A quarterly summary and brief analysis of significant decisions issued by the Massachusetts Superior Court Business Litigation Session. A service of O’Connor, Carnathan and Mack LLC.		  

August 2004
 

Volume 1
Number 1
Page 5
 

Summarizing opinions from April 1, 2004 through
June. 30, 2004


Under Proper Circumstances, the Adverse Inference Appli-cable to a Party who Asserts the Fifth Amend-ment Privilege Against Self Incrimination in a Civil Suit May Result in a Find-ing of Liability
 

 
 


 


 


 

 

 




 
     

O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Cape Wind Associates, LLC v. Donelan, 2004 Mass. Super. LEXIS 165
(April 29, 2004, 04-0913 BLS) (Van Gestel, J.).
     

Defendant allegedly defamed the plaintiff through a false press release that he issued by e-mail using a false name. Defendant had admitted to the Cape Cod Times that he had issued the false press release. At his deposition, Defendant asserted his privilege against self-incrimination under the Fifth Amendment to the Constitution in response to

 



 

 

 



 

 
virtually every question asked (including where he lived). Plaintiff moved to compel answers to its questions. Judge Van Gestel noted the application of an adverse inference against a party who takes the Fifth in a civil matter. He ordered the Defendant to answer the Plaintiff’s questions or suffer a finding of liability.

 


 


 



 

 

 



 

 
 
     
     


Reverse Triangular Merger Did Not Require Consent of Warrant Holders Pursuant to Unambiguous Provisions of Securities Purchase Agreement
 
 

 


 

 

 

 



 

Triumph-Connecticut Limited Partnership v. Ascent Pediatrics, Inc., 2004 Mass.
Super. LEXIS 126  (April 9, 2004, 01-5159 BLS) (Van Gestel, J.).
     

Plaintiff Triumph-Connecticut Limited Partnership (“Triumph”) was a private equity fund that invested $7 million in Ascent Pediatrics (“Ascent”), a privately held company. Triumph received a secured note and a block of warrants to purchase the company’s common stock. In connection with the investment, Triumph also entered into a securities purchase agreement (“SPA”) with Ascent, which, among other things, prohibited Ascent from entering into a merger without the consent of the warrant holders, unless Ascent was the surviving

 

 

 

 


 

 

company in any such merger, and the merger was not otherwise prohibited under the terms of the SPA.

Ascent later entered into a reverse triangular merger with Medicis Pharmaceutical Company (“Medicis”) by forming a wholly owned subsidiary and merging the subsidiary with Medicis. Ascent was the surviving company in the merger, but Medicis officers and shareholders controlled the combined company. Judge Van Gestel ruled that under the plain language of the SPA, the merger did not require approval by the warrant holders.

 




 

 

 

 



 
 
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