NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-754
COMMONWEALTH
vs.
BPI CONSTRUCTION MANAGEMENT, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, BPI Construction Management, Inc. (BPI),
appeals from summary judgment entered against it in the Superior
Court on the Commonwealth's claims for violations of the
Massachusetts False Claims Act (MFCA), G. L. c. 12,
§ 5B (a) (1)-(2) (2012). The judgment total was $926,898.06,
including damages of $513,079.84, filing fees of $280.00,
punitive damages of $226,752.00, and attorney's fees of
$72,000.00. Because we discern no error in the motion judge's
denials of BPI's motions to dismiss the complaint under Mass.
R. Civ. P. 9 (b), 365 Mass 751 (1974), or to join additional
parties to the action, and we conclude that the Commonwealth was
entitled to summary judgment on liability and damages in the amount calculated by the judge, we affirm the judgment and the
order denying the defendant's motion for relief from the
judgment.
Background. 1. Facts. The following facts are drawn from
the summary judgment rulings and, except as noted, are not
disputed.1
a. Westport project. In June 2017, general contractor M.
O'Connor Contracting, Inc. (O'Connor), awarded BPI, a
construction company subject to the Prevailing Wage Law, G. L.
c. 149, §§ 27, 27B, the carpentry subcontract for a public works
contract in Westport. The terms of the subcontract required BPI
to "comply with and be bound by all statutes, rules and
regulations governing wage rates," and provided that the
Westport project "is a public job and prevailing wage rates
apply and weekly payroll reports are required." The schedule of
prevailing wage rates at the Westport project for carpenters was
$66.68 per hour.
BPI hired Superior Carpentry, Inc. (Superior), to provide
the labor for BPI's portion of the Westport project. BPI's
subcontract with Superior required Superior to "keep true and
accurate payroll records for every such person under their
employ and submit certified weekly payroll forms together with a
1 We reserve certain facts for later discussion.
2 Statement of Compliance to [Westport] with the appropriate
prevailing rate."
Superior hired carpenters for the Westport project through
ICNG Contractor, Inc. (ICNG), and paid the carpenters at a rate
below the prevailing wage. BPI did not review records, inquire,
or take any other steps to verify that Superior was complying
with the Prevailing Wage Law, however.2 Superior workers
ultimately performed 4,756.5 hours of work on the Westport
project under the subcontract with BPI.
To obtain payment, BPI was required to ensure that O'Connor
was provided with weekly certified payroll reports (CPRs)
documenting and certifying that all carpenters performing work
under BPI's subcontract with Superior were being paid in
compliance with the Prevailing Wage Law. During the Westport
project, BPI used twenty-two completed CPRs from Superior to
obtain payment. These CPRs falsely stated that the laborers
were paid in compliance with the Prevailing Wage Law.
b. Middleborough project. In September 2017, A.P.
Whitaker & Sons, Inc. (Whitaker), awarded BPI the carpentry
subcontract for a public works project in Middleborough. As
with the Westport project, the contract for the Middleborough
2 Indeed, halfway through the Westport project, the wages paid, as reported by Superior, amounted to more than Superior's entire subcontract price.
3 project required that the workers employed under it be paid at
the prevailing minimum wage rate, which was again $66.68 per
hour. BPI subcontracted Superior to provide the labor and
required Superior to keep true and accurate records and to pay
prevailing wages. Superior again hired workers from ICNG.
These laborers worked 2,237.5 hours on the Middleborough
project.
Once again, the workers were not paid the prevailing wage,
although Superior completed ten CPRs that falsely stated
otherwise. BPI was required to, and did, use these CPRs to
obtain payment from Middleborough, but it still did not
supervise Superior's work and did not review records, make
inquiries, or verify Superior's compliance with the Prevailing
Wage Law.
2. Procedural history. In February 2018, the Fair Labor
Division of the Massachusetts Attorney General's Office (AGO)
received a complaint that the carpenters on the Westport project
were not being paid the prevailing wage. The AGO investigated
and, on December 13, 2021, filed this action against BPI
(enforcement action). In response to the AGO's investigation,
Superior admitted that it did not pay any worker the prevailing
wage on either the Westport or the Middleborough projects. On
December 21, 2021, Superior settled the Commonwealth's claims
against it by agreeing to pay $256,539.92 in restitution (unpaid
4 wages), plus $284,000 in statutory penalties under the
Massachusetts "wages and hour laws," see G. L. cc. 149, 151;
MFCA.
In January 2022, BPI moved unsuccessfully to dismiss the
Commonwealth's complaint on the grounds that the Commonwealth
failed to join indispensable parties (namely, Superior,
O'Connor, and Whitaker). In denying BPI's motion, a Superior
Court judge (first judge) concluded that the AGO had exclusive
discretion to decide if and when to pursue an MFCA enforcement
action.3 In May 2022, the first judge then denied BPI's motion
to add Superior, O'Connor, and Whitaker as third-party
defendants, concluding that an MFCA defendant is not entitled to
indemnification or contribution.
In September 2022, the Commonwealth moved for partial
summary judgment on BPI's liability under §§ 5B (a) (1) and
5B (a) (2), for using the thirty-two false CPRs (that Superior
had prepared) to obtain payment from the towns of Westport and
Middleborough.4 Citing to the undisputed evidence that (1) the
3 Alternatively, the first judge determined that BPI had not shown that the inclusion of the additional proposed defendants was required to accord "complete relief . . . among those already parties." Mass. R. Civ. P. 19 (a), 365 Mass. 765 (1974).
4 BPI opposed the Commonwealth's motion and filed a cross motion for summary judgment, arguing that (1) where Superior had agreed to pay the restitution amount of $540,539.92, the effect of G. L. c. 231B, § 4 (a), was to reduce BPI's liability to
5 information Superior provided on the CPRs for the Westport and
Middleborough projects was false and fraudulent; (2) BPI used
those CPRs to obtain payment, with deliberate indifference or
reckless disregard for their falsity; and (3) the false CPRs
caused the general contractors to submit false claims to the
towns, on December 15, 2022, a different Superior Court judge
(second judge) allowed the Commonwealth's motion.
On February 13, 2023, BPI again moved to add Superior,
O'Connor, and Whitaker as third-party defendants, this time
asserting claims under G. L. c. 93A and, as to Superior only,
claims for committing breaches of Superior's subcontract with
BPI. The first judge denied the motion, concluding that it was
simply a repackaging of BPI's earlier attempt to bring
impermissible claims for indemnification and contribution.
The Commonwealth then moved for summary judgment for relief
in July 2023.5 The second judge allowed this motion in part,
ordering BPI to pay $513,079.84 in compensatory damages and
$72,000.00 in attorney's fees under G. L. c. 12, § 5B (a) (2),
zero; and (2) BPI was therefore entitled to judgment in its favor on liability.
BPI also filed a second cross motion for summary judgment, 5
which the Commonwealth opposed. Approximately ten days later, before the summary judgment motions were heard, BPI moved for reconsideration of the December 2022 partial summary judgment entered on its MFCA liability. The Commonwealth opposed that motion, as well, and the motion was denied by the second judge.
6 for the knowing use of false record material to a false or
fraudulent claim.6 After the Commonwealth filed and served an
additional motion documenting its calculation of statutory
penalties, the second judge also assessed statutory penalties of
$226,752.00. Final judgment in the total amount of $926,898.06
entered in favor of the Commonwealth on October 30, 2023.7
On December 4, 2023, BPI moved for relief from judgment.
The motion was denied on December 7, 2023, and BPI filed a
notice of appeal on December 19, 2023. On December 21, 2023,
BPI filed a "corrected" motion for relief from judgment, which
was denied on January 29, 2024. On February 8, 2024, BPI filed
an amended notice of appeal from, inter alia, the judgment and
the denial of its motion for relief from judgment.8
Discussion. Distilling BPI's more than twenty separate
arguments to their essence, and limiting our consideration to
preserved arguments supported by legal authority and appropriate
6 BPI filed a motion to amend the order on the motion for summary judgment on relief, but the second judge denied that motion.
7 The second judge's order denying BPI's first cross motion for summary judgment entered on November 13, 2023, nunc pro tunc to December 15, 2022. The second cross motion for summary judgment was denied on September 1, 2023.
8 The notice of appeal also identified a number of prejudgment orders, including those listed above. See Mass. R. A. P. 3 (c) (1) (B), as appearing in 491 Mass. 1601 (2023).
7 record citations on appeal, we discern the following substantive
challenges, none of which requires us to disturb the judgment
against BPI.
1. Joinder of O'Connor, Whitaker, and Superior. a. BPI's
rule 12 (b) (7) challenge. We are not persuaded that the first
judge abused his discretion, see Doull v. Foster, 487 Mass. 1,
22 (2021), by denying BPI's January 2022 motion to dismiss the
complaint under Mass. R. Civ. P. 12 (b) (7), 365 Mass. 754
(1974). We, like the first judge, conclude that, in this
enforcement action, the Attorney General had sole discretion
over whom to name as a defending party. General Laws c. 12,
§ 5C (1), empowers the Attorney General to bring an enforcement
action in response to alleged violations of §§ 5B to 5O; it does
not require it to do so. See G. L. c. 12, § 5C (1) ("The
attorney general shall investigate violations under sections 5B
to 5O . . . . If the attorney general finds that a person has
violated or is violating said sections 5B to 5O, inclusive, the
attorney general may bring a civil action in superior court
against the person"). BPI has not persuaded us that, as the
prosecuting authority, the Attorney General could be compelled
to add O'Connor, Whitaker, or Superior as defendants to the
enforcement action. See Commonwealth v. Newton N., 478 Mass.
747, 755–756 (2018), quoting Shepard v. Attorney Gen., 409 Mass.
398, 401 (1991) ("Judicial review of decisions which are within
8 the executive discretion of [a prosecutor] 'would constitute an
intolerable interference by the judiciary in the executive
department of the government and would be in violation of art.
30 of the [Massachusetts] Declaration of Rights'").
Furthermore, BPI has not demonstrated that the absence of
any of those parties "impair[ed] or impede[d] [BPI's] ability to
protect [its] interest" in the enforcement action. Mass.
R. Civ. P. 19, 365 Mass. 765 (1974) (defining indispensable
parties). See Raytheon Co. v. Continental Cas. Co., 123 F.
Supp. 2d 22, 32 (D. Mass. 2000) (under cognate Federal rule,
movant bears burden of showing why absent party should be
joined). The evidence presented to the first judge did not show
that O'Connor or Whitaker knew or should have known about the
falsified CPRs and, although Superior did know that the CPRs
were false, it acknowledged its liability before BPI's motion to
dismiss was filed.
Finally, as we discuss, infra, we are not persuaded that
BPI had any right to seek contribution from O'Connor, Whitaker,
or Superior.
b. BPI's attempts to bring third-party contribution
claims. We likewise discern no abuse of discretion in the first
judge's denial of BPI's motions to add O'Connor, Whitaker, and
Superior as third-party defendants. See Barbosa v. Hopper
Feeds, Inc., 404 Mass. 610, 622 (1989) (abuse of discretion
9 standard). In its first motion to add O'Connor, Whitaker, and
Superior, BPI sought to bring third-party claims for
contribution and indemnification against those entities. In
denying that motion, the first judge properly relied on Federal
law interpreting the Federal False Claims Act (FCA) for guidance
on the question whether BPI had a right of contribution or
indemnification for the Commonwealth's MFCA claims, see, e.g.,
Rosenberg v. JPMorgan Chase & Co., 487 Mass. 403, 409 n.12
(2021); Scannell v. Attorney Gen., 70 Mass. App. Ct. 46, 49 n.4
(2007), and BPI has not persuaded us that the first judge erred
in concluding that it had no such right. See United States v.
Dynamic Research Corp., 441 F. Supp. 2d 259, 264 (D. Mass.
2006).
In a second motion to add the same entities as third-party
defendants, BPI argued that it was entitled to bring
"independent" claims under G. L. c. 93A, § 11, and (as to
Superior) a breach of contract claim. Because we, like the
first judge, conclude that the proposed claims were simply BPI's
attempt to reframe its earlier claims for indemnification and
contribution, we are satisfied that the first judge's denial of
the second motion was correct. See Quinn v. Walsh, 49 Mass.
App. Ct. 696, 704 (2000) ("We are not bound by the label [the
party has] ascribed to the facts alleged, but look to the
10 allegations themselves to determine the cause of action"
[citations omitted]).
In a similar vein, we agree with the Commonwealth's view
that BPI's challenges to the second judge's entry of partial
summary judgment in favor of the Commonwealth, and to the second
judge's subsequent entry of summary judgment as to damages, are
merely reframed arguments for contribution. Reviewing the
second judge's first summary judgment determination de novo, see
Gibney v. Hossack, 493 Mass. 767, 770 (2024), we are satisfied
that judgment in favor of the Commonwealth on BPI's liability
was proper. The Commonwealth's claims under the MFCA were not
explicitly tort claims, nor were they tort claims "in essence."
Thomas v. EDI Specialists, Inc., 437 Mass. 536, 539 (2002),
citing Wolfe v. Ford Motor Co., 386 Mass. 95, 99 (1982).
Because O'Connor, Whitaker, and Superior were thus not "joint
tortfeasors" as to BPI, G. L. c. 231B, § 4, did not apply to
this case and did not act to reduce BPI's damages by the amount
of Superior's settlement payment.9 See Tritsch v. Boston Edison
Co., 363 Mass. 179, 182-183 (1973). Summary judgment on damages
was proper, and the second judge correctly calculated
9 Given our conclusion, we need not address the admissibility of a July 23, 2021 letter concerning the Commonwealth's settlement with Superior.
11 compensatory damages of $513,079.84, plus $72,000 in attorney's
fees.
2. Adequacy of the Commonwealth's complaint. As part of
its second cross motion for summary judgment, BPI argued that
the Commonwealth's complaint failed to meet the particularity
requirements of Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974)
(rule 9 [b]). Rule 9 (b) provides, "[i]n all averments of
fraud, . . . the circumstances constituting fraud[] . . . shall
be stated with particularity."
The Commonwealth's complaint alleged that, between 2017 and
2018, BPI "us[ed], or caus[ed] to be created and used, at least
[thirty-two] fraudulent CPRs," and that BPI was responsible for
thirty-two false payment demands prepared by Superior.10
Assuming without deciding that BPI's challenge to the
particularity of the Commonwealth's fraud allegation was
timely,11 we are satisfied that, read as part of the entire
10BPI does not dispute that presentment of the CPRs was a requirement for its payment requests to both Westport and Middleborough. Because we conclude that the Commonwealth was not required to prove that BPI made the presentments (only that it was responsible for the false CPRs, and that it used those CPRs in its efforts to obtain payments under its contracts with each of the towns), BPI's argument that the second judge overlooked questions of material fact in granting summary judgment is unavailing.
11Because a rule 9 (b) challenge tests the adequacy of a plaintiff's fraud allegation, such arguments are (as the Commonwealth correctly notes) generally raised in motions to
12 complaint, the Commonwealth's allegations describing BPI's
fraudulent conduct met the requirements of rule 9 (b), and made
out a claim under G. L. c. 12, § 5B (a) (2). See United States
ex rel. Harris v. Bernad, 275 F. Supp. 2d 1, 6 (D.C. Cir. 2003)
(to prove violation of Federal corollary of § 5B (a) (2),
plaintiff must show, inter alia, that defendant knowingly used
false record to create claim to obtain payment from government;
proof that defendant made actual false record itself is not
required). Cf. United States v. Bornstein, 423 U.S. 303, 309,
313 (1976) (considering challenge to FCA prosecution based on
defendant submitting false claim to government for payment).
Accordingly, the second judge did not err in rejecting BPI's
rule 9 (b) challenge.
3. Calculation of damages. We review de novo the second
judge's entry of summary judgment on the amount of damages for
which BPI is liable. See Auto Flat Car Crushers, Inc. v.
Hanover Ins. Co., 469 Mass. 813, 820 (2014). The second judge
properly identified the underpayment to Superior's carpenters
occasioned by BPI's fraudulent conduct -- $256,539.92 -- as the
Commonwealth's "[a]ctual damages." See United States ex rel.
Concilio De Salud Integral De Loíza, Inc. v. J.C. Remodeling,
dismiss. See, e.g., Friedman v. Jablonski, 371 Mass. 482, 483 & n.2 (1976). That was not the case here.
13 Inc., 962 F.3d 34, 42 (1st Cir. 2020). Consistent with G. L.
c. 12, § 5B (a),12 the second judge then trebled the actual
damages, arriving at a figure of $769,619.76. The second
judge's decision to do so before reducing BPI's damages by the
compensatory amount of Superior's settlement ($256,539.92) was
correct, see Bornstein, 423 U.S. at 316-317, as was the second
judge's calculation of BPI's compensatory damages after that
reduction as $513,079.84.13 BPI was entitled to -- and obtained
-- a setoff equal to the amount of Superior's compensatory
settlement.14 See id.
12As relevant here, one who violates G. L. c. 12, § 5B (a), "shall be liable to the commonwealth . . . for a civil penalty of not less than $5,500 and not more than $11,000 per violation, . . . plus 3 times the amount of damages, including consequential damages, that the commonwealth sustains because of such violation." G. L. c. 12, § 5B (a).
13This calculation, which reduced BPI's payment obligation by the amount of compensatory damages to be paid by Superior under its settlement agreement with the Commonwealth, reflected a pro tanto approach. See MFS Mun. Income Trust v. American Med. Int'l, Inc., 751 F. Supp. 279, 282 (D. Mass. 1990) (pro tanto rule provides nonsettling defendant with setoff in amount of settlement). To the extent that BPI argues otherwise, it is mistaken.
14We are not persuaded that BPI was entitled to a setoff for the amount Superior agreed to pay in penalties. Such a result would run counter to both the compensatory and punitive purposes of the MFCA. See Massachusetts v. Schering-Plough Corp., 779 F. Supp. 2d 224, 234-235 (2011) (comparing compensatory and punitive features of MFCA and FCA).
14 Furthermore, we are unpersuaded that the second judge
abused her discretion by declining to consider records that BPI
submitted in support of its attempt to modify the judgment for
damages; the records were unauthenticated hearsay documents
purportedly reflecting tax-withholding payments from Superior to
a third party: payroll company ADP.15 See generally Locator
Servs. Group, Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837,
865 (2005), quoting Madsen v. Erwin, 395 Mass. 715, 721 (1985)
("[h]earsay in an affidavit is unacceptable to defeat summary
judgment").
As for BPI's remaining arguments, we have reviewed them all
and find them to be without merit. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954) ("Other points, relied on by
the defendant[] but not discussed in this [decision], have not
15 The fact that the hearsay records were attached to the affidavit of an investigator for the AGO did not transform the records into admissions of a party opponent. Cf. Mass. G. Evid. § 801(d)(2) (2025). Similarly, the affidavit did not purport to establish the attached documents as business records (and did not do so). See id. at § 803(6)(A).
15 been overlooked. We find nothing in them that requires
discussion").
Conclusion. The judgment is affirmed, as is the order
denying BPI's motion for relief from judgment.
So ordered.
By the Court (Hand, Grant & Wood, JJ.16),
Clerk
Entered: June 20, 2025.
16 The panelists are listed in order of seniority.