implied covenant claim in Massachusetts

2026Cf. Cary v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue waived where “plaintiffs never put the judge on notice that they opposed summary judgment on this theory”); accord Slater v. Traynor Mgmt., Inc., 101 Mass. App. Ct. 705, 715 (2022). 1.5.

2026Cf. Cary v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue waived where “plaintiffs never put the judge on notice that they opposed summary judgment on this theory”); accord Slater v. Traynor Mgmt., Inc., 101 Mass. App. Ct. 705, 715 (2022). 1.5.

2025On the implied covenant claim, the jury found the defendants liable 3 The jury ultimately found no breach of the parties' contract, so we do not discuss that claim further. 4 Although the fiduciary duty claim is equitable in nature, Brodie v. Jordan, 447 Mass. 866, 871 (2006), the parties have referred to certain relief available on that claim as "damages." While a term such as restitution might be more appropriate, we adopt the parties' usage for purposes of this decision. 2 and awarded damages of $400,000.

2025See Commonwealth v. Johnson, 470 Mass. 300, 319 (2014) (trial court judge “acted well within his discretion” in declining to consider unsupported and undeveloped argument in support of motion); see also Halstrom v. Dube, 481 Mass. 480 , 483 n.8 (2019) (argument raised “in a cursory fashion” is waived).

2025See Commonwealth v. Johnson, 470 Mass. 300, 319 (2014) (trial court judge “acted well within his discretion” in declining to consider unsupported and undeveloped argument in support of motion); see also Halstrom v. Dube, 481 Mass. 480 , 483 n.8 (2019) (argument raised “in a cursory fashion” is waived).

2024First, Harvard argues that Classic's claim of interference with its high-end restaurant conflicts with the rule that "[i]n the ordinary lease of real estate there is no implied warranty that the premises are fit for occupancy or for the particular use contemplated by the lessee." Gade v. National Creamery Co., 324 Mass. 515, 518 (1949).

2024Despite this evidence that the street closure harmed Classic's ability to operate the restaurant while benefiting Harvard, the judge rejected the implied covenant claim on the 5 It appears undisputed that Holyoke Street is a one-way street. 10 ground that, in the judge's view, Classic impermissibly sought to read into the lease a provision that "Harvard would prevent the closure of Holyoke Street." The judge saw this as violating the principle that the implied covenant "may not . . . be invoked to create rights and duties not otherwise provided for in the existing contractual relationship." Un

2024See Simon v. Solomon, 385 Mass. 91, 102 (1982).10 The judge rejected Classic's quiet enjoyment claim on grounds much like those he cited in rejecting the implied covenant claim.

2012See York v. Zurich Scudder Invs., Inc., 66 Mass.App.Ct. 610, 615-16 (2006) (discussing types of unfair compensation claims under implied covenant).

2002I have examined MPG’s citations for this proposition: Harrison v. NetCentric Corp., 433 Mass. 465, 473-76 (2001); King v. Driscoll, 424 Mass. 1, 6-7 (1996); Smith-Pfeffer v. Superintendent of Walter Fernald State School, 404 Mass. 145 , 150 n. 4 (1988); and Mello v. Stop & Shop Cos., 402 Mass. 555, 556 n. 1 (1988).

2002I have examined MPG’s citations for this proposition: Harrison v. NetCentric Corp., 433 Mass. 465, 473-76 (2001); King v. Driscoll, 424 Mass. 1, 6-7 (1996); Smith-Pfeffer v. Superintendent of Walter Fernald State School, 404 Mass. 145 , 150 n. 4 (1988); and Mello v. Stop & Shop Cos., 402 Mass. 555, 556 n. 1 (1988).

2002MPG contends that the implied covenant claim is limited to the generic situation in which the employer fires the worker in order to evade the payment of future compensation earned by his or her prior services, le„ the situation framed by the seminal Massachusetts case, Fortune v. National Cash Register Co., 373 Mass. 96, 103-06 (1977).