Boston Business Litigation Blog

The short answer, according to a recent Appeals Court Memorandum and Order Pursuant to Rule 23.0, is yes. In the unpublished case of Sanavage v. Chavis, the parties were never married and were the parents of one child together. Following a trial on the father's complaint for custody, support and parenting time, the Probate and Family Court issued a judgment ordering, in relevant part, that the child should continue to reside primarily with the mother, that father would have regular parenting time, and that the parents would abide by specific provisions with respect to their co-parenting communications, such as only communicating with each other about matters related to the child and only via text message or email, among other restrictions. The trial judge inserted these detailed provisions because the evidence presented at trial demonstrated that the parties had experienced difficulty in co-parenting effectively throughout the child's life; presumably, the judge was intending to reduce any similar friction by imposing certain limitations on the parties' future co-parenting communications.

In Dahua Technology USA, INC. v. Zhang, the District Court granted a Plaintiff-employer, Dahua Technology USA's, motion for summary judgment and ordered the reformation of the severance agreement at issue. In so holding, the Court noted that the Defendant-employee, Zhang, breached his duty of good faith and fair dealing in attempting to hold Dahua Technology to erroneous contract terms and that there was no genuine dispute that a mistake (mutual or otherwise) occurred in the drafting of the severance agreement at issue.

A group of Oregon banks and banking organizations have come together to challenge the legality of that state's emergency COVD-19 banking regulations. Enacted on June 30, 2020 and in effect until it expired on December 31, Oregon's House Bill (HB) 4204 placed limitations on financial institutions' abilities to enforce mortgage contracts. Specifically, HB 4204 mandated that banks provide forbearance from mortgage payments to individual and commercial borrowers who attested that their inability to pay related to the COVID-19 pandemic. Banks also could not pursue collection or foreclosure actions during this time. Even though these emergency forbearance provisions have now expired, lenders will not be able to collect accumulated overdue sums until their borrowers' loans reach maturity-often years or decades in the future. Borrowers have the power to enforce HB 4204 by filing a lawsuit against any lender who violates these emergency regulations.

The world has grown more accustomed to doing business virtually during the COVID-19 pandemic. As the vaccine rollout progresses, and businesses and lawyers ponder a future post-pandemic, the question arises: what permanent changes to the business world will this virus, and our greater reliance on virtual interactions, have wrought?

Showing a lack of testamentary capacity in Massachusetts will and trust litigation is not easy. In Joseph A. Haddad, et. al. v. Marcel A. Haddad, et. al., the Massachusetts Appeals Court recently reversed a decision by the Massachusetts Superior Court by finding that a father who changed his estate planning documents to leave everything to only one of his three sons while likely suffering from the early stages of dementia-did not lack testamentary capacity to do so.

In new decision, De-Paz York v. York, the Appeals Court finds that the Probate and Family Court did not have subject matter jurisdiction to issue a divorce judgment. In that case, the parties last lived together in Colombia on March 30, 2017. The wife filed a complaint for divorce in Massachusetts on October 30, 2017, claiming there had been an irretrievable breakdown of the parties' marriage as of April 1, 2017. The wife resided in Norwell, MA at the time she filed the complaint.

In January the Supreme Judicial Court (SJC) heard oral argument in a case challenging the ability of car sharing company Turo to facilitate pickups at Logan International Airport without paying the taxes and fees that Massport requires of traditional car rental companies. Like Airbnb and HomeAway do for the short-term house rental market, Turo allows individual car owners to rent out their cars for short periods of time when they would otherwise sit unused. The case, Massachusetts Port Authority v. Turo, Inc., promises to have national implications for whether car sharing companies and other internet businesses that facilitate peer-to-peer transactions can shield themselves from liability by relying on the Communications Decency Act of 1996 (CDA). The CDA protects internet businesses from being held liable for claims that would treat the website as the publisher or speaker of objectionable content posted by third parties. Search engines and social media applications are classic examples of companies often protected by the CDA, but it is less clear whether the immunity extends to companies that do more than simply serve as a bulletin board for third-party posts.

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.