Weiler v. PortfolioScope, Inc., et al. (Lawyers Weekly No. 10-123-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11476 MILTON C. WEILER, JR. vs. PORTFOLIOSCOPE, INC., & others.[1] Suffolk. March 3, 2014. – July 11, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Secured Transactions. Uniform Commercial Code, Secured creditor, Secured transaction, Good faith. Corporation, Stock. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Interference with contractual relations. Conversion. Consumer Protection Act, Unfair or deceptive act. Uniform Fraudulent Transfer Act. Civil action commenced in the Superior Court Department on February 17, 2009. The case was heard by Margaret R. Hinkle, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Curtis C. Pfunder for the plaintiff. Andrew N. Nathanson (Keith P. Carroll with him) for the defendants. BOTSFORD, J. The disputes in this case arise from a complex web of relationships between various individual and corporate entities. The plaintiff, Milton C. Weiler, Jr., the former president and chief operating officer of the defendant corporation, PortfolioScope, Inc. (PortfolioScope), brought suit against the defendants raising various claims, including breach of contract, violation of G. L. c. 93A, and fraudulent transfers pursuant to the Uniform Fraudulent Transfer Act (UFTA). After a jury-waived trial, Weiler prevailed, and a judgment entered in his favor. The Appeals Court reversed the judgment in part, and we granted Weiler’s application for further appellate review. For the reasons discussed hereafter, we affirm the judgment of the Superior Court in almost all respects. 1. Background. We summarize the pertinent facts as found by the trial judge; additional facts are discussed in connection with the issues raised. In 1981 and 1998, respectively, Weiler cofounded Computer Aided Decisions and CAD Research, Inc. (CAD entities), companies that developed and marketed software to help manage investment portfolios. In early 2000, Spencer Trask & Co. (Spencer Trask), a venture capital firm effectively controlled by the defendant Kevin Kimberlin,[2] acquired the CAD entities from Weiler and the cofounder. After the purchase, the CAD entities were merged into a new company that became the defendant PortfolioScope. Weiler received cash as well as stock and stock options in the new company at the time of the sale and served at that time as its president and chief operating officer. In 2001, PortfolioScope began experiencing financial difficulty, and it received a series […]
Weiler v. PortfolioScope, Inc., et al. (Lawyers Weekly No. 11-019-13)
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‑261 Appeals Court MILTON C. WEILER, JR. vs. PORTFOLIOSCOPE, INC., & others.[1] No. 12‑P‑261. Suffolk. October 10, 2012. ‑ February 1, 2013. Present: Grasso, Fecteau, & Agnes, JJ. Secured Transactions. Uniform Commercial Code, Secured creditor, Secured transaction, Good faith. Corporation, Stock. Contract, Performance and breach, Implied covenant of good faith and fair dealing, Interference with contractual relations. Conversion. Consumer Protection Act, Unfair or deceptive act. Uniform Fraudulent Transfer Act. Civil action commenced in the Superior Court Department on February 17, 2009. The case was heard by Margaret R. Hinkle, J. Keith P. Carroll for the defendants. Curtis Clark Pfunder for the plaintiff. FECTEAU, J. This is an appeal by the defendants, PortfolioScope, Inc. (PortfolioScope), Kevin B. Kimberlin, and Joseph T. Whelihan, from a judgment in favor of Milton C. Weiler, Jr., after a jury-waived trial in the Superior Court.[2] The principal question in this case arises from the application of a stock option purchase and sale agreement between PortfolioScope and Weiler. The defendants do not challenge the judge’s decision that PortfolioScope breached the agreement with the plaintiff to pay five percent of the proceeds from a settlement related to a pending lawsuit between PortfolioScope and iFlex Solutions Limited (the iFlex litigation). The total damages, as found by the judge, were $ 471,000.[3] The judge determined that the agreement gave Weiler priority of payment over a secured creditor of PortfolioScope, Kevin Kimberlin Partners, L.P. (KKP), an investment company directed by the defendant Kimberlin. The defendants contend that a misinterpretation of the agreement coupled with a misapplication of secured transactions principles resulted in the judge’s erroneous conclusions that: (1) PortfolioScope breached the covenant of good faith and fair dealing with Weiler; (2) Kimberlin knowingly and intentionally interfered with PortfolioScope’s performance under Weiler’s contracts; (3) all defendants converted funds properly belonging to Weiler; (4) all defendants violated G. L. c. 93A, § 11, awarding Weiler double damages and attorney’s fees; (5) all defendants violated G. L. c. 109A, the Uniform Fraudulent Transfer Act (UFTA); and (6) all defendants conspired against Weiler. We agree with the defendants and reverse. 1. Background. In the 1980′s, Weiler developed certain financial portfolio software, in conjunction with forming two entities known as Computer Aided Decisions (CAD) and CAD Research. In 2000, Spencer Trask & Co. (Spencer Trask), a venture capital […]