David Bunis - Lawyers of the Year 2006
Publlished: Massachusetts Lawyers Weekly, December 25, 2006
Name: David A. Bunis
Born: July 22, 1961; Plainfield, N.J.
Education: Boston University School of Law (1987); Brandeis University (1983)
Bar admission: 1987
Professional experience: Dwyer & Collora (1991-present); Greater Boston Legal Services (1990); Nutter, McClennen & Fish (1987-1991)
Professional affiliations: American, Boston and Massachusetts bar associations
Though the Superior Court's Business Litigation Session has only been around for five years, David A. Bunis already feels right at home there. This past year Bunis secured rulings in two separate cases that could alter the business-law landscape considerably.
In one case, Bunis successfully argued that Bank of America could bring a Chapter 93A claim against the auditor of a borrower who defaulted on a loan. The case is considered to represent a major expansion in the area of Chapter 93A liability.
Bunis' other success this year established that an informal e-mail exchange was sufficient to modify an employment agreement that required all changes to be in writing and signed by both parties. According to Bunis, the decision represents the new reality of doing business in a rapidly advancing technological age.
These victories follow closely on the heels of a 2004 case in which Bunis secured a $7.2 million judgment for his client in the BLS. So it's probably no surprise that Bunis has nothing but positive things to say about the still relatively new session.
"I think the Business Litigation Session has been a tremendous success," he remarks. Judges and adversaries in the session would no doubt say the same of Bunis.
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Q. It's been suggested that the Bank of America case could dramatically expand the reach of Chapter 93A. How so?
A. Well, a traditional view of Chapter 93A is that it only applies to parties in a commercial relationship. If you read that term narrowly, you could read it to only apply to parties with a contractual relationship to each other. This case involved a party that didn't have a contractual relationship with Bank of America. Yet, in the context of this case, where the auditing firm was providing information for the guidance of a non-client, the judge rejected the auditor's argument that that didn't constitute a commercial relationship under 93A. So the reach of 93A clearly applies beyond parties who are in that direct contractual relationship and expands beyond to include businesses that come into contact with each other but don't necessarily have a contractual relationship, or what lawyers call privity.
Q. In what contexts outside the accountant-liability realm could this case have an impact?
A. Every day in corporate boardrooms and other places, opinion letters from lawyers and other professionals are provided for guidance to parties to transactions. Businesses often rely on those types of legal opinion letters, financial statements audited by CPAs, or plans or specifications stamped by a licensed architecture or design professional. In all those instances, non-client businesses rely on information provided by third parties. In those sorts of situations, if a third party negligently supplies that information, at least in Massachusetts, those businesses can be subject to liability not only for negligence, but for unfair and deceptive business practice under 93A.
Q. Your big victory here was surviving a motion to dismiss on your 93A theory. What do you see as the biggest hurdles heading toward trial?
A. One, auditors fight these cases tooth and nail and are well-represented by excellent lawyers, including the lawyers that represent the defendant in this case. And two, the issues — the financial and accounting issues in these auditor cases are often complex and detailed. The real skill a lawyer can bring to these cases is understanding the complex issues and translating them into terminology that can best persuade a judge or jury who may not be familiar with these complicated terms or concepts.
Q. In the case of Tomer v. Hollister Associates, Inc., you convinced a judge that a string of e-mails was sufficient to execute a change in an employment agreement. What impact could a ruling like this have on how people do business?
A. People in business will be careful about what they say on e-mail. E-mails are becoming a routine mode of communication and e-mails are part of every complex business litigation case that I've been involved [in] in recent memory. Lawyers are becoming much more comfortable in dealing with e-mails as evidence. Judges are becoming more comfortable in admitting e-mails into evidence. And jurors, frankly, are very comfortable in reading e-mails because that's the way they're speaking with friends and colleagues at work. All of us are becoming much more comfortable with e-mail and its business reality. The impact of this case is that what we say on e-mail can come back to haunt us in court.
Q. You've also commented that a ruling like this could be a valuable tool for lawyers at summary judgment. What application could this ruling have to other types of disputes?
A. I think it's got wide applicability to all sorts of business cases in which the parties have committed themselves in writing over e-mail to a particular position. Those positions are often in conflict with positions parties later — sometimes years later — want to take in litigation. You can imagine all the different business contexts where e-mail is relevant. For example, in the drafting of a contract, drafts shoot back and forth on e-mail constantly. I've had other cases where lawyers and clients e-mail comments accompanying drafts of agreements and have been admitted into evidence at subsequent trials because they reflect what they were thinking at the time, as opposed to what they now claim they were thinking now that they have a vested interest in the outcome.
Q. Both of these cases were handled in the Business Litigation Session, which has now been around for more than five years. How has the existence of this specialized court affected your practice?
A. The judges have developed a solid body of business caselaw that gives clients confidence that their cases will be considered fairly by experienced judges and that there will be consistency from one case to the next. As for my practice, I can advise my client that based on the body of existing Business Litigation Session caselaw, there's likely to be a particular outcome given a particular set of facts. That sort of consistency and predictability is what businesses are looking for.
Q. Does the existence of this type of court enhance the overall business climate in the commonwealth?
A. Yes. I think the Business Litigation Session has earned its reputation as a fair court where anyone that brings a case will be treated fairly. That's what businesses are looking for. For a long time, cases in Massachusetts state courts were routinely removed to federal District Court whenever they involved complicated sets of facts from business transactions. I'm seeing frequently those cases now staying in state courts, particularly in the Business Litigation Session.
Q. What big differences do you notice between handling these types of cases in the business court as opposed to the general sessions?
A. The biggest difference is that the judges in the Business Litigation Session stay with the case for the duration. That's the sort of consistency that really serves the cases very well. In other sessions of the Superior Court, the judges rotate, and a case may be exposed to two, three or four different judges over the lifetime of the case. That can be frustrating for the clients and the lawyers. For the judges too, because they may not be given the opportunity to really dig into a particularly interesting case or a case that warrants some extra attention. In the Business Litigation Session, where you get one judge for each case, it brings consistency to each case that historically only existed in the federal District Court.
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David Bunis on ...
His most memorable moment at law school: Graduating
Highlight of his legal career: Fifteen years ago I represented a student at Boston University who was a victim of mistaken identity in a criminal case. We ended up winning when I was able to get a picture of him taken late at night at an ATM in Kenmore Square that showed he was not at the location at the time the crime was being committed. It was a terrific shot in the dark. It literally saved his life. He was facing 25 years to life in prison. More recently, I'm proud of the [Dean Foods Co., et al. v. Pappathanasi, et al.] decision in 2004, which was a $7.2 million judgment I won after a long trial in the Business Litigation Session.
How he celebrates a big win: I go out to dinner with my wife and kids.
How he deals with a big loss: I go out to dinner with my wife and kids.
His role models: My parents really taught me to respect other people and that there's no substitute for hard work.
One thing he would change about the practice of law: I'd try to make it less contentious and more collegial among practicing lawyers. Lawyers on cases have so much in common with each other in that we have a mutual interest in representing our clients zealously, effectively and efficiently, and if you put aside the contentiousness, then we can get a lot more accomplished.
What he does to relax: I've been a Patriots season ticket holder since the early 1990s. I enjoy going to football games with my friends and my kids. I'm also a biker and so I ride each year in the Pan-Mass Challenge for recreation and relaxation, but also to raise money for the Dana Farber Cancer Institute.
His all-time favorite film or book: "My Cousin Vinny" for film; books: "Grapes of Wrath" and "Crime and Punishment"
One thing about him that might surprise other people: No one will be surprised, but I am a maniacal Patriots fan.
What has kept him in the practice of law: The challenge of learning the details of a new area of law and learning the details of my clients' businesses and mastering the facts in a way that I can best advocate for the client
The biggest challenge facing Massachusetts courts: I think that our judges are excellent but they need more support and resources. And I think lawyers need to do a better job of advocating for our judges.
The most important legal decision of the last 25 years: Bush v. Gore — who knows what the world would be like if that election had turned out differently.
Eric T. Berkman, formerly a reporter at Massachusetts Lawyers Weekly, is a freelance writer.
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