notifying the court of the settlement and did not find them sufficiently objectionable at that time. “The only disputed term here is the added sentence to Section 6(c), which places the burden on DealerStock to prepare an affidavit, The single sentence does not appear to be a material term of the Settlement Agreement. In their opposition to DealerStock’s motion to vacate and request to confirm the Settlement Agreement, Mr. Zouain claims that ‘the changes made to the Settlement Agreement were only minor and not significant. ...’ As the defendants do not seem to think that the change constituted a material term, the court sees no reason to enforce it over DealerStock’s objections. Furthermore, if the defendants truly do not possess any records or information related to the missing funds, then the preparation of an affidavit is only a minor burden. Therefore, the court will strike the added sentence in Continued on page 29

DISTRICT COURT JUDGES’ ASSIGNMENTS: MAY 11 - 15

A complete list of assignments for all courts for the entire month can be found on our website, masslawyersweekly.com. (Click on the “Judges’ Assignments” bar on the left side of the page.) Following is a list of judicial assignments for some of the larger District Courts in Massachusetts for this week. C: Civil session; NRA: No Replacement Available; SA: Special Assignment (i.e. a case that will take all day); ES: Extra Session (judge is on call if extra session is needed); R2 Judge: Judge from Region II; R5 Judge: Judge from Region V. For further explanation about any of these codes, call the respective court or regional office that uses the code(s) MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY May 11 May 12 May 13 May 14 May 15 BARNSTABLE O’Neill Carpenter Carpenter O’Neill O’Neill Lynch Lynch Lynch Carpenter Carpenter Welch Lynch Julian BROCKTON Amrhein Bernard Amrhein Bernard Bernard Canavan Amrhein Canavan Amrhein Amrhein Hernon Canavan GoBourne GoBourne GoBourne Vitali GoBourne Moynahan Hernon Moynahan Hernon Moynahan Thomas Moynahan CAMBRIDGE Sragow Sragow Sragow Sragow Sragow Fitzpatrick Fitzpatrick Hogan Hogan Hogan Hogan Hogan Wexler (SA) Jennnings CHELSEA Nestor Nestor Nestor Nestor Livingston Livingston Livingston Livingston Leoney Patten Patten Patten Patten Livingston Wexler (SA) Wexler Wexler DEDHAM Pomarole Pomarole Clifford Pomarole Pomarole McGuinness Hogan Sullivan (p.m.) McGuinness McGuinness McGuinness McGuinness Ziemian FITCHBURG Guzman Loconto, C. Noonan Loconto, C. Loconto, C. Loconto, C. FITCHBURG JURY Sargent Guzman Guzman Guzman Guzman FRAMINGHAM Cunis Cunis Cunis Cunis Cunis LAWRENCE Rooney Broadbent Rooney Rooney Rooney Gaffney Rooney Gaffney Gaffney Caulo Brendemuehl Gaffney Sullivan Sullivan Sullivan Uhlarik Sullivan Uhlarik Uhlarik Uhlarik Broadbent Brendemuehl Broadbent Broadbent Broadbent Uhlarik LOWELL Brennan Brennan Brennan Brendemuehl Brennan Brooks Brooks Brooks Brennan Brooks Caulo Caulo Caulo Caulo Crane Crane Crane Crane Crane Fortes Stark Stark Fortes (SA) Pearson Pearson LYNN Conlon Conlon Conlon Conlon Conlon Campbell Campbell Campbell Campbell Campbell Flatley Flatley Fitzpatrick Flatley Fitzpatrick Lamothe Lamothe Flatley Lamothe Flatley Wexler Lamothe MALDEN Johnson Johnson Johnson Johnson Barnes Barnes Barnes Barnes Karstetter Paratore Paratore Paratore Paratore Paratore PEABODY Barretto Barretto Barretto Barretto Barretto Mori Mori Mori Mori Mori PLYMOUTH Minehan (a.m.) Minehan Minehan (a.m.) Minehan McGovern McGovern Gilligan Gilligan Gilligan Sullivan Sullivan McGovern McGovern McGovern Welch Sullivan Sullivan Sullivan QUINCY Coven Coven Heffernan (a.m.) Coven Coven Heffernan Heffernan Hernon Moriarty Heffernan Moriarty Moriarty Moriarty O’Dea Moriarty Ziemian O’Dea Vitali Ziemian Ziemian White (a.m.) SALEM Brennan Brennan Brennan (a.m.) Brennan Brennan Lauranzano Lauranzano Lauranzano Fitzpatrick Lauranzano Machera Machera Machera Lauranzano Machera Machera SOMERVILLE Flynn Flynn Flynn Flynn (a.m.) Flynn Leoney Leoney Jennings Yee Yee Leoney SPRINGFIELD Boyle Boyle Boyle Boyle Boyle Gordon Gordon Gordon Estes Gordon Murphy Groce Murphy Gordon Groce O’Grady Murphy O’Grady Murphy Murphy Poehler Poehler Poehler O’Grady O’Grady Rota Rota Rota Ross Poehler Smyth Shea Shea WALTHAM Flynn Flynn Flynn Flynn Flynn (a.m.) Hourihan Hourihan Hourihan Hourihan Hourihan WORCESTER BENCH/JURY Loconto, P. Loconto, P. Loconto, P. Loconto, P. Loconto, P. Despotopulos Despotopulos Despotopulos Despotopulos Despotopulos Allard-Madaus Allard-Madaus Allard-Madaus Allard-Madaus Allard-Madaus McGuiggan McGuiggan Ginsburg McGuiggan McGuiggan Pellegrini Ginsburg Pellegrini Ginsburg Ginsburg D’Angelo Pellegrini D’Angelo Pellegrini Pellegrini McGill McGill McGill D’Angelo McGill Harbour Harbour Harbour McGill

For other judges’ assignments: BMC, page 16; Land Court, page 24; Probate & Family Court, page 32

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28 | Massachusetts Lawyers Weekly | May 11, 2015

$3.2 million awarded over Planet Fitness deal Continued from page 1

— particularly sophisticated commercial parties — from misusing equitable claims as a means for shifting risks that were knowingly assumed in contracting.” Welsh also noted that his client has appealed to the 1st U.S. Circuit Court of Appeals. “We are confident that the First Circuit will apply these well-settled principles to our case,”he wrote. Planet Fitness sale According to court records, the original owners of Planet Fitness first approached AGC regarding the sale of their company in July 2012. During these preliminary discussions, the owners made clear that a sale had to be consummated before the end of the year before an expected increase in the capital gains tax. “For the owners of Planet Fitness, it meant a difference of millions of dollars in tax implications,” explained Rich. “A sale that typically would have been accomplished in 9-12 months had to be done in 4-5 months.” According to Rich, the fact that time was of the essence may go a long way towards explaining the conduct of the parties in general and his client in particular in the ensuing weeks. For example, AGC began contacting potential investors concerning the Planet Fitness sale on Aug. 1, 2012 — before a formal engagement letter was in place. The district court found that AGC contacted 20 potential investors even before the parties executed their engagement letter on Aug. 17. The engagement letter ultimately agreed to by the parties provided that AGC would

Verdict Report Action: Breach of contract, unjust enrichment and quantum meruit Damages alleged: Nonpayment of transaction fee Case name: America’s Growth Capital, LLC v. PFIP, LLC Court/case no.: U.S. District Court, No. 12-12088 receive a $50,000 retainer plus a transaction fee based on the ultimate sale price and identity of the buyer. The parties’ agreement included two schedules that listed potential buyers. For its fee, AGC would receive .75 percent of the sale price if a deal was reached with a buyer listed on the first schedule, and .5 percent of the sale price if the buyer came from the second schedule and the sale price exceeded $500 million. Under the terms of the engagement letter, for AGC to earn its transaction fee the ultimate buyer had to be on one of two lists of potential buyers appended to the agreement. The list of prospects could only be amended through the express consent of the members of the Planet Fitness management team. Soon after the parties executed their agreement, AGC for the first time identified TSG Consumer Partners — the ultimate buyer of Planet Fitness — as a potential suitor. By coincidence, members of Ropes & Gray’s San Francisco office were

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Judge: Judge Richard G. Stearns Amount: $2,525,000 in damages and $702,960 in prejudgment interest Date: March 18, 2015 Attorney: David H. Rich, Boston (for the plaintiff) TSG’s corporate counsel, while members of the firm’s Boston office served as Planet Fitness’s corporate counsel. Because TSG was not listed on the parties’ schedules of potential buyers, AGC immediately sought to amend those schedules to include TSG. Despite repeated requests from AGC, the schedules were never formally amended to include TSG. While the district court would later find that the general counsel for Planet Fitness gave AGC the “green light” to pursue TSG, the court also decided that the general counsel lacked either actual or apparent authority to amend the parties’ agreement to add TSG to one of the schedules. TSG submitted a bid of $470 million in late September. After being advised that another private equity firm solicited by AGC had submitted a bid of $500 million, TSG raised its bid to $505 million. The sale of Planet Fitness to TSG was finalized in November 2012. AGC demanded payment of $3,550,000 as a transaction fee for its services in the sale of Planet Fitness, but Planet Fitness refused to pay anything above the $50,000 retainer. AGC sued in federal court for breach of contract, unjust enrichment and quantum meruit. “[Planet Fitness] tried to put forth evidence that TSG was already in their cross hairs in one form or fashion prior to AGC getting involved,” said Rich in explaining Planet Fitness’s litigation strategy. The court conducted a bench trial in July 2014 that focused primarily on the contract claim. Last December, Stearns issued his findings of fact and conclusions of law. The judge concluded that AGC could not recover under the parties’ contract because Planet Fitness’s management team had not amended the schedules to add TSG as a prospect. Stearns requested additional briefing on equitable remedies. In an electronic order entered Feb. 27, Stearns ruled that AGC was entitled to equitable relief. The judge concluded that “Planet Fitness was aware at all times of AGC’s efforts in recruiting TSG as a bidder and did or said nothing that would have led AGC to believe that its efforts in this regard were gratuitous or unwanted. In other words, the facts of this case present a classic example of circ*mstances in which an award of quantum meruit is warranted.” On March 18, Stearns entered a final judgment awarding AGC $2,525,000 in damages and $702,960 in prejudgment interest. Assumed risk? Rich disagrees with the defense’s argument that his client assumed the risk of not getting paid by proceeding to perform under the contract without demanding an amendment adding TSG to one of the lists of approved suitors. “AGC was really literally running at a speed that was unprecedented to get this deal done,” said Rich. “They assumed the paperwork would catch up with the work that was being done. Planet Fitness knew that AGC wasn’t doing this as some sort of pro bono effort.”

According to Rich, there’s no question that his client should be able to recover on its unjust enrichment and quantum meruit claims. “That’s what these equitable theories are designed to do, to prevent one party from being enriched at the expense of another and to ensure that, when valuable services are rendered, they’re compensated,” he said. Euripides D. Dalmanieras of Foley Hoag in Boston suggested that Planet Fitness may have placed itself at risk by not being clear from the outset about the status of TSG. “You really have to be assertive in protecting your rights, particularly when you know the other side is spending time and money for your benefit,” said Dalmanieras, who chairs the Massachusetts Bar Association’s business law section. “If Planet Fitness wanted to avoid the result, it was probably incumbent on them to tell AGC even sooner than they did, ‘Thanks for your efforts, but this wasn’t part of the deal. We’re not going to pay you for TSG.’” Dalmanieras acknowledged that this was a close case that could be overturned

“Planet Fitness accepted these services knowing that they weren’t gratuitous or unwanted, they in fact directed, encouraged and accepted the work, and they benefited from the work.” — David H. Rich, Boston on appeal because of the engagement letter governing the parties’ relationship. “The 1st Circuit could say [to the plaintiff], ‘Look, you had an engagement letter squarely on point and you did work outside the engagement letter,’” said Dalmanieras. “But it’s a fact-specific case and getting findings of fact overturned on appeal is always an uphill battle.” ‘Textbook’ case Professor Jeff Lipshaw teaches contracts and business law at Suffolk University Law School. Lipshaw called the district court’s decision “remarkably admirable” and “technically sound.” Yet Lipshaw agreed it was a close call for Stearns to make. “He could have said that these are big boys, that they should have taken care of it themselves, or he could have found that one side was unjustly enriched and the other side ought to be compensated for it,” said Lipshaw. “On that, reasonable minds can differ.” Lipshaw suggested that, in the end, Stearns ruled the way he did in order to prevent Planet Fitness from realizing a windfall. Concord commercial litigator Lee M. Holland applauded Stearns’ ruling, predicting it would become a “textbook case” on unjust enrichment. Holland found most troubling evidence that Planet Fitness officials sometimes failed to respond to emails from AGC’s CEO, Ben Howe, as he tried to have the status of TSG clarifiedÅ. “He’s literally the last guy to find out that he’s working for free,” said Holland. “That’s not reasonable meeting of minds, that’s purposefully obfuscating the material information necessary for your counterpart to understand how they truly stand with you.” MLW

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May 11, 2015 | Massachusetts Lawyers Weekly | 29

Decisions signal expansion of arbitration rights Continued from page 1

and be directly intertwined with that agreement, rendering arbitration appropriate,” Justice Robert J. Cordy wrote for a unanimous court. “Essentially, if a party’s claims are so intimately founded in and closely related to an agreement which also mandates arbitration, the party opposing arbitration is equitably estopped from denying the arbitrability of its claims, even against a nonsignatory.” The decisions implicate several practice areas where arbitration agreements are common, including class action, personal injury, construction and employment law. While some lawyers say the decisions are consistent with federal law and previous Massachusetts rulings, others worry they inappropriately broaden the circ*mstances by which litigants can be bounced from court against their wishes. Prior guidance Appellate guidance on the issue of whether non-signatories to arbitration agreements can force signatories to arbitrate had been scarce in Massachusetts. For years, however, lawyers have had the next best thing: a 2007 decision by then-Superior Court Judge Ralph D. Gants, who since has become chief justice of the SJC. In Vassalluzzo v. Ernst & Young LLP, et al., Gants ruled that a law firm that performed work for an accountant could not enforce an arbitration clause contained in an agreement between the accountant and a third party, the plaintiff. The plaintiff had hired Ernst & Young to perform tax shelter transactions. Ernst & Young, in turn, hired Sidley Austin to provide an opinion letter to attest to the lawfulness of the proposed tax shelter. After the plaintiff was audited by the IRS and forced to pay nearly $7 million in taxes, penalties and interest, the plaintiff sued Ernst & Young and Sidley Austin. The plaintiff had executed an engagement letter with Ernst & Young that included an arbitration clause, but Sidley Austin was not a signatory to it. The law firm nonetheless claimed to be entitled to compel arbitration under the doctrine of equitable estoppel. In ruling against the firm, Gants observed that although a surprisingly large number of federal courts had applied the doctrine of equitable estoppel to these types of disputes, no reported cases in Massachusetts had ever addressed the issue. “By relying on this doctrine, [the firm] essentially is contending that it would be unfair for [the plaintiff], having agreed with Ernst & Young to arbitrate disputes arising out of the 2001 ECS transactions, to be allowed to litigate its related dispute with Sidley Austin arising from these same

transactions,” the judge said. Under the “broad approach” adopted in some jurisdictions, Gants noted, a non-signatory to an arbitration agreement may compel a signatory to that agreement to arbitrate a dispute “where a careful review of the ‘relationship among the parties, the contracts they signed …, and the issues that had arisen’ among them discloses that ‘the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.’” The “narrow approach,” he continued, focuses on whether a signatory plaintiff would have an independent right to recover against the non-signatory defendant even if the contract containing the arbitration clause were void. “If this Court were to adopt the ‘narrow approach,’” Gants reasoned, “then equitable estoppel plainly should not be applied, because [the plaintiff] would have an independent right to recover against Sidley Austin even if the Engagement Letter were void or had never been written.” Gants chose the narrow option. “This Court is confident that Massachusetts law will adopt the ‘narrow approach’ to equitable estoppel, because this is the approach most consistent with the doctrine,” he said. Change of heart? Kaplan reached the opposite conclusion in TIBCO and allowed a nonsignatory to compel arbitration, so some lawyers were surprised to see the judge citing Gants’ 2007 decision in Vassalluzzo, which would seem to require that the motion to compel arbitration be denied as it applied to Zephyr. After taking a closer look, however, Boston business litigator John R. Bauer concluded that the decision is in fact consistent with the “narrow approach” espoused by Gants. “The difference seems to be that the claim asserted by TIBCO, a signatory, is that Zephyr, a non-signatory, tortuously interfered with the contract containing an arbitration provision,” the Birnbaum & Godkin lawyer explained. “Whereas, [in Vassalluzzo,] the claim against Sidley Austin did not arise out of the engagement letter” containing the arbitration agreement. But while he believes TIBCO is consistent with Vassalluzzo, Bauer ironically can’t say the same about the SJC’s decision in Machado, in which he believes the justices, including Gants, embraced the “broad approach” previously rejected by the judge. “What’s frustrating about it in my mind is the SJC does not even reference Judge Gants’ decision spelling out the broad and narrow approaches. Quite frankly, it adopts a position at odds,” Bauer said. “Under Judge

Gants’ test in the 2007 case, the Wage Act claim against the [non-signatory] defendant would go forward even if the franchise agreement was voided … and the non-signatory could not compel the signatory to arbitrate. But that’s not what happens, and the court pretty strongly adopts the broad approach. [Gants] didn’t concur. He doesn’t dissent. So it appears he changed his mind.” Bauer said Machado is the first appellate decision in Massachusetts to determine whether equitable estoppel can be applied to compel a signatory to arbitrate a claim against a non-signatory. As such, it establishes the test going forward, and Bauer said it stands for the notion that a non-signatory defendant can compel arbitration so long as a claim is “intertwined” with the contract in some way. “That’s broad,” he said.

“I am just flabbergasted frankly by the lengths courts are going to these days to enforce arbitration agreements.” — Shannon Liss-Riordan, Boston Now what? Boston construction lawyer Stanley A. Martin disagrees with Bauer’s interpretation and sees no conflict between Machado and Vassalluzzo because, he says, the claims in Machado did not merely “intertwine” with the franchise agreement containing an arbitration clause, but necessarily relied on it. “I think it’s certainly consistent with what Gants said because what they are saying is that these individuals wouldn’t really have a case against the [master franchisor] in the absence of the agreement including the arbitration clause,” the Duane Morris lawyer said. “I also think it is consistent with what we have seen generally from [recent] Supreme Court cases, which is a gradual erosion of what many state courts had held were exceptions to arbitration clauses. … I view it as an evolution, or a strengthening, of arbitration rights generally.” Boston class action litigator Shannon Liss-Riordan represented the plaintiffs in Machado. She thinks strengthening arbitration rights is a bad move because companies are increasingly using arbitration as a “get out of jail free card,” assuming

individual plaintiffs won’t have the wherewithal to arbitrate their claims separately. “I am just flabbergasted frankly by the lengths courts are going to these days to enforce arbitration agreements,” the Lichten & Liss-Riordan lawyer said. “The Supreme Court has said that … arbitration agreements should be on the same footing as all other contracts, but what I’m seeing is courts are enshrining arbitration agreements on a throne and … they are being elevated to a level above other contracts.” Employment lawyer David G. Gabor of The Wagner Law Group in Boston doesn’t dispute that there is a nationwide trend of companies avoiding class action litigation by including arbitration clauses in contracts and employment agreements, or that some courts prefer sending cases to arbitration “as an economical way to resolve issues for parties and the court system.” But Gabor doesn’t believe Massachusetts judges are going to start rubber-stamping motions to compel arbitration in Machado’s wake. He said there may still be “socially compelling reasons” to keep some cases in the courtroom, and he thinks that might have played a role Gants’ Vassalluzzo decision, since it involved claims implicating the lawyer-client relationship. In such a context, Gabor said a court’s responsibility to ensure a fair process is heightened. As Gants himself wrote in the 2007 decision, “There is nothing equitable about requiring a client, without the client’s informed consent, to waive his right to a jury trial and his access to the judicial system when he prosecutes a malpractice claim against his attorney.” While frustrated with Machado, Bauer said the decision could help to deter at least one commonly seen abuse of the court system in trade secret and non-compete litigation: businesses who file suit just to get some insight, through discovery, into what’s going on with their competitors. Now, Bauer said, defendant employers dragged into a non-compete case for hiring someone and other non-signatories that would prefer arbitration as a way of avoiding discovery will almost certainly push for it. “Anytime you have multiple defendants in a case and one has an arbitration agreement with the plaintiff,” Bauer said, “you will see more filings of motions to compel arbitration.” Bauer said he expects some lawyers will push the envelope even farther to see whether any judges are willing to take the next step: allowing a signatory to an arbitration agreement to compel arbitration with a non-signatory. “I don’t know if it’s going to go that far,” he said, “but I would be surprised if a lawyer who loves arbitration doesn’t try it.” MLW

THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

SUPERIOR COURT Continued from page 27

Section 6(c) from the Settlement Agreement. … “DealerStock argues that it never made any statement affirming its acceptance of terms of the Settlement Agreement, and thus, Basis [Tech. Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29 (2008)] is distinguishable. … DealerStock is correct that it sent no reply similar to that of defense counsel in Basis. However, that is merely because in the present case, DealerStock was the party offering terms for approval, as was plaintiff ’s counsel in Basis. DealerStock sent the defendants an email asking ‘Please let me know if this is acceptable.’ DealerStock could hardly send an email affirming its own offer of settlement terms. The fact that the parties contemplated a later formal execution

of the Settlement Agreement does not preclude a finding that the parties intended to be bound. … “DealerStock also argues that the facts of Basis are distinguishable because that case settled after the trial had begun, which meant that the waste of judicial resources from reopening the case would have been significant, while this case had not yet proceeded to trial, lessening the waste of judicial resources. While certainly settlement after the commencement of trial greatly increases the potential waste, such considerations are not limited only to situations where the trial has begun. … Here, the parties were well into the litigation process and were readying for their final pretrial conference. “The court finds that the Settlement Agreement is enforceable because the material terms were sufficiently complete and definite, and the parties intended to be

bound by those terms. …” DealerStock, LLC v. Zouain, et al. (Lawyers Weekly No. 12-051-15) (4 pages) (Curran, J.) (Suffolk Superior Court) (Civil Action No. 13-CV-3854-B) (April 24, 2015).

Insurance

G.L.c. 93A - False claims Where defendants engaged in a scheme to obtain money from the plaintiff insurance company by means of false insurance claims, the plaintiff should be awarded treble damages ($447,411) plus counsel fees and costs ($163,614). “On May 27, 2014, summary judgment as to liability was entered by Superior Court Judge Francis A. McIntyre against defendants Hyde Park Collision Repair, Inc., One Stop Auto, Inc. and Muller Victor (collectively, the ‘Victor Defendants’). ... Defaults

had previously been entered against defendants Selwyn Tate, Christopher Roc, Sabina Lorthe, Fred Oliver, Park Avenue Automotive, Inc., Lunet Felix, and LaFortune Victor. … “Based upon the evidence supporting the preliminary relief entered by Judge Ball, the adverse inference that this Court draws against the defendants based upon the refusal of the Victor Defendants to answer deposition questions and written discovery and the refusal of other defendants to answer deposition questions, and the additional evidence supporting this motion, including affidavits of Kerri Sugrue, a GEICO employee and certified fraud examiner, and attorney David O. Brink, lead counsel for GEICO in this case, the Court finds that (1) all of the defendants remaining in the case engaged in knowing and willful violations Continued on page 30

www.masslawyersweekly.com | Cite this page 30 MLW 1427

30 | Massachusetts Lawyers Weekly | May 11, 2015

Appeals court orders hearing over jury issue Continued from page 2

be the employer of a juror in that case. The employer told Irizarry that his employee informed him that the jury declined to award the appellant any money damages because it knew she had been offered and rejected a $3.5 million settlement. The trial judge stated, “While there is no specific limit under Rule 60(b)(6), seeking relief eighteen months after final judgment pushes against reasonableness.” He went on to say that if “this material were sufficient to force a court to hold an evidentiary hearing, the court would be potentially required in any civil case to grant an evidentiary hearing following a jury verdict based on mere rumors, regardless of how much time had elapsed since judgment. Rule 60(b) is not satisfied that easily.” ‘Unusual circ*mstances’ Motions brought pursuant to Rule 60(b) (6) are subject to a “reasonable” time limit. The plaintiffs contended that the appropriate

CASE: Bouret-Echevarría, et al. v. Caribbean Aviation Maintenance Corp., et al., Lawyers Weekly No. 01-108-15

COURT: 1st U.S. Circuit Court of Appeals

ISSUE: Should a trial judge have held a hearing after plaintiffs were told that the jury improperly considered a confidential settlement offer before entering a verdict for the defendants in a products liability suit?

DECISION: Yes

time frame for the trial judge to evaluate was three months and 13 days — the period from when the plaintiffs first learned of the potential jury misconduct to the time they filed their Rule 60(b)(6) motion. “In failing to evaluate the appropriate time frame, and all that was done by appellants within that time frame to prepare to file the 60(b) motion, the district court committed

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a legal error,” Lipez stated. “In sum, during the period between when appellants first learned of the alleged misconduct and when they filed their Rule 60(b)(6) motion, appellants made diligent efforts to strengthen the basis for their motion.” The majority pointed out that relief under Rule 60(b)(6) requires a showing that exceptional circ*mstances justify

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SUPERIOR COURT Continued from page 29

of G.L.c. 93A, through repeated false and deceptive practices by submitting fraudulent insurance claims; (2) the loss resulting from the defendants’ G.L.c. 93A violations is $149,137; (3) treble damages and attorney’s fees are appropriate in this case due to the repeated and blatant nature of the defendants’ knowing and willful violations of G.L.c. 93A; and (4) the requested $163,614 amount of fees and expenses is reasonable, because the hourly rates are reasonable, the number of hours worked on the case is reasonable given the number of defendants and the complexity and duration of the case, and the requested fees are reasonable.” Government Employees Insurance Company, et al. v. Hyde Park Collision Repair, Inc., et al. (Lawyers Weekly No. 12-052-15) (4 pages) (Ullmann, J.) (Suffolk Superior Court) (Civil Action No. 2011-00824) (April 22, 2015).

Commercial

Trustee process attachment Payroll Where a defendant has moved to dissolve or modify two trustee process attachments of the defendant’s bank account, the motion must be denied because a statutory exception for payroll accounts is inapplicable. “… It is clear that while the defendant’s account at the Watertown Savings Bank may have been used to make payroll payments it was not designated as a payroll account as required by G.L.c. 246, §20 at the time of the two trustee process attachments.” U.S. Electrical Services, Inc. v. D.C. Kaufman Electrical, Inc. (Lawyers Weekly No. 12-053-15) (2 pages) (Henry, J.) (Middlesex Superior Court) David S. Katz for the plaintiff; Rhonda Boule, of Ferraro & Boule, for the defendant (C.A. No. 14-829) (April 28, 2015).

LAND COURT

Editor’s note: The full text of these decisions can be ordered at lwopinions.com.

Real property

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extraordinary relief. “If that allegation of juror awareness of the confidential settlement offer is true, it is an exceptional circ*mstance that might justify the extraordinary relief of vacating the finality of a judgment,” Lipez said. “If the jury knew of the settlement offer when it rejected appellants’ case, we cannot say that a retrial without that proscribed information would be an empty exercise.” The majority noted that there was only a “rumor” that juror misconduct in fact occurred. “Ordinarily, the district court would be right that such rumors, despite the concerns that they engendered in Morales and Irizarry, would not justify an evidentiary hearing,” Lipez said. “Here, however, the district court failed to appreciate the critical fact that appellants could not obtain fact-specific statements beyond the reports of Morales and Irizarry in requesting an evidentiary hearing.” MLW

Easem*nt - Parking Condominium Where condominium trustees granted an exclusive parking easem*nt over a

cul-de-sac located in front of a commercial unit, the easem*nt must be declared void because of a lack of unanimous consent of the other unit owners. “This case concerns the Thomas Graves Landing Condominium, a 167 unit condominium located at 4-6 Canal Park in Cambridge, near the Galleria Mall. 166 of the units are residential and one unit, designated Unit C-1 and currently owned by defendants Paul and Sheila Gargano, is commercial. The special permit issued to build the condominium contemplated that the commercial unit would be used as retail or restaurant space. After the condominium was built, the developer encountered financial difficulty and several of the residential units and Unit C-1 eventually came to be owned by the Federal Deposit Insurance Corporation (FDIC), which put them into an REO (‘real estate owned’) division called Barnside Realty Corp. In 1993, in an effort to make Unit C-1 more attractive to a potential buyer, the plaintiffs, the Trustees of the Thomas Graves Landing Condominium Trust (the Trustees), granted Barnside an exclusive parking easem*nt over a culde-sac located in front of Unit C-l. Barnside then obtained an amendment to the condominium’s special permit to allow Unit C-l to be marketed as office space. Shortly after the special permit was amended, the FDIC sold Unit C-l to the Garganos in 1994, and Mr. Gargano used the space for his law office. “From 1994 to 2006, Mr. Gargano, his employees, and clients parked their cars in the parking easem*nt during business hours and on nights and weekends allowed condominium unit owners and their guests to park in the easem*nt. But this arrangement eventually deteriorated. The Trustees accused Mr. Gargano of using the condominium association’s gas to heat his law office without paying for it and filed a lawsuit against him. The Garganos subsequently terminated the parking arrangement after complaining that unit owners and their guests interfered with the operation of Mr. Gargano’s law practice by leaving their cars in the easem*nt during business hours. The Trustees then filed this lawsuit to declare the easem*nt they executed void, contending that they improperly granted it to the Garganos’ predecessor, the FDIC, in 1993. “… Based on the testimony and exhibits admitted into evidence at trial, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find for the Trustees and declare their grant of an exclusive parking easem*nt appurtenant to Continued on page 32

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LAND COURT

Zoning

classification of streets ‘in all doubtful cases’ is impermissibly vague, and that the Board erred in relying on this provision in the Decision to Subdivision Street Continued from page 30 Where the Dartmouth planning board de- deny the Amended Definitive Plan because it Unit C-1 VOID. … nied approval for a subdivision because the did not meet the standards for a commercial “G.L.c. 183A, §5(b), as it existed in proposed subdivision street did not comply street. Section 3.303(a) is not so vague that the 1993, provided ‘[t]he percentage of the with commercial standards, the board did not Board could rule based on reasons not menundivided interest of each unit owner in tioned in the Subdivision Regulations. Section act arbitrarily or capriciously. the common areas and facilities as ex“Heritage Wharf, LLC (Heritage) sought to 3.303(a) requires that subdivision streets ‘be pressed in the master deed shall not be alsubdivide a parcel in Dartmouth that sits on classified for the purpose of establishing the tered without the consent of all unit ownApponagansett Bay in what was then a Limited applicable design and construction standards’ ers whose percentage of the undivided inBusiness District under Dartmouth’s Zoning for the streets. Subdivision Regs. §3.303(a). terest is affected, expressed in an amended By-Law. Heritage wanted to use at least one of Section 3.303(a) then sets forth thorough and master deed duly recorded.’ The Trustees the new subdivision lots for up to two residen- detailed definitions for each classification of now contend that under the statute, the tial units. During the preliminary plan review subdivision street-residential service street, exclusive parking easem*nt they grantand consideration of a definitive and amend- residential lane, commercial and industrial ed to the FDIC was invalid, and for suped definitive plan, the Dartmouth Planning service street, etc. … In cases where it is unport they cite to Kaplan v. Boudreaux, Board (Board) determined that the proposed clear under what classification the subdivision 410 Mass. 435 (1991) and Strauss v. Oyssubdivision street should be designed and built street should fall, the Subdivision Regulations ter River Condominium Trust, 417 Mass. to commercial standards. Because Heritage’s reserve to the Board some discretion to make 442 (1994), which interpret c. 183A, §5(b) amended definitive plan did not show such a that determination. Here, the classification of as it existed at the time of the easem*nt street, and Heritage did not seek any waivers, the proposed subdivision street in both the grant. … the Board denied approval. Heritage brought Preliminary Plan and the Amended Definitive “… I find and rule that Area B is comthis action pursuant to G.L.c. 41, §81BB, ap- Plan was ‘doubtful’ because the Property was in a Limited Business District under the Zonmon area under the terms of the Master pealing the denial. … Deed, and any alteration of the unit own“Heritage argues that the provision in ing By-Law, intended for commercial use, but §3.303(a) of the Subdivision Regulations the plans proposed to use one of the new lots ers’ percentage interest in Area B required that the Planning Board shall determine the on the Property for residential use. The Board’s unanimous unit owner consent, which decision to classify the subdivision street as a commercial and industrial service street rather than a residential lane or residential service street was not arbitrary and capricious, A complete list of assignments for all courts for the entire month can be found on our website, www.masslawyersweekly.com. (Click on the “Judges’ Asbecause it was faced with a plan with a mix of signments” bar on the left side of the page.) Following is a list of judicial assignments for the Probate & Family Courts in Massachusetts for this week. uses in a commercial zone and had to choose a street classification. The Board made a deter MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY mination based on the facts and circ*mstanc May 11 May 12 May 13 May 14 May 15 es at hand, which is a permissible exercise of BARNSTABLE Scandurra Scandurra Scandurra (a.m.) Judicial Conference its discretion. ... Once it made its permissible Ryley Ryley Ryley determination that the subdivision street was BERKSHIRE Simons Simons Simons (a.m.) Judicial Conference a commercial and industrial connector street, Dacyczyn Dacyczyn the Board was entitled to require the Amended Definitive Plan to show a street conforming to BRISTOL that standard. … New Bedford McMahon Smola Nesi Judicial Conference “Heritage argues that the Board conditioned Fall River McMahon McMahon approval of the Preliminary Plan on conditions Smola it knew Heritage could not meet. Whether the Taunton Nesi Nesi Field Judicial Conference Board conditioned the approval of the Prelim Field Field inary Plan on impossible conditions is irreleDUKES Kagan Kagan vant. A party cannot appeal the denial of a preESSEX liminary plan under G.L.c. 41, §81BB. … Salem Bisenius Sahagian Sahagian (a.m.) Judicial “Heritage also argues that the Board denied Giordano Bisenius Bisenius Conference the Amended Definitive Plan because that plan Kaplan Giordano Giordano did not meet conditions that were impossible Kaplan Kaplan to comply with. These conditions were the speFRANKLIN Crawford Crawford Crawford (a.m.) Judicial Conference cific requirements for commercial and indusHAMPDEN Geoffrion Geoffrion Geoffrion (a.m.) Judicial Conference trial service streets, including minimum ROW, German German German minimum pavement width, curve within 150’ Hyland Hyland Hyland of an intersection, and a median island. Her Rainaud Rainaud Sacks itage argues that the size and configuration Sacks Sacks of the Property made it impossible to show a HAMPSHIRE Fidnick Fidnick (a.m.) Judicial Conference street on the Amended Definitive Plan that Rainaud complied with those conditions. MIDDLESEX “This argument misconstrues the impossiCambridge St. Donnelly Donnelly Roberts Judicial Conference ble conditions doctrine. It is unreasonable for Christopher Christopher Christopher a planning board to condition the approval of Gibson Gibson Gibson a subdivision on things entirely beyond the ap McSweeny McSweeny McSweeny plicant’s power. … It is not unreasonable to reThird St. Connelly Gorman Connelly Judicial Conference quire an applicant to comply with local zoning Gorman Monks Gorman bylaws and subdivision regulations. ... All zon Monks Monks ing bylaws and subdivision regulations place Marlborough Connelly Donnelly Judicial Conference limits and conditions on the use of land, and NORFOLK Casey Casey Jacobs Judicial Conference are based on the principle that the land can Jacobs Jacobs Menno not be used for any particular purpose if the Menno Menno Phelan limits and conditions on that use are not met. Phelan Phelan Ulwick Here, the Board was merely requiring Heritage Ulwick Ulwick to comply with the conditions for a commerPLYMOUTH cial and industrial connector street. It was not Brockton Sabaitis Sabaitis Sabaitis Judicial conditioning approval on something that was Conference beyond Heritage’s power. Heritage could have Boyle Boyle Boyle taken down a building in order to fit the com Roberts Roberts (a.m.) mercial street, revised its plans for the ProperPlymouth Stanton Stanton Stanton Judicial Conference ty, or sought waivers from strict compliance SUFFOLK Armstrong Armstrong Armstrong Judicial Conference with the commercial standards. That it chose Dunn Dunn Dunn not to do so does not make the Board’s reason Moriarty Moriarty Moriarty able application of the commercial and indus Ross Ross Ross trial connector street standard an unreason Ward Ward Ward able condition. … WORCESTER “… Nothing in the record indicates that the Worcester Meagher Meagher Meagher Judicial Conference Board abused its discretion in not granting Bailey Bailey Bailey waivers, due in no small part to the fact that DiLeo DiLeo DiLeo Heritage explicitly stated that it was not re Keamy Keamy Keamy questing any waivers in the Amended Defini Roach Roach Roach tive Plan. The Board cannot be blamed for taking Heritage at its word.” For other judges’ assignments: BMC, page 16; Land Court, page 24; District Court, page 27 Heritage Wharf, LLC v, Miller, et al. (Lawyers was never obtained. … “The Garganos contend they meet an exception described in Strauss from unanimous unit owner approval for a ‘specific, minor accessory use of the abutting common area.’ … Here, the parking easem*nt is hardly a minor intrusion into the condominium’s common area. It is a 3,412 square foot area with parking for 10 cars. This is not within a range that courts have considered to be a de minimis encroachment. … “The Garganos next contend that the Trustees, having let twelve years pass before bringing this suit, should be barred from contesting the easem*nt’s validity by the doctrine of laches. … But because the Trustees’ easem*nt to the FDIC was null and void for failing to obtain the required unit owner consent, the FDIC could not grant the Garganos more than it had, and the Garganos cannot use laches to acquire rights they never possessed. …” Trustees of the Thomas Graves Landing Condominium Trust, et al. v. Gargano, et al. (Lawyers Weekly No. 14-01715) (15 pages) (Long, J.) (Middlesex Land Court) (Case No. 06 Misc. 334595) (March 2, 2015).

PROBATE & FAMILY COURT JUDGES’ ASSIGNMENTS: MAY 11 – 15

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May 11, 2015 | Massachusetts Lawyers Weekly | 33

Med-mal claim wrongly dismissed by tribunal Continued from page 1

No. 11-041-15. The full text of the ruling can be found at masslawyersweekly.com. ‘In line with the law’ Plaintiff ’s counsel Robert M. Higgins of Lubin & Meyer in Boston was unavailable for comment, while defense counsel Allyson N. Hammerstedt of Foster & Eldridge in Cambridge declined comment. However, Jeffrey N. Catalano of Todd & Weld in Boston, who represents plaintiffs in med-mal cases, described the decision as being “in line with the law” and with “common sense and patient safety.” A doctor shouldn’t be able to avoid responsibility for negligent treatment based on a patient’s subsequent delay in following up on her condition when the physician fails to give the patient critical information to make an informed decision in the first place, he said. “Moreover, patient safety depends upon the physician doing his job correctly the first time,” Catalano continued. “Negligently kicking the can down the road and then blaming the patient for not picking it up is unfair as well as dangerous.” David M. Gould of Ficksman & Conley in Boston, who defends physicians in malpractice and disciplinary cases, called the result “absolutely predictable” given the fact that plaintiffs merely need to overcome a directed verdict standard to get past a medical-malpractice tribunal. “The decision shows that courts are going to allow plaintiffs to get by the tribunal if they have any evidence on standard of care and causation,” said Gould. “The argument made by the defendant here was a very good and creative one, but it’s more apt for trial [on the issues of comparative negligence and damages] than tribunal because the standard of proof is so low [at a tribunal].” Gould said that the most interesting part of this case was a footnote in which the Eric T. Berkman, an attorney and formerly a reporter for Massachusetts Lawyers Weekly, is a freelance writer.

CASE: Goudreault v. Nine, Lawyers Weekly No. 11-041-15

COURT: Appeals Court

ISSUE: Could a breast cancer victim sue a radiologist for allegedly misreading her mammogram results and failing to order tests that could have led to a more timely diagnosis even though she didn’t follow his instructions to get another mammogram in six months?

DECISION: Yes, because she still presented sufficient proof that the doctor’s alleged deviation from the standard of care led to a delayed diagnosis that diminished her chance to recover

panel compared the case to the Supreme Judicial Court’s 2008 Matsuyama v. Birnbaum decision. In that case, the SJC recognized a patient’s ability to recover damages for “loss of chance” in the wrongful death context where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a better medical outcome. “I’m wondering if the Appeals Court is signaling here that they’re going to extend the ‘loss of chance’ doctrine [beyond wrongful death] if it’s presented to them in future cases,” Gould said. “This would expand potential liability for providers.” Delayed diagnosis On July 26, 2010, plaintiff Barbara Goudreault went to Anna Jaques Hospital in Newburyport for a routine screening mammogram. The reporting doctor noted an abnormal result with a mass in the left upper outer breast. Following the physician’s recommendation, Goudreault returned four days later for diagnostic mammograms and ultrasound. At that point, the doctor determined the abnormality was “probably benign” and recommended that Goudreault return for a follow-up mammogram in six months. Gouldreault returned as instructed on Feb. 7, 2011. Radiologist Erik Nine, the defendant, read her mammogram results and reported that there was “no evidence of a new dominant mass” and that previously

reported calcifications within the left upper outer quadrant hadn’t changed in size, number or appearance and were “likely benign.” The defendant didn’t recommend any further tests, such as a biopsy or an MRI, but instead recommended another sixmonth follow-up examination. Goudreault never attended the sixmonth follow-up despite the hospital’s efforts to reach out and remind her of the appointment. On Feb. 13, 2012, Goudreault finally returned for a follow-up diagnostic mammogram, nearly 7 months after Nine had instructed her to do so. The radiologist who examined the result this time reported that the mass in her left breast was “highly suspicious for malignancy.” Further tests revealed breast cancer that had spread to her lymph nodes, and in May 2012 Goudreault underwent a mastectomy followed by chemotherapy. Goudreault subsequently brought a medmal claim against Nine, alleging that his negligent reading of the February 2011 mammogram and failure to order follow-up testing resulted in a delayed diagnosis and substantially worse prognosis. Despite expert testimony from both a radiologist and an oncologist that Nine’s deviation from the standard of care led to a delayed diagnosis and loss of chance of cure, a med-mal tribunal dismissed the claim,

finding an insufficient showing of causation in light of the plaintiff ’s own failure to show up for the six-month follow-up visit that Nine had recommended. Goudreault appealed. Sufficient offering of proof The Appeals Court rejected the defendant’s argument that the plaintiff ’s proof of causation was deficient absent a specific showing of the impact of the six-month delay caused by his alleged deviation from the standard of care as opposed to the 13-month delay the plaintiff ’s experts addressed. Both doctors testified that had Nine made the appropriate diagnosis on Feb. 7, 2011 and ordered the appropriate tests, Goudreault would have benefited from a cancer diagnosis as early as that month, when the cancer would be in an earlier state and more amenable to cure. “These expert opinions, along with the relevant medical records, satisfied Goudreault’s obligation to make an offer of proof to the tribunal that establishes the existence of both medical negligence and causation,” said Agnes. The court conceded that Nine’s conduct wasn’t the sole cause of the 13-month delay. “[But] this does not diminish the sufficiency of Goudreault’s offer of proof,” Agnes stated. “Based on the opinions of Goudreault’s experts, Dr. Nine violated the standard of care he owed to her when he failed to order further diagnostic tests immediately at her February 7, 2011 exam — tests that would have detected the cancer at the time.” Because it’s reasonably foreseeable that a patient who’s wrongly informed that her condition hasn’t changed might delay seeking a routine follow-up examination in a timely manner, the Appeals Court concluded, the plaintiff presented sufficient proof of causation to raise a legitimate question of liability that the tribunal should have recognized. Accordingly, the court ordered that a new tribunal finding be entered in Goudreault’s favor. MLW

THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

LAND COURT Weekly No. 14-018-15) (17 pages) (Foster, J.) (Bristol Land Court) (Docket No. 07 MISC 345855) (March 2, 2015).

Mortgages Invalidity

Where a defendant executed a mortgage while acting under her mother’s power of attorney, the mortgage must be declared void because the defendant’s mother was dead by the time the mortgage was executed. “Plaintiff US Bank N.A., as successor trustee of the Washington Mutual Mortgage PassThrough Certificates WMALT Series 20066 Trust (hereafter, ‘the Trust’), is the current holder by assignment of an April 3, 2006 mortgage to American Brokers Conduit, purporting to be on the property at 306 Marshall Street in Paxton. That mortgage, as well as a junior mortgage now allegedly held by defendant Homeward Residential Inc., was granted in the name of Joan Raymond at a closing she did not attend and whose documents she did not sign. Instead, the closing proceeded using her purported power of attorney, and the funds from the loans associated with those mortgages ($384,013.38), plus a small amount of cash ($2,614.11), were used to (1) obtain a deed from the seller (Time Financial LLC) with Ms. Raymond as grantee, (2) pay off the seller’s two existing mortgages and a series of commissions and charges, and (3) net the seller a substantial profit.

“Defendant Kathleen Whitenett is Ms. Raymond’s daughter and the person who signed the documents in Ms. Raymond’s name citing the power of attorney. … “After initially seeking equitable subrogation to the mortgages that were paid from the proceeds of its loan, and perhaps in recognition of the hurdles such subrogation would face, the Trust has now changed its theory and seeks to void its mortgage entirely, claiming that its ‘borrower’, Ms. Raymond, had no title to the property and thus could not grant a mortgage or transfer an interest to anyone. ... The Trust presently takes this position because, in the interim, it has obtained a deed directly from Time Financial. The validity of that deed is not at issue in this lawsuit — only the Raymond-related instruments and the relief that should be granted if they are invalidated. “As previously noted, defendant Kathleen Whitenett is Ms. Raymond’s daughter and, prior to the April 3, 2006 closing, the seller’s tenant at the property. She was the person purportedly authorized by the Raymond power of attorney to act on Ms. Raymond’s behalf, and signed the papers in that capacity at the closing. She did so, she said, only because she was instructed to do so by the lawyers, and only after telling them that her mother was dead. She and her family have continued to live at the property post-closing. They are currently paying nothing towards the mortgage obligations, and have no records to indicate they have ever made such payments. On an estoppel-based theory which she concedes has no precedent, Ms. Whitenett wants the ‘Raymond’ conveyance and mortgages declared valid and

effective — the result of which would be to put the property, in part, in her name (she is one of her mother’s four children and heirs) and, since the mortgages are years in default and she lacks the means to pay them, putting their resolution into a bankruptcy proceeding she would immediately file. … “The facts in this case may be complicated, but the essential fact and the law applicable to that fact are not. The mortgage to the Trust is invalid because Ms. Raymond never had an interest in the property to encumber. A valid conveyance of property has two elements: delivery by the grantor and acceptance by the grantee. … The deed from Time Financial to Ms. Raymond failed both tests. Ms. Raymond was dead at the time of the April 3, 2006 conveyance, and she never assented to such delivery in any event. … “For any ‘ratification’ to take place, the principal must have known of the transaction. ... Here, Ms. Raymond had no such knowledge. “The estoppel theory is premised on an argument that the Trust intended a mortgage on the property, received payments on that mortgage, and thus cannot repudiate it now. It too fails, for a number of reasons. First, there was no evidence that the Trust actually received any payments on the mortgage. Second, the loan and mortgage were intended for Ms. Raymond, not Ms. Whitenett or Ms. Raymond’s other heirs. Third, estoppel is an equitable remedy and depends upon the ‘clean hands’ of the party asserting it. … As noted above, although not the prime driver in the underlying events, Ms. Whitenett was not an innocent bystander. Her story that her first knowledge of the

transaction came when she was called by the attorneys to attend the closing and, once there, simply signed the papers they put in front of her, is not believable. No rational person signs papers of such consequence on nothing more than a stranger’s request. Moreover, it skips over the fact that Ms. Whitenett had signed her mother’s name to a deed to the property some days before, showing at least some degree of knowledge arid involvement. Fourth, something cannot be created out of nothing. For a mortgage to exist, the grantor must have had an interest to mortgage. Ms. Raymond never had any such interest, and thus any mortgage with her as grantor could never validly exist. …” US Bank N.A. v. Whitenett, et al. (Lawyers Weekly No. 14-019-15) (12 pages) (Long, J.) (Worcester Land Court) (Case No. 08 Misc. 378302) (March 3, 2015)

APPELLATE TAX BOARD

Editor’s note: The full text of these decisions can be ordered at lwopinions.com.

Taxation

Comparables - Arm’s-length transactions Where a Holyoke landowner failed to (1) identify key differences between the subject property and his sales-comparison Continued on page 34

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APPELLATE TAX BOARD Continued from page 33

properties, (2) adjust for those differences to produce meaningful evidence of fair cash value and (3) consult with sources to confirm that the sales were made at arm’s length, the landowner failed to demonstrate that the assessed value of the subject property exceeded its fair cash value for the fiscal year at issue. “ … With respect to the appellant’s evidence consisting of purportedly comparable sales, while the appellant testified that the subject property lacked updates, he failed to identify key differences between the subject property and his sales-comparison properties, and he further failed to adjust for those differences to produce meaningful evidence of fair cash value. One key difference for which the appellant failed to account was that none of his purportedly comparable properties was located in the subject property’s W3 neighborhood, which the appellee testified, and the Presiding Commissioner found, was the highest-ranking and therefore highest-valued neighborhood in Holyoke. Therefore, the Presiding Commissioner found that the appellant’s analysis lacked persuasive value. “Moreover, when, as here, doubt has been cast on whether certain transactions relied upon by the appellant were at arm’s-length, the appellant’s failure to consult sources to confirm the circ*mstances surrounding the transactions led the Presiding Commissioner to conclude that the sales could not be relied upon to provide credible probative evidence of the subject property’s fair cash value. “The Board thus found and ruled that the appellant failed to meet his burden of proving a fair market value for the subject property that was less than its assessed value for the fiscal year at issue. Accordingly, the Presiding Commissioner issued a single-member decision for the appellee.” Weber v. Board of Assessors of the City of Holyoke (Lawyers Weekly No. 20-004-15) (12 pages) (Commissioner Chmielinski heard the appeals and issued a single-member decision) (ATB) Bruce Weber, pro se; Anthony Dulude for the assessors (Docket No. F318592) (Feb. 25, 2015).

DEPARTMENT OF LABOR RELATIONS

Editor’s note: The full text of these decisions can be ordered at lwopinions.com.

Labor

Retaliation Where a teachers’ union appeals from the dismissal of its complaint alleging that the school committee violated state labor law by eliminating a union member’s position as Early Childhood Coordinator and constructively discharging her in retaliation for engaging in concerted, protected activity, there is no reason to disturb the Hearing Officer’s findings that (1) the school committee put forward a reasonable basis for eliminating the job and (2) the union failed to establish a prima facie case of retaliation. “On appeal, the Union contends that the Hearing Officer ignored substantial circ*mstantial evidence of anti-union animus indicating that [Superintendent Dale] Hanley eliminated [Ann] Vasey’s position in retaliation for the protected activities of requesting a salary stipend and filing a grievance. The Union’s argument centers on its contention that it was not until Vasey wrote a letter stating her belief that she was entitled to a stipend that Hanley spoke to her about teacher complaints Hanley had received earlier that fall about Vasey and the fact that Hanley ultimately removed those evaluation duties from

Vasey without making an effort to resolve the teachers’ complaints. In other words, the Union argues that after Vasey requested the stipend, Hanley used the preschool teachers’ complaints as a pretext to remove her evaluation duties. “The CERB disagrees that the Hearing Officer erred by not considering this evidence as proof of animus. First, in making this argument, the Union relies upon the fact that Hanley told Vasey at this meeting that she did not ‘like her style.’ The Union has not, however, identified anything in the record, and we find nothing, that indicates an underlying anti-union animus for that statement. Further, the Hearing Officer never made findings regarding that statement and we decline to draw inferences from it. “Second, Count I of the complaint does not allege that Vasey’s November 7, 2005 request for a stipend for the ECC position was protected concerted activity and there is no indication in the record that a grievance was filed concerning the stipend. Nor does the complaint allege that Hanley’s decision not to grant the ECC position a stipend and take away her evaluative duties were adverse actions or that the Employer took these actions in retaliation for Vasey’s stipend request. Accordingly, the Hearing Officer did not separately analyze whether Hanley’s decision to remove evaluation duties was improperly motivated. Without such analysis, we find no error in the Hearing Officer’s failure to treat the initial removal of Vasey’s evaluative duties as an expression of animus or hostility towards the Union or protected activity or otherwise suggestive of unlawful motivation. The mere fact that Hanley, who had only been superintendent since July 2005, decided several months after the school year began to alter how preschool teacher evaluations were performed, does not, standing alone, suggest that the decision was unlawfully motivated. This is particularly true where the facts show that Hanley received complaints from teachers about the evaluation process before making the decision and Vasey does not claim that the teachers’ original complaints were invalid or unlawfully motivated. … “We also affirm the Hearing Officer’s determination that the School Committee did not change Vasey’s schedule or place her on administrative leave in retaliation for engaging in protected concerted activity or for filing a prohibited practice charge. Having determined that these two events constituted ‘adverse actions’ under the applicable standard, the Hearing Officer considered whether the Union had established the fourth prong of the prima facie case, that the actions were motivated by an unlawful desire to penalize or discourage Vasey’s protected activity. He concluded that they were not. “On appeal, the Union contends that the Hearing Officer erred by not considering the timing of the protected activity in relation to the adverse action. However, as we previously noted in considering whether there was circ*mstantial evidence of unlawful animus, the Hearing Officer expressly considered the closeness in time between the actions and the May 11th grievance and participation in MUP-06-4762. In the absence of any other evidence of antipathy towards Vasey’s protected, concerted activities or other circ*mstantial evidence of unlawful motivation, the Hearing Officer declined to rely on timing alone to establish unlawful motivation. We find no flaws in this analysis. “Further, assuming that the Union had established a prima facie case, the Hearing Officer analyzed whether, under part two of the three-part shifting burden of proof set forth in in Trustees of Forbes Library, 384 Mass. 559, 565-566 (1981), the School Committee had presented legitimate reasons for taking the adverse actions. The Hearing Officer found that the School Committee had lawful reasons for its actions, and further concluded, under the last part of the test, that the Union had not provided evidence that ‘but for’ Vasey’s protected activities, the School Committee would not have changed Vasey’s schedule or placed

her on paid administrative leave.” In the Matter of: Southbridge School Committee and Southbridge Education Association (Lawyers Weekly No. 21-006-15) (23 pages) (Wittner, Chair; Neumeier and Freeman, Board Members) (DLR) Kimberly Rozak, of Mirick, O’Connell, for the school committee; Amy Laura Davidson for the Southbridge Education Association (Case Nos. MUP-06-4762 and MUP-07-5010) (Jan. 30, 2015).

Labor

Delegation Educational policy Where the Board of Higher Education argues that (1) the hearing officer erred by finding that the Board deliberately refused to implement the terms of an agreement with a union and (2) a clause that has been in the parties’ collective bargaining agreements since 1986 is an impermissible delegation of the statutory authority that G.L.c.15A, §22 grants the Board, the hearing officer correctly found that the Board unlawfully repudiated the agreement and that the contractual provision at issue does not unlawfully delegate the Board’s statutory authority to establish effective educational policy. “We uphold the Hearing Officer’s finding that the Board acted with the requisite deliberateness to establish a repudiation of Article XX, C(10). To show that it did not deliberately repudiate the Agreement, the Board cites testimony from various college administrators who tried, but ultimately failed, to comply with the Agreement. This argument misses the point. The Law requires actual compliance, not just good efforts and intentions. As detailed in the Hearing Officer’s Decision, evidence of deliberate action can be seen in the Board’s continuing failure to comply with Article XX, §C(10) in successive years. …

“The deliberateness of the Board’s conduct is evidenced by its serial violation of an Agreement that it had repeatedly promised to follow over the course of seven successive academic years. Moreover, the violation continued even though Dr. Ashley stated in her February 23, 2006 grievance decision that the colleges must ‘cease and desist’ from violating Article XX, §C(10) and required each college to reduce its improper reliance on part-time facility. Next, in the subsequent 2007 contract negotiations, the Board again agreed to include Article XX §C(10) in the parties’ Agreement, even after its attorney suggested that the provision was a ‘legal and contractual nullity.’ … “Notwithstanding these express commitments, for successive years the Board persisted in employing part-time faculty in numbers that exceeded the 15% requirement. Indeed, the number of adjunct-taught classes in multiple departments at numerous colleges indicates that the Board did not miss the 15% mark narrowly. … We therefore find that the record provides substantial evidence to support the Hearing Officer finding a repudiation of the contract provision at issue, in accordance with the Law. … “ … [H]ere, there is no evidence that the Board’s repudiation of Article XX, §C(10) was premised on a change to any educational policy affecting or underlying the agreed-upon balance of part-time instructors and full-time faculty that was negotiated by the Board and the Association. … Indeed, with respect to our understanding of the Board’s educational policy, we find it significant that the Board repeatedly maintained its obligation to abide by this provision. Dr. Ashley’s grievance decision is particularly noteworthy in that it contains no hint of a changed educational policy on the use of full-time and adjunct faculty. Rather, it reaffirms the Board’s commitment to the assignment limitations. By acknowledging that Continued on page 37

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DEPARTMENT OF LABOR RELATIONS Continued from page 34

the colleges must cease and desist from violating Article XX, §C(10), ‘without being expected to expend moneys they lack or to disrupt academic programs of importance to their students,’ Dr. Ashley, in effect, acknowledges that adherence to the Agreement does not require academic sacrifices, deficit spending or other steps that might be considered to be an alteration of the Board’s educational policies. This view of Article XX, §C(10) was reaffirmed yet again after the most recent Agreement was signed by the Employer as indicated by Dr. Antonucci’s September 11, 2007 promise that the ‘Colleges will continue to implement the grievance decision that Janelle Ashley rendered on February 23, 2006.’ “Additionally, nothing in the evidentiary record indicates that the Board’s original agreement to the 15% assignment limitation was inconsistent with its educational goals, including the optimization of the delivery of educational programs and services. …” In the Matter of: Board of Higher Education and Massachusetts State College Association/MTA/NEA (Lawyers Weekly No. 21-00815) (38 pages) (Neumeier and Freeman, Board Members) (DLR) James B. Cox, of Rubin and Rudman, for the Board of Higher Education;

Laurie R. Houle for the Massachusetts State College Association/MTA/NEA (Case No. SUP08-5396) (Feb. 6, 2015).

Labor

Transfer of bargaining unit work Where a police union alleges that the town of Ashby failed to bargain in good faith when it transferred bargaining unit work to nonunit personnel, the town did not violate the law because (1) overtime work is not exclusive bargaining unit work and (2) the police department’s transfer of overtime and detail unit work to a lieutenant did not have an adverse impact on individual employees or the unit itself. “The Town argues that overtime assignments have always been shared between unit members and lieutenants based on [Steven] McLatchy’s history of performing overtime work between 2001 and October of 2003. … [T]he Town’s shared work argument falls short because, first, neither McLatchy nor [Fred] Alden performed any overtime work. Second, there was no unit work to share between October of 2003 and May of 2013 because there were no lieutenants employed at the Department during that time, and only unit members had performed that work. Accordingly, I find that the Union is able to show that the overtime work is exclusive bargaining unit work. …

“The Town maintains its argument that detail work has always been shared between unit members and lieutenants based on McLatchy’s history of performing detail assignments between 2001 and October of 2003. However, the Department ceased its practice of offering lieutenants the opportunity to perform detail work stopped after it promoted McLatchy to Acting-Chief in October of 2003, and then eliminated his lieutenant position at some point after his promotion. Even though the 2003-2006 Agreement permitted lieutenants to share in the performance detail work, once the parties executed their successor agreements, only bargaining unit members performed the disputed work, and they did so on an exclusive and consecutive basis between 2007 and May of 2013. “Further, during successor contract negotiations for the 2007-2010 and 2012-2015 Agreements, the parties agreed to remove lieutenants from the detail lists pursuant to Article 26, Section 1. … I find that the Town’s shared work argument is unpersuasive because after 2007 there were no lieutenants employed (and no lieutenant position existing) at the Department to share the detail work. I also find that while McLatchy did perform detail work on several occasions between 2001 and 2003, that work became exclusive unit work after October 2003 when the Department promoted McLatchy and eliminated his lieutenant position. “While the Town asserts that lieutenants constitute ‘qualified employees’ for the purpose of being eligible to perform detail work,

the bargaining history shows the opposite. … Accordingly, I find that the detail assignment work is exclusive bargaining unit work. … “Next, the Union must show that the Department’s transfer of overtime and detail unit work to lieutenant Alden in May of 2013, had an adverse impact on individual employees and/or the unit itself. … Here, Chief Drew ordered that Alden be placed on both the detail and overtime lists following his promotion to the lieutenant position on or after May 12, 2013. The Union does not dispute that Alden never performed any detail or overtime work during his tenure as a lieutenant. The Union also concedes that no bargaining unit members lost the opportunity to perform overtime or detail work as a result of Alden’s placement on the overtime and detail lists. Consequently, I cannot find that the Chief ’s action was adverse in this case. … The Court’s rational is persuasive here because there is no evidence that Alden’s inclusion on the detail and overtime lists for five months between May and December of 2013 had any impact on individual employees or the bargaining unit.” In the Matter of: Town of Ashby and International Brotherhood of Police Officers, Local 385 (Lawyers Weekly No. 21-009-15) (17 pages) (Davis, Hearing Officer) (DLR) Sharon P. Siegel, of Mirick, O’Connell, DeMallie, for the town of Ashby; Michael P. Clancy for the International Brotherhood of Police Officers, Local 385 (Case No. MUP-13-3021) (Feb. 19, 2015).

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Opinion

Independent breath test investigation still needed Last month, a majority of district attorneys around the state suspended use of alcohol breath tests after news first broke that the machines used to conduct the tests had been improperly calibrated, affecting an uncertain number of drunken driving cases. The Executive Office of Public Safety and Security conducted an investigation and subsequently announced in a press release that “fewer than 150 cases” out of more than 39,000 results were invalid, and those problems were caused by “operator error” by the officers calibrating

EDITORIAL the machines. The agency also announced that the company that manufactures the machines would issue a software patch to correct for Massachusetts’ more stringent calibration standards. But the need for a software fix suggests that the problem runs deeper than operator error. By its very nature, a software patch corrects an error with the machine’s code, not with those operating it. And while a patch may indeed rectify the calibration issue going forward,

it does nothing to address any faulty tests that may have been administered since 2011 when Massachusetts first began using Draeger 9510 breath test machines. Given that, there have been widespread calls for an outside review of the situation, and the Massachusetts Bar Association has asked Attorney General Maura T. Healey to appoint an independent investigator. Lawyers Weekly agrees that a more thorough and independent investigation into the reliability of the state’s breath test

machines, including a review of law enforcement operating procedures, is required, and we urge others in the bar to add their voices to the growing call for transparency. There are too many serious issues at stake and too many unanswered questions to rely solely on an internal investigation by a state agency charged with overseeing law enforcement, which has a stake in the outcome. Breath tests are one of the most important tools the police have to make sure alcohol-impaired drivers are held accountable for their actions and kept off

Massachusetts Lawyers Weekly’s Editorial Advisory Board provides knowledge and guidance for the editorials that appear on this page. The board is an advisory panel only, with no official voting or participation record. The input from the board is a tremendous resource to Lawyers Weekly, however, the editorials represent the position of the newspaper and its editorial staff, not the members, nor any given member, of the board.

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BOARD OF EDITORS: Paula S. Bliss, Boston; Andrea J. Cabral, Boston; Randy S. Chapman, Chelsea; John M. Connors, Salem; Michael C. Gilleran, Boston; Hon. Edward M. Ginsburg, Newton; L. Scott Harshbarger, Boston; Martin W. Healy, Boston; Hon. Margaret R. Hinkle, Boston; Thomas M. Hoopes, Boston; Hon. Rudolph Kass, Boston; Marsha V. Kazarosian, Haverhill; Renee M. Landers, Boston; Richard L. Levine, Boston; Eric Neyman, Boston; Eric J. Parker, Boston; Michelle R. Peirce, Boston; C. Max Perlman; Boston; Martin R. Rosenthal, Boston; Jeffrey Sacks, Boston; Albert W. Wallis, Boston

Chilling story is one you can’t — and shouldn’t — put down By Bill Newman

Reports of law enforcement shredding constitutional rights should surprise no one, and certainly not a civil rights attorney. Still, a recent news story did make me flinch. The Chicago police, it was recently learned, operate a secret interrogation facility in a non-descript warehouse called Homan Square. Prisoners — both adults and juveniles, some as young as 15 — are disappeared there, often shackled for hours, denied their right to counsel, and beaten. At least one man, found unresponsive in an interview room, later was pronounced dead. A protester, Brian Jacob Church, who in 2012 was held and interrogated at Homan Square, was quoted by The Guardian, which broke the story, as saying, “It brings to mind the interrogation facilities they use in the Middle East. The CIA calls them black sites. It’s a domestic black site. When you go in, no one knows what’s happened to you.” Church has it right. Detainees at Bill Newman is director of the western regional office of the American Civil Liberties Union of Massachusetts and author of “When the War Came Home.”

Homan Square exist in no official booking database. But shame on me for being surprised by that revelation. For some time, secret interrogation facilities in America have been entirely predictable, maybe inevitable. After 9/11 and a dozen years of Guantanamo, why wouldn’t we — and the government as well — have imagined secret domestic interrogation prisons? Easthampton resident Ellen Meeropol has imagined exactly that. Her new novel, “On Hurricane Island,” tells, in the words of Center for Constitutional Rights President Emeritus Michael Ratner, “a chilling, Kafkaesque story about what happens when the United States does to its citizens at home what it has done to others abroad.” Meeropol’s narrative begins shortly before an anniversary of 9/11 with university mathematics professor Gandalf Cohen about to board a plane at JFK. Homeland Security agents cull her (politely, of course, “this is just routine”) from a TSA security line, escort her to an investigation room, and then fly her, blindfolded, to Hurricane Island, off the coast of Maine, where they lock her up in a facility designed for the interrogation of suspected domestic terrorists. The federal agents abduct Gandalf. They suspect her possible involvement in a terrorist plot

because in graduate school she had befriended, and after that sporadically emailed, a foreign student who later appeared on Homeland Security’s radar. “On Hurricane Island,” Ratner says, puts the reader into the middle of the U.S. government’s extrajudicial kidnapping, interrogation and detention programs “through characters about whom you really care.” Ratner further extols Meeropol’s work as “a story you can’t put down.” And, I would add, that you shouldn’t. After 9/11, Congress passed the Patriot Act. The government rounded up non-citizens and deported many. Congress also enacted the Authorization for the Use of Military Force and acquiesced in and endorsed the executive branch’s omnipresent surveillance of our movements and communications. We should not feign surprise. America’s response to 9/11 was foreshadowed by our historical willingness to forfeit freedom particularly in times of war but also in times of relative peace when facing enemies, real or imagined. Only years later do we learn that our abdication of our responsibility to preserve freedom made us no safer. Recall the Alien and Sedition Acts in the early Republic, the Palmer Raids following WWI, the

Continued on page 39

the roads. That means that the longer the accuracy of breath tests is called into question, the less safe our communities are. The constitutional issues at play are equally critical. It’s unclear whether this will ultimately mushroom like the Annie Dookhan scandal, calling thousands of convictions into question, or whether it will be more limited in scope. But we can’t be assured that OUI convictions are based on reliable and accurate evidence until there is a fully unbiased look into what caused the faulty tests. MLW

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May 11, 2015 | Massachusetts Lawyers Weekly | 39

OPINION

‘Functional equivalent’ doctrine sees widespread application By Breton Leone-Quick and Mary Adams Last year for the first time, a Massachusetts court applied the “functional equivalent” doctrine to find that communications between an attorney and an outside consultant for the attorney’s client could be protected by the attorney-client privilege. One Ledgemont LLC v. Town of Lexington Zoning Board of Appeals, No. 13 PS 477585, 2014 Mass. LCR LEXIS 92 (Mass. Land Ct., June 23, 2014) (Piper, J.). The doctrine has already been applied in the 8th, 9th and District of Columbia Circuit Court of Appeals, federal district courts in all circuits, and a handful of state courts. Adoption of the functional equivalent doctrine could be a valuable tool for practitioners who regularly advise clients in the real estate, construction and private equity space, where entities set up to develop or own assets do not necessarily have any employees of their own, but rather rely on employees from affiliated entities to conduct their day-today operations. Recent application in Massachusetts The functional equivalent doctrine, as articulated by the 8th Circuit in In re Bieter Co., the leading case on the issue, holds that “when applying the attorney-client privilege to a corporation or partnership, it is inappropriate to distinguish between those on the client’s payroll and those who are instead, and for whatever reason, employed as independent contractors.” 16 F.3d 929, 937 (8th Cir. 1994). Non-employees may “possess a significant relationship to the client and the client’s involvement in the transaction that is the subject of legal services,” and such a distinction would frustrate the purpose of the privilege, namely allowing the free flow of information to counsel from those best equipped to provide it. Id. at 938. Breton Leone-Quick is a member in the litigation section of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo. Mary Adams is in private practice.

In One Ledgemont LLC, the Land Court adopted the functional equivalent doctrine in a case brought against an entity called 95 Hayden LLC, which had been set up by another entity, Hobbs Brook, in order to conduct a real estate transaction. The court focused its opinion on the plaintiff ’s argument that communications sent to an individual who served as an outside broker for Hobbs Brook’s real estate transactions also served to break the privilege. After first surmising that the Supreme Judicial Court likely would adopt the functional equivalent doctrine, the Land Court went on to consider whether the outside broker for Hobbs Brook was the functional equivalent of an employee. As part of its analysis, the court observed that it was not an ordinary broker-client relationship: The broker had a long relationship with Hobbs Brook and provided leasing and advisory services for its affiliated LLCs. He worked exclusively with the principals of the Hobbs Brook-affiliated companies on nearly all of their regional real estate acquisitions, was a “key decision maker” for the most senior management, and earned most of his income from his work for the management entity, which had veto power over his ability to accept other clients. Indeed, Hobbs Brook used no other broker or advisor for its buying, leasing and development activities. Id. at *6-7. Based on those facts, the court concluded that the broker was the functional equivalent of an employee, and as such his presence on the distribution list of attorney emails did not destroy any privilege that might otherwise apply. Id. at *9-10. Of note, the court stressed the doctrine’s limited scope: Where the non-employee’s relationship with the company was one the non-employee had with many clients, was “single-purpose and limited in scope,” or did not entail high-level guidance, the non-employee’s presence on attorney-client communications would destroy privilege. Id. at *9. While One Ledgemont LLC represents the first time a Massachusetts state court has adopted the functional equivalent doctrine, courts in the 1st Circuit have touched on the doctrine in the past. See Banco do Brasil, S.A. v.

275 Washington Street Corp., No. 09-11343, 2012 U.S. Dist. LEXIS 51358, at *18-21 (D. Mass., April 12, 2012) (declining to extend privilege where the client’s leasing agent was retained for a particular purpose and was permitted by the client to also represent potential tenants of the premises in question, and where all the facts showed that the agent’s role was one of third-party broker rather

Litig., 879 F. Supp. 2d 454 (E.D. Pa. 2012). But application of the doctrine has not been uniform across jurisdictions. For example, the Southern District of New York in Export-Import Bank of the United States v. Asia Pulp & Paper Co., Ltd. refused to find a client’s financial advisor the functional equivalent of an employee where the advisor did not work out of the cli-

Adoption of the functional equivalent doctrine could be a valuable tool for practitioners who regularly advise clients in the real estate, construction and private equity space. than employee); Hill v. State Street Corp., No. 09-12146, 2013 U.S. Dist. LEXIS 181168, at *19, 24-25 (D. Mass., Dec. 30, 2013) (deeming version of the test that protects communications between independent contractor and counsel where the contractor provides information useful for legal advice an “expansive view” of the doctrine); Miramar Constr. Co. v. The Home Depot, 167 F. Supp. 2d 182, 185 (D.P.R. 2001) (declining to extend privilege to former independent contractor in light of principle that privilege be narrowly confined). Doctrine for all industries, but with inconsistent application The functional equivalent doctrine has been applied by other jurisdictions in numerous settings to a varied list of outside consultants: • Investment bankers, Stafford Trading, Inc. v. Lovely, No. 05-C4868, 2007 U.S. Dist. LEXIS 13062 (N.D. Ill., Feb. 22, 2007); • Public relations firms, F.T.C. v. GlaxoSmithKline, 294 F.3d 141 (D.C. Cir. 2002), In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213 (S.D.N.Y. 2001); • Movie production contractors, Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 01 Civ. 3016, 2002 U.S. Dist. LEXIS 22215 (S.D.N.Y., Nov. 7, 2002); • Unpaid consultants to pension plans, Trs. of the Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1 (D.D.C. 2010); • Construction project managers, Alliance Constr. Solutions, Inc. v. Dept. of Corrections, 54 P.3d 861 (Colo. 2002); and • Pharmaceutical industry consultants, In re Flonase Antitrust

ent’s offices, spent 15 percent of his time on other work even at the project’s peak, and was able to start a successful consulting business while simultaneously working for the client. 232 F.R.D. 103,113-14 (S.D.N.Y. 2005). In contrast, the Southern District of Ohio in United States ex rel. Fry v. The Health Alliance of Greater Cincinnati found an independent contractor physician who worked at the client hospital only 20 hours a month as chief of cardiology and had a full-time position with a separate cardiology group could be deemed an employee’s functional equivalent as long as he “had a role similar to that of an employee.” No. 1:03-cv-167, 2009 U. S. Dist. LEXIS 122921, at *12-13 (S.D. Ohio, Dec. 11, 2009). Some courts lay out a stringent multi-factor test for determining functional equivalence. See, e.g., In re Bristol-Myers Squibb Sec. Litig., Civ. No. 00-1990, 2003 U.S. Dist. LEXIS 26985, at *12 (D.N.J., June 25, 2003). Other courts ask only whether protection of otherwise privileged communications involving non-employees “is consistent with the purpose and traditional interpretation of the common-law attorney privilege.” Trs. of the Elec. Workers Local No. 26 Pension Trust Fund, 266 F.R.D. at 8. Some courts also have considered the particular demands of the industry in question in deciding whether to treat independent consultants like employees. See, e.g., Twentieth Century Fox Film Corp., 2002 U.S. Dist. LEXIS 22215, at *6 (“Fox’s determination to conduct its business through the use of independent contractors is the result of the sporadic nature of

employment in the motion picture industry.”); McCaugherty v. Sifferman, 132 F.R.D. 234, 239 (N.D. Cal. 1990) (consultants to the Federal Asset Disposition Association assisting in the sale of a company operated “in an environment dense in regulations,” requiring fully-informed advice from counsel); DE Techs., Inc. v. Dell, Inc., No. 7:04CV00628, 2006 U.S. Dist. LEXIS 62580, at *7 (W.D. Va., Sept. 1, 2006) (“The court believes that it is especially appropriate to look beyond the existence of a formal employment relationship in those cases involving a small, fledgling company which is compelled by circ*mstance to rely on compensation in kind, or even prior friendships with consulting specialists, in obtaining information required by the company’s attorney in order to provide legal services.”). In other cases, the court invoked an appreciation for the realities of modern corporate practice. See, e.g., In re Flonase Antitrust Litig., 879 F. Supp. 2d at 460 (“[T]his approach reflects the reality that corporations increasingly conduct their business not merely through regular employees but also through a variety of independent contractors retained for specific purposes.”); Stafford Trading, Inc., 2007 U.S. Dist. LEXIS 13062, at *19-20 (“Many courts have recognized that, in today’s market place, attorneys need to be able to have confidential communications with investment bankers to render adequate legal advice.”). Conclusion An attorney-client privilege that keeps pace with the changing business landscape is consistent with the principles of Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme Court’s analysis of the corporate privilege. Upjohn held that a pragmatic, case-by-case approach to the application of the privilege best obeyed the spirit of Federal Rule of Evidence 501, which provides that “the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience.” Reason, and the experience of today’s businesses, suggest that Massachusetts courts may continue to look beyond any distinctions between employees and independent consultants in applying the attorney-client privilege. MLW

Chilling story is one you can’t — and shouldn’t — put down Continued from page 38

prosecution and execution of the Rosenbergs as an adjunct to the Korean War, and the McCarthy witch-hunts during the Cold War. In particular, remember the Supreme Court’s 1944 Korematsu decision, which upheld the right of the government during WWII to establish internment camps for Americans of Japanese ancestry. In Korematsu, the court ruled that the government may seize citizens and non-citizens who it alleges could potentially pose a national security risk and, without charging

them with a crime, imprison them in detention camps indefinitely. That 6-3 decision has often been criticized, but it has never been overruled. And today the government insists that we are — and for the foreseeable future will be — fighting another war: the war on terrorism. Given our extant legal apparatus and logistical infrastructure, it would take mere baby steps to establish the internal interrogation prisons that Meeropol imagines. After all, as the federal witness protection program demonstrates, the government already

can make persons in its custody virtually disappear. If and when such a detention program is discovered and disclosed, federal officials undoubtedly will insist that they have violated no constitutional guarantees. Press releases and talking heads will insist that the government operates the facility, both lawfully and appropriately, fully consistent with recognized exceptions to the Fourth and Fifth amendments, to thwart grave and imminent threats to our national security. History and logic teach us that we stand

LETTERS TO THE EDITOR ARE WELCOME

only one terrorist attack away from Meeropol’s fiction becoming reality. “On Hurricane Island,” although wellplaced in the genre of dystopian political fiction — which includes George Orwell’s “1984,” Aldous Huxley’s “Brave New World” and Sinclair Lewis’ “It Can’t Happen Here” — is not categorically apocalyptic. Within its pages some loves flourish. And Meeropol herself dedicates the book in part to her grandchildren “in the hope that people of good conscience can prevent events like the ones I’ve made up in this novel.” MLW

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40 | Massachusetts Lawyers Weekly | May 11, 2015

People in the Law Contact Matt Yas at [emailprotected]

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1 Azure A. Aronsson (left) and Lauren Graber of Collora 2 Mark Smith of Laredo & Smith (left) with emcee Bruce A. Singal of Donoghue, Barrett & Singal 3 From left: Juvenile Court Judge Jay D. Blitzman; Michael Malm of Davis, Malm & D’Agostine; Discovering Justice trustee Anthony T. Doniger of Sugarman, Rogers, Barshak & Cohen; and Roger Geller of Davis, Malm & D’Agostine

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4 From left: Discovering Justice trustee John H. Chu of Chu, Ring & Hazel; Kathy Ypsilantis; Discovering Justice trustee Nick Ypsilantis of AccuFile; Discovering Justice trustee Michael Contompasis of Mass Insight Education; and William F. Sinnott of Donoghue, Barrett & Singal

Discovering Justice honors Ashbrook at annual bash

Discovering Justice hosted this year’s edition of “A Celebration of Civic Education” at the Fairmont Copley Plaza. Bruce A. Singal of Donoghue, Barrett & Singal emceed the event, which honored Tom Ashbrook from WBUR Boston, host of National Public Radio’s “On Point,” as its 2015 Champion of Justice.

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5 Students from the Stoklosa Middle School in Lowell, from left: Angelina Chhim, Alyana Cruz, Barnard Krouch and Romeo TimLouangphixai

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6 Honoree Tom Ashbrook from WBUR Boston, host of NPR’s “On Point” 7 U.S. District Court Judge Nathaniel M. Gorton 8 Cristina F. (left) and Debbie F. Freitas, of Freitas & Freitas 9 From left: (back row) Steve Cyr, teacher, Stoklosa Middle School; Martha Cohn, director of social studies for Lowell Public Schools; Honoree Tom Ashbrook; Jean Franco, superintendent of Lowell Public Schools; Cristina F. and Debbie F. Freitas, of Freitas & Freitas; Juvenile Court Judge Jay D. Blitzman; Nancy O’Loughlin, principal, Stoklosa Middle School; (front row) Carolyn Rocheleau, coordinator of special programs for Lowell Public Schools; Claire Abrams, assistant superintendent, Lowell Public Schools; and students Romeo Tim-Louangphixai, Barnard Krouch, Angelina Chhim and Alyana Cruz

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10 Emerson College President Lee Pelton with U.S. District Court Chief Judge Patti B. Saris 11 Discovering Justice Board Chair Deborah S. Birnbach of Goodwin Procter with Discovering Justice trustee Jeremy Eisemann of Liberty Mutual

New associations

estate department. She was previously with Robinson & Cole.

Honors

Jeffrey Gordon and Paul T. Sullivan have joined the Boston office of Zelle, Hofmann, Voelbel & Gette as of counsel.

Sophie Stein has joined the Waltham office of Stewart Title Guaranty Company as senior underwriting counsel.

Martha S. Faigen, a senior partner at Riemer & Braunstein in Boston, has been selected to receive CREW Boston’s Professional Service Award.

Devon A. Kinnard has joined Boston’s Davis, Malm & D’Agostine as a shareholder in business law. Robert V. Lizza has joined Consigli Construction Co., Inc. in Boston as vice president and general counsel. He was previously with Hinckley, Allen & Snyder. Carla M. Moynihan has joined Boston’s Sherin & Lodgen as a partner in the real

Promotions Anthony A. Bongiorno has been named partner-in-charge of the Boston office of McDermott, Will & Emery. Melanie E. Kido has been promoted to regional underwriting counsel at Stewart Title Guaranty Company in Waltham.

Speakers Susan G. Fentin, a partner at Springfield’s Skoler, Abbott & Presser, spoke on the topic of best hiring practices for employers conducting job interviews at the Franklin County Chamber of Commerce’s “Wake-Up Wednesday” on May 6.

Submit your news, photos and captions to Matt Yas at matt.yas@ lawyersweekly.com