Boston Business Litigation Blog

People often think about the number zero as only nothing, when in fact, the invention of the humble zero constantly forces us to realize that the absence of something is a thing in and of itself.  In a recent decision, the Massachusetts Appeals Court changed the durational limits of an alimony award based on an implicit "zero-dollar alimony award" in the separation agreement, once again proving that when it comes to zero, nothing absolutely matters. 

On April 20, 2020, Massachusetts Governor Baker signed into law An Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency.  The moratorium was originally set to expire on August 18, 2020, but Governor Baker had previously extended the moratorium until October 17, 2020.  While Governor Baker had the option to extend the moratorium further, he declined to do so, and the moratorium expired at midnight on October 17, 2020.

While federal law permits national banks to transfer loans and assign mortgage loan contracts to third-party lenders, courts across the country have sometimes struggled, when loans are challenged in litigation, to determine which entity legally made the loan.   This ambiguity was problematic because national banks and third-party lenders are often subject to different laws, and the applicable law is determined by which entity is deemed to be the true lender.  Moreover, as the Office of the Comptroller of the Currency (OCC) noted, this ambiguity also discouraged banks from entering into lending contracts with third parties, thereby restricting competition and stifling innovation.  As a result, in late October 2020, the OCC issued a new rule intended to remedy the confusion and provide national banks and third-party lenders with the legal certainty necessary to enter into such agreements.  The rule goes into effect on December 29, 2020.

In a recent decision by the Appeals Court of Massachusetts - albeit under Rule 23, so it is not considered binding precedent though it can be cited for persuasive purposes - the Court overturned a portion of a divorce judgment that required the Wife, who would be receiving alimony, to seek full-time employment as a bookkeeper and to accept any offer of employment in that specific field. The trial court's judgment, the Appeals Court reasoned, overstepped its statutory authority.

In prior posts here at FITCH, we have discussed some of the reasons that parties choose international arbitration over litigation for their cross-border disputes. Over the next few months, we will be taking a deeper dive into the advantages of international arbitration (click here for our discussion on confidentiality). One such advantage is enforceability.

The Massachusetts Supreme Judicial Court ("SJC") has held that the Prior Public Use Doctrine, which operates to prevent public lands acquired for a particular use from being diverted to another inconsistent public use without explicit legislative authorization, does not apply to public land diverted to an inconsistent private use in Town of Sudbury v. MBTA et al.

It is natural for a couple going through a contentious divorce to lack trust in each other. Accordingly, one of the first questions that a divorcing party will often ask their attorney is how they can be sure that their soon-to-be-ex-spouse has fully and fairly disclosed all of his or her property, and that he or she has not engaged in "divorce planning" - that is, moving or concealing assets that could be considered marital property so that they will not have to be shared with the other spouse upon divorce.

Back in June, Massachusetts saw the filing of the first suit seeking class action status challenging an insurance company's denial of coverage for COVID-19 related business losses, Rinnigade Art Works v. Hartford Financial Group.

The Tenth Circuit confirmed a $36.1 million international arbitration award in a dispute between Bolivian company Compañia de Inversiones Mercantiles S.A. ("CIMSA") and a group of Mexican companies known as Grupo Cementos de Chihuahua, S.A.B. de C.V. and GCC Latinoamerica, S.A. de C.V. (collectively "GCC") relating to a right of first refusal for certain shares. In doing so, the Court reaffirmed Federal policy in favor of arbitral dispute resolution, particularly with respect to international disputes.

In prior posts here at FITCH, we have discussed some of the reasons that parties choose international arbitration over litigation for their cross-border disputes. Over the next few months, we will be taking a deeper dive into the advantages of international arbitration. One such advantage is confidentiality.

In a case of first impression, Newton Centre Realty, Inc. v. David R. Jaffe (June 23, 2020), the Appeals Court recently decided that the seller's death terminates a real estate listing agreement and concluded that the broker was not entitled to recover contract damages from the seller's estate.

The United States Court of Appeals for the First Circuit has held that, despite never crossing state lines in the course of their duties, "last mile" delivery drivers qualify for the Federal Arbitration Act's ("FAA") exemption for transportation workers due to their sufficient engagement in interstate commerce. Accordingly, the FAA did not apply to the Plaintiff's contract, state law applied instead, and the Plaintiff's claims could proceed in court rather than via arbitration. Waithaka v. Amazon.com, Inc. et al.

Unfortunately, the emotionally charged circumstances of divorce and custody cases can create very difficult conditions for the parties and their children. On occasion, one or both parties will engage in disparaging behavior - calling the other party names in public and to third parties, making insulting comments on social media, and spreading disinformation within the community about the case and the other party.

In the recent Memorandum and Order issued in the case T-Mobile Northeast LLC v. The Town of Barnstable, the Massachusetts District Court held that the Town of Barnstable Planning Board ("the Planning Board") had violated the Telecommunications Act of 1996 ("the TCA") when it denied T-Mobile's request for a special permit and regulatory agreement that would allow T-Mobile to install and operate wireless equipment in a church steeple for the purpose of improving local cell phone service coverage. The dispute arose after the town had issued T-Mobile a building permit and after the majority of the construction on T-Mobile's proposed site had already been completed, at which time citizens of Barnstable claimed that the proposed site fell within a geographic area of Cape Cod that is subject to heightened regulatory scrutiny. After several hearings and consideration of evidence submitted by T-Mobile, the Planning Board denied T-Mobile's request.

The First Circuit Court of Appeals recently found an agreement's arbitration clause unconscionable where one party was given almost unfettered control over the selection of the arbitrators. In Trout v. Organización Mundial de Boxeo, Inc., plaintiff Austin Trout ("Trout"), a professional boxer, claimed the defendant World Boxing Organization's ("WBO") decision to move him from a weight class cost him to opportunity to pursue a world championship in that class. He brought claims under the Muhammad Ali Boxing Reform Act, as well as breach of contract, fraud, and negligence claims.

In the recent Superior Court case of Martinez v. Burlington Motor Sports, Inc., et al., a defendant auto dealership moved to dismiss a commission-based employee's claim for overtime wages pursuant to G. L. c. 151, §§ 1A and 1B, arguing that the Massachusetts Supreme Judicial Court's (SJC) 2019 ruling in Sullivan v. Sleepy's LLC did not apply to the case. See Fitch's blog post on the Sleepy's decision here. The Sleepy's decision stands for the proposition that an employee paid on commission is entitled to separate and additional wages for minimum wage and to overtime and Sunday pay.

In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, the United States Supreme Court was presented with the question whether domestic equitable estoppel doctrines that allow a non-signatory to an arbitration agreement to compel arbitration in disputes arising under such agreement conflict with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, more commonly known as the New York Convention. The Supreme Court unanimously found no conflict, paving the way for non-signatories to agreements containing international arbitration clauses to compel arbitration using domestic doctrines of equitable estoppel.

In the recent unpublished Memorandum and Order Pursuant to Rule 1:28, Manning v. Manning, the Massachusetts Appeals Court overturned a custody judgment from the Probate and Family Court awarding a couple shared legal and physical custody of their two children due to the lower court judge's failure to make required findings of fact regarding the wife's allegations of domestic abuse by the husband. At the time of their divorce trial, the wife testified that her husband had abused her on numerous occasions during the marriage, including punching her, throwing objects at her, and grabbing her by the neck in front of their child. The trial judge credited the wife's testimony, writing in the judgment that the husband "physically battered and assaulted the [w]ife throughout the entire tenure of the marriage." Despite this finding, however, the judge ordered that the parties should have shared custody of their children, with each parent exercising parenting time for one week at a time.

In United States v. McLellan, the First Circuit upheld securities and wire fraud convictions against former State Street Vice-President and head of the Department of Transitional Services Ross McLellan ("McLellan"). McLellan was convicted by a jury in the United States District Court for the District of Massachusetts on charges of securities fraud, wire fraud, and conspiracy to commit securities and wire fraud. During his tenure as head of the transitional management group, McLellan served as the overseer of State Street's transition management program which assisted large institutional investors in restructuring their portfolios as they transitioned from one asset manager to another. At trial, the prosecution presented evidence that McLellan designed a scheme to promise low commissions to potential clients, then embedded large, hidden commissions into the price of the securities when reporting the prices to his clients.

For a plaintiff to obtain an abuse prevention order, colloquially known as a "restraining order," against a defendant, the issuing court must make a finding of abuse. For the purposes of 209A, abuse is defined as a) attempting to cause or causing physical harm; b) placing another in fear of imminent serious physical harm; or c) causing another to engage involuntarily in sexual relations. In cases where no attempted or actual physical contact has occurred, the question is generally whether the defendant placed the plaintiff in fear of imminent serious physical harm. Past cases have established that such fear must be reasonable in light of the totality of the circumstances of the parties' relationship.

In the recent case of Bliss v. Boston Clear Water Company, LLC (decided April 21, 2020), the Essex Land Court found that the plaintiff, Mary Bliss, had successfully proved a claim to ownership of property on the grounds of adverse possession because her family had been using the property adversely, openly, notoriously, exclusively, and continuously for a period spanning nearly thirty years. The Bliss family's use of the disputed land began in 1985 when Mary's husband, Gerald Bliss, started tending to the grounds of property that was owned at the time by his next-door neighbor. Specifically, the Bliss family paved a portion of the neighboring land, installed a fence around a well, constructed a pitcher's mound and a hockey net, and even went so far as to hire a professional landscaping company to conduct routine maintenance on the land. In addition, the Bliss family parked their cars on the land and allowed their guests to park there, and the family's children played openly on the property.

Unfortunately, the emotionally charged circumstances of divorce and custody cases can create very difficult conditions for the parties and their children. On occasion, one or both parties will engage in disparaging behavior - calling the other party names in public and to third parties, making insulting comments on social media, and spreading disinformation within the community about the case and the other party.

In the recent decision, McDonald v. Andrade, the Massachusetts Appeals Court reversed a trial court decision, awarding an easement to a Plaintiff who had - in the same lawsuit - obtained the land to which the easement pertained by adverse possession.

The Supreme Judicial Court recently issued a decision that confirms the legality of consent-to-settle clauses in professional liability insurance policies. In Rawan v. Continental Casualty Company, the SJC held that the refusal of an insured party to settle an underlying tort claim limits the insurance company's exposure to claims of unfair claim settlement practices as long as the company operates in good faith.

The COVID-19 public health emergency has ground many activities to a halt, including the vast majority of matters at Probate and Family Courts across the Commonwealth of Massachusetts. Although the impact of court closures has been felt most strongly in the paucity of hearings, other departments, like drug testing, lawyer of the day programs, conciliation and mediation sessions, have also been impacted by the requirements of state and local orders and advisories.