Bank's negligence in releasing funds is a question of fact, precluding summary judgment:
Candelario Del-Moral v. UBS Fin. Services Inc. of Puerto Rico, No. 10-1275 (1st Cir. 11/9/12)(Before Appellate Judges Howard, Selya, Thompson, Opinion by Justice Thompson).
In plaintiff's suit against a bank claiming that it was negligent as a matter of law in letting her ex-husband withdraw millions from certain accounts, by negligently relying on a defective "minutes" order vacating a multi-million dollar attachment plaintiff obtained against her ex-husband in divorce proceedings, the judgment of the district court is vacated and remanded where: 1) although the "minutes" order was facially defective because it was not signed by the judge nor notice given to the parties, a reasonable jury could find that the defendant acted reasonably, which makes a trial necessary as this would be a genuine issue of material fact precluding summary judgment on this issue (reasonableness is generally a question for the jury and the issue in negligence is whether the defendant acted "reasonably"); and since this is remanded, the rulings on damages are of necessity vacated as well to be addressed upon remand; and 2) defendant's request to remand the case to a new judge is denied - there were no showings requiring recusal upon remand, as such would be the exception and not the rule and this case is not the exception. Finally, "Our work finally over, we vacate the summary judgment for Candelario and remand for further proceedings consistent with this opinion, though we do not think that we are crossing any lines in "suggesting that this is a case best resolved by settlement." See Bos. Edison Co. v. Fed. Energy Regulatory Comm'n, 233 F.3d 60, 69 (1st Cir. 2000). Again, we intimate no view on the ultimate outcome."
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Starbuck violated Tips Act by allowing managers to share in wait staff's tips:
Matamoros v. Starbucks Corp., No. 12-1189 (1st Cir. 11/9/12)(Before Appellate Judges Thompson, Selya, Lipez, Opinon by Justice Selya).
In employees' class action suit against Starbucks, claiming that its policy of allowing shift supervisors to share in the pooled gratuities violated the Tips Act, judgment of the district court is affirmed where: 1) the plain language of the [Massachusetts] Tips Act states unequivocally that only employees who possess "no managerial responsibility" may qualify as "wait staff"; and 2) remainder of parties' contentions are without merit. "After careful consideration of a fundamental (and previously unanswered) interpretative question, we hold that the plain language of the Tips Act prohibits the defendant's tip-pooling policy. We also reject the parties' other claims of error. When all is said and done, we leave the combatants where we found them."
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