Smith v. Aphex BioCleanse Systems, Inc. et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SCOTT SMITH,
Plaintiff,
*
*
*
*
v. 	*
*
Civil Action No. 1:22-cv-10219-IT
APHEX BIOCLEANSE SYSTEMS, INC.,
and DAVID OLUND,
Defendants.
*
*
*
*
MEMORANDUM & ORDER
March 10, 2026
TALWANI, D.J.
In his Amended Complaint [Doc. No. 4], Plaintiff Scott Smith claims, inter alia, that
Defendants Aphex BioCleanse Systems, Inc. (“Aphex”) and David Olund, as President of
Aphex, violated the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §§ 148, 148A, 150 (the
“statutory claims”) by failing to pay Smith wages and benefits due to him and by retaliating
against Smith for filing a complaint of nonpayment with the Massachusetts Attorney General’s
Office and initiating this action. Am. Compl. ¶¶ 41–84 [Doc. No. 4].
Now before the court are Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 67]
and Motion for Default Judgment [Doc. No. 115] seeking, as to the statutory claims, summary
judgment on liability against Olund, and a default judgment as to Aphex.1 For the following
reasons, Plaintiff’s Motions [Doc. Nos. 67, 115] are DENIED.
1 Plaintiff’s additional claims against Olund and Aphex for quantum meruit (Count IV) and
promissory estoppel (Count V), and against Aphex for breach of contract (Count III), see Am.
Compl. ¶¶ 85–103, are not at issue in the pending motions.
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 1 of 17

2
I. 	Procedural History
On January 5, 2022, Smith filed a complaint with the Massachusetts Attorney General’s
Office alleging Wage Act violations by Aphex. First Suppl. Authorities and Other Post-Hearing
Notices, Ex. C (“2022 Wage Complaint”) [Doc. No. 103-3]. Smith listed the total amount owed
as $40,000, based on his salary of $12,000 per month as Aphex’s Chief Sustainability Officer
(“CSO”). Id. On January 10, 2022, Smith received a right to sue letter as to Aphex from the
Massachusetts Attorney General’s office. Am. Compl., Ex. 1 (“Right-to-Sue Letter”) [Doc. No.
4-1].
In February 2022, Plaintiff Smith filed a Complaint [Doc. No. 1] and then a superseding
Amended Complaint [Doc. No. 4] against Aphex, Olund, and Charles Ragland. Plaintiff alleged
that he was a Massachusetts resident, Aphex was a Nevada corporation with a principal place of
business in New York, and Defendants Olund and Ragland were residents of Florida. Am.
Comp. ¶¶ 1–4. Plaintiff claimed unpaid wages based on the CSO position (with an alleged
monthly salary of $14,634) plus vacation and benefits, additional unpaid wages as Chief
Marketing Officer (“CMO”), and wages of another $5,000 per month as a member of Aphex’s
Board of Directors. Id. ¶¶ 8–14.
Olund and Ragland appeared pro se and moved to dismiss the action for lack of personal
jurisdiction, lack of subject matter jurisdiction, and improper venue. Olund’s Mot. to Dismiss
[Doc. No. 8]; Ragland’s Mot. to Dismiss [Doc. No. 10]. On May 12, 2022, before responding to
the Amended Complaint, Aphex sought protection from the bankruptcy court, resulting after
further filings in a stay of the litigation. See e,g, Suggestion of Bankruptcy [Doc. No. 39]; Notice
of Fraud on the Court [Doc. No. 40]; Bankruptcy Trustee’s Letter to the Court [Doc. No. 47];
Notice [Doc. No. 49]; Elec. Order Staying Case [Doc. No. 51].
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 2 of 17

3
Following entry of the Bankruptcy Court’s Order Granting Motion for Relief from Stay
[Doc. No. 58-1], the court lifted the stay as to Olund and Ragland, see Elec. Order [Doc. No. 59].
The court granted Ragland’s Motion to Dismiss [Doc. No. 10] for lack of personal jurisdiction.
Mem. & Order [Doc. No. 61]. The court denied Olund’s Motion to Dismiss [Doc. No. 8], finding
personal jurisdiction, venue, and subject matter jurisdiction over the dispute. Mem. & Order
[Doc. No. 61].
Prior to the commencement of discovery, Plaintiff filed his pending Motion for Partial
Summary Judgment [Doc. No. 67], seeking judgment as to liability on the statutory claims
against Olund. Olund filed papers in opposition, see Def.’s Decl. ISO Opp’n [Doc. No. 87],2 but
did not appear at the motion hearing.
On November 2, 2024, following that hearing, Plaintiff filed a Second Wage Complaint
[Doc. No. 103-1] with the Massachusetts Attorney General’s Office, this time also naming Olund
as President of Aphex. This Second Wage Complaint asserted that Plaintiff was employed by
Aphex through May 12, 2022, and sustained $200,000 in lost wages, and added a retaliation
claim.
After Aphex’s bankruptcy petition was dismissed, the clerk entered Aphex’s default, see
Clerk’s Entry of Default [Doc. No. 110], and Plaintiff filed his Motion for Default Judgment
[Doc. No. 115] as to Aphex on the two statutory claims. Plaintiff seeks a default judgment in the
amount of $2,655,000, plus pre- and post-judgment interest and costs.
2 The court addressed Plaintiff’s challenge to these filings in a Memorandum and Order [Doc.
No. 118] granting in part and denying in part Plaintiff’s Motion to Strike [Doc. No. 88].
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 3 of 17

4
II. 	Standard of Review
A. 	Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, “the court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material when,
under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Baker v. St. Paul Travelers, Inc., 670 F.3d 119, 125 (1st
Cir. 2012). A dispute is genuine if a reasonable jury could return a verdict for the non-moving
party. Anderson, 477 U.S. at 248.
The moving party bears the initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where “the moving party
will bear the burden of persuasion at trial, that party must support its motion with credible
evidence—using any of the materials specified in Rule 56(c)—that would entitle it to a directed
verdict if not controverted at trial.” Winnacunnet Co-op. School Dist. v. National Union Fire Ins.
Co. of Pittsburgh, 84 F.3d 32, 35 (1st Cir. 1996) (quoting Celotex, 477 at 331 (Brennan, J.,
dissenting on other grounds)).
Once the moving party establishes the absence of a genuine dispute of material fact, the
burden shifts to the non-moving party to set forth facts demonstrating that a genuine dispute of
material fact remains. Id. at 324. The non-moving party cannot oppose a properly supported
summary judgment motion by “rest[ing] on mere allegations or denials of [the] pleadings.”
Anderson, 477 U.S. at 256. Rather, the non-moving party must “go beyond the pleadings and by
[his or] her own affidavits, or by ‘the depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S.
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 4 of 17

5
at 324 (quoting Fed. R. Civ. P. 56(e)). Disputes over facts “that are irrelevant or unnecessary”
will not preclude summary judgment. Anderson, 477 U.S. at 248.
When reviewing a motion for summary judgment, the court must take all properly
supported evidence in the light most favorable to the non-movant and draw all reasonable
inferences in the non-movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge . . . ruling on a motion for summary
judgment[.]” Anderson, 477 U.S. at 255.
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including . . . affidavits or
declarations . . . or (B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
B. 	Default Judgment
Fed. R. Civ. P. 55 provides a two-step process for default judgment. Fed. R. Civ. P.
55(a)–(b). Under Rule 55(a), “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Under Rule 55(b), if
the default is not for a sum certain, an application or motion for default judgment must be made
directly to the court. Fed. R. Civ. P. 55(b)
A defaulted party is deemed “to have conceded the truth of the factual allegations in the
complaint as establishing the grounds for liability as to which damages will be calculated.”
Universitas Educ., LLC v. Granderson, 98 F.4th 357, 377 (1st Cir. 2024) (quoting Franco v.
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 5 of 17

6
Selective Ins. Co., 184 F.3d 4, 9 n.3 (1st Cir. 1999)). “Notwithstanding that concession, the
district court ‘may examine a plaintiff’s complaint, taking all well-pleaded factual allegations as
true, to determine whether it alleges a cause of action.’” Id. (quoting Ramos-Falcon v. Autoridad
de Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002) (citation omitted)). The court must ascertain
that it “‘has jurisdiction over the subject matter and parties, the allegations in the complaint state
a specific, cognizable claim for relief, and the defaulted party had fair notice of its opportunity to
object.’” Id. (quoting In re The Home Rests., Inc., 285 F.3d 111, 114 (1st Cir. 2002) (citations
omitted)). The court may also “choose to hold a hearing to establish the truth of any averment in
the complaint.” In re The Home Rests., Inc., 285 F.3d at 114–15 (citation and internal quotation
marks omitted).
III. 	Discussion
A. 	Choice of Law
Plaintiff’s claims at issue in the pending motions are for violation of Massachusetts
statutes. The court begins with the threshold question of whether Massachusetts law applies to
the parties’ dispute. Because this is a diversity action, the court applies the choice-of-law
principles of the forum state to determine the applicable substantive law. Viscito v. National
Planning Corp., 34 F.4th 78, 83 (1st Cir. 2022).
When “the parties have expressed a specific intent as to the governing law, Massachusetts
courts will uphold the parties’ choice as long as the result is not contrary to public policy.”
Dahua Technology USA Inc. v. Zhang, 988 F.3d 531, 537 (1st Cir. 2021) (citations omitted).
Here, Plaintiff’s employment contract with Aphex states that “[t]his Agreement shall be
governed by and interpreted under the laws of the United States of America.” Statement of
Undisputed Material Facts, Ex. 1 ¶ 14 (“CSO Employment Agreement”) [Doc. No. 68-2]. While
the parties have thus agreed that federal law governs the interpretation of the agreement, the
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 6 of 17

7
clause does not indicate any agreement by the parties as to their choice of law as to non-contract
claims.
In the absence of an agreement as to the choice of law, “Massachusetts follows a
functional choice-of-law approach that responds to the interests of the parties, the States
involved, and the interstate system as a whole.” Viscito, 34 F.4th at 83 (citations omitted).
“Under the functional approach, the forum applies the substantive law of the state which has the
more significant relationship to the transaction in litigation.” Id. (citations omitted). And where a
Massachusetts statute “is silent as to its extraterritorial effect,” Massachusetts courts “rely on [the
state’s] ‘functional’ choice-of-law principles in assessing the applicability of the statute to the
plaintiffs’ claims.” Taylor v. E. Connection Operating, Inc., 465 Mass. 191, 198, 988 N.E.2d
408, 414 (2013).
The Massachusetts Wage Act does not expressly foreclose extraterritorial application.
Dow v. Casale, 83 Mass. App. Ct. 751, 752, 989 N.E.2d 909, 913 (2013) (noting that the
Massachusetts Wage Act “does not, in terms, restrict its remedies to employees who live or work
in Massachusetts”). As a result, the statute affords protections even to out-of-state employees—
so long as Massachusetts has the most significant relationship to the plaintiff’s employment. See
Viscito, 34 F.4th at 83; Curtin-Wilding v. Trustees of Boston Univ., 2025 WL 1489978, at *2
(D. Mass. May 23, 2025); Dow, 83 Mass. App. Ct. at 754–58, 989 N.E.2d at 912–15.
The First Circuit has explained that whether Massachusetts has the most significant
relationship to a worker’s claim for unpaid compensation depends on a variety of considerations,
including “the state where the employer’s headquarters is located, the place(s) the worker
performed the work, the frequency of interactions between the worker and the employer in
Massachusetts, whether another state has a significant connection to the worker and work
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 7 of 17

8
performance, and whether the contract between the worker and employer has a choice-of-law
provision[.]” Viscito, 34 F.4th at 85–86 (citing Dow, 83 Mass. App. Ct. at 757–58, 989 N.E.2d at
914).
Here, Plaintiff makes no showing in the pending motions as to Massachusetts’
relationship with his claim for unpaid compensation. See Pl.’s Mem. ISO Mot. for Partial Summ.
J. [Doc. No. 69]; Pl.’ s Mot. for Default J. [Doc. No. 115]. Without that showing, the court
cannot apply the Wage Act to this dispute.
B. 	Failure to Pay Wages
If Plaintiff can demonstrate on a renewed motion that Massachusetts law applies, the
court anticipates that he will be able to show Aphex and Olund’s liability as to the wage claim,
but only as to unpaid wages based on Plaintiff’s position as CSO through December 2021. See
infra Section III.B.1 (citing Statement of Undisputed Material Facts, Ex. 30 ¶ 8 (“Smith Aff.”)
[Doc. No. 68-31]; Def.’s Statement of Material Facts in Dispute ¶ 10 [Doc. No. 87-3]).
1. 	Liability
“The purpose of the Wage Act is ‘to prevent the unreasonable detention of wages.’”
Dow, 83 Mass. App. Ct. at 751, 754 , 989 N.E.2d at 912 (quoting Melia v. Zenhire, Inc., 462
Mass. 164, 170, 967 N.E.2d 580, 587 (2012)). “Section 148 of the Wage Act provides, in
pertinent part: ‘Every person having employees in his service shall pay weekly or bi-weekly each
such employee the wages earned by him . . . .” Id. (quoting Mass. Gen. Laws ch. 149, § 148).
The Wage Act makes liable “[e]very person having employees in his service,” which, under the
statute, includes “[t]he president and treasurer of a corporation and any officers or agents having
the management of such corporation . . . .” Mass. Gen. Laws ch. 149, § 148; Segal v. Genitrix,
LLC, 478 Mass. 551, 558, 87 N.E.3d 560, 567 (2017). Such persons are strictly liable for
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 8 of 17

9
violating the statute. See Knous v. Broadbridge Financial Solutions, Inc., 991 F.3d 344, 345 (1st
Cir. 2021) (“The [Wage] Act imposes strict liability on employers who fail to comply with its
requirements . . . .”) (citing Lawless v. Steward Health Care System, LLC, 894 F.3d 9, 21 (1st
Cir. 2018)); Dixon v. City of Malden, 464 Mass. 446, 453, 984 N.E.2d 261, 265 (2013)
(“Employers must ‘suffer the consequences’ of violating the statute regardless of intent.”)
(quoting Somers v. Converged Access, Inc., 454 Mass. 582, 592, 911 N.E.2d 739, 749 (2009)).3
Plaintiff’s claim for unpaid wages is supported by following undisputed facts. First, on
June 1, 2021, Aphex agreed to pay Plaintiff a $144,000 annual salary. See CSO Employment
Agreement ¶ 3 [Doc. No. 68-2] (stating that Aphex was employing Smith as its Chief
Sustainability Officer (“CSO”) “at an annual salary of $144,000 (such salary referred to herein as
the ‘Base Salary’), payable periodically in accordance with [Aphex’s] practice (net of applicable
deductions and required withholdings).”). Second, Smith commenced his employment on June 1,
2021, see Smith Aff. ¶ 8 [Doc. No. 68-31], but received only $54,000 (equivalent to four-and-a-
half months, or the period from June 1, 2021, through October 15, 2021) of his CSO base salary.
See Def.’s Statement of Material Facts in Dispute ¶ 10 [Doc. No. 87-3]; Statement of Undisputed
Material Facts, Ex. 4, at 2 (“W-2 for 2021”) [Doc. No. 68-5]. During the two-and-half month
period from October through December 2021 period when Plaintiff was not paid, Olund was the
President of Aphex. See Def.’s Statement of Material Facts in Dispute ¶ 2 [Doc. No. 87-3]
(stating that Olund was “not appointed President until late in the 3rd Quarter of 2021.”); see also
Statement of Undisputed Material Facts, Ex. 2, last updated December 11, 2021 at 3 (“Nevada
Corporate Filing”) [Doc. No. 68-3] (identifying Olund as Aphex’s President).
3 Because the statute, if it applies, imposes strict liability, Olund’s argument that any withholding
of payment was not “willful” is immaterial. See Decl. ISO Opp’n at 1 [Doc. No. 87].
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 9 of 17

10
The Wage Act covers wages “earned” by an employee. Mass. Gen. Laws ch. 149, § 148.
The Massachusetts Supreme Judicial Court has interpreted “earned” to mean that an employee
“has completed the labor, service, or performance required of him . . . ” and has “do[ne]
something that entitles one to a reward or result, whether it is received or not . . . .” Awuah v.
Coverall N.A., Inc., 460 Mass. 484, 492, 952 N.E.2d 890, 896 (2011) (quoting Black’s Law
Dictionary 584 (9th ed. 2009)). See also Calixto v. Coughlin, 481 Mass. 157, 161, 113 N.E.3d
329, 333 (2018) (“the right to payment of ‘earned’ wages is secured by virtue of work or service
actually performed”) (quoting Massachusetts State Police Commissioned Officers Ass’n v.
Commonwealth, 462 Mass. 219, 226, 967 N.E.2d 626, 632 (2012)).
Plaintiff claims that he performed work for Aphex during this period, see Smith Aff. ¶ 8
[Doc. No. 68-31], and Olund raises no dispute as to the period through December 31, 2021. See
Def.’s Statement of Material Facts in Dispute ¶ 10 [Doc. No. 87-3] (arguing that “[a]s of January
1, 2022, Smith was no longer performing any tasks beneficial to” Aphex). Consistent with
Plaintiff’s claim that he was performing work for Aphex during this period, on December 20,
2021, Ragland wrote to Smith and others, indicating that “funds from the sale of the bottling
line” would be used in part to reimburse Smith $22,131.52 for out-of-pocket expenses through
November 30, 2021. See Statement of Undisputed Material Facts, Ex. 9, at 1–2 (“December 20,
2021 Email”) [Doc. No. 68-10].
Olund argues that the CSO Employment Agreement [Doc. No. 68-2] is void because of
its provision stating that “[t]his Agreement shall be governed by and interpreted under the laws
of the United States of America.” Id. ¶ 14; see Def.’s Statement of Material Facts in Dispute
¶¶ 1, 2, 4, 8, 9, 17, 18, 26, 30 [Doc. No. 87-3]. But Olund cites no authority holding a contract
invalid because the parties agreed it would be governed and interpreted under the laws of the
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 10 of 17

11
United States. Nor is the provision nonsensical. The agreement provides, for example, that
Plaintiff’s salary would be paid “net of applicable deductions and required withholdings[,]” CSO
Employment Agreement ¶ 3 [Doc. No. 68-2], which deductions and withholdings would be
determined, at least in part, by federal laws regarding income tax and social security
withholdings.
2. 	Damages
Plaintiff has demonstrated that he is owed $12,000 per month under the CSO contract for
the period from mid-October through December 2021. His additional claims for lost wages and
benefits are not supported by the record.
First, Plaintiff contends that he was due health insurance because his contract stated that
he was “entitled to participate in all benefit and pension programs offered . . . to senior
employees at the level of the Executive.” CSO Employment Agreement ¶ 5 [Doc. No. 68-2]. He
points to a line in a spreadsheet sent by Ragland on December 20, 2021, for “health insurance” in
the amount of $4,742.88, to claim that he was due health insurance. December 20, 2021 Email, at
ECF 2 [Doc. No. 68-10]. Olund maintains that, by the summer of 2021, no one at Aphex was
receiving health insurance through the company. See Def.’s Statement of Material Facts in
Dispute ¶ 12 [Doc. No. 87-3]. On this record, the court is unable to find that health insurance was
offered to senior employees at the level of executive and that Plaintiff sought to participate in
any such program.
Second, Plaintiff claims double salary based on an additional position as Chief Marketing
Officer beginning in October 2021. See Smith Aff. ¶¶ 4, 9 [Doc. No. 68-31]; Am. Compl. ¶¶ 11–
12 [Doc. No. 4]. While Aphex did announce that Plaintiff would assume that position in October
2022, see Pl.’s Statement of Material Facts ¶ 7 [Doc. No. 68], Plaintiff has not established any
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 11 of 17

12
agreement as to the amount of any increased pay. Olund’s assurance that Plaintiff would receive
a salary “appropriate for such a position,” see Smith Aff. ¶ 4 [Doc. No. 68-31], does not establish
a wage rate where no specific amount was ever agreed upon. Moreover, the CSO Employment
Agreement [Doc. No. 68-2] provided that any change needed to be in writing and the parties
never signed a new or amended agreement. See Def.’s Statement of Material Facts in Dispute
¶¶ 4, 7 [Doc. No. 87-3].
Third, Plaintiff claims that he was due $5,000 a month as a Board Member, starting in
October 2021. See Smith Aff. ¶¶ 5–6 [Doc. No. 68-31]. But Plaintiff offers no evidence to
support his assertion that the Board position was compensated and no legal support for the claim
that a Board Member stipend is treated as compensation under the Wage Act. At this court’s
instruction, Plaintiff filed supplemental briefing on the question of whether the Wage Act applies
to compensation for board members. See Pl.’s Second Suppl. Authorities and Other Post-Hearing
Notices at 2 [Doc. No. 104]. Although Plaintiff maintains that “[c]ase law indicates that board of
director compensation is subject to regulation under the Wage Act the same as any role or
position,” id. at 3, none of the cases on which Plaintiff relies speak to the question of whether
board members are “employees” under the Wage Act.4 Because Plaintiff has not established his
entitlement to wage payments as a member of the board, Plaintiff is not entitled to summary
judgment as to his Wage Act claim vis-à-vis his board position.
4 See Jancey v. Sch. Comm., 421 Mass. 482, 658 N.E.2d 162 (1995) (involving cafeteria
workers); Mui v. Mass. Port Auth., 478 Mass. 710, 89 N.E.3d 460 (2018) (involving Port
Authority employee); O’Connor v. Kadrmas, 96 Mass. App. Ct. 273, 135 N.E.3d 226 (2019)
(involving executives of an ophthalmology practice); City of Cambridge v. Cambridge Police
Patrol Officers Ass’n, 58 Mass. App. Ct. 522, 791 N.E.2d 355 (2003) (involving police cadets).
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 12 of 17

13
Notably, none of these additional amounts were included in the Wage Complaint filed by
Plaintiff in January 2022, which made no claim for delinquent pay for the CMO position, the
Board Member position, or for the failure to pay health insurance. See 2022 Wage Complaint
[Doc. No. 103-3].
Finally, Plaintiff claims lost wages up until Aphex’s bankruptcy filing on May 12, 2022.
Plaintiff asserts that “[t]he salaried period within which [he] performed work as the CSO and as
the CMO was June 2021 through May 2022, and October 2021 through May 2022, respectively.”
See Statement of Facts ISO Damages, Ex. 2 ¶ 2 (“Smith Aff. ISO Damages”) [Doc. No. 114-2];
see also Smith Aff. ¶¶ 8, 9 [Doc. No. 68-31] (asserting “[s]ince Jun 1, 2021, [he] had been
employed and performed work as the CSO of Aphex” and “since June 1, 2021, [he] had been
employed and performed work as the CMO and as a Director of Aphex”). But where Olund has
not conceded that Plaintiff performed work for Aphex after December 31, 2021, and Plaintiff
provides no details as to when the work was performed, Plaintiff’s general statements are
insufficient to establish that he performed “the labor, service, or performance required of him,”
see Awuah, 460 Mass. at 492, 952 N.E.2d at 986, to earn wages for purposes of the Wage Act
for any period after December 31, 2021.
C. Retaliation
If Plaintiff demonstrates in a renewed motion that Massachusetts law applies, the issue of
whether Aphex and Olund retaliated against Plaintiff also cannot be resolved on the present
record.
“To ensure that the requirements of the Wage Act are met, the statute prohibits employers
from retaliating against employees who assert their rights.” Parker v. EnerNOC, Inc., 484 Mass.
128, 133, 139 N.E.3d 328, 333 (2020); Mass. Gen. Laws ch. 149, § 148A (“[N]o employee shall
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 13 of 17

14
be penalized by an employer in any way as a result of any action on the part of an employee to
seek his or her rights under the wages and hours provisions of this chapter.”). To prevail on a
retaliation claim, a plaintiff must show: (1) that he engaged in conduct protected by the Wage
Act; (2) that his employer subjected him to an adverse employment action; and (3) that the
employer’s adverse action was because of the employee’s protected conduct. See Travers v.
Flight Servs. & Sys., Inc., 808 F.3d 525, 531 (1st Cir. 2015). In the retaliation context, action
taken by an employer is adverse if it “could well dissuade a reasonable worker from making or
supporting a charge[.]” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (Title
VII employment retaliation case).
If there is no direct evidence of a retaliatory animus, on summary judgment, “[r]etaliation
claims [under Mass. Gen. Laws ch. 149 § 148A] proceed under the burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Halsten v. Prompt Praxis
Lab'ys, LLC, 2024 WL 1585850, at *3 (D. Mass. Apr. 11, 2024); Mogilevsky v. Wellbridge
Club Management, Inc., 905 F. Supp. 2d 405, 412 (D. Mass. 2012) (applying McDonnell
Douglas framework to case involving § 148A retaliation claim). Under that framework, a
plaintiff must first establish a prima facie case of retaliation by showing that the plaintiff
“undertook protected conduct,” that defendants “took a material adverse action against [the
plaintiff],” and that “a causal nexus exists between elements one and two.” Halsten, 2024 WL
1585850, at *3 (citations omitted). If the plaintiff establishes a prima facie case, the burden shifts
to the defendants “to articulate a legitimate, non-retaliatory explanation for their actions.” Id.
(citing Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015)). If the
defendants do so, the burden shifts back to the plaintiff to show that their proffered explanation
is pretextual. Id.
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 14 of 17

15
“If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity
to properly support or address the fact; (2) consider the fact undisputed for purposes of the
motion; (3) grant summary judgment if the motion and supporting materials — including the
facts considered undisputed — show that the movant is entitled to it; or (4) issue any other
appropriate order.” Fed. R. Civ. P. 56(e).
Plaintiff points to a press release issued by Aphex after Plaintiff filed suit against the
company as direct evidence of Defendants’ retaliatory motive. See Statement of Undisputed
Material Facts, Ex. 15, at 2 (“February 18, 2022 Press Release”) [Doc. No. 68-16]. That press
release stated that Smith, who served on Aphex’s board of directors, had breached his fiduciary
responsibility to shareholders by filing suit against Aphex and its Directors and Officers for his
own individual financial benefit, and that he was being suspended from his duties as a board
member. See id. The press release satisfies the McDonnell Douglas standard for a prima facie
case but is not itself direct evidence as to an unlawful retaliatory motive. See Mesnick v. Gen.
Elec. Co., 950 F.2d 816, 828–29 (1st Cir. 1991).
Plaintiff also maintains that other actions by Aphex employees were retaliatory.
According to Plaintiff, Aphex employees, including Olund, waged a campaign to defame or
discredit Plaintiff in the eyes of other executives and key employees of Aphex, Aphex business
partners, and Aphex investors and shareholders. See Pl.’s Statement of Undisputed Material
Facts ¶ 28 [Doc. No. 68]. Plaintiff further states that the campaign included an allegedly
pretextual investigation into Plaintiff, his other intellectual property (“IP”), and his other
company; as well as false accusations that Plaintiff was a bad actor, that he had falsely
represented himself as the owner of certain IP, and that Plaintiff had destroyed other companies
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 15 of 17

16
in the past. See id. ¶¶ 24, 36, 37. Plaintiff further alleges that Chairman Fitzgerald refused to
respond to his correspondence, and that company employees devised the “frivolous story” that
there was no valid employment contract in place because of Plaintiff’s complaints of unpaid
wages. See id. ¶ 30. Finally, as previously noted, Plaintiff alleges that Aphex engaged in
retaliation by suspending him from the Board in February 2022. See id. ¶ 31. This evidence also
supports a prima facie case of retaliation. See Halsten, 2024 WL 1585850, at *3.
Accordingly, the burden shifts to Defendants to articulate a non-retaliatory basis for the
adverse actions taken against Plaintiff. See id. Olund’s account, which he alleges most clearly in
his Answer [Doc. No. 86], is that Aphex employees discovered that Plaintiff had misrepresented
his ownership of certain IP that he had promised to convey to Aphex, see id. ¶ 10, that Plaintiff
had ignored the Aphex Chairman’s request for information about this IP, see id., that Plaintiff
contacted company shareholders and imparted false information to them after the Chairman’s
inquiry, see id. ¶ 12, that Aphex employees discovered a Slate Magazine article exposing
Plaintiff as a “con man,” id. ¶ 14, and, finally, that Plaintiff waged an unsuccessful takeover
attempt of Aphex that led to his permanent termination from the Board of Directors, see id. ¶ 8.
Most of Olund’s claims, however, were not properly supported by the summary judgment record.
See Mem. and Order [Doc. No. 118] (granting in part and denying in part Plaintiff’s Motion to
Strike [Doc. No. 88]).
Assuming Olund is able on a renewed motion to properly support his opposition, Plaintiff
would be required to demonstrate that these arguments are pretextual. See Mesnick, 950 F.2d at
828–29. For such a showing, the court anticipates that Plaintiff would need more complete
evidence to rebut Olund’s contention that a dispute over intellectual property, rather than the
wage claim, was the reason for the alleged adverse actions against Plaintiff. See id.
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 16 of 17

17
Notable facts are missing from the summary judgment record. It appears that after the
announcement of the CMO position in October 2021, the parties were not only negotiating a new
employment agreement but also a new IP agreement and that negotiations over a transfer of IP
failed. See, e.g., Statement of Undisputed Material Facts, Ex. 7 [Doc. No. 68-8] (referencing
“two agreements” and agreement for “Assignment of IP”); Statement of Undisputed Material
Facts, Ex. 10 [Doc. No. 68-11] (referencing Plaintiff’s email to Brian Wasser as legal counsel for
Plaintiff, AquaFlex Holdings LLC and US BioSolutions LLC “listing items that will need to be
resolved for [Plaintiff] to continue with Aphex”); Statement of Undisputed Material Facts, Ex.
11, at ECF 5 [Doc. No. 68-12] (referencing correspondence relating to draft agreements with
Plaintiff and inquiring as to Plaintiff’s IP); Statement of Undisputed Material Facts, Ex. 11, at
ECF 4 [Doc. No. 68-12] (apologizing for not responding sooner to an email, referencing an email
from December 23, 2021, a “pre-holiday phone conference,” and Aquaflex not transferring IP to
Aphex, and asserting that “there’s no need for any due diligence related thereto[.]”). Without
clarity as to this additional dispute, Plaintiff is unable to establish pretext on summary judgment.
IV. 	Conclusion
For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment [Doc. No.
67] and Motion for Default Judgment [Doc. No. 115] are DENIED.
IT IS SO ORDERED.
March 10, 2026 	/s/ Indira Talwani
United States District Judge
Case 1:22-cv-10219-IT Document 119 Filed 03/10/26 Page 17 of 17