Notes on the BLS/social law program and BLS 2021 decisions, including AG Healy v. Uber Technology | Nutter McClennen & Fish LLP


Justice Salinger encouraged practitioners to review the model jury instructions available now for civil and criminal cases. You can find these instructions here.

2. Status of Jury Trials

Due to the rise of the Omicron variant, the SJC had suspended jury trials in all Massachusetts state courts until February 14, 2022. [Note: on February 10, 2022, the SJC announced that jury trials would resume on February 14, 2022. Announcement here.]

3. Reducing the Number of Jurors in Civil Jury Trials

In response to the COVID-19 pandemic, the SJC reduced the number of jurors for civil trials to six. Judge Salinger predicted that once jury trials resume, this reduction will likely continue due to the large backlog of trials and the competing demand for jurors in criminal and civil cases. [Note: on February 10, 2022, the SJC announced that this reduction would continue. Announcement here.]

4. Bench Trial Alternative to Jury Trials

Judge Salinger reminded practitioners of the bench testing option. He noted that bench trials can be tailored to resemble arbitration, such as agreeing to waive detailed findings of fact.

The program then addressed several BLS decisions from 2021, highlighting the BLS’s ongoing handling of various complex business and commercial disputes. Here is a summary of five of those decisions:

1. Massachusetts AG action involves ‘actual controversy’ over whether Uber and Lyft drivers are employees

In Healey v Uber Technologies, Inc., et al., Judge Salinger dismissed Uber’s and Lyft’s motions to dismiss, ruling that based on the AG’s allegations, a real controversy exists over whether Uber and Lyft’s drivers are employees (rather as independent contractors) and are therefore entitled to certain statutory wages and related benefits. Although Judge Salinger found the AG’s allegations sufficient, he further noted that the rideshare companies’ public financial statements – which described the potential effect of an adverse judgment – were admissions that an actual controversy existed.

You can review Judge Salinger’s decision here.

This case remains pending.

2. The City is not responsible for non-transportation costs of the school bus fleet during COVID-19 related school closures

In NRT Bus, Inc., c. Town of Lynn, Judge Davis ruled that the City of Lynn was not required to pay NRT Bus for non-transportation services necessary to maintain an operational fleet, such as maintenance and upkeep, during periods of distance learning made necessary by the COVID-19 pandemic. According to Judge Davis, the bus contract required the city to pay for school bus trips only on a “per bus, per day” basis. He concluded that “if NRT’s school buses aren’t running, neither are the City’s payments to NRT.”

You can review Judge Davis’ decision here.

3. Forced closure due to COVID-19 excused Cafe Nero of performance under the frustration of the goal Doctrine

In UMNV 205-207 Newbury, LLC v Caffé Nero Americas, Inc., Judge Salinger ruled that a restaurant tenant, Caffé Nero, was exempt from paying rent for a period of about two months, while executive orders prohibited restaurants from serving customers inside. Judge Salinger found that under its lease, Caffé Nero could only use the leased premises as a “sit-down restaurant” and ruled that “this purpose was destroyed or frustrated while the Governor’s COVID-19 orders prohibited to Caffé Nero to allow customers to consume food or drink inside the rented premises.

You can review Judge Salinger’s decision here.

4. Savings Act revives otherwise barred title claims

In Highfields Capital I LP, et al., c. Perrigo Company, PLC, et al., the defendants moved to dismiss, arguing that the plaintiffs’ claims were statute-barred. Judge Green dismissed the motion. Under the Massachusetts “Thrift Law”, GL c. 260, § 32, timely claims that are rejected “on formality” may be refiled within one year of the rejection. Judge Green ruled that the plaintiffs’ voluntary dismissal of certain state law claims for lack of jurisdiction in a prior federal action was a dismissal on a “matter of form,” as required by the Savings Act. . She, however, rejected the defendants’ assertion that because the plaintiffs subsequently dismissed their other federal claims of the federal action “for reasons known only to them”, the federal action, as a whole, n was not rejected for “a matter of form”. Instead, Judge Green held that the Savings Act should not be construed “so narrowly, especially since Highfields failed to assert the federal claims it had dismissed, “for reasons known only to itself”, in this action”.

You can review Judge Green’s decision here.

This case remains pending.

5. No requirement to disclose preliminary acquisition plans to shareholders

In Athru Group Holdings, LLC v SHYFT Analytics, Inc. et al., Judge Salinger, applying Delaware law, held that officers and directors of a Delaware corporation have no duty to disclose preliminary acquisition plans to shareholders until there is agree on the terms of price and structure. For this reason, Salinger J. granted the defendants’ motion to dismiss the plaintiff’s claim for breach of fiduciary duty.

You can review Judge Salinger’s decision here.

This case is on appeal.


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