Case Studies
The client was an investor who had just invested her life savings with an investment advisor. She came to us the day before a three day holiday weekend after learning the funds had not been deposited as promised. The next business day we were in court suing for fraud and breach of the Investment Advisors Act and obtained an ex parte bank account attachment securing one half of the funds misappropriated. Pointing to the lack of any written agreement supporting the client’s allegations the advisor defended claiming the client had agreed to invest in a Hawaiian land development project. We obtained two awards of attorney’s fees for the defendant’s failure to provide discovery. We obtained a judgment for unfair and deceptive acts and practices with an award of treble damages plus an order to pay all of the client’s attorney’s fees.
Case Study # 2 seller’s takeback of his company; corporate takeover.
The client had sold his business and taken back a promissory note secured by the buyer’s common stock. When the buyer defaulted on the payments the client was concerned that his former company was being stripped of assets. The buyer swore out a criminal complaint against a junior executive who agreed to work with the former owner. We immediately brought suit and obtained an injunction and a Court Order authorizing a secured party sale of the pledged stock. In less than sixty days we orchestrated a corporate takeover of the company and in less than a week got the criminal charges dropped. Funded by the company in less than twenty four months we got judgments for the client confirming his control of the board and obtained a judgment for the company for the assets wrongfully taken.
Case Study # 3 buyer’s remorse --successful defense of real estate developer in unfair and deceptive practices case alleging fraud in the use of synthetic stucco in new constructed residence.
The client a real estate developer came to us when he was sued for fraud and misrepresentation in sale of a multi-million dollar home featuring exterior siding with Dryvit a synthetic form of stucco. Represented by one of the largest law firms in Boston the consumer buyers sought treble damages in excess of $750,000 plus attorney’s fees. After the buyers refused the client’s settlement offer to replace the synthetic stucco, we tried the case. The trial judge found the buyers had knowledge of the synthetic stucco, that the testimony of our expert was more credible than the buyer’s expert and that the real estate developer had made no misrepresentations. We obtained a defendant’s verdict on all six counts, and ultimately judgment requiring the buyers to pay the client’s court costs of over six thousand dollars.
Case Study # 4 recourse for senior citizens defrauded in sale of long term care insurance policies.
In three separate cases we represented elderly Florida widows who were allegedly induced to purchase unsuitable long term care insurance by deceptive sales practices. After conducting an investigation and obtaining copies of all the insurer’s policies and advertisements registered with the State of Florida, we secured favorable settlements; resulting in the long term care insurance company paying previously rejected claims for home health care expenses and in one of the cases also paying $40,000 for attorney’s fees as well as the federal income taxes incurred by the elderly widow client as a result of the allegedly unfair and deceptive sales practices..
Case Study # 5 Unneighbourly Fence-Obtaining injunction for multifamily apartment building owner to secure emergency egress over neighbor’s land.
Our client a Boston landlord owned an apartment building on Commonwealth Avenue. The building’s only access to a side street was across the rear yard of the adjoining building. There was no easement of record and the neighbor erected a fence running the length of its property line and blocking the egress to the side street for the client’s tenants. Combing through century old registry plans to when the buildings (with common fire walls) were owned in common and armed with Fire Department safety regulations, we filed suit and promptly obtained an injunction requiring the neighboring landlord to take down the fence so as to maintain a second means of egress in the event of a fire at the front of the buildings.
Case Study # 6 dubious asset transfers to wife--Recovery of a debt from wife of bankrupt husband.
The client had been partners in real estate and a stationery business with a sophisticated businessman. While the client had a 50% ownership interest in the real estate trust that owned the property, he was on the hook for the entire mortgage debt. Unbeknownst to the client the businessman had transferred his ownership interest in the real estate trust to his wife who along with the client was a co-trustee of the real estate trust. Over time the wife paid herself one half of the real estate trust profits. When the federal authorities began to investigate the businessman for extortion, the client represented by another attorney entered into an agreement whereby the 50% partner bought the client out of both the stationery business and the real estate trust. The businessman was convicted of federal charges and defaulted on his contract with the client. After paying the entire mortgage debt the client, still represented by another lawyer, sued his former partner. The convicted extortionist filed bankruptcy and the client’s claim was discharged. In the bankruptcy case the trustee sued the convicted extortionist and his wife attacking the transfer of the half interest in the real estate trust. The bankruptcy trustee settled the case and both the businessman and his wife transferred all interests in the real estate trust to the bankruptcy trustee.
Only after all of these occurrences and transactions did the client consult us. We negotiated a settlement of the client’s claims against the bankruptcy estate, made a payment to the trustee in exchange for which the trustee assigned to the client the 50% interest in the real estate trust. We then filed our appearance in the original state court action against the crook and filed a supplemental complaint against the wife seeking to recover the profits she had paid to herself before her husband’s bankruptcy. The wife filed a counterclaim alleging that the supplemental complaint was frivolous asserting that the settlement by the convicted extortionist and his wife with the bankruptcy trustee and the trustee’s settlement with the client was a final judgment and that the client could not have a second bite of the apple against the wife.
We successfully argued that the client’s claim against the wife was the client’s personal claim as the 50% beneficiary of the real estate trust and was not a claim in which the other creditors of the bankrupt extortionist had any interest. Because the bankruptcy trustee represented all the creditors of the crook only “insofar as they had a common interest in avoiding” the questioned fraudulent transfer, the Court held the client’s claim for money had and received against the wife was not barred by the prior bankruptcy suit. The client got his judgment for the money the wife had paid herself.
Case Study # 7 Big Bank’s sale of “dirty” land--Secured recourse for commercial purchaser at mortgage foreclosure sale of industrial property from mortgagee bank for environmental contamination.
The client a family run building supply company had purchased from the largest bank in Boston a concrete block facility at a mortgage foreclosure sale and had financed the purchase by extending its line of credit with the same bank. When the patriarch of the family died, the bank sued his estate on the unconditional guaranty of the bank debt. In seeking to refinance with another bank, the family conducted a so-called 21E environmental study and learned the property was contaminated. We were then asked to take the case. We countersued for fraud and unfair and deceptive practices. In discovery the bank produced a room full of many tens of thousands of documents. In an eight day bench trial we proved the bank knew of the contamination and had misrepresented the environmental status to the now deceased guarantor. We obtained a counterclaim judgment under Chapter 93A for unfair deceptive acts and practices resulting in a seven figure resolution for the family business.
Case Study # 8 Derivative shareholder case--Recovery for 10% shareholder of excessive compensation taken by majority shareholders over six years.
The client was a lawyer who more than twenty five years before had taken a minority, non-voting stock interest in a start-up corporation for his fee. Over the years the company became successful but the client had not received any dividends while the other stockholders who worked in the business were taking handsome salaries. When the client complained about the lack of dividends, the other stockholders told him his stock was non-voting and he would get his dividends if and when the company was sold. We replaced the client’s original lawyer, conducted discovery, engaged an expert and tried the case over eight days. We proved that the client had acted ethically and properly in accepting a stock interest in the start-up company. We successfully argued for the Court to examine the compensation paid from the period six years before the lawsuit was brought right up to the time of trial. We demonstrated that the bonuses and profit sharing the other stockholders had taken correlated closely to their respective stock ownership. We discredited the defendants’ expert and the judge accepted much of our expert’s testimony. We secured a judgment which with prejudgment interest amounted to $10.8 Million.
Case Study # 9 Investors’ remorse--Successful defense of syndicator of failed real estate investment where investors alleged losses of $40 Million; subsequent suit for defamation.
The client was an investment advisory company which in the 1980’s had syndicated a number of investments in various tax sheltered real estate limited partnership ventures. Like much of the real estate markets at the time, some of these investments did not pan out. One industrious fellow solicited scores of investors to hire him to bring claims in arbitration against the client by making false representations about the honesty and conduct of the well respected investment advisory firm. After six weeks of hearings a panel of three arbitrators found in favor of the client advisory firm and dismissed all claims.
We subsequently sued the arbitration consultant for defamation and after the first day of trial the defendant entered into an Agreement for Judgment for One Million Dollars.
Case Study # 10 The Neighbor’s garbage--Obtained verdict of trespass where client had given defendant neighbor permission to use client’s land.
The client owned a 270 plus acre property on Cape Cod. He gave permission to his neighbor to conduct a small composting operation on a handful of acres. He even signed a permit application with the state for the neighbor. When displeased with the neighbor’s operation, represented by another lawyer the client brought suit. Just before trial and not having conducted any discovery or engaged an expert on damages, the client discharged his attorney and engaged us. With a novel argument, we convinced the Court to defer the question of damages until the question of liability was determined. Following a four day trial, we obtained a judgment of trespass for three discrete periods of time including the period for which the client had given the neighbor permission to use his land.
Case Study # 11 fast talking annuity salesman; or “trust me just sign the papers”- Secured rescission of unsuitable purchase of $1 Million variable annuity
The client hired a new investment advisor to replace his advisor and to manage his portfolio. The advisor came to the client’s house and in a span of 15 minutes had him sign a stack of papers which purportedly were to enable the new advisor to transfer the accounts to him but the papers the client signed were for the purchase of a variable annuity. When the advisor sold off the entire portfolio and purchased the annuity, the client engaged us. We prepared a complaint alleging fraud and misrepresentation but rather than filing suit with our draft complaint and information we uncovered, we succeeded in getting the Massachusetts Securities Division of the Secretary of State to investigate and bring an enforcement proceeding. The advisor defended by claiming that he spent over an hour with the client explaining the risks and benefits of the annuity purchase. We informed the securities enforcement division that the advisor conducted much of his business on his cell phone and insisted the advisor’s defense would be belied by his cell phone records. A subpoena of the advisor’s cell phone records corroborated the client’s allegations of fraud. Instead of going to court at great expense to the client, our efforts enabled the client to get back all his money.
Case Study # 12 Secured settlement of unfair and deceptive practices case against national bank and insurance company.
As the sole beneficiary of a multimillion dollar trust the client owned a residential property destroyed in a fire. The insurance company paid over $2 Million for the loss but the client contended she was entitled to more. We brought suit in federal court against the insurance company for unfair and deceptive practices in its adjustment of the loss and against the trustee, Bank of America, for unfair and deceptive practices as a trustee. We successfully defended the bank’s motion to dismiss. After defeating the insurance company’s attempt to enforce a purported settlement of $1.15 Million, the client entered into a confidential settlement.
Case Study # 13 settlement for special needs student injured in shop class
The teenage plaintiff was injured in his high school shop class when without instruction he improperly used a table saw. After defeating a motion to dismiss the federal civil right claim, we secured a confidential settlement.
Case Study # 14 copyright law and sovereign native American tribe
The client, a California movie producer, contracted with a native American tribe to produce a film to be shown at its Connecticut gambling casino. After the tribe fired her, it finished producing the film. The client sued contending that the tribe had infringed on her copyright ownership of the script. The federal district court threw out the client’s case on the basis that the federally recognized native American tribe was a sovereign nation and without its consent could not be sued. On appeal a panel of three appellate judges, including the now Supreme Court Justice Sotomayor, in a case of first impression held that while the sovereign tribe could not be sued for damages it could be enjoined from copyright infringement.
Case Study # 15 State trooper’s “disproportionate” use of force against middle aged woman in dubious traffic stop-Successful retrial of federal civil rights for police excessive force.
The client had filed a federal civil rights case for police misconduct arising out a traffic stop. Represented by another lawyer she went to trial and the jury awarded her $60,000 in damages but found for the defendant an off duty state police officer on the civil rights claims. After the federal judge first denied a motion for a new trial, we moved for reconsideration. The federal district court judge reversed himself and granted our motion for reconsideration.
After a 6 plus day trial the jury returned a verdict of five times more damages, resulting in a judgment of over $536,000 before our application for an award of attorney’s fees under the federal civil rights statute.
Case Study # 16 Software contractor’s misuse of Wage Act—obtained dismissal of Wage Act treble damages claim.
The client a Delaware corporation providing services to institutional investors had engaged a software engineer to develop some software for its website. Rejecting the client’s standard form consulting contract the engineer insisted that his company and the client enter into an independent contractor contract. When a dispute arose over about $90,000 of unpaid invoices, the consulting engineer and his one man company sued the client and among other claims sought treble damages under the Massachusetts Wage Act contending that the client had misclassified the engineer as an independent contractor. We argued that this was not a case where an unscrupulous employer was attempting an “end run” around G. L. c. 149, § 148B and that the engineer and his firm should be estopped from denying the independent contractor characterization and status upon which they had insisted.
The Superior Court dismissed the Wage Act treble damages claim and denied the engineer’s subsequent motion for reconsideration.
Case Study # 17 failed corporate takeover-obtained judgment of dismissal on the pleadings in the Delaware Chancery Court of Section 225 Control action.
The client a Delaware corporation is developing a new technology and has about 100 stockholders. In November 2016 one of the three directors filed suit in Delaware Chancery Court contending that a majority of the issued and outstanding shares of common stock had removed the founder, CEO and Chairman of the Board and the second director. Representing the two controlling directors in a fast paced expedited proceeding at the end of January 2017 we moved for judgment on the pleadings.
On March 27, 2017 after hearing the parties and explaining that the plaintiff had “no response to” our “legal argument,” the Chancery Court issued a bench ruling granting our motion dismissing the case.