557 F.Supp.3d 252
D. Mass.2021Background
- Plaintiffs Wayne and Arthur Orkin (brothers) sued Lisa Sue Albert and Ian Albert (Arthur’s sister and nephew) over control of three family businesses: Boost Web SEO, OBANC, and IA Payments, and asserted related tort and contract claims.
- Alleged claims include defamation, breach of fiduciary duty, breach of contract, unjust enrichment, intentional interference, and requests for injunctive relief.
- Wayne sought an emergency temporary restraining order (TRO) to stop defendants from diverting company funds, to restore his access/role, and to compel rescission of certain complaints.
- Boost Web SEO moved to intervene, seeking to assert conversion/unjust enrichment claims and to impose a constructive trust over Card Connect proceeds and obtain account access.
- The court denied the TRO for lack of a likelihood of success on the merits, granted Boost’s intervention in part (allowing an intervenor complaint) but denied imposing a constructive trust on the present record, and ordered limited expedited discovery and a future preliminary injunction hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TRO to preserve assets and prevent alleged misappropriation | Immediate injunctive relief required: defendants diverting funds, blocking access, and making defamatory statements harm plaintiffs and warrant a TRO | Plaintiffs presented little evidence; no likelihood of success; relief would be extraordinary and unwarranted | TRO DENIED — plaintiffs failed to show likelihood of success or adequate evidence |
| Defamation (Counts I–III) | Lisa and/or Ian made false defamatory statements to medical providers, state agencies, Company clients, and others causing harm | Defendants contend statements are true (or unproven as false); plaintiffs produced no evidence of falsity or actual malice | Claims lack evidentiary support for falsity/malice; likelihood of success not shown |
| Breach of contract (Counts VI–VII) — alleged oral agreements giving Wayne management authority and account access | Wayne alleges verbal agreements that he would manage operations and remain authorized signer on accounts | Defendants note no written contracts; statute of frauds bars oral agreements that cannot be performed within one year; no proof of enforceable contract | BREACH OF CONTRACT claims unlikely to succeed; insufficient evidence and statute-of-frauds problem |
| Constructive trust / Boost intervention re Card Connect funds | Boost seeks to intervene and, if warranted, impose a constructive trust to recover Card Connect proceeds diverted to Orkin | Defendants dispute control/ownership of funds; record is incomplete and documents are conflicting | BOOST may intervene (intervenor complaint allowed); constructive trust DENIED on thin record; expedited discovery ordered to develop facts |
Key Cases Cited
- Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1 (1st Cir. 2012) (injunctive relief is extraordinary; TRO standard same as preliminary injunction)
- Coquico, Inc. v. Rodríguez-Miranda, 562 F.3d 62 (1st Cir. 2009) (four-factor preliminary injunction/TRO test)
- Noonan v. Staples, Inc., 707 F. Supp. 2d 85 (D. Mass. 2010) (elements of defamation under Massachusetts law)
- Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (Mass. 2016) (elements of breach of contract under Massachusetts law)
- Baker v. Wilmer Cutler Pickering Hale & Dorr, 91 Mass. App. Ct. 835 (Mass. App. Ct. 2017) (elements for breach of fiduciary duty)
- In re Handy, 624 F.3d 19 (1st Cir. 2010) (constructive trusts are remedial devices for equity, imposed after liability found)
- United Truck Leasing Corp. v. Geltman, 406 Mass. 811 (Mass. 1990) (requirements for intentional interference with advantageous business relations)
- Maine Educ. Ass'n Benefits Trust v. Cioppa, 695 F.3d 145 (1st Cir. 2012) (if likelihood of success is not shown, other injunction factors need not be addressed)