Business Litigation

Business Litigation Representative Matters

Our Business Litigation practice covers a wide array of complex legal issues encountered by our clients. The following cases provide a synopsis of some of the issues we have litigated:

Lender Liability

Shapiro v. Federal Deposit Insurance Corporation
Counsel: Denzil D. McKenzie

This was a lender liability action brought by a disgruntled borrower of the failed Bank of New England-West. The borrower alleged that the FDIC as Receiver for the failed bank had breached a contract and committed unfair and deceptive trade practices. At issue was the Bank’s alleged failure to make a significant fund advance to the Plaintiff pursuant to the terms of a forbearance agreement. As defense counsel, we represented the FDIC in a jury trial presided over by Chief Judge Tauro. Following six full days of trial, the jury returned a unanimous verdict on all counts, in favor of our client.

Wrongful Foreclosure

Shirley Blount v. HomeSide Lending, Inc., Suffolk Superior Court, Docket No.: 98-5666 H
Counsel: Denzil D. McKenzie

This was an action in which we represented the Borrower, who claimed among other things, breach of contract for the Lender’s failure to keep accurate records of her loan payments, resulting in a foreclosure action against the secured property. After considerable motion practice, the Lender ultimately settled our client’s claims for an undisclosed amount.

Prosecution of “bait-and-switch”

Camillo v. Central Motors, Inc., Suffolk County Superior Court No. 02-4474, Boston, Massachusetts
Counsel: Martha M. Wishart, Sandy P. Botelho

Representation of the consumer in a “bait-and-switch” action against a car dealership. The case involved a Plaintiff-consumer who received an automobile that was not the same automobile they negotiated to purchase. The consumer also alleged deceptive and misleading representations regarding the financing of the automobile. The case was brought in Superior Court, and in their complaint, the Plaintiff alleged Violation of G.L. c. 93A; Fraud; Misrepresentation; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; and asked the Court to rescind the purchase of the car. After leading the client to and through Discovery, and up to Trial, the case was ultimately settled for an undisclosed amount during the Trial.

Breach of Letter of Intent

GEL Systems, Inc. v. Hyundai Engineering & Construction, Ltd., U.S. District Court No. C.A. No.: 89-1579. [902 F.2d 1024 (1990)]
Counsel: Denzil D. McKenzie

Representation of the Plaintiff in a bench trial, in its allegations that the Defendant had breached the terms of letter of intent. The Plaintiff relied on the Letter, and performed work for Defendant in Saudi Arabia. The court found for the Defendant and the judgment was affirmed by the First Circuit.

Breach of Contract

Global Equity Advisors Wadleigh Environmental, Inc. v. John Nikolaou, et. al., Suffolk Superior Court Docket No.:96-01482-C
Counsel: Denzil D. McKenzie

Representation of the Defendants in this breach of contract action brought by a general contractor against property owners to enforce the terms of a contract for the reconstruction of retail gasoline station. The Defendants counter-claimed for substandard performance by the Plaintiff and for failure to properly dispose of contaminated soil. After a 4-day jury trial, the jury returned with a split verdict. The Defendants prevailed on all counts but lost on the Plaintiff’s unjust enrichment claim. The parties’ cross 93A claims were withdrawn as part of the settlement.

Trust Termination

Wells Fargo Bank, N.A.
Counsel: Denzil D. McKenzie, Chiazor A.N. Okagbue

Representation of Wells Fargo Bank, N.A. in the termination of 250 small trusts in Massachusetts.

Strict Liability/Lead Poisoning

Jasmine Strother v. Long Bay Management Co., Inc. et al, Boston Housing Court Docket No.: 10H84CV00648
Counsel: Denzil D. McKenzie, Garrett J. Lee

The parents of a minor child brought suit against the owner of a housing development seeking recovery for injuries arising from their daughter’s exposure to lead paint. The owner of the housing development retained McKenzie & Associates to defend the suit. In Massachusetts, the lead paint statute imposes strict liability on landlords for damages caused by poisoning from lead paint, and provides for treble damages if a landlord has been notified of the presence of lead paint and fails to correct it. The Landlord’s potential exposure at trial exceeded $1,000,000. McKenzie & Associates was able to negotiate a settlement favorable to the Landlord.

Enforcement of Foreign Money Judgment/Breach of Promissory Note

Counsel: Denzil D. McKenzie, Garrett J. Lee

A Bank gave the Defendant corporation a loan to purchase property and equipment in Texas. The Defendant corporation defaulted on the loan and the Bank brought suit in Texas to enforce the terms the promissory note and personal guaranty executed by two officers/directors of the corporation. A judgment was entered in the Bank’s favor in the Texas Court. The Bank then retained McKenzie & Associates to enforce the Texas Judgment in Massachusetts under the Foreign Money Judgment Recognition Statute. The Defendants retained a Massachusetts law firm to defend the suit. The Defendants’ attorney filed an answer to the Bank’s Complaint asserting a defense that the Texas Court did not have personal jurisdiction over the Defendants. McKenzie & Associates filed a Motion for Judgment on the Pleadings seeking judgment in favor of the Bank. The Court granted the Motion and entered Judgment in favor of the Bank in the amount of $349,000,000 plus attorneys’ fees and costs incurred by the Bank to enforce the Texas Court’s judgment in Massachusetts.

Spoliation of Evidence

Long Bay Management Co. Inc. & another vs. Haese LLC & another; Suffolk Superior Court Docket No. SUCV2006-03758
Counsel: Denzil D. McKenzie, Garrett J. Lee

Two corporations hired a law firm to resolve a construction dispute with a large housing developer. The corporations retained McKenzie & Associates to file suit against another law firm arising from its negligent handling of the dispute with the developer and for engaging in fraudulent billing practices. The law firm asserted counterclaims against the corporations seeking payment for more than one hundred thousand dollars in alleged unpaid legal fees. McKenzie & Associates was to establish that the defendant law firm and its principal spoliated evidence when it failed to retain the electronic meta data tags associated with its TABS III client billing system. The Suffolk Superior Court entered default judgment in favor of the corporations on the fraudulent billing claim and dismissed the defendant law firm’s counterclaim for unpaid legal bills.

We represented Long Bay Management Co. (“Long Bay”) in a civil action against one of its former counsel for fraudulent billing practices. One of Haese LLC’s (“Haese”) associates informed Long Bay that Haese frequently changed the associate’s time entries for work on Long Bay’s matters and that Long Bay was over-billed for services rendered to it by Haese. In the course of the litigation, we requested Haese’s electronic billing records (not PFDS). After extensive motion practice and an exhaustive list of reasons by Haese as to why the records could not be turned over to Long Bay, the Court entered an order sanctioning Haese for deliberately destroying the electronic billing records and in so doing putting them beyond Long Bay’s reach.

We successfully tried the case and obtained a substantial judgment against Haese, including interest and attorneys’ fees and costs. Haese appealed the judgment on several grounds and the parties are awaiting the decision from the Massachusetts Appeals Court.

Insurance Coverage Claim

We defended a client against a lead poison claim that arose 23 years prior to the filing of the civil action. The plaintiff alleged that she was exposed to dangerous levels of lead during her first six months of life. During the intervening period, the property owner, a limited partnership, changed and is now owned by our client. The business records for the property were either destroyed or lost and no one knew whether there was an insurance policy in place when the claim was incurred.

We agreed to represent the client and immediately set out to search for insurance coverage. The client had a piece of correspondence that suggested that a timely claim was filed with an insurer. On the basis of that correspondence, we began discussions with the insurer which denied coverage without producing a policy. We brought a coverage suit against the insurance company for defense and indemnification. Early in the life of the suit, the insurance company agreed to extended coverage under reservation. We eventually settled the lead poisoning suit on mutually acceptable financial terms and brought closure to the matter.

Recovery of Workers Compensation Claims

In re: Worker Compensation Trust Fund of the Commonwealth of Massachusetts c/o Department of Industrial Accidents
Counsel: Denzil D. McKenzie

Representation of the Worker Compensation Trust Fund of the Commonwealth of Massachusetts in over 250 cases before the Suffolk County Superior Court and the Boston Municipal Court after a successful bid in a competition to represent the Department of Industrial Accidents (DIA). The lawsuits were brought to recover money paid to injured employees whose employers failed to carry worker’s compensation insurance at the time of injury. Our efforts were so successful that after 18 months, the DIA hired the associates that we assigned to the portfolio and brought the effort in-house.

Locating of Debtor’s Hidden Assets

Creditor Representation: Digital Equipment Corporation v. Frank Gangi, US District Court, Boston Civil Action No. 96-MC 10524 MBD
Counsel: Denzil D. McKenzie

Representation of Digital Equipment Corporation in this proceeding to collect on a foreign judgment in the amount of $237,000. The Defendant had successfully hid his assets and frustrated the efforts of one of Boston’s largest law firms. Digital re-assigned the case to our Firm and through use of the Internet and other investigative tools, we were able to locate assets of the Defendant including an aircraft and real estate. Faced with a motion for examination pursuant to Fed. R. Civ. P. 69(a), the Defendant settled and paid approximately $160,000 of the judgment debt.