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COMMONWEALTH OF MASSACHUSETS
ESSEX, SS SUPERIOR COURT
SABA HASHEM, individually, and as a
Member of, and derivatively on behalf of,
D’ANGELO and HASHEM, LLC.
Plaintiff Civil Action No. 16CV1419
Vv.
STEPHEN L. D’ANGELO, D? ANGELO
LAW GROUP, LLC, and D’ANGELO
AND HASHEM, LLC.
Defendants
Se ee eH eR RH
DEFENDANT D’ANGELO LAW GROUP, LLC’S and
DEFENDANT STEPHEN D’ANGELO’S
OPPOSITION TO MOTION TO REACH AND APPLY (styled as “for Trustee Process”)
' SUMMARY OF ARGUMENT
Counsel for Defendants submits that this Court is tasked with deciding whether the
equitable relief sought by Intervenor-Plaintiff (Ms. Carrion’s) counsel is appropriate, and if
so order relief tailored to avoid hardship”, including to others, that will impair
1 For instance, while Justice Talwani’s Preliminary Injunction Order made in Federal District Court is null and void
as a matter of law because that Court did not have jurisdiction to issue that Order, and while Defendants
respectfully but firmly disagree with the reasoning behind said Order, it was just insofar as that ‘Court did not
issue an order that would in effect strangle the ability of defendants and their employees to continue to
operate, serving and funding other cases of Plaintiffs seeking compensation for their Injuries, a3 well as to
continue to make a living for themselves and thelr families by indicating in that order the (District) could and
would “tailor” the relief granted to avoid any hardships.
2. While Defendants do contend that the nefarious intent supporting the allegations which have been alleged and
attributed to them is not a fair attribution, given the circumstances that existed, which Defendants’ counsel has
alluded to before, and has herein, it does not believe this Court should, or is, influenced by Intervenor- Plaintiff's
counsel's inclusion of the same in her moving papers, surrounded by hyperbele, rhetoric and surplasage exhibits
and conclusory commentary about them. It is simply referenced because the relief now sought from this Court
far exceeds what Justice Talwani believed to be tailored to avoid hardships:
1
79fundamental rights as well as most likely, ironically, tend to defeat the larger purpose of
Ms. Carrion’s action, which is to collect money to satisfy her judgment.
Second, while Defendants believe a proper balancing of the equities, after contemplation of
all the circumstances and consequences, is extremely important, and required by law, as
this Court undoubtedly knows; and are inclined to present them first to the Court,
Defendants respectfully disagree and stand on their rights not to concede substantial
likelihood of success on the merits, and so in the interest of order will address them first
before the second prong of balancing of equities (or inequities).
More specifically, and in sum, defendants, inter alia, contend that not enough consideration
has been paid the ordinary course of business, as referenced with legal authorities in their
Opposition to the Cross-Motion for Summary Judgment, or to the context of:
1) Defendants’ actual state of mind when in 2014, the year all appeals were
exhausted, it, through counsel, Attorney Richard Mestone, attempted to initiate a
viable settlement plan involving a sizeable, good faith offer for Ms. Carrion, which
they could honor, which was rebuffed by Ms. Carrion’s then counsel to'even
recognize or speak with evidencing an “all or nothing” immediate lump-sum
position; and .
2) that the evidence of a lack of intent to avoid Ms. Carrion’s debt after Mr.
Hashem/’s violent and illegal conduct toward another woman suddenly thrust thesituation upon Mr. D’Angelo and the firm, causing its demise, and subsequent
reliance on special ethics counsel’s advice as to what had to be done in a period of
about two weeks, by Mr. D'Angelo.
Defendants contend this situation created a case of first impression, different than Attorney
Kelley’s actions, as found in S mith v. Kelley, when he documented indeed, resolved, in the
minutes of his former LLC ideas about and his intention to avoid a debt to a client arising
out of an associate attorney’s professional negligence toward Mr. Smith. Further,
Defendants respectfully contend that the purpose of avoiding payment of a debt, a
perquisite to imposing successor liability as set forth in the Supreme Judicial Court’s
seminal holding in Milliken, cited in this Court's Order allowing summary judgment is not
substantially established and'supported by all the evidence, certainly not as a matter of law.
Finally, this exercise may very well be an empty or hollow exercise accomplishing little
since the Defendants have affied that they do not think or know that either ever
appropriately applied for attorney’s fees in the Coumbia Gas cases settlement, making them
eligible or entitled to receive anything. (Please see Affidavit of Stephen L. D’ Angelo, filed
in support hereof.)DISCUSSION
RE: BACKGROUND
Mr. Angelo was forced to set up DLG. It was not done to defraud Ms. Carrion or avoid
D&H’s debt, It was a totally new entity without the presence of Mr. Hashem. Thus, it is an issue
of first impression of whetherisuccessor liability attaches where a suspended attorney does not
return his LLC membership share and thus the original LLC CANNOT function. The remaining
shareholder is FORCED to incorporate a wholly new entity devoid of the suspended attorney.
Tn the fall of 2015, Saba Hashem was arrested and convicted of crimes stemming from an
assault and battery of a woman; (not Ms. Carrion), with whom it was later revealed he was having
an extra-marital affair with. It was inevitable that and Mr. Hashem was indeed temporarily
suspended from the practice of‘law and then indefinitely suspended. That remains the case.
Stephen D’Angelo, then acted with clean hands. D&H could not operate, as a matter of
law, with a shareholder that was anon-attorney suspended from the practice of law. Saba Hashem
did not return his membership share in D&H. Mr. D’ Angelo incorporated D’ Angelo Law Group,
LLC. All of the D&H clients were given the opportunity to seek-other representation and sign on
with DLG. All of the actions taken by Stephen D’ Angelo comported with the Massachusetts Rules
of Professional Conduct re: a suspended attorney.
Intervenor Plaintiff hasisettled with Defendant Saba Hasham, who was found personally
liable to Intervenor-Plaintiff, Ms. Carrion. However, the Partial Satisfaction of Judgment recorded
i
on the Court Record is incomplete and not properly completed as the partial satisfaction figure hasbeen omitted.? Therefore, the monies owed by D&H to Jennifer Carrion are lower, plausibly much
lower, than requested by her in this motion.
The Court (Deakins, J) has entered an interlocutory summary judgment order in this case Hashem
'
v. D'Angelo v. Carrion, that D’Angelo Law Group, LLC has successor liability to D’Angelo Law
Group, LLC and is liable for D’Angelo & Hashem, LLC’s judgment to Plaintiff Jennifer Carrion.
See Memorandum & Order, Paper #89.
Importantly, there has been no motion for entry of separate and final judgment pursuant to
Mass.R.Civ.P. 54(b), or entry of a Final Judgment on the Court record. :
NO SUBSTANTIAL LIKELIHOOD ON THE MERITS
What is missing from the evidence is a showing of an intent to defraud, or an intent to
avoid payment of a debt. Such intent is the purpose behind imposition of Successor Liability,
and to find a violation of the Uniform Transfer Act.
Mr. D’Angelo never once, concealed, deceived or took any surreptitious action or
engaged in any behavior, abnormal from continuing its normal operations, as it and its members
had done for years. Members and employees were paid, bills were paid from cash ‘flow-which
was and never will be linear, recorded on company books, and appropriate tax returns were
prepared and publicly filed. See Fraser Engineering Co. v. Desmone, 26 Mass. App. Ct. 99, 104,
524 N.E. 2d 110, 113 (1998) [No deception found where Defendant did not act or cause her
business activities to differ from past practice.} The fact that Judgment-debtor did not reach an
8 That issue is the subject of a Cross-Motion for an Order for intervenor Plaintiff or her counsel to file a completed
Satisfaction of Judgment, filed and served contemporaneously, herewith.
5agreement with Ms. Carrion as they had tried to do, is evidence contrary to any nefarious or
illegal conduct. Massachusetts courts have defined “ordinary course of business” as the “usual,
common, general, customary”; “the opposite of rare, uncommon, exceptional, extraordinary,
unusual.” Higgins’s Case, 284 Mass. 345, 353 (1933). The Court has held that the disbursement
of funds for legal fees, a new legal retainer, and to the company’s management firm, are within
the ordinary course of business, such that it was within “the course of its normal day-to day
business operations.” ZVI Const. Co. v. Upper Crust LLC, 94 NE3d 879 (Mass. App. 2017),
quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 547, 556. As you know the Trial
Court did not reach a decision regarding payment of these expenses or disbursements.
The core of the inquiry ‘for successor liability is whether one entity has become another in
order , or for the purpose of avoiding a debt. Milliken & Co. v. Duro Textiles, LLC, 451 Mass.
547, 556 (1997). Weave in my handwritten argument, citing Milliken’s binding precedent
requiring an attempt to avoid a'debt, and intent to defraud for purposes of Chapter'109(A). Nor
was there any “transfer” that would satisfy sections 5 or 6 of chapter 109A. D’Angelo never
“amended” contracts with clients as Attorney Kelley did in Smith v. Kelley. Simply put the facts
created by Mr. Hashem don’t exist in that case nor in any of-the cases the SJC cited.
Turning to the moving papers presented and commented upon by the moving party,
while counsel has a duty to advocate, the Court should not be swayed by inflammatory use of
conclusions, personal opinion, misstatements, half-truths, irrelevant and surplus exhibits and
comments characterizing or mischaracterizing legal defenses as illegal or cynical, or that simple
non-payment, leaving out the contexts in which payments could not or did not occur, as a
practical matter or as a legal matter constitute a crime, as well as'allusions to Gross Revenues,
personal income before taxes, assets a person might possess, or opinions regarding “an ability to
6pay”, while ignoring the realities of carried debts, ongoing expenses and obligations, its effect on
cash flow and non-linear revenue This is simply economic class warfare, not facts and not
evidence. And she seeks to use it to prematurely choke off the ability of the Defendants to live,
provide basic support for themselves and families, to pay their employees, service their clients,
and to exercise his fundamental right to counsel, whom he must be able to pay to continue their
retention. All of this is sought before there is a final judgment against DLG on the issue of
Successor Liability discussed above, or any proof of fraudulent state of mind supporting the
Fraudulent transfer claims. brough against Mr. D’ Angelo, much less any judgment. Under the
law, he is not personally tiable unless such fraudulent state of mind existed, either as a member
of D&H, who settlement overtines were rebuffed in lieu of an all or nothing now position-which
has not served Ms. Carrion well, or after Mr. Hashem committed his shenanigans leading to the
legal impossibilities that occurred of his own making or failures to comply with ethical rules of
this Commonwealth
Throughout this case, the parties opposing Defendants, including the truly culpable one,
Mr. Hashem whose personal acts of his own affected women, destroyed a firm and subjected his
fellow 50% member to peril and damages. These parties have been strange odd-fellow cohorts
4 For instance, Intervenor again includes reference to a null and void order of,the Federal Court and opines that
that Order was violated, as admitted by Defendants’ counsel. indeed not, the email sent to Intervenor-Plaintiff’s
counsel simply stated the Order was:Null and void as a matter of law of ne effect, and was as if it was never issued
under the law since the Court had no jurisdiction. This is clear by its Order of Remand.
Words of appallingly, life of luxury, etc. are merely hyperbole.
Defendants’ Counsel’s 93A Response clearly stated there was a lack of a consumer, a lack o f trade or commerce,
and a lack or an act arising out of the ordinary course of the accused busines, as well as violation of Section9(3) of
the Act. See Ex. E to Moving Papers.in colluding to act against whom they perceive as simply a deep pocket, for cither or both of
them.
For all the reasons stated in its opposition for summary judgment there is no likelihood of
success on the merits, notwithstanding the interlocutory summary judgment decision of the
Court. This is an issue of first impression, very much distinguistiable from Smith v. Kelley and
its cases cited therein, which needs to be decided by the Appeals Court.
BALANCING OF THE EQUITIES OR INEQUITIES
Briefly summarizing the circumstances surrounding payments of draws, as well as
surrounding the demise of D'Angelo & Hashem, LLC, and the creation of DLG with new
contingency contracts with claimants the chose to retain DLG, Defendants state that in November
of 2011, a jury returned a verdict against Saba Hashem, and D’Angelo & Hashem, LLC, for
discrimination (D&H). Judgment entered. Saba Hashem and Stephen D’Angelo were the
members of the LLC of D&H.
Stephen L. D’ Angelo was not a named Defendant in discrimination. Saba Hashem testified
that he never told Mr. D’Angelo that Jennifer Carrion was pregnant. There was no evidence that
Mr. D'Angelo discriminated against Jennifer Carrion. Mr. D’Angelo had clean hands in that
matter, and in all matters, thereafter, when he acted in accord with counsel’s advice and in
accord with the Professional Rules governing attorneys-nothing more, and for no other
purpose, as was seen in the case of Attorney Kelley of Smith v. Kelley where he boldly
admitted in a deposition his purpose was to avoid a debt incurred as a result of
malfeasance legal work, which was imputed to his former professional corporation. As
discussed herein. the situations and context evidencing the state of mind of Defendants,specifically no intent to defraud, or avoid a debt both when' draw payments were made in
2014 and 2015, after settlement attempts were rebuffed, as well as when DLG was formed,
after Mr. Hashem forced Mr. D’Angelo into an ethical,-préssing dilemma, for which he
needed and obtained counsel indicates there is strong evidence, unlike the'cases cited in
this Court's memorandum granting summary judgment /
4 Thereafter, D&H and Saba Hashem made attempts to settle the judgment debt with
Jennifer Carrion’s counsel through their counsel Richard Mestone, Esq. Ms. Carrion’s refusal
to recognize or communicate with Attorney Mestone indicated they would accept no viable
settlement, instead would insist on a lump sum now or nothing (no settlement) position,
5. Involuntarily thrust on Defendants Mr, H’s breach of fiduciary duties. Refusal to
resign, tender shares, illegal to operate as “D & H” as it impermissible implied a partnership
of two lawyers, and prevented dissolution. Under reasonable assumption he could not share
fees with non-lawyer, contingent Ks were void, impermissible for non-lawyer to own shares
in law practice. Asked and relied on the legal counsel he was given
As this Court surely knows, it should exercise its considered discretion in deciding whether
to allow sweeping excessively broad relief as is sought here. It should not be allowed to issue
against DLG because clients and employees of DLG will suffer undue hardship. (Please See the
Affidavit of Stephen P. D’ Angelo filed in support herewith.)
Most importantly, should the Court allow the sweeping excessively broad relief that
appears to be asked of this Court, such an order will have the immediate effect of freézing operatingaccounts of DLG, and the firm will not be able to fund its current clients’ cases. Its operations
will be brought to a halt, too. The staff could not get paid, and the firm may be forced to close and
declare bankruptcy. The staff includes two part time student law clerks, a paralegal who is a single
mother with a child, another elderly paralegal with health problems, and two associates with
families.
Specifically, should any attorney's fees (revenue to DLG be forthcoming, and the excessively
broad, sweeping relief of depriving my firm from any and all revenue, as the Intervenor-Plaintiff,
Ms. Carrion, through counsel, is asking this Court to order, the following persons will be
materially adversely affected, resulting in inequity exceeding that to Ms. Carrion in ot receiving,
directly, or by way of constructive trust, or in the Court depriving DLG from any and all revenues
for her benefit are the following persons in the following ways: .
a. Other Plaintiffs who are clients of DLG. Those persons are entitled to legal
counsel and to seek just compensation for their injuries. The costs of each of
their cases need funding. ,
b. Seven employees of DLG and their families. Payroll is $7500. 00, bi weekly,
and one Independent Contractor is paid when cases settle.
c, DLG from which Ms. Carrion will now look to payment requires on average
$60,315.00 per month to operate. Obviously, if it can’t operate, it cannot do
anything. (Please See the Affidavit of Stephen L. D’ Angelo at pp. 2 & 3.)
where the ongoing average monthly firm costs are broken down by category.)
d. Mr. D’Angelo and his family. On average, in order to live he requires $8000.00 per
month. His cost of living includes costs for shelter, transportation, and to support |
feed, clothe, work and support himself and son in college. He also has,a right to legal
counsel, and must pay is attorneys. He should be allowed to petition ‘It is not
unreasonable ‘for anyone not to have these fundamental rights, debtor or not, which he
has not been adjudicated as such, after Presentation of all the evidence, circumstances
and witnesses.
’ POLICY, ABSENCE OF REQUIRED POSTING OF BOND & OTHER
CONSIDERATIONS
10A Trustee attachment should not be allowed regarding DLG because a bond is required,
and none has been posted or filed. Massachusetts General Laws, c. 246, Section 1 requires that a
bond be posted/filed in this sitvation from an authorized surety company or with sureties
approved by a justice of the Curt.
In its Motion, it is unclear as to against whom counsel for Intervenor Plaintiff seeks relief,
1 ‘
as she interchangeably weaves references to Stephen D’Angelo, individually, “as manager”, as
1
sole member”, as if there has been a-piercing of the corporate veil or that a member is liable for
| ‘
the debts of a limited liability company, which has not happened and is not the case under
Massachusetts law, respectively, and finally against DLG. The jatter seems to make most sense.
*
Having said that, Trustee attachment or injunctive relief should not be allowed against Stephen
D’Angelo, personally, as there is no debt against him, and he is entitled to be treated as such.
Regarding Mr. D'Angelo and DLG, the Court should consider also that there are
formidable, pending counterclaims against Saba Hashem, the pregnancy discriminator and female
abuser, for his numerous breaches of fiduciary duties arising from his subsequent illegal abuse of
a different woman, which destroyed D’Angelo & Hashem. The claimed damages for which
are/will be significant, and will exceed the value of Ms. Carrion’s Judgment, a potential source of
payment and resolution.
Lastly, there can be no attorney’s fees awarded because there is no final judgment against
DLG.
Respectfully Submitted,
41Dated:
July 13, 2020
12
I
Defendant, Stephen L: D’ Angelo,
D’ Angelo Law Group, LLC, by its
counsel
Thomas C. LaPorte
Thomas C. LaPorte, Esq.
BBO #634194
Kenneth A. Cossingham, Esq.
BBO #100970
Cossingham Law Office, PC
30 Massachusetts Ave, Suite 404
North Andover, MA 01845
Tel No: 978-685-5686
e-mail:tlaporte@cossinghamlaw.com. CERTIFICATE OF SERVICE
I, Thomas C. LaPorte, Esq., hereby certify that on this 13" day of July 20120 served a
copy of the foregoing to all parties by mailing a copy via electronic mail to:
Mernaysa Rivera-Bujosa, Esq.
Rivera Bujosa Law, PC
Shipway Place
' Unit C2
The Charlestown Navy Yard _
1 Charlestown, MA 02129
, mer riverabujosalaw.com.
Albert I. Farrah, Esq.
Farrah and Farrah
800 Boylston Street, Suite 1600
Boston, MA 02199 .
Email: alf@farrah-law.com
és{Thomas C, LaPorte
Thomas C. LaPorte, Esq.
13
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COMMONWEALTH OF MASSACHUSETS ESSEX, SS SUPERIOR COURT SABA HASHEM, individually, and as a Member of, and derivatively on behalf of, D’ANGELO and HASHEM, LLC. Plaintiff Civil Action No. 16CV1419 Vv. STEPHEN L. D’ANGELO, D? ANGELO LAW GROUP, LLC, and D’ANGELO AND HASHEM, LLC. Defendants Se ee eH eR RH DEFENDANT D’ANGELO LAW GROUP, LLC’S and DEFENDANT STEPHEN D’ANGELO’S OPPOSITION TO MOTION TO REACH AND APPLY (styled as “for Trustee Process”) ' SUMMARY OF ARGUMENT Counsel for Defendants submits that this Court is tasked with deciding whether the equitable relief sought by Intervenor-Plaintiff (Ms. Carrion’s) counsel is appropriate, and if so order relief tailored to avoid hardship”, including to others, that will impair 1 For instance, while Justice Talwani’s Preliminary Injunction Order made in Federal District Court is null and void as a matter of law because that Court did not have jurisdiction to issue that Order, and while Defendants respectfully but firmly disagree with the reasoning behind said Order, it was just insofar as that ‘Court did not issue an order that would in effect strangle the ability of defendants and their employees to continue to operate, serving and funding other cases of Plaintiffs seeking compensation for their Injuries, a3 well as to continue to make a living for themselves and thelr families by indicating in that order the (District) could and would “tailor” the relief granted to avoid any hardships. 2. While Defendants do contend that the nefarious intent supporting the allegations which have been alleged and attributed to them is not a fair attribution, given the circumstances that existed, which Defendants’ counsel has alluded to before, and has herein, it does not believe this Court should, or is, influenced by Intervenor- Plaintiff's counsel's inclusion of the same in her moving papers, surrounded by hyperbele, rhetoric and surplasage exhibits and conclusory commentary about them. It is simply referenced because the relief now sought from this Court far exceeds what Justice Talwani believed to be tailored to avoid hardships: 1 79fundamental rights as well as most likely, ironically, tend to defeat the larger purpose of Ms. Carrion’s action, which is to collect money to satisfy her judgment. Second, while Defendants believe a proper balancing of the equities, after contemplation of all the circumstances and consequences, is extremely important, and required by law, as this Court undoubtedly knows; and are inclined to present them first to the Court, Defendants respectfully disagree and stand on their rights not to concede substantial likelihood of success on the merits, and so in the interest of order will address them first before the second prong of balancing of equities (or inequities). More specifically, and in sum, defendants, inter alia, contend that not enough consideration has been paid the ordinary course of business, as referenced with legal authorities in their Opposition to the Cross-Motion for Summary Judgment, or to the context of: 1) Defendants’ actual state of mind when in 2014, the year all appeals were exhausted, it, through counsel, Attorney Richard Mestone, attempted to initiate a viable settlement plan involving a sizeable, good faith offer for Ms. Carrion, which they could honor, which was rebuffed by Ms. Carrion’s then counsel to'even recognize or speak with evidencing an “all or nothing” immediate lump-sum position; and . 2) that the evidence of a lack of intent to avoid Ms. Carrion’s debt after Mr. Hashem/’s violent and illegal conduct toward another woman suddenly thrust thesituation upon Mr. D’Angelo and the firm, causing its demise, and subsequent reliance on special ethics counsel’s advice as to what had to be done in a period of about two weeks, by Mr. D'Angelo. Defendants contend this situation created a case of first impression, different than Attorney Kelley’s actions, as found in S mith v. Kelley, when he documented indeed, resolved, in the minutes of his former LLC ideas about and his intention to avoid a debt to a client arising out of an associate attorney’s professional negligence toward Mr. Smith. Further, Defendants respectfully contend that the purpose of avoiding payment of a debt, a perquisite to imposing successor liability as set forth in the Supreme Judicial Court’s seminal holding in Milliken, cited in this Court's Order allowing summary judgment is not substantially established and'supported by all the evidence, certainly not as a matter of law. Finally, this exercise may very well be an empty or hollow exercise accomplishing little since the Defendants have affied that they do not think or know that either ever appropriately applied for attorney’s fees in the Coumbia Gas cases settlement, making them eligible or entitled to receive anything. (Please see Affidavit of Stephen L. D’ Angelo, filed in support hereof.)DISCUSSION RE: BACKGROUND Mr. Angelo was forced to set up DLG. It was not done to defraud Ms. Carrion or avoid D&H’s debt, It was a totally new entity without the presence of Mr. Hashem. Thus, it is an issue of first impression of whetherisuccessor liability attaches where a suspended attorney does not return his LLC membership share and thus the original LLC CANNOT function. The remaining shareholder is FORCED to incorporate a wholly new entity devoid of the suspended attorney. Tn the fall of 2015, Saba Hashem was arrested and convicted of crimes stemming from an assault and battery of a woman; (not Ms. Carrion), with whom it was later revealed he was having an extra-marital affair with. It was inevitable that and Mr. Hashem was indeed temporarily suspended from the practice of‘law and then indefinitely suspended. That remains the case. Stephen D’Angelo, then acted with clean hands. D&H could not operate, as a matter of law, with a shareholder that was anon-attorney suspended from the practice of law. Saba Hashem did not return his membership share in D&H. Mr. D’ Angelo incorporated D’ Angelo Law Group, LLC. All of the D&H clients were given the opportunity to seek-other representation and sign on with DLG. All of the actions taken by Stephen D’ Angelo comported with the Massachusetts Rules of Professional Conduct re: a suspended attorney. Intervenor Plaintiff hasisettled with Defendant Saba Hasham, who was found personally liable to Intervenor-Plaintiff, Ms. Carrion. However, the Partial Satisfaction of Judgment recorded i on the Court Record is incomplete and not properly completed as the partial satisfaction figure hasbeen omitted.? Therefore, the monies owed by D&H to Jennifer Carrion are lower, plausibly much lower, than requested by her in this motion. The Court (Deakins, J) has entered an interlocutory summary judgment order in this case Hashem ' v. D'Angelo v. Carrion, that D’Angelo Law Group, LLC has successor liability to D’Angelo Law Group, LLC and is liable for D’Angelo & Hashem, LLC’s judgment to Plaintiff Jennifer Carrion. See Memorandum & Order, Paper #89. Importantly, there has been no motion for entry of separate and final judgment pursuant to Mass.R.Civ.P. 54(b), or entry of a Final Judgment on the Court record. : NO SUBSTANTIAL LIKELIHOOD ON THE MERITS What is missing from the evidence is a showing of an intent to defraud, or an intent to avoid payment of a debt. Such intent is the purpose behind imposition of Successor Liability, and to find a violation of the Uniform Transfer Act. Mr. D’Angelo never once, concealed, deceived or took any surreptitious action or engaged in any behavior, abnormal from continuing its normal operations, as it and its members had done for years. Members and employees were paid, bills were paid from cash ‘flow-which was and never will be linear, recorded on company books, and appropriate tax returns were prepared and publicly filed. See Fraser Engineering Co. v. Desmone, 26 Mass. App. Ct. 99, 104, 524 N.E. 2d 110, 113 (1998) [No deception found where Defendant did not act or cause her business activities to differ from past practice.} The fact that Judgment-debtor did not reach an 8 That issue is the subject of a Cross-Motion for an Order for intervenor Plaintiff or her counsel to file a completed Satisfaction of Judgment, filed and served contemporaneously, herewith. 5agreement with Ms. Carrion as they had tried to do, is evidence contrary to any nefarious or illegal conduct. Massachusetts courts have defined “ordinary course of business” as the “usual, common, general, customary”; “the opposite of rare, uncommon, exceptional, extraordinary, unusual.” Higgins’s Case, 284 Mass. 345, 353 (1933). The Court has held that the disbursement of funds for legal fees, a new legal retainer, and to the company’s management firm, are within the ordinary course of business, such that it was within “the course of its normal day-to day business operations.” ZVI Const. Co. v. Upper Crust LLC, 94 NE3d 879 (Mass. App. 2017), quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 547, 556. As you know the Trial Court did not reach a decision regarding payment of these expenses or disbursements. The core of the inquiry ‘for successor liability is whether one entity has become another in order , or for the purpose of avoiding a debt. Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 556 (1997). Weave in my handwritten argument, citing Milliken’s binding precedent requiring an attempt to avoid a'debt, and intent to defraud for purposes of Chapter'109(A). Nor was there any “transfer” that would satisfy sections 5 or 6 of chapter 109A. D’Angelo never “amended” contracts with clients as Attorney Kelley did in Smith v. Kelley. Simply put the facts created by Mr. Hashem don’t exist in that case nor in any of-the cases the SJC cited. Turning to the moving papers presented and commented upon by the moving party, while counsel has a duty to advocate, the Court should not be swayed by inflammatory use of conclusions, personal opinion, misstatements, half-truths, irrelevant and surplus exhibits and comments characterizing or mischaracterizing legal defenses as illegal or cynical, or that simple non-payment, leaving out the contexts in which payments could not or did not occur, as a practical matter or as a legal matter constitute a crime, as well as'allusions to Gross Revenues, personal income before taxes, assets a person might possess, or opinions regarding “an ability to 6pay”, while ignoring the realities of carried debts, ongoing expenses and obligations, its effect on cash flow and non-linear revenue This is simply economic class warfare, not facts and not evidence. And she seeks to use it to prematurely choke off the ability of the Defendants to live, provide basic support for themselves and families, to pay their employees, service their clients, and to exercise his fundamental right to counsel, whom he must be able to pay to continue their retention. All of this is sought before there is a final judgment against DLG on the issue of Successor Liability discussed above, or any proof of fraudulent state of mind supporting the Fraudulent transfer claims. brough against Mr. D’ Angelo, much less any judgment. Under the law, he is not personally tiable unless such fraudulent state of mind existed, either as a member of D&H, who settlement overtines were rebuffed in lieu of an all or nothing now position-which has not served Ms. Carrion well, or after Mr. Hashem committed his shenanigans leading to the legal impossibilities that occurred of his own making or failures to comply with ethical rules of this Commonwealth Throughout this case, the parties opposing Defendants, including the truly culpable one, Mr. Hashem whose personal acts of his own affected women, destroyed a firm and subjected his fellow 50% member to peril and damages. These parties have been strange odd-fellow cohorts 4 For instance, Intervenor again includes reference to a null and void order of,the Federal Court and opines that that Order was violated, as admitted by Defendants’ counsel. indeed not, the email sent to Intervenor-Plaintiff’s counsel simply stated the Order was:Null and void as a matter of law of ne effect, and was as if it was never issued under the law since the Court had no jurisdiction. This is clear by its Order of Remand. Words of appallingly, life of luxury, etc. are merely hyperbole. Defendants’ Counsel’s 93A Response clearly stated there was a lack of a consumer, a lack o f trade or commerce, and a lack or an act arising out of the ordinary course of the accused busines, as well as violation of Section9(3) of the Act. See Ex. E to Moving Papers.in colluding to act against whom they perceive as simply a deep pocket, for cither or both of them. For all the reasons stated in its opposition for summary judgment there is no likelihood of success on the merits, notwithstanding the interlocutory summary judgment decision of the Court. This is an issue of first impression, very much distinguistiable from Smith v. Kelley and its cases cited therein, which needs to be decided by the Appeals Court. BALANCING OF THE EQUITIES OR INEQUITIES Briefly summarizing the circumstances surrounding payments of draws, as well as surrounding the demise of D'Angelo & Hashem, LLC, and the creation of DLG with new contingency contracts with claimants the chose to retain DLG, Defendants state that in November of 2011, a jury returned a verdict against Saba Hashem, and D’Angelo & Hashem, LLC, for discrimination (D&H). Judgment entered. Saba Hashem and Stephen D’Angelo were the members of the LLC of D&H. Stephen L. D’ Angelo was not a named Defendant in discrimination. Saba Hashem testified that he never told Mr. D’Angelo that Jennifer Carrion was pregnant. There was no evidence that Mr. D'Angelo discriminated against Jennifer Carrion. Mr. D’Angelo had clean hands in that matter, and in all matters, thereafter, when he acted in accord with counsel’s advice and in accord with the Professional Rules governing attorneys-nothing more, and for no other purpose, as was seen in the case of Attorney Kelley of Smith v. Kelley where he boldly admitted in a deposition his purpose was to avoid a debt incurred as a result of malfeasance legal work, which was imputed to his former professional corporation. As discussed herein. the situations and context evidencing the state of mind of Defendants,specifically no intent to defraud, or avoid a debt both when' draw payments were made in 2014 and 2015, after settlement attempts were rebuffed, as well as when DLG was formed, after Mr. Hashem forced Mr. D’Angelo into an ethical,-préssing dilemma, for which he needed and obtained counsel indicates there is strong evidence, unlike the'cases cited in this Court's memorandum granting summary judgment / 4 Thereafter, D&H and Saba Hashem made attempts to settle the judgment debt with Jennifer Carrion’s counsel through their counsel Richard Mestone, Esq. Ms. Carrion’s refusal to recognize or communicate with Attorney Mestone indicated they would accept no viable settlement, instead would insist on a lump sum now or nothing (no settlement) position, 5. Involuntarily thrust on Defendants Mr, H’s breach of fiduciary duties. Refusal to resign, tender shares, illegal to operate as “D & H” as it impermissible implied a partnership of two lawyers, and prevented dissolution. Under reasonable assumption he could not share fees with non-lawyer, contingent Ks were void, impermissible for non-lawyer to own shares in law practice. Asked and relied on the legal counsel he was given As this Court surely knows, it should exercise its considered discretion in deciding whether to allow sweeping excessively broad relief as is sought here. It should not be allowed to issue against DLG because clients and employees of DLG will suffer undue hardship. (Please See the Affidavit of Stephen P. D’ Angelo filed in support herewith.) Most importantly, should the Court allow the sweeping excessively broad relief that appears to be asked of this Court, such an order will have the immediate effect of freézing operatingaccounts of DLG, and the firm will not be able to fund its current clients’ cases. Its operations will be brought to a halt, too. The staff could not get paid, and the firm may be forced to close and declare bankruptcy. The staff includes two part time student law clerks, a paralegal who is a single mother with a child, another elderly paralegal with health problems, and two associates with families. Specifically, should any attorney's fees (revenue to DLG be forthcoming, and the excessively broad, sweeping relief of depriving my firm from any and all revenue, as the Intervenor-Plaintiff, Ms. Carrion, through counsel, is asking this Court to order, the following persons will be materially adversely affected, resulting in inequity exceeding that to Ms. Carrion in ot receiving, directly, or by way of constructive trust, or in the Court depriving DLG from any and all revenues for her benefit are the following persons in the following ways: . a. Other Plaintiffs who are clients of DLG. Those persons are entitled to legal counsel and to seek just compensation for their injuries. The costs of each of their cases need funding. , b. Seven employees of DLG and their families. Payroll is $7500. 00, bi weekly, and one Independent Contractor is paid when cases settle. c, DLG from which Ms. Carrion will now look to payment requires on average $60,315.00 per month to operate. Obviously, if it can’t operate, it cannot do anything. (Please See the Affidavit of Stephen L. D’ Angelo at pp. 2 & 3.) where the ongoing average monthly firm costs are broken down by category.) d. Mr. D’Angelo and his family. On average, in order to live he requires $8000.00 per month. His cost of living includes costs for shelter, transportation, and to support | feed, clothe, work and support himself and son in college. He also has,a right to legal counsel, and must pay is attorneys. He should be allowed to petition ‘It is not unreasonable ‘for anyone not to have these fundamental rights, debtor or not, which he has not been adjudicated as such, after Presentation of all the evidence, circumstances and witnesses. ’ POLICY, ABSENCE OF REQUIRED POSTING OF BOND & OTHER CONSIDERATIONS 10A Trustee attachment should not be allowed regarding DLG because a bond is required, and none has been posted or filed. Massachusetts General Laws, c. 246, Section 1 requires that a bond be posted/filed in this sitvation from an authorized surety company or with sureties approved by a justice of the Curt. In its Motion, it is unclear as to against whom counsel for Intervenor Plaintiff seeks relief, 1 ‘ as she interchangeably weaves references to Stephen D’Angelo, individually, “as manager”, as 1 sole member”, as if there has been a-piercing of the corporate veil or that a member is liable for | ‘ the debts of a limited liability company, which has not happened and is not the case under Massachusetts law, respectively, and finally against DLG. The jatter seems to make most sense. * Having said that, Trustee attachment or injunctive relief should not be allowed against Stephen D’Angelo, personally, as there is no debt against him, and he is entitled to be treated as such. Regarding Mr. D'Angelo and DLG, the Court should consider also that there are formidable, pending counterclaims against Saba Hashem, the pregnancy discriminator and female abuser, for his numerous breaches of fiduciary duties arising from his subsequent illegal abuse of a different woman, which destroyed D’Angelo & Hashem. The claimed damages for which are/will be significant, and will exceed the value of Ms. Carrion’s Judgment, a potential source of payment and resolution. Lastly, there can be no attorney’s fees awarded because there is no final judgment against DLG. Respectfully Submitted, 41Dated: July 13, 2020 12 I Defendant, Stephen L: D’ Angelo, D’ Angelo Law Group, LLC, by its counsel Thomas C. LaPorte Thomas C. LaPorte, Esq. BBO #634194 Kenneth A. Cossingham, Esq. BBO #100970 Cossingham Law Office, PC 30 Massachusetts Ave, Suite 404 North Andover, MA 01845 Tel No: 978-685-5686 e-mail:tlaporte@cossinghamlaw.com. CERTIFICATE OF SERVICE I, Thomas C. LaPorte, Esq., hereby certify that on this 13" day of July 20120 served a copy of the foregoing to all parties by mailing a copy via electronic mail to: Mernaysa Rivera-Bujosa, Esq. Rivera Bujosa Law, PC Shipway Place ' Unit C2 The Charlestown Navy Yard _ 1 Charlestown, MA 02129 , mer riverabujosalaw.com. Albert I. Farrah, Esq. Farrah and Farrah 800 Boylston Street, Suite 1600 Boston, MA 02199 . Email: alf@farrah-law.com és{Thomas C, LaPorte Thomas C. LaPorte, Esq. 13