Kenneth W. Salinger
How Judge Salinger decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
In a duty-to-defend or duty-to-indemnify dispute, he treats an insurer's own prior years of paying a claim, followed by an abrupt unilateral cutoff, as strong evidence the insured will suffer irreparable harm and is likely to succeed on the merits -- expect him to order a defense-cost injunction rather than let a defense lapse mid-litigation.
“The Court will exercise its broad discretion and allow that motion because it finds that HBIO and Biostage have proven that Medmarc is currently in breach of its duty to defend them in the underlying case, are very likely to succeed in proving that Medmarc has a continuing duty to pay for that defense, and will probably be irreparably harmed if Medmarc does not resume paying their defense costs.”
On a forum-selection or choice-of-law clause in an employment or commercial contract, he looks past the label of the clause to whether the party invoking it actually had a meaningful opportunity to negotiate -- a facially neutral Massachusetts choice-of-law/forum clause will not be enforced against a lower-bargaining-power party if the practical effect is unfair to them.
“A choice-of-law clause should not be upheld where, as here, the party resisting it did not have a meaningful choice at the time of negotiation.”
He credits a plain, unambiguous integration of a promise into a standard-form employment document (an onboarding checklist or agreement of standards) as binding on the employer, construing it the way an average employee would reasonably understand it -- a company's later, more restrictive internal practice will not override a written promise made at hiring.
“The Court must therefore interpret the Orientation Checklist and the Agreement of Standards in the way they would be understood by a typical, reasonable home health aide.”
In a constitutional challenge to an emergency executive order, he applies rational-basis review deferentially and will not fault the government for failing to choose the least restrictive alternative, even when the plaintiff persuasively identifies better options -- he distinguishes a policy he might have written differently from one that is unconstitutional.
“The Governor was not legally required to implement a different alternative or ensure that his emergency closure orders impose the smallest possible economic burden on adult-use marijuana establishments. ... Since the choice made by the Governor was constitutional, the Court may not second-guess it.”
Procedural preferences
On class certification he scrutinizes commonality and superiority hard rather than certifying broadly -- a c. 93A or consumer-protection class will be denied if resolving any given member's claim would require an individualized factual inquiry, even where the alleged practice was uniform.
“The Court finds that individualized inquiry would be required for each member of the proposed classes to determine whether Commerce paid or offered to pay them less than their vehicle's ACV, and thus to determine whether Commerce is liable to that class member for violating G.L. c. 93A.”
He treats a party's own extended participation in litigation -- filing dispositive motions, seeking the court's rulings -- as a waiver of a later-asserted right to compel arbitration, especially when the pivot to arbitration comes only after losing on the merits.
“Arctic Sand waived any right to compel arbitration by actively litigating this civil action and repeatedly seeking to invoke the court's jurisdiction to its benefit for six months, before abruptly changing course and attempting to force Shalaby into binding arbitration.”
Where an arbitration clause incorporates AAA (or similar) rules giving the arbitrator power to decide their own jurisdiction, he treats that as clear and unmistakable evidence the parties delegated arbitrability itself to the arbitrator -- he will not resolve a threshold arbitrability dispute himself once that delegation language is present.
“By incorporating AAA Rule 7(a) into the LLC Agreement, the parties clearly and unmistakably agreed that an arbitrator must decide whether a particular dispute that arguably is covered by that contract's arbitration clause is in fact arbitrable.”
Cautions
A party's own unsupported, argument-laden 'statement of facts' in summary-judgment briefing draws pointed criticism and will be read skeptically -- burying the record in disputed-but-uncited assertions does not create a genuine factual dispute in his courtroom.
“The parties filed an extraordinarily prolix 'statement of facts' that contains 277 numbered paragraphs, references 99 exhibits, and spans 142 pages. This statement was unusually difficult to navigate and use because it is filled with assertions that are not factual, facts that are not material, and allegations that are not supported by the evidence.”
A litigant that tries to 'pick off' a proposed class representative -- by tendering that person's individual relief without addressing the class -- will not succeed in mooting the action; he treats the class's own interest as an independent issue that survives resolution of the named plaintiff's personal claim.
“Defendants' decision to refund the named plaintiff's deposit did not resolve the claims of the many other class members, and thus did not obviate the need for Plaintiffs' counsel to continue to process the class claims.”
A summary-judgment affidavit from a witness who cannot show personal knowledge or authority to authenticate the records they discuss will be struck, even if a corrected, properly-sworn version is offered -- competence to testify is examined closely, not assumed.
“Ms. Reen does not say that she was a keeper of records for Fidelity, or even that she ever worked for Fidelity Brokerage Services in any other capacity. ... that does not establish that Reen has any personal knowledge as to the authenticity of these documents.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“The Court will deny the motion by the Peterson Oil parties and allow Plaintiffs' cross-motion to compel.”
“The Court will therefore allow the motion by Flynn and Commonwealth to compel arbitration of the claims against them, and will exercise its discretion to dismiss those claims without prejudice.”
“The Court will ... deny Pacific Life's follow-on request to stay the claims against it pending resolution of any arbitration against Flynn and Commonwealth.”
“The Court will allow in part the motion to dismiss by the Scintilla defendants. The Court will dismiss all claims asserted on behalf of MII ... In addition, the Court will dismiss many but not all of the Yanais' claims.”
“The Court will deny Plaintiffs' motion for partial judgment on the pleadings as moot, because the Yanais and MII must pursue in Israel their claim that the Omnibus Agreement is subject to and violates the Massachusetts usury statute.”
“The motion for summary judgment must be allowed in part with respect to Plaintiffs' claim for negligent misrepresentation because the undisputed facts show that Defendants did not owe any duty of care to Plaintiffs. This motion must be denied with respect to the other claims, however, because they turn on disputed facts.”
“The motion to strike is unavailing and must be denied because Ms. Hollenbeck's testimony is admissible as non-hearsay statements by a party's employee on a matter within the scope of her employment.”
“Eleven of the executive sessions challenged here were lawful, but two were not.”
“The Court will deny the motion to amend because the proposed new counterclaims and third-party claims would be futile.”
“The summary judgment record establishes that the Rusty's Defendants are entitled to judgment in their favor as a matter of law on all of Gem's remaining claims against them. ... The Court will otherwise deny the summary judgment motion.”
“The Court will ... deny the related motion to strike as moot.”
“With respect to Defendants' motion for summary judgment, the Court will allow the motion in part with respect to Plaintiff's claims for declaratory judgment ... under the Wage Act ... the Minimum Wage Act ... and G.L. c. 93A. It will otherwise deny the motion.”
“The Court will therefore allow Plaintiff's motion to strike the Reen declaration.”
“deny Defendants' motion to strike the Form ADV filed as Exhibit 25 to the summary judgment motion”
“The Court will deny the anti-SLAPP motion because ARCO's claims against Local 175 and Mr. Gagliardi are not based solely on petitioning activity.”
“It will allow the motions to dismiss under Rule 12(b)(6) ... ARCO's claims for tortious interference and under c. 93A are barred by Garmon preemption ... The claim for defamation fails, and must be dismissed with prejudice.”
“The Court will deny High Street's motion for partial summary judgment on its claims for breach of contract, allow in part KNH's motion for partial summary judgment as to liability on all claims and counterclaims, and grant partial summary judgment in favor of High Street and Mr. Greenberg on KNH's claims under G.L. c. 93A, for abuse of process, and for breach of implied covenants of good faith and fair dealing, even though High Street and Greenberg did not seek summary judgment on those claims.”
“In sum, NetScout has shown that its prior assertion and evidence [were incomplete, but the new theory does not change the result].”
“The Court will deny Defendants' motion for a preliminary injunction and treat it as an initial memorandum in opposition to Arctaris's motion. The Court will exercise its discretion to allow Arctaris's motion.”
“Defendants are not entitled to seek a preliminary injunction because they never asserted any claims or counterclaims against Arctaris.”
Put Judge Salinger's record to work
Ezel drafts and answers grounded in this exact profile: how Judge Salinger actually rules, not a generic AI guess.
Opens in Ezel Pro. Every answer is grounded in Judge Salinger's own signed orders and cites them.