Earlier this year, the Social Law Library hosted the “2018 Business Litigation Year in Review.” The presenters, including BLS Judge Kenneth W. Salinger, offered commentary on some recent BLS decisions.

  • Roadmap to Settling with Class Plaintiffs. In Frost v. Malden/Dockside, Judge Davis enjoined the defendants from attempting to settle with class plaintiffs. Judge Davis found that the defendants presented plaintiffs with a misleading disclosure letter full of legalese. Judge Davis also found that the defendants’ meeting with the plaintiffs was coercive. Judge Davis suggested that the case might have come out differently if the defendants had been more forthcoming. Judge Davis’ opinion, Judge Salinger commented, provides a potential roadmap for defendants to navigate communications with class plaintiffs. First, ask the court’s permission to settle with the individuals. Second, present the proposed defense-to-plaintiff communication to the BLS for its approval. Third, discuss the expected way in which the proposed communication will be delivered to putative class members.
  • Anti-SLAPP Affidavits. In AM Project Norwood v. Endicott South Development, Judge Salinger ruled that to prevail on a special motion to dismiss in the Anti-SLAPP context, “the special movant bears the initial burden of showing, through pleadings and affidavits, that the claims against it are based on the petitioning activities and have no substantial basis other than or in addition to the petitioning activities.” This means that anti-SLAPP challenges may begin to look more like challenges to subject-matter jurisdiction where, in addition to the pleadings, there is the option to consider outside evidence in the form of affidavits.
  • Confidential Settlement Information May Be Fair Game. In Crosby Valve v. OneBeacon America, Judge Sanders ruled that where a confidential settlement is material to a party’s ability to assert or defend a claim, “the public policy favoring settlement must give way” and, consequently, the court can compel disclosure. But Judge Sanders also ruled that the content of settlement discussions leading to the final settlement should not be subject to disclosure. Judge Sanders reasoned that “if the content of settlement discussions were discoverable, that could very well discourage others from seeking compromise or from speaking with candor in an effort to reach an agreement.”
  • SJC Ruling Will Likely Lead to More Fact Finding on Quantum Meruit Claims in Construction Cases. In G4S Technology LLC v. Massachusetts Technology Park Corporation, Judge Sanders ruled that G4S was barred from seeking recovery under quantum meruit because G4S intentionally filed false certifications of timely payments to subcontractors. The SJC reversed the award of summary judgment on the quantum-meruit claim for further fact finding. Reaching its ruling, the SJC overruled an older line of cases and held that the good-faith element of a quantum-meruit claim applies to a contract as a whole and that “the intentional commission of breaches of individual contract provisions must be considered in the over-all context, including the value of the uncompensated work, the damage caused by the breach, the total performance of both parties, and the balancing of equities to accomplish a just result.”