Boston Business Litigation Blog

The vast majority of divorce cases are resolved not by trial, but by the parties agreeing upon and submitting a Separation Agreement to the Probate and Family Court for approval.  One of the more confusing elements of a Separation Agreement for many clients is the fact that certain provisions of the agreement are deemed to "merge" with the Judgment of Divorce and other provisions are deemed to "survive."  Although these terms may be unfamiliar to non-attorneys, the distinction between the two is not particularly complex.  

Recently in Jouret v.  Buteau, Docket-18-P-68 (Mass. App. Ct. April 11, 2019) (Memo and Order Pursuant to Rule 1:28), the Appeals Court of Massachusetts vacated those parts of a modification judgment that eliminated Father's parenting time and prohibited his contact with the children, holding that the trial court should not have given the children's preference "decisive weight."

Last month in Incutto v. Newton Public Schools, et al., the United States District Court - District of Massachusetts denied a Newton Public Schools' motion for summary judgment regarding a former kindergarten teacher's claim for disability discrimination, despite the school district's assertion that the teacher's ability to work full-time was an essential function of her job as a full-time teacher. 

Even a smooth and successful home renovation project can be an enormous source of stress for a homeowner.  Often, homeowners feel powerless and overwhelmed when the inevitable hiccups arise in a renovation project due to the high cost and because the work may occur within one's living space.  For these reasons, and in recognition of the inherent imbalance in bargaining position once a renovation project is underway, homeowners should be aware of Massachusetts General Law Chapter 142A, also known as the Home Improvement Contractor Act. 

The United States Supreme Court has agreed to consider a case that could resolve a split among the United States Courts of Appeals as to whether the discovery rule applies to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA").  Rotkiske v. Klemm, et al., No. 18-328 (U.S., certiorari granted Feb. 25, 2019).

Last month, one defendant's application to vacate a med-arb award brought about two important developments in ADR case law in Massachusetts.

Described by the Supreme Judicial Court as "unwieldly and perplexing to apply in most instances," the Massachusetts spousal elective share statute, "is intended to prevent spousal disinheritance, either by inadvertence or design," through allowing "a dissatisfied surviving spouse" to "waive the provisions of a deceased spouse's will and take a statutorily prescribed share of the decedent's estate." Ciani v. MacGrath, 481 Mass. 174, 175, 186 n12 (2019). In Ciani, the SJC attempted both to clarify and fortify the statute, holding in part that it allows a dissatisfied surviving spouse to bring an action to realize the value of his or her share of the decedent's real estate. Where the decedent has left issue (i.e., offspring or lineal descendants), the statute entitles a dissatisfied surviving spouse to elect - in lieu of his or her formal bequest (or lack thereof) - to receive a share of the decedent's estate comprising one-third of the decedent's personal property and one third of the decedent's real property. The SJC focused its analysis on situations in which that share exceeds $25,000 in value, reading the elective share statute to allow a dissatisfied surviving spouse to receive (1) the first $25,000 from the decedent's personal property or, if necessary, from the decedent's real property as well; (2) income from the a trust containing the remaining third of the personal property for life; and (3) an ownership interest the remaining third of the decedent's real estate, for life. 

In our modern, globally interconnected world companies from different nations frequently enter into business agreements with one another. While such joint ventures can create exciting opportunities, they can also run into challenges, or sour altogether. Thus, it is important to consider dispute resolution mechanisms at the outset of a contract or joint venture between international partners. International arbitration is the dispute mechanism best suited to resolving cross-border disputes. As the following five reasons show, international arbitration should be selected as the dispute resolution method between international partners for virtually any international contract:

The Superior Court of Massachusetts recently annulled the decision of a local zoning board that had permitted construction of an outdoor aerial adventure park pursuant to what is commonly referred to as the "Dover Amendment" - i.e., G.L. c. 40A, § 3. In Sullivan v. Heritage Plantation of Sandwich, Inc., 35 Mass. L. Rptr. 281 (2018) ("Heritage Plantation"), the Court found that the particular outdoor adventure park at issue did not have a primary goal of educational significance and did not involve a nonprofit organization using its land for educational purposes, and, therefore, could not take advantage of the significant zoning exemptions offered by the Dover Amendment. 

It was bound to happen eventually.  Maybe your company just went global or maybe they've been working internationally for years.  But eventually, whether through some mistake in translation in an international contract, some global or local change in circumstances, or just picking a poor foreign partner, a dispute has arisen over some international transaction.

Too often parties to a construction dispute do not focus on the importance of proving and recovering damages until the later stages of the case.  A recent bankruptcy case, In re Patrick Gannon, shows why an analysis of damages and recoverability should be the highest priority when a home improvement project turns into a nightmare.  

In an important decision for foreign companies, the First Circuit Court of Appeals recently reversed a trial court ruling and held that a foreign manufacturer of an allegedly defective product was subject to personal jurisdiction and could be sued in Massachusetts.  In Knox v. Metalforming, Inc., 914 F.3d 685 (1st Cir. 2019), plaintiff Stephen Knox badly injured his hand at his place of work, Cape Cod Copper, while operating a machine manufactured by German company Schechtl Maschinenbau GmbH and sold to Cape Cod Copper by MetalForming, Inc., Schechtl's Georgia-based exclusive U.S. distributor.  

Last month the Supreme Judicial Court announced amendments to the Massachusetts Rules of Appellate Procedure, which will take effect on March 1, 2019. The amendments include substantial modifications and clarifications to the rules of appellate procedure currently in effect. A key modification throughout the amendments is a change to filing deadlines. The deadlines for filing will be in 7-day increments, replacing the 10- or 20-day deadlines which have caused confusion because the deadlines sometimes landed on a weekend or holiday. Throughout the amendments there are general changes, such as using only gender-neutral terms, replacing "trial court" with "lower court", eliminating references to obsolete technology, and making the language of the rules more modern and easily understood. Additionally, the new rules are more handily broken down into parts and subparts, making referencing specific rule provisions easier for litigants and the courts.

The United States District Court for the District of Columbia has temporarily halted an effort to enforce a foreign arbitral awardagainst Uzbekistan where the prevailing party had previously initiated proceedings in France topartially vacatethe same award. The twist in Gretton Ltd. v. Republic of Uzbekistan, 2019 WL 464793 (C.A. No. 18-1755, February 6, 2019) ("Gretton v. Uzbekistan"), is that the prevailing partyinitiated the French proceedings, while the prevailing party'sthird party funder initiated the U.S. proceedings.

A recent Appeals Court case addressed that issue, affirming the trial court's judgment that found that the husband's misrepresentations about his income were egregious enough that the trial judge's use of discretion to attribute and impute income to the husband was appropriate, and that the assets that he had tried to divert were subject to equitable division.

Under the Massachusetts Uniform Trust Code, the Probate Court generally cannot "entertain proceedings" concerning the administration of trusts "registered or having [their] principal place of administration in another state." But does that mean a Massachusetts court cannot hear breach of fiduciary duty and other related claims against a Massachusetts-based trustee where the situs of the trust is another state? The Superior Court considered this question in Curran v. Berkshire Hills Bancorp, No. 1784CV03580-BLS2, 2018 WL 3431892 (Mass. Super. Ct. May 24, 2018), when the beneficiaries of a Vermont trust brought claims of breach of fiduciary duty and violation of Chapter 93A (the Massachusetts consumer protection statute) against the trustee, a Massachusetts bank. Over the bank's objections, the court allowed the suit to proceed, drawing a distinction between actions seeking an order instructing or compelling a trustee to act in a certain way concerning the ongoing management of trust assets, on the one hand, and actions seeking damages under a tort-based theory for the trustee's prior conduct concerning the trust, on the other, as in the present case. Similarly, the court found that, since the beneficiaries brought claims against the trustee itself rather than claims regarding the status or disposition of trust assets (such as for an accounting or other relief concerning ongoing administration of the trust), asserting jurisdiction over those claims in Massachusetts would not raise the potential to disrupt or disrespect any pending Vermont proceedings concerning the administration of the trust.

Do you know what fiduciary duties your condominium board owes? And to whom the duty is owed?

First, what, exactly, is a fiduciary duty? The nature of fiduciary duties depends on the nature of the relationship between the parties but, at its simplest, it is a duty of loyalty and good faith. It is an obligation to act for the benefit of another. It is a well-established general principle that an organization's board has a fiduciary duty to the organization.

Consistent with this general principle, members (or trustees) of a condominium's board also have certain fiduciary duties. But, you may be asking, to whom is that fiduciary duty owed? The answer is surprisingly clear: In Massachusetts, members of condominium boards owe a fiduciary duty to the condominium association (or trust), not to any individual condominium owner. See, e.g., Cigal v. Leader Dev. Corp., 408 Mass. 212, 219 (1990).

The Massachusetts Wage Act, M. G. L. c. 149, § 148, governs how and when an employee's wages must be paid and provides that an employer who fails to comply with the Wage Act may be subject to treble damages and be ordered to pay the attorneys' fees of the employee who has to turn to the courts to enforce their rights under the Wage Act. Commission payments are considered "wages" and, therefore, are governed by the Wage Act. For a commission to be "wages," the Wage Act provides that the amount of the commission must be "definitely determined" and "due and payable to [the] employee." Commission compensation has been "definitely determined" when the amount of the compensation due is "arithmetically determinable." Commission compensation is "due and payable" to the employee when "dependent contingencies have been met and it is thus owed to the employee." Practically speaking, that means that the employee (or the court considering whether an employer has violated the Wage Act by failing to pay a commission) must be able to calculate how much commission was owed to the employee and that all of the conditions that must be met for the commission to be payable must have been met.

A judge of the U.S. District Court for the Southern District of Texas has dismissed a case against the International Centre for Dispute Resolution on the basis of arbitral immunity. The holding in Wartsila North America, Inc., et al v. International Centre for Dispute Resolution, et al., 2018 WL 3870015 (S.D. Tex. 2018), C.A. No. H-18-1531, was based in large part on precedent from the First Circuit.

Part II of this blog post focuses on how pension plans are divided during divorce. You can read Part I on our site.

Pension plans are different than other assets divided during divorce because we are trying to calculate the present value of a future benefit (a benefit that will be received but has not yet been received). The process that goes into dividing a pension during divorce can be complicated. As a result, we have broken down each factor of the process to first show in a segregated way how a pension plan gets divided during divorce. We then show in an integrated way how the pension plan's disparate factors connect to complete the whole of the process of dividing a pension during divorce. The attorneys at Fitch have the deepest respect for the enormity of time, effort and dedication it takes for clients to accumulate a pension and Fitch attorneys do their very best to provide detailed information, knowledge and transparency when it comes to valuing and dividing a pension plan during divorce. The following factors are used to calculate the present value of a pension plan:

Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific requirements. 8 U.S.C. § 1101 (a) (27) (J). In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"), which amended and clarified SIJS requirements.

Congress created the classification of "special immigrant juvenile" in the Immigration Act of 1990, providing that a certain percentage of immigrant juveniles would be allowed to petition for lawful U.S. permanent residency (i.e. "Green Card") if they met specific requirements. 8 U.S.C. § 1101 (a) (27) (J). In 2008, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA"), which amended and clarified SIJS requirements.

In Colucci, Colucci, Marcus & Flavin, P.C. v. Citizens Bank of Massachusetts, No. CV 15-13536-GAO, 2018 WL 1567605, at *1 (D. Mass. Mar. 30, 2018), the United States District Court for the District of Massachusetts awarded summary judgment to Citizens Bank of Massachusetts ("Citizens Bank") on a law firm's claim of negligent misrepresentation, finding that the law firm's reliance was unreasonable pursuant to New York law.

Last month, the Judiciary Committee of the Massachusetts House of Representatives essentially killed any chance of the passage of the Jim Brooks Community Stabilization Act, Bill H.4142, by "referring the Act to study," a euphemism generally understood in the Massachusetts legislature to mean that a bill will languish and, eventually, fail to pass.

The Supreme Court of the United States has held in a recent decision that foreign corporations that have committed human rights violations outside of the territory of the United States may not be sued in the United States federal courts under the Alien Tort Statute, 28 U.S.C. §1350. In Jesner v. Arab Bank, PLC, 138 S.Ct. 1386 (2018), the plaintiffs (and the persons on whose behalf the plaintiffs advanced claims) were foreign nationals who were allegedly injured or killed by terrorist attacks in Israel and Palestine. Plaintiffs claimed that Jordan-based Arab Bank, PLC was partly liable for those injuries and deaths because individuals and organizations that supported and funded Hamas and other alleged terrorist organizations had accounts with Arab Bank that were used to pay the families of suicide bombers. Id. at 1394.

A pension is one of the hardest earned assets a spouse can own. Divorce professionals are acutely aware of this and take great care to apply the same kind of focus, hard work and attention to detail to value a pension as the plan owner applied to earning it. This blog will be divided into two parts. The first part will explain the nature of a defined benefit pension plan and detail the information required to properly value a pension. The second part, to be published August 13, 2018, will focus on how pension plans are divided during divorce.

Dealing with an unresponsive contractor who abandons a project before its completion is unfortunately a situation that many homeowners face. Left with an incomplete bathroom or kitchen, the homeowner has no choice but to promptly find a new contractor to complete the project, usually at a higher price. As discussed below, there are different categories of damages that a homeowner can recover.

In a decision handed down on May 3, 2018, the Massachusetts Appeals Court reversed a Probate and Family Court Judge's ruling and held that the court must dismiss a petition for grandparent visitation "when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm." See Martinez v. Martinez-Cintron, No. 17-P-1056 (Mass. App. Ct. May 3, 2018).

In a recent case, the Massachusetts Appeals Court affirmed a Land Court decision holding that plaintiffs hold easement rights to access and use a beach in Hingham Harbor close to the parties' homes. Kane v. Martel, 92 Mass. App. Ct. 1130, at *1 (2018). Litigation between the neighbors over beach rights had been ongoing for more than a decade when the Appeals Court rendered its decision on March 5, 2018, a fact representative of the often bitter and protracted nature of disputes over beach access between neighbors living on the water in Cape Cod and other Massachusetts vacation destinations.

Many litigants, particularly in highly contested divorce or custody modification actions, often insist that their case will never settle, and will ultimately need to proceed to a trial. In fact, only a very small portion of such cases which are filed in the Massachusetts Probate and Family Court proceed to a trial. This is due in part to one of the most important court dates for both lawyers and litigants alike: the pre-trial conference.