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.		  

October
2008

Volume 5
Number 2
Page 6
 

Summarizing opinions from April. 1, 2008 through
June. 30, 2008

 

 
 
 

 


 

 
     

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

Fray-Witzer v. Metropolitan Antiques, LLC, 2008 WL 3916091
(Mass. Super. June 18, 2008) (Gants, J.).
     

The court approved a class action settlement of a “junk fax” action for a $1,800,000 cash settlement fund. There is nothing substantively notable in the




 
decision, but it contrasts with the denial of preliminary approval of the all coupon settlement in the smokeless tobacco
case.

 
 

 


 

 
 
     
     
 

 

 
 

 

 

 

 

 


 

Bank of America, N.A. v. Deloitte & Touche LLP, 2008 2423265
(Mass. Super. June 13, 2008) (Gants, J.).
     

The court granted a motion to compel production of documents, holding that the parties resisting discovery had waived any work product protection for the documents by previously producing them to the U.S. Securities & Exchange Commission (“SEC”) in response to a subpoena.

The court applied a two-pronged analysis, asking whether: (1) the SEC wasan “adversary” when the parties

 


 

 

 

 

produced the documents at issue; and (2) the disclosure to the SEC substantially increased the possibility that an adversary would gain access to the documents. The court concluded that the SEC was not an adversary when the documents were produced, but that the production had substantially increased the possibility that an adversary would gain access to the documents, because the SEC often makes its files available to other government agencies.

 

 



 






 
 
     
     
 

 

 
 

 

 

 

 





 

IJRB Medical Assoc., Inc. v. Moran, 2008 WL 2121002
(Mass. Super. May 1, 2008) (Fabricant, J.).
     

The court denied Defendant Robert Carlino’s motion for judgment on the pleadings on a Chapter 93A claim against him by his former employer, JRB Medical Associates, Inc. (“JRB”). JRB alleged that Carlino used its confidential information to solicit customers for a competitor, Professional Laboratory Systems, Inc. (“Prolabs”). Co-Defendant John Moran remained with JRB longer than Carlino, but also eventually left to go to Prolabs. Notably, the complaint alleged that after leaving his employ-ment with JRB, Carlino conspired with Moran, who at this time
 


 

 


 

 

was still with JRB, to obtain more confidential information from JRB to use at Prolabs.

The court agreed that Chapter 93A does not apply to the relationship between an employer and employee. “This doctrine does not, however, immunize a former employee from all c. 93A claims brought by his former employer.” The allegations that Carlino conspired with Moran after Carlino left JRB stated a claim for violation of Chapter 93A, which did not depend on his former employment relationship.

 

 



 







 
 
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