The evolution toward a cloud economy has made it easy and often profitable for employees to misappropriate valuable data from their employers. Indeed, pre-pandemic estimates suggested that over 50 percent of employees take – and most of them are willing to use – their employer’s information when leaving a company.
Against this backdrop, COVID-19 unexpectedly caused the world to shut down in early 2020, resulting in mass layoffs, the highest unemployment rates since the Great Depression, and a fundamental and perhaps permanent shift toward a predominately remote workforce.
Together, these factors have created a precarious environment for trade secrets, as well as customer relationships and other legitimate business interests. Employees working from home have more opportunity to convert company information and customers, and some, particularly those facing involuntary unemployment, may feel driven to do so. Moreover, the ongoing crisis has made preliminary injunctive relief (the judicial remedy most often used to protect trade secrets and other legitimate business interests) more elusive, as courts are typically less willing to restrain employees from competitive employment during economic downturns. See, e.g., All Stainless, Inc. v. Colby, 364 Mass. 773, 781 n.2 (1974).
Whether during or after the pandemic, it is vital for companies to have strong measures in place for protecting their trade secrets and other legitimate business interests, rather than to solely rely on after-the-fact litigation. Below are some practical tips for how to do so.
Tips for protecting trade secrets and other legitimate business interests during and after a global pandemic
Know your trade secrets. A remote workforce means that employees are developing, accessing, and using their employer’s trade secrets from home (and elsewhere). Accordingly, understanding the categories, sources, and life cycles of the company’s trade secrets, and the risks of exposure to which such information is most susceptible, is necessary for establishing and implementing policies and practices that are best suited to protect that information during and after the pandemic. Depending on the organization, the analysis will likely need to involve management, human resources, legal, corporate governance, sales, information technology, information management, research and development, manufacturing, and other relevant stakeholders.
Firm up policies and procedures. Once a company has categorized its trade secrets, both existing and under development, it must ensure that its policies and procedures are appropriately designed to protect the information against likely sources of risk. Such policies and procedures, which should be reviewed on a regular basis, are also critical to protecting other legitimate business interests, such as customer goodwill.
Among other things, employers should have policies that establish clear criteria, protocols, and expectations for the access, use, and disclosure of confidential information, including third-party information; working from home; the use of the employer’s devices, systems, and accounts (and, if applicable, the employer’s policies concerning monitoring such devices, systems, and accounts); the use of personal devices; the use of social media accounts, including as they relate to client communications; the use and protection of passwords; and the post-employment return of information and property. In addition, employers should have a policy that instructs employees to report incidents of unauthorized access, use, or disclosure of confidential information, and provides clear instructions for how to make such a report. This list is not comprehensive, and policies are not one-size-fits-all; they must be tailored to meet the unique needs of the employer and be reasonable in the context of the company’s needs, capabilities, and culture.
Employers should also work closely with their remote employees to ensure that the employees’ at-home work environments are secured against both external threats and inadvertent disclosure. For example: home Wi-Fi routers should be secured with strong passwords; passwords, non-guessable meeting IDs, and other security settings should be used for video conference solutions like Zoom; confidential information should not be reviewed where others in the household may see or overhear it; and confidential information should not be left out in the open when the workspace is unattended. Employers should be prepared to run through a comprehensive checklist with their employees to make sure that employees are taking necessary precautions to protect their workspaces.
Finally, the unfortunate reality of increased furloughs and layoffs during the pandemic dictates that employers have a system in place for off-boarding employees remotely. The system should include, at the least, a mechanism for terminating exiting employees’ access to the employer’s information and information systems (including the remote wiping of company data from devices in the employee’s possession), for securing the full return of all equipment and confidential information, and for the employee to acknowledge their obligation to return (and not retain, use, or disclose) the employer’s confidential information (as well as to comply with their other post-employment contractual obligations).
Educate your employees. Policies and procedures are worthless, and can hurt more than help, if they are not disseminated, understood, and followed. This means that employers must, on an ongoing basis, educate their employees about company policies and practices. While in-person trainings are ill-advised in the era of social distancing, they may be easily replaced by online trainings, whether live or pre-recorded. Processes should be in place that require employees to not only read the policies and procedures, but also to acknowledge that they understand and agree to abide by them. Policies and procedures should provide an avenue for employees to ask questions and obtain answers that will be consistent throughout the company, either through legal or other channels. Employers are well-served by maintaining accurate records of policies and procedures and any amendments thereto, training dates, and employee acknowledgments. While training and acknowledgments will not necessarily prevent all willful misconduct, they may serve as a deterrent, help to limit incidents of inadvertent disclosure (or unauthorized solicitation) and, if litigation becomes necessary, help to establish the company’s reasonable efforts to protect its trade secrets and other legitimate business interests.
Monitor your workforce. Trade secret misappropriation and other forms of employee misconduct do not usually happen in a vacuum. Oftentimes, there will be warning signs that an employee is unhappy (e.g., a lack of engagement, an attitude shift or sudden change in behavior, increased activity on LinkedIn). Moreover, employees who take their employer’s information with the intention of using it at their next place of employment frequently commit multiple acts of taking in the days and weeks leading up to their termination. Similarly, employees who plan to solicit customers may begin well before termination. For those reasons, employers should consider monitoring their employees’ email activity as well as their activity on other information systems to determine whether the employees are accessing information that they do not have a business need to know or are accessing appropriate information, but with unusual frequency. Periodic monitoring may enable an employer to detect and address internal threats earlier, thereby obviating the need for judicial intervention. Before engaging in any kind of monitoring, employers should disseminate policies that put employees on notice that the employers’ devices, systems, and accounts belong solely to the employer and may be monitored on a periodic or ongoing basis.
While these steps are intended to help employers protect their legitimate business interests, they are not comprehensive and are not guaranteed to protect against every threat of disclosure and other forms of misconduct. When implemented correctly, however, they should substantially reduce overall risk. In addition, where litigation is necessary, an employer that has implemented the above steps will have ample evidence to show that it both identified its legitimate business interests to its employees and notified them of their legal obligations to protect such interests. This can dramatically improve an employer’s chances of prevailing in court.
 See “What’s Yours is Mine: How Employees are Putting Your Intellectual Property at Risk,” White Paper by the Ponemon Institute and Symantec Corporation (2013), available at https://www.ciosummits.com/media/solution_spotlight/OnlineAssett_Symantec_WhatsYoursIsMine.pdf.
 For a comprehensive checklist of steps employers can take, see “A primer and checklist for protecting trade secrets and other legitimate business interests before, during, and after lockdown and stay-at-home orders,” available at https://www.faircompetitionlaw.com/2020/05/17/a-primer-and-checklist-for-protecting-trade-secrets-and-other-legitimate-business-interests-before-during-and-after-lockdown-and-stay-at-home-orders/.
 See, e.g., “13 Signs That Someone Is About to Quit, According to Research,” by Timothy M. Gardner and Peter W. Hom, Harvard Business Review (Oct. 20, 2016), available at https://hbr.org/2016/10/13-signs-that-someone-is-about-to-quit-according-to-research.
Russell Beck is a founding partner of Beck Reed Riden LLP. He has authored books on trade secrets and restrictive covenants, assisted the Obama Administration on a Call to Action on noncompetes and trade secrets, drafted much of the Massachusetts Noncompetition Agreement Act, and revised the Massachusetts Uniform Trade Secrets Act. Russell teaches Trade Secrets and Restrictive Covenants at the Boston University School of Law and is President Elect of the Boston Bar Foundation.
Hannah Joseph is senior counsel at Beck Reed Riden LLP and focuses her practice on trade secrets and restrictive covenants law. Hannah regularly publishes and speaks on the topics of intellectual property law and restrictive covenants, including at the American Intellectual Property Law Association, Boston Bar Association, and Practising Law Institute. In addition, Hannah co-teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law.
by Richard P. Breed, IV
Virtual currencies, such as Bitcoin or Ethereum, have moved beyond curiosities, and have, for several years, become legitimate and accepted methods of payment and exchange. Federal and state regulators, including the United States Internal Revenue Service (“IRS”), however, have been slow to keep up – until now.
IRS Notice 2014-21
Since publishing its initial general guidance in IRS Notice 2014-21 (“Notice 2014-21”) concerning the tax treatment of certain transactions involving virtual currency, the IRS has taken few steps to enforce compliance. In fact, despite billions of dollars being exchanged through virtual currency, the IRS estimates that a substantial amount of taxable virtual currency transactions have not been reported by taxpayers. GAO-28-188 Taxation of Virtual Currencies at page 11. Recently, however, with the publication of additional guidance in October 2019 pursuant to IRS Revenue Ruling 2019-24 (“Rev. Rul. 2019-24”) and other actions, the IRS is working to increase taxpayers’ understanding of and voluntary compliance with reporting obligations for virtual currency. Tax counsel should be mindful of this policy shift and be prepared to advise clients about the inevitable increase in taxpayer audits and, in egregious cases, criminal charges.
Notice 2014-21 clarified that the IRS will apply existing tax principles applicable to property transactions to virtual currency. Therefore, payments for goods and services using virtual currency, or exchanges from one virtual currency to another, will be treated as sales or exchanges of property that trigger gain or loss for income tax purposes. Such gain or loss will be taxed as ordinary income/loss or capital gain/loss depending on the taxpayer’s circumstances. Taxpayers who receive virtual currency in exchange for goods or services recognize income in the amount of the fair market value of the virtual currency as of the date of the exchange. Taxpayers need to track their tax basis in the virtual currency in order to properly calculate the gain or loss upon its later disposition.
IRS Revenue Ruling 2019-24
Rev. Rul. 2019-24 provided additional guidance limited to the tax consequences of a “hard fork” and an “airdrop,” which are transactions unique to cryptocurrency and its blockchain technology. As explained in Rev. Rul. 2019-24 “cryptocurrency is a type of virtual currency that utilizes cryptography to secure transactions that are digitally recorded on a distributed ledger, such as a blockchain. Distributed ledger technology uses independent digital systems to record, share and synchronize transactions, the details of which can be recorded in multiple places at the same time with no central data store or administration functionality.” Id. at 2. A hard fork “occurs when a cryptocurrency on a distributed ledger undergoes a protocol change resulting in a permanent diversion from the legacy or existing distributed ledger” and “may result in the creation of a new distributed ledger in addition to the legacy cryptocurrency on the legacy distributed ledger.” Id. A hard fork followed by an airdrop results in the “distribution of units of the new currency to addresses containing the legacy cryptocurrency. However, a hard fork is not always followed by an airdrop.” Id.
Rev. Rul. 2019-24 clarified when a taxpayer has receipt, for income tax purposes, of cryptocurrency distributed to the taxpayer from an airdrop. The IRS concluded that such receipt occurs on the date the taxpayer exercises “dominion and control over the cryptocurrency,” such as the ability to “transfer, sell, exchange, or otherwise dispose of the cryptocurrency”, id. at 3, which can occur before or after the date on which the transaction is recorded on the distributed ledger for the cryptocurrency. Id. at 2-3.
Simultaneous with the publication of Rev. Rul. 2019-24, the IRS published (and further revised on December 31, 2019) forty-five “Frequently Asked Questions” (“FAQs”) designed to promote voluntary compliance with tax reporting of virtual currency transactions. The FAQs came on the heels of the IRS Virtual Currency Compliance Campaign, which had been launched in July 2018 and is designed to reduce noncompliance in tax reporting through additional education, outreach, and, if necessary, examinations.
Don’t expect the IRS, however, to rely solely on taxpayer voluntary compliance. For example, in 2018, the U.S. District Court for the Northern District of California granted the IRS’s motion to enforce its summons against Coinbase, Inc. (“Coinbase”), a virtual currency exchange platform, to turn over identification data, including tax ID numbers, on any user who engaged in a virtual currency transaction in excess of $20,000 from 2013-2015. United States v. Coinbase, Inc., 2017 U.S. Dist. LEXIS 196306, *21, Case No. 17-cv-01431-JSC, November 28, 2017. Coinbase ultimately transferred personal data and account information on over 13,000 users to the IRS. Id. Not surprisingly, using this information, the IRS sent 10,000 warning letters in early 2019 to taxpayers whom it thought failed to properly report at least one transaction involving virtual currency. The letters advised taxpayers to amend prior tax returns to report any virtual currency transactions. IR-2019-132, July 26, 2019. See also Shehan Chandrasekera, “How the IRS Knows You Owe Crypto Taxes,” Forbes (January 21, 2020).
IRS Amended Schedule 1 to Form 1040
To assist taxpayers for future years, beginning with calendar year 2019, the IRS also amended personal income tax form, Schedule 1 to Form 1040 to add a question concerning whether or not the taxpayer engaged in any transaction involving virtual currency during the year. If so, the form directs the taxpayer to disclose such transaction, if taxable. Taxpayers may wish to seek assistance of tax counsel to decipher which transactions must be reported and to calculate any gain or loss.
IRS Solicitation of Virtual Currency Professionals to Assist in Audit of Tax Returns
Most recently, in May of 2020, the IRS began to privately solicit experienced virtual currency professionals to assist the IRS with taxpayer examinations dealing with virtual currency. A copy of that solicitation has been posted online by various sources and is available here.
It should be noted that the IRS has not indicated a plan to offer an amnesty-type program similar to the Offshore Voluntary Disclosure Program, which dealt with taxpayers who previously failed to report income or assets held in accounts the custodian for which is located outside the United States. In addition, it is unclear whether taxpayers who voluntarily amend their tax returns to report taxable income from virtual currency transactions will be entitled to relief from interest and penalties due for failing to report the income.
It is abundantly clear, however, that the IRS is focused on increasing compliance in reporting taxable transactions involving virtual currency, and that taxpayers need to be aware of this. For their part, tax counsel should be mindful of these developments when advising their clients and remain vigilant for additional notices and rulings in the ever-evolving field of virtual currency.
Richard P. Breed, IV is an associate with the firm Tarlow, Breed, Hart & Rodgers, P.C., whose practice concentrates on business and tax planning for individuals and privately-held businesses.
On Thin ICE: Advocating for Non-Citizen Civil Litigants in an Era of Increased Immigration EnforcementPosted: May 28, 2020
by Caddie Nath-Folsom
In a time of unprecedented fear and uncertainty among immigrant communities, non-citizens may be afraid to pursue or defend their legal rights in state civil matters. This article is intended to help civil attorneys without immigration expertise more effectively assess the risks that their non-citizen clients face, confront immigration-related threats from opposing parties, and ensure access to justice for non-citizen litigants.
Opponents in cases involving divorce or custody, employment, landlord/tenant disputes, or tort and contract matters sometimes try to use immigration status as a litigation weapon, threatening explicitly or implicitly to report or expose a non-citizen party to Immigration and Customs Enforcement (ICE) to force settlement or gain an upper hand. Given the current political climate, these threats may be very effective against clients. Civil attorneys therefore need to be prepared a) to assess whether being reported to ICE is something the client actually needs to be worried about, and b) if it is, to push back against the threat and safeguard the client’s ability to exercise his or her rights under the law.
How then can a civil attorney without a background in immigration law determine whether being reported to ICE poses any real risk to a client? The attorney can fairly effectively assess the relative risk by determining whether ICE, or its umbrella agency, the Department of Homeland Security (DHS), has already detected the client’s presence in the United States. People who are “detected” include those with valid legal status and those with ongoing immigration court proceedings. If DHS is already aware that the client is present in the United States and the client is not currently detained, it means that the client is either not subject to detention or that DHS has determined that it isn’t necessary to detain this particular person. In either case, DHS is very unlikely to send ICE agents out to arrest that individual just because the opponent makes a report. However, if the client is “undetected,” or not currently on the DHS’s radar, the danger of being reported to ICE is very real. In 2017, the Trump administration announced the elimination of earlier policy guidelines that prioritized the detention and deportation of those with criminal convictions or who posed a threat to public safety. Today, ICE focuses its enforcement resources on whomever it can find.
While in some cases it may be difficult to ascertain whether or not a client is detected, usually the attorney can make an educated guess by talking to the client about her immigration history. Most often, undetected clients either entered the U.S. with a valid visa and then remained after its expiration or crossed a land border into the U.S. between ports of entry without being caught by border agents. In either case, it is important to determine whether the client has ever had any contact with immigration officials in the U.S. or was ever ordered to appear in immigration court and failed to do so. Those who fail to appear for immigration court hearings, almost without exception, are ordered removed (deported) in absentia, even if they were minors at the time of the hearing. Clients with old removal orders are at the greatest risk of detention or deportation if an opponent exposes them to ICE. If apprehended, the prior removal order can be immediately reinstated, and they can be deported from the U.S. in short order.
Where it is difficult or impossible to determine if a client is undetected, the attorney should err on the side of caution and assume that an opponent’s threat to report the client to ICE is something to be taken seriously.
It is important to discuss the risk of exposure with undetected clients, particularly where there are indications that the opponent may use the client’s immigration status as a litigation weapon, such as prior explicit threats to have the client deported. For some clients, the cost of possible exposure may outweigh the benefit they stand to gain through litigation.
As an advocate, no matter the client’s level of risk, the lawyer should be ready to head off and push back against immigration threats. This may require creativity in developing a litigation strategy to protect the client and it will mean actively working to prevent immigration status from becoming part of the case. The lawyer should be cautious about pre-arranged events, including depositions and settlement conferences, which might provide an aggressive opponent with an opportunity to expose the client to ICE. Advocate to keep information about the client’s immigration status out of discovery, particularly if it is raised as an intimidation tactic and not relevant to the merits of the case. Lawyers may also remind opposing counsel that threats related to immigration status may violate the Rules of Professional Conduct and could amount to criminal extortion. See Mass. Rules of Prof’l Conduct R. 3.4(h) and (i), R. 4.4(a), R. 8.4(d), (e); Wash. Rules of Prof’l Conduct R. 4.4 cmt. 4 (2013); NC Formal Ethics Op. 2005-3 (2005); Ass’n of Bar of City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2017-3 (2017).
It is also critical to bear in mind Fifth Amendment protections in preparing for discovery and cross examination that could elicit admission to acts that constitute uncharged criminal acts (such as unlawful border crossings and aiding others to enter the U.S. unlawfully).
Finally, attorneys representing non-citizen clients should be prepared to address client fears about attending court hearings due to widespread reporting on ICE enforcement actions in courthouses. In June 2019, a federal district court judge temporarily enjoined all ICE enforcement activity in courthouses in Massachusetts. See Ryan v. ICE, 1:19-cv-11003-IT (D. Mass. June 20, 2019). Even before the injunction, ICE activity in courthouses appeared to be limited to targeted arrests of specific individuals, all of whom were attending criminal hearings, and did not include random checks of persons in a courthouse. While the injunction stands and ICE maintains current policies, non-citizen clients should not fear attending hearings on civil matters in Massachusetts.
The immigration regulatory landscape is complex and constantly changing. The information here provides only a high-level roadmap to help in assessing risk. Clients with more complex immigration histories or specific questions regarding eligibility for immigration relief should be referred to a qualified immigration attorney.
Caddie Nath-Folsom is a staff attorney at the Justice Center of Southeast Massachusetts in Brockton. She represents survivors of crime in immigration and family law matters.
With the Appeals Court’s implementation of mandatory electronic filing for attorneys in September 2018 coinciding with extensive updates to the Massachusetts Rules of Appellate Procedure in March 2019, as well as with the Supreme Judicial Court’s pilot allowing parties to file electronic briefs with limited paper copies, this is a good time to provide feedback to the Massachusetts bar about some of the changes. As part of this endeavor, we surveyed the Justices of the Supreme Judicial Court and the Appeals Court for their input. What follows is a compilation of their feedback and additional observations. Although the Justices’ responses were not unanimous, they revealed many common themes.
The Monospaced or Proportional Font Option. Rule 20(a) now permits filers to use either a monospaced font (such as Courier New) with page limits, or a proportional font (such as Times New Roman) with a word count maximum. Attorneys frequently ask: What type of font do the Justices prefer?
Justices were evenly split among those who prefer a proportional font and those who had no preference, with slightly fewer Justices preferring a monospaced font. The preferred monospaced font was, unsurprisingly, Courier New; the preferred proportional font was Times New Roman. Sticking to one of these two fonts in your submissions is a safe bet. If you decide to take advantage of Rule 20(a)’s flexibility and select a different proportional font to add some extra flair, heed one Justice’s comment that “if a practitioner wants to try something new, that’s fine, but it must be easy to read.”
A downside to using a proportional font is the extra space that it occupies when produced in 14 point or larger font as the rule requires. A brief that is more than the traditional 50 page limit, even when within the new word limit, may seem longer to the reader using a proportional font because of the larger type size and new pagination requirements. Therefore, it is important to be mindful that the Justices, as always, appreciate conciseness and brevity.
Visual Aids. One way to free up space in a brief is to compile and present information through the insertion of visual aids. Visual aids may include a photograph, image, diagram, chart, or table. For example, in the Statement of Facts section of a brief, filers might consider putting chronological information contained in the record into a timeline format; various criminal charges, convictions, and sentences could be presented in a chart; a family tree could be useful in a probate case; a factually complex property case might benefit from a visual plan or map. While the Massachusetts Rules of Appellate Procedure do not currently contain a provision explicitly allowing or disallowing visual aids, the appellate courts’ practice is to accept them and a future rule amendment is possible.
The Justices commented that such visual aids are “refreshing” and that, “if you created a chart to prepare yourself, then we could use the same chart.” They also observed that, if you do not provide it, they may spend time developing a similar chart or understanding on their own.
But care and attention must be used when preparing a visual aid. Justices remarked, “While it’s theoretically possible, I have rarely if ever seen a chart or graph used effectively[,]” visual aids are “generally no[t]” helpful or only “[i]f well done,” and “[a] little goes a long way. Should be limited to the extraordinary and not [used] in lieu of precise text.” Any visual aid must be based on the record and contain appropriate record or source references.
Electronic Review. Virtually all of the Justices are reviewing documents electronically. There may be a misperception that Justices simply review paper printouts of electronically filed documents. That is not the practice. All Justices of the Supreme Judicial Court and the Appeals Court have iPads, as well as desktop computers, that contain electronic files (PDFs) of each case including the briefs, transcripts, and appendices. The Justices use different programs and applications, primarily the GoodReader app, to search for keywords, highlight text, insert notes, and copy and paste material to aid in drafting a decision. However, to enable the Justices to use these search and annotation features, the rules require that all PDFs be created and efiled using optical character recognition (OCR) technology. OCR is not optional yet many attorneys continue to submit non-OCR documents, which the courts will reject or strike when identified.
In general, Justices remarked that electronic documents are easy to read and the clarity of exhibits is enhanced in the electronic over paper form. They expounded on the unparalleled convenience of having all of the documents at the tip of their fingers to access at any time of day, whether in the office, on the train, or in the courtroom. Although paperless review has some drawbacks, the many positives of electronic accessibility and utility outweigh those shortcomings.
Overall, when asked what effect electronic document practices have had on their review of case files, an overwhelming majority of the Justices responded favorably with only one negative response. The Justices reported a positive effect on their opinion writing, explaining that text-searchable documents, navigation, copying and pasting text, cite checking, and organizing multiple cases is much easier. One Justice responded that poorly organized electronic record appendices make writing much more difficult.
Bookmarks and Internal Links. One message many Justices asked us to emphasize is to encourage electronic filers to add bookmarks and internal links in electronic documents. They assist Justices to navigate a PDF. While internal links are currently allowed by S.J.C. Rule 1:25 but not required, the Justices surveyed overwhelmingly praised the inclusion of bookmarks and internal links in a document. A guide detailing how to create them in a brief or appendix is available on the Appeals Court website.
Filers should consider adding internal links to the table of contents in their brief, addendum, and appendices that allow Justices to “jump” to the various sections of the document. Including and bookmarking the Trial Court decision in the addendum to each brief or application for direct review, or the Appeals Court’s decision in an application for further review, is of the utmost importance. One unfortunate limitation that exists with the efiling vendor’s current program is that hyperlinks cannot be used to link to different PDFs or outside sources, such as a brief’s citations to a separate record appendix or transcript volume. Nevertheless, bookmarks and internal links are critical to the Justices’ review.
The Brief’s New Standard of Review Statement. The Justices unanimously agreed that Rule 16’s new requirement that a brief contain a standard of review section is helpful. However, one Justice noted that not all briefs include the statement, and expressed hope that more briefs will include it in the future, while another Justice commented that although more briefs are including a standard of review, it is not always the correct standard. These responses reveal the importance of ensuring a brief includes a correct standard of review to assist the Justices.
Citations to the Record Appendix. Because a hyperlink cannot be used in a brief to jump to a page in a separate record appendix volume, it is important that filers ensure that record appendix citations used in their brief are crystal clear. A Justice remarked that finding citations can be difficult because of complex references. Another Justice added that it would be helpful if all parties to a case used the same citation convention.
While the rules do not require a specific record citation convention, Rule 16(e) suggests: “RAII/55 (meaning Record Appendix volume II at page 55) or TRIII/231-232 (meaning Transcript volume III at pages 231-232).” It is recommended that you use this format because it is simple, less disruptive to the reader’s flow, and counts as one “word” for length calculation purposes.
Similarly, filers in civil appeals are reminded of Rule 18(b)(1)’s requirements to confer with the other parties at the beginning of each appeal to determine the contents of the appendix. Supplemental appendix volumes are especially apt to create confusion when they needlessly reproduce documents that were already included in the appellant’s appendix.
The “New” Record Appendix. Several Justices remarked that record appendices are often disorganized, contain a poor table of contents (one example given was “Administrative Record – p 1; Judgment – p. 1,265”), and volumes are not paginated so that the document page and PDF page correspond. Rule 18(a)(1)(A)(ii)’s new requirement that the table of contents “list the parts of the record reproduced therein, and includ[e] a detailed listing of exhibits, affidavits, and other documents associated with those parts,” illustrates the detail sought by the Justices.
Common Oversights. In addition to the Justices’ feedback, we also surveyed personnel in the Appeals Court’s Clerk’s Office to determine the most common omissions or errors they encounter when reviewing electronically filed briefs and appendices. They are:
(1) the brief or appendix is not OCR-searchable;
(2) the brief fails to comply with the pagination requirements in Rule 20(a)(4)(a), which requires filers to start a brief’s numbering with the cover as page 1, and eliminate the use of lower case Roman numerals for the tables of contents and authorities; the purpose of this rule is to have the brief paginated identically to the page numbers of its PDF version so that page references are easily ascertainable by the Justices;
(3) the absence of an addendum, which Rule 16(a)-(c) requires for any brief, and a table of contents for the addendum;
(4) a brief’s addendum, or a portion it, is not searchable using OCR while the rest of brief is OCR-searchable;
(5) Rule 16(k) brief certifications that are incomplete, specifically missing the required language identifying the filer’s calculation of the Rule 20 length limits; the court will not accept a brief without a compliant certification; and
(6) failure to include a complete table of contents in the first volume of a multi-volume appendix as required by Rule 18(a)(1)(C), or not including a table of contents in each separate appendix volume for that volume.
If you need any assistance or desire to double-check the requirements before uploading your PDF, the Appeals Court website provides detailed guidance for formatting documents for electronic filing, including checklists, and Clerk’s Office personnel are available to answer any questions.
Conclusion. After decades, and even centuries, of Massachusetts attorneys submitting and Justices deciding appeals on paper, much has changed in the past year. We hope these insights into the Justices’ current practices, preferences, and challenges will assist you in updating your practice to satisfy this new age of appeals.
Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on several court committees involving procedural rules of court and technology initiatives.
Julie Goldman is an Assistant Clerk of the Massachusetts Appeals Court. She has been working on the Judicial Branch’s electronic filing program since 2013 to bring electronic filing to the state courts through drafting the electronic filings rules and working with vendors to develop and implement efiling.
Should it Stay or Should it Go?: Post-MUPC Probate Court Objections in the Wake of Leighton and CusackPosted: November 14, 2019
Since Massachusetts adopted the Model Uniform Probate Code, G.L. c. 190B (MUPC) in 2012, few cases have addressed the topic of objections. This article will offer practical pointers for how to make objections stick in light of two recent (published) appellate decisions.
- Objections: History, Contents and Timeliness
Objections are an essential component of probate litigation. Objections provide notice to interested parties of a controversy within a probate or will action in the Probate and Family Courts. Upon the filing of an objection, the dispute becomes a lawsuit, where discovery may begin.
Objections may contest the merits of an action in probate court or air a more disconcerting lack of communication or trust involving a fiduciary. Affidavits in support of objections can range from the long-winded “let me tell my side of the story” affidavit to the more precise, but speculative affidavit. But neither of those extremes can or should suffice.
Before Massachusetts adopted the MUPC, Probate Court Rule 16 governed objections to wills. See e.g. O’Rourke v. Hunter, 446 Mass. 814, 816-817 (2006) (Marshall, C.J.) Rule 16 itself followed the abolition of jury issues in will contests and functioned to screen out frivolous attacks on wills. Id. at 817.
Rule 16 required an objection to articulate specific facts. An administrator could contest lack of specificity in an objection either by a motion to strike or motion for summary judgment-one did not need to exhaust objections before seeking summary judgment. O’Rourke, 446 Mass. at 818-821. But specificity remained the touchstone of an adequate objection. See e.g. Sher v. Desmond, 70 Mass. App. Ct. 270, 279, n.11 (2007).
Today, G.L. c.190B, §1-401(e)-(f) governs objections. Objections still require specific facts and must include supporting affidavits. The affidavit should stem from personal knowledge and should contain as much detail as the drafter knows. Compare Mass. R. Civ. Pro. 56(e) (governing affidavits in summary judgment.) Allegations of fraud should be stated with particularity. Compare Mass. R. Civ. Pro. 9(b). A best practice is for the drafter (i.e., counsel) to reserve the right to supplement the affidavit as discovery proceeds.
Under the MUPC, it is the timeliness of an objection, however, that is of more critical importance. If an objector lacks sufficient information to develop an appropriate affidavit within the applicable time period (the return date set by the court or otherwise by statute), practitioners should: (1) act quickly to propound discovery on the petitioner (and any other person or entity with relevant information) under Supp. Prob. Ct. R. 27A and (2) concomitantly move to extend the deadline for filing the affidavit of objections.
- Leighton v. Hallstrom-Case Study of a Successful Objection
Despite the strict time requirements for filing an objection and the need for a detailed affidavit, a recent Appeals Court decision suggests that substance ultimately prevails over form when considering the adequacy of an objection.
In Leighton v. Hallstrom, 94 Mass. App. Ct. 439 (2018), a magistrate endorsed Leighton’s petition for a formal adjudication of intestacy, determination of heirs, and Leighton’s appointment as personal representative of the decedent’s estate. Prior to the entry of the decree, Hallstrom came forward and announced himself as an interested person and first cousin of the decedent. On a pre-printed Probate and Family Court form (MPC 505a), Hallstrom also filed a notice of appearance but did not check the box that his appearance was an objection. In the interim, the magistrate entered a decree on another pre-printed form but left blank the fields for specific individual heirs, instead referring back to the petition.
Hallstrom unsuccessfully tried to persuade Leighton of his lineage to the deceased, including with a genealogical chart. Leighton later petitioned for a complete settlement and Hallstrom objected. The Probate Court judge struck Hallstrom’s objection as tardy and because the magistrate’s initial decree resolved who the heirs were. Hallstrom appealed.
The Appeals Court reversed. The Appeals Court noted that although the MUPC imposed strict time constraints for objections, the true issue was not timeliness but the legal significance of the decree-which did not explicitly list any heirs. Instead, the decree referred back to the petition, which specifically listed Hallstrom as a purported heir. Moreover, the Personal Representative was aware of Hallstrom’s claims. Thus, since the decree did not resolve the issue of who the heirs were, there was no legal basis to preclude Hallstrom’s objection. 94 Mass. App. Ct. at 446, citing and quoting Day v. Kerkorian, 61 Mass. App. Ct. 804, 809 (2004) (“Issue preclusion is not available where there is ‘ambiguity concerning the issues, the basis of decision, and what was deliberately left open by the judge.’”).
Leighton illustrates that practitioners should not avoid nor courts discourage limited objections. Indeed, the Probate and Family Court’s pre-printed forms like MPC 505a can lend themselves to ambiguity. So long as the substance of the objection is there, the objection suffices. Indeed, if there is a need to amend the objection, practitioners can and should amend fairly and freely, as they could under former Rule 16. See e.g. Hobbs v. Carroll, 34 Mass. App. Ct. 951 (1993), citing Mass. R. Civ. Pro. 15.
- Cusack v. Clasby: Are Objections or Contempt Actions Your Recourse for Bad Administration?
The manner of probating the estate may raise concerns. Is filing an objection to an account the best mechanism to address concerns? Depending on the information known to the interested person and the status of a matter, a petition to remove the personal representative might be the appropriate course. However, if a first and final account has been filed, and the deadline for objections has been set, a potential objector has a limited time period to act.
Cusack v. Clasby, 94 Mass. App. Ct. 756 (2019), illustrates this point. Catherine Cusack died in June 2014, survived by eight children, all equal heirs. Clasby, one of her daughters, and the administrator of her estate, petitioned to probate the estate in October and filed a petition for an order of complete settlement in December 2015. Three of Clasby’s siblings objected, asserting that the final accounting reflected disbursements that had not in fact occurred. A judge in the Probate Court struck the objections, approved the final accounting, and settled the estate. The siblings appealed, asserting that settling the estate was premature.
The Appeals Court affirmed the settlement and rejected this contention. The Appeals Court noted that before Massachusetts adopted the MUPC, settlement was indeed incomplete until all payments were made by the estate. 94 Mass. App. Ct. at 758, citing former G.L. c.206, §22. However, the MUPC expressly repealed and displaced this principle. Id. at 759, citing G.L. c.190B, §3-1001. Similarly, the MUPC also permitted Clasby, as an administrator, to approve accounting and distribution of the estate. Id.. at 758.
Thus, the Probate Court judge had authority to jointly approve the accounting and settle the estate. Indeed, the joint order furthered the purpose of the MUPC to spur a “speedy and efficient system for liquidating [an] estate of [a] decedent and making [distributions.]” 94 Mass. App. Ct. at 759, quoting G.L. c.190B, §1-102(b)(3). Finally, the siblings were not without recourse-they could petition for contempt for violations of a court order. Id. at 759.
Cusack raises an important practical question about how to redress problems during distribution. On the one hand, procedurally, a contempt action does have benefits. A decree settling an estate certainly constitutes a court order for purposes of contempt. The Probate and Family Court also deals with contempt every day. Contempt actions also proceed under the same docket without a separate filing fee, and a successful litigant may recover their attorney’s fees.
Substantively however, a contempt action after distribution may not provide an ideal solution. Contempt has to be proven by clear and convincing evidence and not every violation of a court order constitutes a contempt. Indeed, ambiguous court orders do not lend themselves to contempts. See e.g. Hoort v. Hoort, 85 Mass. App. Ct. 363, 365 (2014). A contempt action may deleteriously prolong and reopen a seemingly settled estate, and thwart the spirit of speedy settlement under the MUPC-or the purpose of former Rule 16 to screen out frivolous contests.
Leighton and Cusack illustrate how will objection practice has developed since Massachusetts adopted the MUPC. While an affidavit in support of an objection should contain specific facts, merely putting the proponent on notice of a problem may suffice if the proponent is relying on a pre-printed probate court form to preclude an issue.
On the other hand, objections no longer function to redress poor or incomplete administration because administration closes comparatively quickly. Whether or not contempt actions against administrators will actually serve the purposes of objections for bad administration will be interesting to see in light of the severe backlogs in certain probate courts.
Timothy F. Robertson is the Principal Attorney of T FRANK LAW, PLLC, a Trusts and Estates law practice in Charlestown, MA. https://www.tfranklaw.com. Tim is grateful to Joe for the opportunity to collaborate and for staying abreast of recent SJC and Appeals Court Decisions.
Joseph N. Schneiderman has an appellate-exclusive practice in Massachusetts and Connecticut and has argued four times in the SJC since 2015. Joe can be contacted at firstname.lastname@example.org. Joe gratefully thanks Tim for the opportunity to write and collaborate about important appellate developments in probate law. Joe further dedicates the article to the memory of his grandfather, Natalé “Nat” Memoli.
At the closing of many business transactions, counsel for the company delivers to the other party – e.g., the investor, lender or acquirer – a letter, commonly referred to as a “closing opinion,” in which counsel provides that other party (the opinion recipient) legal opinions on various matters it has asked counsel to address. Though each closing opinion must be tailored to the specific transaction, closing opinions in general tend to address many of the same matters in similar ways from transaction to transaction.
The meaning of opinions and the work required to support them are based on the customary practice of lawyers who regularly give and who regularly advise opinion recipients regarding opinions of the type being given in the transaction. Customary practice allows opinions to be expressed in only a few words and permits the lawyers preparing them to rely on many unstated assumptions and limitations. By amplifying the meaning of abbreviated opinion language, customary practice provides the framework for preparing and interpreting opinions, thus facilitating the opinion process.
As recognized in the Restatement (Third) of the Law Governing Lawyers, Section 95 (Reporter’s Note to Comment c), customary practice is described and discussed in bar association reports and scholarly writings. In 1998, the Boston Bar Association’s (“BBA”) Legal Opinions Committee of the Business Law Section issued a statement in which it characterized the then new TriBar Opinion Committee’s report, “Third-Party ‘Closing’ Opinions,” 53 Bus. Law. 591 (1998), and the “Legal Opinion Principles,” 53 Bus. Law. 831 (1998), published by the American Bar Association’s (“ABA”) Legal Opinions Committee of the Business Law Section as providing a helpful description of the customary practice followed by Massachusetts lawyers in the preparation and interpretation of closing opinions. In 2002, the ABA’s Legal Opinions Committee issued revised “Guidelines for the Preparation of Closing Opinions,” 57 Bus. Law. 875 (2002) (the “Guidelines”), and, following its 1998 report, the TriBar Opinion Committee supplemented that report with several additional reports. In 2008, the “Statement on the Role of Customary Practice in the Preparation and Understanding of Third-Party Legal Opinions,” 63 Bus. Law. 1277 (2008) (the “Customary Practice Statement”), was published. The Customary Practice Statement was approved by many bar associations and other lawyer groups, including the Boston Bar Association, and described the principal elements of customary practice that form the basis for legal opinion practice.
In its 1998 statement, the BBA had noted the desirability of a “more streamlined opinion letter” that omitted disclaimers, qualifications and assumptions which the Legal Opinion Principles made clear are understood to apply, as a matter of customary practice, whether or not stated expressly. Subsequently, the BBA Legal Opinions Committee prepared a streamlined form of closing opinion that could be used by both opinion givers and opinion recipients. That streamlined form, prepared under the supervision of this article’s authors and representing the work of lawyers in many Boston-area firms, was endorsed by the BBA as a useful document to facilitate the closing opinion process and enhance the efficiency of business transactions and was published in the January/February 2006 issue of the Boston Bar Journal.
Subsequently, effort was undertaken to develop a statement of opinion practices that could be endorsed by many bar associations and other lawyer groups as expressing a national consensus on key aspects of opinion practice based upon customary practice. That effort produced the current “Statement of Opinion Practices” and related “Core Opinion Principles” which updates the Legal Opinion Principles in their entirety and selected provisions of the Guidelines. The Statement and the Core Opinion Principles have been approved by many bar associations and other lawyer groups, including the BBA Council on March 19, 2019. The Core Opinion Principles are derived from the Statement and can be incorporated by reference in or attached to a closing opinion by those who desire to do so.
The authors of this article have updated the BBA Streamlined Form of Closing Opinion to refer to the Core Opinion Principles and to reflect developments in legal opinion practice since 2006 (as updated, the “Streamlined Form”).
The Streamlined Form is not intended to be prescriptive. Rather, reflecting a broad consensus on acceptable opinion practices, the Streamlined Form is designed to serve as a helpful starting point for lawyers in drafting closing opinions and as guidance on the opinions lawyers can advise clients to accept. The Streamlined Form addresses an unsecured bank loan. Attachment A to the Streamlined Form includes opinions that would typically be given on the issuance of stock. The explanatory notes to the Streamlined Form, while intended to provide helpful information, cannot substitute for the extensive literature that exists on closing opinions.
The Streamlined Form seeks to address opinion issues in a balanced way. Some noteworthy features are:
- The language used to incorporate deﬁnitions from the underlying agreement is more precise than language often used in closing opinions.
- The Form avoids the use of the phrase “to our knowledge,” which courts have not consistently interpreted as a limitation. Note 22 suggests a formulation that makes clear that this phrase, if used, is intended as a limitation.
- The Form sharpens the description in the introductory paragraphs of the factual investigation undertaken, thus avoiding the suggestion that the opinion preparers conducted a broader investigation than actually performed. The description also makes clear that the opinion preparers may have relied on certiﬁcates of public ofﬁcials for legal matters.
- The corporate status opinion does not use the terms “duly incorporated” or “duly organized” for the reasons explained in note 9. The elimination of these terms has been widely accepted by opinion recipients.
- Paragraph 4 contains a more precise formulation of the no violation of law and no breach or default opinions than appeared in the original form.
- Note 17 provides an analysis of the Restatement approach for determining when the governing law provision in an agreement should be given effect. The Restatement approach has been adopted in Massachusetts and many other states.
- Note 18 addresses opinions on the enforceability of forum selection provisions. Although rarely seen in domestic transactions, separate opinions on the enforceability of forum selection provisions are often given in cross-border transactions.
- The Form proposes a formulation of the no-litigation “opinion” that is narrower than the one often used in the past. (The “opinion” is a factual conﬁrmation and therefore more accurately referred to as a no-litigation conﬁrmation). Use of a narrower formulation is an alternative to declining to cover litigation at all. The omission of any statement regarding litigation in closing opinions has gained increased acceptance.
- The Form includes a provision, often referred to as the “Wachovia provision,” that makes clear limitations on the right of assignees of notes to rely on a closing opinion.
- Attachment A addresses opinions on a corporation’s outstanding capital stock and rights to acquire stock. It also includes a form of opinion that the issuance of the stock does not require registration under the Securities Act of 1933.
- The Form leaves space for exceptions rather than identifying particular exceptions, including those that are commonly taken.
No form can accommodate every factual situation or eliminate the need for lawyers to exercise care in preparing closing opinions. Nevertheless, lawyers who have treated the streamlined form of closing opinion as a starting point in drafting their closing opinions have found that it improves the efﬁciency of the opinion process. We are hopeful that its approach will continue to gain acceptance to the mutual beneﬁt of both opinion givers and opinion recipients.
Donald W. Glazer is Advisory Counsel to Goodwin Procter LLP and co-author of the treatise, Glazer and FitzGibbon on Legal Opinions. Stanley Keller is a Senior Partner in the Boston office of Locke Lord LLP.
by Victoria Fuller
Superior Court Rule 9A was amended effective November 1, 2018. Although the Rule has been amended several times in the last few years, the most recent changes are big. Really big. Everything from cross-motions to summary judgment to basic formatting have been revised. Superior Court practitioners who fail to familiarize themselves with these changes risk having motions returned or denied.
Summary Judgment Packages Get Leaner
The biggest change to Rule 9A affects summary judgment procedure. These changes are geared to slimming down filings and simplifying the issues before the Court. First, the Statement of Facts, as served, cannot exceed 20 pages, and cannot include several types of facts:
- Immaterial Background facts;
- Quotations from, or characterizations of, transactional documents (“except if admissible through percipient witnesses”); and
- Quotations from statutes, regulations or rules.
Parties may submit these types of material, without argument or commentary, in an addendum to the party’s memorandum.
Second, the rule limits the permissible scope of responses to the Statement of Facts by prohibiting some common responses that have complicated the Court’s ability to determine what facts are actually disputed in good faith. Opposing parties may state whether a fact is disputed, and if so, cite supporting record evidence. They may not, however:
- Deny a fact, or state that a fact is not supported by the cited materials, without a good faith basis;
- Comment on whether the fact is relevant or material. The opposing party may, however, state that the fact is admitted solely for purposes of summary judgment;
- Assert additional facts; or
- Include legal argument or advocacy concerning the sufficiency, relevance or materiality of the fact.
Third, opposing parties are no longer permitted to serve Statements of Additional Facts, except in support of a cross-motion for summary judgment. They may, however, include additional facts in their opposition with supporting record citations. The rule also directs the parties to cite both the joint appendix exhibit number and the corresponding paragraph in the Statement of Facts in their memoranda.
In addition, three types of summary judgment motions may now be denied by the Court on the papers:
- Multiple motions made by the same party, or a motion filed by a party sharing similar interests with a party who has already moved for summary judgment, which raises issues previously resolved by the Court;
- Motions for partial summary judgment that will save little to no trial time, will not simplify trial, or will not promote resolution of the case; and
- Motions where a genuine dispute of material fact is obvious.
Finally, the rule has updated sanctions for non-compliance with the summary judgment provisions. The court may not consider the motion or opposition, may return the submission to counsel with instructions for re-filing, or may impose other sanctions for flagrant violations.
Cross-Motions Are Integrated Into a Single Filing Package
The rule has now filled a procedural gap affecting cross-motions. For example, if a party serves a motion to compel, and the opposing party serves an opposition and a cross-motion for protective order: Under the old rule, the cross-motion was not required to be included in the same 9A package. As a consequence, the motion to compel could be filed and heard before briefing on the cross motion was complete.
Under the new rule, opposing parties serve cross-motions with their opposition to the original motion. The original moving party then serves the reply (if any) and opposition to the cross-motion. The original moving party files both motions and oppositions as part of the same 9A package.
Cross-motions for summary judgment generally follow the same process, but in addition, a Consolidated Statement of Facts is prepared.
Parties Must Now Confer on Dispositive Motions
The new Rules 9A and 9C extend meet and confer obligations to dispositive motions (with limited exceptions). Motions lacking a 9C certificate under the new rule, as under the old, will be denied without prejudice.
New Procedure for Requesting Leave
Parties must still seek leave to file additional briefing and pages, which will be granted only in “exceptional circumstances.”
Rule 9A(a)(6) also sets forth a new procedure for requesting leave. Letter requests are gone. Now, requests must be captioned as a pleading, not exceed one page, state the grounds for the relief sought, and include a certificate of service. The request is sent to the session clerk, captioned “ATTN: Session Judge.” If the Court grants a request for additional pages, this will apply to the opposing party’s memorandum as well, unless otherwise ordered. The permitted pleading must state the date on which leave was allowed. Note that a request for leave does not extend the date for filing the Rule 9A package, unless permitted by Court or by agreement of the parties.
Under the old rule, papers had to be typed in “no less than 12-point type.” Now, papers must be 12-point type – no more, no less. In addition, quotes and footnotes must also be 12-point type. An addendum that sets forth “verbatim and without argument, pertinent excerpts from key documents, statutes, regulations or the like” need not be included in counting permitted pages.
Finally, email addresses must be included in the signature block or the attorney must certify that he or she lacks one.
Service on Non-Parties Now Required In Limited Circumstances
Unless excused by court order, or where ex parte relief is authorized by statute or rule, the new rule requires service on non-parties under three circumstances:
- the motion seeks to add the non-party as a party to the case;
- the motion seeks an order or other relief against the non-party; or
- the motion addresses issues which affect the personal information or other interests of the non-party.
Electronic Service Now Permitted
Many practitioners will rejoice that email service is now permitted. The parties must agree in writing, and parties must include “served via email” on their filings for the clerk to accept scanned signatures. That said, parties filing papers signed under the penalties of perjury, such as affidavits, and all required 9A certifications, must bear original signatures.
Motions Exempt from Rule 9A
Finally, the new Rule 9A adds two categories of motions as exempt: motions governed by e-filing rules, and review of decisions of administrative agencies.
The new rule also seeks to prevent parties from trying to skirt Rule 9A by declaring a motion an “emergency.” Now, parties filing emergency motions must certify that they have made a good faith effort to confer with all parties, and must state whether any party assents to or opposes the motion.
Though extensive, these changes should streamline and improve Superior Court motion practice. Prudent practitioners will ensure that they, and other attorneys in their firm or organization, familiarize themselves, and comply, with the new rule.
R. Victoria Fuller is an attorney in the Boston office of White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.
Standing in the Wake of Rental Property Management Services v. Hatcher: Only the Owner or Lessor May Use Summary Process to Evict Tenants and Property Agents that File Such Actions Are Engaging in the Unauthorized Practice of LawPosted: November 6, 2018
by Lauren D. Song
On May 15, 2018, the Supreme Judicial Court articulated a bright line rule strictly construing the summary process statute, G.L. c. 239, § 1 (“Statute”), to hold that “[o]nly a person entitled to the property as owner or lessor may bring an action to recover possession” against a tenant, and non-attorney property agents who sign and file summary process complaints on behalf of owners are “engag[ing] in the unauthorized practice of law.” Rental Property Management Services v. Hatcher, 479 Mass. 542, 547 (2018) (“Hatcher”). In rejecting the application of agency principles that would enlarge standing in summary process to property agents, the Court also admonished that the unauthorized practice of law by such agents “seriously undermines the fairness of summary process…, especially where the vast majority of tenants in such cases are self-represented.” Id. at 553-554, n. 11. This article discusses procedural considerations in determining summary process standing in the wake of Hatcher.
Determining Whether Standing Exists In Fact
Hatcher comes at a time when the majority of the nation’s 47.5 million residential rental units is no longer owned by “mom-and-pop” landlords personally known to the tenants but by institutional and corporate owners that often remain undisclosed to tenants. Such owners typically operate through property agents so tenants may not know that the party to whom they tender rent is not the owner of the property. Tenants also often are not privy to changes in the ownership interests—e.g., through foreclosures, dissolutions, mergers, acquisitions, bankruptcies, and even assignment of leases–that may affect who has standing to bring and maintain an eviction action against them. See Billings v. GTFM, LLC, 449 Mass. 281, 289-96 (2007) (standing must exist as of the commencement of the action and continue throughout the litigation). And as the Court highlighted in Hatcher, a “plaintiff’s lack of standing will not be apparent on the face of the [summary process] complaint,” because the form complaint promulgated under the Uniform Summary Process Rules (“USPR”) which govern summary process proceedings identifies all pleaders categorically as “PLAINTIFF/LANDLORD/OWNER.” 479 Mass. at 548. Notwithstanding challenges to determining whether plaintiff-standing exists in fact,” in fiscal year 2017 alone, 40,503 summary process cases were filed throughout Massachusetts in which over 90% of the tenants were self-represented.
Summary Process Standing Cannot Be Delegated to Agents
Hatcher rejects agent standing in summary process based on the well-established principle that “[s]ummary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute.” Id. at 546, quoting Cummings v. Wajda, 325 Mass. 242, 243 (1950); see also Buron v. Brown, 336 Mass. 734, 736 (1958) (“The purpose of [the Statute] is to give possession to those whose possession has been invaded or who have a right to possession and are within a category defined therein.”). In actions against tenants, therefore, “it is essential that there should be proof of the relation of lessor and lessee, or of landlord and tenant, between the plaintiff and defendant.” Id., quoting Ratner v. Hogan, 251 Mass. 163, 165 (1925).
Hatcher also squarely holds that the standing requirements in summary process are jurisdictional: “where the plaintiff lacks standing to bring an action, the court lacks jurisdiction of the subject matter and must therefore dismiss the action.” Id. And since “[s]ubject matter jurisdiction cannot be conferred by consent, conduct or waiver,” id., quoting Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981), it is legally ineffective for owners or lessors to purport to authorize their agents to bring summary process actions to evict their tenants:
“it is legally irrelevant whether the plaintiff is the agent or attorney of the owner or lessor, or whether the plaintiff has obtained the express approval of the owner or lessor to bring the action in the plaintiff’s name. Only a person entitled to the property as owner or lessor may bring an action to recover possession of that property. See G.L. c. 239, § 1.”
Id. at 547-548 (emphasis added).
Who Bears the Burden of Proof on Plaintiff’s Standing?
In most civil actions, jurisdictional standing is a threshold issue typically resolved early by a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. (“Rule”) 12(b)(1), and/or for failure to state a claim upon which relief can be granted under Rule 12(b)(6). In the fast pace of summary process, however, standing is seldom challenged and if at all, usually raised in the context of a Rule 56 motion for summary judgment, as in Hatcher. How jurisdictional facts become controverted is important on who bears the burden of proof. Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577 n.2 (2002).
- Under Rule 12(b)(1), the burden remains with the plaintiff as the party invoking standing to prove its jurisdictional facts by a preponderance of the evidence, and the court does not assume the plaintiff’s factual allegations in the complaint to be true. Caffyn v. Caffyn, 441 Mass. 487 (2004).
- Under Rule 56, the burden shifts to the tenant as the moving party to establish that the plaintiff has no reasonable expectation of proving it is a “person entitled to the land or tenements” under the Statute, and the record would be viewed in the light most favorable to the plaintiff as the non-moving party. SeeKourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
It bears caution that consideration of matters outside the pleadings will convert a Rule 12(b)(6) motion to a motion for summary judgment, with the corresponding burden shifting to the tenant as the moving party, but “[s]uch is not the case when deciding a motion to dismiss under [R]ule 12(b)(1)” where the conversion to Rule 56 principle does not apply. Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). When motions to dismiss are filed under both Rule 12(b)(1) and Rule 12(b)(6), courts ordinarily decide the Rule 12(b)(1) motion first. See Northeast Erectors Ass’n of BTEA v. Secretary of Labor, Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995).
- Under Rule 12(h)(3), “whenever it becomes apparent to a court in a summary process action that a plaintiff may not be the owner or lessor of the property, the court is obligated to inquire into the plaintiff’s standing and, if it determines that the plaintiff lacks standing, it must dismiss the action [with prejudice] for lack of subject matter jurisdiction, regardless of whether any party raises an issue of standing.” Hatcher, 479 Mass. at 547.
It also bears reminder that in discharging this independent obligation, judges have broad discretion to make findings outside the four corners of the pleadings and to use any method of obtaining evidence, including ordering discovery, affidavits or other documentary evidence and taking depositions and oral testimony. Ginter v. Commissioner of Ins., 427 Mass. 319 (1998).
Dismissal with Prejudice Is Compulsory If the Plaintiff Lacks Standing
Hatcher also mandates that “where the plaintiff in a summary process action is neither the owner nor the lessor of the property, the court must dismiss the complaint with prejudice for lack of subject matter jurisdiction” because the “lack of standing is also fatal to the merits of the plaintiff’s claim” for possession. Id. at 547 (italics added). This bright line rule reflects that under USPR 2, summary process actions are deemed commenced only upon service on the defendant of “a properly completed” complaint (after which the original complaint is filed in court), and a complaint that fails to name a plaintiff with a statutory entitlement to recovery of possession is not only incompetent to commence a justiciable action but also determinative that the plaintiff’s claim for possession is without legal merit. And while such dismissal with prejudice “would not bar the true owner or lessor of the property from filing a new complaint,” where the complaint fails to name the true owner or lessor of the property as the plaintiff in the first instance, the court is without discretion to permit any amendment, substitution or other corrective remedy but must dismiss the complaint with prejudice.
In contrast, if the complaint names a proper plaintiff but is improperly signed, filed and/or prosecuted by a non-attorney agent, a valid summary process action has commenced, and although the court must address the unauthorized practice of law by the agent, the judge has the discretion either to order the immediate dismissal of the action, or allow a conditional dismissal “on a designated date unless the plaintiff before that date retains counsel or proceeds pro se, and amends the complaint accordingly.” Id. at 551.
It bears reminder that any judgment issued without valid subject matter jurisdiction is void. Harris v. Sannella, 400 Mass. 392 (1987). And the defense of lack of subject matter jurisdiction cannot be waived for any reason and may be raised at any time, even after final judgment is entered and for the first time on appeal sua sponte by the appellate court. Id. at 54, n. 5, citing ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607 (2000); see also Prudential-Bache Securities, Inc. v. Commissioner of Revenue, 412 Mass. 243 (1992); Talmo v. Zoning Board of Appeals, 93 Mass. App. Ct. 926 (2018). While the dismissal for lack of subject matter jurisdiction is ordinarily considered a “final order” subject to immediate appellate review de novo, the denial of a motion to dismiss for lack of subject matter jurisdiction is an interlocutory order.
In the wake of Hatcher, parties now have clear guidelines and strong incentives to resolve promptly any questions that may impact the plaintiff’s standing. By reviewing early and updating regularly information relevant to the parties’ status with respect to the property at issue, parties can avoid considerable expense, trouble, and delay in the just, speedy, and inexpensive determination of their rights and obligations under the Statute.
Lauren D. Song is a senior attorney with Greater Boston Legal Services. Her practice focuses on affordable housing preservation and development through public-private partnerships and residential landlord-tenant law. She is a current member of the Boston Bar Journal.
The Massachusetts Domestic Workers’ Bill of Rights (“DWBR”), G.L. c. 149, §§ 190–191, enacted in 2015, provided expansive new protections to domestic workers and imposed new obligations on their employers. Violation of the DWBR can result in substantial penalties, including mandatory treble damages, attorneys’ fees and costs. Employers who fail to comply with the DWBR can face enforcement actions by the Attorney General (“AG”), the aggrieved worker, or the Massachusetts Commission Against Discrimination (“MCAD”). Yet, many remain unfamiliar with the DWBR and its implementing regulations. 940 CMR 32.00. This article reviews key provisions of the DWBR.
Who Is Covered?
The DWBR protects workers employed within a household, regardless of their immigration status, who perform domestic services, including housekeeping, house cleaning, nanny or home companion services, and in-home caretaking of sick or elderly individuals for “wage, remuneration or other compensation.” G.L. c. 149, § 190(a); 940 CMR 32.02. The DWBR does not alter who is deemed an independent contractor (rather than domestic employee) under G.L. c. 149, § 148B.
The DWBR does not cover: (i) babysitters who work less than sixteen hours per week providing “casual, intermittent and “irregular” childcare, and whose primary job is not childcare; (ii) personal care attendants (“PCAs”) who provide services under the MassHealth PCA program; and (iii) employees of a licensed or registered staffing, employment or placement agency. G.L. c. 149, § 190(a); 940 CMR 32.02.
The DBWR requires employers to provide domestic workers with “notice of all applicable state and federal laws.” G.L. c. 149, § 190(m); 940 CMR 32.04(6). “Notice of Rights” and “Record of Information for Domestic Workers” forms can be found on the AG’s website. Additionally, before work commences, employers must provide domestic workers who work sixteen or more hours a week a written employment agreement in a language the worker understands. The agreement should contain the terms and conditions of employment and specify any deductible fees or costs and worker’s rights to grievance, privacy, and notice of termination. G.L. c. 149, § 190(l); 940 CMR 32.04(3).
Both employer and worker must sign the agreement, which must be kept on file for at least three years. A “Model Domestic Worker Employment Agreement” can be found on the AG’s website.
Working Hours, Rest Periods
Domestic workers must be paid for all time they are required to be on the employer’s premises, on duty, or any time worked before or beyond normally scheduled shifts to complete the work. G.L. c. 149, § 190(a); 940 CMR 32.02.
Workers on duty for less than twenty-four consecutive hours who do not reside on the employer’s premises must be paid for all working time, including meal, rest or sleep periods, unless the worker is free to leave the premises and completely relieved of all work-related duties during that period. G.L. c. 149, § 190(a) and (c).
For workers on duty for twenty-four hours or more, all meal, rest and sleep periods constitute working time. However, the worker and employer can agree to exclude from working time a regularly scheduled sleeping period of not more than eight hours if there is advance written agreement in a language understood by the worker, signed by both the worker and employer. G.L. c. 149, § 190(d) and (e); 940 CMR 32.03(2).
Workers working forty or more hours per week must have at least twenty-four consecutive hours off each week and at least forty-eight hours off each month. A worker may volunteer to work on a day of rest but only if there is a written agreement made in advance, signed or acknowledged by both the worker and employer. The worker must be paid time and a half for all hours worked in excess of forty hours. G.L. c. 149, § 190(b); 940 CMR 32.03(3).
Under certain circumstances, an employer may deduct food, beverages and lodging costs from a worker’s wages. G.L. c. 149, § 190(f) and (g); 940 CMR 32.03(5)(b) and (c). Such deductions are subject to the statutory maximums found in 454 CMR 27.05(3) pursuant to G.L. c. 151.
Food and beverage costs can be deducted only if they are voluntarily and freely chosen by the worker. If the worker cannot easily bring, prepare or consume meals on the premises, the employer cannot make such deductions. G.L. c. 149, § 190(f); 940 CMR 32.03(5)(b).
Lodging costs can be deducted only if the worker voluntarily and freely accepts and actually uses the lodging. An employer cannot deduct lodging costs if the employer requires the worker live in the employer’s home or in a particular location. G.L. c. 149, § 190(g); 940 CMR 32.03(5)(c).
There must be a written agreement specifying the deductions, made in advance, in a language understood by the worker, signed or acknowledged by both the worker and employer. 940 CMR 32.03(5)(a).
Record Keeping, Times Sheets, Written Evaluations
Employers must keep records of domestic workers’ wages and hours for three years. G.L. c. 149, § 190(l); 940 CMR 32.04(2). Employers must provide workers who work more than sixteen hours per week with a time sheet at least once every two weeks. 940 CMR 32.04(4). Both the worker and employer must sign or acknowledge the time sheet. Signing or acknowledging a time sheet does not preclude a worker from claiming that additional wages are owed. Id. Likewise, a worker’s refusal to sign or acknowledge a time sheet does not relieve the employer from paying wages owed. Id. A sample time sheet can be found on the AG’s website.
After three months, a worker may request a written performance evaluation and, thereafter, annually. G.L. c. 149, § 190(j). The worker can inspect and dispute the evaluation under G.L. c. 149, § 52C, the Massachusetts Personnel Records law. Id.
Right to Privacy
The DWBR prohibits employers from restricting, interfering with or monitoring a worker’s private communications and from taking a worker’s documents or other personal effects. G.L. c. 149, § 190(i); 940 CMR 32.03(6). Additionally, employers are barred from monitoring a worker’s use of bathrooms and sleeping and dressing quarters. Id.
A worker who resides in the employer’s home must be given access to telephone and internet services, including text messaging, social media and e-mail, without the employer’s interference. 940 CMR 32.03(8).
Prohibition Against Trafficking, Harassment and Retaliation
It is a violation of the DWBR (and a crime) for employers to engage in any conduct that constitutes forced services or trafficking of a person for sexual servitude or forced services under G.L. c. 265, §§ 49-51. G.L. c. 149, § 190(i); 940 CMR 32.03(7).
The DWBR protects both domestic workers, as well as PCAs, from discrimination and harassment based on sex, sexual orientation, gender identity, race, color, age, religion, national origin or disability and from retaliation for exercising their rights. G.L. c. 191; 940 CMR 35.05(2).
Domestic workers are entitled to job-protected leave for the birth or adoption of a child under the Massachusetts Parental Leave Act, G.L. c. 149, § 105D. Id.
Employers who terminate live-in workers “for cause” must provide the worker with advance written notice and at least 48 hours to leave. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(c).
Employers who terminate live-in workers “without cause” must provide the worker with written notice and at least thirty days of lodging or two weeks severance pay. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(a).
Neither notice nor severance is required where good faith allegations are made in writing that the worker abused, neglected or caused any other harmful conduct against the employer or members of the employer’s family or individuals residing in the employer’s home. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(b).
No termination notice or severance is required for workers who do not reside in the employer’s home.
Violations of the DWBR are enforced by the AG or by the aggrieved worker pursuant to the Massachusetts Wage Act, G.L. c. 149, § 150. Workers who prevail in court are awarded treble damages, the costs of litigation and attorneys’ fees. Violations of the DWBR’s anti-discrimination and anti-harassment provisions are enforced by the MCAD.
Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP. Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.