A quarterly summary and brief analysis of significant decisions issued by the Massachusetts Superior Court Business Litigation Session. A service of O’Connor, Carnathan and Mack LLC.		  

July
2008

Volume 4
Number 4
Page 9
 

Summarizing opinions from Oct 1, 2007 through
Dec. 31, 2007

 

 
 
 

 

 

 

 

 

 

 



 

 
     

O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Heffernan v. Robeco Inv. Management, Inc., 2007 WL 3244422 (Mass. Super.)
(Oct. 25, 2007) (Fabricant, J.).
     

Plaintiff Heffernan was recruited to work for Robeco Investment Management (“RIM”), a wholly-owned subsidiary of the Robeco Group. Heffernan alleged that he was promised yearly salary and commissions totaling between $750,000 and $1,000,000, and that he devoted substantial effort to the successful completion of several large-scale transactions on behalf of the Defendant companies. He further alleged that he was terminated without cause and without being paid his commissions. Plaintiff brought suit against RIM and Robeco Group, as well as against his immediate supervisor, raising several potential theories of recovery. Defendants moved to dismiss for failure to state a claim, lack of personal jurisdiction, and inadequacy of service.

The Court found that Plaintiff’s complaint adequately stated claims against all Defendants. Beginning with Defendants’ invocation of the statue of frauds, the Court held that while Plaintiff failed to allege that his employment agreement was in writing, he was not required to do so at this stage of the litigation – for “the statute of frauds is an affirmative defense, as to which the burden of proof is on the Defendant.” Id. at *3. The Court further held that Heffernan had adequately pleaded facts to support a claim against Robeco Group, even though he was hired by its subsidiary, RIM. “A contract of employment, like any other type of contract, may be inferred from the conduct of the parties and from the attendant circumstances. Here the complaint alleges that Heffernan was 

 

 

 

 

 

 



 

 
recruited and hired by RIM, but that thereafter he devoted substantial time and effort to selling Robeco’s product … and enrichment were likewise allowed to stand, as were claims for interference with contract against Robeco Group and Plaintiff’s supervisor.

Turning to the questions of personal jurisdiction and adequacy of service, the Court noted that the parties had provided conflicting evidentiary materials beyond the complaint for the Court’s consideration. The motion to dismiss on these grounds “thus present[ed] the initial question of how the Court should treat this material, and how it should resolve the factual conflict for purposes of this motion, pursuant to Mass. R. Civ. P. 12(b)(2) and 12(b)(5).” Id. at *5. Invoking the decision of the Appeals Court in Cepeda v. Kass, 62 Mass. App. Ct. 732 (2004), the Court chose to apply a prima facie standard to Plaintiff’s submissions for purposes of the motion to dismiss – that is, the Court considered “only whether the Plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.” Id. Under this standard, the Court found that Robeco Group had transacted business in Massachusetts and that Plaintiff’s claims arose from that transaction; exercise of personal jurisdiction was therefore proper. Id. at *7. Finally, with respect to service of process, the Court held that service abroad pursuant to the Hague Convention was not required in this case, and that service upon RIM as managing agent for Robeco Group was validly executed.


 
 

 

 

 

 

 

 

 

 



 
 
     
     
 

 

 
 

 

 

 

 

 

 

 

 

 


 


 

O’Marah v. Walkey, 2007 WL 4415543 (Mass. Super.)
(Nov. 26, 2007) (Fabricant, J.).
     

In The members of a real estate development LLC; signed a settlement agreement resolving a dispute, but could not agree on certain attachments to the settlement agreement. Plaintiff sued to enforce the settlement agreement. Defendant counterclaimed for breach of the LLC operating agreement, fraudulent inducement, and abuse of process.

Plaintiff moved for dismissal of the abuse of process counterclaim pursuant to the anti-SLAPP statute, G.L. c. 231, § 59H. The Court found that Plaintiff met his burden of showing that this claim was based solely on the petitioning activity of bringing his own cause of action; the burden thus shifted to Defendant “to show by a preponderance of the evidence both that the filing of this suit was devoid of any reasonable factual support or arguable basis in law, and that it caused him actual injury.” Id. at *3. The Court held that Defendant could not meet that burden, insofar as the Court had previously found that Plaintiff had a
 

 


 

 

 

 

 

 


 

 

likelihood of success on his claim for enforcement of the settlement agreement. The Court did not disagree with Defendant’ argument that this was not the sort of case that the anti-SLAPP law was intended to address. Nevertheless, “[a]s the Supreme Judicial Court has held … the statutory language is broad, and Courts are obliged to apply the statute as written.” Id. The statute thus required dismissal and entitled Plaintiff to an award of attorneys’ fees incurred in connection therewith.

The Court dismissed most of Defendant’s remaining counterclaims on the grounds that the operating agreement required such claims to be submitted to arbitration. But the Court allowed Defendant’s fraudulent inducement count to survive, despite the fact that the settlement agreement included an exculpatory clause disclaiming any representations not expressly set forth therein – for “Massachusetts law does not enforce exculpatory clauses against claims of fraud.” Id. at *4.

 

 

 

 

 

 

 

 

 

 


 


 
 
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