Kimmel & Silverman, P.C. v. Porro
53 F. Supp. 3d 325
D. Mass.2014Background
- Porro Lawsuit settled May 2009; Settlement included broad confidentiality language by Kimmel, Porros, and their counsel.
- Swartz defendants represented the Porros in Porro and later represented Krista Lohr in Lohr Lawsuit, filing confidential materials from Porro in Lohr.
- Kimmel filed this action June 22, 2011 asserting breach of contract, implied covenant, fraud, and tortious interference related to the confidential materials.
- Porros settled with Kimmel in August 2013; reciprocal Releases were executed but Swartz defendants were not signatories to those Releases.
- Stipulation of Dismissal as to Porros was filed September 24, 2013; Porros were dismissed with prejudice, Swartz defendants remained in the case.
- Court adopts magistrate’s R&R: deny Swartz first motion for summary judgment; grant Swartz further motion for summary judgment; deny plaintiffs’ cross-motion as to Count I.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Release reform | Kimmel and Porros intended release to cover past attorneys | Release language includes past attorneys; Swartz released | Release reformation warranted to exclude Swartz (mutual mistake) |
| Absolute litigation privilege applicability | Privilege does not bar breach of contract or confidentiality claims | Privileged conduct in course of litigation bars liability | Absolute litigation privilege precludes liability for Swartz defendants |
| Law of the case applicability | R&R and district rulings should control | Law of the case does not bind today; discovery matters | Law of the case not controlling; merits reconsideration allowed |
Key Cases Cited
- Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777 (1st Cir. 2011) (contract interpretation; ambiguity and plain terms guidance)
- OneBeacon Am. Ins. Co. v. Travelers Indem. Co., 465 F.3d 38 (1st Cir. 2006) (reformation where mutual mistake evidenced by extrinsic factors)
- Eck v. Godbout, 444 Mass. 724 (Mass. 2005) (mutual mistake limited; cannot fix unilateral errors via reformation)
- Rain v. Rolls-Royce Corp., 626 F.3d 372 (7th Cir. 2010) (privilege not overridden by settlement obligations in contract sense)
- Sullivan v. Birmingham, 11 Mass.App.Ct. 359 (Mass. 1981) (policy of protecting attorney communications in litigation)