Rubin

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In reviewing an order allowing a motion to dismiss for failure to state a claim under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), the standard is well known. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) ('What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief'). In assessing the adequacy of the complaint we must take the facts alleged as true and draw all reasonable inferences from them in the light most favorable to the nonmoving party, here the plaintiff. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011).

The complaint has two counts. Count one alleges a violation of G. L. c. 93A, § 11. Count two alleges malicious interference with advantageous relationships. Turning first to the latter count, the facts alleged by the plaintiff fail to state a claim of malicious interference with advantageous relationships. New Frontier Advisors (NFA) was a party to both the CMA and the proposed Joint Venture Agreement, and it is the relationships surrounding those agreements and, particularly, the Vanguard deal that were in part their subject matter, with which the plaintiff alleges the defendants interfered. It is well settled that in a tortious interference with contract claim, '[a] party to the contract cannot be held liable for intentional interference.' Harrison v. NetCentric Corp., 433 Mass. 465, 477 (2001). The plaintiff has not persuaded us that a different rule should apply in a tortious interference with advantageous relations case such as this, where the defendants themselves are essential parties to the interwoven relationships with which the plaintiff claims interference. The fact that this claim is made against the individual defendants (as opposed to NFA) does not save it. See id. at 478 ('Where the corporation and the individual defendant are indistinguishable . . . it would exalt form over substance to hold that the corporation could not be sued successfully in contract, but that the corporation's alter ego could be sued successfully in tort'); Schinkel v. Maxi-Holding, Inc., 30 Mass. App. Ct. 41, 50 (1991) ('[O]ne in the position of chief executive officer . . . might be so closely identified with the corporation itself, and with its policies, that he should not be treated as a third person in relation to corporate contracts, susceptible to charges of tortious interference when he causes the corporation to breach its contractual obligations').

As to count one, the detailed complaint alleges facts sufficient to state a claim upon which relief may be granted. It alleges, among other things, that the defendants' actions were all in furtherance of a scheme to deprive the plaintiff of the benefits of the commission to which it was entitled under the CMA, and it alleges particular facts in support of that contention, including, for example, statements contained in a letter of NFA's counsel following NFA's purported termination of the CMA seeking to go forward with the Vanguard relationship only if the plaintiff agreed to a time-limited commission instead of the commission in perpetuity to which the terms of the CMA entitled it. There are thus sufficient facts alleged to state a claim of unfair and deceptive acts and practices including, in addition, the defendants' forming a new corporation, New Frontier Management, LLC, to sign the contract with Vanguard in place of NFA which, of course, was a party to the CMA with the plaintiff.

We also think the complaint alleges sufficiently that the individual defendants caused NFA and its attorneys to take the actions described in the complaint to state a claim against them as individuals. The complaint alleges, inter alia, that the defendants 'entered into and carried out a conspiracy to deprive the plaintiff of its commissions and the fruits of its work by attempting to extort concessions from [it].' See Marshall v. Stratus Pharmaceuticals, Inc., 51 Mass. App. Ct. 667, 677 (2001) (finding that although the defendants were acting 'within their authority as officers' they are 'personally liable for their own misrepresentations made to [the plaintiff] in violation of G. L. c. 93A, §11, even though they did not sign the agreement in their individual capacities '); Community Builders, Inc. v. Indian Motocycle Assocs., Inc., 44 Mass. App. Ct. 537, 560 (1998) ('It is settled that corporate officers may be held liable under c. 93A for their personal participation in conduct invoking its sanctions '). We also conclude that damages are not inadequately alleged in the complaint. The rule governing motions to dismiss for failure to state a claim does not require that the complaint plead the amount of damages with mathematical precision. See Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974), & 12(b)(6); Coady v. Wellfleet Marine Corp., 62 Mass. App. Ct. 237, 245 (2004) ('Although mere speculation is insufficient, the amount of damages need not be proved with mathematical precision'). See also Astech-MarMon, Inc. v. Lenoci, 349 F. Supp. 2d 265, 271 (D. Conn. 2004).

It appears that the complaint was dismissed on an understanding that some of the proof necessary for the claims to succeed was privileged under the absolute litigation privilege, see Visnick v. Caulfield, 73 Mass. App. Ct. 809, 813 (2009), including statements made by attorneys for NFA on July 16, 2007, and statements contained in a letter from one of the attorneys.

Even without the factual allegations relating to the meeting and the letter, we think there are sufficient facts alleged to state a claim on which relief can be granted under the Iannacchino standard. In any event, however, the litigation privilege is not applicable to these statements. That privilege 'protects the maker' of the privileged statements 'from any civil liability based thereon.' See Visnick, 73 Mass. App. Ct. at 813. The privilege is ordinarily (and in all cases we have found) available in defamation actions where the statements are alleged to have been actionable. See Restatement (Second) of Torts § 586 (1977). In this case the statements described in the complaint are merely evidence from which an inference of a malicious purpose might (but of course need not necessarily) be inferred. (The same is true of the deposition statements to which the defendants refer.) The statements themselves, however, are not alleged to be actionable. They are not themselves the defendants' alleged unfair and deceptive practice, even if the litigation privilege could be stretched beyond defamation actions to cover such a cause of action.

Perhaps recognizing this, the primary defense put forward by the defendants at argument for the exclusion of these statements is that they come within the rule generally excluding evidence of settlement negotiations. See Morea v. Cosco, Inc., 422 Mass. 601, 603-604 (1996) (adopting the rule). Settlement discussions are inadmissible to demonstrate that a claim is valid (that is, the fact that a defendant offered settlement cannot be used to show that he or she was liable), or to demonstrate the damages in a case (that is, the fact that an amount is offered in settlement may not be put before the jury as evidence of damages). See id.; Mass.G.Evid. § 408 (2011). Statements contained in settlement discussions are, however, admissible for other purposes. See Morea, 422 Mass. at 603-604. Here the purpose of their admission would be (and the purpose of their inclusion in the complaint was) to show intent and the defendants' state of mind. They therefore would not properly be excluded at trial. Thus neither the litigation privilege nor the evidentiary rule concerning settlement discussions in any way limits the judge's ability in deciding this motion to dismiss to consider these statements to the extent they are alleged in the complaint.

Finally, the defendants' issue preclusion argument is moot in light of our decision today in the related case of Capital Allocation Partners LLC v. New Frontier Advisors, LLC, No. 11-P-2113.

So much of the judgment as dismisses count one of the amended complaint is reversed. So much of the judgment as dismisses count two is affirmed.

So ordered.

By the Court (Rubin, Brown & Hanlon, JJ.),