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 5
 

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

 

 
 
 

 


 



 

 
     

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

Furlong v. Donarumo, 2008 WL 2875177
(Mass. Super. June, 2008) (Fabrican, J.).
     

Plaintiffs bought the defendants’ plumbing business, which subsequently failed. The defendants accelerated the promissory notes from the sale, started an eviction process, and repossessed the vehicles included in the sale. Plaintiffs filed for bankruptcy protection.

Plaintiffs sued defendants for alleged misrepresentations in connection with the sale, and defendants counterclaimed,



 

 


 
including bringing claims for “abuse of process” and “violation of Chapter 93A,” both based upon the allegation that Plaintiffs’ law suit was “motivated by a desire to retaliate” for their collection actions when the business failed. The court concluded that both counts were based “solely on petitioning activity” and dismissed them under M.G.L. ch. 231, § 59H, the anti-SLAPP statute.

 
 

 

 

 


 

 
 
     
     
 

 

 
 

 

 

 

 

 



 

Gent v. Teradyne, Inc., 2008 WL 2120824
(Mass. Super. Jan. 23, 2008) (Fabricant, J.).
     

Donald Gent sent Teradyne a books and records request under M.G.L. ch. 156D, § 16.02 for the purpose of investigating the company’s stock option grants to its officers and directors. His request stated his purpose, and attested under oath that he was a shareholder, but did not state the date when he became a shareholder. The company rejected the request and Gent filed suit. The court denied a motion to dismiss Gent’s action, concluding that he had sufficiently alleged entitlement to the books and records.

 


 

 


 

 

Donald Gent sent Teradyne a books and records request under M.G.L. ch. 156D, § 16.02 for the purpose of investigating the company’s stock option grants to its officers and directors. His request stated his purpose, and attested under oath that he was a shareholder, but did not state the date when he became a shareholder. The company rejected the request and Gent filed suit. The court denied a motion to dismiss Gent’s action, concluding that he had sufficiently alleged entitlement to the books and records.
 

 



 


 




 
 
     
     
 

 

 
 

 

 

 

 

 




 

In re Massachusetts Smokeless Tobacco Litig., 2008 WL 1923063
(Mass. Super. Apr. 9, 2008) (Gants, J.).
     

The court denied preliminary approval of a class action settlement of an action brought on behalf of Massachusetts residents who purchased smokeless tobacco between January 1, 1990 and the present, concluding that the all-coupon settlement payment was not “fair, reasonable, and adequate” as required for final approval of the settlement. Although there is “no controlling Massachusetts authority setting the standard for preliminary approval of a settlement,” the court did not believe it would be appropriate to grant preliminary approval, requiring an expensive notice to the
 


 

 



 

 

class, when it “fully intends to deny final approval.”

Coupon settlements raise special concerns, including that: (1) the actual value of the settlement to the class is generally far less than the face value of the settlement; (2) the only way to use the coupons is to buy more of the product from the company that committed the wrongdoing; and (3) the benefits may be illusory if the company already offers other comparable coupons or discounts to non-class members. The court found that each of these three issues applied to the proposed settlement.

 

 



 



 




 
 
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