Baker, et al. v. Wilmer Cutler Pickering Hale and Dorr LLP, et al. (Lawyers Weekly No. 11-094-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-639 Appeals Court CHRISTIAN BAKER & others[1] vs. WILMER CUTLER PICKERING HALE AND DORR LLP & others.[2] No. 16-P-639. Suffolk. February 13, 2017. – July 21, 2017. Present: Kafker, C.J., Carhart, & Desmond, JJ.[3] Limited Liability Company. Fiduciary. Corporation, Stockholder, Close corporation. Attorney at Law, Fiduciary duty, Attorney-client relationship. Conspiracy. Consumer Protection Act, Trade or commerce. Practice, Civil, Motion to dismiss, Consumer protection case. Civil action commenced in the Superior Court Department on May 28, 2015. Motions to dismiss were heard by Kenneth W. Salinger, J. Dana Alan Curhan for the plaintiffs. Erin K. Higgins (Kathleen R. O’Toole also present) for Gunderson Dettmer Stough Villeneuve Franklin & Hachigian LLP & another. Richard M. Zielinski for Wilmer Cutler Pickering Hale and Dorr LLP & another. KAFKER, C.J. Minority members of a Massachusetts limited liability company seek to hold the company’s attorneys liable for their involvement in an alleged “freeze-out” orchestrated by and on behalf of the majority members. According to the minority members, the majority members secretly retained the attorneys, one of whom is the daughter of a majority member, to, at least ostensibly, represent the closely held company. The attorneys then worked behind the scenes to assist the majority in merging the company with and into a newly created Delaware limited liability company, all for the purpose of eliminating significant protections afforded minority members under the Massachusetts company’s operating agreement. By the time the attorneys’ involvement came to light, the majority members had unfettered control of the resulting entity, with a new operating agreement that extinguished the minority’s rights to, among other things, participate in management, access the company’s records, and prevent dilution of their interests. The minority members, the plaintiffs in this action, responded by asserting claims against the attorneys and their respective law firms for breach of fiduciary duty, aiding and abetting tortious conduct, civil conspiracy, and violation of G. L. c. 93A. The matter now comes before this court for de novo review after a judge of the Superior Court, acting on motions filed by the defendants, dismissed the plaintiffs’ claims against the attorneys and their law firms for failure to state a claim upon which relief can be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). For the reasons discussed below, we reverse the […]
Commonwealth v. Baker (Lawyers Weekly No. 11-052-17)
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 16-P-783 Appeals Court COMMONWEALTH vs. JAMIE BAKER. No. 16-P-783. Plymouth. March 8, 2017. – May 4, 2017. Present: Grainger, Blake, & Neyman, JJ. Constitutional Law, Search and seizure, Roadblock by police. Search and Seizure, Motor vehicle, Roadblock by police. Motor Vehicle, Operating under the influence. Practice, Criminal, Motion to suppress. Complaint received and sworn to in the Brockton Division of the District Court Department on May 27, 2014. A pretrial motion to suppress evidence was heard by Julieann Hernon, J. An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Keith A. Garland, Assistant District Attorney, for the Commonwealth. Bethany J. Rogers for the defendant. GRAINGER, J. Defendant Jamie Baker, charged in the District Court with operating while under the influence of alcohol, see G. L. c. 90, § 24(1)(a)(1), and negligent operation, see G. L. c. 90, § 24(2)(a), moved to suppress evidence of his intoxication, arguing that the evidence was secured from a sobriety checkpoint not conducted in strict and absolute compliance with the written operational plan (the plan). After his motion was allowed, the Commonwealth was given leave by a single justice of the Supreme Judicial Court to pursue this interlocutory appeal. The Commonwealth argues that the motion judge erred in suppressing the evidence and we agree. We recite the pertinent facts found by the motion judge. Police Captain Thomas Majenski was directed by police Major Anthony Thomas to conduct a saturation patrol and sobriety checkpoint with a detail of State troopers and police officers from the town of Abington (the town). The plan stated that the roadblock would begin at 11:30 P.M. Major Thomas directed that all officers report for the training and briefing session prior to the checkpoint. Captain Majenski was directed to command the detail for the roadblock. Three officers[1] arrived after the roadblock commenced. Upon their arrival, Captain Majenski briefed them. During the roadblock, the defendant was pulled over and greeted by Sergeant Kevin Cutter of the town police. Sergeant Cutter observed signs of intoxication in the defendant and directed him to the “pit” area. The defendant refused “to drive the vehicle.” He then was escorted from the […]
Commonwealth v. Baker (Lawyers Weekly No. 11-052-17)
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 16-P-783 Appeals Court COMMONWEALTH vs. JAMIE BAKER. No. 16-P-783. Plymouth. March 8, 2017. – May 4, 2017. Present: Grainger, Blake, & Neyman, JJ. Constitutional Law, Search and seizure, Roadblock by police. Search and Seizure, Motor vehicle, Roadblock by police. Motor Vehicle, Operating under the influence. Practice, Criminal, Motion to suppress. Complaint received and sworn to in the Brockton Division of the District Court Department on May 27, 2014. A pretrial motion to suppress evidence was heard by Julieann Hernon, J. An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Keith A. Garland, Assistant District Attorney, for the Commonwealth. Bethany J. Rogers for the defendant. GRAINGER, J. Defendant Jamie Baker, charged in the District Court with operating while under the influence of alcohol, see G. L. c. 90, § 24(1)(a)(1), and negligent operation, see G. L. c. 90, § 24(2)(a), moved to suppress evidence of his intoxication, arguing that the evidence was secured from a sobriety checkpoint not conducted in strict and absolute compliance with the written operational plan (the plan). After his motion was allowed, the Commonwealth was given leave by a single justice of the Supreme Judicial Court to pursue this interlocutory appeal. The Commonwealth argues that the motion judge erred in suppressing the evidence and we agree. We recite the pertinent facts found by the motion judge. Police Captain Thomas Majenski was directed by police Major Anthony Thomas to conduct a saturation patrol and sobriety checkpoint with a detail of State troopers and police officers from the town of Abington (the town). The plan stated that the roadblock would begin at 11:30 P.M. Major Thomas directed that all officers report for the training and briefing session prior to the checkpoint. Captain Majenski was directed to command the detail for the roadblock. Three officers[1] arrived after the roadblock commenced. Upon their arrival, Captain Majenski briefed them. During the roadblock, the defendant was pulled over and greeted by Sergeant Kevin Cutter of the town police. Sergeant Cutter observed signs of intoxication in the defendant and directed him to the “pit” area. The defendant refused “to drive the vehicle.” He then was escorted from the […]
Finnegan, et al. v. Baker, et al. (Lawyers Weekly No. 11-111-15)
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 13-P-1995 Appeals Court J. BRENT FINNEGAN & others[1] vs. RICHARD BAKER & others.[2] No. 13-P-1995. Suffolk. January 6, 2015. – August 14, 2015. Present: Grainger, Brown, & Milkey, JJ. Corporation, Close corporation, Stock. Loan. Civil action commenced in the Superior Court Department on September 4, 2009. The case was heard by Peter M. Lauriat, J., and entry of separate and final judgment was ordered by him. Ilyas J. Rona for the plaintiffs. David B. Chaffin for the defendants. BROWN, J. This is a shareholder dispute over control of VBenx Corporation (VBenx), a closely held Delaware corporation that has depended largely on financing from its shareholders to stay afloat, some of which was in the form of promissory notes convertible to shares of VBenx stock. The plaintiffs appeal from a Superior Court judgment dismissing their claims for breach of fiduciary duty, unjust enrichment, and rescission, stemming from the defendants’ conversion of their notes to VBenx stock, pursuant to which the defendants gained a majority interest in the company. Following a jury-waived trial, the judge upheld the validity of the loan transactions. The issues on appeal involve Delaware law as it applies to the convertible notes, which were issued to VBenx shareholders without formal director approval and often without contemporaneous documentation, and the question whether the notes were void, or merely voidable and thus subject to ratification. The judge determined that the loan transactions were not void but were, at most, voidable, and that the VBenx board of directors had impliedly ratified the convertible nature of the loans. We affirm. 1. Background. We summarize the facts relevant to this appeal from the judge’s very thorough October 18, 2012, “Findings of Fact, Rulings of Law and Order for Entry of Judgment.” The plaintiffs, J. Brent Finnegan (Finnegan), Kenneth F. Phillips, and Karen W. Finnegan, seek to invalidate shares of VBenx stock issued to the defendants, principally Walter Smith and Peter Marcia, who made convertible loans to VBenx and subsequently converted their notes to stock. Other defendants include Richard Baker, a VBenx director and chief financial officer, and D. Michael Sherman, a VBenx shareholder as of 2010. All of the parties are shareholders in VBenx.[3] VBenx was formed by Finnegan, Phillips, Salvatore Percia, Baker, and Marcia in 2004, with its headquarters in Duluth, Georgia, […]