Lawsuits

A federal appeals court today tossed the First Amendment claims of a group of Boston Fire Department clerical workers passed over for promotions, saying that while it's unfortunate they may have lost out because they weren't friends with the mayor's cronies in management, that doesn't rise to the level of a violation of their First Amendment rights.

The workers alleged they were passed over repeatedly for promotions in favor of friends or members of "the Hyde Park Group" affiliated with pals of the mayor and a similar "South Boston Group."

A divided Massachusetts Appeals Court ruled today a man who bought a Norwell house in part because the broker told him it was zoned for use as the hair salon he wanted to open should get a trial to try to persuade a jury he deserves damages because it turns out the house wasn't zoned for that use.

Daniel DeWolfe bought a two-family house on Washington Street in Norwell that had been advertised by its listing brokerage, Hingham Centre, Ltd., as zoned "Business B," which a broker told him meant it was suitable for a salon. The property's MLS listing also said it was zoned that way, and the broker gave him a copy of part of the town zoning code allowing salons with "Business B" handwritten at the top.

In fact, the property was zoned "Residential B," which does not allow salons, and something DeWolfe did not learn until after he had gotten both a permit for a new septic system and a building permit to install his salon on the first floor.

Keurig, the Reading-based maker of single-serving coffee machines, is suing a California company that makes knock-off K-cups.

In a lawsuit filed this week in US District Court in Boston, Keurig says the Rogers Family Co.'s OneCups violate two Keurig patents (here and here) for a "brew chamber for a single serve beverage brewer."

The Massachusetts Court of Appeals today rejected former state Rep. Marie Parente's bid to have her pension increased based on the estimated value of her state-provided parking space on Beacon Hill and her per-diem payments for traveling to and from her home in Milford.

Some of the first people to buy pricey condos at the Natick Mall are suing to get their money back.

Three animal groups say lobster pots and fishing lines used off the Massachusetts coast are killing endangered North Atlantic right whales and other large whales.

In a lawsuit filed yesterday in US District Court in Boston, the Humane Society of the US, Defenders of Wildlife and the Whale and Dolphin Conservation Society demand the government do something to stop the deaths - several of which they say occurred after the National Marine Fisheries Service released studies last fall that lobstering and large-scale fishing offshore were not jeopardizing right, humpback, fin and sei whales:

Atlantic large whales are in danger of entanglements from [lobster] trap/pot gear because they feed and travel in many of the same areas as the Fishery operates. The risk of entanglement occurs year-round, though the risk may be greatest during the summer and fall, when both whales and the lobster gear are the most concentrated in the same area.

The suit cites similar problems with lines and nets from fishing boats in search of fish in the area offshore from Maine to North Carolina.

Boston Granite Exchange, which is not actually based in Boston, has sued Greater Boston Granite, which is also not based in Boston, to get it to stop using that name.

The Armenian Library and Museum in Watertown is suing Jack Kevorkian's lawyer in an effort to keep paintings it says the late suicide doctor donated to the library more than a decade ago - but which the lawyer and the Kevorkian estate plan to auction off next week.

In a suit originally filed in Middlesex Superior Court, but transferred to US District Court in Boston, the library says Kevorkian's sister announced at the opening of a gallery of the paintings at the library in 1999 that Kevorkian, then in a Michigan prison, said the artwork was a gift to the library.

Kevorkian's estate has, in turn, sued the library, demanding the paintings be produced in time for an auction scheduled for next week that will also include the machine Kevorkian used in his assisted deaths.

For the second time this year, the Supreme Judicial Court has ruled against a bank that tried to sell off property it did not yet own the title to.

The state's highest court said that U.S. Bank improperly deeded a house to a buyer when it had not yet properly foreclosed on the previous owner. The ruling is yet another strike against lenders seeking shortcuts to dispose of property in Massachusetts - but also a potential issue for people who bought foreclosed property in recent years.

The Supreme Judicial Court ruled today nothing the Supreme Court has said invalidates the state's requirements for gun permits, so people can't just go out and buy guns willy-nilly.

One of the country's last 5 & 10's yesterday filed a class action lawsuit against a Florida marketing firm it says keeps sending ads it doesn't want to its fax machine.

In its lawsuit, filed in US District Court, the owners of the West Concord 5 & 10 want RFB Distributors - and a series of other marketers still to be identified - to stop tying up its fax line.

Receiving Defendants' junk faxes caused the recipients to lose paper and toner consumed in the printing of Defendants' faxes. Moreover, Defendants' faxes used Plaintiff's fax machine. Defendants' faxes cost Plaintiff time, as Plaintiff and their employees wasted their time receiving, reviewing and routing Defendants' unauthorized faxes. That time otherwise would have been spent on Plaintiff's business activities. Defendants' faxes unlawfully interrupted Plaintiff's and the other class members' privacy interests in being left alone.

In addition to a ban on the faxes, the suit seeks $500 for each junk fax the store and its as yet unidentified fellow fax recipients have gotten.

The US Court of Appeals for the First Circuit today upheld an earlier decision to toss an $8.5 million verdict against the FBI for its role in letting Whitey Bulger and his henchmen kill an informant and the guy who was giving him a ride home, saying the families filed their lawsuit three weeks after the expiration of the statute of limitations.

In February, a three-judge panel overturned a lower-court award to the families of Brian Halloran and Michael Donahue. In the ruling today, the entire court voted 5-2 to reject the families' request for a rehearing.

Boston Beer Corp. yesterday sued a former West Coast sales executive and the rival California brewer he went to work with to try to keep him from spilling any of its trade secrets.

In 1998, the California Supreme Court ruled other states could not enforce their non-compete clauses on its residents, because such clauses are illegal there. However, Boston Beer sued Judd Hausner and Anchor Brewing of San Francisco in US District Court in Boston, a state that allows non-compete clauses in employee contracts.

The Massachusetts Appeals Court ruled today that Housing Court is the wrong place to consider a complaint by two Roxbury tenants that their landlord reacted to a rent dispute by badmouthing them to congregants at the church where they work as custodians - and by trying to get them fired by strewing trash on the church floors to make it seem like they weren't doing their jobs.

The Supreme Judicial Court today upheld a fine levied against a New Jersey company that e-mailed a prospectus to a Massachusetts resident even though it hadn't registered with the Secretary of State's office.

Bulldog Investors argued this violated its First Amendment right to free speech.

A federal appeals court yesterday reinstated James Haley's family's lawsuit against the city over allegations Boston Police framed him for a 1971 murder they say he didn't commit.

The US Court of Appeals for the First Circuit in Boston dismissed the lawsuit's complaints against two specific Boston detectives, saying they had "qualified immunity" because they were acting in their official capacities. But the court said the city itself had no such immunity and that the family had a right to a trial on allegations that the detectives - who, like Haley, are now dead - withheld two key documents from Haley's lawyers. Those documents - summaries of interviews with the two main witnesses in the case that contradicted their testimony - led the Suffolk County District Attorney's office in 2007 to agree to vacate Haley's life sentence.

A federal appeals court yesterday reinstated a jury's monetary damages against Joel Tenenbaum for downloading and sharing copyrighted music on various peer-to-peer networks - and ruled there is nothing unconstitutional about the law used to go after him.

The ruling by the US Court of Appeals for the First Circuit in Boston does not mean Tenenbaum has to fork over the money to Sony and four other recording companies just yet, however.

The court said it didn't object in general to district Court Judge Nancy Gertner's decision to reduce the award to $67,500, only that she was wrong to do so on the grounds it was so excessive it violated his constitutional right to due process. Instead, the appeals court directed Gertner to consider whether to reduce the damages under a common-law principal that lets judges reduce jury awards. The difference is that if she decides to do so that way, the companies could seek a new trial.

The judges expressed little sympathy for Tenenbaum, represented by Harvard Law professor Charles Nesson, calling him a liar who knew that repeatedly downloading songs over several years was wrong - because everybody from his father to the RIAA told him to knock it off, and he didn't, even as he blamed everybody from his sisters to burglars for installing file-sharing software on his computer.

• Complete ruling, Sony BMG Music Entertainment, et al. vs. Joel Tenenbaum

Dan Kennedy analyzes a judge's decision that the Herald has the right to report on court proceedings and documents, even if they happen to involve a libel suit against the paper, in this case by Boston band member Tom Scholz in a libel suit over an Inside Track column on the death of lead singer Brad Delp:

The Herald is still at risk over its 2007 reports. [The judge] recently dismissed Scholz's suit against Micki Delp, ruling that the statements at issue were solely the Herald's responsibility. Yesterday's ruling, though, was a victory not just for the Herald, but for the First Amendment - and all of us.

Brandeis University this week sued everybody from multinational food concerns to a tiny bakery in Milwaukee over margarine - which the school alleges violates patents it owns for producing what it says is heart-healthy food substances.

The Supreme Judicial Court ruled today that a 2010 law aimed at protecting tenants of foreclosed apartments against evictions "without just cause" also applies to tenants who were in the process of being evicted before the law went into effect, but who never left their units.

For the second time, a Massachusetts court has ruled Norwegian Cruise Lines has to reimburse a couple who tried to reschedule a cruise the week after 9/11 only to be told that they not only couldn't do that, they wouldn't get their money back.

The Supreme Judicial Court ruled today the cruise line engaged in deceptive practices because it never told Mark and Tara Casavant about a secret, unpublished clause it had that only allowed for refunds based on complaints about specific conditions in the contract the couple signed when they bought their tickets.

The Massachusetts Appeals Court ruled today that if the owners of a Charlestown condo want to remove two walls to create a fabulous pass-through view of the harbor and downtown, they're going to have to sign an agreement that the condo board could one day order them to restore the walls.

A Boston lawyer suing the city and police officers who arrested him for using his cell phone to record a drug arrest on the Common won a victory today when a federal appeals court said the officers could not claim "qualified immunity" because they were performing their job when they arrested him under a state law that bars audio recordings without the consent of both parties.

In its ruling, which lets Simon Glik continue his lawsuit, the US Court of Appeals for the First Circuit in Boston said the way Glik was arrested and his phone seized under a state wiretapping law violated his First and Fourth Amendment rights:

The Massachusetts Appeals Court ruled today a Roxbury man has to tear down part of the two-unit condo building he put up on Magazine Street because he tore down a neighbor's fence and then built part of the structure where his neighbors used to plant vegetables and repair their cars.

The court said that while it couldn't figure out where the actual property line was, it didn't matter, because the neighbors had gained the disputed land through "adverse possession" - they had used it continuously for more than two decades without any complaints and presented evidence the people they bought their house from had erected the fence even earlier than that.

And if Tom Menino were a Yankees fan.

Seems this guy in New Brunswick, NJ, wants to open an "upscale" restaurant and bar called Buck Foston's Roadhouse, but the mayor, who happens to be "an avowed Red Sox fan" opposes him. Naturally, the guy's making a federal case of it, filing a federal lawsuit against the city after the city council refused to take action on his plan to turn an old Bennigan's into an anti-Sox zone with burgers and beer.

In his suit, Lawrence Blatterfein accuses Mayor James Cahill of being a Sox-loving infringer of the First and Fourteenth Amendment who never objected to a chicken franchise called Cluck U (according to the suit, the mayor said he didn't object to that because "chickens cluck"). The suit adds:

For avid sports fans, the play on words "Buck Foston's" is evocative of a century-old sports rivalry between the New York and Boston sports teams, including between the New York Yankees and the Boston Red Sox, the New England Patriots and the New York Jets and New York Giants and between the Boston Bruins and the New York Rangers. In selecting the name "Buck Foston's," Blatterfein intended to attract to his restaurant the large population of New York sports fans in and around New Brunswick.

Ed. note: New York has a hockey team?