Boston Business Litigation Blog

The Supreme Court of the United States recently held in Federal Republic of Germany v. Philipp that Germany was immune from suit brought by heirs of Jewish art dealers on the grounds that the heirs' claims did not fall within an exception to the Foreign Sovereign Immunities Act ("FSIA").

In Luce v. Folino-Inadoli, the Massachusetts Appeals Court (Rule 23.0 decision) affirmed the Probate and Family Court's reduction of the child support amount paid by the father to the mother, as well as the denial of retroactive relief for the father.

Over the past decade, there has been rapid growth in technology-enabled financial services, referred to as FinTech. This growth has included the creation and expansion of nonbank FinTech companies, i.e., companies that do not have a banking license and generally do not take traditional deposits. This rapid growth has inevitably led to questions of how such FinTech entities should be regulated.  

A question that frequently comes up in a divorce is what effect the filing has on the financial lives of the parties. Can they still use the joint credit card? Change the beneficiaries on the life insurance policy? Spend money?

The False Claims Act prohibits employers from discriminating against an employee "because of" his or her protected conduct. In a case of first impression recently decided, Lestage v. Coloplast Corp., the First Circuit explained the meaning of "because of."  Lestage, a salesperson, sued Coloplast alleging that, after it learned she had filed a qui tam action against it and against one of its customers, Coloplast retaliated against her in violation of the False Claims Act by placing her on leave and then assigning her inferior accounts when she returned. A jury trial awarded Lestage $762,525 in compensatory damages. Coloplast unsuccessfully moved for judgment as a matter of law and new trial, and then appealed. The First Circuit affirmed the judgment.

In many divorce cases, the parties and their children maintain common health insurance coverage, often through a plan that is available as the result of one party's employment. If both parties are employed at the time of their divorce, then it is commonplace for each of them to agree to obtain and pay for his or her own individual health insurance post-divorce. However, in cases where one party will not have the ability to access reasonably priced health insurance post-divorce - normally because he or she is not eligible to receive full health insurance coverage through employment - the parties' Separation Agreement or Judgment of Divorce must address how each party will obtain and pay for their health insurance. Luckily, and depending on the specific insurance plan(s) at issue, Massachusetts allows individuals to remain on their ex-spouse's health and dental insurance plans post-divorce, as provided for in G. L. c. 175, 110I. Importantly, this right is not automatic; if one party intends to stay on an ex-spouse's health insurance plan post-divorce, then that entitlement must be specifically incorporated into the parties' Separation Agreement or Judgment of Divorce in order to be enforceable. 

As 2020 draws to an end, COVID-19 continues to impact the way of life for individuals and businesses across the Commonwealth, and the Massachusetts Probate and Family Court bar is no exception. Beginning in March 2020, and seemingly overnight, Probate and Family Court judges, clerks, administrators, staff and domestic relations attorneys had to rework their practices to address the challenge of pivoting from an entrenched system to adapting to a new reality. 

When a borrower defaults on the terms of the mortgage, the loan is accelerated, thereby allowing the bank to conduct a foreclosure sale. Because Massachusetts is a non-judicial foreclosure state, a bank does not need to obtain a judgment to foreclose (provided the mortgage contains a statutory power of sale provision). When sending a notice of default, a bank must strictly comply with the terms of the mortgage and also comply with statutory provisions governing the foreclosure of mortgages.

In Wildlands Trust of Southeastern Mass., Inc v. Cedar Hill Retreat Center, Inc., the Massachusetts Appeals Court affirms a Superior Court judge's determination that Defendant Cedar Hill Retreat Center, Inc. ("Cedar Hill") did not violate a conservation restriction placed upon the coastal lands on the Duxbury Shore despite the trial judge's misinterpretation of the restriction's provisions.

In July 2020, the European Court of Justice invalidated the use of the Privacy Shield framework, which thousands of companies had been using to transfer data between the European Union (EU) and the United States. The Court reasoned that the Privacy Shield did not provide the required level of protection to the transferred data, as the level of protection required for data in the European Economic Area is not diminished merely because that data is transferred outside of the EU.

In a win for developers, Supreme Judicial Court says six-year clock for design and construction defect claims runs separately for each building within condominium development.

On December 7, the Ninth Circuit Court of Appeals is scheduled to hear oral argument in a case of particular relevance to employers who use arbitration to resolve disputes with employees. The case, Chamber of Commerce of the U.S. v. Becerra, considers whether states can prevent employers from conditioning an offer of employment or receipt of employment benefits on an employee's agreement to arbitrate (rather than litigate) any future disputes with the company. In 2019, the State of California passed Assembly Bill 51 (AB 51)-a law that would have done just that. But a California federal judge blocked the law before it could go into effect, reasoning that the Federal Arbitration Act's (FAA's) pro-arbitration policy takes precedence over (or "preempts") the state law. The State appealed to the Ninth Circuit.

The liability of aircraft carriers is governed by the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (2000) (the "Montreal Convention"), a multilateral treaty to which the United States is a signatory.  The Montreal Convention superseded the Warsaw Convention of 1934 and some of the provisions are essentially the same in both conventions. 

The Massachusetts Appeals Court ("Appeals Court"), in an unpublished opinion, has held that where an alleged mortgagor has successfully argued that she is not party to a mortgage, she cannot later challenge a foreclosure of that mortgage on the grounds that the foreclosing bank allegedly violated her rights with respect to notice of the foreclosure.  21st Mortgage Corp. v. Lapham

The Appeals Court addressed this issue in the recent case, Clement v. Owens-Clement. In that case, the Husband and the Wife were married for a total of six years before they divorced in 2013. The parties' separation agreement, which was incorporated into their divorce judgment, included a merged alimony provision in which the parties waived past and present alimony, but presumptively left open the option to seek alimony in the future. 

The Supreme Judicial Court ("SJC") recently held that a government taking did not occur where a town had acquired a prescriptive easement to discharge storm water through private property. In Gentili v. Town of Sturbridge, Plaintiffs commenced an action in 2015 in the Land Court seeking various declarations against the town and its rights to discharge storm water onto the Plaintiffs' property. The Land Court held the town had acquired a prescriptive easement pursuant to G.L. c. 187 § 2 to discharge the storm water on to the property.

In Vera V. v. Seymour S., the Appeals Court recently considered whether it was proper for a trial judge to deny a request for an extension of an ex parte abuse prevention order pursuant to G. L. c. 209A, based on the defendant ("husband") being subject to certain pretrial release conditions that had been ordered in the related criminal case and the subject of a Department of Children and Families ("DCF") investigation. The criminal case involved allegations of physical abuse of the plaintiff ("wife") by the husband while the wife was attempting to breastfeed the parties' newborn. The pretrial release conditions in that case included a "no abuse" order that could have resulted in the husband's being held without bail if he violated them.

Under the theory of respondeat superior, an employer may be vicariously liable for the torts of its employee. In order to prevail on a claim of vicarious liability, the plaintiff must show two elements: (1) that an employer-employee relationship exists and (2) that the alleged conduct occurred within the course and the scope of employment.

In T-Mobile Northeast LLC v. Town of Barnstable, et. al., the First Circuit affirmed the decision of the United States District Court for the District of Massachusetts to deny local residents' motion for leave to intervene.

In a recent Rule 23 decision, the Appeals Court of Massachusetts provided further clarification relating to the Young v. Young decision and how a judge is expected to calculate alimony. In a nutshell, if a payor's "ability to pay" is not an issue, then the amount of alimony will be determined by the recipient's reasonable need. If the parties do not have sufficient income to maintain the lifestyle that both spouses enjoyed during the marriage, then the statutory alimony percentages will be used to calculate the amount of a support order.

In a decision recently issued in the case of Maldonado et al. v. Cultural Care, Inc. et al., a group of "local childcare consultants" ("LCCs") brought a class action suit against Cultural Care, a company that places foreign au pairs with host families located in the United States. The plaintiffs alleged that Cultural Care and its officers violated the Fair Labor Standards Act ("FLSA") by misclassifying them as independent contractors and paying them less than the minimum wage required by both the FLSA and state law in Massachusetts, New York, and California. Cultural Care moved to dismiss the plaintiffs' claims based on a lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.

This issue was examined by the Appeals Court in the recent case, Hoy v. Hoy. In that case, the wife was the primary wage earner during the parties' long-term marriage and the trial judge in the divorce found that the husband was in need of alimony. However, because the wife's income was substantially reduced by the time of the trial, the judge did not order her to pay alimony. Instead, the judge noted that the issue of alimony could be brought back before the Court and modified at a later date and ordered the wife to provide the husband with notice if her income increased by more than 5%. Additionally. the judge awarded the husband slightly more than half of the marital assets, including half of the wife's retirement accounts accrued over length of the marriage and more than half of the proceeds of the sale of the marital home.