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In one of the first appellate cases where the plaintiff claims to have been harassed by the defendant’s use of a drone, the Appeals Court has held that drone use and videotaping of property, while “nettlesome” and perhaps “disruptive,” could not justify the issuance of a harassment prevention order under G.L. c. 258E. The case, F.W.T. v. F.T., 2017-P-790, clarifies that typical drone use, such as flying it over another’s property and videotaping property is an insufficient legal basis to obtain a harassment prevention order. In vacating the Trial Court order against the defendant, the Appeals Court left open the question whether a drone could be used in a more intrusive manner that would satisfy the statutory requirements. The standard used to evaluate applications for harassment orders under c. 258E is well established under Massachusetts law. The plaintiff must demonstrate by a preponderance of the evidence that the defendant committed…
(This article originally appeared on the Boston Bar Association website. Reprinted here with permission.) The Boston Bar Association will honor Edward Barshak with its Lifetime Achievement Award on September 12 at the 2014 Annual Meeting Luncheon. A leader isn’t always the first one to speak up. A true leader exhibits command of speech so that when they do speak, their words carry weight. As we interviewed Boston’s most respected advocates and citizens for this profile, one phrase resonated among countless sound bites. “When Barshak speaks, everybody listens.” From Fitchburg’s Finest to One of Boston’s Best When he joined Mapplebeck, Alberts & Sugarman in 1957, Fitchburg native Edward J. Barshak had already carved out a reputation as one of Boston’s most promising trial attorneys. As the fifth attorney at what would later become Sugarman, Rogers, Barshak & Cohen, Ed set to work building what would soon become Boston’s top tier civil…
A federal judge has ruled in favor of an energy company that seeks to build a natural-gas compressor station in Weymouth, Massachusetts as part of an interstate pipeline construction project. The ruling, in Algonquin Gas Transmission, LLC v. Weymouth Conservation Commission, concluded that a ruling by the Weymouth conservation commission blocking the station under a local wetlands-protection ordinance conflicted with the exclusive authority of the Federal Energy Regulatory Commission and was therefore preempted. This ruling is an important development in an increasingly hard-fought area of litigation over expansion of natural-gas pipelines in the Northeast and nationally. The Weymouth compressor station at issue in the case was proposed by Algonquin Gas Transmission, LLC, a recently acquired subsidiary of Enbridge, Inc., as part of its “Atlantic Bridge Project,” a plan to expand natural-gas pipelines and related facilities serving the Northeast and Canada. (Enbridge’s marketing page for the Atlantic Bridge Project is here.)…
Published by the Boston Bar Association on October 25, 2024 (here). The importance of public service and academic excellence was instilled in Chris Netski at a young age while she was growing up in upstate New York. Both her parents were public educators and the first in their families to go to college. Her late father, a first-generation Polish-American who went to college under the G.I. Bill following service in World War II, understood the importance of equal opportunity and promoted diversity and inclusion throughout his career, including helping to lead the effort to integrate the public schools in their town in the late 1960s. Her parents’ commitment to their community and their positive influence on the lives of so many young people continue to inspire Netski today. “They inspired me to always be alert to how I might contribute to the betterment of our society, and they taught me…
The Boston legal community has lost one of its finest. Edward J. Barshak passed away peacefully on August 12, 2020, at age 96. For more than five decades as one of our founding partners, Ed was an icon of the trial bar and a fearless defender of civil rights. As a young lawyer, he courageously represented lawyers charged with engaging in communist activities during the McCarthy investigations and achieved the groundbreaking SJC ruling in Brown v. Commonwealth, 335 Mass. 476 (1957), recognizing a right to counsel for criminal defendants under the Massachusetts constitution – six years before the US Supreme Court’s decision in Gideon v. Wainwright. He later represented Mitchell Goodman in the now-famous federal prosecution against Dr. Benjamin Spock, Goodman, and three other co-defendants for advocating resistance to the Vietnam-War draft, culminating in the 1969 First Circuit decision vacating their convictions. In her book about the Spock trial,…
In the Boston Bar Journal’s Summer 2017 (Volume 61, Number 3) issue, Sugarman Rogers attorney Kate R. Cook and Hemenway and Barnes attorney Patrick Moore take a look at Executive Orders in their Legal Analysis entitled "Executive Order: Strike of a Pen, Law of the Land?" An excerpt: The President of the United States and the Governor of Massachusetts have the implied power to issue executive orders that, in certain contexts, will have the force of law. Focusing on the federal system and the Massachusetts state system, this article will address the concept of the executive order, how it has changed over time, and why executive orders are used to further wide-ranging policy goals. The article will also address the judicial scrutiny of executive orders, including, in particular, whether they are owed any deference or presumption of lawfulness. Read the full article here, or contact Kate R. Cook (cook@sugarmanrogers.com) for more information.
The First Circuit federal appellate court has affirmed a lower court’s dismissal of a lawsuit by the Town of Westport against the chemical giant Monsanto and related entities, ruling that the company could not have foreseen, in 1969, that PCBs it sold to manufacturers of caulk could volatilize at levels harmful to humans, in uses such as the construction of a town school in Westport. The decision, in Town of Westport v. Monsanto Company, also is likely to lead to dismissal of a parallel lawsuit against Monsanto by the Town of Princeton, also pending in federal court. A third federal suit against Monsanto, brought by the Town of Lexington, was dismissed in 2015. All three towns were seeking to recover the costs of remediating the PCB-containing caulks in their school buildings. The fate of the three school cases illustrates the multitude of challenges in seeking to hold Monsanto itself liable…
As the nation absorbs the tremendous scale of the damage caused by Hurricanes Harvey and Irma, a federal judge in Massachusetts this week kept alive a lawsuit charging that ExxonMobil has failed to adequately prepare an oil terminal in Everett Massachusetts to withstand storm surges, heavy rainfall and flooding. These are all effects that scientists warn will worsen and intensify with climate change. The succinct order, in Conservation Law Foundation v. ExxonMobil Corporation, permits CLF to seek a remedy against ExxonMobil for harms in what the court refers to as the “near future,” while barring litigation now over harm that may occur “far in the future.” The decision begs the question: Just what harms from climate change are sufficiently imminent to warrant granting judicial relief to litigants, and which are those that are “far in the future,” such that the courts should find that plaintiffs lack standing to sue? The…
In a case with significant implications for the management of the state’s shellfish industry, the Massachusetts Appeals Court has ruled that local conservation commissions, acting under their authority from the state Wetlands Protection Act (WPA), may regulate hydraulic dredging for sea clams—even where doing so impinges on rights otherwise granted to fishermen under state permits from the Department of Marine Fisheries (DMF). In Aqua King Fishery v. Conservation Commission of Provincetown (June 16, 2024), the Appeals Court struck down a Provincetown bylaw that regulated hydraulic dredging, after finding the bylaw inconsistent with state law. But the Court also held, in a significant win for local jurisdictions, that Provincetown could regulate hydraulic dredging for sea clams in shallow waters in its capacity as the local enforcement authority under the state Wetlands Protection Act. Hydraulic dredging is a method for harvesting clams from the ocean floor. It uses high-pressure jets of water…
The First Circuit’s recent decision in Full Spectrum Software, Inc. v. Forte Automation Systems, Inc., 858 F.3d 666 (June 2, 2024) addressed two important issues for parties engaged in the negotiation of commercial contracts in Massachusetts. The court upheld a jury verdict awarding nearly $500,000 in actual and punitive damages under Massachusetts General Laws chapter 93A against a software-development company in what began as a billing dispute with another developer. In affirming the verdict, the First Circuit held that even in dealings between such sophisticated business entities, the defendant was properly found liable for acting unfairly or deceptively, in violation of chapter 93A, when it “strung along” the other party by delaying the signing of a contract. The court also held that the trial judge properly permitted a jury to decide the defendant’s liability under chapter 93A, notwithstanding the defendant’s objection and uncertainty as to whether a plaintiff has a…
On February 6, 2013, commemorating the 20th anniversary of the Family and Medical Leave Act ("FMLA"), the U.S. Department of Labor issued its Final Rule (the "2013 Regulations") on the FMLA. The 2013 Regulations become effective March 8, 2013. The 2013 Regulations incorporate -- and in some cases, expand -- the military leave amendments of 2008. Families of eligible veterans now have the same protections as families of active military service members. The definition of "serious injury or illness" now covers pre-existing conditions aggravated by military service. A new leave category, parental leave, has been added to the qualifying exigency leave. The period of leave to be granted for a service member's rest and recuperation has been extended from five to 15 days. In addition, private health care providers, not affiliated with the military healthcare system, are now authorized to issue FMLA certifications for military-related leave. Listed below is a…
The New Hampshire federal district court recently joined a growing handful of courts to consider whether a lawyer who unwittingly falls for a common type of e-mail scam can obtain coverage under his professional liability policy to restore money taken by the scammer.1 The New Hampshire court held that under the particular language of the policy before it, the lawyer was not entitled to coverage. The case is now on appeal to the First Circuit. Other courts have split on this issue. The outcome in such cases, it has become clear, depends in part on variations in key language between different lawyer’s policies. The scam at issue in the cases originates with a familiar kind of solicitation e-mail. A scammer purporting to be an overseas business e-mails to ask for the lawyer’s help in a collection matter involving a customer in the lawyer’s state. If the lawyer agrees, the scammer…
Last week the cities of San Francisco and Oakland followed three other coastal California communities in filing lawsuits against the largest investor-owned fossil fuel companies, seeking to force them to create an “abatement fund” to pay for infrastructure costs—allegedly in the billions of dollars—the cities say they will incur to respond to sea level rise, storm surges and other effects of global warming. The lawsuits, which follow suits recently filed by Imperial Beach and by San Mateo and Marin counties, name as defendants BP, ExxonMobil, Chevron, and Shell, among others. The suits allege that the companies have long understood that the use of the fossil fuels they extract, refine, market, and deliver would drastically change the earth’s climate. With Massachusetts’ coastal communities also facing billions of dollars in infrastructure, adaptation, and resiliency costs, are similar lawsuits in the Bay State soon to follow? The main legal theory in the California…
The Massachusetts Appeals Court has confirmed that private parties may not use litigation to seek enforcement of “public trust rights” in tidelands governed by M.G.L. c. 91 (“Chapter 91”) outside of the Chapter 91 licensing program. In its July 10, 2024 decision in Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC, the Appeals Court rejected a landowner’s claims that certain legal and contractual restrictions that had been placed upon its use of its waterfront marina property violated the public trust doctrine because they limited the public’s access to that property. At issue in this case was Boston Boat Basin’s marina on the seaward side of Commercial Wharf in Boston Harbor. The marina is accessible to the public only by way of an easement over the Commercial Wharf East Condominium Association’s (“CWCA”) property—which encompasses the landward portion of the wharf. The party that owned the land prior to Boston…
On April 13, 2018, the Massachusetts Supreme Judicial Court ruled that the state Attorney General can proceed with her investigation into whether Exxon Mobil Corporation (“ExxonMobil”) violated the state consumer protection law (G. L. c. 93A) by concealing its knowledge about whether and how fossil fuel emissions contribute to global warming and climate change. Unless the U.S. Supreme Court intervenes, as a result of the SJC’s decision in Exxon Mobil Corp. v. Attorney General ExxonMobil will now be required to disclose reports, communications, and other materials concerning the company’s understanding of climate change risks, its potential failure to inform the public about those risks, and its efforts “to undermine the evidence of climate change altogether, in order to preserve its value as a company.” The events leading up to this case began in April 2016, when the Attorney General served a civil investigative demand (C.I.D.) seeking a wide range of…
The firm offers a variety of access points for remote access to resources. The preferred methods are either using your firm-issued laptop, or the remote desktop service, as these provide a more complete remote working experience. Individual services are accessible directly as well, and links have been provided below. VPN (for laptop users) Remote Desktop (remote access to virtual desktop) https://remote.srbc.com Outlook Web Access (email) https://outlook.com/sugarmanrogers.com Mimecast Personal Portal (manage messages on hold and backup access to recent mail in the event of a Microsoft outage) https://webmail-us.mimecast.com/ NetDocuments (document management system) https://vault.netvoyage.com/ Rippe LMS+ (time & billing) https://sugarmanrogers.rippe.com/ iTimeKeep (time entry) https://services.bellefieldcloud.com/newdesktop/#/login Rippe LMSV (for admin/billing) https://lms.rippecloud.com/rdweb Nextpoint (litigation support/document review and productions) https://sugarman-rogers-barshak-cohen.nextpoint.com/login LoopUp (conference calls) https://account.loopup.com/
The Massachusetts Appeals Court has ruled that a non-conforming lot, owned by a trustee in her capacity as trustee, did not automatically merge with an adjacent lot owned by the trustee in her personal capacity simply by virtue of the trustee’s extremely broad powers over the trust’s assets, which include the nonconforming lot. Rather, the Appeals Court held, the question of whether the lots merged, such that the nonconforming lot lost its protection from zoning requirements enacted after the creation of the lot, is a fact intensive exercise to determine whether the form of the trust is being used to defeat the law of merger or if there are other reasons to disregard the form of the trust. The decision, Kneer v. Zoning Board of Appeals of Norfolk, has interesting implications for zoning, probate, and estate planning law. Merger and Grandfathering The case illustrates the interplay between two important related…
A Massachusetts Superior Court judge has refused to dismiss a legal-malpractice claim against two lawyers who unsuccessfully defended a lawsuit arising from the sale of a plumbing business. In that suit, having turned down a pre-trial settlement for $700,000, the client was forced to settle after trial by paying $1.6 million. While the client’s unhappiness with that result (after having spent $600,000 in legal fees) is hardly surprising, the decision that the malpractice case should continue is difficult to reconcile with governing law on the limits of a litigation lawyer’s duties in counseling about litigation risks. The case, Donarumo v. Phillips, began with client Andrew Donarumo’s sale of his plumbing business to Michael and JoAnn Furlong for $1,000,000. In discussions leading up to the sale, Donarumo told the Furlongs, who had limited relevant business experience, that the plumbing company was in good health and could be run by its remaining…
The Massachusetts Supreme Judicial Court has once again emphasized the high stakes, under the state’s consumer-protection statute, for an insurer who delays in settling a clear-liability case and allows the matter to go to trial. In its February 10, 2025 decision in Rhodes v. AIG Domestic Claims, Inc., the Court awarded $22.6 million in punitive damages—plus attorneys’ fees, on top of the $11.8 million already recovered by the plaintiffs—against an insurance claims service, AIGDC,1 for unfairly and willfully delaying settlement of a clear-liability automobile-accident case. The Court applied language of the Massachusetts consumer-protection statute, Chapter 93A, and made the $22.6 million award despite acknowledging that the figure bore no relationship to any identifiable harm caused by AIGDC’s settlement delay. The case arose from a 2002 accident in which a tractor-trailer rear-ended a car driven by 46-year-old Marcia Rhodes, who had been stopped by a police officer directing traffic around a…
Two federal appeals courts have recently issued opinions in key social engineering fraud coverage cases, in both instances finding that the policies in question provided coverage for the insureds’ losses. The decisions stand in contrast to certain earlier cases, including one from the Fifth Circuit, in which no coverage was found for similar types of scams. In American Tooling Center v. Travelers Cas. & Sur. Co. of America, 2018 WL 3404708 (6th Cir., July 13, 2024), the Sixth Circuit reviewed whether there was “computer fraud” coverage for a spoofed e-mail scheme in which thieves impersonated one of the insured’s overseas vendors in order to divert vendor payments. The insured, a tool and die manufacturer, outsourced some of its work to a Chinese company, which periodically invoiced the insured via e-mail. Cybercriminals were able to intercept e-mails between the insured and the vendor and began to e-mail the insured, posing as…
Citrix Remote Access https://remote.srbc.com You will need to download the Citrix client software before accessing the server. Clicking on this link should automatically detect your operating system and download the appropriate client for your computer: http://receiver.citrix.com **after installing on a MAC, click on this link to configure client settings: citrixreceiver://createprofile?pname=SRBC%20Citrix%20Applications&s=https%3A%2F%2Fremote.srbc.com&gw=0 Once you have the client software installed, point your browser to: https://remote.srbc.com If you have not installed the software prior to your first visit, you will be prompted to do so automatically. It is recommended you install the client from one of the above links prior to visiting the remote server. If you have installed the software, you will see a login screen. Simply enter your username and your network password. Once logged in, you may select individual applications to launch, or you may launch a desktop session. After you're done with your work, please make sure you log off…
Sugarman, Rogers, Barshak & Cohen is proud to announce that all of their female partners have been named "Top Women Attorneys in Massachusetts" by Super Lawyers and were featured in the April issue of Boston magazine. Lisa C. Goodheart and Christine M. Netski both made the "Top 50 Women Attorneys in Massachusetts" list; Goodheart for her work in Environmental Litigation, and Netski for her work in Business Litigation. In addition, managing partner Regina E. Roman was recognized for her work in Insurance Coverage, along with Susan A. Hartnett. Alisa L. Hacker was featured for her work in Family Law, and Andrea Studley Knowles made the list for her work in Product Liability Defense. "We are so proud of this accomplished group. Their recognition further validates our long tradition at Sugarman Rogers of recruiting, hiring, promoting and supporting first-rate women lawyers," said William L. Boesch a partner and member of Sugarman…
On May 31, 2016, in a case of first impression, the Massachusetts Supreme Judicial Court ("SJC") ruled in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., et al. (474 Mass. 382) that an employee who accesses and copies confidential company documents and shares those documents with an attorney as potential evidence in support of a discrimination claim may be deemed to have engaged in "protected activity" under G.L. c. 151B. Case Summary Verdrager, a female attorney, was employed by Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., as an associate from June 2004 to November 2008. Shortly after Verdrager was hired, she reported to the firm’s management that a male partner had made inappropriate comments to her. Verdrager received mixed performance reviews until she took a parental leave in 2006. Several months after returning from leave, Verdrager received a negative review and was then asked to take a two-year…
The Massachusetts Supreme Judicial Court this week significantly expanded state constitutional protection for parks and other open public spaces. In doing so, the court came down on the side of conservationists in a common dispute with public officials over potential use of municipal land for public improvements, including roads and schools, but also including other newer uses of municipal open space, such as for wind turbines and solar arrays. The SJC ruled, in Smith v. City of Westfield, that the defendant city could not, without a super-majority vote of the state legislature, build an elementary school on city land that had long been used as a public park, even though no written restriction was ever recorded designating the land for protection under Article 97 of the Massachusetts constitution, the state’s “Environmental Bill of Rights.” Reversing a decision of the Appeals Court, the SJC held that no such recording in the…
Retail stores, restaurants, and other commercial tenants are shut down. Shipments of parts are delayed. Long-planned vacations and wedding celebrations have been cancelled. Childcare facilities and gyms are closed indefinitely. From corporate boardrooms to kitchen tables, the economic impacts of the coronavirus (COVID-19) pandemic and the resultant lockdowns are impossible to ignore—to say nothing of its devastating public health impacts. Among the myriad ways the virus has disrupted life in recent weeks, COVID-19 is wreaking unprecedented havoc on the performance of contractual agreements—from industrial to personal—raising thorny questions about who bears the costs when obligations aren’t met, and what remedies are available to parties who do not receive the benefit of their bargain. While the challenges presented by this pandemic may be unique, there are a number of established legal concepts that provide a framework for addressing these questions and determining the respective rights and obligations of companies and individuals…
When does the three-year statute of limitations begin to run, under the Massachusetts hazardous waste cleanup statute, for a property owner’s claim for property damage that is not resolved by a cleanup? A January 19 decision of the Massachusetts Supreme Judicial Court announced an important clarification of the answer. Under General Laws Chapter 21E, the clock on such claims does not begin to run when the owner first learns that her property has been contaminated, but only when the owner learns that the damage is permanent and cannot be reasonably remediated, and also knows (or should have discovered) the identity of the party responsible for the contamination. The decision, in Grand Manor Condominium Association v. City of Lowell, revived a condominium’s property-damage claim against the city of Lowell for contamination from a city-operated landfill, for damage caused decades before the condominium’s construction. Chapter 21E Chapter 21E identifies five categories of…
A Delaware superior court has granted summary judgment for a lawyers' professional liability insurer represented by Sugarman Rogers's William Boesch, in a dispute with an insured law firm over a claim seeking return of some $215 million in fees awarded in a securities class action. The law firm was co-lead counsel for the plaintiffs in the Tyco companies securities class action. The matter was settled in July 2007, and a New Hampshire federal judge approved the settlement, including over $460 million in contingent fees sought by the lead-counsel firms. In 2010, a member of the plaintiff class, Richard Gielata, sued the law firm, charging that the size of its fee violated a 2004 agreement in which the firm had agreed to cap the amount of its fees, and to oppose larger fees if sought by co-lead counsel. Gielata sought to have the firm return some $215 million in allegedly overcharged fees, plus punitive…
Sugarman Rogers partner David Barry has obtained a $900,000 settlement for the estate of a 39-year-old woman who died after undergoing surgery to remove uterine fibroids. The plaintiff’s decedent was a 39-year-old woman who suffered from hypertension, diabetes, moderate obesity and end-stage-renal disease for which she was on dialysis. On July 26, 2024 she underwent gynecological surgery to remove uterine fibroids, which was performed under general anesthesia. The defendants were the attending anesthesiologist and a first-year resident who assisted during the procedure. While the patient was under general anesthesia, her blood pressure dropped precipitously and remained at an abnormally low level for approximately 45 minutes. Immediately thereafter, the patient’s heart rate dropped to around 30 beats per minute and remained at that level for 15 minutes at which time her blood pressure and heart rate were finally restored. However, the patient never regained consciousness and remained in an irreversible coma…
Lisa C. Goodheart has been inducted as a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America. The induction ceremony took place on September 29, 2018, at the 2018 Annual Meeting of the College, which was held in New Orleans, Louisiana, and attended by over 1,000 people. Lisa’s litigation practice spans a broad range of complex environmental, energy, land use, real estate, insurance, and business matters. On behalf of private and public sector clients, she has practiced for more than 30 years in state and federal courts at both the trial and appellate levels. Lisa chairs the Environmental and Energy Law and Real Estate Litigation Practice Groups at Sugarman Rogers, and has been consistently recognized by The Best Lawyers in America, Chambers USA, Who’s Who Legal, and Super Lawyers. She is a past President of the Boston Bar Association and has served…
