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
23-P-112
TONGDA FRUIT JUICE AND BEVERAGE LIQUAN CO., LTD. & others1
vs.
SONO INTERNATIONAL, LTD.2 & others;3 HENGTONG JUICE USA INC. & others,4 defendants-in-counterclaim.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns a business dispute between a group of
affiliated apple juice concentrate producers known as Hengtong5
and a purchaser of Hengtong's products, Steinhauser, Inc.
(Steinhauser). After Steinhauser failed to pay for product
1Shaanxi Hengtong Fruit Juice & Beverage Group Co., Ltd.; Shaanxi Hengxing Fruit Juice Co., Ltd.; and Gansu Tongda Fruit Juice & Beverage Co., Ltd.
2 Doing business as Sono Global.
3 Steinhauser, Inc. and Darren Jenkins.
4Binder International GMBH & Co KG, Binder International of Boston LLC, Peter Chakiris, and Thomas Nothelfer.
5Where the distinction between any of the Hengtong affiliates is immaterial to our discussion, we refer to all the Hengtong affiliates interchangeably as "Hengtong." delivered under various contracts, Hengtong brought suit against
Steinhauser, Steinhauser's parent company, Sono International,
Ltd. (Sono), and a Steinhauser employee named Darren Jenkins.
Steinhauser counterclaimed against Hengtong for civil
conspiracy, aiding and abetting, and violation of G. L. c. 93A.6
A Superior Court judge bifurcated Hengtong's claims from
Steinhauser's counterclaims, and Hengtong's claims proceeded to
a jury-waived trial before another Superior Court judge.7 The
trial judge found Steinhauser and Sono liable for breach of
contract, Sono liable for violation of G. L. c. 109A, and all of
the defendants liable for violation of G. L. c. 93A.
Thereafter, a third Superior Court judge entered summary
judgment in Hengtong's favor on Steinhauser's counterclaims.
After a judgment entered, Steinhauser and Jenkins appealed.8 We
affirm.
6 Steinhauser also asserted claims against several additional defendants-in-counterclaim, including another Hengtong affiliate. With the exception of the Hengtong affiliate, Steinhauser stipulated to the dismissal of its claims against the additional defendants-in-counterclaim.
7 As we explain, the trial was interrupted by the COVID-19 pandemic. The judge heard some of the testimony in person prior to the start of the pandemic and some of the testimony by video months later.
8 Sono did not appeal.
2 1. Background. a. Hengtong's claims. We recite the
following facts as found by the trial judge. See Cummings
Props., LLC v. Hines, 492 Mass. 867, 868 & n.3 (2023).9
Hengtong is a group of Chinese companies that make and sell
apple juice concentrate. Steinhauser, which was acquired by
Sono in 2012, was a Massachusetts-based company that purchased
and sold fruit juice products. Jenkins, a resident and citizen
of the United Kingdom, was a director of Steinhauser and Sono.
Steinhauser mostly dealt in "back-to-back" sales where (1)
a client would reach out to Steinhauser for a certain amount of
product and (2) Steinhauser would negotiate its purchase and
resale of the product at the same time, thereby guaranteeing
that Steinhauser would get paid. For many years, Hengtong was
one of Steinhauser's largest suppliers. However, that
relationship came to an end in 2017 after Steinhauser failed to
pay Hengtong approximately $3.4 million on four contracts for
back-to-back sales that Steinhauser and Hengtong entered into
between November 2016 and January 2017. At trial, there was no
dispute that Steinhauser breached the contracts by not paying
Hengtong. The parties' dispute instead centered on whether
9 The trial judge's decision included over fifty pages of detailed findings. With one minor exception, which we note, infra, Steinhauser and Jenkins do not argue that any of those findings were clearly erroneous.
3 Steinhauser acted unfairly toward Hengtong. Accordingly, we
describe in some detail the manner in which Steinhauser operated
its business.
Beginning in September 2015, Steinhauser funded its
business operations primarily through a $30 million revolving
line of credit from East West Bank (EWB). The line of credit
(EWB loan) contained covenants requiring Steinhauser to receive
EWB's "prior written consent" before making "any loans or
advances," "[i]nvestments," or "transaction[s] with any . . .
[a]ffiliate . . . on terms any less favorable than those which
might be obtained at the time from [p]ersons who are not such an
. . . [a]ffiliate." However, Steinhauser knew that "unless and
until EWB objected and enforced the covenants in the loan
documents, the EWB loan to Steinhauser presented an opportunity
. . . to move cash in related-party transactions" among the
various affiliates of Steinhauser's parent company, Sono.
In 2016, using funds from the EWB loan, Steinhauser began
making prepayments to Sono affiliates for juice products.10
Steinhauser did so to diversify its product base and minimize
10Prepayments in the juice industry are standard. As a general matter, prepayments are often necessary so that farmers have funds to plant, harvest, and deliver fruit. Industry standard calls for buyers and sellers to memorialize prepayment transactions with written contracts that include terms regarding delivery deadlines.
4 its reliance on Hengtong. However, Steinhauser also did so
without entering into written contracts or obtaining enforceable
commitments for delivery. In addition, Steinhauser's
prepayments to Sono affiliates were made without EWB's approval,
in violation of the EWB loan covenants. Steinhauser also used
funds from the EWB loan, without EWB's consent and in violation
of the EWB loan covenants, to loan over $2 million to a Sono
affiliate for the purchase of a juice factory in Brazil called
Cajuba (Cajuba loan).11
Even though Steinhauser repeatedly violated the EWB loan
covenants, EWB agreed on multiple occasions to forbear from
seeking full payment. With respect to the Cajuba loan in
particular, EWB informed Steinhauser in early 2017 that it
deemed the investment a violation of the EWB loan covenants.
However, EWB agreed to forbear from seeking full payment on the
conditions, among others, that (1) Steinhauser obtain repayment
of the Cajuba loan by May 30, 2017, and (2) Steinhauser use
those funds to reduce the outstanding principal balance of the
EWB loan by $2.37 million. EWB later extended the May 30, 2017,
deadline to July 31, 2017. Although Steinhauser never obtained
repayment of the Cajuba loan, Steinhauser did reduce the
11Steinhauser initially provided the money as an equity investment. For purposes of our discussion, we need not dwell on why and how the investment became a loan.
5 outstanding principal balance of the EWB loan by $2.37 million
shortly after the July 31, 2017 deadline.
By August 2017, Steinhauser (through Jenkins) knew that EWB
would not continue to "forbear for long" and that EWB was likely
to terminate the loan, which would make it impractical for
Steinhauser to stay in business.12 Indeed, faced with
Steinhauser's repeated violations of the EWB loan covenants, EWB
notified Steinhauser on September 12, 2017, that it was
terminating the EWB loan.13 The termination of the EWB loan
spelled Steinhauser's demise.
It is against this backdrop that Hengtong's dispute with
Steinhauser arose. In 2016, Steinhauser began to accrue a
12The trial judge found that Jenkins, specifically, knew that EWB was likely to terminate the loan and that Jenkins knew that termination of the loan would make it impractical for Steinhauser to stay in business. Jenkins testified otherwise, but the trial judge did not credit that testimony and found that Jenkins, as an experienced businessperson with full knowledge of Steinhauser's repeated violations, knew the consequences of Steinhauser's failure to meet the EWB deadline.
13The trial judge found that Steinhauser's misuse of the EWB loan "caused termination of that loan." Steinhauser and Jenkins argue that this finding was clearly erroneous, but it was supported by an e-mail message from EWB to Steinhauser stating that EWB would not "be in a position to further amend the forbearance agreement" if Steinhauser did not replace the funds used to make the Cajuba loan. Although Steinhauser and Jenkins point to other evidence, obtained after trial, showing that EWB cited Steinhauser's weak financial performance as the official reason for terminating the EWB loan, we cannot say on the record before us that the judge's finding was clearly erroneous.
6 large, unpaid balance with Hengtong. Despite Steinhauser's
unpaid balance, Hengtong did not consider withholding contracts
from Steinhauser given their longstanding business relationship.
Thus, from November 2016 to January 2017, Steinhauser and
Hengtong entered into the four contracts for back-to-back sales
mentioned above. At the same time, Hengtong pressed Steinhauser
to pay the overdue amounts, and the two companies entered into
payment plans in January and May 2017 to reduce Steinhauser's
unpaid balance. Based on Steinhauser's representations that it
would pay, Hengtong shipped product to Steinhauser pursuant to
the four back-to-back contracts. Steinhauser's representations
were misleading because (1) Steinhauser's ability to pay
depended on its receipt and sale of the juice products from Sono
affiliates for which Steinhauser had prepaid and (2) receipt of
that product was unrealistic where Steinhauser had not set
enforceable delivery commitments. Because of payment delays,
Hengtong stopped shipping product to Steinhauser in June 2017.
Thereafter, at a time when Steinhauser remained in debt to
Hengtong and Steinhauser's demise was imminent and expected
given the realities of the EWB loan, Steinhauser continued
making prepayments to Sono affiliates. As the trial judge
found, "[t]he supposed justification [for the prepayments] –-
anticipated receipt of product after the growing season –- was
pretextual in a context where Steinhauser's demise was imminent
7 and expected." Rather, the prepayments were intended to defraud
Hengtong.
At all relevant times, Jenkins was the "major decision
maker" for Steinhauser. Although Jenkins resided in the United
Kingdom, he directed Steinhauser's operations through electronic
and oral communications with Steinhauser employees located in
Massachusetts. Among other things, Jenkins directed employees
to (1) make the prepayments to Sono affiliates and (2) enter
into the payment plans with Hengtong.
b. Steinhauser's counterclaims. As noted, Steinhauser
counterclaimed against Hengtong for civil conspiracy, aiding and
abetting, and violation of G. L. c. 93A. These counterclaims
were based on allegations that Hengtong helped a former
Steinhauser consultant, Thomas Nothelfer, and a former
Steinhauser employee, Peter Chakiris, divert business to a
competing business named Binder International of Boston LLC
(Binder).14 Where Steinhauser's counterclaims were dismissed on
summary judgment, we construe the facts from the summary
judgment record in the light most favorable to the nonmoving
party, here Steinhauser. See Cesso v. Todd, 92 Mass. App. Ct.
131, 132 (2017).
14Steinhauser also asserted claims against Nothelfer, Chakiris, and Binder, but Steinhauser stipulated to the dismissal of those claims.
8 Nothelfer worked for Steinhauser under a consulting
agreement. Nothelfer served as the president of Steinhauser
until September 6, 2016, and as a consultant until March 31,
2017, when he left the company. Nothelfer's consulting
agreement did not contain any express noncompetition or
nonsolicitation covenants. Chakiris worked for Steinhauser
under an employment agreement until February 28, 2017, when he
left the company. Chakiris's employment agreement included
covenants not to compete with Steinhauser or to solicit
Steinhauser's clients while employed by Steinhauser and for one
year thereafter. However, when Chakiris resigned, Steinhauser
agreed to relieve him of the noncompetition covenant and to
amend the nonsolicitation covenant. As amended, the
nonsolicitation covenant prohibited Chakiris only from
soliciting certain clients for six months. After leaving
Steinhauser, Nothelfer and Chakiris both worked for Binder.
In December 2016, while Nothelfer and Chakiris were working
for Steinhauser, Nothelfer learned that one of Steinhauser's
clients wanted to make a large purchase of Hengtong's products
through Steinhauser. Nothelfer provided this information to
Binder so that Binder could make an offer for the client to
purchase the product through Binder instead. Nothelfer also
arranged a meeting with Hengtong "to explain everything . . . in
the quiet." After Nothelfer met with Hengtong, Hengtong
9 conveyed to the client a preference for working with Binder, and
the client placed its order through Binder.
In March 2017, while Nothelfer was still consulting for
Steinhauser but after Chakiris had left, Nothelfer obtained
information regarding an offer that Steinhauser was making to
another client. Nothelfer gave the information to Chakiris, who
reverse engineered the offer so that Binder could make a lower
offer of its own. Again, Hengtong supported Binder's offer, and
2. Discussion. a. Bifurcation. First, we review the
decision to bifurcate Hengtong's claims from Steinhauser's
counterclaims. Reviewing for abuse of discretion, see Cambridge
Trust Co. v. Commercial Union Ins. Co., 32 Mass. App. Ct. 561,
565 (1992), we discern none. Rule 42 (b) of the Massachusetts
Rules of Civil Procedure permits judges to order separate trials
"in furtherance of convenience or to avoid prejudice, or when
separate trials will be conducive to expedition and economy."
Mass. R. Civ. P. 42 (b), as amended, 423 Mass. 1402 (1996).
Here, the claims and counterclaims related to different
commercial transactions. Hengtong's claims concerned
Steinhauser's decision to funnel money to various Sono
affiliates instead of paying Hengtong for product that
Steinhauser had already received. Steinhauser's counterclaims
concerned Hengtong's decision to stop selling product to
10 Steinhauser and, instead, to start selling the same product to
Binder. In this context, the claims and counterclaims involved
different evidence, and bifurcation was within "the range of
reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014).
Steinhauser and Jenkins argue prejudice resulting from the
bifurcation -- i.e. that they should have been able to introduce
evidence at trial showing that Steinhauser was still trying to
win contracts in late 2016 and early 2017 and that Hengtong
improperly diverted that business to Binder. Steinhauser and
Jenkins suggest that this evidence related to whether both
Steinhauser and Hengtong knew or should have known that
Steinhauser would be unable to pay pursuant to the payment
plans. The argument is unpersuasive because it assumes that
Steinhauser would have been able to pay had it won the
contracts. As the trial judge found, however, Steinhauser's
ability to pay hinged on its receipt and resale of the juice
products from Sono affiliates for which Steinhauser had prepaid.
That finding is supported by the record and we thus discern no
error.
b. COVID-19 pandemic. Second, we review the decision to
hold some of the trial by video, and briefly describe the
timeline of events leading up to that decision. On March 5 and
13, 2020, the trial judge heard the direct examination of
11 Hengtong's main witness and part of his cross-examination in
person. Then, the COVID-19 pandemic closed the courts and the
trial was suspended. The trial judge initially waited to see if
the trial could be resumed in person. By June 2020, it still
was not possible for the parties to hold the trial in person,
and Hengtong presented the remainder of its case-in-chief in
June and July 2020 via video. However, because all of the
defendants -- Steinhauser, Sono, and Jenkins -- objected to
proceeding by video, the trial judge waited an additional four
months, until October 2020, before requiring Steinhauser, Sono,
and Jenkins to present their defense by video.
By the time the trial judge required Steinhauser, Sono, and
Jenkins to proceed by video, an order of the Supreme Judicial
Court explicitly permitted "[c]ivil bench trials [to] be
conducted virtually in the discretion of the judge." See Third
Updated Order Regarding Court Operations Under the Exigent
Circumstances Created by the COVID-19 (Coronavirus) Pandemic,
No. OE-144 (June 24, 2020), https://www.mass.gov/doc/repealed-
sjc-third-updated-order-regarding-court-operations-under-the-
exigent-circumstances/download [https://perma.cc/5K7R-27AT]. In
light of the timeline of events described above, we discern no
abuse of the trial judge's discretion. Rather, it is evident
that the trial judge proceeded cautiously and resorted to
holding the remainder of the trial by video only after there had
12 been a significant delay. As the trial judge explained, waiting
to resume the trial in person would have "provide[d] little or
no benefit and would [have] [led] to a delay of unknown, but
undoubtedly great, length."15
c. Violation of G. L. c. 93A. Next, Jenkins argues that
the trial judge erred in finding him liable under G. L. c. 93A,
§ 11 because "the actions and transactions constituting . . .
the unfair or deceptive act or practice" did not meet § 11's
requirement of occurring "primarily and substantially" in
Massachusetts.16 We disagree.
15Steinhauser and Jenkins argue that the hybrid approach was fundamentally unfair because the judge benefited from hearing Hengtong's main witness in person but did not hear any of the defendants' witnesses in person. However, the trial judge stated that he "saw no material advantage, if any at all, in judging credibility or assessing demeanor through live remote testimony in this case." See Vazquez Diaz v. Commonwealth, 487 Mass. 336, 342 (2021) ("Although generally not preferable, with today's video conferencing technology, a virtual hearing can approximate a live physical hearing in ways that it could not previously"). The trial judge further stated that any advantage to hearing the in-person testimony had "dissipated" during the delay in the proceedings. The trial judge explained that, given the delay, he reviewed the recording of in-person testimony and that the recording was fresher in the judge's mind than the in- person testimony. The trial judge's reasoning and his review of the in-person testimony reflect a thoughtful approach to unprecedented circumstances.
16Whether conduct rises to the level of a G. L. c. 93A violation and whether the circumstances that gave rise to a c. 93A claim occurred primarily and substantially in Massachusetts are questions of law. See H1 Lincoln, Inc. v. South Washington St., LLC, 489 Mass. 1, 14 (2022); Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 470
13 As detailed in the trial judge's comprehensive findings,
Jenkins, as Steinhauser's "major decision maker," controlled a
course of action whereby Steinhauser (1) made prepayments to
Sono affiliates on lax conditions that jeopardized Steinhauser's
timely receipt of product and the EWB loan, (2) entered into
payment plans with Hengtong without disclosing that
Steinhauser's ability to pay depended on receiving product from
Sono affiliates, which was unlikely, and (3) when everything
inevitably came crashing down, continued making prepayments to
Sono affiliates instead of paying Hengtong. Hengtong, which was
unaware of Steinhauser's financial distress, shipped product to
Steinhauser in reliance on the payment plans. Jenkins's
conduct, at the very least, was akin to the sort of "stringing
along" conduct that has been found actionable under G. L.
c. 93A. See Connor v. Marriott Int'l Inc., 103 Mass. App. Ct.
828, 835 (2024).
As to whether "the actions and transactions constituting
. . . the unfair or deceptive act or practice occurred primarily
and substantially" in Massachusetts, G. L. c. 93A, § 11, the
test does not turn on any specific factor, see Kuwaiti Danish
(2003). We accept the trial judge's subsidiary factual findings absent clear error but review the ultimate legal conclusions de novo. See H1 Lincoln, Inc., supra at 13-14; Kuwaiti Danish Computer Co., supra.
14 Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 473 (2003).
Rather, "a judge should, after making findings of fact, and
after considering those findings in the context of the entire
§ 11 claim, determine whether the center of gravity of the
circumstances that give rise to the claim is primarily and
substantially within the Commonwealth." Id. We focus on the
context of the entire claim, not just on where the actions and
transactions complained about occurred. See Auto Shine Car Wash
Sys., Inc. v. Nice 'N Clean Car Wash, Inc., 58 Mass. App. Ct.
685, 689 (2003).
In arguing that the center of gravity of the circumstances
is not primarily and substantially in Massachusetts, Jenkins
notes that he is a resident and citizen of the United Kingdom
who never visited Massachusetts in connection with the four
contracts at issue. This narrow argument focuses on Jenkins's
location without addressing the fact that Jenkins orchestrated
an unfair scheme that was carried out, at his direction, in
Massachusetts. See Makino, U.S.A., Inc. v. Metlife Capital
Credit Corp., 25 Mass. App. Ct. 302, 311 (1988) (argument
improperly looked at one act of deception in isolation).
Jenkins did so by directing employees who were working in
Massachusetts for a Massachusetts-based company to take actions
in Massachusetts. Thus, despite Jenkins's location in the
United Kingdom, the "center of gravity of the circumstances that
15 give rise to the claim is primarily and substantially" in
Massachusetts. Kuwaiti Danish Computer Co., 438 Mass. at 473.
Contrast Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622,
638 (1985) ("alleged representations made during a telephone
call or calls" between corporate officer of defendant in
Massachusetts and plaintiff in New York did not occur primarily
in Massachusetts within meaning of c. 93A).
d. Summary judgment. Lastly, Steinhauser argues error in
the dismissal of its counterclaims against Hengtong on summary
judgment. As noted, Steinhauser's counterclaims were based on
the idea that Hengtong, in supporting Binder's offers, assisted
Nothelfer and Chakiris in violating fiduciary duties owed to
Steinhauser.17 To defeat summary judgment on these claims,
Steinhauser had to point to some evidence in the record showing
17It is undisputed that Hengtong did not have an exclusivity agreement with Steinhauser and, ordinarily, would have been free to sell its products through any company of its choosing. Thus, whether Hengtong engaged in wrongdoing turns on whether Nothelfer and Chakiris owed any fiduciary duty to Steinhauser and whether Hengtong participated in a civil conspiracy or aided and abetted Nothelfer and Chakiris in breaching their fiduciary duties when they solicited clients to purchase Hengtong's products through Binder instead of Steinhauser. At least with respect to Nothelfer, who ceased being Steinhauser's president in September 2016 and who worked pursuant to a consulting agreement that did not include any noncompetition or nonsolicitation provisions, we express doubt that he owed any fiduciary duty to Steinhauser at the time of the alleged wrongdoing. Regardless, we assume for purposes of our review that Nothelfer did owe such a duty to Steinhauser.
16 that, among other things, Hengtong had "specific knowledge" of
the alleged wrongdoing on the part of Nothelfer and Chakiris.
Kyte v. Philip Morris Inc., 408 Mass. 162, 168-169 (1990).
Evidence showing that Hengtong had a "general awareness" that
Nothelfer and Chakiris may have been violating fiduciary duties
owed to Steinhauser is insufficient to defeat summary judgment.
Id. See Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91
Mass. App. Ct. 835, 847-848 (2017) (claims for civil conspiracy
and aiding and abetting breach of fiduciary duty require showing
that defendant knew of breach).
Here, the summary judgment record does not contain evidence
from which one could reasonably infer that Hengtong had specific
knowledge of any fiduciary duties that Nothelfer and Chakiris
were violating in December 2016 and March 2017. The evidence
showed that (1) Nothelfer did not disclose to Hengtong any of
the terms of his consulting agreement with Steinhauser and (2)
while Chakiris eventually told Hengtong that he could not "talk
to certain customers,"18 he did not disclose that, more
generally, he could not solicit certain clients. In arguing
that Hengtong's knowledge was greater than this, Steinhauser
points to e-mail messages from Nothelfer to Hengtong in January
The record is unclear as to precisely when this 18
disclosure occurred, but it occurred sometime after Chakiris started working for Binder.
17 and February 2017 saying that he was "[n]ot released so far from
Steinhauser" and asking Hengtong to communicate with him about
Binder business through "private" e-mail only. Even reading
these e-mail messages in the light most favorable to
Steinhauser, they do not demonstrate that Hengtong knew
Nothelfer had a fiduciary duty to Steinhauser, much less that
Hengtong knew it was breaching any such duty. Steinhauser also
points to evidence that a Hengtong representative received
commissions on the contracts with Binder but does not explain
how this demonstrates Hengtong's knowledge that Nothelfer or
Chakiris were violating any fiduciary duty owed to Steinhauser.
We conclude that Steinhauser's claims were properly
dismissed on summary judgment where the facts, construed in the
light most favorable to Steinhauser, do not show that Hengtong
had specific knowledge that either Nothelfer or Chakiris was
violating any fiduciary duty owed to Steinhauser, and where
Steinhauser's claim for violation of G. L. c. 93A was wholly
18 derivative of its claims for civil conspiracy and aiding and
abetting.19
Judgment affirmed.
By the Court (Milkey, Neyman & Hershfang, JJ.20),
Clerk
Entered: July 26, 2024.
19Hengtong requests attorney's fees incurred in connection with this appeal and is entitled to an appropriate share of its fees pursuant to G. L. c. 93A, § 11. Hengtong shall file a verified and itemized application for such fees and costs within fourteen days of the date of this decision, and Steinhauser and Jenkins will have fourteen days thereafter in which to file any opposition to the amounts requested. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
20 The panelists are listed in order of seniority.