Meunier, et al. v. Market Strategies, Inc. (Lawyers Weekly No. 09-067-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT Civ. No. 2016-1546-BLS2 JOHN J. MEUNIER, CHRISTY M. WHITE, and JOHN J. MEUNIER 2012 IRREVOCABLE TRUST Plaintiffs vs. MARKET STRATEGIES, INC., Defendant Consolidated with: Civ. No. 2016-3592-BLS2 MARKET STRATEGIES INC., Plaintiff, COGENT RESEARCH HOLDINGS, LLC Defendant MEMORANDUM OF DECISION AND ORDER ON MARKET STRATEGIES, INC.’S MOTION TO DISMISS These consolidated cases arise from the sale of Cogent Research, LLC (Cogent) to Market Strategies, Inc., (MSI). To facilitate the sale, the individual owners of Cogent – John Meunier, Christy White and the John Meunier 2012 Irrevocable Trust – transferred their equity interest in Cogent to a holding company, Cogent Research Holdings, LLC (CRH) which then transferred its equity interest in Cogent to MSI. In return, MSI agreed to make an initial payment of $ 8 million, and additional payments (described as Delayed and Contingent Payments) three years later totaling $ 5.1 million. The terms of the sale were memorialized in an Equity Unit Purchase Agreement (EUPA), a Subordination Agreement, and a Senior Credit Agreement, all dated May 2, 2013. MSI made the initial payment but has failed to pay any portion of the Delayed or Contingent Payments (together, the Remaining Payments), which became due on April 30, 2016. The case is now before the Court on MSI’s Motion to Dismiss the Counterclaim asserted against it by CRH in one of the two consolidated actions, Civ. No. 16-03592. This Court concludes that the Motion must be DENIED. In support of the Motion, MSI relies on certain terms of the Subordination Agreement which subordinate the Remaining Payments to a more senior debt that MSI has with a separate lender, the Private Bank (the Bank). Section 2.3 of that Agreement states that MSI will not make and CRH will not accept any of the Remaining Payments if doing so would cause MSI to default on its debt to the Bank. Section 2.4 prevents CRH from taking any “Enforcement Action” (a defined term in the Agreement) in an effort to collect payment from MSI until MSI’s debt to the Bank is paid in full. MSI argues that because the Bank has not been paid in full and because any payment to CRH would place it in default with the Bank, the unambiguous terms of the Subordination Agreement prevent CRH from seeking to collect the Remaining Payments, thus requiring dismissal of its Counterclaim. A fair reading of the Counterclaim, however, reveals that more is involved here than the straightforward application of certain contractual provisions. The Counterclaim alleges among other things that MSI has conspired with the Bank to commit accounting fraud so as […]
Meunier, et al. v. Market Strategies, Inc. (Lawyers Weekly No. 12-072-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01546-BLS2 1684CV03592-BLS2 ____________________ JOHN J. MEUNIER, CHRISTY M. WHITE, and the JOHN J. MEUNIER 2012 IRREVOCABLE TRUST v. MARKET STRATEGIES, INC. ____and____ MARKET STRATEGIES, INC. v. COGENT RESEARCH HOLDINGS LLC ____________________ MEMORANDUM AND ORDER ON MARKET STRATEGIES, INC.’S MOTION FOR SUMMARY JUDGMENT John Meunier, Christy White, and the John J. Meunier 2012 Irrevocable Trust (the “Trust”) claim that Market Strategies, Inc. (“MSI”) breached its contractual obligations to make certain payments to Cogent Research Holdings LLC (which the parties refer to as “Holdco”). They also claim that after signing the contract at issue MSI misrepresented its willingness and ability to pay what it owes and thereby committed deceptive acts in violation of G.L. c. 93A. Finally, Meunier and White seek declaratory judgment regarding the enforceability of certain non-competition, non-solicitation, and confidentiality agreements. MSI has moved for summary judgment. The Court will grant summary judgment in MSI’s favor on the contract claim because Plaintiffs are not intended beneficiaries of MSI’s payment obligations to Holdco as a matter of law. It will also allow MSI’s motion with respect to the declaratory judgment claim because any dispute regarding enforceability of the non-competition or non-solicitation agreements is moot and Plaintiffs lack standing to challenge the confidentiality agreement on the ground that MSI committed a material breach of contract by not paying Holdco. However, the Court will deny the summary judgment motion with respect to the misrepresentation and c. 93A claims because they are independent from the contract claim. 1. Undisputed Factual Background. These actions arise from the May 2013 sale of Cogent Research LLC to MSI. At the time of the transaction, Meunier, White, – 2 – and the Trust were the sole owners of Cogent Research. They agreed to sell Cogent Research to MSI in exchange for an “Initial Payment” of $ 8.0 million, a “Delayed Payment” of $ 2.0 million, and a “Contingent Payment” of roughly $ 3.15 million that was due after MSI received additional audited financial statements of Cogent Research. Meunier and White also agreed to work for MSI for three years and entered into a non-competition, non-solicitation, and confidentiality agreement. Meunier, White, and the Trust created Holdco in connection with this transaction. They are the sole owners of Holdco. They transferred ownership of Cogent Research to Holdco, which in turn sold Cogent Research to MSI. The parties’ purchase agreement provides that MSI was required to pay an Initial Payment, Delayed Payment, and Contingent Payment to Holdco. MSI does not have any contractual obligation to make any of these payments to Meunier, White, or the Trust. Although the parties’ purchase agreement provides that MSI was to make the Deferred and Contingent Payments to Holdco […]
Meunier, et al. v. Market Strategies, Inc. (Lawyers Weekly No. 12-016-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01546-BLS2 1684CV03592-BLS2 ____________________ JOHN J. MEUNIER, CHRISTY M. WHITE, and the JOHN J. MEUNIER 2012 IRREVOCABLE TRUST v. MARKET STRATEGIES, INC. ____and____ MARKET STRATEGIES, INC. v. COGENT RESEARCH HOLDINGS LLC ____________________ MEMORANDUM AND ORDER ALLOWING MOTION TO DISMISS CLAIM AGAINST COGENT RESEARCH HOLDINGS, LLC Market Strategies, Inc. (“MSI”) claims that Cogent Research Holdings LLC (which the parties refer to as “Holdco”) is liable for breaching a covenant not to sue not because Holdco itself filed a lawsuit, but instead because the three members of Holdco sued MSI in their individual capacities. The two lawsuits have been consolidated. The Court will ALLOW Holdco’s motion to dismiss the one claim against it because MSI has not alleged facts plausibly suggesting that Holdco can be held liable for breach of contract. 1. Factual Background. These consolidated actions arise from the May 2013 sale of Cogent Research LLC to MSI. At the time of the transaction, John Meunier, Christy White, and the John J. Meunier 2012 Irrevocable Trust were the sole owners of Cogent Research. They agreed to sell Cogent Research to MSI in exchange for an “Initial Payment” of $ 8.0 million, a “Delayed Payment” of $ 2.0 million, and a “Contingent Payment” of roughly $ 3.14 million that was due after MSI received additional audited financial statements of Cogent Research. Meunier and White also agreed to work for MSI for three years and entered into a non-competition agreement. Meunier, White, and the irrevocable trust created Holdco in connection with this transaction. They transferred ownership of Cogent Research to Holdco, which in turn was the entity that actually sold Cogent Research to MSI. The parties’ purchase agreement provides that MSI was required to pay the Initial Payment, Delayed – 2 – Payment, and Contingent Payment to Holdco. MSI does not have any contractual obligation to make any of these payments to Meunier, White, or the irrevocable trust. Although the parties’ purchase agreement provides that MSI was to make the Deferred Payment and Contingent Payment to Holdco no later than April 30, 2016, a separate subordination agreement executed at the same time modifies those terms. The parties to the subordination agreement were Holdco, MSI, and an administrative agent representing Senior Lenders of MSI. Meunier and White signed this contract on behalf of Holdco. The subordination agreement provides that the obligations of MSI to make the Delayed and Contingent Payments “shall be subordinate and subject in right and time of payment … to the prior Payment in Full of all Senior Debt” held by the Senior Lenders. It further provides that MSI shall not make and Holdco shall not accept payment of any part of the Deferred and […]
PHOTOS: SoWa Open Market Brightens South End on Father’s Day
Filling up three separate lots in the South End, the SoWa Open Market packed the south part of the neighorhood this past Father’s Day, Sun. June 16. Complete with a farmers’ market, artisans market and food trucks, the SoWa Open Market is celebrating 10 years this season. The market is open every 10 a.m. to 4 p.m. every Sunday from May through October. It is located at 460 Harrison Ave, Boston MA. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
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SoWa Market, Art Walk Kick off on Sunday
The birds are chirping, the sun is out, and if that weren’t enough, the spring is about to get that much sweeter in the South End with the opening weekend of the SoWa open market and the annual SoWa Art Walk kicking off this Sunday. The SoWa Open Market is promising to be even bigger and better this year, in its several venues: the open air market with a farmers’ market, a vintage market and its food trucks. Organizers say there will be more than 100 vendors at the crafts market, 70 vendors at the farmers market and 40 food trucks this year. You can see a list of all the food trucks here. The farmer’s market is located at 500 Harrison Avenue and features produce from local farmers and specialty food vendors. The open market, at 460 Harrison Ave. features work by local artists and crafters who sell unique gift items like jewelry, clothing, toys, pottery and more. The third part of the market is a large, year-round vintage market that features furniture and clothing. The vintage market is open every Sunday from 10 a.m. to 4 p.m., not just during the summer. And for those with a hankering for a freshly cooked meal, there’s the food truck area in the Trolly Building at 540 Harrison Ave. Special to this weekend’s SoWa festivities is the annual SoWa Art Walk. About 150 artists and more than 25 different galleries will be participating, with studio buildings at: Thayer Street Galleries 46 Waltham Street 450 Harrison Avenue 460 Harrison Avenue 486 Harrison Avenue 524 Harrison Avenue 539 Tremont Street (BCA) 35, 49, & 59 Wareham Street Laconia Lofts & Gallery You can stroll though the artists studios from 11 a.m. to 6 p.m. on Sunday. Will you be at SoWa’s opening weekend on Sunday? Tell us in the comments. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
South End Weekends: SoWa Vintage Market, Poetry Competition
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