Author: BMK Legal

BMK Attorneys Robert Berluti and Ted Whitesell obtained a memorandum of lis pendens on behalf of their client and defeated a special motion to dismiss in the Barnstable Superior Court. On a novel theory that had yet to be resolved by the appellate courts of the Commonwealth, BMK argued that text messages from the real estate broker indicating seller’s acceptance of the client’s offer were sufficient to satisfy the statute of frauds and thus constituted a valid and binding agreement to sell. By obtaining the memorandum of lis pendens, BMK was able to negotiate a prompt settlement that ended with the seller of the residential real estate selling to BMK’s client, rather than a third party.

BMK attorneys John McLaughlin, Kerry Northup and Matthew Carey represented a nationwide fuel distributor in connection with a $95 million multi-lender credit facility.  The new credit facility includes both term and revolving loans, as well as a delayed draw term loan to fund an upcoming acquisition and an according feature to permit additional loans in connection with other acquisitions.  BMK is very pleased to have assisted its client in obtaining a flexible solution to support future growth.

BMK attorneys Edward Kutchin, Kerry Northup and Michael Bednarz obtained summary judgment in Massachusetts Superior Court in favor of their dental practice client for claims brought by a former employee for racial discrimination, intentional infliction of emotional distress, and intentional interference with advantageous business relations.  Plaintiff, a former administrative assistant, asserted that she was subjected to a hostile workplace and ultimately terminated based on racial animus.  BMK successfully argued, however, that the defendant practice and sole practitioner could not be held liable for tortiously interfering with their own contract, that there was no evidence of a hostile workplace, that race played no factor in her termination, and that the alleged conduct did not constitute an intentional infliction of emotional distress claim.

May 22, 2015

BMK attorneys Robert R. Berluti, Ted Whitesell and Michael Bednarz successfully argued to the Massachusetts Supreme Judicial Court (the “SJC”) that it should affirm a decision they had previously secured in the Massachusetts Superior Court denying a motion to compel the firm’s client to arbitrate the value of his shares of a closely-held corporation. During the pendency of the underlying litigation, which involved claims of a corporate freeze-out and excessive executive compensation, the client/shareholder offered to sell his shares back to the company, invoking a share redemption and valuation provision contained in the company’s Articles of Incorporation. The client later changed his mind and elected not to sell his shares. Seeking to force a sale of the shares, the corporation and the remaining shareholder sought to compel the client to go through with the sale, arguing that the provision was an arbitration provision that was irrevocable once invoked. The Superior Court agreed with BMK and denied the motion to compel arbitration.

The company immediately appealed the decision and sought direct appellate review by the SJC. BMK was again successful on appeal. The SJC held that although the redemption provisions was an arbitration provision, the client/shareholder had successfully revoked his intent to sell prior to selection of the arbitrators and thus could not be forced to go forward with the process. The underlying litigation remains pending in the Superior Court.

The case is reported as Vale v. Valchuis, 471 Mass. 495 (2015).

Edward D. Kutchin was selected as a “CJP Superstar” by Combined Jewish Philanthropies of Greater Boston, Inc. in recognition of his leadership as the co-chair of the reimagined Lawyers and Accountants Reception 2015.

BMK attorneys Edward Kutchin and Kerry Northup represented a regional wholesaler in connection with the sale of his family business.  Having purchased the business from his father, BMK’s client had operated it for many decades and then engaged BMK to counsel him in connection with the sale of his company.  Ultimately, the company was sold to a strategic purchaser in an asset acquisition on a cash free, debt-free basis for a purchase price of $15 million.

BMK attorneys Edward Kutchin, Kerry Northup and Matthew Dunn secured a preliminary injunction on behalf of the firm’s clients, two former directors of an India-based subsidiary of a Delaware corporation headquartered in Massachusetts.

The former directors had been appointed to their director positions by the Massachusetts-based parent corporation. When the India-based subsidiary failed, the Indian government sought to hold the two former directors personally liable for its failure to pay taxes. The parent corporation, a publicly held company in some financial difficulty which had entered into an agreement to sell the company, sought to avoid their indemnification obligation and as a result BMK filed suit on behalf of their clients in Superior Court seeking indemnification from the parent entity and a preliminary injunction to freeze a portion of the sale proceeds sufficient to cover the indemnification obligation. The defendant removed the case to the U.S. District Court for the District of Massachusetts asserting federal question jurisdiction arising out of certain tax treaties to which the United States and India are party.

After a hearing before Chief Judge Patti Saris, BMK successfully obtained a preliminary injunction preventing the parent corporation from selling and dissipating its assets until and unless $1.7 million was placed in escrow. BMK successfully established the existence of the four factors that were necessary for the district court to issue a preliminary injunction – (l) the plaintiff’s likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the plaintiffs; and (4) the effect, if any, on the public interest. Accordingly, the District Court allowed the motion and required the parent corporation to deposit approximately $1.7 Million, an amount sufficient to satisfy all of the clients’ potential tax liability, into court during the pendency of the lawsuit. Without the benefit of this Order, the two directors would have been unable to recover on their indemnification claims and would have been left alone to deal with over a million dollars of potential tax liability.

BMK attorneys Edward Kutchin, Kerry Northup, and Matthew Dunn obtained the dismissal, on personal jurisdiction grounds, of a complaint brought against its consumer products client. The action involved federal and state law claims of trademark, trade dress, copyright infringement and unfair competition. The action exemplified the collision between modern conceptions of a global marketplace, including Web-based marketing and sales, and long-standing constitutional conceptions of due process.

BMK’s client, a consumer products company organized under the laws of New York and based in Massachusetts with no business presence in Iowa, asserted that Iowa lacked personal jurisdiction since it did not have sufficient contacts with Iowa. The court ultimately found that the nature, quality, and quantity of BMK’s client’s contacts through the use of the internet did not substantiate the right to jurisdiction in Iowa and granted its motion to dismiss for lack of personal jurisdiction and improper venue.

BMK attorneys Edward Kutchin, Kerry Northup, and Matthew Dunn successfully represented a New York-based registered investment adviser, and its senior officers and directors, against multiple securities law, common law and corporate governance claims. The claims were brought by individuals who had invested in a Ponzi scheme perpetrated by another senior officer of the investment adviser through an unaffiliated investment partnership he controlled.

Investors in the Ponzi scheme brought numerous securities law and related claims in the U.S. District Court for the Eastern District of Pennsylvania against the investment adviser and its directors and senior officers personally, as well as the Ponzi scheme perpetrator. After extensive discovery, BMK obtained summary judgment on all counts, including claims of SEC Rule 10b-5, control person liability under Section 20(a) of the Securities and Exchange Act, violations of Pennsylvania’s consumer protection law, negligent supervision, and breach of fiduciary duty. The investors appealed to the Third Circuit Court of Appeals which, after oral argument, affirmed the district court’s summary judgment ruling in favor of BMK’s clients on virtually all counts. Ultimately the case was settled on terms that were extremely favorable for BMK’s clients.

January 2012

In a spectacular start to the New Year, BMK litigators have won summary judgment on securities fraud and related claims in a case filed in Federal District Court for the Eastern District of Pennsylvania.

The securities fraud case involved claims against a New York-based investment management firm and certain of its senior officers and directors as a result of a separate and unrelated business operated by another senior officer which turned out to be a fraudulent enterprise. Five plaintiffs brought suit against the firm alleging that the firm was liable for violating the federal securities laws under Section 10(b), breach of fiduciary duty, and under Pennsylvania’s consumer protection laws, and that its officers and directors were liable for Control Person liability under Section 20(a) of the Exchange Act and for negligent supervision.

On January 5, 2012, the Court granted the Defendants’ motion for summary judgment on all counts. Agreeing with the arguments advanced by BMK, the Court held that the plaintiffs’ claims could not survive in light of their inability to show that the Defendants had any knowledge or involvement in the separate, fraudulent enterprise operated by their former fellow officer, and that his misconduct could not be imputed to the firm.

The BMK litigation team was led by partners Edward Kutchin and Kerry Northup, and included associate Julie Rising and contract attorney Anne French.

The case is captioned Barry Belmont v. MB Investment Partners, No. 09-4951 (E.D. Pa.).

December 2011

Berluti McLaughlin & Kutchin served as US counsel to Toronto-Dominion Bank in connection with a $40 million loan facility to a company with operations in both Canada and the United States. The BMK team was led by partner Kerry Northup, assisted by partners Edward Kutchin and John McLaughlin.

Representing numerous lenders and borrowers in the realm of commercial finance, BMK has extensive experience in all types of loan transactions, including acquisition financing, structured financing with subordinated lenders, and real estate financing.

Boston Bar Association President Lisa Goodheart today welcomed Berluti McLaughlin & Kutchin LLP to the BBA’s growing list of sponsor firms. A player in Boston’s legal landscape since 1985, Berluti McLaughlin & Kutchin prides itself on providing value-oriented representation to entrepreneurs and businesses.

“Berluti McLaughlin & Kutchin has a reputation for providing excellent legal representation,” said BBA President Lisa Goodheart. “The Boston Bar Association is proud to have Berluti McLaughlin as a Sponsor Firm and we look forward to their active participation in all facets of BBA life.”

Located at 44 School Street in Boston, Berluti McLaughlin & Kutchin is a nine attorney firm with expertise in corporate, real estate, commercial finance and complex civil litigation at both the trial and appellate level and all forms of alternative dispute resolution.

“We decided to become a BBA Sponsor Firm to demonstrate our support for one of the preeminent bar associations in the country, and our desire to maintain and improve the quality of our legal services in an effort to better serve our clients,” said Partner Robert R. Berluti. “It is a privilege to practice law as part of a bar that includes some of the best attorneys not only in Massachusetts, but the United States.”

BMK recently assisted a client who was a self-employed businessman that was assessed approximately $2 million of additional taxes and penalties over three tax years. We filed a protest of the 30-day letter and requested that the case be referred to the appeals branch in the Boston office. After 16 months, the IRS ultimately agreed and closed the case seeking a deficiency of less than $5,000 for the same three year period. This case was a stark example of an overzealous revenue agent who did not understand business and pursued erroneous claims against a tax payer who was the son of a businessman audited by the same revenue agent. We represented the father in tax court litigation against findings by the same revenue agent and again resolved the matter for a small fraction of the amount originally assessed during the audit.