per se rule in Massachusetts

2019See Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44-45 (2005) (no reasonable suspicion for stop where individual in "high drug area" left bar, approached defendant, handed "an item" to defendant, and then returned to bar as defendant appeared to count money); Commonwealth v. Ellis, 12 Mass. App. Ct. 476 , 477 5 Although we have not adopted a per se rule that requires officers to be able to identify whether anything is exchanged in order to have reasonable suspicion to believe that a drug transaction has taken place, see Commonwealth v. Stewart, 469 Mass. 257, 263 (2014), citing Commonwealth v.

2019See Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44-45 (2005) (no reasonable suspicion for stop where individual in "high drug area" left bar, approached defendant, handed "an item" to defendant, and then returned to bar as defendant appeared to count money); Commonwealth v. Ellis, 12 Mass. App. Ct. 476 , 477 5 Although we have not adopted a per se rule that requires officers to be able to identify whether anything is exchanged in order to have reasonable suspicion to believe that a drug transaction has taken place, see Commonwealth v. Stewart, 469 Mass. 257, 263 (2014), citing Commonwealth v.

1990See Commonwealth v. Santos, 402 Mass. 775, 781 (1988), citing Commonwealth v. Storey, 378 Mass. 312, 317 (1979), cert, denied, 446 U.S. 955 (1980).

1988Commonwealth v. Storey, 378 Mass. 312, 317 (1979), cert. denied, 446 U.S. 955 (1980).

1981Although “the statute does not mandate a per se rule of dismissal after the statutory period has expired,” Commonwealth v. Alexander, 371 Mass. 726, 728 (1977), it does require that “[wjhere ‘the delay or lack of any activity occurred in circumstances neither caused by nor attributable to the defendant’ [citation omitted] the Commonwealth must at the very least, explain why such delay is ‘reasonably necessary and justifiable.’” Id. at 730 , quoting from Commonwealth v. Boyd, 367 Mass. 169, 179 (1975).

1981Although “the statute does not mandate a per se rule of dismissal after the statutory period has expired,” Commonwealth v. Alexander, 371 Mass. 726, 728 (1977), it does require that “[wjhere ‘the delay or lack of any activity occurred in circumstances neither caused by nor attributable to the defendant’ [citation omitted] the Commonwealth must at the very least, explain why such delay is ‘reasonably necessary and justifiable.’” Id. at 730 , quoting from Commonwealth v. Boyd, 367 Mass. 169, 179 (1975).

1985Mertens v. Abbott Laboratories, 99 F.R.D. 38, 41 (D.N.H. 1983). *604 Certainly, the issue of liability could not be decided on a class wide basis. “[A] per se rule that [UFFT] causes injury could not possibly result in a per se rule of liability.” Mertens, supra at 41 .

1985Mertens v. Abbott Laboratories, 99 F.R.D. 38, 41 (D.N.H. 1983). *604 Certainly, the issue of liability could not be decided on a class wide basis. “[A] per se rule that [UFFT] causes injury could not possibly result in a per se rule of liability.” Mertens, supra at 41 .

1983In essence, MOSES' position is that the Commonwealth's implementation of unilateral changes prior to the completion of fact-finding represented a per se violation of its obligation *924 under G.L.c. 150E, § 10 ( a ) (5) & (6). [5] MOSES acknowledges that a private sector employer may implement unilateral changes after impasse, see NLRB v. Katz, 369 U.S. 736, 741-742 (1962), but asserts that a public employer should not be allowed to do so, as a matter of policy, for it would then hold an unfair economic advantage over public employees who, unlike their private sector counterparts, are forbidde

1983L. c. 150E, § 10 (a) (5) & (6). 5 MOSES acknowledges that a private sector employer may implement unilateral changes after impasse, see NLRB v. Katz, 369 U.S. 736, 741-742 (1962), but asserts that a public employer should not be allowed to do so, as a matter of policy, for it would then hold an unfair economic advantage over public employees who, unlike their private sector counterparts, are forbidden by law to strike.

1990See Commonwealth v. Santos, 402 Mass. 775, 781 (1988), citing Commonwealth v. Storey, 378 Mass. 312, 317 (1979), cert, denied, 446 U.S. 955 (1980).

1988Commonwealth v. Storey, 378 Mass. 312, 317 (1979), cert. denied, 446 U.S. 955 (1980).

1984Id. at 444 .

1983We found it unnecessary, however, “to formulate a per se rule which would mandate the dismissal of an indictment in cases in which government agents intentionally attempt to subvert the attorney-client relationship and the defendant’s right to a fair trial.” Id. at 444 . *209 The motion judge correctly found that the detectives acted in an improper manner. 13 They had reason to know that Cinelli was represented by counsel.

2024Thus, whether the defendants' alleged unfair or deceptive act or conduct was authorized by § 12B is one factor 5 Even if § 12B were a consumer protection statute, a violation would not be a per se violation of c. 93A unless "the conduct leading to the violation is both unfair or deceptive and occurs in trade or commerce." Klairmont, 465 Mass. at 174 . 10 that should be considered, but is not dispositive.

2017See Klairmont v. Gainsboro Restaurant, Inc ., 465 Mass. 165 , 176-177 (2013) ; Sharp v. Hylas Yachts, LLC , 872 F.3d 31 , 49-50 (1st Cir. 2017).

2006In a recent case, Commonwealth v. Martin, 447 Mass. 274, 279-284, 294-310 (2006) (Martin), there is extensive analysis by our Supreme Judicial Court of the constitutionality and suggestiveness of one-on-one identifications, the per se rule for exclusion of identifications obtained by suggestive means set forth in Commonwealth v. Johnson, supra at 462-472 , and the parameters of the good reason/cause standard for conducting a one-on-one identification enunciated in Commonwealth v. Austin, 421 Mass. 357, 361-362 (1995) (Austin).

1995See Commonwealth v. Johnson, supra. 3.

2006A per se rule may apply where “the person who represented the defendant at trial had never been admitted to the bar, and had in fact never completed law school; he was ‘a layman masquerading as a lawyer.’ ” Commonwealth v. Thomas, 399 Mass. 165, 168 (1987), quoting from People v. Felder, 47 N.Y. 2d 287, 291 (1979).

1990Other cases of administrative disqualification are cited in Solina, 709 F.2d at 167 n.9, and in Thomas, 399 Mass. at 168 .

2006To this end, the Supreme Judicial Court in the Johnson case affirmed the more stringent per se rule of exclusion of unnecessarily suggestive identifications as a matter of Massachusetts constitutional law, rejecting the Federal reliability test adopted by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

1995The Court nevertheless concluded: “The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.” Manson v. Brathwaite, supra at 112 .

2006A per se rule may apply where “the person who represented the defendant at trial had never been admitted to the bar, and had in fact never completed law school; he was ‘a layman masquerading as a lawyer.’ ” Commonwealth v. Thomas, 399 Mass. 165, 168 (1987), quoting from People v. Felder, 47 N.Y. 2d 287, 291 (1979).

1987The defendant relies on People v. Felder, 47 N.Y.2d 287 (1979), for the adoption of a per se rule.

2005See, in addition to notes 2 and 3, supra, Commonwealth v. Hogan, 426 Mass. 424, 430 (1998), quoting from Commonwealth v. Gordon, 410 Mass. 498 , 501 n.3 (1991) (“We take this opportunity to remind judges that they are not to participate as active negotiators in plea bargaining discussions” [emphasis supplied]); Commonwealth v. Damiano, 14 Mass. App. Ct. at 618 (“This is not to say, however, that a judge’s involvement in the plea bargaining process is a per se violation of a defendant’s rights . . . [and] we recognize that the permissible limits of such involvement by no means approach the lati

1989“That is not to say, however, that a judge’s involvement in the plea bargaining process is a per se violation of a defendant’s rights.” Id. at 618 .

2025Co. v. Bloom 325 Mass. 52, 55 (1949); Monti v. Wenkert, 947 A.2d 261, 281 (Conn. 2008). [3] All claims against Mr. Zola have been dismissed. -1- credit card debt was included in a chain of assignments from the original creditor to the entity that purported to sell the account to Metcalf, (ii) Metcalf violated G.L. c. 93, § 49, and therefore committed a per se violation of c. 93A, by suing Royal to collect an alleged debt without being able to prove that he had any right to do so, (iii) Metcalf cannot prevail against Royal on an “account stated” theory because there is no evidence that they eve

2025Co. v. Bloom 325 Mass. 52, 55 (1949); Monti v. Wenkert, 947 A.2d 261, 281 (Conn. 2008). [3] All claims against Mr. Zola have been dismissed. -1- credit card debt was included in a chain of assignments from the original creditor to the entity that purported to sell the account to Metcalf, (ii) Metcalf violated G.L. c. 93, § 49, and therefore committed a per se violation of c. 93A, by suing Royal to collect an alleged debt without being able to prove that he had any right to do so, (iii) Metcalf cannot prevail against Royal on an “account stated” theory because there is no evidence that they eve

2025See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). [5] The Read-Kays argue it was error for the judge to rely on Mass. G.

2025Reg., 101 Mass. App. Ct. 628, 637 (2022) (identical language in G.L. c. 142A, § 7, makes any violation of c. 142A “a per se violation of c. 93A”); Layes v. RHP Properties, Inc., 94 Mass. App. Ct. 804, 810 (2019) (same as to identical language in G.L. c. 140, § 32L[7]).

2025See Brauner v. Valley, 101 Mass. App. Ct. 61, 72 (2022) ("The common interest doctrine protects communications between represented clients who share a common interest").[4] The per se rule the Read-Kays advocate for would undermine this facet of the common interest doctrine and jeopardize the application of the attorney-client privilege to communications that we have already deemed privileged.

2024Co. v. Thomas, 417 Mass. 782, 788-790 (1994); Wolfberg v. Hunter, 385 Mass. 390, 400-401 (1982). 14Of course, a breach of the implied covenant, or of the covenant of quiet enjoyment discussed infra, would not constitute a per se violation of c. 93A.

2024See Herman, supra; Schubach v. Household Fin.

2024Co. v. Thomas, 417 Mass. 782, 788-790 (1994); Wolfberg v. Hunter, 385 Mass. 390, 400-401 (1982). 14Of course, a breach of the implied covenant, or of the covenant of quiet enjoyment discussed infra, would not constitute a per se violation of c. 93A.

2023See Commonwealth v. Hebb, 477 Mass. 409, 412 (2017); Zeininger, evidentiary hearings and fact finding, this judge was appointed to preside over the consolidated Ananias litigation.

2020L. c. 90, § 24 [1] [a] [1], operating motor vehicle "with a percentage, by weight, of alcohol in [the] blood of eight one-hundredths or greater," as alternative to operating "while under the influence 15 of intoxicating liquor"); Colturi, 448 Mass. at 813 ("It is beyond reasonable dispute that, in adding a per se violation to the OUI statute, the Legislature intended to strengthen the protections afforded the public from drivers who might be impaired by the consumption of alcohol").

2019See Brandao, 80 Mass. App. Ct. at 157 (adverse possession found where among primary activities were cultivation, mowing, and weeding); MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 904 (1993) (adverse possession found where use of land "consisted of little more than maintenance of a suburban lawn").

2019See Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44-45 (2005) (no reasonable suspicion for stop where individual in "high drug area" left bar, approached defendant, handed "an item" to defendant, and then returned to bar as defendant appeared to count money); Commonwealth v. Ellis, 12 Mass. App. Ct. 476 , 477 5 Although we have not adopted a per se rule that requires officers to be able to identify whether anything is exchanged in order to have reasonable suspicion to believe that a drug transaction has taken place, see Commonwealth v. Stewart, 469 Mass. 257, 263 (2014), citing Commonwealth v.

2019See Brandao, 80 Mass. App. Ct. at 157 (adverse possession found where among primary activities were cultivation, mowing, and weeding); MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 904 (1993) (adverse possession found where use of land "consisted of little more than maintenance of a suburban lawn").

2019Most recently, in State v. Thomas, 464 Md. 133, 140 (2019), the Court of Appeals of Maryland -- Maryland's highest court -- affirmed the defendant's conviction of involuntary manslaughter on the theory of gross negligence but declared that "a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter is unwise and not in keeping with our precedent." Id. at 167 .

2019Most recently, in State v. Thomas, 464 Md. 133, 140 (2019), the Court of Appeals of Maryland -- Maryland's highest court -- affirmed the defendant's conviction of involuntary manslaughter on the theory of gross negligence but declared that "a per se rule providing that all heroin distribution resulting in death constitutes gross negligence involuntary manslaughter is unwise and not in keeping with our precedent." Id. at 167 .

2019See Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44-45 (2005) (no reasonable suspicion for stop where individual in "high drug area" left bar, approached defendant, handed "an item" to defendant, and then returned to bar as defendant appeared to count money); Commonwealth v. Ellis, 12 Mass. App. Ct. 476 , 477 5 Although we have not adopted a per se rule that requires officers to be able to identify whether anything is exchanged in order to have reasonable suspicion to believe that a drug transaction has taken place, see Commonwealth v. Stewart, 469 Mass. 257, 263 (2014), citing Commonwealth v.