Lawsuits

A woman unable to use a $59 discount coupon for a local fitness club before it expired has filed a class-action lawsuit against locally based Rue La La on charges the expiration dates on its coupons violate federal and state consumer-protection laws.

In a lawsuit filed yesterday in U.S. District Court in Boston, Leah Mirabella seeks to become lead plaintiff in a case in which she seeks more than $5 million in damages on behalf of "tens of thousands" of consumers allegedly defrauded by the company and one of its partners.

To arouse consumer interest and create the urgency to buy gift certificates, Defendant Rue La La offers deals for a limited amount of time—usually a 24-48 hour period. This creates a "shopping frenzy" among consumers who feel pressured to purchase gift certificates as quickly as possible.

In her complaint, Mirabella says that on July 5 of last year, she bought a coupon for Fitness Together in Boston, but "was unable to redeem the gift certificate" before it expired on Oct. 31.

Mirabella points to the Massachusetts gift-certificate law, which begins:

Ron Newman reports Jonathan Monsarrat's lawyer has filed a motion to dismiss Monsarrat's lawsuit against him, former Somerville Journal editor Deb Filcman and 100 unnamed people with prejudice, which basically means Monsarrat can't file it again.

Pursuant to the provisions of Mass. R. Civ. P. 41(a)(1)(i), the Plaintiff, Jonathan Graves Monsarrat, in the above-captioned matter, hereby files and gives notice of dismissal, with prejudice and without costs to either party, as to Deb Filcman, Ron Newman, the Doe Defendant identified as Doe Defendant "srakkt" in paragraph 51 of the Amended Complaint, whose real name is Richard James Scheffler of Somerville, Massachusetts, and John and Jane Does 1-99, as defendants in the Amended Complaint.

Monsarrat had sued Newman, Filcman and 100 "John and Jane Does" over online comments about the way he was arrested in 2010 after a wild party involving underage teens; the charges against him were eventually dismissed.

Massachusetts residents yesterday sued Sur La Table and the Container Store after they say got junk mail even though they never gave the chains their addresses.

In separate lawsuits, Judith Monteferrante and Elizabeth Christiansen say the data mining the chains used to dredge up their addresses based on their Zip codes and credit-card information violates Massachusetts consumer-privacy laws.

In March, the Supreme Judicial Court - the state's highest court - agreed, ruling stores could not require Zip codes to complete a credit-card purchase.

The Jamaica Plain Gazette reports a Suffolk Superior Court judge has dismissed the council's lawsuit against a proposed development on South Huntington Avenue because it's not a branch of city government and so has no standing to sue.

The council is considering whether to appeal. On the bright side, the ruling could mean the council, elected by JP residents, can go back to excluding the public from its meetings, since only government entities are subject to the Open Meeting Law.

The Supreme Judicial Court ruled today that a man who outgrew his violent neighborhood to become a respectable member of society still cannot legally own a concealed weapon in Boston for self protection, even though he sometimes carries large amounts of cash.

The state's highest court said state gun laws do not violate Mirko Chardin's Second Amendment rights because even the US Supreme Court has held the right to own a gun is not absolute and that states can enact laws to keep guns out of the hands of people convicted of felonies - including minors.

The court recounted Chardin's history: At age 14, in 1995, he got a gun for protection after his friend was murdered over some sneakers. He was standing in front of a plainclothes police officer when the gun fell out of his pocket and he was arrested. He has changed since then, however, the court noted:

An arbitrator says Carney Hospital has to rehire six of the twelve nurses it fired in 2011 in a scandal involving physical and sexual abuse of patients in its adolescent psychiatric unit.

Arbitrator Philip Dunn said that while the hospital proved "a stunning level of dysfunction" in the ward, it was wrong to fire every single worker in an attempt to end a "deviant culture" without at least giving them a chance to prove their innocence.

In response, Carney filed a federal lawsuit yesterday to overturn the ruling.

Aston Martin Lagonda and an Aston Martin dealership in Waltham are racing at each other full speed in a dispute over whether the car company - whose cheapest model goes for $122,400 - can open another dealership in Wayland.

Aston Martin of New England on Linden Street in Waltham, says the plan would cut its sales dramatically and wants $3 million in damages. The dealership is currently the only place in all of New England to buy a new Aston Martin.

The Supreme Judicial Court ruled today that Our House East on Gainsborough Street engaged in "unfair or deceptive conduct" under the state's consumer-protection law by building an illegal and unsafe staircase down which Jacob Samuel Freeman fell to his death in 2007.

However, the court sent the case back to a lower-court judge to reconsider the monetary awards, in particular, some $2.1 million in lawyers' fees.

A jury had ruled for the bar's owners on strict negligence grounds, saying that while the place violated state building codes, that didn't cause Freeman's death. The judge, in the case, however, ruled that his death did violate the consumer-protection laws, and the state's highest court agreed:

The lawyer for Ron Newman, one of the LiveJournal 102, is firing back at local entrepreneur Jonathan Monsarrat with an 18-page letter that demands the $5.5-million suit be dropped immediately, unless Monsarrat and his lawyers want to face counter claims for filing a frivolous lawsuit.

The suit names only two people specifically and then refers to 100 "John or Jane Does." A number of people reported last week they received e-mail or letters from Monsarrat threatening to name them specifically as part of the suit unless they deleted posts about him.

Ed. note: After my initial post on the suit, Monsarrat sent me a similar e-mail message, threatening to include me in the lawsuit unless I took down the post about the lawsuit and the comments on it. Fortunately, I was able to retain counsel, who has responded to Monsarrat's lawyers. The post stays up, in part because of Sect. 230 of the Communications Decency Act.

The Supreme Judicial Court ruled today that doctors' first responsibility is to their patients, not to the public at large.

The decision comes in suit by a man who wanted damages from a Mass. General neurologist whose patient suffered a seizure and crashed into him.

Richard Medina required multiple operations to repair the arm damage done in the 2001 crash and said Dr. Fred Hochberg should have done more to keep his patient, Robert Riskind, who had inoperable brain cancer, off the road:

Vickie Henry and Claire Humphrey yesterday sued the IRS, alleging rules that prohibit them from filing tax returns as a married couple unconstitutionally taxes them at a higher rate than other married people.

The pair, who filed their suit in US District Court in Boston, say they have filed amended returns listing them as married for 2007 and 2009 and want a refund on their taxes for those years, based on the lower rate charged a married couple versus two single people.

A year ago, the US Court of Appeals for the First Circuit ruled that the federal Defense of Marriage Act, which the IRS uses to define "married" was unconstitutional. The Supreme Court is currently considering the law.

Henry and Humphrey married in 2004, a few months after the Massachusetts Supreme Judicial Court ruled same-sex couples have the right to marry. Among their arguments for a refund:

A Somerville man's lawsuit over posts on the local LiveJournal and on the local newspaper Web site went national today, in a request for legal help for Ron Newman, named in the suit.

Meanwhile, lawsuit bringer Johnny Monsarrat has been busy digging up the names behind comments he doesn't like and sending them letters warning them to take down their comments or be officially named in the lawsuit, rather than as one of the "John and Jane Does, 1-100."

One person says Monsarrat actually visited his mother's house, "in a large black trench coat, blond hair, asking all sorts of questions about me, my whereabouts, et cetera."

A tiny company called Lexington Luminance is suing both Amazon and Google over a patent it claims is violated by the LEDs used in the companies' tablets.

Boston University this week filed its own LED patent lawsuit against Amazon over the LEDs used in its Kindle tablets.

Yesterday, Formosa Epitaxy, the company that makes the LEDs that Google uses in its Nexus 7 tablets, filed a lawsuit against Lexington Luminance to try to forestall an anticipated Lexington Luminance lawsuit against it.

Lexington Luminance sued Amazon and Google last November, claiming the devices use violate a patent held by Tien Yang Wang for minimizing defects in the manufacture of LEDs. It seeks damages and interest and an order to stop the companies from selling the products with the LEDs.

The company has no Web site and lists Wang's Lexington home as its corporate address in its complaints.

Boston University yesterday sued Amazon.com, charging the LEDs used in its Kindle tablets violate a patent the university holds on making the lights.

BU, which has already sued several LED manufacturers, says the lights infringe on work by Theodore Moustakas, a BU professor of electrical engineering and computer science, on "growing" LED components out of gallium nitride.

Homegrown Karmaloop and some California woman who leads an organization for "professional groupies" are battling over the right to sell things with the word "Plastics" on them.

In a pre-emptive strike, Karmaloop this week sued Yvonne Nicoletti, a.k.a. Lexxa Vonn, for the right to continue producing trucker hats that say "PLASTICS" on the front and "She's fabulous but she's evil" on the lower brim.

Nicoletti runs the Plastics Professional Groupies, and had sic'ed her lawyer on Karmaloop to get it to stop selling the caps, claiming she owns the trademark on the word "Plastics."

Mike O'Dea yesterday filed a federal lawsuit against Warner Bros. over its plans for a movie called "The Ghostman," about a thief who evades the FBI, saying it infringes his trademark on a comic book and movie he is working on called "Ghostman" about a thief who evades the FBI.

In his suit, filed in US District Court in Boston, O'Dea says he has been working on his project since 2010, has a Web site to promote it and that Warner Bros. needs to knock it off, pronto.

Our own Ron Newman, a longtime participant in the Davis Square LiveJournal community, reports that he, former Somerville Journal editor Deb Filcman and 100 "John and Jane Does" are being sued for more than $5 million for libel by Turbine founder Johnny Monsarrat. At issue: A lengthy LiveJournal discussion and a couple of Wicked Local blog posts about Monsarrat's arrest after a wild party, along with other online discussions about Monsarrat.

A Norfolk County resident yesterday filed a class-action suit against Ford because she's only getting 32 m.p.g. with her new Ford C-Max rather than the 47 m.p.g. the company promotes in its commercials.

Marianne Cibeu is seeking at least $5 million in damages, for both herself and other members of what she says is a large class of similarly disgruntled Massachusetts purchasers of 2013 C-Max and Fusion Hybrids.

After viewing television advertisements regarding the C-Max Hybrid, Plaintiff then went to the Ford dealership and spoke with a salesperson who confirmed the C-Max Hybrid achieved 47 miles per gallon in real world highway, city and combined driving. ... Plaintiff has only achieved an average of 32 mpg. Had the gas mileage and fuel economy for Plaintiff's C-Max Hybrid been accurately disclosed in Ford's marketing campaign, Plaintiff would not have purchased her C-Max Hybrid or would have paid less for the Vehicle.

The Jamaica Plain Gazette reports residents who want to see the Casey Overpass replaced with another overpass instead of surface roads are considering suing to stop the work:

"No one prefers to go that route if there's a reasonable solution,” he told the Gazette this week. "But all our arrows are in our quiver."

At particular issue: The proposed new location of the exit from the Forest Hills busway near Asticou Road.

Paula Soto, who shows documentaries in the community room of her apartment building, yesterday filed suit against the city of Cambridge, which she says is infringing her First Amendment rights by threatening to fine her for the leaflets she used to put on hundreds of car windshields each month.

In her suit, filed in US District Court in Boston, Soto charges Cambridge is the only city in the entire state to interpret a state law prohibiting "defacement" of "natural scenery" as applying to flyers for a non-profit group, such as her Up and Out:

A lawsuit by key members of the local taxi industry against upstart Uber is now a federal matter - San Franisco-based Uber yesterday had the suit transferred from state court to US District Court in Boston.

In the suit, Boston Cab Dispatch and EJT Management charge Uber, which lets customers use a smart-phone app to arrange a ride, violates state law, which requires taxis in Boston to carry medallions.

The companies charge Uber lets drivers refuse rides to certain neighborhoods. As East Boston residents know, city law prohibits medallion drivers from refusing rides there.

Boston University yesterday sued Samsung for patent infringement, alleging it holds the rights to the way Samsung is making LEDs and similar electronic components.

In its lawsuit, filed in US District Court in Boston, the university charges that Samsung's charmingly named SPHWWTHDD805WHT0GD violates a patent for creating "highly insulating monocrystalline gallium nitride thin films."

The Supreme Judicial Court ruled today a filmmaker making a documentary about a Somerville cop convicted of child rape has no right to a stenographer's audio recording of the trial because he was able to buy a copy of the official transcript she produced.

The Supreme Judicial Court today vacated an order that had prevented a British man from seeing the then 16-year-old Massachusetts girl with whom he had had a dalliance while she and her family were on a European vacation.

After the family returned to the US, the two continued exchanging romantic messages via e-mail and Skype - even after the girl admitted she was only 16 and not 18 - and Gregory James Compton, then 24, eventually booked a flight to Boston in October, 2011, to spend more time with his stateside sweetie.

But when the Essex County girl's father found out about that, he went to court and obtained a "prevention order" under the state's law on domestic abuse that barred the swain from going anywhere near the girl - an order served on him not long after he landed at Logan.

The judge who issued the order shouldn't have, the state's highest court ruled today.

The Supreme Judicial Court today ruled against a Canton company that makes padded hip protectors, saying a Harvard Medical School researcher did not libel it in a medical-journal article that said the devices did not seem to do much to protect the elderly from broken hips.

The state's highest court said HipSaver of Canton failed to prove that Dr. Douglas Kiel and his co-authors had written anything false in their 2007 article in the Journal of the American Medical Association.

Kiel, a specialist in hip fractures among the elderly, was the lead reasearcher in an $8.4-million federally funded study, in which residents of nursing homes wore a hip protector on one hip but not the other. In their article, the researchers wrote it became so obvious the pads were failing to stop broken hips that they called off the study early.

The study did not include any HipSaver products, which the court said also doomed its claim, because Massachusetts defamation law requires proof a statement was aimed at the plaintiff: