Court Sides With PSD Client on Aiding and Abetting Breach of Fiduciary Duty and Negligent Misrepresentation Claims

In a Memorandum of Decision and Order dated March 21, 2016, a Massachusetts Superior Court judge rejected efforts by a life insurance broker seeking the dismissal of a claim against him and his company for aiding and abetting a breach of fiduciary duty by an estate planning attorney for a couple, as well as a claim for negligent misrepresentation. As alleged, the life insurance broker paid a “commission” of $27,945 to the attorney in connection with recommendations to the husband to replace approximately $9 million of uncontestable life insurance with $15 million in contestable life insurance. The Court found the claims adequately stated: 160321 Memo and Decision and Order on Motion to Dismiss

In a Lanham Act case involving claims of false advertising and trademark dilution, PSD represents Braintree Laboratories, a leading manufacturer of colonoscopy prep medicine. During discovery, PSD won multiple issues on a motion to compel, then won two motions to enforce, and then won an appeal from those rulings by Ferring Pharmaceuticals. After a Magistrate Judge overruled a list of objections by Ferring, Braintree pursued two motions to enforce those rulings as Ferring continued to protest the scope of them. The Magistrate Judge required Ferring to produce an affidavit showing what it had done to comply with discovery rulings. Based on that affidavit, Braintree argued that the rulings required more of Ferring. The Magistrate Judge agreed. After an appeal by Ferring, on February 29, 2016, the District Judge agreed as well, affirming all of the Magistrate’s rulings in Braintree’s favor. The Court also limited the financial information to which Ferring was entitled based on delays by its counsel in pressing their requests: 160229 Memorandum and Order

PSD won two fee awards for both the cost of bringing a discovery motion and, after the Court required the use of broad search terms by the opposing party, a second award for fees incurred for time spent reviewing an ensuing production: 160203 Order Awarding Attorneys’ Fees 160209 Order granting attorneys’ fees

PSD has served as lead counsel for a healthcare business that was sued by one of its employees in the United States District Court for the Western District of Texas for alleged discrimination, harassment and retaliation under Title VII. The federal court granted the motion to dismiss that PSD filed, finding that the plaintiff failed to plead sufficient facts to state a cause of action.  The court made the dismissal WITH PREJUDICE, putting an end to the action.  A written opinion ordering the dismissal can be found in Cuellar v. Southwest General Emergency Physicians, PLLC, 5:15-CA-434, in the Western District of Texas. Alex Davidson and Barry Pollack worked on the matter.

The Boston Globe reported on PSD’s win in the SJC for the Quincy Historical Society.  PSD obtained a dismissal of all claims against its client.  The case involved a claim that a former trustee of a fund established by President Adams provided too generous lease terms for the Quincy Historical Society in a 50 year lease at $100 per month.  As reported:

“Barry Pollack, a Boston attorney representing the historical society, said in a statement that the nonprofit group has devoted significant resources and finances toward the maintenance and improvement of the Adams Academy building at 8 Adams St., as was stipulated in the lease. In court documents, the society asserted that since signing the lease it has spent at least $500,000 on capital improvements to the facility.

“The decision makes clear that the claims have been based entirely on a mistake of law,” Pollack wrote in an e-mail. “Given the former president’s express wishes when establishing the fund, the public should be concerned about trust assets wasted on litigation based on legal mistakes.”

Nevertheless, the present trustee said in an interview that he is considering filing an appeal.

On July 30, 2015, a Federal court in Florida issued a written decision in favor of a PSD client, EDCare Management, Inc.  The Order affirmed the imposition of sanctions against Amlong & Amlong, P.A., who served as plaintiff’s counsel in two cases against EDCare, one alleging violations of the Fair Labor Standards Act and the other alleging discrimination in the termination of the plaintiff.  In the Order, the Federal court held: “At first, the Amlong Firm did not believe that she had a very strong case, but after [the plaintiff] explained that she had records that might reveal illegal activities by EDCare, the Amlong Firm misled both EDCare and the Court about the amount of materials that [plaintiff] had improperly taken from EDCare during her employment.”  The Federal court explained that “after several hearings and lots of briefing, [a magistrate judge] determined that the Amlong Firm recklessly pursued frivolous litigation and unjustifiably obstructed EDCare’s efforts to obtain key litigation documents (including many of their own internal materials that [plaintiff] misappropriated).”  The Federal court also explained that the Amlong Firm had appeared to use certain language “deliberately interjected into the discussion in an effort to hide the fact that [plaintiff] had taken a lot more materials from EDCare than EDCare knew.”

An earlier Order in the matter had recognized more than $525,000 in fees at issue in the sanctions award.

The team representing EDCare has included Barry Pollack, Josh Solomon and Alex Davidson.

In a written Decision and Order dated July 27, 2015, the Supreme Judicial Court threw out a case brought by the Trustee of the Adams Temple and School Fund against the Quincy Historical Society and the City of Quincy.  PSD represents the Quincy Historical Society in the matter, led by Barry Pollack.

The Adams Fund, which was established by President John Adams, owns a building and land in Quincy Center that, until 1907, housed a school for boys known as the Adams Academy.   After the Adams Academy closed, the Adams Fund leased the property to different entities in the public interest.  Eventually, in 1972, the then-Trustee for the Adams Fund leased the property to the Quincy Historical Society.   The then-Trustee obtained court approval of the lease before entering into it.

In 2014, a new Trustee brought an action claiming that the former trustee breached fiduciary duties by leasing the property to the Quincy Historical Society for 50 years at what has now allegedly become a below market value rent.

The SJC ruled that the claims were barred by the doctrine of res judicata based on the 1972 decree approving the lease.  As a result, the SJC stated that the claims against the Quincy Historical Society were based on a mistake of law.  The SJC rejected arguments by the new Trustee that res judicata did not apply because a new beneficiary of the Adams Fund, known as the Woodward School for Girls, was not a party to the 1972 proceeding.  The SJC found the argument unconvincing because the Adams Fund is a charitable trust, not a private trust, making the Attorney General the appropriate party named in the 1972 proceeding.  None of the Trustee’s claims in this matter survived the SJC ruling.

On July 16, 2015, the First Circuit issued an opinion vacating felony convictions in U.S. v. Feliz, a federal case out of the District of Puerto Rico.  The appellate court agreed with PSD’s arguments that the federal trial judge had failed to honor fundamental constitutional safeguards when obtaining confessions from an 18 year old suspect who had no criminal history and no prior contact with law enforcement.  Among other things, the trial court erroneously excluded testimony concerning threats by law enforcement as hearsay, when the threats were not being offered to prove that the government would carry out the threats, only that the government intimidated the defendant.  The trial judge also deferred to the jury on credibility issues concerning the voluntariness of the confession, even though the constitution requires the judge to make the necessary fact finding.  The appellate court also agreed to PSD’s request to reassign the matter to a different judge on remand.  Barry Pollack argued the case on appeal.