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.		  

March
2008

Volume 4
Number 3
Page 8
 

Summarizing opinions from July 1, 2007 through
Sept. 30, 2007

 

 
 
 


 

 

 

 

 

 

 


 

 

 

 
     

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

Carr v. Entercom Boston, LLC, 2007 WL 2840363 (Mass. Super.)
(Sept. 19, 2007) (van Gestel, J.).
     

On cross motions for summary judgment and judgment on the pleadings, the court (Judge van Gestel) issued the first judicial interpretation of G.L. c. 149, § 186. The statute renders void any agreement that restricts the right of radio or television broadcasters to obtain subsequent employment in a specific geographic area for a specific period of time following termination of another employment relationship.

Plaintiff Howie Carr had signed an agreement which prohibited him from performing broadcasting services for ninety days after leaving defendant’s employ (sec. II.B.4), and which further granted defendant a right of first refusal with respect to plaintiff’s services if he received another offer of employment within 180 days after termination of his relationship with defendant (sec. VIII).

Writing on a “tabula rasa,” the court found it “quite apparent that this statute is designed to protect employees in the broadcast industry from non-competition covenants in their employment agreements.” Id. at *7. Consequently, the

 

 


 

 

 

 

 


 

 

 

question of the validity of section II.B.4 was simple to resolve: the section ran afoul of the statue and was void. Id.

The validity of section VIII presented a more difficult question. If the right of first was refusal was exercised after termination of plaintiff’s employment relationship, then it would appear to be barred by the statute. But in this case, the right of first refusal was exercised before the termination of the employment relationship. The right of first refusal thus did not function as a restriction on post-employment activity; it merely extended the term of the original employment agreement. Id. at *9. The strictures of G.L. c. 149, § 186 thus did not come into play.

In concluding its analysis, the court acknowledged the potential merit of plaintiff’s claim that he could not be forced to work for defendant. Nevertheless, the court withheld judgment on that claim for another day on another record. In the meanwhile, the provisions of section VIII were declared valid and enforceable.


 
 

 

 

 


 

 

 

 

 


 

 

 
 
     
     
 

 

 
 


 


 

 

 



 


 

Go Best Assets Ltd. v. Goldings, 2007 WL 3054814 (Mass. Super.)
(Sept. 19, 2007) (van Gestel, J.).
     

Plaintiff sought to hold the former law partners of Morris Goldings liable for Mr. Goldings’ fraud. The court rejected the claims on a motion for summary judgment.

As an initial matter, the court ruled that the aiding and abetting claims alleged in the Amended Complaint would be related back to the original Complaint even though they would otherwise be barred by the statue of limitations. In support of this ruling, the court observed that the “theoretical underpinning” of the relation back doctrine is that “once an action has been timely brought, courts ought to regard indulgently any amendment whose  denial would deprive a plaintiff of a claim.” Id. at *3. The court nevertheless
 

 

 

 

 


 

 
rejected the claims, holding that plaintiff lacked standing to pursue them. “To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury” – and in this case, plaintiff’s injury “resulted from Goldings’s independent conduct, which was unrelated to the Partners’ actions.” Id. at *4. Moreover, there was insufficient evidence in the record to indicate that the partners had knowledge of Goldings’s scheme or that they gave Goldings knowing and substantial assistance. Id. at *5. Nor did the partners owe a duty of care to plaintiff, insofar as there was no attorney-client relationship between the parties. Id. at *6. 
 

 

 

 

 

 



 


 
 
     
     
 

 

 
 


 


 

 

 

 



 


 

Lunt v. Campbell, 2007 WL 2935864 (Mass. Super.)
(Sept. 24, 2007) (Fabricant, J.).
     

Plaintiff Plaintiff Lunt is the owner of a hair salon, who required each of the three defendants to sign a non-compete agreement as a condition of employment. Lunt sought a prelimin-arily injunction to enforce the agreement against her former employees.

Although the record established that the defendants were violating the non-compete agreement, the court held that plaintiff failed to prove the agreement itself was enforceable. Plaintiff claimed that the agreement was necessary to protect customer good will and confidential business information. The facts, however, raised considerable question as to who actually developed and enjoyed the good will of the customers served by the defendants –
 

 

 

 

 

 


 

 
after all, “[h]airdressers are not fungible; each employs individual skills and techniques that may, or may not, meet the needs and preferences of an individual client.” Id. at *3. Nor was it apparent that mere names and telephone numbers of customers with whom the defendants were acquainted constituted confidential information belonging to Lunt. The agreement was also suspect in terms of its scope: it purported to bind defendants for two years and to include all of Essex County within its ambit. Finally, the facts that Lunt called upon the defendants to sign the agreement on pain of termination and that the balance of harms did not favor Lunt both militated against awarding the injunction. To our eyes, this decision is part of a trend disfavoring enforcement of non competes.
 

 

 

 

 

 

 



 


 
 
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