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July 27, 2007



This is an interesting decision in one respect, completely expected in another respect. The similarly situated test, stringently applied, is routine for these cases. What is interesting is that in footnotes 3 and 4, this panel indicates the circuit need not reach the issue of whether or not animus/malice/bad faith is required for a class of 1 EP claim. However, the First has previously repeated on many occasions that such a showing is indeed required. See Tapalian, 377 F3d 1, SFW Arecibo, 415 F3d 135, Torromeo, 438 F3d 113, Pagan, 448 F3d 16, and Buchanan, 469 F3d 158. See also the MA district courts comments on this line of cases at Walsh, 431 FSupp2 134 and Sampson, 441 FSupp2 271. Query whether the Circuit is going to revisit this issue sooner than later.

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