COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT

HAMPSHIRE, ss.

ALAN SCHEINMAN, et al.

Plaintiffs
v.
CITY OF NORTHAMPTON and
NORTHAMPTON BUSINESS
IMPROVEMENT DISTRICT, INC.,
Defendants

CIVIL ACTION NO. 09-074

)
)
)
) PLAINTIFFS MOTION FOR FEES
) AND COSTS PURSUANT TO
) M.G.L. c. 231, 6F
)
)
)
)

Now come the Plaintiffs and hereby move, pursuant to M.G.L. c. 231, 6F, that
the Defendants1 be ordered to pay the Plaintiffs fees and costs caused by the Defendants
joint pursuit of their baseless defense to this lawsuit. As grounds therefore, the Plaintiffs
rely on this Courts Findings of Fact, Rulings of Law and Order entered on November 12,
2014 by Judge Agostini (the Courts Decision). The Plaintiffs further rely on the
Affidavit of Alexandra H. Glover and exhibits thereto (Glover Affidavit), filed
herewith.

No claim of sovereign immunity can shield the City from a claim under M.G.L.
c. 231, 6F because the statute expressly applies to the Commonwealth and its
subdivisions such as municipalities. Specifically, 6F liability can apply to any party
who was represented by counsel during most or all of the proceeding Party for the
purposes of 6F is defined under 6E to include any person, including any officer or
agency of the commonwealth or subdivision thereof, or any authority established by the
general court to serve a public purpose. See, e.g., TLT Constr. Corp. v. Com., 2000 WL
1299496 (Mass. Super. Ct. May 1, 2000) (allowing private partys motion under G.L. c.
231, 6F against the Commonwealth where its agencys defenses were wholly
insubstantial, frivolous and not advanced in good faith). A city is, of course, a subdivision
of the Commonwealth. E.g., Town of Dartmouth v. Greater New Bedford Reg'l
Vocational Technical High Sch. Dist., 461 Mass. 366, 379 (2012) (and cases cited).

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FACTS
The Plaintiffs prosecuted this suit for the benefit of the majority of property
owners in the BID who never wanted to participate in the BID. Prior even to the
approval of the BID by the City Council, the Plaintiffs clearly articulated the illegal steps
taken by the Defendants with regard to the Petition and the certification and approval
thereof. As detailed below, even the media publicly reported those missteps prior to the
City Councils approval of the District. Now, the Plaintiffs, as well as this Court, have
been forced to expend five-and-one-half years and substantial resources prosecuting a
lawsuit to which the Defendants have never had a good-faith defense in fact or law.
Were this the typical case where the Defendants had presented relevant facts and
a plausible legal theory, however thin, that could arguably have vindicated them in this
matter, and where this Court had simply ruled against them, the Plaintiffs would not bring
the instant motion. In this case, however, the Defendants presented virtually no evidence
or legal theories that provided them or an objective observer with any basis to expect that
they might prevail. Rather, for five-and-one-half years they have run out the clock on
this litigation until the inevitable defeat occurred, and benefited from these tactics in that
they thereby wrongfully secured for themselves a functioning, albeit unlawfully created,
BID operating in the City, notwithstanding their clear and numerous violations of law in
their creation of it.
That the Defendants presented no facts during the five-day trial, or for that matter
any plausible legal theory, that could have established that the Chapter 40Os mandatory
procedures were followed (or even considered) in enacting the NBID, is illustrated by the
following review of the facts found by this Court. Indeed, this review reveals that the

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Defendants own witnesses made the Plaintiffs case for them. Among all of the Parties,
it was only the Plaintiffs who undertook to verify the signatures. Not only did the
Defendants not verify the signatures before the BID was approved; it did not appear that
the Defendants made any effort in that regard until after trial in this matter had begun.
The Defendant NBIDs proffer of a binder of purported verification information at the
end of trial is testament to the fact that the Defendants did not have a good faith basis for
its defenses in this case.
To be clear, the Plaintiffs are not claiming entitlement to attorneys fees and costs
due to the failure of the Defendants to follow the statutory procedures in creating the
BID. Rather, the Plaintiffs seek based on the cost of prosecuting this suit against the
meritless defenses, when all of the relevant information concerning the lack of a defense
was available to the City and the BID proponents even before the City approved the BID
and certainly before this suit was filed, there was no reasonable basis to the defense of
this case.2 The following facts that were known to the Defendants from even before the
filing of the Plaintiffs Complaint in this case:
1.

The NBID, and not the City, controlled the process of certifying that the Petition
complied with the requirements of c. 40O, notwithstanding that the statute clearly
requires the City Clerk and the City Council to evaluate compliance of the
Petition with the statute.

2.

The City Assessors did not check signatures on the Assents against their own
records of the names of property owners, and the City Assessors rejected none of
the 305 signatures on the BID petition, even the dozens and dozens that were
illegible or were not the signatures of the actual owners of the properties. Rather,
the City Assessors merely watched the NBID proponents present each Assent and
note the corresponding parcels on the map, and the City Assessors noted on the
spreadsheet provided by the NBID that there was a signed assent for every parcel
counted by the NBID. Courts Decision, p. 7. These findings were based on the
testimony of the Principal City Assessor, Joan Sarafin, and BID proponent,
2

The Citys evidence at trial consisted chiefly of the repeated testimony of City
witnesses that no signatory to an Assent every complained.
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Daniel Yacuzzo. The Defendants presented no other evidence to the contrary at

trial.
3.

The Assessor's Certificate of Compliance was generated by the BID proponents,

and not by the Assessor. Courts Decision, p. 8. This finding was based on the
testimony of Ms. Sarafin. The Defendants presented no other evidence to the
contrary at trial.

4.

The Assessor did not count the Assents or make the 60 percent calculation, but
watched NBID proponent and Daniel Yacuzzo, who was subsequent employed by
the BID as its Executive Director, calculate the figure. Courts Decision, p. 8, n.
11. This finding was based on the testimony of City Assessor Joan Sarafin. Mr.
Yacuzzo testified as to an unspecific memory of the meeting. The Defendants
presented no other evidence to the contrary at trial.

5.

The Court found the Assessor Certificate to be completely baseless and lacking
in any meaningful determination by the assessors that the assents met the
statutory establishment criteria. Courts Decision, p. 8. This finding was based
on the testimony of the Assessor, Ms. Sarafin, and on the exhibits testified to by
her and by Daniel Yacuzzo. The Defendants presented no evidence to the
contrary at trial.

6.

Despite the plain-language statutory requirement that the City Clerk must
determine that the statutory criteria set forth in Section 3 of c. 40O are met, the
City Clerk did not perform her own calculations or inquire in any manner of the
City Assessor about the process of issuing the City Assessors Certificate before
issuing a certificate of compliance. The City Clerk based her determination
solely upon the City Assessor's Certificate. This Court found that neither
Sarafin nor Mazza made a meaningful determination on whether the petition
satisfied the BID establishment criteria as mandated by G.L. c. 40O, 4. Courts
Decision, p. 9. Courts Decision, p. 10. These findings were based on the
testimony of the City Assessors and the City Clerk.

7.

Virtually every one of the objections raised by the Plaintiffs at trial to the
signatures, the process, and the statutory violations (including notice
requirements) was raised by the Plaintiffs months before the City Council vote to
approve the NBID. Courts Decision, p. 9. This finding was based on the agreed
facts, the testimony of both Plaintiffs and of the City Clerk, and the exhibits
documenting the Plaintiffs written objections that predate the BID approval by
the City Council. The Defendants presented no evidence to the contrary at trial.

8.

In January 2009, The City Clerk sent an email to BID proponents and City
officials rescinding her certification, expressing concerns about the process.
Courts Decision, pp. 9-10. The Court found that the City Clerk did not
withdraw her rescission, and stated that [a]ny such attempt by Mazza to
reinstate her certification of the signatures and the petition would have been void

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on this record, which compels the conclusion that neither Mazza nor Sarafin
made in any meaningful way the determination required by G.L. c. 400, 4, that
the establishment criteria has been met as set forth in section three. Courts
Decision, p. 10. This finding was based on the testimony of City Clerk Mazza.
The Defendants presented no evidence to the contrary at trial; indeed, they
presented no evidence that the City Clerk had even tried to withdraw her
certification at trial.
9.

[D]ozens and dozens of the assents should not have been counted, and the
number of valid assents does not remotely approach the 297 needed to meet the
statutory requirements. Courts Decision, p. 17. Eliminating the invalid
signatures would have pushed the assents below the 60-percent/51-percent
standard, making the BID petition fail by a wide margin. These findings were
based on the testimony of various of the Defendants witnesses and the NBID
Petition including the Assents. The Defendants offered testimony of BID
proponents as to several specific signatures, but presented no evidence to the
contrary for most of the signatures at trial.

10.

Incredibly, the City Clerk did not even forward the signatures to the City Council
so that they could conduct their statutorily-mandated review of the Petition. This
finding was based on the testimony of City Clerk Mazza. Thus, the City Council
did not even review the critical documents to which the Plaintiff Alan Scheinman
repeatedly submitted detailed, written and oral objections at City Council
hearings. The Defendants presented no evidence to the contrary at trial.

11.

The Northampton City Council "abdicated its responsibility" to determine if the

BID petition was lawful before approving the BID. [A]t no time did the city
Council make a meaningful or independent determination that the petition for the
NBID complied with the statutory establishment criteria. The City Councils
complete side-stepping of its obligation under G.L. c. 40O, 4, provides yet
another reason for the NBIDs invalidity. Courts Decision, pp. 12-13. These
findings were based on the testimony of various of the Defendants witnesses, as
well as the Plaintiffs testimony about their oral and written objections prior to
and during the City Council hearings. The Defendants presented no evidence to
the contrary at trial.

Whether the Defendant NBID and the Defendant City failed to make the most
minimal inquiry of their witnesses/employees concerning the basic facts necessary to
their defense, or whether those facts were willfully disregarded out of the same blind
desire that seems to have animated the attempted creation of the District from the
beginning, the Defendants have no excuse for not realizing from the inception of this

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lawsuit that they had no case in fact or law. The result of either their ignorance, or their
disregard of their own witnesses evidence, was a defense without basis or merit.3 This
fatal failure to mount a meaningful factual or legal case reveals unequivocally that no
facts that could have exonerated the Defendants in this matter exist.
As a subset of their meritless defense of the entire case, the Defendants
repeatedly raised specific affirmative defenses that were without factual and/or legal
basis. Their repeated raising of these affirmative defenses came at great cost to the
Plaintiffs, who were faced with two Defendants that independently briefed the defenses
and then explicitly incorporated the others briefs by reference. These defenses include
standing (raised, briefed and argued three times and then pressed again at trial), laches,
sovereign immunity, ten-taxpayer statute, G.L. c. 40, 53, exhaustion of administrative
remedies, and discretionary legislative act of the City Council (collectively, the
affirmative defenses). Also included in the meritless defense of the case was the
Defendant NBIDs Motion to Supplement the Record by Admitting Further Documents,
which Motion forced the Plaintiffs (and likely this Court) to expend significant resources
in responding to said Motion.
The frivolous nature of the Defendants affirmative defenses was detailed in this
Courts Decision. To make matters worse, the Defendants pursued some of those
defenses multiple times after losing the point in the context of their Summary Judgment
3

In evaluating the Defendants joint culpability for the meritless defense of this
case, it is important to note that, except for the post-trial effort of the Defendant NBID to
admit evidence, both Defendants explicitly incorporated by reference the arguments of
the other, in pleadings filed with this Court. There was clearly a division of labor
between the Defendants so that each Defendant did not need to bear the entire cost of the
legal argument being made unlike the Plaintiffs, who had no one with whom to share
the burden. See, for instance, the joint Defendants Requests for Findings of Fact and
Rulings of Law, filed at the end of trial.
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motions, both in pretrial motions of law and at trial. The Plaintiffs were required to
respond again and again to these affirmative defenses and to prepare and offer evidence
at trial on the affirmative defenses of laches, standing and exhaustion of administrative
remedies. This Court ruled with respect to the Defendants litany of defenses, some of
which had been considered previously and rejected in pre-trial proceedings (Courts
Decision, pp. 2-4), as follows:
1.

Laches: As a matter of fact and law, the plaintiffs could not have
pressed a more persistent or timely opposition to the NBID. Decision, p.
2.

2.

Sovereign immunity: In another desperate argument, the defendants

assert that this action is barred by the doctrine of sovereign immunity.
The doctrine has no application where, as here, the plaintiffs do not seek
monetary damages. Decision, p. 4.

3.

Exhaustion of administrative remedies: Also flawed is the defendants

argument that the plaintiffs should have exhausted administrative
remedies before filing this action, where no such administrative remedies
were available. Decision, p. 2.

4.

Standing: Equally specious is the defendants assertion that the

plaintiffs lack standing to seek declaratory relief. Decision. P. 2.

5.

Discretionary legislative act of the City Council: The mandatory

language [of c. 40O, 4] defeats the defendants argument that the City
Council had discretion to interpret or disregard the statutory criteria
require for BIDs. [T]he statute unequivocally requires the City
Council to dismiss nonconforming BID petitions. Decision, p. 12
In short, as to each of these affirmative defenses, as well as the ten-taxpayer

statute affirmative defense, there was never a colorable claim in fact or in law.4

The fact that Judge Ford declined to enter summary judgment on the laches
claim, which is by definition a heavily fact-specific defense, does not in any way suggest
that the claim had merit. It is simply an acknowledgement by Judge Ford that there
might have been factual issues unknown to him that could prove some merit to the
defense. The Defendants presented no such evidence at trial.

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The standing defense is, perhaps, the most egregious example of the Defendants
repetitive meritless actions. There could be no factual dispute that all of the Plaintiffs
owned real property within the District and thus had a stake in the enactment of the NBID
(as Judge Ford found in his Summary Judgment decision). By the time of the summary
judgment motions, however, the Legislature had amended the statute to require
membership in BIDs to be mandatory. As a result, all non-participating property owners
were to be forced into District membership. Judge Ford explicitly found standing without
regard to the statutory amendment, and then added that the amendment only confirmed
his finding. Certainly then, any colorable claim that the Plaintiffs may have lacked
standing prior to the date of the amendment on August 7, 2012 (and Judge Ford found
there was none), was coterminous with the amendment. Nevertheless, the Defendants
persisted with this affirmative defense through the summary judgment motions and
argument, the pretrial memorandum, the Parties pretrial Requests for Rulings of Law,
the additional pretrial briefing on standing, the trial itself, and the post-trial briefing. By
the time of trial, the Defendants had lost their standing arguments at summary judgment
and in the pretrial Rulings of Law stage. To force the Plaintiffs to prepare testimony and
evidence on the defense of standing to present such evidence at trial, and to defend
standing in the post-trial briefing is the very definition of frivolous. 5
The Defendants affirmative defense that the City Councils vote was a
discretionary legislative act that was subject to an arbitrary and capricious standard was
raised officially for the first time by the NBID during an in-chambers conference with
5

In fact, this Court explicitly stated on the first day of trial, and repeated during
the course of trial, that it did not consider any of the Defendants defenses to have merit;
in response, the Defendants said that they nevertheless intended to press their defenses
and thus required the Plaintiffs to put on evidence relative to those defenses.

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Judge Agostini, in preparation for trial. Despite the fact that c. 40O mandates (shall)
that the City Council reject the BID Petition if it did not comply with the statutory
requirements set forth in Section 3, the Defendants argued that the City Councils acts in
approving the NBID were discretionary legislative acts. No basis in fact or law existed
for this argument, but the Plaintiffs were nevertheless required to perform legal research
and to prepare a legal brief on the point.
Finally, the Plaintiffs have broken out separately the amount of fees that they
incurred in responding to the Defendants Motion to Supplement the Record by
Admitting Further Documents. The basis for this motion is fully set forth in the
Plaintiffs Opposition to the NBIDs Motion to Supplement the Record, as well as the
Plaintiffs Motion to Strike and Renewed Motion to Strike the Defendant NBIDs posttrial submissions. The Court denied the Defendant NBIDs Motion for all of the reasons
set forth in the Plaintiffs Opposition. Courts Decision, p. 4.
The total professional fees incurred by the Plaintiffs in this case (including
predecessor counsel and current counsel) were: $200,686.14. Glover Affidavit, filed
herewith. Of that figure, $5,506.37, represented costs incurred.
The legal and professional fees may be broken down as follows:
a. Fees for work performed by Alan Seewald, Esq.:

$39,202.15

b. Fees for work performed by Lazan Glover & Puciloski, LLP, from
March, 2012 - October 31, 2014:
$155,977.62
i.

Of the LGP fees, the Plaintiffs incurred fees

defending against Defendants meritless affirmative
defenses:
$31,391.42

ii. Of the LGP fees, the Plaintiffs incurred fees

responding to the Defendant NBIDs post-trial

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evidentiary proffer. The total amount of fees incurred

for this purpose was:
$4,788.50

ARGUMENT
I.

The Plaintiffs Are Entitled To Their Fees And Costs In Prosecuting

this Action.

The Plaintiffs readily acknowledge that the American rule generally requires each
party to bear its own expenses in litigation and therefore do not bring this motion lightly.
However, M. G. L. 231 6F is designed to ameliorate[] the consequences of the
American rule, which ordinarily denies a prevailing party the recovery of legal fees
incurred in litigation. Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325, 328
(1997). In light of that purpose, the circumstances of this case coupled with the Courts
findings and rulings of law indicate that this is exactly the sort of case the Legislature
intended to be covered by the fee-shifting statute.
Section 6F provides in pertinent part:
Upon motion of any party in any civil action in which a finding, verdict,
decision, award, order or judgment has been made by a judge or justice
, the court may determine, after a hearing, as a separate and distinct
finding, that all or substantially all of the claims, defenses, setoffs or
counterclaims, whether of a factual, legal or mixed nature, made by any
party who was represented by counsel during most or all of the
proceeding, were wholly insubstantial, frivolous and not advanced in
good faith. The court shall include in such finding the specific facts and
reasons on which the finding is based.
If such a finding is made with respect to a party's claims, the court shall
award to each party against whom such claims were asserted an amount
representing the reasonable counsel fees and other costs and expenses
incurred in defending against such claims.
Mass. Gen. Laws Ann. 231 6F (emphasis added).

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The Supreme Judicial Court has explained the justification for fee-shifting in the
circumstances contemplated by the statute in Fronk v. Fowler, 456 Mass. 317 (2010):
Ordinarily, prevailing litigants are not entitled to fees because the prospect
of paying an opponent's costs might unjustly deter those of limited
resources from prosecuting or defending suits. Police Comm'r of Boston
v. Gows, 429 Mass. 14, 17, 705 N.E.2d 1126 (1999). Section 6F marks an
exception to this rule because there is no public policy against deterring
frivolous suits such as these. Where, as here, parties lack the legal or
factual basis to commence or sustain an action, yet press ahead for reasons
related only to obstinance or avarice, the prospect of reimbursing their
harassed opponents should cause them to rethink their litigious venture.
Fronk at 335-36.
Despite the fact that Section 6F cuts against the usual American rule with regard
to attorneys fees, Massachusetts courts appropriately have understood that they must not
hesitate to enforce the statutes mandatory requirements to effect the Legislatures will:
Cases decided under 6F have treated the statute's purpose sympathetically in order
that its policies may be effectuated. Masterpiece Kitchen & Bath, 425 Mass. at 329.
As the Court ruled in Lewis v. Emerson, 391 Mass. 517 (1984), the defense raised
therein, like the one here,
is wholly insubstantial as that term is used in 6F. This is precisely the
species of transparent defense to which a party should not be required to
respond. It is a defense without even a colorable basis in law, and it
represented a significant part of the Emersons' defense.
Id. 525-26.
Where a claim or defense is advanced that is not supported by the evidence, a
persons subjective belief in the truth of their claim will not preclude an award for
damages. See Massachusetts Adventura Travel v. Mason, 27 Mass.App.Ct. 293, 297, rev.
denied, 405 Mass. 1203 (1989). The courts proper focus is on a litigants actions during

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trial; i.e., did the party present evidence in bad faith or argue a wholly insubstantial legal
defense. See Lewis, 391 Mass at 526.
Here, too, the Courts rulings make it plain that the Defendants primary defense
to this lawsuit that the NBID and City complied with their obligations under Chapter
40O was wholly insubstantial, and is also precisely the species of transparent defense
to which a party should not be required to respond. Moreover, the evidence regarding
this defense was readily available to the Defendants: all they had to do was interview the
City Clerk, personnel in the Citys Assessors Office who reviewed the Petition, and the
City Council to know that no good faith defense could be put forward. Indeed, even
without doing any investigation, the Defendants merely had to pick up a local newspaper
to read the results of a reporters investigation into the matter shortly before this
litigation was initiated to see chronicled the fatal shortcomings of the Petition review
process that the Plaintiffs later raised at trial. See Northampton BID: Cooked or Raw?,
by Mary Serreze, published in the Valley Advocate on February 19, 2009, a month
before the City Council approved the NBID. 6 In the end, however, it matters not to
Section 6F whether the Defendants did a proper investigation or did none at all, ignored
the warnings in the press, and pressed on. The result was the same in either case: their

This article is referenced only to demonstrate that there was public notice that the
statutory mandates were not followed and that even a reporter without the special access
that the Defendants had to those who eventually testified could uncover in short order
what would be the fatal flaws in the Defendants case. For instance, it was reported at
that time that the City Clerk stated, I cant tell you how the 60 percent determination
was made and I did not do the calculations to verify the BID petition You would
have to over to the assessors office for that. When a signature was illegible, Mazza was
reported to have said that she called the Chamber of Commerce or the paid BID
consultant to find out who the person was. The Assessor confirmed that she only saw
that there was a signature for every parcel and stated that she did not calculate the 60%
requirement. That would be Wendy Mazza, the city clerk.
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untenable defenses subjected the Plaintiffs to five-and-one-half years of litigation with its
attendant expense for no purpose.
Massachusetts courts have not been reluctant to grant fees where the
requirements of Section 6F have been met. Indeed, they have no choice given that the
statute provides:
If such a finding is made with respect to a party's claims, the court shall
award to each party against whom such claims were asserted an amount
representing the reasonable counsel fees and other costs and expenses
incurred in defending against such claims.
Mass. Gen. Laws Ann. 231 6F (emphasis added).
As the Supreme Judicial Court has recently stated in Fronk, 456 Mass. at 324-25
in upholding a trial courts award of attorneys fees under 6F:
Section 6F authorizes an award of reasonable costs and attorney's fees
incurred in litigation when all or substantially all of the opposing party's
claims are wholly insubstantial, frivolous and not advanced in good
faith. If the judge finds that the claims meet that standard, the statute
mandates the award of reasonable counsel fees and other costs and
expenses. Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325,
330, 680 N.E.2d 1150 (1997).
Here, the judge issued separate findings of fact and conclusions of law in
support of her conclusion that the plaintiffs' entire case was insubstantial,
frivolous, and not brought in good faith. In reaching that result, the judge
recapitulated the total absence of evidentiary or legal support for the
plaintiffs' case and concluded that it was without even a colorable basis
in law. Lewis v. Emerson, 391 Mass. 517, 526, 462 N.E.2d 295 (1984).
Under the terms of 6F, the judge was therefore bound to award fees and
costs.
Fronk, 456 Mass. at 324-25 (emphasis added).
Similarly here, this Court has already recapitulated the total absence of
evidentiary or legal support for the proposition that the NBID and City had even
minimally, let alone sufficiently, complied with the requirements of M.G.L. c. 40O, 3,
4. Likewise, this Courts order makes it plain that the Defendants oft raised, always
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rejected affirmative defenses of standing, laches, ten-taxpayer statute, G.L. c. 40, 53,
sovereign immunity, and discretionary legislative act of City Council, had no basis in law
or fact.
The Supreme Judicial Courts past rulings, coupled with this Courts
decision, has made it plain that the Defendants case was wholly insubstantial,
frivolous and not advanced in good faith.
[T]he [a]bsence of good faith of a claimant in litigation may be inferred
reasonably from circumstances.... Massachusetts Adventura Travel, Inc.
v. Mason, 27 Mass.App.Ct. 293, 299, 537 N.E.2d 609 (1989). See Hahn v.
Planning Bd. of Stoughton, supra. Here, the inference of bad faiththat
the plaintiffs had no reason to believe in the merits of their claimsis
fully supported if not inescapable. Claims that are so unmoored from law
or fact are the very definition of frivolous: Lacking a legal basis or
legal merit; not serious; not reasonably purposeful. Black's Law
Dictionary 739 (9th ed. 2009).
Fronk, 456 Mass. at 335 (finding bad faith); see, e.g., Swank v. Woodard, 81 Mass. App.
Ct. 1138, 2012 WL 1858899, at *2 (2012) (finding bad faith and citing Fronk) (Rule 1:28
decision); Bldg. Inspector of Whitman v. Field, 67 Mass. App. Ct. 1117 (2006) (Rule 1:28
decision) (affirming that the defenses raised were frivolous, wholly insubstantial, and
not advanced in good faith); O'Brien Homes, Inc. v. Aro, No. WOCV200902775D, 2012
WL 3854940, at *4 (Mass. Super. June 28, 2012) (The claims pursued by the plaintiff
had no basis in the language of that agreement, accordingly, the lack of good faith found
in Fronk can also be found here.), aff'd sub nom. O'Brien Homes, Inc. v. Stone, 85 Mass.
App. Ct. 1104 (2014); Hayes v. Hayes, No. 0300719, 2008 WL 6691686, at *1 (Mass.
Super. Dec. 16, 2008)(concluding that the claims set forth in the plaintiff's complaint
were wholly insubstantial, frivolous and not advanced in good faith). 7
7

As another court has stated, in evaluating whether claims were advanced in bad faith
under 6F for attorneys fees, a court must assess factors such as the litigant's personal
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Similarly, the Defendants claims here are utterly unmoored from law and fact so
as to constitute the very definition of frivolous and bad faith. The testimony of the
Defendants own witnesses the NBID proponents, the City Assessors and the City
Clerk as to the complete abrogation of their clear duties under the statute; the crystalclear evidence that the City Council failed to make the statutory determination required
of it, indeed, failed to obtain the very signatures essential to any meaningful review; and
all of the other baseless factual and legal claims raised, repeatedly, by the Defendants;
demonstrate the violations of 6F. So, too, does the Defendants failure over five days of
trial to present any meaningful evidence to the contrary. Especially given that the
Defendants were alerted to the fatal flaws in the process in 2009 by the Plaintiffs and the
press and that the most cursory review of the Defendants witnesses at that time should
have revealed that the Defendants had no tenable defense, this case is indeed, that rare
one in which 6F mandates that attorneys fees and costs must be awarded.8
II.

In The Alternative, The Plaintiffs Are Entitled To Their Fees And

Costs In Litigating The Defendants Affirmative Defenses.

knowledge and experience, the extent to which the advice of counsel was available to, or
actually given to, the party and the substantive grounds proffered in support of the party's
position. Massachusetts Adventura Travel, 27 Mass.App.Ct. at 299. Here, there is no
dispute that the personnel of the NBID and City, as the actors in the drama, had full
knowledge of the NBID Petition process as well as the Citys process by which it
considered the Petition. Both Defendants have been represented by counsel throughout
this litigation. As for the substantive grounds offered in support of the Defendants
position, this Court thoroughly rejected them and found that they had no basis in fact.
The Defendants bad faith is therefore inescapable.
8
This Court has, of course, declared the NBID to have been void ab initio and
ordered it to cease all operations. There is currently pending an Emergency Motion to
Stay the Judgment, requesting that the NBID be permitted to continue to operate for a
period of time. The current financial status of the NBID is unknown; it may be that the
Defendant NBID is already insolvent. These unknowns may factor into recoverability of
any award, but they are not relevant to the question of whether the Plaintiffs are entitled
to such an award.
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Should the Court not award the Plaintiffs their fees and costs with respect to the
entire case, the Court should at a minimum award them their fees with respect to
litigating the baseless affirmative defenses of the Defendants as described above. Again,
6F provides that they may be awarded where the court may determine, after a hearing,
as a separate and distinct finding, that all or substantially all of the defenses,
whether of a factual, legal or mixed nature, made by any party who was represented by
counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not
advanced in good faith. Here, as shown above, all of the affirmative defenses were
baseless and hence the Plaintiffs, at a minimum are entitled to fees and costs with respect
to them.
WHEREFORE, the Plaintiffs respectfully request that this Court award them
their fees and costs in prosecuting this litigation against the frivolous claims and defenses
of the Defendant Northampton Business Improvement District, Inc. and the Defendant
City of Northampton, and that said award be joint and several, save that this Court award
them their fees and costs against the Defendant NBID, alone, in opposing the Defendant
NBIDs Motion to Supplement the Record by Admitting Further Documents.

ALAN SCHEINMAN, et al.

By Their Attorneys,
LAZAN GLOVER & PUCILOSKI LLP

By:

Dated: November 19, 2014

_____________________________
Alexandra H. Glover, BBO #561429
785 Main Street
Great Barrington, MA 01230
Tel: (413) 644-0200 Fax: (413) 644-0201
glover@lazanlaw.com

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CERTIFICATE OF SERVICE
I, Alexandra H. Glover, Attorney for Plaintiff, hereby state that I served the
above document on the Attorneys for the Defendants, by email and first-class mail, on
the date set forth above.
_____________________________
Alexandra H. Glover

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