Gallant & Ervin, L.L.C. Gallant & Ervin, L.L.C. 2026-02-23T06:47:56Z https://www.gallant-ervin.com/feed/atom/ WordPress /wp-content/uploads/sites/1503074/2022/07/GallantErvin_LogoBrand_311x199_001_001_JULY22-150x150.png On Behalf of Gallant & Ervin, L.L.C. <![CDATA[Massachusetts Courts Address an Often Used Escape Clause from Complying with a Covenant Not to Compete]]> https://www.gallant-ervin.com/?p=254491 2023-04-10T16:03:34Z 2013-09-17T23:33:10Z Depending upon where someone is employed, the employer may request that the employee execute a Covenant not to Compete at the time of hire. In the event that the employee leaves his job, these covenants typically prohibit an employee from competing with their employer for a certain period of time and within a certain geographic area. Provided that the covenant meets certain standards of reasonableness, it will likely be enforced under Massachusetts law. E.g., All Stainless, Inc. v. Colby, 364 Mass. 773 (1974) (upholding two-year covenant not to compete for geographical area that included portions of Maine, New Hampshire, and Massachusetts). Such covenants are even more likely to be enforced when the employer seeks to protect trade secrets and goodwill. E.g., New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671 (1977). Remaining subject to the restrictions of a Covenant Not to Compete can be burdensome as they can prevent a person from working in an entire type of an industry located within a certain area. Hilb Rogal & Hobbs of Mass. v. Sheppard, 24 Mass. L. Rep. 381 (Mass. Super. Ct. 2007). Massachusetts case law, however, excuses former employees from complying with Covenants Not to Compete in certain instances. In 1968, the Supreme Judicial Court adopted the common law rule that anytime an employee “materially changes” his position, the employee’s covenant not to compete becomes invalid. F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585, 587 (1968). As explained by Judge Burnes, “Each time an employee’s employment relationship with the employer changes materially such that they have entered into a new employment relationship a new restrictive covenant must be signed.” Cypress Group v. Stride & Assocs., 17 Mass. L. Rep. 436 (Mass. Super. Ct. 2004). This rule is frequently invoked as a defense when a former employer seeks to enforce a Covenant Not to Compete. Grace Hunt IT Solutions, LLC v. SIS Software, LLC, 29 Mass. L. Rep. 460 (Mass. Super. Ct. 2012). In Grace Hunt, Judge Lauriat denied the employer’s motion for preliminary injunction to enforce a covenant not to compete because the employees’ positions had materially changed. In reaching his decision, Judge Lauriat also found significant that the employee had refused to sign new covenants not to compete during the course of the employment relationship. In contrast, Judge Leibensperger granted an employer’s motion for preliminary injunction to enforce a covenant not to compete despite that the defendant’s title and position had changed from General Manager to Director of Operations. A.R.S. Servs. v. Morse, 31 Mass. L. Rep. 227 (Mass. Super. Ct. 2013). Judge Leibensperger’s decision was, in part, influenced by the fact that the employment agreement provided that it would survive any changes in the employee’s “duties, responsibilities, position or title.” As employers battle former employees over Covenants not to Compete, decisions from Massachusetts Courts on this issue continue to cut both ways. The breadth of the legal landscape on this issue and the conflicting rulings demonstrate that the outcome of whether an employee’s position has “materially changed” is heavily dependent on the facts and may often require extensive discovery and litigation. The prudent approach from the perspective of an employer is to require employees to execute a new Covenant not to Compete upon any occasion that the employee is promoted or otherwise changes his position or duties. No procedure, however, is guaranteed to defeat the “material change” defense. ]]> On Behalf of Gallant & Ervin, L.L.C. <![CDATA[Gallant & Ervin Obtains Judge Ruling Terminating Client’s Obligation to Pay Alimony]]> https://www.gallant-ervin.com/?p=254482 2023-04-10T16:03:38Z 2013-08-17T23:23:34Z Given that the former spouse was cohabitating with her significant other, was enjoying the benefit of shared expenses, and because the alimony statute was amended as described above, Gallant & Ervin filed a Complaint for Modification on behalf of our client on June 15, 2012 seeking an order to terminate his obligation to pay alimony. Discovery that we conducted revealed that the former spouse paid for no groceries and paid for very few of the utilities and other household expenses. In short, it was clear that the former spouse was sharing expenses with her cohabitant and, in some instances, having expenses completely paid by her cohabitant. The deposition of a third party revealed that the former spouse and her cohabitant were indeed in a romantic relationship, which was helpful because whether parties are a “couple” is a factor to determine cohabitation. See M.G.L. ch. 208, § 49(d)(1)(v). The Complaint for Modification was tried before Judge Gorman on August 7, 2013. During the trial, we elicited testimony from our client that he no longer had the financial ability to pay any alimony to his former spouse. More importantly, cross examination of the former spouse revealed that she paid for very few household expenses and, in fact, was enjoying the benefit of payment by her cohabitant of the vast majority of the household expenses. See M.G.L. ch. 208, § 49(d)(1)(ii). A third party witness also testified that he saw the former spouse and her cohabitant out to dinner together on numerous occasions, underscoring that they were a couple. Cross examination also exposed that the former spouse spent thousands of dollars on luxurious expenses within a very short period of time. The former spouse’s testimony was also inconsistent and not credible in that she attempted to explain that she was no longer in a relationship with her cohabitant because he had a drinking problem but, at the same time, she admitted that she had moved in with him. Finally, the former spouse freely admitted that she did not have any evidence that she had undertaken any efforts to obtain employment. Judge Gorman apparently did not find the matter to be a close case as she entered an Order the morning after the trial, in which she terminated our client’s obligation to pay alimony to his former spouse. ]]> On Behalf of Gallant & Ervin, L.L.C. <![CDATA[SJC Rules that Purchaser of Real Estate Can Bring Misrepresentation Claim Against Real Estate Broker for Broker’s Incorrect Statements Regarding Property’s Zoning]]> https://www.gallant-ervin.com/?p=254493 2023-04-10T16:03:44Z 2013-05-31T23:34:33Z In DeWolfe v. Hingham Centre, Ltd., the Plaintiff, a purchaser of real estate, brought claims against a real estate broker concerning misrepresentations that the broker allegedly made about the zoning designation of certain real estate (the “Property”) which the Plaintiff purchased. In advertising the Property for sale, the Broker described the Property as being zoned in the “Business B” district. The Plaintiff was a hairdresser and was searching for a property which he could purchase and utilize as a hair salon. As the Plaintiff intended to make a commercial use of the Property, he alleged that he relied upon the broker’s representation that the Property was zoned in the “Business B” District and that he would not have purchased the Property absent said representation. After purchasing the Property, the Plaintiff learned that the Property was actually zoned in the “Residential B” District, which did not permit for his intended use of the Property as a hair salon. The Plaintiff then brought an action in Superior Court against the broker and the seller of the Property for, among other things, misrepresentations concerning the zoning of the Property as “Business B,” rather than accurately advertising it as being in the “Residential B” District. The Superior Court granted the broker’s and seller’s motion for summary judgment and the Plaintiff appealed. On appeal, the broker argued that it had no duty to confirm the zoning status of a property that it lists for sale. The Supreme Judicial Court vacated the Superior Court’s order and remanded the matter. The Supreme Judicial Court reasoned that a broker can ordinarily rely upon information provided by the seller when it makes representations regarding a property, but that the broker must exercise reasonable care in doing so. Conversely, the Supreme Judicial Court explained that a broker has an independent duty to investigate a matter concerning a property when the circumstances render it unreasonable to rely solely on the seller’s statements. The Supreme Judicial Court ruled that summary judgment was not appropriate because there was sufficient evidence in the record to allow a trier of fact to determine that the broker failed to exercise reasonable care when it made representations about the Property’s zoning. The broker also argued that it could not be liable for his representations regarding the zoning because the Purchase and Sale Agreement contained a clause that the Plaintiff had not relied on any representations or warranties in entering into the transaction. The Supreme Judicial Court disagreed and ruled that the clause did not apply to previous written representations which were not set forth or incorporated within the Purchase and Sale Agreement itself. See DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795 (2013). ]]> On Behalf of Gallant & Ervin, L.L.C. <![CDATA[Gallant & Ervin Obtains Not Guilty Verdict for Client on Domestic Assault and Battery Charge]]> https://www.gallant-ervin.com/?p=254489 2023-04-10T16:03:48Z 2013-02-16T00:31:54Z On a Friday evening during January of 2012, our client was in transit to drop off his daughter at the home of his daughter’s mother. When he dropped his daughter off, the mother proceeded to argue with him and allege that he did not have his daughter properly dressed for winter weather. In order to evade further argument, he then promptly left the residence and began to drive home. On his way home, he was stopped by a local police department and was informed that the mother had called 911 and had alleged that he had assaulted her. He was then arrested and charged with domestic assault and battery. He was arraigned and formally charged by the Commonwealth. During the discovery phase of this criminal matter, the 911 tape was produced as well as other statements that the mother had made concerning the alleged assault. It quickly became evident that the mother had told different versions of the alleged assault, despite the passage of a very short period of time. In addition, we took advantage of the fact that there was also a pending custody case between our client and the mother by deposing the mother in the custody case. Ordinarily, defendants are not provided with the opportunity to depose the alleged victim in a criminal case. The mother’s custody counsel resisted the mother providing testimony concerning the alleged assault during the deposition, and the Middlesex Family and Probate Court subsequently granted our Motion to Compel and awarded sanctions and fees against the mother. With that order, we were then able to complete the deposition and were armed with the mother’s deposition transcript at the time of the criminal trial. The criminal matter was tried before a jury in February 2013. During the trial, we as counsel to the father emphasized the vast inconsistencies in the mother’s recounting of the alleged assault. We also had the benefit of a deposition transcript to cross examine the mother with. The 911 tape also belied that the father had assaulted the mother as their daughter was asking for him in the background of the call. There was also a lack of physical evidence demonstrating any injuries despite that the mother alleged that she had been strangled by the father. After a short deliberation, the jury returned with a not guilty verdict. ]]> On Behalf of Gallant & Ervin, L.L.C. <![CDATA[Gallant & Ervin Obtains Jury Verdict that Monies Provided to Client Were not Loans and Were not Required to be Repaid]]> https://www.gallant-ervin.com/?p=254486 2023-04-10T16:03:56Z 2013-02-11T00:25:52Z Defense Verdict that Monies Provided by Plaintiff were not Loans.
During the period of July 2008 through February 2010, the Plaintiff and the Defendant shared a personal relationship. Throughout the course of the relationship, the Plaintiff provided the Defendant with several gifts of personal property and also provided her with some degree of financial support. In addition to the gifts and support, the Plaintiff also alleged that he provided the Defendant with sums of money on three separate occasions in the amounts of $50,000, $23,000 and $20,000 (the “Disputed Monies”). In February of 2010, the parties’ relationship came to an end. At that time, the Plaintiff demanded that the Defendant repay him the Disputed Monies. The Plaintiff testified that the Defendant promised to repay the Disputed Monies after they broke up, although the Defendant denied making such a statement. The Plaintiff maintained that the Defendant had to repay the Disputed Monies based on his contention that they were “loans.” There were no documents memorializing that the Disputed Monies were loans and, despite that there were hundreds of written communications between the parties, the word “loan” did not appear on a single document. The Defendant refused to repay any of the Disputed Monies as she denied receiving all of them and because the monies that she did receive from the Plaintiff were gifts with no attendant obligation to repay them. The Plaintiff subsequently commenced an action against the Defendant for Breach of Contract and Promissory Estoppel seeking to recover the Disputed Monies. The matter was tried before a jury for three (3) days. The Judge found that the Plaintiff did not introduce sufficient evidence of Promissory Estoppel and only instructed the jury on the elements of Breach of Contract and Gifts. Defendant’s counsel argued that there was no evidence that the parties had entered into an enforceable contract with any terms and, even if the Plaintiff’s testimony that the Defendant promised to repay was believed, this promise was insufficient consideration to support an enforceable contract given that the monies allegedly provided was Past Consideration. The jury was then given a Special Question as to whether the Plaintiff and the Defendant had entered into a contract providing that the Disputed Monies were loans. The jury answered that question in the negative and judgment was accordingly entered for the Defendant. Case Name: Nelson Chan v. Xiao Ming Zhao, SUCV2011-0313
]]> On Behalf of Gallant & Ervin, L.L.C. <![CDATA[Copyright Infringement Suits Against “John Does” for Internet Viewing of Adult Entertainment]]> https://www.gallant-ervin.com/?p=254495 2023-04-10T16:04:00Z 2013-02-01T00:36:24Z A cottage industry has emerged where certain plaintiffs (owners of copyrights to adult film productions) are filing suits in Federal District Court against numerous “John Does” alleging that the Johns have committed copyright infringement by downloading certain pornographic content on IP addresses. The plaintiffs name the defendants in the capacity of “John Doe” because they are unable to identify the John until they subpoena the Internet Service Providers to ascertain the parties that the IP addresses are registered to. Once the plaintiff discovers the Johns’ identities, they typically offer settlements in exchange for a release and, perhaps more valuable, not going public with the Johns’ names. There is significant concern that these suits are being brought not to legitimately litigate copyright claims, but rather, to extract a settlement from the Johns upon the threat of embarrassment. E.g., Disc. Video Ctr., Inc. v. Doe, 285 F.R.D. 161, 166 (D. Mass. 2012). This area of litigation was dealt a significant blow recently by District Court Judge F. Dennis Saylor IV on November 5, 2012. See New Sensations v. Doe, 2012 U.S. Dist. LEXIS 159595 (D. Mass. Nov. 5, 2012). In New Sensations, the plaintiff attempted to join 175 John Does as Defendants in that single case. Judge Saylor issued a Notice to Show Cause as to why all the Johns should not be severed into separate actions given that each act of infringement did not “arise[] out of the same transaction or occurrence.” Judge Saylor disagreed with the plaintiff’s arguments and dismissed all claims except the one as to John Doe #1 and ordered that all other Johns would have to be sued separately. Judge Young reached the same ruling in a lengthy opinion authored in Third Degree Films v. Doe, 2012 U.S. Dist. LEXIS 142079 (D. Mass. Oct. 2, 2012). While the New Sensations and Third Degree Films holdings may only be procedural, they had a significant financial impact on these types of cases as the plaintiffs can no longer pay one filing fee of $350 to sue potentially hundreds of Johns within one case. Third Degree Films v. Doe, 2012 U.S. Dist. LEXIS 142079 (D. Mass. Oct. 2, 2012) (“Third Degree and like companies file a single cookie-cutter complaint alleging copyright infringement against tens, hundreds or thousands of individuals based on their IP addresses, paying only a single $350.00 filing fee, and likely employing a contingency fee structure.”). While these decisions render future litigation far more expensive for these plaintiffs, it is too early to forecast how much of a deterrent the requirement that the plaintiffs pay multiple filing fees will have on the future filings of these cases. ]]> On Behalf of Gallant & Ervin, L.L.C. <![CDATA[Court Awards Marley Estate $2.6 Million on Lanham Act False Endorsement Claim]]> https://www.gallant-ervin.com/?p=254480 2023-04-10T16:04:04Z 2013-01-16T00:21:35Z After extensive summary judgment motions on Hope Road’s claims alleging trademark infringement and violation of the Nevada statutory rights of publicity, Hope Road was left to proceed to trial on claims alleging false endorsement under the Lanham Act and state law claims of interference with advantageous business relationships. The case was tried to a jury over twelve (12) trial days with the jury finding that A.V.E.L.A. and its licensees use of Marley’s images without Hope Road’s consent constituted false endorsement and confused and misled the public that Hope Road had authorized and/or sponsored the Defendants’ products when they had not and further found that all of the Defendants’ actions constituted willful infringement. The jury awarded Hope Road $300,000.00 against A.V.E.L.A. on its interference with advantageous business relationship claim. The Court had reserved to itself the issue of damages on the false endorsement claim. Following briefing, the Court entered an order in favor of Hope Road in the amount of $781,427.83 representing the disgorgement of all profits from the Defendants on the false endorsement claim and further awarded Hope Road the sum of $1,518,687.94 in attorneys’ fees against A.V.E.L.A., adopting the jury’s finding of willfulness as warranting the imposition of an award of attorneys’ fees. With the award of attorneys’ fees, the recovery against all defendants totaled $2,600,115.60, plus interest. The matter is presently on appeal to the Ninth Circuit Court of Appeals. ]]> On Behalf of Gallant & Ervin, L.L.C. <![CDATA[Gallant & Ervin Obtains Jury Finding that Estate of Bob Marley Owns Three Pieces of Artwork Depicting Bob Marley]]> https://www.gallant-ervin.com/?p=254484 2023-04-10T16:04:08Z 2010-11-16T00:24:42Z Pursuant to the Agreement, Jurek Zamokski (“Zamoyski”) created three airbrush paintings of Bob Marley known as “Lion Zion,” “Kaya Man,” and “Rasta Dreads.” (collectively, the “Artwork”). The Artwork was then reproduced and sold on t-shirts and sweatshirts in accordance with the Agreement. At the conclusion of the term of the Agreement, BMMI and its licensee continued to exploit the Artwork on merchandise. Zamoyski eventually commenced suit against BMMI and its licensee asserting that he owned the Artwork and that BMMI’s use of the Artwork constituted copyright infringement. BMMI counterclaimed against Zamoyski for Breach of Contract and for a Declaratory Judgment that it owned the copyrights to the Artwork pursuant to the terms of the Agreement. BMMI moved for summary judgment on Zamoyski’s claim of copyright infringement. The Court granted BMMI’s motion for summary judgment, ruling that Zamoyski’s copyright infringement claim was barred by the Copyright Act’s three (3) year statute of limitations because BMMI had repudiated Zamoyski’s claimed ownership to the copyrights in the Artwork at the earliest in 2003, or at the latest in February 2005, both dates of which were more than three (3) years before Zamoyski commenced the action on June 30, 2008.  Zamoyski v. Fifty-Six Hope Rd. Music Ltd., 718 F. Supp. 2d 128, 136 (D. Mass. 2010). The matter was tried before a jury on BMMI’s claims for Breach of Contract and a Declaratory Judgment for ownership of the copyrights to the Artwork. Zamoyski defended these claims by contending that he was not a party to the Agreement as it was signed by JIG and, as such, the copyrights to the Artwork were not validly assigned to BMMI. The Copyright Act provides, however, that copyrights can be assigned by the copyright owner’s agent. After a three day jury trial and the submission of Special Verdict questions, the jury found that Zamoyski’s agent had “actual authority” to sign the Agreement on Zamoyski’s behalf. Accordingly, the Court entered a Declaratory Judgment that BMMI was the owner of the copyrights to the Artwork. BMMI’s successor, Fifty Six Hope Road Music, Ltd., is now the record owner of the copyrights to “Lion Zion” “Kaya Man” and “Rasta Dreads.” Finally, the Court also awarded BMMI $90,770.80 in attorney’s fees and costs as a prevailing party under section 505 of the Copyright Act.  See Zamoyski v. Fifty-Six Hope Rd. Music Ltd., 767 F. Supp. 2d 218, 225 (D. Mass. 2011). ]]>