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PSD attorneys Barry Pollack and Peter Duffy won both sides of cross-motions for summary judgment, along with an affirmative grant in their client’s favor in a commercial real estate dispute pending in federal court in the District of Massachusetts. In one written decision, the federal judge found that PSD’s client, 58 Swansea Mall Drive, LLC produced sufficient evidence to go to trial on not only breach of contract claims, but also claims based on the breach of the duty of good faith and fair dealing and under 93A for unfair and deceptive acts by an affiliate of a national real estate developer known as Gator. The judge focused on an email that PSD uncovered in discovery from Gator’s CEO instructing its general counsel that they were “okay following” the parties’ lease “if” an agreement to certain land use were reached. Prior to the summary judgment ruling, PSD won several discovery motions that led to the creation of a privilege log and the production of such materials for an in camera inspection. PSD’s client won the issue that the instruction from Gator’s CEO was not a privileged communication designed to obtain legal advice. In a separate written decision, PSD’s client won an affirmative grant of summary judgment in its favor on its claim for declaratory relief that it was able to use a particular pylon sign in compliance with its lease, resulting also in the dismissal of Gator’s entire counterclaim. The only claims of 58 Swansea that the court dismissed were those that it no longer pursued or that became moot because of the passage of time. The federal judge also rejected Gator’s argument that 58 Swansea had not demonstrated its damages.
