Commonwealth v. Woollam (Lawyers Weekly No. 10-196-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-10709 COMMONWEALTH vs. DEREK WOOLLAM. Bristol. October 6, 2017. – December 13, 2017. Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ. Homicide. Constitutional Law, Grand jury, Assistance of counsel, Admissions and confessions, Voluntariness of statement. Due Process of Law, Grand jury proceedings, Assistance of counsel. Grand Jury. Cellular Telephone. Evidence, Grand jury proceedings, Authentication, State of mind, Motive, Consciousness of guilt, Bias of government witness, Prior misconduct, Admissions and confessions, Voluntariness of statement. Witness, Bias. Practice, Criminal, Capital case, Grand jury proceedings, Assistance of counsel, Conduct of prosecutor, Admissions and confessions, Voluntariness of statement. Indictments found and returned in the Superior Court Department on March 29, 2007, and April 17, 2008. A pretrial motion to suppress evidence was heard by Robert J. Kane, J.; the cases were tried before Barbara A. Dortch-Okara, J.; and a motion for a new trial, filed on May 29, 2013, was heard by Renee P. Dupuis, J. David H. Mirsky (Joanne Petito also present) for the defendant. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. BUDD, J. In February, 2009, a jury convicted the defendant, Derek Woollam, of murder in the first degree on a theory of deliberate premeditation in connection with the shooting death of John Oliveira in July, 2006.[1] In this appeal, the defendant asserts error in the unauthorized presence of police officers in the grand jury room during the presentation of witness testimony in support of the indictments against him, as well as the admission of certain evidence at trial due to ineffective assistance of counsel and prosecutorial misconduct. He also seeks relief under G. L. c. 278, § 33E. After full consideration of the record and the defendant’s arguments, we affirm his convictions and the denial of his motion for a new trial, and we decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E. Background. We summarize the evidence that the jury could have found, reserving certain details for discussion of specific issues. The drug operation. In 2006, John Oliveira ran a large-scale drug operation out of a studio apartment in a duplex in Swansea. At the time of his death, he had two “employees”: the defendant, who delivered marijuana to customers and collected the money; and Dylan Hodgate, who broke down the larger quantities of marijuana and […]
Commonwealth v. Johnson (and two companion cases) (Lawyers Weekly No. 11-153-17)
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 17-P-58 Appeals Court 17-P-59 17-P-70 COMMONWEALTH vs. ALEXANDER JOHNSON (and two companion cases[1]). Nos. 17-P-58, 17-P-59, & 17-P-70. Norfolk. November 1, 2017. – December 12, 2017. Present: Milkey, Blake, & Singh, JJ. Assault and Battery by Means of a Dangerous Weapon. Evidence, Joint venturer. Practice, Criminal, Dismissal, Indictment. Indictments found and returned in the Superior Court Department on March 24, 2016. Motions to dismiss were heard by Beverly J. Canone, J. Varsha Kukafka, Assistant District Attorney, for the Commonwealth. Kathleen E. McKay for Alexander Johnson. Neil V. Madden for Jordan Williams. John M. Brinkman, for Michael Leary, was present but did not argue. MILKEY, J. A grand jury indicted Alexander Johnson, Jordan Williams, and Michael Leary for assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW-SBI). See G. L. c. 265, § 15A(c)(i). The indictments were based on a bar fight, during which Christopher Socha (the victim) was struck on the top of his head with a glass. The Commonwealth’s theory was that Johnson was the one who struck the victim with the glass, and that Williams and Leary were criminally liable for aiding and abetting Johnson.[2] Johnson moved to dismiss so much of the ABDW-SBI indictment as alleged serious bodily injury, on the grounds that the evidence presented to the grand jury failed to establish probable cause that such injury occurred. See generally Commonwealth v. McCarthy, 385 Mass. 160, 162-163 (1982). Williams and Leary moved to dismiss the ABDW-SBI indictments against them in toto, arguing that the evidence before the grand jury failed to establish probable cause that they aided and abetted Johnson’s striking the victim with the glass. Before us now is the Commonwealth’s appeal from the Superior Court order allowing all three McCarthy motions with respect to the ABDW-SBI indictments.[3] For the reasons that follow, we reinstate the ABDW-SBI indictments against each defendant. Background.[4] The bar fight. The three defendants worked for a liquor wholesaler in Kingston. On October 3, 2015, a Saturday, the company held its annual party at a Plymouth restaurant. The party featured an “open bar,” and the defendants had a considerable amount to drink.[5] Together with other partygoers, they then went to another local restaurant, the Waterfront Bar & Grille, to continue the festivities. The bar area […]
In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 11-152-17)
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-215 Appeals Court IN THE MATTER OF A GRAND JURY INVESTIGATION. No. 16-P-215. Middlesex. October 5, 2017. – December 11, 2017. Present: Sullivan, Blake, & Singh, JJ. Witness, Compelling giving of evidence, Self-incrimination. Constitutional Law, Self-incrimination. Cellular Telephone. Grand Jury. Privacy. Public Records. Practice, Criminal, Assistance of counsel. Contempt. Motion filed in the Superior Court Department on January 22, 2016. The proceeding was heard by Kimberly S. Budd, J., and entry of a judgment of contempt was ordered by her. Joanne M. Daley, Committee for Public Counsel Services, for the petitioner. Kevin J. Curtin, Assistant District Attorney, for the Commonwealth. BLAKE, J. The petitioner appeals from an order directing him to enter his personal identifying number (PIN) access code (hereinafter PIN code) into his Apple iPhone (a “smart” cellular telephone, hereinafter iPhone), and a subsequent judgment of contempt for refusing to comply. We affirm. Background. A Middlesex County grand jury requested that an assistant district attorney seek an order from a Superior Court judge as part of an ongoing investigation of an assault and battery on two children. The Commonwealth thus moved for an order that the petitioner produce the PIN code and any other electronic key or password required for the iPhone. A search warrant previously issued in the Lowell Division of the District Court Department had authorized a search of the contents of the iPhone. The motion, the proposed order, and two additional documents were filed in court under seal. The motion and the proposed order were served on counsel for the petitioner; the additional documents were not. One of the additional documents was a statement showing the petitioner’s ownership and control of the iPhone and the Commonwealth’s knowledge thereof. The other document was an affidavit of the assistant district attorney, which summarized the evidence before the grand jury; appended to the affidavit was a transcript of the grand jury proceedings. The petitioner filed a reply. After a hearing, in which petitioner’s counsel participated, the Commonwealth’s motion was allowed, and an order entered detailing the protocol by which the petitioner would enter the PIN code so that the search warrant could be executed. The order also prohibited the Commonwealth from introducing evidence of the petitioner’s act of production in any prosecution of him. When the […]
Commonwealth v. Diaz (Lawyers Weekly No. 10-195-17)
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 SJC-11812 COMMONWEALTH vs. FAUSTINO DIAZ, JR. Hampden. September 8, 2017. – December 8, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ. Homicide. Practice, Criminal, Argument by prosecutor, Capital case. Evidence, Chain of custody. Indictment found and returned in the Superior Court Department on February 15, 2013. The case was tried before Constance M. Sweeney, J. Andrew S. Crouch for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. GAZIANO, J. In January, 1991, the victim was found lying across her bed, with her face covered in blood, at a housing complex for the elderly in Springfield. She had been sexually assaulted and severely beaten. An autopsy determined that she had suffered numerous broken bones in her face, sternum, and ribs, and that she died as a result of blunt force trauma. Police interviewed individuals who knew the victim and also employees who worked at the complex, including maintenance, nursing, and cleaning staff. The defendant, who was a part-time maintenance worker there, was one of those interviewed. No arrests were made, and no suspect was identified. In 2012, Springfield police reopened the investigation. They sought to interview men, including the defendant, who had had access to the housing complex and to collect deoxyribonucleic acid (DNA) samples from them. Investigators visited the defendant at his place of employment, and he consented to the taking of a DNA sample. Approximately one month later, test results indicated that the defendant’s DNA matched the DNA profile from sperm found in the victim’s body. The defendant was arrested and indicted on charges of murder in the first degree and aggravated rape.[1] At trial, the Commonwealth proceeded on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with aggravated rape as the predicate felony. A Superior Court jury found the defendant guilty of murder in the first degree on all three theories. On appeal, the defendant argues that the prosecutor presented arguments and asked the jury to draw inferences from facts that had been excluded from their consideration; made multiple misstatements of fact in her closing argument; suggested that she had personal knowledge of the case beyond the evidence that had been presented to the jury; argued in a manner designed to appeal to the jury’s emotions and […]
Commonwealth v. Camblin (Lawyers Weekly No. 10-194-17)
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 SJC-11774 COMMONWEALTH vs. KIRK P. CAMBLIN. Middlesex. September 7, 2017. – December 8, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Motor Vehicle, Operating under the influence. Evidence, Breathalyzer test, Scientific test. Complaint received and sworn to in the Ayer Division of the District Court Department on April 28, 2008. Following review by this court, 471 Mass. 639 (2015), a motion to exclude evidence as scientifically unreliable was heard by Mark A. Sullivan, J. Andrew W. Piltser Cowan for the defendant. Casey E. Silvia, Assistant District Attorney (Cyrus Y. Chung & Laura S. Miller, Assistant District Attorneys, also present) for the Commonwealth. Gaziano, J. In Commonwealth v. Camblin, 471 Mass. 639, 640, 651 (2015) (Camblin I), we remanded this case to the District Court to conduct a hearing on the scientific reliability of a particular model of breathalyzer, the Alcotest 7110 MK III-C (Alcotest), while retaining jurisdiction of the case. After conducting a Daubert–Lanigan hearing, a District Court judge found that the Alcotest was capable of producing scientifically reliable breath test results, and denied the defendant’s motion to exclude this evidence at his trial for operating a motor vehicle while under the influence of alcohol. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (Daubert); Commonwealth v. Lanigan, 419 Mass. 15 (1994). The judge returned his findings to this court, and both sides filed supplemental briefing, prior to renewed oral argument before us. The defendant now contends that the judge abused his discretion in finding that the Alcotest satisfies the Daubert–Lanigan standard for the admissibility of scientific evidence. We conclude that there was no abuse of discretion and affirm the denial of the defendant’s motion to exclude the Alcotest results. Background. a. Prior proceedings. In 2008, a District Court complaint issued charging the defendant with operating a motor vehicle while under the influence of liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a) (1). Before trial, the defendant moved to exclude admission of breath test evidence generated by the Alcotest; he argued that errors in the device’s computer source code, and other deficiencies, rendered its results unreliable.[1] A District Court judge denied the defendant’s motion without conducting a Daubert–Lanigan hearing. The judge determined that because the Alcotest utilizes infrared spectroscopy technology, and […]
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 2 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 […]
Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-046-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Property). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the Property, the defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the Property and the Grantor of the Conservation Restriction. Plaintiffs allege that the Ballou Channing induced the Foundation into making a $ 3 million gift in return for Ballou Channing’s promise to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”). 2 This lawsuit was instituted on May 4, 2016. In their original Complaint, plaintiffs asserted the following counts against both defendants: breach of the Gift Agreement (Count I); breach of the Conservation Restriction (Count II); promissory estoppel (Count III); unjust enrichment (Count IV); and violation of Chapter 93A (Count V). The defendants filed motions to dismiss. On December 30, 2016, this Court allowed those motions in part. See Memorandum of Decision and Order dated December 30, 2016 (the 2016 Decision). As to Ballou Channing, this Court dismissed Count II because it no longer owned the Property that was subject to the Conservation Restriction. As to Cedar Hill, this Court dismissed Counts I, III and IV – those counts based on the Gift Agreement –because Cedar Hill was not a party to the Gift Agreement. Count V alleging a violation of Chapter 93A was dismissed as to both defendants. Six months later, plaintiffs amended their complaint to assert new claims against both defendants and to add back some claims that this Court had previously dismissed. Specifically, the Amended Complaint contains a new claim against both defendants based on the same allegations that were the basis of Counts I, III and IV of the original Complaint, but with a wrinkle: this new claim asserts a breach of what is described as a “Letter Agreement” between the defendants Ballou Channing and Cedar Hill. Plaintiffs say that they only learned of this Letter Agreement as a result of discovery in the case but now claim they are third party beneficiaries entitled […]
Petrucci v. Esdaille, et al. (Lawyers Weekly No. 09-047-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-03998-BLS2 DANIEL P. PETRUCCI, Plaintiff vs. CHARLES ESDAILLE, CHRISTOPHER HAYES, DUNCAN MCINTYRE, and ALTENEX, LLC Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT ALTENEX, LLC’S MOTION TO DISMISS COUNT VII This case arises from business dealings among four people who formed a company called Market Maker Solutions, LLC (MMS), a business venture intended to utilize information technology in the area of renewable energy and carbon emissions abatement. Plaintiff Daniel Petrucci and defendants Charles Esdaile and Christopher Hayes each owned 30 percent of MMS; defendant Duncan McIntyre owned the remainder. The Second Amended Complaint (the Complaint) alleges that, after extracting from Petrucci his knowledge and expertise, the defendants froze him out by falsely telling him that MMS was worthless, dissolving the company, and then transferring MMS’s assets to a new entity, which ultimately became the defendant Altenex, LLC (Altenex). On July 1, 2017, this Court (Salinger, J.) dismissed the 93A claim asserted against the three individual defendants, concluding that it arose from an intra-corporate dispute to which Chapter 93A does not apply. The case is now before the Court on Altenex’s Motion to Dismiss the 93A claim against it. This Court concludes that the Motion must be ALLOWED, essentially for the same reasons articulated by Judge Salinger. 2 Count VII of the Complaint is brought pursuant to G.L.c. 93A § 11, which requires that both the plaintiff and the defendant be engaged in the conduct of “trade or commerce.” “It is well established that disputes between parties in the same venture do not fall within the scope of G.L.c. 93A section 11.” Szalla v. Locke, 421 448, 451 (1995) and cases cited therein. “’Intra-enterprise’ disputes, including those…between or among fellow shareholders are essentially private in nature, and thus not considered ‘commercial transactions’ within the meaning of c. 93A.” Selmark Associates, Inc. v. Ehrlich, 467 Mass. 525, 549 (2014), quoting Milliken & Co., v. Duro Textiles, LLC, 451 Mass. 547, 563 (2008). It was for this reason that Judge Salinger dismissed the 93A claim against the three individual defendants. Plaintiff argues that, because Altenex is a separate and distinct entity, there was no “intramural relationship” between him and Altenex, putting the claim against Altenex on a different footing. This Court disagrees. Count VII alleges that Altenex is “vicariously liable” for the unfair and deceptive acts and practices of the individual defendants and itself engaged in unfair and deceptive conduct. But the wrongdoing described in the Complaint is based entirely on the conduct of the individual defendants at a time when they, together with Petrucci, were members of MMS: they misrepresented its value, then transferred its assets and misappropriated property jointly owned with Petrucci, thus […]
In re OvaScience Inc. Stockholder Litigation (Lawyers Weekly No. 09-050-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 2015-3087-BLS2 (Consol. with 16-0645) IN RE OVASCIENCE INC. STOCKHOLDER LITIGATION MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION This is a putative class action arising under Sections 11, 12, and 15 of the Securities Act of 1933. Plaintiffs Westmoreland County Employee Retirement System, Phillip Hofmann, Carlos Rivas, and Cesar Castellanos are investors who purchased stock in the defendant OvaScience, Inc. (OvaScience). They allege that a Registration Statement and Prospectus issued in connection with a secondary offering of OvaScience stock on January 8, 2015 contained false statements and material omissions of fact concerning an experimental fertility treatment that OvaScience was in the process of developing. The case is now before the Court on the plaintiffs’ Motion for Class Certification pursuant to Mass R. Civ. P. 23. The plaintiffs seek to certify a nationwide class that consists of all persons who purchased OvaScience stock “pursuant and/or traceable to” the January 8 2015 secondary offering.1 Alternatively, they seek statewide class certification consisting of the Massachusetts-based purchasers. This Court concludes that the plaintiffs’ Motion must be DENIED. 1 Excluded from the proposed class are each of the defendants, past and current officers and directors of OvaScience, J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, and Leerink Partners LLC, their affiliates or sponsors, the members of their families, and any entity which any defendant has or had a controlling interest, and the legal representatives, heirs, successors, or assigns of any such excluded party. 2 Certification of this class requires this Court to exercise personal jurisdiction over absent class members who are not residents of Massachusetts. Whether that can be done consistent with due process was first addressed by the Supreme Court in Phillips Petroleum Co v. Stutts, 472 U.S. 797 (1985) (Stutts). The Court reasoned that, “[b]ecause a state places fewer burdens upon an absent class plaintiff than it does upon an absent defendant in a nonclass suit, the Due Process Clause need not and does not afford the former as much protection from state-court jurisdiction as it does the latter.” 472 U.S. at 811. The Court went on to hold that the forum state may exercise jurisdiction over the absent class member even in the absence of minimum contacts so long as it provides certain basic due process protections. Id. At a minimum, that means that the absent plaintiff must have the opportunity to remove himself from the class. Because the case before it was brought in a state (Kansas) that permitted absent class members to opt out, the Supreme Court held that the state court could properly assert personal jurisdiction over nonresident class members. Massachusetts, of course, does not […]
Categories: News Tags: 0905017, Inc., Lawyers, Litigation, Ovascience, Stockholder, Weekly
In re OvaScience Inc. Stockholder Litigation (Lawyers Weekly No. 09-051-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 2015-3087-BLS2 (Consol. with 16-0645) IN RE OVASCIENCE INC. STOCKHOLDER LITIGATION MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT This is a putative class action alleging violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 ( the Securities Act). Plaintiffs Westmoreland County Employee Retirement System (Westmoreland), Phillip Hofmann, Carlos Rivas, and Cesar Castellanos are investors who purchased stock in the defendant OvaScience, Inc. (OvaScience).1 They allege that a Prospectus and Prospectus Supplement issued in connection with a secondary offering of OvaScience stock contained false statements and material omissions of fact concerning an experimental fertility treatment that OvaScience was in the process of developing. In addition to suing OvaScience, plaintiffs have also named as defendants certain of the company’s officers and directors as well as the three investment banks who served as the underwriters. The defendants now move for summary judgment against Castellanos, Hofmann, and Rivas (the Individual Plaintiffs). This Court concludes that the Motion must be ALLOWED. 1 Heather Carlson was also a plaintiff in the action. However, on August 1, 2017, the parties filed a joint stipulation voluntarily dismissing her from the action without prejudice. Judgment was entered on the docket pursuant to Mass. R. Civ. P. 58(a) on August 3, 2017. 2 BACKGROUND On January 8, 2015, OvaScience conducted a secondary public stock offering in which it sold 2,645,000 shares at $ 50 per share (the January 8 Offering). J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, and Leerink Partners LLC served as the Underwriters. The offering closed on January 13, 2015, at which point there were over 27 million OvaScience shares outstanding. At various points in 2015, the Individual Plaintiffs made purchases of OvaScience stock through online brokers E*Trade and Capital One Investing. On January 8, 2015, Castellano purchased 350 shares at $ 50.488. He made four more purchases between January 12 and February 3, 2015 for a price per share that ranged from $ 40.0899 up to $ 48.1799. Rivas made seven purchases between March 2015 and August 2015 for a price per share ranging from $ 24.32 to $ 41.49. Hoffman made three purchases between February and April 2015 for a price per share that ranged from $ 31.83 to $ 42.107485. In October 2015, plaintiffs Hofmann and Rivas filed a lawsuit against the defendants; Castellanos filed a separate complaint based on the same allegations five months later, and the two actions were consolidated. In August 2016, Westmoreland intervened as plaintiff in the consolidated actions. After this Court denied a motion to dismiss, discovery proceeded on a bifurcated basis. Phase I of the discovery was limited to […]
Categories: News Tags: 0905117, Inc., Lawyers, Litigation, Ovascience, Stockholder, Weekly