A judge dismissed a flurry of proposed class actions alleging retailers flouted a Massachusetts law requiring that job applications include a notice of the state's ban on lie detectors, while a personal injury law firm couldn't escape a former associate's suit over its unilateral decision to eliminate commissions for cases he brought to the firm, among notable state court decisions in November.
Here are four recent rulings from the Suffolk County Superior Court's Business Litigation Session.
No Harm, No Case in Lie Detector Litigation
Justice Christopher Barry-Smith tossed claims against Nike, Bloomingdales, Walmart and Warby Parker over the four retailers' failure to include a notice on job applications that the use of lie detectors in employment decisions is illegal in the Bay State.
In a Nov. 25 ruling, Justice Barry-Smith concluded that none of the plaintiffs in the proposed class actions could show they had since suffered anything more than minimal, slight or speculative harm, and therefore lack standing to bring a complaint under the statute.
The complaints were among a recent spate of similar proposed class actions brought against national companies hiring workers in Massachusetts. The lawsuits have all alleged that the employers' failure to provide the notice, required under a 1985 statute, entitled the plaintiffs to compensation of at least $500 per violation.
The four companies argued the plaintiffs could not show that they had standing or suffered any more than minimal, slight, or speculative harm.
None of the employers use lie detector tests in their hiring process, the judge said.
The retailers argued two theories: that the statute only creates a cause of action for employers who actually do use lie detectors, which the judge rejected, and that none of the plaintiffs had actually suffered the sort of harm entitling them to relief, a view the judge shared.
The judge, in considering whether any of the plaintiffs were "persons aggrieved" by the omission, looked at similar statutes covering zoning laws, administrative appeals, discrimination, and insurance, and concluded that a plaintiff must show more than a minimal, purely technical harm.
"Further, any harm plaintiffs assert is speculative, at least as to employers that do not use lie detector tests," Justice Barry-Smith said.
The plaintiffs are represented by James E. Kruzer and David S. Godkin of Birnbaum and Godkin LLP and Julian C. Diamond, Joseph I. Marchese and Matthew A. Girardi of Bursor & Fisher PA and James J. Reardon Jr. of Reardon Scanlon LLP.
Nike is represented by Daniel B. Klein and Michael E. Steinberg of Seyfarth Shaw LLP.
Bloomingdales and Walmart are represented by Derek Gillis, Kateryna Kingsbury and Edward Shoulkin of Barton Gilman LLP.
Warby Parker is represented by Douglas J. Hoffman and Alexander J. Reganata of Jackson Lewis PC.
The cases are Ababio v. Nike Retail Services Inc., case number 2584CV01134, Shi v. Bloomingdales LLC, case number 2584CV01138, Lamas v. Warby Parker Inc., case number 2584CV01164 and Alexandrovicz v. Walmart Inc., case number 2584CV01352, all in the Suffolk County Superior Court of the Commonwealth of Massachusetts.
Insurance Class Action Not Totaled
Justice Debra A. Squires-Lee trimmed a proposed class action against Progressive Direct Insurance Co., finding that a customer had made a plausible claim that the auto insurer had engaged in unfair practices by refusing to write her a policy that included collision coverage — but that in doing so, the company may now escape two breach of contract claims.
In a Nov. 25 decision, the Business Litigation Session justice found that the insurer "cannot have breached a contract in advance of its formation," dismissing two contract-based claims brought by the plaintiff.
Danielle Gondola had sought optional collision and comprehensive coverage for two cars she owned in 2023, as required by her auto lender.
Insurers are allowed to deny such coverage in Massachusetts under some limited circumstances involving high-risk drivers, but instead, Progressive cited a "binding restriction," based on what it later said was a report of potential flooding, and denied her that coverage, as well as her later claim after an accident in her Mazda SUV, the judge wrote.
Based on the record at the time of the hearing, the judge found, Gondola had made out a straightforward claim under the state's consumer protection law that Progressive had "refused to provide coverage it was obligated by law to offer by misrepresenting its reliance on a 'binding restriction.'"
"Progressive's assertion that it is not obligated to offer optional coverage and that binding weather restrictions are commonplace and/or approved by the Commissioner of Insurance is not supported," Justice Squires-Lee wrote.
However, since the collision and comprehensive coverage was not included in Gondola's policy, there was no contract, leading the judge to dismiss breach of contract and breach of good faith claims.
"Here, the agreement between the parties did not include the optional insurance coverage," Justice Squires-Lee said. "Because Progressive did not offer those coverages, plaintiff did not accept them, and Progressive therefore cannot be liable in contract for breach of them."
Gondola is represented by Joshua N. Garick of the Law Offices of Joshua N. Garick PC and Scott G. Gowen of the Law Offices of Scott G. Gowen.
Progressive is represented by Melanie A. Conroy of Pierce Atwood LLP and Karl Bekeny, Brianna Soltys and Ariana Benard of Tucker Ellis LLP.
The case is Gondola v. Progressive Direct Insurance Co., case number 2484CV02902, in the Suffolk County Superior Court of the Commonwealth of Massachusetts.
Real Estate Investors Hit With Injunction
Justice Squires-Lee blocked a California real estate investment firm from more than doubling rents at a South Shore mobile home park, partially granting a request from the state attorney general's office in a lawsuit alleging BoaVida Group LP and its affiliates violated the state's Manufactured Housing Act.
In a Nov. 18 order, Justice Squires-Lee said BoaVida can charge no more than $385 per month — a rent that the company had set in January 2023, shortly after purchasing Willow Terrace in Taunton — until January 2028 or the resolution of the case, whichever is sooner.
Because of the unique circumstances of manufactured housing, where residents typically own their home but rent a lot, and the challenge of selling such a property, the state requires owners of such parks to offer five-year leases.
The suit alleges that BoaVida did not offer leases and continued to increase the rent further in 2024 and 2025, when the attorney general's office got involved. In response to a demand letter, BoaVida hiked the rent again, to $702 per month, and blamed the attorney general's office, according to the decision. When the AG called that deceptive, BoaVida announced it was ending all tenancies at will as of July 31, then offered tenants a five-year lease at $703 per month.
Justice Squires-Lee found that while BoaVida was not barred from increasing the rent after purchasing the property, as long as it complied with the law and offered a lease, it had likely engaged in retaliation in response to the AG's involvement.
"The Commonwealth has presented evidence that the defendants offered leases more than doubling the rent within four months of receipt of the AGO's March 2025 notice and while in settlement discussions with the AGO," Justice Squires-Lee wrote. "Indeed, the defendants informed tenants of the rent increase despite being aware that the AGO considered such an increase to be retaliatory because it was in such close proximity to protected advocacy."
The judge rejected BoaVida's arguments that the rent increase took place more than six months after the tenants first complained to the AG, putting it outside the statutory and regulatory presumption time frame for a retaliation claim. The judge said such an interpretation would "unduly curtail" the intent of lawmakers in creating tenant protections.
"Had the defendants complied with their obligation when they increased rent in January 2023, the residents of Willow Terrace would have had the stability of a five-year lease required by the Act," Justice Squires-Lee wrote. Instead, they were put in a position where they would have no time to plan a sale or prepare for a steep rent increase, the ruling said.
The government is represented by Ellen Peterson, Matthias Fressilli, Michael Turi and Jessica Rahmoune of the Office of the Attorney General of the Commonwealth of Massachusetts.
The defendants are represented by Robert Kraus and John J. Prettyman of Kraus & Hummel LLP and Thomas A. Woods of Stoel Rives LLP.
The case is Commonwealth v. The BoaVida Group LP, case number 2584CV02493, in the Suffolk County Superior Court of the Commonwealth of Massachusetts.
Ousted Associate May Pursue Wrongful Termination Claims
A Massachusetts personal injury law firm still faces the bulk of claims brought by a former associate who says he was fired after complaining about the firm's unilateral decision to eliminate commissions on cases he brought in, allegedly to prevent him from earning more than three recently-hired partners.
Mark Cashman sued Sweeney Merrigan Law LLP and two partners, Tucker Merrigan and Peter Merrigan, for breach of contract, several counts of wrongful termination based on various grounds, and violations of the state's wage law.
In a Nov. 13 decision, Justice Squires-Lee dismissed one wage law claim, finding that commissions Cashman says he was owed hadn't been calculated on the day he was fired. Under his employment agreement, the firm first had to receive payment of the fees and then calculate its share, the court found.
However, Sweeney Merrigan's motion to dismiss the other counts was unsuccessful.
Cashman, who worked for the firm from 2017 until 2021, was paid a salary plus bonuses, and commissions based on a percentage of income he generated, eventually 20%.
Cashman says in the lawsuit that after the firm hired the new partners in 2021, he was told that his compensation plan "was done" and that he would now make a flat yearly salary of $120,000, with a potential future raise and a role as a "department leader" for medical malpractice cases.
During a subsequent meeting, Tucker Merrigan allegedly told Cashman, "You don't seem happy here. I think we should separate," according to the decision. Cashman also learned that the firm would be contacting his clients without giving them an option of choosing to remain with Cashman or the firm as called for in the state's Rules of Professional Conduct.
Cashman had approximately a dozen cases at the time that eventually generated fees entitling him to $1.5 million, according to the decision, including two that settled shortly after his termination, and that at a minimum, he would have been owed $143,000 for those cases, plus a $10,000 scheduled bonus.
"The factual allegations of the complaint plausibly suggest that SML terminated Cashman without good cause to avoid paying him the commission he was owed or had 'almost earned … under the agreed-upon compensation structure," Justice Squires-Lee wrote in denying dismissal of the breach of contract and wrongful termination based on bad faith.
Similarly, the judge let stand a claim of wrongful termination against public policy, saying that Cashman's objection to the firm's plan to contact his clients directly, and his termination immediately after that, could also be viewed as going against the public interest.
The judge also allowed a Wage Act claim based on retaliation to proceed, finding that his complaint about the firm's decision to take away his commissions could be viewed as leading to his firing.
The plaintiff is represented by Joseph P. Musacchi and Anthony Tarricone of Kreindler & Kreindler LLP.
The defendants are represented by John D. ARnold, John Thomas Graff and Sophie A. Levine of Hirsch Roberts Weinstein LLP.
The case is Cashman v. Sweeney Merrigan Law LLP et al., case number 2584CV01207, in the Suffolk County Superior Court of the Commonwealth of Massachusetts.
Deal Summary
