James L. Messenger

James L. Messenger is a Partner in the Boston office of GRSM. James focuses his practice on complex commercial litigation in areas such as intellectual property, business transactions, shareholder disputes, franchise disputes, breach of fiduciary duty claims, and environmental and bankruptcy matters. He is an arbitrator for the American Arbitration Association (AAA).

James has obtained successful outcomes for complex litigation clients at every stage of the trial process, including case-ending motions to dismiss, summary judgments, trials, and appeals.

Admissions

• Massachusetts
• U.S. District Court, District of Colorado
• U.S. District Court, District of Massachusetts
• U.S. District Court, Eastern District of Michigan 
• U.S. District Court, Eastern and Southern Districts of Texas
• U.S. Court of Appeals, First, Second, and Third Circuits
• U.S. Supreme Court

Memberships

• New England Legal Foundation, Board of Directors
• Lawyers Committee on Civil Rights, Boston Chapter, Board Member
• American Civil Liberties Union, Cooperating Attorney
• Boston Law Journal, Former Editor
• Massachusetts Bar Association
• Boston Bar Association
• American Bar Association
• Association of Trial Lawyers of America 

Community Involvement

• Norfolk County Children’s Advocacy Center, Board Member

Commercial and Employment Litigation

• JTH Tax v. Morrell et al. (M.D. Fl. 2024) – Counsel for a national franchisor in a breach of franchise agreement case against former franchisee and his general manager in the Middle District of Florida. After evidentiary hearing, obtained magistrate report recommending a preliminary injunction in favor of the franchisor and against the franchisee and general manager to enforce post-term non-competition and non-solicitation covenants.
• JTH Tax v. Merit (D. Colo. 2024) – Counsel for a national franchisor in a breach of franchise agreement case against a former franchisee in the District of Colorado. After oral argument, obtained a preliminary injunction in favor of the franchisor and against the franchisee to enforce post-term non-competition and non-solicitation covenants.
• JTH Tax. v. Kukla (2d. Cir. 2024) – Counsel for a national franchisor successfully defended on appeal the Eastern District of New York’s entry of default judgment, permanent injunction, and contempt order against the former franchisee defendants on behalf of their client. See JTH Tax v. Kukla (E.D.N.Y. 2022).
• Hamelin (D. Mass. 2023) – Counsel for a pipeline company in a nationwide class action in the District of Massachusetts alleging that exposure to radon in natural gas shipped through an interstate pipeline caused pipeline workers to develop blood cancer. Obtained early summary judgment on the plaintiffs’ class action claims, resulting in a complete dismissal of the plaintiffs’ class action case.
• GATX (S.D.N.Y. 2023) – Counsel for a terminals company in a breach of contract case in the Southern District of New York arising from a $1 billion stock purchase agreement. The plaintiff alleged that the client breached the agreement by refusing to indemnify the plaintiff for multiple asbestos cases brought by the families of former employees of the plaintiff’s subsidiary. The plaintiff voluntarily dismissed the entire case on the eve of summary judgment—with no settlement—after the client previewed its summary judgment arguments with the plaintiff.
• JTH Tax v. Beckwith et al. (D. Del. 2023) – Counsel for a national franchisor in a breach of franchise agreement case against a former franchisee in the District of Delaware. After evidentiary hearing, obtained a preliminary injunction in favor of the franchisor and against the franchisee to enforce post-term non-competition and non-solicitation covenants.
• Molnar v. Lantheus Medical Imaging (Mass. Superior Court 2022) – Counsel for Lantheus Medical Imaging, and several officers, in a suit brought by the former Chief Medical Officer alleging breach of a severance agreement. The plaintiff dismissed the entire case with prejudice—with no settlement—shortly after the start of discovery and defending the depositions of the CEO and General Counsel.
• Brocco v. Port Authority of New York and New Jersey (NY Supreme Court Appellate Division 2022) – Counsel for the Port Authority of New York and New Jersey in a premises liability case in which the plaintiff claimed millions of dollars in damages for a catastrophic injury sustained on Port Authority property. Obtained summary judgment in New York Supreme Court dismissing all claims against Port Authority on grounds that was an out-of-possession landlord. Handled the plaintiff’s appeal of the New York Supreme Court’s decision, which was affirmed in its entirety by the Appellate Division. 
• JTH Tax v. Gilbert (M.D. Fla. 2022) – Counsel for a national franchisor in a breach of franchise agreement case against a former franchisee in the Middle District of Florida. After evidentiary hearing, obtained a preliminary injunction in favor of the franchisor and against the franchisee to enforce post-term non-competition and non-solicitation covenants following an evidentiary hearing.
• JTH Tax d/b/a Liberty Tax Service (2021-Present) – Counsel for tax franchisor in multiple cases seeking to enforce post-termination franchise agreement obligations.  
• International Arbitration for Publicly Traded Company (2019) – Counsel for a publicly traded company as plaintiff in a fourteen-day AAA international arbitration concerning breach of contract against a contract manufacturing organization hired to produce a product. Successfully obtained a $3.5 million judgment for the client.
• Estate of Beverly Spavins (2018) – Lead Counsel representing the estate of a decedent in a will dispute in which the decedent’s family challenged the will based on alleged incompetency of the decedent. After a five-day trial, the probate judge found that the will was knowingly and wilfully made and affirmed the will.
• Beninati v. Borghi 070914 MASUP, 12-1985 BLS2 (2011 - 2014) – Lead Counsel representing Plaintiff Elizabeth Beninati in a shareholder derivative case on behalf of the Workout World New England (WOW) Companies against defendants who froze out/ constructively terminated the plaintiff and diverted corporate opportunities and started a competing chain of health club using WOW resources and goodwill. After a 20-day bench trial in the Business Litigation Session of Suffolk Superior Court, obtained a seven-figure verdict for the plaintiff including a $9,000,000 award of attorney fees. On appeal, the judgment was doubled pursuant to Massachusetts General Laws Chapter 93A.
• Fent v. Oklahoma Corporation Council, Solix Inc. (2010) – Defended company against qui tam suit challenging the constitutionality of statutes under which the State of Oklahoma contracted with client and seeking client, Solix, to return millions of dollars received for contract services. Prevailed on summary judgment, establishing that statutes were constitutional and contracts were effective.
• Abry Partners v. FW Acquisition LLC, (Del. Ch. Ct. 2006) – Represented a defendant, a private equity firm, in a rescission and fraud suit. The plaintiff sought to rescind a $500 million sale of a publishing company. James had the principal responsibility of drafting the motion to dismiss and managing fact discovery. His motion to dismiss resulted in the dismissal of all but one claim. This lawsuit has been cited extensively in law review articles.
• WT Holding Corp. v. Lehman Brothers Holdings, Inc., et al., (Suffolk Sup. Ct. 2004) – The plaintiff sought to place a lis pendens on a commercial condominium project and to preliminarily enjoin the sale of luxury condominiums on the Boston Common, including thirty luxury condominiums that were scheduled to close in the next thirty days. The Suffolk Superior Court denied the motion for lis pendens and the motion for preliminary injunction. The plaintiff then filed an interlocutory appeal and a single justice denied the motion for interlocutory appeal.
• PDC Milford Power, LLC v. KBC Bank NV, et al. (D. Mass. 2004) – Defended a bank consortium in a lender liability case. Related cases were pending in New York and Delaware. After the defendants filed a motion to dismiss, the plaintiff withdrew its complaint. 
• Beverage Realty, Inc. v. Chatham Club LLC, 2003 WL 444572 (N.D. Ill. Feb. 21, 2003) – James represented Beverage in a breach of contract claim against Chatham and in defense of Chatham’s breach of contract counterclaim. He successfully moved for summary judgment on Beverage’s claims against Chatham and knocked out half of Chatham’s counterclaims against Beverage in connection with summary judgment motions After he filed a motion in limine which would have effectively terminated the case, Chatham stopped prosecuting its counterclaims, and the court entered final judgment, dismissing all of Chatham’s counterclaims with prejudice.
• Crystal Group, Inc. v. Boston Communications Group, Inc. (N.D. Iowa Ct. 2001 –2003) – Represented a defendant in a case in which the plaintiff asserted trade secret misappropriation, breach of confidentiality agreement claims, and fraud claims. The majority of the plaintiff’s claims were dismissed on the defendant’s summary judgment motion.
• Summit Investors II v. Sechris Inuds., Inc., 19400 (Del. Ch. 9-2-2002) – Represented Summit against Sechrist Industries seeking to enforce a put and call agreement. In connection with that action, Sechrist filed breach of contract and breach of fiduciary claims against Summit. James wrote a motion to dismiss, argued the motion in front of the Delaware Chancery Court, and was successful in having all of Sechrist’s claims against Summit dismissed. Summit later achieved a highly favorable settlement on its affirmative claims against Sechrist.
• Pittston Co. v. Sedgwick James of New York, Inc., 971 F. Supp. 915 (D. N.J. 1997) – Represented Sedgwick James in connection with claims brought by Pittston for uninsured losses at an oil terminal facility in New Jersey. Drafted a successful motion for summary judgment disposing of all claims Pittston brought against Sedgwick James. Wrote the appellate brief and argued the appeal in the Third Circuit. The case was settled after oral argument but before the decision by the Third Circuit.
• Picker Intern., Inc. v. Leavitt, 865 F. Supp. 951 (D. Mass. 1994) – Represented Picker in trade secret claims against Imaging and defense of Imaging’s antitrust claims against Picker. James was extensively involved in drafting a successful summary judgment motion dismissing all of Imaging’s nine counts against Picker. He was then Co-Counsel in connection with Picker’s trade secret and copyright claims against Imaging and prevailed in a nine-day trial in federal court in Massachusetts. He later took the lead in drafting the Appeals Court brief and argued in front of the First Circuit. The First Circuit upheld the district court’s verdict in favor of Picker.

Energy and Environmental

• (2014-Present) – Lead counsel representing various defendants in MTBE litigations in Pennsylvania, Rhode Island, Vermont, and Maryland.
• Pipeline Project (2018-2021) – James was part of a counsel team acquiring easements for pipeline construction in Hays, Blanco, and Gillespie Counties, TX in the pipeline project, which is a 425-mile underground natural gas pipeline project crossing more than 1,000 properties. GRSM filed approximately 100 condemnation actions to acquire easement rights in three different counties. Additionally, GRSM filed and obtained more than 40 temporary restraining orders to obtain survey access rights. In 2019 and 2020, James tried sixty or more administrative matters at Special Commissioner Hearings.
• (2020) – Lead counsel in a natural gas pipeline project involving a “Looping Project” and an “HP Replacement Project.” The Looping Project involved the installation of approximately 2.1 miles of a 12-inch diameter pipeline loop in Massachusetts and the removal of an inactive 6-inch diameter pipeline and replacement with a new 12-inch diameter pipeline in certain locations. The HP Replacement Project involved the replacement of two existing turbine compressor units with a new turbine compressor unit, as well as the installation of auxiliary facilities at existing Compressor Station. GRSM was lead counsel in acquiring easements in twenty-five tracts of land. GRSM filed a motion for immediate entry in the United States District Court for to District of Massachusetts to obtain easement rights in 25 tracts.
• Connecticut Expansion Project (2016-2018) – Lead counsel for permitting and land acquisition in Massachusetts and Connecticut for the Connecticut Expansion Project, which was an approximately twelve-mile Federal Energy Regulatory Commission (FERC) interstate natural gas pipeline project. This project presented the novel legal question of whether a Massachusetts constitutional provision barring condemnation of state forest land was pre-empted by a Certificate of Public Convenience and Necessity issued by FERC under the Natural Gas Act authorizing the project. GRSM also successfully argued that the Massachusetts constitutional provision was pre-empted by the Natural Gas Act. GRSM successfully conducted evidentiary right-to-take hearings in Connecticut state court and engaged in extensive briefing in the United States Court of Appeals for the First Circuit on the appeal of a Water Quality Certificate for the project.
• Significant decisions include: 
  • MADEP Docket No. 16-020, File No. X265051 (Mar. 27, 2017) (upholding issuance of Water Quality Certificate on appeal after evidentiary hearing and ruling that the Regional Office of the Massachusetts Department of Environmental Protection did not have the legal authority to condition the grant of the permit on the exhaustion of appeals).
  • Mass. Super. May 9, 2016 (ruling that a Massachusetts constitutional amendment barring condemnation of state forest was preempted by the Natural Gas Act).
  • Civil Action No. 16-cv-11671-NMG, 2016 U.S. Dist. LEXIS 139935 (D. Mass. Sep. 27, 2016) (addressing novel legal issue of whether issuance of Water Quality Certificate was a final agency action permitting the immediate appeal to the US Court of Appeals).
  • Northeast Energy Direct Project
• (2014-2017) – Lead counsel for permitting and land acquisition in Pennsylvania, Massachusetts, and Connecticut for the project, which was an approximately 134-mile Federal Energy Regulatory Commission interstate natural gas pipeline project. If completed, the project would have been the largest infrastructure project in the history of New England. The project sought land acquisition rights for over 400 tracts. Additionally, GRSM filed the largest survey permission petition in the history of the Commonwealth of Massachusetts.

Bankruptcy

• Champion Home Builders (Bankr. Ct. D. Mich. 2009 - 2011) - Counsel for the Creditors' Committee and lead attorney in charge of the investigation.
• TAI Unsecured Creditors Liquidating Trust v. Acemco Inc. dba Acemco Automotive (Bankr. Ct. S.D. N.Y. 2009 - 2011) - Lead counsel for the plaintiff in preference action involving novel issue of law in connection with enforceability of critical vendor releases.
• Republic Steel Bankruptcy, (N.D. Ohio 2004) - Head of defensive discovery and part of trial team for confirmation hearing in Republic Steel bankruptcy.

Criminal Jury Trial Experience

• Commonwealth v. Hoffman (1999) – Successfully prosecuted case where the Commonwealth charged police officer Dennis Hoffman with bribery. After trial, the jury convicted Hoffman on all counts.
• Commonwealth v. Jenkins (2000) – Successfully prosecuted case where the Commonwealth charged Mr. Jenkins with bribery. Mr. Jenkins was a co-defendant with Robert Hoffman, and the case was severed and tried separately. In the middle of the trial, the defendant pled guilty.
• Commonwealth v. Cruz (2000) – Prosecuted defendant charged with drug trafficking.
• James was also the lead prosecutor on numerous other jury trials and conducted several grand jury proceedings.

Pro Bono

• Vilaseca v. U.S. Department of Treasury, (D. Vt. 2008) - On behalf of the American Civil Liberties Union, filed an amicus brief and argued motion for preliminary injunction to enjoin enforcement of travel restrictions for United States citizens traveling to Cuba to visit family or attend wedding/funerals. The case was extensively covered in the Florida and Cuban press and was argued during the presidential election season. By executive order, the travel restrictions were withdrawn prior to a decision.
• Lowell School Committee v. Vong Oung, et al. No. 07-P-184. (2006-2008) – In a major pro bono case, James represented several non-native speaking tenured teachers from Lowell who were terminated for alleged lack of fluency after the passage of so-called Question Two - a referendum question that required most public school classes to be taught in English. In 2003, Lowell implemented a process to test teachers for fluency in English. Although DOE regulations required that all teachers be fluent in English, Lowell only tested non-native-speaking teachers. Further, contrary to state policy, Lowell did not use observation or interview as a means of assessing English fluency. James challenged the terminations on the grounds that they violated the teachers’ constitutional and statutory rights and on the grounds that Lowell’s policy was not consistent with DOE guidelines. After a ten-day AAA arbitration, the Arbitrator determined that the terminations were without just cause and reinstated the teachers with back pay, full seniority rights, healthcare benefits, and pension benefits as if they had never been terminated. The Arbitrator found that Lowell’s policy for determining fluency discriminated against non-native-speaking teachers and that the teachers’ state and federal constitutional rights were violated. The Massachusetts Superior Court confirmed the arbitration award, and the award was upheld by the Massachusetts Appeals Court.

Presentations

• Speaker, Clean Water Act 401 – Guardian of Water Quality or Political Hammer?, Energy Bar Association, May 7, 2018

• Co-Chair, Cyber Security: Risks and Challenges, 15th Annual CEO Forum, New England Legal Foundation, December 5, 2011

Education

J.D., cum laude, Suffolk University Law School, 1985

B.A., summa cum laude, Sociology, Boston University, 1978

Honors

AV Preeminent Rating, Martindale-Hubbell