Posts tagged "Capital"

Citadel Realty, LLC v. Endeavor Capital North, LLC, et al. (Lawyers Weekly No. 11-033-18)

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-735                                        Appeals Court

CITADEL REALTY, LLC  vs.  ENDEAVOR CAPITAL NORTH, LLC, & others.[1]

No. 16-P-735.

Suffolk.     November 7, 2017. – March 19, 2018.

Present:  Wolohojian, Massing, & Wendlandt, JJ.

Practice, Civil, Interlocutory appeal, Motion to dismiss, Declaratory proceeding.  Lis Pendens.  Declaratory Relief.  Mortgage, Foreclosure, Discharge.  Notice, Foreclosure of mortgage.  Real Property, Mortgage. read more

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Posted by Massachusetts Legal Resources - March 19, 2018 at 8:43 pm

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Schiefer, et al. v. Bain Capital, LP (Lawyers Weekly No. 09-044-17)

1
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
Civ. No. 2015-3599-BLS2
ASHLEY SCHIEFER, COLLEEN McPHERSON,
ELIZABETH BURNHAM, and REBECCA SHAAL,
for themselves and on behalf of all others similarly situated,
Plaintiffs
vs.
BAIN CAPITAL, LP, f/k/a BAIN CAPITAL, LLC,
Defendant
MEMORANDUM OF DECISION AND ORDER ON
ASHLEY SCHIEFER’S APPLICATION FOR
PRE-JUDGMENT INTEREST
On August 21, 2017, Ashley Schiefer, one of four plaintiffs in this putative class action alleging failure to pay overtime wages, accepted a Rule 68 Offer of Judgment (the Offer) made by defendant Bain Capital LP (Bain). The Offer included $ 80,000, reasonable attorney’s fees and costs, and prejudgment interest as determined by the Court. This Court has already made a determination as to the attorney’s fees. This Memorandum addresses the question of prejudgment interest. Although both parties agree as to the applicable rate (twelve percent), they disagree as to the date from which interest should be calculated.
Section 6C applies to actions like this one based on contractual obligations. By its terms, the statute provides that that interest accrues ““from the date of the breach or demand,” provided that such date can be determined. If the date of the breach or demand is not established, interest accrues “from the date of the commencement of the action.” The purpose of Section 6C is to “compensate a damaged party for the loss of use or unlawful detention of money.” Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 841 (1986), quoting Perkins School for the Blind v. Rate Setting Comm’n, 383 Mass. 825, 835 (1981). Although Section 6C “commands a
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ministerial act, its sole or primary purpose was not to provide administrative ease” but to ensure that the person wrongfully deprived of the use of money is “made whole for his loss.” Sterilite, 396 Mass. at 841-842. Thus, even if there are multiple breaches so as require different calculations, the Court should engage in that analysis in keeping with that statutory purpose. Id.
Plaintiff argues that the dates of defendant’s breaches are “established” within the meaning of Section 6C because the Offer pays Schiefer on her breach of contract claim, and a breach of that contract occurred at the end of each pay period when Bain failed to compensate her for overtime — — a point in time that is easily ascertained and is undisputed. Schiefer worked 72 pay periods during her employment at Bain. If the $ 80,000 Offer is apportioned equally over those pay periods, $ 1,111 should be apportioned to each pay period, with interest calculated from that date. In a chart attached as Exhibit A to her Application, plaintiff explains how those calculations amount to a total of $ 60,813.09 in prejudgment interest. Bain does not dispute the dates on which each pay period ended. Nor does it question the correctness of the formula that Schiefer uses if this Court were to accept her reasoning that she is entitled to prejudgment interest where there are multiple breaches of the contract. Rather, Bain argues more broadly that, because there are multiple breaches, she is precluded from obtaining prejudgment interest that predates the commencement of the action. In support of this argument, Bain relies heavily on Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436 (1998) and argues that Peabody, not Sterilite, should guide this Court’s analysis. This Court disagrees.
The action in Peabody arose out of a contract dispute between a plaintiff construction company and defendant town over the construction of a waste treatment facility. The contract in question called for the construction to be completed by a certain date. Based on a master’s report, the lower court concluded that both parties had not fulfilled their contractual obligations
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and thus could not recover on their respective breach of contract claims: the construction company failed to complete its work by the date specified in the contract, and the town had contributed to the delay. The court nevertheless awarded damages to the plaintiff on a quantum meruit theory, and the SJC affirmed. The SJC then turned to the issue of prejudgment interest and stated: “Where no demand is made and multiple breaches occur…interest must accrue ‘from the date of the commencement of the action.’” Peabody, 426 Mass. at 445. The SJC went on to modify the lower court’s decision so that prejudgment interest was calculated from the date suit was filed.
Bain seizes on this language in Peabody and argues that, notwithstanding Sterilite (which clearly contemplated the possibility of prejudgment interest based on multiple breaches), Schiefer’s prejudgment interest can only be calculated from the date that she joined as a plaintiff in this action. But Bain ignores the context in which the SJC in Peabody made its pronouncement. As the SJC explained, the date of breach in that case was not easily established since both parties were responsible for at least one breach of the contract; indeed, neither party was able to recover on a contract theory. The instant case is quite different.
First, the Offer is to pay Schiefer on her breach of contract claim, not just on the more general claim of quantum meruit. Second unlike the plaintiff in Peabody, Schiefer did not share in any of the responsibility for the alleged wrongdoing or contribute in some way to cause a breach. Finally, the date of breach is easily ascertainable given the nature of the claim at issue: having failed to include compensation for overtime in each paycheck, Bain breached its obligation to pay her overtime each time Schiefer received that paycheck – that is, at the end of each pay period. As of that date, Schiefer was wrongfully deprived of some amount of money. The award of interest is to compensate her for her loss of that money at that point in time when
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she experienced the loss and (as Sterilite requires) to make her whole for her loss. The SJC in Peabody gave no indication that it intended to overrule Sterilite or that, if faced with a situation like the instant one, that it would adopt Bain’s reasoning. Accordingly, plaintiff’s Application for Interest is ALLOWED and prejudgment interest is awarded in the amount of $ 60,613.09.
______________________________
Janet L. Sanders
Justice of the Superior Court
Dated: November 8, 2017 read more

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Posted by Massachusetts Legal Resources - December 8, 2017 at 1:05 am

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Schiefer, et al. v. Bain Capital, LP (Lawyers Weekly No. 09-036-17)

1
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
Civ. No. 2015-3599 BLS 2
ASHLEY SCHIEFER, COLLEEN MCPHERSON,
ELIZABETH BURNHAM, and REBECCA SHAAL
on behalf of themselves and all others similarly situated,
Plaintiffs
vs.
BAIN CAPITAL, LP, f/k/a BAIN CAPITAL, LLC
,
Defendants
MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF ASHLEY SCHIEFER’S APPLICATION FOR ATTORNEY’S FEES
On August 21, 2017, Ashley Schiefer, one of four plaintiffs in this putative class action suit alleging failure to pay overtime wages, accepted a Rule 68 Offer of Judgment made by defendant Bain Capital LP (Bain). In addition to an $ 80,000 payment to Schiefer, the Offer of Judgment provided for “reasonable costs and attorney’s fees” together with interest “as awarded by the Court.” Schiefer now asks that this Court award her attorney’s fees and costs in the amount of $ 125,488.13. 1 The defendant asks that I reduce the award to $ 26,225.50. After careful review of the materials submitted in support of the application, this Court allows fees and costs in the amount requested by plaintiff.
The Amended Complaint asserts both common law claims and statutory ones. Bain first argues that it should not have to pay any attorney’s fees since, after the Offer of Judgment was extended, Schiefer took the position that she was waiving her statutory claim because of a
1 The application originally requested $ 122,788.13. Counsel filed a $ 2,700 supplement to that request for work performed in connection with the hearing on the application.
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statute of limitations problem, proceeding instead on a common law theory of breach of contract. Certainly, had Schiefer prevailed on her common law claim after trial, she would not have been entitled to recover her litigation expenses. But the Offer expressly included an award of fees, and attached no conditions to that except that the fees be reasonable. In a supplemental pleading filed after the hearing on this Motion, Bain appears to suggest that it was misled about the basis of Schiefer’s claims. But Bain had to have known about the statute of limitations problem. Moreover, Schiefer’s answers to interrogatories about the damages she was seeking describe damages that are of the type that would be recoverable on a common law claim, not on the statutory claim. In short, there was no unfair surprise.
This Court also is not persuaded that counsel had some obligation to segregate out what work was spent on Schiefer’s common law claim and what work was attributable to her statutory claim. As plaintiff spells out in her Reply Memorandum, Scheifer’s breach of contract claim was based on the same core of facts as her statutory claim and indeed required that she prove she was “eligible” for overtime – an inquiry that implicated G.L.c. 151 §1A. These two sets of claims are sufficiently connected to excuse counsel from the near impossible task of segregating his hours based on the type of claim asserted. Indeed, had there been no Offer of Judgment and had Schiefer prevailed both on her common law and statutory claims after trial (thus entitling her to request attorney’s fees on the statutory claim), this Court would not have required counsel to allocate his time among the different claims, given the substantial overlap among them. See Killeen v. Westban Hotel Venture, LP, 69 Mass.App.Ct. 784, 792 (2007), citing Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). There is no reason to proceed any differently where the award is pursuant to the terms of an Offer of Judgment.
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Bain argues more generally that plaintiff’s counsel’s approach in taking the total amount of fees attributable to all four plaintiffs and then allocating one-quarter of that amount to Schiefer is fundamentally flawed. This Court disagrees. From its inception, this case has been prosecuted as a class action, with plaintiff’s counsel representing all four plaintiffs, including Schiefer, collectively in pursuit of a class wide remedy. Counsel’s approach in calculating fees is consistent with the fact that this a collective action. Moreover, the named plaintiffs necessarily had to have substantially similar claims in order for there to be a chance at class certification. Such similarity in claims among these named plaintiffs did in fact exist, with each of them complaining about a failure to pay overtime wages. Discovery and legal research conducted on behalf of any one of them assists the others. Thus, although Schiefer did not join the case as a plaintiff until after the lawsuit commenced, work performed on behalf of the other three plaintiffs benefitted her as well. Bain contends that at least the work related to class certification issues should be excluded from any award since the Offer of Judgment was made before any motion was filed or class certified. It was clearly work that was necessary to the case, however, with Schiefer as a named plaintiff being one of the representatives for the putative class. Counsel is no less entitled to be compensated for that work simply because Bain made the Offer of Judgment before the class certification issue could be decided.
Bain makes more specific objections to certain parts of the fee request, arguing that plaintiff’s counsel spent excessive number of hours on certain matters. Plaintiff’s counsel responds that the large number of hours required for certain tasks was in part due to the way that Bain conducted the litigation. For example, Bain has been slow to comply with plaintiffs’ discovery requests, requiring multiple Rule 9C conferences and the service of a Motion to Compel. Indeed, it only recently began its first round of document production even though the
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case was filed in 2015. During this same time period, Bain served 250 document requests and 75 interrogatories on plaintiffs; responding to these requests took time. Bain served subpoenas on plaintiff’s McPherson’s post-Bain employers, necessitating a motion to quash and a motion for protective order from plaintiffs. Success on those motions was important to all named plaintiffs including Scheifer. Even this fee application has been vigorously opposed, with Bain supplementing its opposition after the hearing. Certainly, Bain is entitled to be zealously represented, but then such representation requires more of plaintiffs’ counsel, who must be prepared to respond just as vigorously.
This Court reviews an application for an award of attorney’s fees by using the “lodestar” approach, which requires calculating the number of hours reasonably expended to litigate the claims and multiplying that number by an hourly rate that is reasonable under the circumstances. Fontaine v. Ebtec Corp., 4156 Mass. 309, 325-326 (1993). The Fee Application here contemplates an hourly rate of $ 450; both plaintiff’s counsel are experienced and based on what this Court has seen, have done a commendable job on this matter. The records presented in support of the Application are quite complete and include detailed descriptions of the work performed. Ultimately, the question of what amount of fees is reasonable is addressed to the sound discretion of this Court. In the exercise of that discretion, the Application for Attorney’s Fees is APPROVED in the amount of $ 125,488.13.
______________________________
Janet L. Sanders
Justice of the Superior Court
Dated; October 24, 2017
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Posted by Massachusetts Legal Resources - November 4, 2017 at 1:21 am

Categories: News   Tags: , , , , ,

Deutsche Bank National Trust Company v. Fitchburg Capital, LLC, et al. (Lawyers Weekly No. 10-062-15)

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

SJC-11756

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1]  vs.

FITCHBURG CAPITAL, LLC, & others.[2]

Suffolk.     January 5, 2015. – April 15, 2015.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause.  Real Property, Mortgage.  Limitations, Statute of.  Practice, Civil, Summary judgment, Statute of limitations.  Statute, Retroactive application, Construction.  Due Process of Law, Retroactive application of statute, Statute of limitations.  Constitutional Law, Contract clause. read more

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Posted by Massachusetts Legal Resources - April 15, 2015 at 4:53 pm

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Sullivan, et al. v. Kondaur Capital Corporation (Lawyers Weekly No. 11-039-14)

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‑706                                        Appeals Court

JOSEPH L. SULLIVAN & another[1]  vs.  KONDAUR CAPITAL CORPORATION.

No. 13‑P‑706.

Suffolk.     February 4, 2014.  ‑  April 16, 2014.

Present:  Kafker, Green, & Sullivan, JJ.

Mortgage, Assignment, Foreclosure.  Practice, Civil, Motion to dismiss, Standing.  Real Property, Mortgage, Registered land, Certificate of title.  AssignmentAgency, Scope of authority or employment.  Corporation, Officers and agents.  Land Court. read more

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Posted by Massachusetts Legal Resources - April 16, 2014 at 3:57 pm

Categories: News   Tags: , , , , , ,

Mello Construction, Inc. v. Division of Capital Asset Management (Lawyers Weekly No. 11-147-13)

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‑1429                                                                             Appeals Court

MELLO CONSTRUCTION, INC.,  vs.  DIVISION OF CAPITAL ASSET MANAGEMENT.

No. 12‑P‑1429.

Bristol.     June 4, 2013.  ‑  December 18, 2013.

Present:  Cypher, Graham, & Agnes, JJ.

Public Works, General contractor.  LicenseGovernmental ImmunityDamagesPractice, Civil, Action in nature of certiorari.

Civil action commenced in the Superior Court Department on July 25, 2007. read more

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Posted by Massachusetts Legal Resources - December 18, 2013 at 4:54 pm

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Brigade Leverage Capital Structures Fund Ltd., et al. v. PIMCO Income Strategy Fund, et al. (Lawyers Weekly No. 10-167-13)

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

SJC‑11289

BRIGADE LEVERAGED CAPITAL STRUCTURES FUND LTD. & another[1]  vs.

PIMCO INCOME STRATEGY FUND & another.[2]

Suffolk.     May 6, 2013.  ‑  September 11, 2013.

Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

Business TrustTrust, Business trust.  Corporation, By‑laws, Stockholder, Board of directors.  ContractWords, “On at least an annual basis.”

Civil action commenced in the Superior Court Department on December 1, 2011. read more

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Posted by Massachusetts Legal Resources - September 11, 2013 at 6:19 pm

Categories: News   Tags: , , , , , , , , , , ,

Cannonball Fund, Ltd., et al. v. Dutchess Capital Management, LLC, et al. (Lawyers Weekly No. 11-094-13)

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‑876                                   Appeals Court

CANNONBALL FUND, LTD., & others[1]  vs.  DUTCHESS CAPITAL MANAGEMENT, LLC, & others.[2]

No. 12‑P‑876.

Suffolk.     January 17, 2013.  ‑  August 2, 2013.

Present:  Cypher, Rubin, & Wolohojian, JJ.

Limitations, Statute ofPractice, Civil, Statute of limitations, Dismissal, Standing.  Jurisdiction, Personal, Long‑arm statute, Nonresident.  Corporation, Derivative action.  FiduciaryPartnership, Fiduciary duty.  Negligence, Causation.  Due Process of Law, Jurisdiction over nonresident.  Contract, Implied covenant of good faith and fair dealing, Performance and breach. read more

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Posted by Massachusetts Legal Resources - August 2, 2013 at 3:52 pm

Categories: News   Tags: , , , , , , , ,

Mayor Announces $1.8 Billion Capital Plan

Mayor Thomas Menino speaks about his five-year capital plan for the city of Boston at a press conference held Friday, May 17, 2013 outside Spaulding Rehabilitation Hospital. Also pictured are District 1 City Councilor Sal LaMattina (second from right) and Spaulding President David E. Storto (far right).

The mayor last week announced a plan to invest $ 1.8 billion over the next five years in capital projects across the city, including $ 1.6 million for a new park near Spaulding Rehabilitation Hospital in the Charlestown Navy Yard.

At a press conference held Friday, May 17 outside the recently opened hospital, Mayor Thomas Menino discussed some of the 341 projects included in the city’s five-year capital plan for fiscal years 2014-2018—projects that will improve and maintain the city’s roads, buildings, technology and play spaces.

The five-year capital plan will “create 460 construction jobs in FY2014” and will “transform city neighborhoods, learning, recreation and streets,” according to a press release from the mayor’s office.

“Our city draws its strength from its neighborhoods, and this year’s capital plan will make our neighborhoods better for all of the families that live in our city,” Menino said. “The park here at Spaulding reflects my commitment to build a city that works for all of our people, not just some of our people.” read more

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Posted by Massachusetts Legal Resources - May 28, 2013 at 9:27 pm

Categories: Arrests   Tags: , , , , ,

Premier Capital, LLC v. KMZ, Inc. (Lawyers Weekly No. 10-033-13)

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

SJC‑11136

PREMIER CAPITAL, LLC  vs.  KMZ, INC.

Hampden.     November 6, 2012.  ‑  March 7, 2013.

Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

Limitations, Statute ofNegotiable Instruments, Note.  Contract, Under seal.  Statute, Retroactive application.  Corporation, Corporate successor liability.  Uniform Commercial Code, Payment on negotiable instrument.

Civil action commenced in the Superior Court Department on July 3, 2007.

The case was heard by Constance M. Sweeney, J., on motions for summary judgment. read more

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Posted by Massachusetts Legal Resources - March 7, 2013 at 3:19 pm

Categories: News   Tags: , , , , ,