International Brotherhood of Electrical Workers Local No. 129 Benefit Fund v. Tucci, et al. (and eight companion cases) (Lawyers Weekly No. 10-038-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12137 International Brotherhood of Electrical Workers LOCAL NO. 129 BENEFIT FUND[1] vs. JOSEPH M. TUCCI & others[2] (and eight consolidated cases[3]). Suffolk. November 7, 2016. – March 6, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Corporation, Stockholder’s derivative suit, Merger, Sale of assets, Valuation of stock, Board of directors. Practice, Civil, Class action, Dismissal. Civil actions commenced in the Superior Court Department on October 15, October 16, October 19, October 20, October 23, October 28, and October 29, 2015. After consolidation, a motion to dismiss was heard by Edward P. Leibensperger, J. The Supreme Judicial Court granted an application for direct appellate review. Jason M. Leviton (Michael G. Capeci, of New York, & Joel A. Fleming also present) for International Brotherhood of Electrical Workers Local No. 129 Benefit Fund & others. Thomas J. Dougherty (Kurt Wm. Hemr also present) for Joseph M. Tucci & others. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Ian D. Roffman & Matthew J. Connolly, for Associated Industries of Massachusetts, amicus curiae, submitted a brief. BOTSFORD, J. In these consolidated cases, shareholders of a publicly traded corporation claim that a merger transaction proposed by the board of directors will result in the effective sale of the corporation for an inadequate price. The question we consider is whether they may bring that claim directly against the board members, or must bring it as a derivative claim on behalf of the corporation. We answer that the claim must be brought derivatively.[4] Background. The plaintiffs appeal from the dismissal of their first amended class action complaint (complaint)[5] alleging breaches of fiduciary duty by the board of directors of EMC Corporation (EMC) arising from a merger between EMC and Denali Holding Inc. and Dell Inc. (collectively, Dell). At the time that they commenced these actions, the plaintiffs were shareholders of EMC; the proposed merger would result in the shareholders receiving a cash payment in exchange for their EMC stock. The plaintiffs’ complaint alleges that they bring the actions on behalf of a class consisting of “all other shareholders of EMC . . . who are or will be deprived of the opportunity to maximize the value of their shares of EMC […]
Categories: News Tags: 1003817, Benefit, Brotherhood, cases, companion, Eight, Electrical, Fund, International, Lawyers, Local, Tucci, Weekly, Workers
Massachusetts Insurers Insolvency Fund v. Berkshire Bank (Lawyers Weekly No. 10-174-16)
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 SJC-12019 MASSACHUSETTS INSURERS INSOLVENCY FUND vs. BERKSHIRE BANK. Suffolk. September 8, 2016. – November 3, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Massachusetts Insurers Insolvency Fund. Insurance, Workers’ compensation insurance, Insolvency of insurer. Workers’ Compensation Act, Insurer, Reimbursement of insurer. Statute, Construction. Words, “On behalf of.” Civil action commenced in the Superior Court Department on July 14, 2014. The case was heard by Mitchell H. Kaplan, J., on motions for summary judgment. The Supreme Judicial Court granted applications for direct appellate review. Gregory P. Deschenes (Kurt Mullen with him) for the plaintiff. Owen Gallagher (Gordon Prescott with him) for the defendant. BOTSFORD, J. General Laws c. 175D, § 17 (§ 17), authorizes the Massachusetts Insurers Insolvency Fund (Fund) to recover from “high net worth insureds” certain amounts paid by the Fund “on behalf of” such insureds. G. L. c. 175D, § 17 (3). The Fund brought this action in the Superior Court pursuant to § 17, seeking to recover from the defendant Berkshire Bank (Berkshire) an entity that meets the definition of “high net worth insured,” workers’ compensation benefits it has paid to a Berkshire employee. Ruling on cross motions for summary judgment, a judge of that court interpreted § 17 (3) to preclude the Fund’s recovery. We conclude that the Fund is authorized to recoup the amounts in question because they were paid by the Fund “on behalf of” Berkshire within the meaning of § 17 (3). Accordingly, we reverse the judgment of the Superior Court. Background. Both parties agree that there are no material facts in dispute. The memorandum of decision of the Superior Court judge sets out the background facts succinctly, which we quote here: “In May 2003, [Donna] Poli, an assistant branch manager for Woronoco Savings Bank (Woronoco), injured her back while lifting coin-filled bags. Woronoco was then the named insured under a workers’ compensation/employer’s liability policy issued by Centennial [Insurance Company]. Woronoco notified Centennial of the injury and Centennial began paying Poli weekly workers’ compensation benefits pursuant to G. L. c. 152, § 34 [providing temporary total incapacity benefits for up to three years]. On June 16, 2005, Woronoco merged with and into Berkshire. “In August 2006, Poli exhausted her entitlement to benefits under […]
Categories: News Tags: 1017416, Bank, Berkshire, Fund, Insolvency, Insurers, Lawyers, massachusetts, Weekly
Fletcher Fixed Income Alpha Fund, Ltd., et al. v. Grant Thornton LLP, et al. (Lawyers Weekly No. 11-085-16)
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 15-P-830 Appeals Court FLETCHER FIXED INCOME ALPHA FUND, LTD., & another[1] vs. GRANT THORNTON LLP & others.[2] No. 15-P-830. Suffolk. January 6, 2016. – July 14, 2016. Present: Cypher, Grainger, & Meade, JJ. Auditor. Practice, Civil, Motion to dismiss. Jurisdiction, Nonresident, Long-arm statute. Due Process of Law, Jurisdiction over nonresident. Negligence, Misrepresentation, Proximate cause. Proximate Cause. Civil action commenced in the Superior Court Department on January 17, 2014. Motions to dismiss were heard by Janet L. Sanders, J. Rachel S. Fleishman, of New York (Philip Y. Brown with her) for the plaintiffs. Grant J. Esposito, of New York, for Grant Thornton LLP. William M. Connolly, of Pennsylvania, for EisnerAmper LLP & another. Jonathan D. Cogan, of New York, for SS&C Technologies, Inc. MEADE, J. The plaintiffs, Fletcher Fixed Income Alpha Fund, Ltd. (Alpha), and Massachusetts Bay Transportation Authority Retirement Fund (MBTARF), Alpha’s sole shareholder, appeal from the dismissal of their claims for accounting malpractice and negligent misrepresentation against certain entities that audited and administered Alpha, for failing to discover the fund manager’s fraud. The claims against the defendants, Grant Thornton LLP (Grant Thornton), and EisnerAmper LLP and EisnerAmper (Cayman) Ltd. (collectively, EisnerAmper), who served as auditors, were dismissed for lack of personal jurisdiction, a Superior Court judge ruling that the plaintiffs failed to show that their claims arose from the defendants’ transaction of business in Massachusetts. The claims brought by MBTARF against SS&C Technologies, Inc. (SS&C), a former Alpha administrator, were dismissed for failure to state a claim upon which relief can be granted, the judge reasoning that Alpha was insolvent by the time SS&C was hired, thereby negating the element of proximate cause. Pending their appeal to this court, the plaintiffs settled with EisnerAmper. As to the remaining defendants, the plaintiffs principally argue that in deciding the issue of specific jurisdiction, the judge should have taken into account a broader range of contacts between Grant Thornton and Massachusetts, and should have considered Grant Thornton’s knowledge that the audit reports would be sent to a Massachusetts entity. MBTARF also maintains that the judge held it to an incorrect pleading standard in dismissing its claims against SS&C for failure to allege facts to support causation. We affirm. Background. We summarize the undisputed facts from the judge’s February 23, […]
Lumbermens Mutual Casualty Company v. Workers’ Compensation Trust Fund (Lawyers Weekly No. 11-128-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1982 Appeals Court LUMBERMENS MUTUAL CASUALTY COMPANY vs. WORKERS’ COMPENSATION TRUST FUND. No. 13-P-1982 Suffolk. June 2, 2015. – September 3, 2015. Present: Vuono, Grainger, & Blake, JJ. Workers’ Compensation Act, Reimbursement of insurer. Insurance, Insolvency of insurer. Administrative Law, Primary jurisdiction, Exhaustion of remedies, Agency’s interpretation of statute. Civil action commenced in the Superior Court Department on May 21, 2013. The case was heard by Heidi E. Brieger, J. W. Frederick Uehlein for the plaintiff. Douglas S. Martland, Assistant Attorney General, for the defendant. GRAINGER, J. Lumbermens Mutual Casualty Company in liquidation (Lumbermens) appeals from the Superior Court judgment dismissing its claim against the Workers’ Compensation Trust Fund (trust fund). Lumbermens sought partial reimbursement from the fund for workers’ compensation payments made pursuant to G. L. c. 152, §§ 37 and 65. A Superior Court judge dismissed the claim under the doctrine of primary jurisdiction. We affirm. Background. We summarize the undisputed facts. Lumbermens, an Illinois Corporation, was licensed to issue workers’ compensation insurance policies in Massachusetts. Payments under these policies included so-called “second injury” benefits awarded pursuant to G. L. c. 152, § 37.[1] The trust fund is authorized by that statute to provide partial reimbursement to insurers for second injury payments. Between 2000 and 2008 Lumbermens and the trust fund entered into agreements in six separate cases, referred to as Form 123 agreements,[2] establishing the reimbursement percentage to be applied to “second injury” payments made by Lumbermens in each case. In July, 2012, Lumbermens was placed into rehabilitation, also referred to as a “run-off” period, whereby it could not issue new policies but continued to administer existing policies. The trust fund, which had made reimbursement payments pursuant to the Form 123 agreements until Lumbermens entered the run-off period, thereafter refused further payment. The trust fund asserted that Lumbermens was no longer entitled to reimbursement once the run-off period commenced because it was no longer an “insurer” able to issue policies, as that term is defined in G. L. c. 152, § 1(7). Ten months later, in May, 2013, Lumbermens was placed in liquidation. Approximately one year thereafter Lumbermens filed a complaint for enforcement of the six Form 123 agreements in Superior Court. A Superior Court judge dismissed the complaint, finding that Lumbermen’s claims were more properly heard before the reviewing board (board) of the Department of Industrial Accidents (DIA) under the […]
The Home Insurance Company v. Workers’ Compensation Trust Fund (Lawyers Weekly No. 11-127-15)
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 14-P-1356 Appeals Court THE HOME INSURANCE COMPANY vs. WORKERS’ COMPENSATION TRUST FUND. No. 14-P-1356 Suffolk. June 2, 2015. – September 3, 2015. Present: Vuono, Grainger, Blake, JJ. Workers’ Compensation Act, Reimbursement of insurer, Cost of living allowance. Insurance, Insolvency of insurer. Practice, Civil, Standing. Administrative Law, Agency’s interpretation of statute. Statute, Construction. Appeal from a decision of the Industrial Accident Reviewing Board. Eric A. Smith (Donald E. Wallace with him) for the plaintiff. Douglas S. Martland, Assistant Attorney General, for the defendant. W. Frederick Uehlein & Dorothy M. Linsner, for Lumbermens Mutual Casualty Company, amicus curiae, submitted a brief. Joseph C. Tanski, Gregory P. Deschenes, & Kurt M. Mullen, for Massachusetts Insurers Insolvency Fund, amicus curiae, submitted a brief. GRAINGER, J. We are called upon to analyze certain rights and obligations resulting from the liquidation of a New Hampshire insurance company that issued workers’ compensation policies in Massachusetts. At issue in this appeal is the company’s entitlement pursuant to G. L. c. 152, § 65(2), to reimbursement for cost of living adjustments (COLA, COLA increases), as prescribed by G. L. c. 152, § 34B, to eleven individuals receiving workers’ compensation benefits. Both an administrative judge (judge) and the reviewing board (board) of the Department of Industrial Accidents (DIA) determined, albeit on different rationales, that the company was not entitled to reimbursement. Background. The undisputed facts, excerpted below, are recounted in detail in the board’s comprehensive decision. COLA payments as part of the workers’ compensation scheme. Persons receiving workers’ compensation benefits in Massachusetts are entitled to receive annual COLA increases to reflect changes in the cost of living. See G. L. c. 152, § 34B. These COLA increases are funded, then subject to reimbursement, as follows: Revenues to fund the defendant Workers’ Compensation Trust Fund (trust fund) are raised by an annual assessment[1] on employers pursuant to G. L. c. 152, § 65. Under normal circumstances (i.e., involving solvent insurers), the yearly assessments are collected from employers by their insurers such as the plaintiff Home Insurance Company (Home), who transmit them to the trust fund. The insurers then pay the COLA increases together with other monthly benefits to injured workers. See G. L. c. 152, § 65(2). This, in turn, entitles the insurers to reimbursement from the trust fund for the COLA payments on a quarterly basis. Ibid. Home’s […]
Crown v. Kobrick Offshore Fund, Ltd., et al. (Lawyers Weekly No. 11-040-14)
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‑64 Appeals Court MARC CROWN, trustee,[1] vs. KOBRICK OFFSHORE FUND, LTD., & others.[2] No. 13‑P‑64. Suffolk. December 6, 2013. ‑ April 24, 2014. Present: Fecteau, Sullivan, & Maldonado, JJ. Uniform Securities Act. Securities, Sale. Consumer Protection Act, Securities transactions. Practice, Civil, Instructions to jury, Judgment notwithstanding verdict, Summary judgment, Attorney’s fees. Evidence, Impeachment of credibility, Cross‑examination, Expert opinion, Qualification of expert witness. Witness, Impeachment, Cross‑examination, Expert. Contract, Indemnity. Indemnity. Public Policy. Civil action commenced in the Superior Court Department on June 21, 2001. After review by the Supreme Judicial Court, 442 Mass. 43 (2004), a motion for summary judgment was heard by Ralph D. Gants, J.; the case was tried before Margaret R. Hinkle, J., and motions for judgment notwithstanding the verdict, for a new trial, and to alter or amend the findings were considered by her. Philip Y. Brown (Stacie A. Kosinski with him) for the plaintiff. Jeffrey S. Robbins for the defendants. FECTEAU, J. This cross appeal involves the plaintiff’s claim under the Massachusetts Uniform Securities Act (securities act) for misrepresentation, G. L. c. 110A, § 410(a)(2), tried to a jury, and a claim for unfair and deceptive trade practices, G. L. c. 93A, § 11, tried to a judge; both trials resulted in a judgment for the defendants. On appeal from the judgment and the denial of three posttrial motions, the plaintiff challenges a number of evidentiary rulings, the jury instructions, and the sufficiency of the evidence. In their cross appeal from the judgment, the defendants challenge the allowance of the plaintiff’s motion for summary judgment that dismissed their counterclaim for breach of contract. We discern no abuse of discretion or other error in the evidentiary rulings or jury instructions challenged by the plaintiff, and we see no merit in the plaintiff’s argument that the evidence was insufficient. As to the defendants’ claim on appeal, we conclude that summary judgment was properly entered because the ground for the defendants’ counterclaim is irreconcilable with the Supreme Judicial Court’s decision in a related case, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 (2004) (Marram I). Accordingly, we affirm the judgment and the orders denying the plaintiff’s posttrial motions. Background. 1. Procedural history. This dispute arises from the plaintiff’s investment in the Kobrick Offshore Fund (fund), which […]
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 Trust. Trust, Business trust. Corporation, By‑laws, Stockholder, Board of directors. Contract. Words, “On at least an annual basis.” Civil action commenced in the Superior Court Department on December 1, 2011. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John C. Ertman, of New York (C. Thomas Brown with him) for the defendants. Joseph S. Allerhand, of New York (Patrick J. O’Toole, Jr., with him) for the plaintiffs. The following submitted briefs for amici curiae: Peter H. Mixon, of California, for California Public Employees’ Retirement System. Jeff Mahoney, of the District of Columbia, for Council of Institutional Investors. Jesse M. Fried, pro se. GANTS, J. Under Section 10.2 of the bylaws of the defendants, PIMCO Income Strategy Fund and PIMCO Income Strategy Fund II (collectively, “Funds” or “defendants”), “regular meetings of the Shareholders for the election of Trustees . . . shall be held, so long as Common Shares are listed for trading on the New York Stock Exchange, on at least an annual basis.” The issue on appeal is the meaning of “on at least an annual basis.” The plaintiffs, Brigade Leveraged Capital Structures Fund Ltd. and Brigade Capital Management, LLC (collectively, “Brigade” or “plaintiffs”), contend that the bylaws require that an annual meeting of shareholders of each of the Funds be held in or within twelve months of the last annual shareholder meeting. The defendants contend that the bylaws require only that one annual shareholders’ meeting be held each fiscal year for each of the Funds. We conclude that “on at least an annual basis” means that an annual shareholders’ meeting for each of the Funds must be held no later than one year and thirty days (395 days) after the last annual shareholders’ meeting. Background. The defendant Funds are closed-end investment companies registered under the Investment Company Act of 1940, as amended, 15 U.S.C. § 80a-5(a)(1)(2) (2006), that are organized as Massachusetts business trusts under G. L. c. 182. […]
South End Brothers Indicted on Charges of Defrauding One Fund
Branden Mattier, 22, was arrested at his South End home earlier this summer. He and his brother, Domunique Grice, 27 were indicted on fraud charges Thursday by the Massachusetts Attorney General. South End Patch News
South End Brothers Indicted on Charges of Defrauding One Fund
Branden Mattier, 22, was arrested at his South End home earlier this summer. He and his brother, Domunique Grice, 27 were indicted on fraud charges Thursday by the Massachusetts Attorney General. South End Patch News
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 of. Practice, Civil, Statute of limitations, Dismissal, Standing. Jurisdiction, Personal, Long‑arm statute, Nonresident. Corporation, Derivative action. Fiduciary. Partnership, Fiduciary duty. Negligence, Causation. Due Process of Law, Jurisdiction over nonresident. Contract, Implied covenant of good faith and fair dealing, Performance and breach. Civil action commenced in the Superior Court Department on June 21, 2011. Motions to dismiss were heard by Judith Fabricant, J. John F. Hagan, Jr., of Illinois, for the plaintiffs. Sanford F. Remz for Sullivan Bille, P.C. Matthew Iverson for Dutchess Capital Management, LLC, & others. WOLOHOJIAN, J. This is the second suit brought individually and derivatively by investors in two “feeder” hedge funds against those who controlled or were involved in the operation of the feeder and master funds[3] and a related entity, against one feeder fund’s accounting firm, and against the administrator of both feeder funds. The plaintiffs previously filed a substantially similar case in the Delaware Court of Chancery. After four of the defendants moved to dismiss the Delaware claims for lack of personal jurisdiction, the plaintiffs voluntarily dismissed the Delaware suit in its entirety. Almost eight months later, the plaintiffs then filed this case in the Superior Court. The primary issue on appeal is whether the plaintiffs are entitled to the benefit of the Massachusetts savings statute, G. L. c. 260, § 32, which permits claims that were timely when originally filed to be refiled (despite the subsequent running of the limitations period) within one year after being dismissed “for any matter of form.” We conclude that voluntary dismissals are not per se excluded from the scope of the savings statute. We also conclude, however, that the record does not establish that all the claims dismissed in the Delaware action were dismissed for a matter of form. Those claims that were not dismissed for a matter of form were properly dismissed by the Superior Court judge as untimely. Those claims for which a sufficient question of fact was raised in the Superior Court, at least at the pleading stage, as to whether they were voluntarily dismissed in the Delaware action […]
Categories: News Tags: 1109413, Cannonball, Capital, Dutchess, Fund, Lawyers, Ltd., Management, Weekly