409 Mass. 514 (1991), Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

Citation:409 Mass. 514, 567 N.E.2d 912
Case Date:March 11, 1991
Court:Supreme Judicial Court of Massachusetts

Page 514

409 Mass. 514 (1991)

567 N.E.2d 912




Supreme Judicial Court of Massachusetts, Middlesex.

March 11, 1991

Argued Dec. 4, 1990.

Bryan G. Killian (A. Neil Hartzell, with him), for defendant.

Alan J. Schlesinger, pro se.


GREANEY, Justice.

The plaintiff, Alan J. Schlesinger, filed a complaint in the Superior Court seeking to enjoin representatives of the defendant, Merrill Lynch, Pierce, Fenner & Smith, Inc., from calling him on the telephone at his law office to solicit the sale of securities. After discovery was completed, the defendant moved for summary judgment pursuant to Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). A judge of

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the Superior Court granted summary judgment in favor of the plaintiff, and entered an order permanently enjoining the defendant from making telephone calls to the plaintiff's office. The defendant has appealed, and we transferred the case to this court on our own motion. We agree with the defendant that scattered telephone calls to the plaintiff's place of business over a period of years did not constitute an actionable invasion of the plaintiff's privacy under G.L. c. 214, § 1B (1988 ed.). Because the defendant was entitled to judgment as matter of law, we reverse the order and direct the entry of judgment for the defendant.

The material facts are not in dispute. The plaintiff is an attorney whose office is in Newton. For several years the plaintiff, who has previously purchased and owned securities, received telephone calls from sales representatives of the defendant, at [567 N.E.2d 913] the rate of three to five per year. Before May, 1988, the plaintiff did not keep specific records of the names of the callers and dates of the calls. After that date, he was able to identify three specific calls occurring on May 23, 1988, June 3, 1988, and August 11, 1988. The plaintiff has no recollection of any other specific calls, but indicated generally that he received calls three to five times per year from the defendant's representatives. These were "cold calls" attempting to sell him securities, and they were made only to the plaintiff's law office. The plaintiff has a receptionist who answers all his telephone calls. The defendant's representatives sometimes did not identify themselves or their purpose in calling when speaking to the receptionist.

It is the plaintiff's policy to take all his calls, even if the caller does not identify himself or herself to the receptionist, because any caller might be a potential client who wishes to speak confidentially with the plaintiff. Consistent with this policy, the plaintiff accepted or returned all the calls from the defendant's representatives, including one which required the plaintiff to make a toll call to New York. The calls were brief, concerned only business, and did not have any effect on the plaintiff's daily routine or the conduct of his law practice.

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On December 6, 1984, the plaintiff wrote to the defendant, indicating that he did not wish to buy securities and did not wish to be called by the defendant's sales representatives for any purpose. The calls continued, however, and the plaintiff wrote a second letter on November 10, 1985, demanding that the defendant's representatives stop their telephone solicitations. The calls still continued. The defendant employs over 10,000 sales representatives who solicit business by calling customers and potential customers on the telephone. The representatives often obtain their lists of persons to call from sources other than the defendant. 1 The plaintiff's recollection of the callers' identities indicates that the calls were made by different people.

On this record, the judge concluded that the plaintiff was entitled to summary judgment and entered the permanent injunction at issue. 2 The question before us is one of law--

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whether on the undisputed facts, a violation of G.L. c. 214, § 1B, has been established so as to support the entry of the permanent injunction. 3

General Laws c. 214, § 1B (1988 ed.), the privacy statute, provides in full that "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall [567 N.E.2d 914] have jurisdiction in equity to enforce such right and in connection therewith to award damages." The judge agreed with the plaintiff's theory of liability under the statute, which was essentially that the defendant's telephone calls to his office interfered with his privacy because they constituted an intrusion on his solitude and violated his interest in being left alone. We have not yet addressed this precise theory under the statute. 4

The plaintiff claims that the adjectives "unreasonable," "substantial," and "serious" are all connected by the disjunctive "or" and, therefore, set forth three alternative standards under the statute. Under the...

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