Thoughts on Some Less-Obvious Threats to Campus Free Speech

Pyle

by Jeffrey J. Pyle

Legal Analysis

Debates about free speech on campus have long centered on “speech codes”—overt policies that restrict constitutionally-protected speech deemed offensive to others. Groups such as the American Association of University Professors (AAUP), the American Civil Liberties Union (ACLU), and the Foundation for Individual Rights in Education (FIRE), consistently oppose such policies because, in the AAUP’s words, “On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.”

Speech codes, however, are not the only restraint on freedom of expression on today’s college campus. Public and private universities and state governments have adopted policies that pose a less direct but substantial threat to peaceful protest and debate on important issues. This article discusses two of them: the practice of charging student groups that invite controversial speakers to campus for security costs based on the likely reaction to the speech, and state anti-“Boycott Divestment Sanctions” legislation that applies to public universities.

  1. Security Fees Based on Likely Reaction to Speech.

In Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992), the Supreme Court struck down a Georgia county ordinance that permitted the assessment of security fees for demonstrations on public property. Under the ordinance, county administrators had discretion to impose higher fees for events featuring controversial speakers, based on the anticipated hostile reaction to the speech. This, the Court held, amounted to unconstitutional content regulation: “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Id., 505 U.S. at 134-35.

In recent years, courts have applied this principle to speeches on public university campuses.  In Young America’s Foundation v. Napolitano, No. 17-CV-02255-MMC, Doc. 62 (N.D. Cal. Apr. 25, 2018), the University of California, Berkeley, billed $15,738 to a conservative group that had invited right-wing commentator Ben Shapiro to campus, allegedly to cover necessary security for the event. The relevant university policy adhered to Forsyth’s directive that the amount of the fee cannot be based on the likely reaction of hecklers. However, Berkeley failed to explain why it charged three times as much for Shapiro as it had charged for a different high-profile speaker, U.S. Supreme Court Justice Sonya Sotomayor. Accordingly, the Court denied Berkeley’s motion to dismiss the as-applied First Amendment challenge to the fee assessed on the conservative group.

Private universities, of course, are not legally bound by the First Amendment, but they still face the important policy question of whether to pass security costs onto organizers of campus events. Significant security costs will often be unaffordable to student groups, and a policy imposing them can sometimes work to prevent the exchange of ideas on campus. Such fee policy may also embolden persons seeking to shut down speech through threats of violence, thereby perpetuating the “heckler’s veto.” Accordingly, even private universities should craft their policies on this subject with regard for their impact on First Amendment principles.

  1. Anti-“Boycott Divestment Sanctions” Statutes

The First Amendment includes the right to organize boycotts that are intended to change government policy. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (holding that boycotts intended to “influence governmental action” are protected under the First Amendment). However, according to the National Coalition Against Censorship, at least 17 states have passed statutes that seek to penalize those who join the “Boycott Divestment Sanctions” (“BDS”) campaign, a movement that seeks to influence Israel’s policy toward the Palestinians through economic pressure. A Texas statute, for example, provides that any company wishing to contract with the state must certify that it “does not boycott Israel,” and will not do so during the term of the contract. See Tex. Gov’t Code Ann. § 2270.001 et seq.

The provisions of state anti-BDS statutes differ, but they generally apply by their terms to public universities, as to any other state institution. Last year, the University of Houston required an external speaker to pledge she would not support BDS before she could be paid for conducting a workshop on campus. She refused, and an administrator faked her signature to process payment. (The administrator later resigned.)

Anti-BDS statutes are of doubtful constitutionality even outside academia. Koontz v. Watson, C.A. No. 17-4099-DDC-KGS, Doc. 15 (D. Kan. Jan. 30, 2018) (issuing preliminary injunction against Kansas anti-BDS statute). Within the academy, their application would frustrate the free interchange of ideas by depriving students of the ability to hear speakers—on any subject—who happen to support the BDS movement, or who on principle object to signing pledges as a condition of speaking. The AAUP recently released a statement condemning any requirement that academic speakers sign anti-BDS pledges, while reiterating its opposition to all academic boycotts, including those against Israel. At the very least, states with such laws on the books should clarify that they have no application in the academic context.

*      *      *

To protect free speech on campus, universities must do more than foreswear speech codes. They must also ensure that other policies governing campus life do not impinge on the interchange of ideas “that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508–09 (1969).

Jeffrey J. Pyle is a partner in the Media and First Amendment Practice Group at Prince Lobel Tye, LLP in Boston, Massachusetts.  As a high school student, Jeffrey and his brother brought a successful challenge to his school district’s speech code.  Pyle v. School Committee of South Hadley, 423 Mass. 283 (1996).


Tax Cuts and Jobs Act of 2017: New Tax Law May Affect Charitable Giving

Bedingfield

by M. Bradford Bedingfield

Legal Analysis

In December 2017, Congress changed the tax laws in a number of ways that affect incentives for individuals and businesses to make charitable contributions.  Pub. L. 115-97 (Dec. 22, 2017) (Tax Cuts and Jobs Act of 2017) (“Act”). A variety of studies published since the new law was enacted predict an overall drop in 2018 charitable giving of as much as $22 billion (down about 5 percent from 2017 levels), and reports from the first two quarters of 2018 do appear to show a significant drop in charitable giving compared to 2017.  While many attribute this drop to the Act, opinions differ on whether the changes in legal tax incentives are truly driving, or will drive, changes in charitable giving patterns.  So what incentives changed beginning 2018, and how might those changes affect decisions whether and when to give to charity?

Changes in Tax Incentives

The Act increases certain incentives for charitable giving, and decreases others.  However, all of the changes described below – other than the reduction in the corporate income tax rate – are temporary, and, barring further action from Congress, will expire at the end of 2025.[1]

Decreased Incentives

Standard Deduction.  Most accounts of the impact of the Act focus on the increase in the standard deduction – from $6,300 to $12,000 for single filers and $12,600 to $24,000 for married and joint filers – which, along with the elimination or diminution of many itemized deductions, will convert many taxpayers from itemizers (those who itemize their deductions, and forego the standard deduction) to non-itemizers (those who instead claim the standard deduction, foregoing the ability to take itemized deductions).  This change matters because the income tax charitable deduction is an itemized deduction, and therefore provides no tax benefit whatsoever to those who claim the standard deduction.  Because each taxpayer chooses either to claim the standard deduction or to itemize, those who claim the standard deduction get no tax benefit from charitable contributions.  Studies have estimated that more than 20 million taxpayers will convert from itemized to non-itemized filers this year as a result of the Act.

While the increase in the standard deduction clearly will change tax incentives for charitable giving, it is unclear to what extent that change will affect actual charitable giving.  Many taxpayers make charitable gifts regardless of whether they will receive a tax benefit, and it is unclear the extent to which the value of that deduction actually encourages or discourages people from supporting causes that are dear to them.  The effect of this change may also vary dramatically depending on the state in which a person resides.  Taxpayers in states like Massachusetts are likely to have other significant itemized deductions, such as state and local taxes (despite the new $10,000 cap on those deductions) and mortgage interest (despite new limitations on deductibility of interest from certain home equity loans), meaning that they are more likely to remain as itemizers..

Furthermore, a strategy known as “bunching” can provide a work-around for the impact of the increase in the standard deduction on charitable tax incentives.  Imagine that a single taxpayer gives $10,000 to charity per year and has no other itemized deductions.  That $10,000 per year provides no tax benefit, as the donor is better off just taking the $12,000 standard deduction instead. But if the donor instead gives $50,000 once every five years (and nothing in other years), the donor can file as an itemizer in the “on” year (claiming a $50,000 itemized deduction), and as a non-itemizer in the “off” years (claiming the $12,000 standard deduction in each of those years).  While this “bunching” strategy will provide some incremental tax benefit for those who otherwise would fall below the standard deduction threshold, it will also create a certain “lumpiness” in charitable giving patterns, and the lumpiness is likely to be back-loaded if donors, choosing to wait to see more precisely how the Act’s changes will affect their personal returns, give their $50,000 in later years rather than in the first year after the new changes.

Lower Taxes.  Most taxpayers will find that they are paying taxes at a lower aggregate federal tax rate than before.  This reduction in tax rates generally makes the income tax charitable deduction less valuable – because there is less tax liability to offset – even for individuals who itemize their deductions.  (It also makes the charitable deduction less valuable for corporations, which now pay income tax at 21%, reduced from up to 39% before the Act).  Whether, and how much, this decrease in the “value” of the tax deduction will affect charitable giving is debatable.  In fact, some tout this as a change that may spur an increase in charitable giving, to the extent that lower taxes may increase cash available for charitable giving.

Estate Taxes.  Federal estate taxes have been virtually eliminated for all but a very small number of taxpayers, as the federal estate tax exemption amount has increased to over $11 million per person (or over $22 million per married couple).  Many fear that this will likewise reduce estate tax incentives to leave property to charity.  However, the extent to which changes in the estate tax will affect the disposition of donors’ assets on death is likewise open to debate.  The fact that donors are paying less in estate taxes might in fact increase charitable bequests, especially where donors (for non-tax reasons) choose to leave the residue of their estates to charity. Furthermore, because many states continue to have their own estate or inheritance taxes (especially in New England, the northern Midwest states, and the Pacific Northwest), donors in those states are less likely to change estate plans already optimized to minimize state estate taxes, many of which include charitable gifts as part of that optimization.

Ticket Rights.  One minor decrease in tax incentives (although a significant one for many college football fans) is that Congress has eliminated the partial charitable deduction previously available for gifts to colleges and universities in exchange for priority rights to buy season tickets.  In anticipation of this change, many colleges encouraged ticket holders to “pre-fund” their ticket-related contributions at the end of 2017.  Otherwise, it is unlikely that this change will have a significant impact on charitable giving as a whole – as a graduate of a large, Southern state university, I am quite certain that, for most college sports fans, the incentives of securing priority season ticket rights far outweigh any reduced tax incentives.

Increased Incentives

While the general consensus is that the net effect on tax incentives for charitable giving is negative, the Act provided some minor boosts to charitable tax incentives.

Elimination of Pease Limitations.  Prior to the Act, the so-called “Pease” limitations reduced certain itemized deductions, including certain charitable gifts, for high-income taxpayers, and thus potentially reduced the tax effectiveness of certain charitable gifts for those taxpayers.  The Pease limitations have been suspended under the Act, which may provide a modest boost in tax incentives.  On the other hand, it was never clear how much of an effect the Pease limitations actually had on charitable giving patterns, and so the effect of this change is likewise uncertain.

Increased AGI Limit for Cash Gifts.  The primary “boost” to tax incentives for charitable giving relates to the percentage of a donor’s adjusted gross income (AGI) that may be deducted each year.  Previously, donors could deduct up to 50% of their AGI for cash gifts to public charities (non-cash gifts, and gifts to so-called “private foundations,” are subject to less favorable AGI limits).  Gifts in excess of this AGI limit are not deductible in the year of the gift, but may be deducted in future years, for up to five years.

The Act increased the AGI limit for cash gifts to public charities from 50% to 60%, potentially allowing certain donors to enjoy higher income tax deductions more quickly.  However, because of the rather complicated way in which this increase was integrated into the existing tax code, the higher 60% AGI limit is available only when a donor is relying solely on gifts of cash to public charities, and not gifts of stock or other assets (or any gifts to private foundations), to make up that 60% amount.  Many donors who give that much of their annual income are likely to have low-basis stock or other property, and the tax benefits of giving low-basis stock (namely, avoiding capital gains tax on the stock’s appreciation) to public charities significantly outweighs the benefit of this increased AGI limitation.  In other words, on balance, most donors will still effectively be capped at the lower 50% of AGI limit.  Although it is too early to know for certain, it seems likely that very few taxpayers will see any practical benefit from this increase.[2]

Good or Bad for Charitable Giving?

It is too early to know whether the Act will result in more or less charitable giving.  Many popular strategies for saving taxes by making charitable gifts – for example, making gifts of appreciated property, or direct charitable IRA rollovers – remain effectively unchanged.  For many taxpayers, the effects of the Act may not become evident until they see their first tax returns in 2019, and it may not be until then that they start to consider changing their charitable giving strategies.  While it does appear that giving is down in 2018 (compared to 2017), this could be attributable to a number of things.  For example, 2017 was a record year for charitable giving, in part because many tax advisors urged donors to make large charitable gifts at the end of 2017, at least in part to offset the higher 2017 tax rates.  A corresponding drop in charitable giving in early 2018 might be a natural consequence of the fact that many taxpayers effectively pre-funded their anticipated 2018 contributions at the end of 2017.  Other taxpayers may be temporarily holding off on giving in anticipation of “bunching” contributions in later years, or may otherwise be delaying the timing of their gifts, even if they intend to maintain past levels of giving in the aggregate.

At the end of the day, it is likely that only a particular subset of donors who will be significantly affected by these changed tax incentives.  Donors who were non-itemizers before these changes are likely to remain so, and will see no meaningful change in tax incentives for charitable giving.  Conversely, donors who previously were itemizers and, because of significant other itemized deductions, will remain so, still have plenty of incentives to find tax-efficient ways to reduce the burden of income or estate taxes by making charitable gifts. Anecdotal discussions with charitable giving and estate planning professionals indicate no significant shifts in donor interest in long-term charitable giving, including planned giving, among filers already likely to itemize.  However, donors who are in that intermediate space between itemizing and not itemizing should take a close look at their particular tax profiles and consider “bunching” and other strategies to allow them to maximize the impact of their income tax charitable deductions over the long term under the Act.

[1] On September 28, 2018, the House of Representatives passed a series of bills, together dubbed “Tax Reform 2.0,” that would make these changes permanent, but as of this article, there appears to be no movement in the Senate in that regard.

[2] House Bill 6760, 115th Cong. (2017-2018) (Protecting Families and Small Business Tax Cuts Act of 2018), part of the “Tax Reform 2.0” initiative passed by the House on September 28, 2018, would expand the ability of taxpayers to take advantage of the higher AGI threshold – however, it is unclear whether the Senate intends to participate in “Tax Reform 2.0,” or whether this provision might make its way into some other bill with bicameral support.

Brad Bedingfield is counsel at Hemenway & Barnes LLP. Brad works extensively with nonprofit organizations, navigating tax, regulatory, and governance matters, guiding charities and other nonprofits through formation, reorganizations, mergers, affiliations, and dissolution, and advising on innovative use of charitable assets, including social impact bonds and other forms of impact investing.


School Discipline in Massachusetts Today

DAconley

by Marlies Spanjaard

Legal Analysis

Even if you haven’t heard the term “school-to-prison pipeline,” you probably know what it describes:  The national trend by which students are funneled out of the public schools and into the juvenile and criminal justice systems.  Instead of getting the education they need, generations of our state’s most vulnerable children have been pushed out of the classroom and into jail by schools with inadequate educational programs and zero tolerance disciplinary policies and practices.  Suspension or expulsion from school can play a major role in pushing students into this pipeline.  Unfortunately, these types of exclusions have increased dramatically in the last fifty years across the country.  Massachusetts is no exception.  Since the 1970s, schools have experienced a massive shift in how they respond to misbehavior in the classroom.  The suspension rate for all students has nearly doubled, with students of color and students with disabilities incurring exclusion at an even greater rate.  In Massachusetts, 17% of all incidents involved low-income Black or Latino students receiving special education, a rate that is estimated to be 10 times greater than their enrollment.  See http://lawyerscom.org/wp-content/uploads/2014/11/Not-Measuring-up_-The-State-of-School-Discipline-in-Massachusetts.pdf.

In 2012, the Legislature enacted G.L. c. 71, § 37H¾, the first law to address school discipline reform in almost twenty years.  The legislature sought to address distressingly high rates of exclusions and provide education services for children who are excluded.

Unlike the preexisting §§ 37H and 37H½, the new § 37H¾ provides procedural protections for students receiving both short term and long term suspensions – short term being under 10 days and long term being 10 days or more.  Reflecting current research and best practices demonstrating that school exclusion is harmful to children and should be a last resort, § 37H¾: (1) requires that the decision maker, typically the school principal, exercise discretion, consider ways to reengage the student, and avoid any long term exclusion until other non-exclusionary alternatives have been tried; (2) prohibits a student’s exclusion for non-serious offenses from exceeding ninety days in a single school year; and (3) requires school districts to provide educational services to students who have been excluded from school for more than 10 days in order for them to make academic progress during the period of their exclusion.  (Prior to the law, a non-special needs student excluded from school had no right to any educational services).

Now, four years into the implementation of § 37H¾, much still remains to be done to address the school to prison pipeline in Massachusetts.  Massachusetts is heralded as having the best public schools in the nation, but access to this system is not equitable.  Massachusetts schools continue to have high suspension and expulsion rates; racial disparities in exclusions continue to be higher than the national average; and the academic services offered to excluded students continue to vary greatly in quality.  Massachusetts must do better, and this article suggests four ways that it can do so.

Provide Robust Procedural Protections for Students Facing Even Short Term Exclusions

First, § 37H¾ provides few procedural protections for students receiving short term suspension – defined as suspensions that are less than 10 days. Under the current law, students who are excluded for less than 10 days receive the opportunity to be heard, but there is no requirement that a parent be present.  While the regulations require the principal to articulate the basis for the charge and to allow the student to present mitigating circumstances, this rarely happens.  Often, a school official informs the student of his suspension while face-to-face, or by calling his parent.  There is also no mechanism for appealing short term suspensions to the superintendent, so these determinations are often final.

Even a short term suspension can drastically impact the student’s achievement.  Each day of exclusion is a missed day of instruction, and can lead students to fall behind.  See https://www.civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/summary-reports/suspended-education-in-massachusetts-using-days-of-lost-instruction-due-to-suspension-to-evaluate-our-schools.  Furthermore, a student who is excluded is left to spend his days out of school without any structure or support, which significantly increases his chances of engaging in delinquent behavior and finding himself in court.  Given that students facing exclusion are often already struggling academically and emotionally, exclusion, even for a short duration, can have a tremendous impact.  Providing robust procedural protections for students facing even short term exclusions would ensure that we are taking the opportunity to address student challenges at their root, rather than waiting until things have already progressed to the point where a student is facing a long term exclusion or expulsion

Clarify The Robust Procedural Protections For Student Facing Exclusion Under Sections 37H And 37H½

Second, § 37H¾ regulates the school’s response to misbehavior that the state has defined as “non-serious exclusions.”  Sections 37H and 37H½ in contrast, regulate the school’s response to misbehavior involving weapons, drugs, assault on educational staff, and any felony charges or convictions.  Under the current statutory scheme, students who are being disciplined for allegations of non-serious behaviors under § 37H¾ have more robust protections delineated than students who are facing more serious allegations and consequences under §§ 37H and 37H½.  The result in practice is that students facing the serious allegations are often not afforded the appropriate due process because it is not specifically delineated in the statute, although it is supported by the case law.  This discrepancy in the statutory scheme is difficult to square with the research demonstrating that exclusion for both “non-serious” and “serious” offenses equally impacts student achievement.  Requiring additional procedural protections does not prevent schools from implementing serious disciplinary consequences if the principal determines such consequences are warranted; they simply require the school to take steps to ensure that the offense occurred and was committed by the student being disciplined, and to hear the whole story including mitigating circumstances before imposing very serious and potentially life altering consequences.  The law should be amended so that it is clear that students who are facing discipline under §§ 37H and 37H½ are entitled to all of the procedural protections received by students facing discipline under § 37H¾.

Limit The Authority Of Principals To Exclude Students For Out Of School Conduct

Third, the provisions of § 37H½ that allow exclusion of a student who has a pending felony charge or conviction upon the principal’s determination that the student’s continued presence would have a detrimental effect on the school’s general welfare sweeps too broadly.  Although the layperson thinks of “felonies” as charges such as murder or manslaughter, § 37H½ has been used to exclude students charged with felonies reflecting normal adolescent behavior, such as riding in the backseat of a car that turned out to be stolen, fighting, or stealing an iPhone.  The law gives principals the discretion to exclude a student based solely on the existence of a criminal charge.  Principals are educators, not judges.  They are not trained to make these determinations, and are often being asked to decide a student’s fate with limited information.  In fact, the information a principal has is sometimes obtained in violation of student privacy protections as juvenile court proceedings are confidential.

Further, available data illuminate a serious problem with disparities in both race and disability status of the young people who face juvenile court charges.  Massachusetts is one of the few states that allow this type of exclusion based solely on an allegation, despite the notion that one ought to be presumed innocent until proven guilty.  Barring a complete removal of a principal’s ability to exclude based on a mere allegation, the statute should be amended to reflect the Department of Elementary and Secondary Education’s 1994 advisory, which said that § 37H½ should only be used for serious violent felonies.  One approach could be to align § 37H½ with the Youthful Offender Statute.

The Youthful Offender statute, G.L. c. 119, § 54, allows prosecutors in circumstances where they feel a child has committed a serious offense to indict a child as a youthful offender, subjecting them to treatment as an adult.  The statute applies to: youth who have previously been committed to DYS or are accused of causing or threatening serious bodily harm, or any charge involving a gun.  If the statue focuses on the realistic threat to school safety, those who are alleged to have committed minor, non-violent crimes will be excluded at a lower rate.  Furthermore, youthful offender cases are open to the public, which would allow everyone the opportunity to have the same information and wouldn’t incentivize the disclosure of confidential information currently protected by the juvenile court.

Limit The Definitions Of “Assault” And “Weapon” Under Section 37H.

Finally, § 37H should more clearly define the terms “assault” and “weapon.”  Section 37H defines “weapon” in a way that explicitly includes guns and knives, but is otherwise vague.  This has permitted principals to expand the definition of “weapon” to sometimes comical levels, such as a case in which a student was excluded under § 37H for possessing a paperclip.  Similarly, “assault,” which also is not definite under § 37H, has sometimes been applied to include a “menacing” look from a student, unintentional contact with a teacher, or contact made with a teacher by a kindergartener during a tantrum.

Changing § 37H to clarify that all the elements of an “assault” must be present before expulsion, including specific intent and imminent harm, would lower exclusions. Currently, a broad spectrum of actions may be considered an “assault,” including unintentional acts or acts where there was no actual threat of harm.  Further, the definition of “weapon” should be changed to match the federal definition of “dangerous weapon” under 18 U.S.C. § 930: A “device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.”  A school could still short term suspend students under § 37H ¾ for any item banned in their student handbook, but this change would limit the amount of students permanently excluded.  These simple changes will reduce exclusions and keep students in the educational environment they so desperately need.

Conclusion

Section 37H¾ has significantly improved school discipline practice in Massachusetts, but much remains to be done.  Some schools are excluding upwards of 50 percent of their student body each year.  Students of color are still suspended at much higher rates than their white counter parts.  By adopting the changes suggested above, Massachusetts can continue to improve on the progress already made.  Massachusetts has long been at the forefront of progressive approaches to student misconduct, recognizing students as individual children in need of compassion and support rather than bad apples that need to be pushed out.  By amending our laws to reflect the above changes, Massachusetts can continue to play a role as a leader in the field.

Marlies Spanjaard, MSW, JD, is the Director of the EdLaw Project, a statewide education advocacy initiative housed within the Youth Advocacy Division of the Committee for Public Counsel Services.   She is a recognized expert on education law and school-to-confinement pathways.  A passionate and dedicated advocate for vulnerable youth in Massachusetts, her work focuses on increasing education advocacy among the juvenile and child welfare bars to ensure children are supported to succeed in school and stay out of the court system.


School Discipline Law, Ch. 222 of the Acts of 2012: Effective Application and Challenges with Ongoing Implementation

DAconleyDAconley

by Liza Hirsch and Janine Solomon

Legal Analysis

Brief History of School Discipline Reform in Massachusetts

In Massachusetts and nationwide, one of the most commonly used responses to students who exhibit misbehavior is to exclude them from school, effectively depriving them of education. While out-of-school suspension has been used in schools as a form of discipline since the 1960s, it was not until the 1990s, during the era of “tough on crime” and zero tolerance policies, that out-of-school suspension became a widespread approach for addressing minor misbehavior. In keeping with this trend, the Massachusetts legislature enacted the Education Reform Act of 1993 which provided principals with broad authority to exclude students from school. Researchers began to express concern that exclusion from school not only did not improve children’s behavior, it actually made it more likely that those students would misbehave and accrue additional suspensions.[1] Moreover, research began to demonstrate that students of color and students with disabilities were more likely to be suspended from school.[2] Over time it has become increasingly clear that children who are repeatedly excluded from school face devastating consequences: they are less likely to reach learning milestones and more likely to fall behind, repeat grades, drop out of school and not graduate, and/or have contact with the criminal justice system, pushed into a trajectory known as the “school-to-prison pipeline.”

In response, Massachusetts Advocates for Children (MAC) joined with other concerned advocates to form the Education Law Task Force (ELTF)[3]. After years of advocacy by ELTF, State Representative Alice Wolf, and other advocates, An Act Relative to Student Access to Educational Services and Exclusion from School (Chapter 222 of the Acts of 2012) [4] was enacted and took effect in 2014.[5] The law created new due process and data reporting requirements for school districts regarding the exclusion of students from school for minor misbehavior. The underlying principle of the law is to make exclusion from school a last resort, especially for all but the most serious offenses. Districts are required to provide notice and a hearing prior to an out-of-school suspension, absent emergency circumstances. The law also requires all students who are excluded from school to have access to assignments, quizzes and tests, and for students who are long-term suspended or expelled to receive tutoring, online coursework or other alternative education services.[6] The law and regulations additionally require the Massachusetts Department of Elementary and Secondary Education (DESE) to collect disaggregated school discipline data from school districts[7], post the data, analyze the data, and provide support to schools that exclude high numbers of students or disproportionately suspend students of color or students with disabilities.

Current Implementation and Challenges

Advocacy by the ELTF and others was essential not only to the passage of the law, but to its implementation. The ELTF provided substantial input into the implementing regulations, by submitting draft regulations, commenting on the proposed regulations, and testifying to the Board of Elementary and Secondary Education.[8] Today, four years into the implementation of Chapter 222, the ELTF, through its Chapter 222 Coalition, has grown and continues to collaborate with DESE regarding the implementation of the law. Since the law took effect, DESE has posted school discipline data disaggregated by district and school for the 2014-15, 2015-16 and 2016-17 school years. The data show some improvement in lowering the rates of suspension, especially in the first year of the law’s implementation. Some schools and districts have made meaningful changes to lower the rates of suspension, while others have not demonstrated improvement. The data also show that while suspension rates have decreased for students of color and students with disabilities, both groups continue to be suspended at higher rates than their peers.

In adherence with the regulations, DESE has established a process for identifying schools and districts that demonstrate overreliance on suspension and/or disparate rates of suspension by race, ethnicity, or disability. These schools and districts participate in the Rethinking School Discipline Professional Learning Network (PLN), a forum in which educators and administrators can learn with and from each other, reflect on their own school discipline data, and draft action plans which aim to reduce reliance on exclusion as a form of discipline. The plans include approaches for promoting positive school climate and implementing positive behavioral supports and alternatives to suspension such as restorative justice. The ELTF has provided input into the action plan templates and offered feedback regarding the process through which schools and districts are selected for participation in the PLN.

In addition to efforts to implement Chapter 222, DESE is working to foster whole school culture change through implementing the statute titled, the Safe and Supportive Schools Framework,[9] which offers guidance for districts to develop school cultures based on support rather than exclusion of students. As part of this law’s implementation, DESE has worked in collaboration with MAC’s Trauma and Learning Policy Initiative to provide PLN participants with professional development opportunities on how to create safe and supportive schools.

Although the initial years of implementation of Chapter 222 have yielded positive efforts by many schools and districts to reduce reliance on suspension and to address disparities by race, ethnicity, and disability, there continue to be implementation challenges. The integrity of data reporting by schools and districts is of utmost importance to ensure the fidelity of the law’s implementation, yet attorneys representing parents and students continue to observe the underreporting of suspensions by many school districts. One common practice by school districts involves calling parents to ask them to pick up their child due to misbehavior, without adhering to due process requirements or documenting the exclusion as a suspension. This unlawful practice, often utilized repeatedly by schools, is a burden to parents, even to the point of causing job loss.

A further challenge is the lack of resources at both the state and local levels to implement the law. DESE has limited capacity to identify and provide support to all of the schools and districts in need, and while many schools and districts recognize the need to reduce reliance on suspension, they lack the resources, training, and in-classroom modeling needed to effectively implement alternative practices. Even when schools attempt to implement alternatives for managing challenging student behavior, without a cohesive and coordinated approach, these initiatives are often not sustainable. Reducing school exclusion in a meaningful way requires the implementation of alternatives (e.g., restorative justice) and whole school culture change to create an environment that is inclusive, equitable, safe, and supportive of all students. Effective models incorporate the role of trauma in learning, address the individual needs of students with disabilities, and account for the influence of institutional racism and racial bias in disciplinary practices.

The ELTF/Chapter 222 Coalition looks forward to continued collaboration with DESE to: (1) ensure meaningful oversight and accountability for all schools and districts that are not in compliance with the law; and (2) ensure teachers and school leaders have the training and support to reduce suspensions through alternative practices and whole school culture change. By virtue of Chapter 222, in conjunction with the Safe and Supportive Schools Framework, Massachusetts is well positioned to be a national leader in reducing reliance on school exclusion and keeping our most vulnerable students in school and engaged in learning.

 

[1] Kirsten L. Allman, and John R. Slate. “School Discipline in Public Education: A Brief Review of Current Practices.” International Journal of Educational Leadership Preparation 6.2 (2011): n2 (citing, Hochman, S. R., & Worner, W. (1987). In-school suspension and group counseling: Helping at-risk students. NASSP Bulletin, 71, 93-97; Sauter, B. (2001). Rethinking the effectiveness of suspensions. Reclaiming Children and Youth, 9, 210-217; Ambrose, M., & Gibson, M. (1995). Does suspension work? NEA Today, 13, 39; & Costenbader, V. K., & Markson, S. (1998). School suspension: A survey of current policy and practices. NASSP Bulletin, 78, 103).

[2] Townsend, Brenda L. “The disproportionate discipline of African American learners: Reducing school suspensions and expulsions.” Exceptional children 66.3 (2000): 381-391; Krezmien, Michael P., Peter E. Leone, and Georgianna M. Achilles. “Suspension, race, and disability: Analysis of statewide practices and reporting.” Journal of Emotional and Behavioral Disorders 14.4 (2006): 217-226.

[3] The ELTF is a statewide group of attorneys, advocates, young people, and organizers, convened by MAC, working to address educational issues facing low-income children in Massachusetts. The ELTF pays particular attention to school discipline, and successfully advocated for the passage of Chapter 222.

[4] Mass. Gen. Laws ch. 71, §§ 37H, H ½ and H ¾ (2014).

[5] For a more comprehensive summary of the history of the passage of Chapter 222, see, Tom Mela, “How We Won School Discipline Reform in Massachusetts,” Schott Foundation for Public Education, available at http://schottfoundation.org/blog/2014/07/23/how-we-won-school-discipline-reform-massachusetts.

[6] Prior to the enactment of this law, children expelled from school were not legally entitled to receive an education from a public school in the Commonwealth.

[7] Moreover, in April 2018, the Massachusetts Legislature enacted the statute, “An Act Relative to Criminal Justice Reform” which includes several provisions applicable to schools, including the requirement that school-based arrests, criminal citations, and court referrals be reported to DESE for publication in a “like manner” as school discipline (e.g. disaggregated by race, disability, and gender).

[8] Mela, supra.

[9] Mass. Gen. Laws ch. 69, § 1P (2014).

Liza Hirsch is a staff attorney with Massachusetts Advocates for Children where she represents families in school discipline and special education matters.
Janine Solomon is Managing Attorney/Senior Project Director of Massachusetts Advocates for Children. She is a co-chair of the Education Law Task Force.


The Supreme Judicial Court Steps into the Complicated World of Student Mental Health

fraywitzerby Phil Catanzano

Legal Analysis

For several years, higher education institutions, both in Massachusetts and nationally, have faced student populations with increased mental and emotional health needs.[1]  In response, many of these institutions have provided additional resources to their clinical and counseling services centers and encouraged novel approaches to assist students who may be in crisis, such as threat assessment teams and coordinated care across different health care providers on and off campus.  While clinical and legal approaches to these issues vary between institutions, the worst imaginable scenario for a campus community arises when these mental and emotional health issues result in suicide.

Until recently, Massachusetts post-secondary institutions had relied primarily upon the legal principles set forth in Mullins v. Pine Manor College, a seminal legal opinion from the Massachusetts Supreme Judicial Court (“SJC”) that laid the groundwork for the duties institutions owe their students given the unique aspects of an often all-encompassing campus life.[2]  While Mullins arose in a context other than student suicide, lower courts frequently applied it in a range of cases focused on liability and institutional responsibility in other contexts.  In May, the SJC placed itself squarely back in the discussion with its decision in Nguyen v. MIT, 479 Mass. 436, 96 N.E.3d 128 (2018), holding that a university may be liable in certain circumstances when a student commits suicide.  The Nguyen case also spoke directly to the duty of non-clinicians, who often play critical roles in helping at-risk students navigate the higher education environment.

I. The University-Student Relationship

Absent a clear duty of care, the general rule is that there is no duty upon individuals to take affirmative steps to protect others.  When colleges and universities are involved, however, there are certain circumstances where a “special relationship” has evolved with students that requires institutions to exercise reasonable care to keep students safe from foreseeable conduct that occurs while they are engaged in activities that are part of the institution’s curriculum or related to its delivery of educational services or benefits.[3]

Massachusetts was critical in this jurisprudential evolution to a special relationship for higher education institutions, primarily through the SJC’s holding in Mullins v. Pine Manor College.  In Mullins, a student was abducted from her dorm in the middle of the night by an individual trespassing on the campus.  She was then sexually assaulted on another part of campus over an extended period of time.[4]  Following a review of the then-current state of the law, the SJC held that there existed a duty upon the institution to ensure student safety to a reasonable degree and that the institution had not satisfied that duty.  The court reasoned that “[t]he threat of criminal acts of third parties to resident students is self-evident, and the college is the party which is in the position to take those steps which are necessary to ensure the safety of its students.”[5]  The SJC concluded that “[c]olleges must…act to use reasonable care to prevent injury to their students by third persons whether their acts were accidental, negligent, or intentional.”[6]  Importantly, Mullins only addressed harm by others and physical security measures.

While the doctrinal impact of Mullins was seismic on campus, it remained unclear how far the duty extended when institutions are confronted with different forms of dangerous behavior.  Massachusetts courts subsequently struggled to define the extent to which colleges and universities were obligated to protect students from harm.[7]  Given the individualized contexts in which these questions commonly arise – e.g., violence on campus, student mental health issues, drug overdoses, or suicide – it has been difficult for courts to apply a consistent analytical framework to assess liability.  Against this backdrop, the SJC granted review in Nguyen and considered the question of whether, and under what circumstances, a university could be liable when a student commits suicide.

II. Nguyen v. Massachusetts Institute of Technology

Han Duy Nguyen (“Nguyen”) was a twenty-five year old graduate student at MIT when he committed suicide on June 2, 2009.  Nguyen, 96 N.E.3d at 131-32.  Nguyen had a history of mental health problems and two prior suicide attempts (in 2002 and 2005) when he was an undergraduate student at a different university.  Id. at 146.  He consulted with at least nine private mental health professionals, totaling more than ninety in-person visits from July 2006 through May 2009.  Id. at 134.  None of these professionals, including one who saw Nguyen forty-three times between 2006 and 2008, believed that he was at imminent risk of committing suicide.  Id.  Nguyen’s last appointment with a professional care giver was just five days before he would tragically take his own life.[8]  Id. at 135.

Nguyen’s father sued MIT in 2011, alleging that MIT’s negligence caused Nguyen’s death.  After reviewing cross-motions for summary judgment, the Superior Court held that MIT was not liable for Nguyen’s negligence claim.  Nguyen appealed, and the SJC heard the case on direct appellate review in 2017.

In its closely watched opinion, the SJC concluded that there are circumstances where a university has a duty of care to take reasonable measures to prevent a student’s suicide.  Id. at 142-143.  The court first recognized that there is no general duty of care to prevent another from committing suicide.  Id. at 139, 144.  The court then examined whether the special relationship between a university and its students imposes additional duties regarding suicide prevention.  In particular, the SJC discussed several factors that have traditionally been used to “delineate duties in tort law” to determine “whether a duty to prevent suicide falls within the scope of the complex relationship that universities have with their students[.]”  Id. at 142.  These factors include:

  • Whether the institution could reasonably foresee being expected to take affirmative action to protect the student;
  • Whether there was “reasonable reliance by the [student on the institution], impeding other persons who might seek to render aid;”
  • The “degree of certainty of harm” to the student;
  • The “burden upon the [institution] to take reasonable steps to prevent the injury;”
  • Whether there is mutual dependence between the student and the institution “involving financial benefit to the [institution] arising from the relationship;”
  • Whether there would be “moral blameworthiness” for the institution’s failure to act; and
  • The “social policy considerations involved in placing the economic burden of the loss on the [institution].”

Id. (internal citations omitted).

The SJC then applied these factors to the university-student relationship in the context of student suicide.  The court reasoned that, in cases where the university has actual knowledge of prior suicide attempts or present suicidal ideations, many of these factors weigh in favor of creating a duty of care between the university and the student.  In such cases, the student’s suicide “is sufficiently foreseeable as the law has defined the term, even for university non-clinicians without medical training.”  Id. at 144.  Moreover, students, particularly those living in dormitories, rely on universities for assistance and protection, and universities are “in the best, if not the only, position to assist.”  Id.  The gravity of the resulting harm – the death of a student – must also be considered along with the probability of the harm.  Id.  And while the burden that such a duty would impose on universities may be substantial, “so is the financial benefit received from student tuition.” Id.  Finally, the SJC indicated that a university would be morally blameworthy for “failing to act to intervene to save a young person’s life[] when it was within the university’s knowledge and power to do so.”  Id.  For these reasons, the SJC concluded, universities have a legal duty to take reasonable measures to prevent student suicide in certain circumstances.

The SJC next attempted to define the scope of that duty.  According to the SJC, a university “has a duty to take reasonable measures under the circumstances to protect the student from self-harm.”  Id. at 143.    “Reasonable measures” the court explained, “will include initiating its suicide prevention protocol.”  Id. at 145.   Alternatively, if no such protocol exists, reasonable measures include “arranging for clinical care by trained medical professionals or, if such care is refused, alerting the student’s emergency contact.”  Id.  In emergency situations, reasonable measures may also include contacting police, fire, or emergency medical personnel.  Importantly, and as discussed below, the SJC extended this duty to non-clinicians, but then limited that duty.    

In sum, the standard that the SJC created in Nguyen involves two distinct inquiries: (1) whether the duty of care is triggered by actual knowledge of prior attempts or present suicidal ideation; and (2) where a duty is triggered, whether the university satisfied its duty by taking reasonable measures to prevent the student’s suicide.  The SJC concluded that MIT owed no such duty in the case at hand because “Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation.”  Id. at 146.  Moreover, Nguyen was “a twenty-five year old adult graduate student living off campus, not a young student living in a campus dormitory under daily observation.”  Id.  Even if the duty was triggered, the SJC added, MIT and the individual defendants did not breach this duty because Nguyen repeatedly rejected the services offered by the institution.[9]  See id. at 146-47.

III. Implications of Nguyen v. MIT

Above all, the holding in Nguyen generally incentivizes proactive suicide prevention and intervention measures by increasing the risk of liability for institutions that fail to react appropriately to clear warning signs.[10]  To minimize liability and protect students, institutions are well advised to develop robust suicide protocols in conjunction with health care professionals and legal counsel.[11]  In fact, the Nguyen decision suggests that one factor the courts will look to in assessing whether a duty of care was satisfied is whether the institution has a behavioral response protocol, e.g., threat assessment teams or similar, and whether it was triggered by the underlying facts.  The SJC also seemed to indicate that courts will defer to reasonable suicide prevention protocols adopted and implemented by institutions.

Another important implication of Nguyen is the SJC’s expansion to non-clinicians of the duty to prevent suicide, but also the SJC’s corresponding limitation on the reasonable expectations for such non-clinicians in these difficult scenarios.[12]  As the SJC made clear, suicide is often unforeseeable and unpredictable.[13]  Nguyen’s history itself demonstrates this point:  even with numerous visits right up until a week before his death, none of the medical professionals who treated Nguyen could foresee his suicide.  While most institutions have some groups of trained clinicians on campus to assist with student suicide, the majority of individuals on campus who develop close relationships with students and may learn of troubling information are not clinicians, e.g., faculty, administrators, graduate and undergraduate student-employees.  The Nguyen decision is a clear reminder that all individuals who work with students should be trained to some extent regarding risk factors and appropriate responses to indications of serious mental health concerns that may lead to suicide, but it also indicated that such non-clinicians could often satisfy this duty by referring  the concern to a trained clinician who could work with the student as part of a protocol or a unified care team.  Again, colleges and universities will be best served to develop clear policies and roles, keeping in mind the different ways that people on campus interact with students and the different resources available in difficult situations.  Institutions should assess their current staffing and ensure that their clinical resources are appropriate for their population, while also ensuring that their non-clinical staff are trained as well as possible with regard to potential indicators of challenging behaviors, when to report concerns, and to whom such concerns should be reported.

Finally, despite its careful and thorough approach, the Nguyen decision leaves open several important questions.  For example, Nguyen indicated that the duty of care is triggered “[w]here a university has actual knowledge of a student’s suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student’s stated plans or intentions to commit suicide[.]”  Id. at 142-143 (emphasis added).  Through this lens, what suffices as a suicide attempt?  Is it limited to failed efforts at suicide, or does it encompass past instances of ideation or planning or even behaviors like self-harm that, while serious, may not always evolve to a risk of suicide?  Further, what constitutes “recently before matriculation,” given that the SJC concluded that one year was too long in Nguyen?  Do the plans have to be stated to an institutional official, or must the university act upon hearsay and other third-party reporting?  If the latter, will this create additional reporting responsibilities, similar to what is in place when a report of a sexual assault is received by an institution?  And what obligation do undergraduate or sending schools have when a student presents with concerning behavior on their campus but then matriculates to another school, either as the result of a transfer or a subsequent degree opportunity?

In conclusion, the SJC is again leading a national discussion with regard to the scope of institutional liability for student safety on campus.  Given Massachusetts’s status as a major center of higher education, other jurisdictions will likely be confronted with similar issues in the near future.[14]  While these issues will be debated, the SJC has provided an early salvo by creating a framework in Nguyen.  It will not be the final word regarding institutional liability for suicide in higher education.

[1] See generally, American College Health Assoc., National College Health Assessment II (Spring 2017) (in an extensive assessment surveying over 63,000 college students, it was found that, in the past 12 months, 51% of surveyed students felt that “things were hopeless,” 61% of surveyed students felt “overwhelming anxiety,” and 10% of surveyed students had “seriously considered suicide”).

[2] 389 Mass. 47 (1983).

[3] While the notion of in loco parentis is commonly used in the primary and secondary education systems, that relationship has evolved in the post-secondary system. See generally, Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40(a) (2012) (“Duty Based on a Special Relationship with Another”); Dall, J., “Determining Duty in Collegiate Tort Litigation: Shifting Paradigms of the College-Student Relationship,” 29 Journal of College and University Law 485 (2003)

[4] See Mullins, 389 Mass. at 49-50.

[5] Id. at 51.

[6] Id. at 54 (internal citations omitted).

[7] See, e.g., Bash v. Clark University, No. 06745A, 2006 WL 4114297, 22 Mass. L. Rptr. 84 (Mass. Super. Ct. Nov. 20, 2006) (granting the University summary judgment while concluding that it did not have a duty to prevent a student from overdosing on illicit drugs in a university controlled dorm room); Shin v. MIT, No. 020403, 2005 WL 1869101, 19 Mass. L. Rptr. 570 (Mass. Super. Ct. June 27, 2005) (denying MIT summary judgment on grounds that several MIT officials had sufficient information about a student who committed suicide such that special relationship existed between the university and student).

[8] The doctor who met with Nguyen during his final meeting noted that Nguyen “did not say anything that sounded imminently suicidal or hopeless,” discussing instead career options and a subsequent appointment.  Nguyen, 96 N.E.3d at 135.

[9] The court’s conclusion that there was no breach even if a duty existed appears inconsistent with its earlier holding that if a student refuses care and treatment, reasonable care requires the university to notify the student’s emergency contact.  See id. at 145.

[10] See id. at 143, quoting Pavela, Questions and Answers on College Student Suicide: A Law and Policy Perspective 8–9 (2006) (“The main obstacle to better suicide prevention on campus is underreaction…) (emphasis in original).

[11] See also Lannon et. al., “Students Who Pose a Risk of Self Harm:  Individualized Assessments, Leave, and Conditions for Return,” National Association of College and University Attorneys, Annual Conference materials (June 24-27, 2018) (discussing best practices in the context of recent policy statements and decisions issued by the U.S. Department of Education’s Office for Civil Rights).

[12] Compare Nguyen, 96 N.E.3d at 144 (“[n]onclinicians are also not expected to discern suicidal tendencies where the student has not stated his or her plans or intentions to commit suicide”); id. at 146 (“[the limited duty] recognizes that nonclinicians cannot be expected to probe or discern suicidal intentions that are not expressly evident”), with id. at 145 n. 20 (“[f]or university-employed medical professionals, the duty and standards of care are those established by the profession itself”).

[13] See id. at 147 n. 21 (discussing the difficulty, even among trained professionals, in assessing the imminence of the risk of suicide).

[14] California is already revisiting college and university liability.  In Regents of University of California v. Superior Court, the California Supreme Court concluded that universities have the duty to “take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety … while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.”  413 P.3d 656, 673-74 (Cal. 2018).  The plaintiff in Regents was a student that was stabbed several times during class by a student whom the University knew to be potentially dangerous.  Id. at 662.  The court emphasized that the duty is “limited” because “it extends to activities that are tied to the school’s curriculum but not to student behavior over which the university has no significant degree of control.”  Id. at 669 (emphasis added).

Phil Catanzano is Senior Counsel at Holland & Knight, LLP, where he counsels colleges and universities on a range of legal and policy issues.  He would like to thank Paul Lannon for his guidance, expertise, and invaluable feedback in drafting this article.


Distinguishing Employees’ “General Skill or Knowledge” From Protectable Trade Secrets Under Massachusetts Law

bombardsanteusanio

by Gregory S. Bombard and Adam M. Santeusanio

Legal Analysis

Trade secret claims often arise when a highly skilled employee leaves to work for a competitor. Under Massachusetts trade secret law, this fact pattern creates a tension between the employer’s interest in protecting its trade secrets and the employee’s competing interest in using his or her own general experience and abilities to foster a successful career. Though Massachusetts courts have long recognized this tension, the line between what constitutes a protectable trade secret as compared to an employee’s “general skill or knowledge” is not explicitly defined in Massachusetts case law. The inquiry is highly fact-based and does not easily lend itself to bright lines. This article examines the leading cases addressing the distinction between trade secrets and general skill or knowledge, and identifies the four factors courts most commonly use to draw the line.

I. The Legal Framework

Massachusetts law protects trade secret information, which is defined by statute as “a formula, pattern, compilation, program, device, method, technique, process, business strategy, customer list, invention, or scientific, technical, financial or customer data that (i) at the time of the alleged misappropriation, provided economic advantage, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, others who might obtain economic advantage from its acquisition, disclosure or use; and (ii) at the time of the alleged misappropriation was the subject of efforts that were reasonable under the circumstances . . . to protect against it being acquired, disclosed or used.”[i]

Although a company must safeguard the secrecy of purported trade secrets in order to seek legal protection for them, the company must, of course, disclose such secrets to at least some of its employees for use in the company’s business. That disclosure creates a legally-implied duty by the employee to maintain the confidentiality of the trade secrets. In addition, employees are often subject to contractual nondisclosure covenants, which survive the termination of employment.

However, Massachusetts courts recognize an important limitation on trade secret protection: a departing employee may continue to use his “general skill or knowledge acquired during the course of the employment” following his departure.[iii] This doctrine, which has been the law in Massachusetts since at least 1912,[iv] provides that an employer may not claim trade secret protection over an employee’s general skill or knowledge regardless of whether the employee developed it prior to or during his employment. By limiting the types of information that an employer can protect as trade secrets, the general skill or knowledge rule “effectuates the public interest in labor mobility, promotes the employee’s freedom to practice a profession, and [promotes] freedom of competition.”[v] The rule applies both when a former employer sues a former employee for misappropriation of the former employer’s trade secrets,[vi] and when an employer seeks to enforce post-employment restrictive covenants, like noncompetition agreements.[vii]

The facts of Intertek Testing Servs. NA, Inc. v. Curtis-Strauss LLC provides an example of how the doctrine plays out in practice. Intertek was a product inspection, testing and certification company that sued several of its former salespeople for having misappropriated “secret” information about “the quality of the relationship that certain customers had with Intertek,” including whether those relationships were “good,” “bad,” or “in-between.” Judge Gants, then sitting in the Business Litigation Session, granted summary judgment in favor of the salespeople, ruling that the strength of an employer’s relationship with a particular customer “certainly falls into the category of general knowledge acquired during the course of employment.” Speaking to the rule’s policy goal of promoting labor mobility, Judge Gants observed that “if this general information were deemed secret or confidential, then no salesman could ever work for a competitor, because every salesman inevitably knows this information and could not help but use it in some fashion.”[viii]

II. Distinguishing Trade Secrets from General Skill or Knowledge

Although the general skill or knowledge doctrine is widely cited in Massachusetts case law, no court has articulated a test for distinguishing between protectable trade secrets and nonprotectable general skill or knowledge. In the cases applying the doctrine, however, the courts most commonly consider the following four factors: (1) whether an employee had significant experience or expertise prior to starting their employment; (2) whether an employee assisted in the development of the alleged trade secret; (3) whether the alleged trade secrets were actually put to use or were merely inchoate “concepts” or “goals”; and (4) whether the alleged misappropriation involved the removal of documents or merely the contents of the employee’s memory. None of the four factors standing alone is dispositive.

     A. The Employee’s Prior Experience or Expertise

Massachusetts courts are more likely to find that an alleged secret falls within an employee’s general skill and knowledge if the employee had significant experience, expertise, or education in the field before starting his employment. This factor is based on the policy that “the loss to the individual and the economic loss to society are both greatest when a highly trained and specialized person is prevented from employing his special abilities.”[ix]

For example, in Dynamics Research Corp v. Analytic Sciences Corp., an employer claimed its former employee misappropriated a system for managing data and providing feedback during the development of weapons systems for government contracts. Prior to his employment, the employee had been decorated by the Air Force for his management ability and had worked as a manager of an MIT laboratory. In fact, the employer hired him “in part because he [already] understood its management system concept.” The Appeals Court ruled that the alleged secret fell within the employee’s general skill and knowledge, observing he had come to the job “with knowledge and skill in the plaintiff’s area of operation” and “much of the [alleged trade secret] was known to the defendant prior to his employment.”[x] Conversely, in Junker v. Plummer, the employer’s claimed secret was a novel machine for “combining shoe cloth,” and the former employees “had never seen a combining machine” before their employment.[xi] There, the SJC ruled that the machine’s functionality was not part of the employees’ general skill or knowledge and was instead a protectable trade secret of their former employer.

     B. The Employee’s Personal Participation in Developing the Secret

Massachusetts courts are more likely to find that an alleged secret falls within an employee’s general skill and knowledge if the employee directly participated in developing the alleged secret. The rationale behind this factor is that if the employee personally contributed towards the alleged secret’s creation or development, then the alleged secret may consist, at least in part, of the skill, knowledge, and experience that the employee brought to bear on the project.

Thus, in Chomerics, Inc. v. Ehrreich, the employee had been “personally actively involved in all of the inventions and discoveries made” by the employer in developing the alleged secret.[xii] Indeed, the employer’s “effort in this field was pioneered largely through [the defendant employee’s] inventions and research,” and the research into conductive plastics was “peculiarly his . . . almost private domain.” The Appeals Court ruled that the information fell within the employee’s general skill or knowledge as a scientist, despite the fact that the employer took reasonable measures to safeguard the information as a trade secret, including requiring the defendant to keep his laboratory notebooks locked up. Similarly, in New Method Die & Cut-Out Co. v. Milton Bradley Co., the employee “took part to a substantial extent in developing the [allegedly secret] process” for manufacturing cardboard toys, bringing to bear “his faculties, skill and experience.”[xiii] The SJC held that the process for manufacturing cardboard toys did not constitute a protectable trade secret, but rather was “the product of [the employee’s] knowledge,” which he developed in the course of his work for his former employer.

     C. The Employer’s Unfinished Concepts and Goals

Massachusetts courts are more likely to find that information is within an employee’s general skill or knowledge where the alleged secret is merely an unfinished “concept” or “goal,” as opposed to information that has been reduced to practice in the form of a functioning devise, machine, or system. For example, in Chomerics, Inc. v. Ehrreich, the employer sought to develop electrically conductive plastics using “metal particles embedded in a plastic matrix.”[xiv] During his employment, the employee worked on a project to develop an electrically conductive gasket that contained less than 10 percent silver particles. The employee eventually quit and began working for a competitor, which soon thereafter patented an electrically conductive gasket that used less than 10 percent silver. The Appeals Court ruled that the use of a certain amount of silver represented only a “concept,” and that “when [the defendant] left [the plaintiff’s employ] he took with him nothing but possibilities and goals which had hitherto proved impossible to bring to fruition.” The Appeals Court ruled those “possibilities and goals” were part of the employee’s general skill or knowledge, not a protectable trade secret of the former employer.

By comparison, in Junker, the machine for combining shoe cloth was fully operational, in use in the employer’s manufacturing facility in “actual and substantial production.”[xv] Several of the plaintiff’s employees quit, started working for a competitor, and duplicated the machine, up to which point “there was none other faintly resembling it in use anywhere.” The SJC ruled that the machine was a protectable trade secret belonging to the employer.

     D. Employees’ Memory and Nondocumentary Information

Massachusetts courts are more likely to find that an alleged trade secret falls within an employee’s general skill and knowledge if the employee allegedly used information from his memory, without taking away documents or electronically stored information. The SJC has, in several cases, “considered it significant that the former employee did or did not take actual lists or papers belonging to his former employer.”[xvi] For example, in American Window Cleaning Co. of Springfield v. Cohen, the plaintiff alleged that its former employees had misappropriated secret information regarding its customers. The SJC ruled the former employees had not breached their duty of confidentiality to their former employer because “[r]emembered information” regarding certain of the employer’s customers was “not confidential” and “a discharged employee, without the use of a list belonging to his former employer, may solicit the latter’s customers.”[xvii]

Similarly, in New Method Die & Cut-Out Co., the SJC ruled that an allegedly secret method for manufacturing cardboard toys was within the defendant employee’s general skill or knowledge, noting that “the defendant . . . when he left the employment of the plaintiff . . . took no documentary manufacturing data, cost figures, or customers’ lists and no drawing which were a part of the plaintiff’s files or were final drawings which had been used by the [plaintiff] for the manufacture of toys.”[xviii]

By contrast, in Pacific Packaging Products v. Barenboim, the plaintiff employer alleged that five of its former employees removed, among other things, sales history reports, cost books, invoices, and spreadsheets containing the employer’s information about particular customer accounts, all in order to form a competing company using the plaintiff’s customer base. In granting the plaintiff’s request for a preliminary injunction against the defendants’ use of the information, Judge Billings ruled “[m]y focus herein is almost exclusively on documentary information” alleged to have been misappropriated because “while it is theoretically possible to make the showing that a former employee used his memory to compete unfairly with the former employer, it is not―particularly where business, not technical, information is concerned―an easy task.”[xix]

III.       Conclusion

Distinguishing trade secrets from general skill and knowledge is not a precise science and requires a fact-specific analysis. While Massachusetts courts have not articulated a specific set of rules to apply in making the distinction, the four factors discussed above provide an outline of the key considerations Massachusetts courts have used to decide whether certain information was within a departing employee’s general skill or knowledge.

[i] Massachusetts adopted a version of the Uniform Trade Secrets Act (“UTSA”), effective October 1, 2018.  See Mass. Gen. Laws ch. 93, §§ 42-42G.  Other UTSA jurisdictions distinguish trade secrets from general skill or knowledge.  See, e.g., American Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir. 1998) (applying Florida law).

[ii] Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972) (citing Restatement of Torts § 757, cmt. b.).

[iii] Junker v. Plummer, 320 Mass. 76, 79 (1946).

[iv] American Stay Co. v. Delaney, 211 Mass. 229, 231-32 (1912).

[v] CVD, Inc. v. Raytheon Co., 769 F.2d 842, 852 (1st Cir. 1985) (applying Mass. law).

[vi] See, e.g., Dynamics Research Corp. v. Analytic Sciences Corp., 9 Mass. App. Ct. 254, 267 (1980).

[vii] See, e.g., EMC Corp. v. Loafman, No. 2012-3115-F, 2012 WL 3620374 (Mass. Super. Ct. 2012) (Wilkins, J.) (“Nor does general knowledge acquired on the job justify a non-compete.”) (citing Dynamics Research Corp. v. Analytic Sciences Corp., 9 Mass. App. Ct. 254, 267 (1980)).

[viii] Intertek Testing Servs. NA, Inc. v. Curtis-Strauss LLC, No. 98903F, 2000 WL 1473126, at *8 (Mass. Super. Ct. Aug. 8, 2000) (Gants, J.).

[ix] Dynamics Research Corp., 9 Mass. App. Ct. at 268 (quoting Harlan M. Blake, Employee Agreements Not to Compete, 73 Harv. L. Rev. 625, 684-85 (1960)); see also Harvard Apparatus, Inc. v. Cowen, 130 F. Supp. 2d 161, 175 n.31 (D. Mass. 2001) (applying Mass. law) (“The issue of whether the information lies within the employee’s general skill or knowledge depends, in part, upon the amount of knowledge and skill the employee had in the relevant area at the start of his employment.”).

[x] Dynamics Research Corp., 9 Mass. App. Ct. at 268; see also New Method Die & Cut-Out Co. v. Milton Bradley Co., 289 Mass. 277, 281-82 (1935) (finding no protectable secret where “much of the [allegedly secret] process was familiar to [the employee] from his [prior] experience”).

[xi] Junker v. Plummer, 320 Mass. 76, 79 (1946).

[xii] Chomerics, Inc. v. Ehrreich, 12 Mass. App. Ct. 1, 4 (1981).

[xiii] New Method Die & Cut-Out Co., 289 Mass. at 282.

[xiv] Chomerics, 12 Mass. App. Ct. at 4.

[xv] Junker, 320 Mass. at 77.

[xvi] Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972) (citing cases). Like the other factors, however, this factor is not dispositive. The SJC ruled in Jet Spray Cooler that “the fact that no list or paper was taken does not prevent the former employee from being enjoined if the information which he gained through his employment and retained in his memory is confidential in nature.” Id.

[xvii] Am. Window Cleaning Co. of Springfield v. Cohen, 343 Mass. 195, 199 (1961).

[xviii] New Method Die & Cut-Out Co., 289 Mass. at 280.

[xix] Pac. Packaging Prod., Inc. v. Barenboim, No. MICV2009-04320, 2010 WL 11068538, at *1 (Mass. Super. Ct. Apr. 20, 2010) (Billings, J.).  To avoid an injunction on that basis, the defendants represented to the court they had completely divested themselves of the paper and electronic versions of the plaintiff’s information.  The court later found that representation to be a fraud on the court because the defendants had not in fact turned over the information; the court entered a default on the defendants’ counterclaims and awarded fees and costs in excess of $1 million to the plaintiff.

Gregory S. Bombard, a trial lawyer at Duane Morris, focuses his practice on trade secret litigation, business torts, and other complex commercial disputes. He represents pharmaceutical, manufacturing and technology companies in state and federal courts and arbitration proceedings throughout the United States.

Adam M. Santeusanio is a trial lawyer at Duane Morris. His practice focuses on intellectual property and commercial litigation.


The Privity Defense in Commercial Warranty Actions: Still Lingering Forty-Five Years After Legislative Abolition

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by David R. Geiger and Richard G. Baldwin

Legal Analysis

On July 21, 2017, in Organic Mulch & Landscape Supply of New England LLC v. Probec, Inc. [i]  the United States District Court for the District of Massachusetts dismissed a groundskeeping supply business’s breach of warranty claims against a manufacturer to recover the purchase price, repair costs and lost profits from allegedly defective ice bagging equipment because plaintiff bought the equipment from a distributor rather than directly from the manufacturer. The court further denied plaintiff’s motion to certify to the Massachusetts Supreme Judicial Court (“SJC”) the question of whether privity was required for a commercial plaintiff’s warranty claim for economic loss, reasoning that the “answer is clear in the case law.” In support, the court asserted that since the late 1990s courts have “uniformly” required privity under these circumstances, citing opinions from four different Massachusetts federal judges.

This authority, however, appears to be at odds with the plain language of Mass. Gen. L. ch. 106, § 2-318, which provides:

Lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer . . . to recover damages for breach of warranty, express or implied, or for negligence . . . if the plaintiff was a person whom the manufacturer . . . might reasonably have expected to use, consume or be affected by the goods.

As discussed below, the Massachusetts federal court’s departure from the statutory language rests on a tenuous basis, particularly in light of the statute’s history and interpretation by the SJC, and raises significant practical and policy concerns.

The Path To The Federal Court Rule

The original version of § 2-318 abolished the privity requirement only for breach of warranty claims by a “natural person who is in the family or household of [the] buyer or who is a guest in his home . . . and who is injured in person” by a warranty breach.[ii] In 1971, the section was re-written to extend the abolition to “any action . . . to recover damages for breach of warranty, express or implied, or for negligence” by “a person whom the manufacturer . . . might reasonably have expected to use, consume or be affected by the goods.” In 1973, the legislature added a two-year statute of limitations for “all actions under this section,” and in 1974 extended it to three years.[iii]

For nearly twenty-five years, the 1971 amendment to § 2-318 was consistently interpreted to have eliminated the privity defense in all warranty cases.[iv] Even the Massachusetts federal court opinions noted above agree on this,[v] but they cite the SJC’s 1989 decision in Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co.[vi] as a turning point in the statute’s interpretation.

The issue in Bay State-Spray was not privity, however, but which of two “literally appli[cable]” statutes of limitations governed a warranty claim for repair costs and lost profits against the manufacturer of an allegedly defective engine in a ferry sold to plaintiff by a shipyard. Section 2-318 establishes a three-year statute of limitations from the date of injury for actions “under this section,” which includes warranty claims, but Mass. Gen. L. ch. 106, § 2-725 imposes a four-year limitations period generally running from the date of sale for actions “for breach of any contract,” including “breach of warranty.” The SJC viewed the legislature as having two purposes in expanding § 2-318:  “to eliminate requirements of privity and to express new principles of strict liability for personal injuries and property damage caused by a seller’s breach of warranty.” Based on the latter, the court reasoned that the limitations period of § 2-318 governed “tort-based warranty claims,” in which the product causes personal injury or damage to property other than the product itself, while that of § 2-725 governed “contract-based warranty claims,” in which the product causes only economic loss or damage to the product itself. As plaintiff’s claim was contract-based and brought more than four years after the sale, § 2-725 applied and barred the claim. In a footnote, the SJC mentioned that defendant had not argued that plaintiff’s lack of privity barred the claim.

Six years later, the United States District Court for the Southern District of New York in Hadar v. Concordia Yacht Builders[vii] relied on Bay State-Spray to conclude that Massachusetts law required privity for contract-based warranty claims. In Hadar, a yacht owner sued his shipbuilder and the distributors and manufacturers of epoxy resin and fabric used to construct the ship for a cosmetic defect allegedly caused by incompatibility between the resin and fabric. The distributor and manufacturer defendants asserted that lack of privity barred plaintiff’s warranty claims. The court interpreted Bay State-Spray to hold that § 2-725—which is entitled “Statute of Limitations in Contracts for Sale”—governed all aspects of contract-based warranty claims and that § 2-318 is inapplicable to such claims. The court reasoned that although Bay State-Spray “involved” statute of limitations issues, the SJC “did not limit its discussion of the scope of section 2-318 to [such] issues.” Because § 2-725 does not address privity, the court held Massachusetts still required it for contract-based warranty claims.

Less than a month later, however, the SJC held in Jacobs v. Yamaha Motor Corp., U.S.A.,[viii] that privity was not required for the purchaser of a consumer product to recover from its manufacturer for contract-based warranty claims. The court noted that Mass. Gen. L. ch. 106, § 2-316A expressly prohibits a “manufacturer of consumer goods”[ix] from disclaiming or limiting implied warranties or remedies for their breach, thus creating the “implication” that such a manufacturer indeed “makes an implied warranty . . . to the consumer,” i.e., that privity is not required. Moreover, § 2-318 is even “[m]ore explicit” and “on its face invalidate[d]” the manufacturer’s privity argument, since the statute’s abolition of the privity requirement “is not limited to recovery for personal injury but rather refers [more broadly] to ‘damages’ for breach of warranty,”—unlike two of the three official UCC alternatives for the section. The SJC also noted that Massachusetts’ § 2-318 is “at least as broad as,” and in some respects “goes beyond,” the UCC’s broadest Alternative C, which had been interpreted by courts across the country as permitting consumers to recover for non-personal injury warranty claims absent privity.[x]

While the Jacobs Court noted Bay State-Spray’s conclusion that § 2-318 had been enacted with a tort “focus,” it reasoned that focus should not “inhibit the independent development of the law concerning warranties.” Acknowledging in dicta the possibility that “[c]ontract-based warranty claims involving commercial transactions may generally call for different treatment than tort-based warranty claims,” the SJC asserted that buyers of consumer goods “deserve separate consideration because of the special legislation affecting them.”  The court explained it was responding to this treatment by interpreting sections 2-316A and 2-318 to abolish the privity requirement for a buyer of consumer products to bring a contract-based warranty claim against the manufacturer.

Following Jacobs, developments in the Hadar litigation caused the New York court to revisit its prior ruling.[xi] Acknowledging the decision in Jacobs, but noting that its holding was limited to buyers of consumer products, the court retained its original conclusion for contract-based warranty claims “arising in the context of commercial transactions.” The court did not address the fact that its original decision was premised on § 2-725, while Jacobs did not even cite that section, much less say that it governed all aspects of contract-based warranty claims.  Nor did the court acknowledge Jacobs’ affirmative reliance on § 2-318’s plain language that was “explicit” in its abolition of the privity requirement, including for economic loss claims, and was at least as broad as—and in some respects went beyond—UCC Alternative C.

Seven months later, the Massachusetts federal court in Sebago, Inc. v. Beazer East, Inc.[xii] adopted Hadar’s interpretation of Bay State-Spray and Jacobs to conclude that, under Massachusetts law, “commercial plaintiffs must allege privity to maintain a breach of warranty action against a manufacturer.” Later opinions of the Massachusetts federal courts follow Sebago and its analysis, generally without citing Hadar.[xiii]

The SJC’s Subsequent Decision in Theos & Sons

The SJC has not subsequently revisited the possibility raised in Jacobs that commercial contract-based warranty claims may warrant different treatment than tort-based warranty claims or, more pertinently, whether such claims should be treated differently from consumer contract-based warranty claims, which Jacobs explicitly held did not require privity.[xiv] But at least one post-Jacobs case strongly suggests the court does not view privity as a requirement even for commercial contract-based warranty claims.

In Theos & Sons, Inc. v. Mack Trucks, Inc.,[xv] a business that bought a commercial truck second-hand from another business sued the manufacturer for breach of the implied warranty of merchantability to recover for economic losses from failure of the truck’s engine. The SJC affirmed dismissal of plaintiff’s claim because the manufacturer had effectively disclaimed any implied warranty in its sale to the first buyer, holding that the disclaimer was effective against any subsequent buyer, even one unaware of the disclaimer. In reaching its conclusion, the SJC specifically noted that “§ 2-318 extends all warranties . . . to third parties who may reasonably be expected to use the warranted product,” without making any distinction between consumer or commercial transactions, and observed that while § 2-318 itself did not explicitly address the effects of warranty disclaimers on remote plaintiffs, the section’s comments did.  Theos & Sons thus strongly implies that the court may view § 2-318’s abolition of the privity requirement for contract-based warranty claims as equally applicable to both commercial and consumer products.

Practical and Policy Concerns

Although the Massachusetts federal court decisions requiring privity apply only to commercial buyers and contract-based warranty claims, the decisions nonetheless have considerable practical and policy consequences. For example, commercial buyers that purchase through intermediaries such as distributors may lack a remedy if their immediate seller becomes insolvent. Indeed, that may be the outcome in Organic Mulch, where the court dismissed plaintiff’s claims against the manufacturer for lack of privity but claims against the distributor have been stayed by its bankruptcy filing.

While insolvency may be a comparatively rare occurrence, the federal court rule will almost always have litigation consequences. For example, since the manufacturer inevitably possesses the most critical information and documents concerning any alleged product defect, a plaintiff limited to suing its immediate seller must incur the additional burden of pursuing third-party discovery from the manufacturer to obtain information necessary to prosecute its claim. In addition, the rule is likely to foster multiple litigations: each party in the sales chain would have to bring a suit against the entity with which it was in privity until liability ultimately reaches the manufacturer.

The federal court rule also has significant policy consequences. For one, preventing suits against manufacturers that sell indirectly fails to situate liability, and the corresponding economic incentive, on the truly responsible entity. The SJC has noted in the tort context that the law seeks to impose liability on the party in the best position to prevent or remedy a product defect.[xvi] This principle should be not be rendered inapplicable by the happenstance that the product caused only economic loss, creating a contract-based claim, rather than personal injury or property damage that would create a tort-based claim. Moreover, to the extent the federal court’s position diverges from that of the state court’s, a manufacturer’s liability will turn not on its culpability but rather whether plaintiff’s claims can be removed to federal court.

In addition, interpreting § 2-318 contrary to its seemingly unambiguous meaning may run afoul of the SJC’s requirement that courts must “carry out the legislature’s intent, determined by the words of a statute interpreted according to the ordinary and approved usage of the language.”[xvii]

In light of this fundamental principle, Jacobs’ statement (albeit in the context of a consumer claim) that § 2-318 is “explicit” in abolishing the privity requirement for contract-based warranty claims and Theos & Sons’ strong implication that this abolition is as applicable to commercial as to consumer plaintiffs, courts and litigants would benefit by the SJC’s finally resolving the issue.  Accordingly, a future federal court may want to consider requesting such a resolution. Alternatively, a direct state court appeal may provide the SJC that same opportunity.

[i] Civil Action No. 16-10658-RGS, 2017 U.S. Dist. LEXIS 113716 (D. Mass. July 21, 2017).

[ii] See Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 108 n.6 (1989) (quoting 1957 version of statute).

[iii] See id. at 109.

[iv] See, e.g., id. at 104 (“Our discussion will require an analysis of the unique Massachusetts treatment of G.L. c. 106 § 2-318, . . . which the Legislature has used to eliminate requirements of privity”); Cameo Curtains, Inc. v. Philip Carey Corp., 11 Mass. App. Ct. 423, (1981) (“The fundamental purpose of § 2-318, as amended, is to eliminate lack of privity as a defense in a breach of warranty action.”).

[v] E.g., First Choice Armor & Equip., Inc. v. Toyobo Am. Inc., 839 F. Supp. 2d 407, 412 (D. Mass. 2012) (“For a time, Massachusetts courts assumed that § 2-318 eliminated the privity requirement for all breach of warranty actions regardless of the kind of injury involved.” (citing cases)); W.R. Constr. & Consulting, Inc. v. Jeld-Wen, Inc., Civil Action No. 01-10098-DPW, 2002 U.S. Dist. LEXIS 18686, at *20 n.3 (D. Mass. Sept. 20, 2002) (“Throughout the early 1980s, the Massachusetts courts appeared to treat § 2-318 as covering all breach of warranty claims.”).

[vi] 404 Mass. 103, 105–11 (1989).

[vii] 886 F. Supp. 1082, 1097–98 (S.D.N.Y. 1995).

[viii] 420 Mass. 323, 327–31 (1995).

[ix] Consumer goods are those “bought for use primarily for personal, family or household purposes.” G.L. c. 106 § 9-102 (made applicable by G.L. c. 106 § 2-103).

[x] 420 Mass. at 328–29. The UCC’s § 2-318 is captioned “Third Party Beneficiaries of Warranties Express or Implied” and provides three alternatives for state legislatures. Alternative A is the version Massachusetts adopted in 1957. Compare Bay State-Spray, 404 Mass. at 108 n.6 with Jacobs, 420 Mass. at 328 n.4.  Alternative B abolishes the privity requirement for “any natural person who may reasonably be expected to use, consume or be affected by the goods and who is injured in person” by a warranty breach. Jacobs, 420 Mass. at 328 n.4. Alternative C abolishes the defense for “any person who may reasonably be expected to use, consume or be affected by the goods and who is injured” by a warranty breach, the only alternative that “concerns more than personal injury.” Id. Massachusetts’ current § 2-318, captioned “Lack of Privity in Actions Against a Manufacturer, Seller or Supplier of Goods,” like Alternative C, contains no limitation either to “natural” persons or injury “in person,” but is even broader in that, for example it also governs claims “for negligence.”

[xi] Hadar v. Concordia Yacht Builders, 92 Civ. 3768 (RLC), 1997 U.S. Dist. LEXIS 11182, at *11–15, 1997 WL 436464 (S.D.N.Y. Aug. 1, 1997).

[xii] 18 F. Supp. 2d 70, 97–99 (D. Mass. 1998).

[xiii] See First Choice, 839 F. Supp. 2d at 412–13; Irish Venture, Inc. v. Fleetguard, Inc., 270 F. Supp. 2d 84, 87 (D. Mass. 2003); W.R. Constr. & Consulting, Inc., 2002 U.S. Dist. LEXIS 18686, at *18–20.

[xiv] In Canal Electric Co. v. Westinghouse Electric Corp., an opinion on certified questions, the SJC declined to address whether a commercial plaintiff would be barred from recovering purely economic losses from the manufacturer of an allegedly defective generator absent privity, as that question was not certified to the Court. 406 Mass. 369, 370 n.1 (1990).

[xv] 431 Mass. 736 (2000).

[xvi] E.g., Colter v. Barber-Greene Co., 403 Mass. 50, 57 (1988) (“We hold a manufacturer liable for defectively designed products because the manufacturer is in the best position to recognize and eliminate the design defects.”).

[xvii] Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 319 (2003).

Mr. Geiger and Mr. Baldwin are partners in the litigation department of the Boston office of Foley Hoag LLP.  They are both members of the firm’s Product Liability and Complex Tort Practice Group, of which Mr. Geiger is the chair.