Thursday, June 17, 2021
An attorney who joined a law firm and whose name was added to the firm name despite her not being an equity partner left for public employment and sued the former firm for the post-departure use of her name.
The Massachusetts Supreme Judicial Court allowed some of the claims to proceed.
On December 3, 2012, Tedeschi was hired by the Bristol County District Attorney's office; shortly thereafter she sent an e-mail to Percy informing him of her new position and that, as a result, she was precluded from accepting any other employment. Percy did not remove the signage from the building bearing Tedeschi's name; in fact, he continued to advertise the firm as Percy, Tedeschi & Associates, P.C., until 2018. Tedeschi learned that potential clients called the firm looking to retain her, thereby suggesting that Percy benefited from Tedeschi's name and reputation.
On June 19, 2014, Tedeschi sent another e-mail to Percy requesting the immediate removal of her name from the sign on the building. Percy acknowledged that it had been "way too long" and indicated that he would "make the necessary arrangements soon." Tedeschi sent another e-mail to Percy on October 19, 2014, inquiring about the removal of her name from the sign. Percy replied that he was "in that process now."
In 2016, advertisements containing the firm name of Percy, Tedeschi & Associates, P.C., appeared in local real estate advertising books. Thereafter, Tedeschi filed a complaint with the Board of Bar Overseers (BBO) regarding the unauthorized use of her name; Percy was issued an admonition in January 2018.
After the BBO complaint was filed, Percy changed the signage on the building, but the firm's Facebook page continued to show a photo identifying the firm as Percy, Tedeschi & Kilcline, P.C., as of 2018. Additionally, the firm was listed as Percy, Tedeschi & Associates, P.C., in the Internet yellow pages and as the registered agent on the Massachusetts corporations website until February 2018.
Summary judgment to defendant reversed
These cases are instructive and support our conclusion that nominal damages are presumed in a claim filed pursuant to G. L. c. 214, § 3A. The rationale of these cases is that the appropriation of a likeness or name is "in the nature of a usurpation of a plaintiff's property rights" and "[i]t is proper to vindicate [a] plaintiff's right to the use of his [or her] image [or name] against this deliberate violation, even if [the] plaintiff cannot prove actual damages." James, 167 Ohio App. 3d at 344, quoting Ainsworth, 295 Ill. App. 3d at 649-650. Percy has cited no case from any jurisdiction -- and we are aware of none -- that has reached the opposite conclusion. Accordingly, summary judgment in favor of Percy on this claim was error.
Here, on the undisputed facts, Tedeschi's claim is not a dispute between parties in the same venture. Rather, the claim is that once they were not in the same venture, Percy wrongly continued to use her name. Put another way, these facts are not subject to the intra-enterprise exception. Tedeschi testified at her deposition that Percy repeatedly made promises to her about finalizing their business relationship. But Tedeschi's efforts to formalize a joint venture of some kind with Percy never materialized. We have held that, where a party engages in sham negotiations for a joint venture, without any actual intent to establish the relationship, a 93A claim may apply.
The court affirmed dismissal of other claims including unjust enrichment. (Mike Frisch)