Posts tagged "Holdings"

North American Catholic Educational Programming Foundation, Inc., et al. v. Clearwire Spectrum Holdings II LLC, et al. (Lawyers Weekly No. 09-023-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss.                                                                                   SUPERIOR COURT                                                                                                             CIVIL ACTION                                                                                                             No. 15-3118 BLS 2     NORTH AMERICAN CATHOLIC EDUCATIONAL  PROGRAMMING FOUNDATION, INC. et al.[1] Plaintiffs   vs.   CLEARWIRE SPECTRUM HOLDINGS II LLC, CLEARWIRE LEGACY LLC and SPRINT SPECTRUM, L.P., Defendants   MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO STAY ACTION   Plaintiffs are non-profit entities that hold licenses from the Federal Communications Commission (FCC) to operate Educational Broadband Services (EBS) channels in certain geographic markets.  In 2006, plaintiffs granted access to a portion of their wireless communication spectrum to defendants Clearwire Spectrum Holdings LLC and Clearwire, Legacy, LLC (Clearwire) pursuant to various written Agreements, including Master Royalty and Use Agreements (MRUAs).  The defendant Sprint Spectrum L.P. (Sprint) subsequently acquired all the stock in Clearwire’s parent, and a dispute arose between Sprint and the plaintiffs as to what services Sprint was obligated to provide plaintiffs’ customers.  Plaintiffs took the position that Clearwire had effectively sublicensed its use of the broadband spectrum to Sprint, and that, pursuant to the Agreements, this required plaintiffs’ consent – consent which they were entitled to withhold unless Sprint agreed to provide broadband access to plaintiff’s customers that was equivalent to what Clearwire itself would have provided had there been no sublicense. Plaintiffs filed this lawsuit in October 2015 seeking equitable relief and specific performance.  In November 2015, this Court allowed plaintiffs’ Motion for a Preliminary Injunction, concluding that plaintiffs had demonstrated a substantial likelihood of prevailing on the merits.  The injunction among other things required defendants to maintain Cost Free Educational Accounts (CFEAs) that entitle plaintiffs’ customers to access the Clearwire broadband network free of charge.  On June 24, 2016, this Court allowed plaintiffs’ Motion for Partial Summary Judgment as to Count One of the Complaint, which focused on the single issue of consent.  After some period of negotiation seeking a global resolution, two of the six plaintiffs in the instant action filed arbitration claims seeking damages, the MRUAs requiring them to pursue any monetary remedy in that forum.    Defendants now move to stay this action until the arbitration is concluded.  This Court concludes that this Motion must be DENIED. In support of the motion, defendants cite the broad arbitration provision in the MRUAs and argue that under the Federal Arbitration Act, it would be an abuse of discretion not to stay the instant action because the claims its raises substantially overlap with those issues being presented to a three member arbitration panel.  A stay is appropriate, they argue, in order to avoid duplicative discovery and the risk of inconsistent results.  In response, the plaintiffs contend that there is no overlap between the claims that they assert […]

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Posted by Massachusetts Legal Resources - March 10, 2018 at 12:35 am

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ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 09-035-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-1840-BLS2 ABCD HOLDINGS, LLC, Plaintiff vs. PATRICK HANNON and SOFIA GAGUA Defendants And J.DERENZO CO., SOFIA GAGUA, SIMILAR SOILS, INC., IMMANUEL CORP., AGRITECH INC., and L-5 INC., Reach and Apply Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR A REAL ESTATE ATTACHMENT This is an action seeking to collect on a personal guaranty and to recover for other allegedly wrongful conduct following the execution of that document. The guaranty was executed by defendant Patrick Hannon who, pursuant to the terms of the guaranty, was required to pay $ 109,879 plus attorney’s fees and collection costs in the event the borrower defaulted. The borrower did indeed default and plaintiff, the assignee of the original lender’s rights under the guaranty, now seeks to collect on the guaranty and asserts other claims, including a claim under Chapter 93A. This Court (Salinger, J.) has already determined that there is a reasonable likelihood that plaintiff will recover against Hannon on the guaranty. There is also ample 2 evidence that plaintiff will recover an additional $ 45,000 that Hannon had paid on another loan but that had to be disgorged to Hannon’s bankruptcy trustee as a preference. 1 The case is now before the Court on plaintiff’s Motion to Attach property located at 34 Highview Drive in Uxbridge, Massachusetts (the Uxbridge House). Hannon lives there with his girlfriend, Sofia Gagua, named in this case both as a defendant and a reach and apply defendant. Title to the property is in Gagua’s name. According to the Amended Verified Complaint, the Uxbridge House was purchased with funds from Hannon, giving rise to a claim against Gagua under the Uniform Fraudulent Transfer Act, G.L.c.109A §2. After careful review of the documentation and affidavits submitted by the parties — both in connection with this motion and earlier in this litigation — this Court concludes that plaintiff is entitled to an attachment in the amount of $ 258,226.22.2 The Motion is therefore ALLOWED. This is the third time that plaintiff has requested such an attachment. The first time was shortly after this lawsuit began. This Court (Salinger, J.) denied the request because the allegations that Gagua had used funds fraudulently conveyed to her by Hannon were all made on information and belief. See Memorandum of Decision dated June 24, 2016. The second time was in a related lawsuit, King Root Capital, LLC v. Hannon et al., Civ. No. 2017-02307-BLS 2, which is a suit on a judgment against Hannon.3 This Court denied plaintiff’s request in that case, 1 Hannon and his wife Elizabeth Hannon filed for Chapter 11 bankruptcy in 2012, after the loans that are the subject of the instant […]

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Posted by Massachusetts Legal Resources - November 3, 2017 at 6:12 pm

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Zelby Holdings, Inc. v. Videogenix, Inc. (Lawyers Weekly No. 11-106-17)

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-874                                         Appeals Court   ZELBY HOLDINGS, INC.  vs.  VIDEOGENIX, INC.     No. 16-P-874.   Norfolk.     February 10, 2017. – August 18, 2017.   Present:  Green, Milkey, & Neyman, JJ.     Negotiable Instruments, Note, Payment.  Uniform Commercial Code, Payment on negotiable instrument.  Payment.  Limitations, Statute of.  Practice, Civil, Motion to dismiss, Statute of limitations.  Common Law.  Contract, Unjust enrichment.  Unjust Enrichment.       Civil action commenced in the Superior Court Department on July 24, 2015.   A motion to dismiss was heard by Rosalind H. Miller, J.     Thomas Hemmendinger for the plaintiff. Andrea L. Martin for the defendant.     NEYMAN, J.  Zelby Holdings, Inc. (Zelby), brought this action in 2015 in the Superior Court against VideogeniX, Inc. (VideogeniX), to collect on a promissory note (note) due in 2006.  VideogeniX successfully moved to have the complaint dismissed.  The primary issue on appeal is whether the common-law partial payment rule applies to actions subject to the six-year statute of limitations set forth in G. L. c. 106, § 3-118.  We conclude that it does and reverse accordingly. Background.  We summarize the facts alleged in Zelby’s complaint, accepting them as true.  On March 24, 2005, VideogeniX’s predecessor signed a note for $ 30,000 in favor of Zelby’s predecessor.  The note was due on March 25, 2006.  On September 15, 2008, Zelby’s predecessor demanded payment.[1]  On June 1, 2010, VideogeniX issued a check for $ 250 to Zelby’s predecessor.  VideogeniX made no other payments.[2] On July 24, 2015, Zelby filed the present action alleging breach of contract, “book account,” and unjust enrichment.  A Superior Court judge allowed VideogeniX’s subsequent motion to dismiss, concluding that all three counts were barred by the statute of limitations under G. L. c. 106, § 3-118, and that the unjust enrichment count failed to state a cognizable claim under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Discussion.  1.  Legal standards.  a.  Motion to dismiss.  “We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor.”  Harrington v. Costello, 467 Mass. 720, 724 (2014).  “To survive a motion to dismiss, the factual allegations must plausibly suggest that the plaintiff is entitled to relief.”  Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Statute of limitations.  In 1998, the Legislature adopted G. L. […]

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Posted by Massachusetts Legal Resources - August 19, 2017 at 6:48 am

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ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 12-068-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01840-BLS2 ____________________ ABCD HOLDINGS, LLC v. PATRICK J. HANNON, SOFIA GAGUA, and PATRICK J. (“P.J.”) HANNON and Others1 ________________________________________ PATRICK J. HANNON v. ABCD HOLDINGS, LLC; ABC&D RECYCLING, INC.; WARE REAL ESTATE, LLC; TRI COUNTY RECYCLING, INC.; and GEORGE McLAUGHLIN, III ____________________ MEMORANDUM AND ORDER DENYING MOTION TO DISMISS COUNTERCLAIMS AND THIRD-PARTY CLAIMS Plaintiff ABCD Holdings, LLC, (“Holdings”) has sued Patrick J. Hannon in part to enforce Hannon’s personal guaranty of one-half of the amount that Holdings loaned to Ware Real Estate, LLC (“Ware”) and ABC&D Recycling, Inc (“Recycling”). Holdings claims that Hannon is liable under his limited guaranty to repay $ 109,879.50 (half the original loan amount) plus reasonable collection costs. In response, Hannon has asserted various counterclaims and third-party claims alleging, in essence, that George McLaughlin deliberately prevented Ware and Recycling from repaying what they owed under their note by using Holdings to take control of Ware and Recycling and then transferring their assets and business operatings to a new entity called Tri County Recycling, Inc. (“Tri County”). The parties sued by Hannon—i.e., McLaughlin, Holdings, Ware, Recycling, and Tri County—have moved to dismiss Hannon’s claims. They claim that Hannon’s claims are all barred by a release executed by the Chapter 7 trustee of Hannon’s bankruptcy estate. In addition, Tri County asserts that the allegations against it do not state viable claims even if the claims were not barred by the release. The Court concludes that these arguments are without merit. It will therefore DENY the motion to dismiss Hannon’s counterclaims and third-party claims. 1 Reach and Apply Defendants J. Derenzo Co.; J. Derenzo Construction Company, Inc.; Sofia Gagua; RHR, LLC; Patrick J. (“P.J.”) Hannon; Similar Soils, Inc.; Immanuel Corp.; Agritech, Inc.; and L-5, Inc. – 2 – 1. Settlement Agreement and Release. Hannon filed a petition under Chapter 11 of the United States Bankruptcy Code on May 3, 2012. That bankruptcy case was converted to a Chapter 7 or liquidation proceeding on January 2, 2013. The bankruptcy trustee sued Bright Horizon, LLC (“Bright Horizon”) and The McLaughlin Brothers, P.C. (“McLaughlin Bros.”) to recover various payments Hannon had made to them. In May 2015 the bankruptcy trustee entered into a settlement agreement in which George McLaughlin, Bright Horizon, and McLaughlin Bros. agreed to pay the bankruptcy estate $ 45,000. In exchange, the trustee released all claims “whether known or unknown” that the estate or Hannon may have against George McLaughlin, Bright Horizon, McLaughlin Bros., or “any entity owned by any of” them. The settlement agreement states that it is releasing such claims “to the Trustee’s full authority to waive such claims.” McLaughlin asserts that he owns Holdings, Recycling, Ware, and Tri County, […]

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Posted by Massachusetts Legal Resources - June 16, 2017 at 10:15 pm

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WHDT Congress Holdings LP v. Farnsworth Congress LLC (Lawyers Weekly No. 12-059-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV00295-BLS2 ____________________ WHDT CONGRESS HOLDINGS LP v. FARNSWORTH CONGRESS LLC ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION AND SCHEDULING A RULE 16 CONFERENCE TO PICK A TRIAL DATE WHDT Congress Holdings LP has contracted to buy a ground-floor commercial condominium unit in a building that Farnsworth Congress LLC is having constructed at 338 Congress Street in the Fort Point Channel neighborhood of Boston. The parties’ purchase and sale agreement gives Farnsworth a “limited right of approval” of any proposed tenant to ensure that it “is of similar quality and class” as the “first class appearance and nature” of the building as a whole. Although WHDT is not required to lease the unit to a restaurant, if its wishes to do so Farnsworth has the contractual right to withhold approval if the proposed tenant is not “of similar or greater quality and appearance” to Row34, Bastille Kitchen, Sportello, and Blue Dragon, which are all located within a few blocks of the new building. WHDT filed a complaint in January 2017 claiming that Farnsworth has unreasonably withheld approval of a franchise of the “&pizza” chain as a tenant, allegedly in violation of the parties’ P&S. Almost three months later WHDH served, and has now filed, a motion for a preliminary injunction that would enjoin Farnsworth from withholding its approval of &pizza’s tenancy and also order Farnsworth to provide plans and other documentation regarding the disputed condominium. WHDT proposes that resolution of its preliminary injunction motion be consolidated with a bench trial on the merits to be held no later than forty-five days of the date it served its motion, i.e. by June 5, 2017.1 The Court declines to consolidate the motion hearing with the trial and hold both in early June, because new issues raised by WHDT for the first time in its motion 1 Neither party has requested a jury trial. WHDT represents that is because the parties waived any right to a jury trial in their P&S. – 2 – papers will require a reasonable time for discovery plus expert testimony. The Court will deny the preliminary injunction motion because WHDT has not shown that it is likely to prevail on the merits of its claims or that it will suffer any irreparable harm in the meantime. If WHDT had sought a prompt trial when it filed its complaint, it may have made sense to schedule the trial for early June. It is now too late for that. But the Court believes that the parties should be able to get this case ready for trial within the next two or three months. It will hold a scheduling conference next […]

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Posted by Massachusetts Legal Resources - June 1, 2017 at 6:35 am

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Erecruit Holdings, LLC v. Willis Group Holdings, LLC (Lawyers Weekly No. 12-003-17)

COMMONWEALTH OF MASSACHUSETTS     SUFFOLK, ss.                                                                                   SUPERIOR COURT                                                                                                              SUCV2016-0557-BLS2   ERECRUIT HOLDINGS, LLC Plaintiff   and   SIXCEL, LLC Plaintiff/Intervenor   vs.   WILLIS GROUP HOLDINGS, LLC Defendant       MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF ERECRUIT HOLDINGS, LLC’S MOTION  FOR JUDGMENT ON THE PLEADINGS   This action arising from a business deal gone sour between the plaintiff Erecruit Holdings, LLC (Erecruit) and the defendant Willis Group Holdings, LLC.  Erecruit alleges that Willis breached a written contract called the Non-Perpetual Software License Agreement (the Agreement) by fabricating a pretext for terminating the Agreement, then refusing to pay Erecruit for amounts owed.  In response, Willis asserted a  Counterclaim alleging that Erecruit misled it as to Erecruit’s capabilities and then after Willis had already paid Erecruit $ 93,500, failed to deliver on the promises it made to provide Willis with  a fully functional software product – promises that Erecruit  knew at the time that it made them that it could not keep.    Erecruit now moves for a judgment on the pleadings as to Willis’s Counterclaim. This Court concludes that the Motion must be DENIED for the reasons set forth in Willis’s Opposition, and offers the following by way of brief explanation. A motion pursuant to Rule 12(c), Mass.R.Civ.P., is governed by the same standard that apples to a motion made pursuant to Rule 12(b) (6).  That is, it must be denied if the targeted claims  contain factual allegations that are “adequately detailed so as to plausibly suggest an entitlement to relief.”  Greenleaf Arms Realty Trust, LLC v. New Boston Fund, Inc., 81 Mass. App.Ct. 282, 288 (2012) (reversing lower court’s allowance of Rule 12(b) (6) motion); see also Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).  Plausibility is not the same as credibility.  Thus, that the claim relies on facts that are improbable does not support dismissal as long as those allegations, “even if doubtful in fact,”  “raise a right to relief above the speculative level.” Iannachino,  supra, quoting Bell Atlantic Corp. v. Twombly,  550 U.S.544, 557 (2007). In seeking judgment in its favor before any discovery in the case has been conducted, Erecruit misapplies this standard, parsing the wording of the Counterclaim in a way that ignores the requirement that the Court draw all reasonable inferences from its factual allegations in favor of Willis.  Although it is true that the claim of fraud (Count II of the Counterclaim) does call for greater particularity in pleadings, this Court concludes that even as to that count, the Counterclaim satisfies what is required of a claimant at this early stage in the litigation.   The Counterclaim goes into some detail about the various misrepresentations that Erecruit made to Willis, […]

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Posted by Massachusetts Legal Resources - February 2, 2017 at 2:40 pm

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ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 12-172-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-1367-BLS2 ABCD HOLDINGS, LLC, Plaintiff vs. PATRICK HANNON, SOFIA GAGUA, PATRICK (“P.J.”) HANNON, RHR, LLC, SIMILAR SOILS, INC. and AGRITECH, INC., Defendants And J.DERENZO CO., SOFIA GAGUA, RHR, LLC, PATRICK (“P.J.”) HANNON, SIMILAR SOILS, INC., IMMANUEL CORP., AGRITECH INC., and L-5 INC., Reach and Apply Defendants MEMORANDUM OF DECISION AND ORDER ON MOTIONS TO DISMISS This is an action seeking to collect on a personal guaranty and to recover for other allegedly wrongful conduct following the execution of that document. The guaranty was executed by defendant Patrick Hannon on a loan for $ 219,759. The lender, Bright Horizons Finance, LLC, subsequently assigned its rights under the promissory note and under the guaranty to the plaintiff ABCD Holdings, Inc. Plaintiff has sued not only Hannon but various other individuals and entities on a variety of legal theories. Now before the Court are motions to dismiss by: 1) Hannon, as to some (but not all) counts against him; 2) defendants P.J. Hannon and RHR, LLC; and 3) defendant Agritech, Inc. This Court concludes that Hannon’s Motion must be Denied but that the other two Motions must be Allowed. 2 BACKGROUND This action was instituted on June 6, 2016. Plaintiff tried and failed to obtain a preliminary injunction against Hannon. See Memorandum of Decision dated June 24, 1016 (Salinger, J.) The case was once again before the Court in connection with various motions to dismiss, which were allowed in part and as to other counts reserved, since plaintiff’s counsel indicated that he would amend the complaint. The Amended Complaint was filed on October 7, 2016. The allegations as set forth in the Amended Complaint, together with attachments thereto, are as follows. The loan which is at the heart of this case was made on July 21, 2011. It was made by Bright Horizons, an entity owned by Boston attorney George McLaughlin. The loan was made to two companies, Ware Real Estate (Ware) and ABC&D Recycling (Recycling). Ware owns real property in Ware, Massachusetts improved with a waste transfer station; at the time, it was wholly owned by defendant Hannon. Recycling was in the business of recycling debris from construction sites and operated the waste transfer station in Ware. Hannon was its president and sole officer. Hannon was also a long time client of McLaughlin. The loan to Ware and Recycling was payable in full on demand, pursuant to terms set forth in a promissory note (the “W&R Note”) with payments of interest to be made on a monthly basis. The W&R Note is attached to the Amended Complaint as Exhibit A. In addition to requiring payment on demand, the W&R Note gave Bright Horizon the […]

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Posted by Massachusetts Legal Resources - January 17, 2017 at 3:51 pm

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ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 12-172-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-1367-BLS2 ABCD HOLDINGS, LLC, Plaintiff vs. PATRICK HANNON, SOFIA GAGUA, PATRICK (“P.J.”) HANNON, RHR, LLC, SIMILAR SOILS, INC. and AGRITECH, INC., Defendants And J.DERENZO CO., SOFIA GAGUA, RHR, LLC, PATRICK (“P.J.”) HANNON, SIMILAR SOILS, INC., IMMANUEL CORP., AGRITECH INC., and L-5 INC., Reach and Apply Defendants MEMORANDUM OF DECISION AND ORDER ON MOTIONS TO DISMISS This is an action seeking to collect on a personal guaranty and to recover for other allegedly wrongful conduct following the execution of that document. The guaranty was executed by defendant Patrick Hannon on a loan for $ 219,759. The lender, Bright Horizons Finance, LLC, subsequently assigned its rights under the promissory note and under the guaranty to the plaintiff ABCD Holdings, Inc. Plaintiff has sued not only Hannon but various other individuals and entities on a variety of legal theories. Now before the Court are motions to dismiss by: 1) Hannon, as to some (but not all) counts against him; 2) defendants P.J. Hannon and RHR, LLC; and 3) defendant Agritech, Inc. This Court concludes that Hannon’s Motion must be Denied but that the other two Motions must be Allowed. 2 BACKGROUND This action was instituted on June 6, 2016. Plaintiff tried and failed to obtain a preliminary injunction against Hannon. See Memorandum of Decision dated June 24, 1016 (Salinger, J.) The case was once again before the Court in connection with various motions to dismiss, which were allowed in part and as to other counts reserved, since plaintiff’s counsel indicated that he would amend the complaint. The Amended Complaint was filed on October 7, 2016. The allegations as set forth in the Amended Complaint, together with attachments thereto, are as follows. The loan which is at the heart of this case was made on July 21, 2011. It was made by Bright Horizons, an entity owned by Boston attorney George McLaughlin. The loan was made to two companies, Ware Real Estate (Ware) and ABC&D Recycling (Recycling). Ware owns real property in Ware, Massachusetts improved with a waste transfer station; at the time, it was wholly owned by defendant Hannon. Recycling was in the business of recycling debris from construction sites and operated the waste transfer station in Ware. Hannon was its president and sole officer. Hannon was also a long time client of McLaughlin. The loan to Ware and Recycling was payable in full on demand, pursuant to terms set forth in a promissory note (the “W&R Note”) with payments of interest to be made on a monthly basis. The W&R Note is attached to the Amended Complaint as Exhibit A. In addition to requiring payment on demand, the W&R Note gave Bright Horizon the […]

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Posted by Massachusetts Legal Resources - December 31, 2016 at 12:24 pm

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National Grid Holdings, Inc., et al. v. Commissioner of Revenue (Lawyers Weekly No. 11-064-16)

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   14-P-1662                                       Appeals Court   NATIONAL GRID HOLDINGS, INC., & others[1]  vs.  COMMISSIONER OF REVENUE. No. 14-P-1662. Suffolk.     December 11, 2015. – June 8, 2016.   Present:  Cypher, Carhart, & Blake, JJ. Taxation, Abatement, Corporate excise, Accounting principle.  Public Utilities.  Debt.  Corporation, Stock.  Evidence, Settlement offer.       Appeal from a decision of the Appellate Tax Board.     John S. Brown (Donald-Bruce Abrams with him) for the taxpayers. Brett M. Goldberg for Commissioner of Revenue.     CYPHER, J.  The plaintiffs, National Grid Holdings, Inc. (NGHI), National Grid USA (NGUSA), and National Grid USA Service Company, Inc. (NG Service) (collectively, taxpayers), appeal from a decision of the Appellate Tax Board (board) in favor of the defendant, Commissioner of Revenue (commissioner), on the taxpayers’ claims for an abatement of corporate excise for the tax year ended March 31, 2002.  Primarily at issue is whether certain financing transactions, referred to as deferred subscription arrangements (DSAs), among various subsidiaries of National Grid plc (NGPLC), constituted true indebtedness so that the interest paid thereon qualified for the deduction allowed under the Massachusetts taxation of corporations statute, G. L. c. 63, § 30(4). NGPLC is a British electric and gas utility company that owns numerous entities in the United States (U.S.), the United Kingdom (U.K.), and beyond (collectively, National Grid).  The DSAs were financing arrangements designed by National Grid to take advantage of the differences in the U.S. and U.K. tax codes.[2]  National Grid attempted to cast the transactions as indebtedness under U.S. State and Federal tax laws, thereby reducing National Grid’s tax liability in the U.S., and as equity, under U.K. law, thereby reducing its taxable income in the U.K.  Of overriding concern was the avoidance of any appearance of indebtedness in the U.K., where a debenture between a U.K. entity and its foreign subsidiary is strictly prohibited by statute, under threat of criminal sanctions.[3]  To that end, National Grid drafted the DSAs as agreements among various related entities to sell and repurchase shares of stock, maintaining in these proceedings that the mandatory nature of the stock repurchase constituted debt under Massachusetts corporate tax law. “We will not modify or reverse a decision of the board if the decision is based on both substantial evidence and the correct application of the law.”  Boston Professional Hockey Assn. v. Commissioner of Rev., 443 Mass. 276, 285 (2005).  […]

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Posted by Massachusetts Legal Resources - June 8, 2016 at 3:31 pm

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Realty Finance Holdings, LLC v. KS Shiraz Manager, LLC, et al. (Lawyers Weekly No. 11-110-14)

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-252                                        Appeals Court   REALTY FINANCE HOLDINGS, LLC[1]  vs.  KS SHIRAZ MANAGER, LLC, & others.[2] No. 13-P-252. Suffolk.     January 9, 2014.  –  September 5, 2014.   Present:  Katzmann, Fecteau, & Milkey, JJ. Contract, What constitutes, Condition precedent, Choice of law clause, Damages.  Evidence, Parol evidence.  Practice, Civil, Summary judgment.  Damages, Breach of contract.       Civil action commenced in the Superior Court Department on August 21, 2008.   The case was heard by Charles T. Spurlock, J., on a motion for summary judgment; a hearing on the assessment of damages was had before Carol S. Ball, J., and entry of final judgment was ordered by her.     Jeffrey P. Allen (Maria Galvagna Mesinger with him) for the defendants. Paul S. Samson for the plaintiff.   KATZMANN, J.  In this appeal, the parties dispute whether two thirty-eight page limited liability company agreements, negotiated and drafted with the assistance of counsel and each containing an integration clause, should be enforced as written.  A Superior Court judge entered summary judgment for the plaintiff, ruling that the agreements were fully integrated contracts and that the parol evidence rule prohibited consideration of the parties’ negotiations to show that the agreements were subject to contingencies.  A final judgment then entered awarding damages to the plaintiff.  On appeal, the defendants argue that it was always understood that the agreements, though fully executed, were not to take effect until certain financing and property acquisitions were in place and   that electronic mail message (e-mail) exchanges between the parties raise genuine issues of material fact whether integration was intended.  The defendants further maintain that the plaintiff is not entitled to damages under the terms of the agreements.  We affirm. 1.  Facts.  We take the undisputed facts from the judge’s February 1, 2010, “Memorandum and Order on the Plaintiff’s Motion for Summary Judgment on Liability” and from the parties’ statement of undisputed facts.  We also add material from the record for purposes of background and discussion, as noted.  During the relevant events of this case, the plaintiff was a Delaware limited liability company involved in real estate specialty finance.[3]  The defendants are related Massachusetts entities involved in real estate acquisition and management.  Kambiz Shahbazi is the principal of KS GS Manager, LLC; KS GS Equity Partners, LLC; KS Shiraz Manager, LLC; and KS Shiraz Equity Patners, LLC, the entities that […]

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Posted by Massachusetts Legal Resources - September 5, 2014 at 9:09 pm

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