In the recent case of Fitzgerald v. The Chateau Restaurant Corp., No. 14-01990-J, 2016 WL 344155 (Mass. Sup. Ct. Jan. 4, 2016), a former manager at The Chateau Burlington and The Chateau Andover restaurants filed a putative class action against parent company The Chateau Restaurant Corporation, Inc. and several related corporations which owned individual Chateau restaurants in the Massachusetts Italian restaurant chain. In his complaint, the Plaintiff alleged that he was routinely denied the opportunity to take his off-site meal break--because of a company policy that if only one manager was on site, that manager could not leave the restaurant--yet he still had his pay automatically deducted to account for such a thirty-minute meal break. Id. at *1-2. Fitzgerald filed a putative class action on behalf of himself and other similarly situated hourly managers at any Chateau restaurant location during the six-year period preceding the commencement of the action, alleging violation of the Massachusetts Wage Act, violation of the Massachusetts Overtime Act, breach of contract and unjust enrichment. Id.
Massachusetts is one of the few states that has not adopted some version of the Federal Rules of Evidence. The rules of evidence in Massachusetts are not codified, meaning that evidentiary issues are governed by common law. In 1982, the Supreme Judicial Court ("SJC") rejected a proposed codification of Massachusetts evidence law, yet encouraged lawyers to cite to the "proposed rules." Lawyers had to understand case law in order to know the evidentiary rules that apply in Massachusetts, as well as be familiar with the federal rules of evidence and the "proposed rules."
In Pelullo v. Croft, the Massachusetts Appeals Court issued an important decision regarding zoning by-laws. 86 Mass. App. Ct. 908 (2014). The Defendant applied to the Natick building inspector for a permit to construct a single family home on his lot at 15 Upland Road. Id. at 909. The plaintiff, who owned a property abutting 15 Upland Road, filed an opposition to the permit application on the grounds that the lot did not meet the requirement in a Natick Zoning Bylaw that there be a "minimum lot depth of 125 feet" for the construction of a single family home in a residential zoning district. Id. at 908.
The Massachusetts Consumer Protection Act, General Laws Chapter 93A, § 2, prohibits "unfair or deceptive acts or practices in the conduct of trade or commerce." Since Chapter 93A was enacted in 1967, the Commonwealth's courts have continued to define the scope and substance of the conduct that the law prohibits.
In November 2014, Massachusetts voters approved a ballot question that requires all private sector employers to provide employees with up to 40 hours of sick leave per calendar year. Under the new law, which goes into effect July 1, 2015, employers of 11 or more employees must provide paid sick leave for employees. Employers having less than 11 employees must provide unpaid sick leave for employees. This law applies to full-time, part-time and temporary employees performing work for compensation.
The Appeals Court recently affirmed a Probate and Family Court judge's decision -- made pursuant to the "second look" doctrine -- to award a wife $400,000 as a substitute for the principal residence that she was to receive according to the letter of the parties' prenuptial agreement. Kelcourse v. Kelcourse, No. 13-P-1741 (decided Jan. 21, 2015), 2014 WL 7653645.
Naming a mortgage servicer as mortgagee on a statutory right-to-cure notice satisfies the requirements of the Commonwealth's pre-foreclosure right-to-cure statute, according to a recent decision of the Appeals Court.
The Commonwealth's highest court, the Massachusetts Supreme Judicial Court, recently answered that question in the affirmative. On September 15, 2014, the Court decided Massachusetts State Automobile Dealers Association, Inc. v. Tesla Motors MA, Inc., 469 Mass. 675 (2014), in favor of Tesla, an electric vehicle manufacturer with roots in Silicon Valley. In 2012, not long after Tesla began operations in Massachusetts, a statewide motor vehicle dealership organization and two dealerships brought a lawsuit against Tesla in the Norfolk Superior Court.
Television crime dramas - and televised congressional testimony - have made "taking the Fifth" part of our collective civic consciousness. The Fifth Amendment to the Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself," and, similarly, Article 12 of the Massachusetts Declaration of Rights states that no person shall "be compelled to accuse, or furnish evidence against himself." But what happens when these 18th Century legal principles confront uniquely 21st Century circumstances?
In Maiocco v. Leggs, 32 Mass.L.Rptr. 228 (2014), Judge Robert Gordon considered when a party's right to appeal a decision of the Beacon Hill Architectural Commission terminated. Under 1995 Mass. Acts, Chapter 616, the proponent of a construction project involving exterior architecture within the Beacon Hill Historic District must apply to the Beacon Hill Architectural Commission for approval of the project in the form of a Certificate of Appropriateness (COA). After holding a public hearing on the application, the Commission "determine[s]" whether the proposed construction project is "appropriate to the preservation of the historic Beacon Hill district..." Any party "aggrieved" by the Commission's decision must notify the Commission of its intent to appeal within 8 days of mailing of notice of the determination and must file its appeal in Suffolk Superior Court within 30 days of the "determination."
As discussed in a previous blog post, a well-drafted shareholder or employee agreement is extremely important to clarify the rights and duties of an employee who is also a minority shareholder of a Massachusetts close corporation. The need for a clear agreement is especially important if there is a dispute concerning the termination of a minority shareholder/employee. Where no agreement exists, or if the applicable agreement does not entirely govern the rights and duties of the parties in a particular situation, the obligations are governed by their fiduciary duties to each other, which may be unclear depending on the circumstances.
One of the many advantages of arbitration over litigation is that the parties to a dispute have the opportunity to choose the arbitrator or arbitrators who will decide their claims. The selection of an arbitrator is a critical decision point that necessarily occurs very early in the arbitral process. The stakes are high since an arbitrator's award is very difficult -- some say nearly impossible -- to have vacated. Choosing an arbitrator who is well suited to your case requires careful consideration of many factors, several of which are set out below.
While Section 4-111 of the Uniform Commercial Code ("UCC") contains a three-year statute of limitations for filing claims against a bank for paying an unauthorized or altered item from an account, a more potent tool for banks can be found in UCC 4-406(f), a one-year statute of repose for reporting the disputed item to the bank. Under UCC 4-406(f), a customer is required to report the disputed item to the bank within one year after the bank makes available the account statement or other documentation of the items paid, but what constitutes a "report" to the bank by the customer is not spelled out in the statute. Courts that have analyzed the issue have read UCC 4-406(f) as requiring such a report to specify the account, payment amount, check number, or other specific information identifying the unauthorized draft. Among the methods which have failed to satisfy the reporting requirement: Placing a blanket stop-payment order on an account and requesting copies of the account statements, Hatcher Cleaning Co. v. Comerica Bank - Texas, 995 S.W.2d 933 (Tex. App. 1999); requesting copies of potentially invalid checks from the bank, Watseka First National Bank v. Horney, 686 N.E.2d 1175 (Ill. App. 1997); reporting to the bank that a specific employee was suspected of check forgery on the company accounts, Villa Contracting Co., Inc. v. Summit Bancorporation, 695 A.2d 762 (N.J. Super. Ct. Law Div. 1996); discussing with a bank officer possible irregularities with single signatures on a dual-signature account, First Place Computers, Inc. v. Security Nat. Bank of Omaha, 558 N.W.2d 57 (Neb. 1997); reporting to the bank a belief of foul play or general notice of a possible theft, Simi Management Corp. v. Bank of America, N.A., 930 F. Supp. 2d 1082 (N.D. Calif. 2013).
The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") is a multilateral treaty. The signatory countries cooperate in returning children to their home country for custody proceedings. The United States assisted in drafting the Hague Convention and became a signatory in 1981. Hague Convention cases sometimes involve disputes over visitation rights, but more often these cases focus on returning a child whose parent has wrongfully removed the child from the home country or wrongfully retained the child in a foreign country. In return cases, the left-behind parent with custodial rights seeks the child's return to the country of habitual residence. Once the child is returned, the court in the child's home country can evaluate the underlying merits of the custody dispute.
If during the last two to three weeks you have spent any time on a soccer field, in the woods, or on the Massachusetts Turnpike, you have probably noticed that the Commonwealth's deciduous trees have been enjoying their annual star turn. The spectacular colors have reminded this blogger of the protection found in the Massachusetts General Laws for trees on privately owned land.