CASE RESULTS

OBTAINED A FAVORABLE JUDGMENT FROM THE MASSACHUSETTS SUPREME COURT

When new legislation imposed a five-cent deposit on beverage containers, malt beverage wholesalers and soft drink bottlers were given the responsibility of including the deposits in their price to retailers. As a result, this cost was eventually passed onto consumers.

However, consumers only returned approximately 70 percent of deposits. Years later, the Massachusetts Attorney General argued that the state treasurer should receive the remaining unredeemed deposits, claiming that they were abandoned property.

I sought a declaratory judgment against the Attorney General on behalf of my clients, the malt beverage wholesalers.

AT THE CASE'S CONCLUSION, THE TRIAL COURT RULED THAT UNREDEEMED DEPOSIT FUNDS WERE NOT ABANDONED PROPERTY. THE MASSACHUSETTS SUPREME COURT AFFIRMED THE LOWER COURT'S RULING. THIS RULING SPARED WHOLESALERS MILLIONS OF DOLLARS THAT WOULD HAVE OTHERWISE BEEN PAID TO THE STATE TREASURER.

DEFENDED RETAILER AGAINST NONCOMPLIANCE ACCUSATIONS

After the Canton, MA Licensing Board granted my client a license to operate an all alcohol package store, a competing package store brought suit in Norfolk Superior Court against the Licensing Board and my client, seeking to have the license revoked. The competitor claimed that the license was granted in violation of the alcoholic beverage laws, and filed a motion to enjoin the opening of my client's store.

I FILED AN OPPOSITION TO THE COMPETITOR'S MOTION, AND THE COURT RULED IN MY FAVOR. I THEN IMMEDIATELY FILED A MOTION FOR SUMMARY JUDGMENT, SEEKING TO HAVE THE COMPETITOR'S CASE DISMISSED. INSTEAD OF OPPOSING MY MOTION FOR JUDGMENT, THE COMPETITOR GAVE UP HIS CASE, AND AGREED TO FILE A STIPULATION OF DISMISSAL OF ALL HIS CLAIMS.

PROTECTED FRANCHISE OWNER FROM UNFAIR CONTRACTS

A client who owned five health club franchise businesses asked me to assist her in negotiating and documenting the sale of these businesses. I discovered that the franchisor had substantially revised the most recent version of the franchise agreement.

The original agreement that my client signed had an initial term of 10 years and automatically renewed if the franchisee was in good standing under the agreement. The new version had an initial term of only 5 years and gave the franchisor total authority to decide whether the agreement would be renewed.

Any person buying one of the existing franchises had to sign the newest version of the agreement. The new terms were very harmful to my client since she was selling mature, successful franchise businesses for a total of approximately $2,000,000.00. A prospective purchaser would not want to pay $2,000,000.00 and sign an agreement that only promised a five-year term. The franchisor took the position that it could not provide more favorable terms to my client's prospective buyer since that would violate certain laws.

I SOLVED THE PROBLEM BY HAVING MY CLIENT SELL HER BUSINESSES AS A STOCK SALE, RATHER THAN AN ASSET SALE. SINCE THE PURCHASER BOUGHT ALL OF THE STOCK IN MY CLIENT'S CORPORATIONS, THOSE CORPORATIONS CONTINUED TO EXIST AND HAD THE BENEFIT OF THE MORE FAVORABLE TERMS OF THE ORIGINAL FRANCHISE AGREEMENT BETWEEN MY CLIENT'S CORPORATIONS AND THE FRANCHISOR.

PRESERVED BREWER'S RIGHTS IN CASE INVOLVING TERMINATION

During 2018 I represented Anheuser-Busch ("A-B"), a brewer licensed to sell its products in Massachusetts, in an action brought by a distributor, Atlantic Importing Co. ("Atlantic"). A-B had purchased a brewery, Wicked Weed, LLC ("Wicked"), and planned to provide Wicked's beer products to its Anheuser Busch distributors for sale in Massachusetts. Atlantic's Complaint claimed that A-B's attempt to terminate sales to Atlantic and to transition the brands to A-B distributors violated a law intended to protect distributors from such a termination.

I filed a motion for summary judgment relying on a provision in the existing distribution agreement between Wicked and Atlantic. That provision allowed Wicked to terminate sales of its products to Atlantic without good cause so long as Wicked paid a certain termination fee to Atlantic. A-B had acquired Wicked as a wholly-owned corporate subsidiary, and, therefore, Wicked, which still existed as a corporate entity, retained the right to terminate sales to Atlantic in exchange for the sum stated in its distribution agreement with Atlantic. That sum was much less than the future profits Atlantic anticipated over the coming years.

DUE TO MY SUMMARY JUDGMENT ARGUMENTS, ATLANTIC AGREED TO DISMISS ITS CLAIMS AND ENTER INTO A SETTLEMENT AGREEMENT.