Welch v. Barach, et al. (Lawyers Weekly No. 11-097-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1308 Appeals Court JOHN F. WELCH, JR.[1] vs. DANIEL J. BARACH & others.[2] No. 12‑P‑1308. Suffolk. March 7, 2013. ‑ August 8, 2013. Present: Berry, Sikora, & Milkey, JJ. Uniform Securities Act. Consumer Protection Act, Unfair or deceptive act. Words, “Material fact.” Civil action commenced in the Superior Court Department on May 1, 2009. The case was heard by Christine M. Roach, J., on motions for summary judgment. Jeffrey S. Robbins for the plaintiff. Kevin J. O’Connor for the defendants. SIKORA, J. This appeal arises from a Superior Court action for private civil relief authorized by the Uniform Securities Act codified in Massachusetts as G. L. c. 110A, §§ 101-417 (securities act). In relevant part, the securities act enables the purchaser of a security to sue its offeror or seller for restitutional damages, reasonable attorney’s fees, and costs, if that offeror or seller has omitted a “material fact” from the information communicated to the purchaser in the explanation or inducement of the purchase. G. L. c. 110A, § 410(a)(2). The plaintiff, John F. Welch, Jr., appeals from summary judgment entered against his claims of liability for omission of a material fact and for relief under (1) the securities act and (2) the consumer protection act, G. L. c. 93A, § 9. Welch contends that defendant Daniel J. Barach, a hedge fund operator, omitted a material fact from a memorandum describing the fund and his qualifications as its manager: Barach’s involvement in litigation several years before Welch’s investment in the fund. Welch maintains that the omission affected his decision in 2003 to invest. During the period of early 2007 through 2008, the fund declined and then liquidated. Welch lost most of his investment of $ 7 million. For the following reasons, we affirm the judgment. Background. The following facts emerge from the summary judgment record as undisputed. 1. Parties. In 1997, Barach organized the hedge fund under the name of MLT Capital, L.P. (MLT Capital). He created MLT Management, LLC, as the sole general partner of MLT Capital, and MLT Advisors Corp. as its investment advisor. It is undisputed that Barach alone (1) controlled, managed, and directed all of MLT Capital’s activities; (2) made all investment decisions; and (3) solicited investors. He pooled investments for the purpose of trading in domestic and foreign securities. Barach built the […]