Opinion
SUCV201701635BLS1
11-21-2017
Clayton M. CHRISTENSEN et al.[1] v. Shawn E. COX
Caption Date: November 20, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
Edward P. Leibensperger, Justice
Plaintiffs, Dr. Clayton M. Christensen (Clayton), Matthew Q. Christensen (Matthew), Disruptive Innovation GP, LLC (Disruptive Innovation), and Rose Park Advisors, LLC (Rose Park), filed this action against defendant, Shawn E. Cox, a former employee of Rose Park. Plaintiffs assert the following six claims against Cox in their Complaint: declaratory judgment (Count I), unilateral mistake (Count II), breach of fiduciary duty (Count III), breach of contract (Count IV), violation of G.L.c. 272, § 99(Q) (Count V), and violation of G.L.c. 214, § 1B (Count VI). Cox moves to dismiss plaintiffs’ Complaint in its entirety under Mass.R.Civ.P. 12(b)(6) and Mass.R.Civ.P. 9(b). For the reasons stated below, Cox’s motion to dismiss is allowed in part and denied in part.
To avoid confusion, the Christensens will be referred to by their first names.
BACKGROUND
The facts as revealed by the Complaint are as follows.
Matthew is the principal founder, CEO, and Managing Partner of Rose Park and Disruptive Innovation. He is responsible for the management of Disruptive Innovation. Clayton is a professor at Harvard Business School. He created and developed the theory of " disruptive innovation, " which businesses use throughout the world. Both Matthew and Clayton are members of Disruptive Innovation.
Rose Park is a Delaware limited liability company that the Christensens organized in 2007. It is an investment firm that the Christensens founded to apply the theory of disruptive innovation. Rose Park invests in companies whose business models are well-suited to take advantage of industry change. Matthew manages Rose Park, and Clayton serves as an advisor to Matthew on matters related to the investment strategy of disruptive innovation. The Complaint does not provide a specific identification of the members of Rose Park.
Disruptive Innovation is a Delaware limited liability company that serves as the general partner for the Disruptive Innovation Fund, L.P. (Fund). Disruptive Innovation, as the Fund’s general partner, receives a performance fee based on the Fund’s performance. The performance fees are earned and realized at the end of the year; if the amount of performance fees exceeds the expenses incurred during the year, the result is profits. Rose Park serves as investment manager for the Fund.
Cox is now a resident of Orem, Utah. Rose Park employed Cox from July 2010 through May 2013. Cox’s employment with Rose Park was " at will." When Rose Park hired Cox, he signed the " Rose Park Advisors, LLC Employee Handbook." The handbook provides that, as an employee, Cox would not disclose Rose Park’s proprietary and confidential information, even after his employment with the company ended. The handbook also provides that Cox will not compete with Rose Park for three months after his employment ends and will not disparage Rose Park or the Christensens at all times during and after his employment with Rose Park.
The Rose Park employee handbook actually purports to impose various non-competition restrictions on the employee for a " 36 month period following termination" of employment. Rose Park Advisors, LLC Employee Handbook at 11.
As a component of Cox’s compensation at Rose Park, Cox received, at the sole discretion of Disruptive Innovation and Rose Park, a share of the profits of Disruptive Innovation. Cox is a certified public accountant with fund operations experience. As alleged in the Complaint, the Christensens trusted Cox to carry out the daily operations of Rose Park, the Fund, and Disruptive Innovation. Cox was responsible for working with outside legal counsel to prepare, review, and approve company documents on the Christensens’ behalf. The Christensens and Disruptive Innovation trusted Cox to ensure the accurate and complete implementation of their instructions and intentions, which permitted Matthew to focus on making and managing all of the Fund’s investments. The Christensens placed this high level of trust in Cox because he and Matthew had a preexisting friendship, and they attended the same church. Cox accepted the trust and responsibility placed upon him by the Christensens.
On January 13, 2013, Cox began secretly to pursue employment with another investment firm, Clarke Capital Partners (Clarke Capital). He engaged in extensive discussions with James Clarke, Clarke Capital’s founder and managing partner, and other Clarke Capital representatives.
In February of 2013, Cox requested, and received from Matthew, an increase in his compensation at Rose Park based on a share of profits of Disruptive Innovation. The Complaint alleges that Cox fraudulently induced Matthew to increase his compensation and that Matthew would not have increased Cox’s compensation if he knew Cox planned to leave Rose Park.
On April 1, 2013, Cox instructed a junior lawyer at the law firm representing Disruptive Innovation to amend Disruptive Innovation’s Amended and Restated Limited Liability Company Agreement dated January 1, 2009 (Operating Agreement). Cox instructed that the Operating Agreement be amended to add himself as a " Member." The Operating Agreement defined " Member" as, " Clayton Christensen, " " Matthew Christensen, " and founding employee " Whitney Johnson." Matthew had authorized Cox to obtain an amendment of the Operating Agreement to reflect the removal of Johnson as a Member. No one, however, authorized Cox to add himself as a Member. Cox did not disclose to the Christensens or Disruptive Innovation that he had instructed outside counsel to add himself as a Member of Disruptive Innovation under the Operating Agreement.
On April 5, 2013, Cox delivered a one-page memo to Matthew. The memo is described and referenced in the Complaint as a " Profit Sharing Memo." Cox attaches a copy of the April 5, 2013 memo to his motion to dismiss, and argues that the court may consider the attachment because the document is referenced in the Complaint. In their Opposition, plaintiffs do not dispute that the April 5, 2013 document attached to the motion to dismiss is the April 5, 2013 document that plaintiffs called the " Profit Sharing Memo" in the Complaint.
This court may consider materials not appended to the Complaint, but referenced or relied upon in the Complaint. See Harhen v. Brown, 431 Mass. 838, 839-40 (2000). See also Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).
Cox allegedly explained to Matthew that the April 5, 2013 memo was an update to the annual profit sharing percentages to reflect the agreed-upon increase in Cox’s compensation and the redistribution of the percentage ownership that was previously allocated to Johnson. Cox, however, failed to disclose to Matthew that the memo actually " details the changes in the Class B Unit ownership for Disruptive Innovation GP, LLC, " as stated at the top of the April 5, 2013 memo. The memo references Cox as a " Member" owning 60, 000 " Class B Units." Class B Units are described in Section 3.02(a)(i) of the Operating Agreement as follows:
Distributions attributable to Incentive Allocations made after January 1, 2009, to the Company [Disruptive Innovation] in its capacity as general partner of the Fund under section 6.06 of the Limited Partnership Agreement, and any earnings or returns on such Incentive Allocation amounts, shall be made to the holders of Class B Units based on the number of Class B Units held by each such holder immediately prior to such distribution.
By documenting himself as owner of Class B Units, Cox allegedly was attempting to transform his employment-based annual profit sharing, which would terminate after Cox stopped working for Rose Park, into an economic interest that Cox could retain even after he stopped working for the company. Plaintiffs assert that Matthew signed the April 5, 2013 memo without reading it. Matthew was allegedly under the misimpression, caused by Cox, that the document concerned profit sharing, not ownership interests.
On April 12, 2013, Cox informed Matthew that he was quitting Rose Park and joining Clarke Capital.
In early May 2013, Cox gave Matthew signature pages for the new version of the Disruptive Innovation operating agreement that Cox had instructed Disruptive Innovation’s outside counsel to draft in April 2013 (Updated Operating Agreement). Cox represented that the document merely updated the Operating Agreement to remove Whitney Johnson as a member. Cox asked Matthew and Clayton to sign the signature pages. Cox added a schedule at the end of the document, " Schedule A, " that listed himself as being a " Member" and having " Unit Ownership" of 60, 000 " Class B Units." Again, Cox failed to disclose this to the Christensens when they signed the Updated Operating Agreement. Although not specifically stated in the Complaint, the facts alleged suggest that the Christensens executed the signature pages for the Updated Operating Agreement without reading the entire document or noting Schedule A, listing Cox as a member of Disruptive Innovation.
At the end of May 2013, Cox stopped working at Rose Park. In June 2013, Cox requested a copy of the Updated Operating Agreement signature pages. The Christensens still did not realize that Cox documented himself as a Member and Class B Units holder.
Sometime thereafter, Cox shocked the Christensens by asserting that he was a Member of Disruptive Innovation, citing the April 5, 2013 memo and the Updated Operating Agreement as evidence. He demanded payment as a Class B Units holder. Cox provided no consideration for the units. Cox was allegedly aware that the Christensens never intended to give him an equity interest in Disruptive Innovation. Plaintiffs claim that, " Cox had sufficient investment industry experience to be aware that it would be virtually unprecedented for a non-founding, non-investment, short-tenured employee to be gifted a permanent entitlement to profits." Complaint, ¶ 25.
In the years after Cox left Rose Park, the Christensens made various good faith efforts to resolve this matter. In February 2015, plaintiffs paid Cox a $107,916.81 " Deferral Bonus." Cox, however, demanded more payments as a Class B Units holder.
Effective January 1, 2015, the Christensens amended the Operating Agreement to formally document that Matthew was " Manager" of the Company and that the Members and Unit holders of Disruptive Innovation were Matthew and Clayton (2015 Operating Agreement).
In May 2017, Cox allegedly attempted to extort money from Disruptive Innovation and the Christensens by representing that he recorded a telephone call in December of 2016 with Clayton. The recorded conversation allegedly undermines Disruptive Innovation’s claim that Cox is not entitled to Disruptive Innovation’s profits. Plaintiffs, however, assert that the call was a " settlement conversation, " and that Clayton made a good faith attempt to resolve Cox’s claim even though he was not involved in the matter. Clayton initiated the call and participated in it while sitting in his office in Boston. Cox did not tell Clayton that their telephone conversation was being recorded, and Clayton was unaware that it was being recorded. Clayton did not consent to the recording. On May 26, 2017, plaintiffs commenced this action.
ANALYSIS
To survive a motion to dismiss, the plaintiff’s " [f]actual allegations must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ..." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citing Bell A. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). In other words, " [w]hile a complaint attacked by a ... motion to dismiss does not need detailed factual allegations ... a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions ..." Iannacchino, 451 Mass. at 636, quoting Bell A. Corp., 127 S.Ct. at 1966. Dismissal under Mass.R.Civ.P. 12(b)(6) is proper where a reading of the complaint establishes beyond doubt that the facts alleged do not support a cause of action which the law recognizes, such that the plaintiff’s claim is legally insufficient. Nguyen v. William Joiner Center for the Study of War and Social Consequences, 450 Mass. 291, 295 (2007).
Breach of Fiduciary Duty
In Count III of their Complaint, plaintiffs claim that Cox breached his fiduciary duties to the Christensens and Disruptive Innovation based on his actions discussed above. See Complaint, ¶ 64 (listing Cox’s actions and conduct that plaintiffs claim breached his fiduciary duty to them).
Cox moves to dismiss the breach of fiduciary duty claim. In addition to contending that plaintiffs are falsifying their claim (not a ground for dismissal under Rule 12), Cox argues that the Christensens cannot pursue the claim because they are duty-bound to read what they signed. Having admitted in the Complaint that they did not read the documents, the Christensens should be barred from claiming a breach of fiduciary duty.
As an initial matter, Cox contends that Delaware law applies to all claims arising out of the Updated Operating Agreement. Cox cites Section 9.06 of the Updated Operating Agreement regarding " Applicable Law, " which states: " This Agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Delaware without regard to its principles of conflicts of laws." The problem, however, with Cox’s argument for Delaware law with respect to the claim for breach of fiduciary duty are two-fold. First, Cox cannot bootstrap the contested Updated Operating Agreement into being a binding contract on the operative law. Second, the fiduciary duty claim against Cox is based on his conduct as an employee of Rose Park, not as a putative member of Disruptive Innovation.
Another Superior Court judge sitting in the Business Litigation Session recently recognized that:
A choice-of-law provision, like any other contractual provision, will not be given effect if the consent of one of the parties to its inclusion in the contract was obtained by improper means, such as by misrepresentation, duress, or undue influence, or by mistake. Whether such consent was in fact obtained by improper means or by mistake will be determined by the forum in accordance with its own legal principlesOxford Global Resources, LLC v. Hernandez, 1684CV03911-BLS2, 2017 WL 2623137, *2 (Mass.Super.Ct. June 9, 2017) (Salinger, J.) , quoting Restatement (Second) of Conflict of Laws § 187 comment b (1971). Because it is contested as to whether the Updated Operating Agreement is a valid contract between Cox and the Christensens, in their capacity as members of Disruptive Innovation, Cox may not enforce the choice of law provision in the Updated Operating Agreement. Moreover, the Christensens assert that Cox owed them and Disruptive Innovation a fiduciary duty because of Cox’s unique role as an employee of Rose Park, not as a putative member of Disruptive Innovation. That claim must be analyzed under Massachusetts law because Cox was employed in Massachusetts and committed the alleged acts here.
Based on Massachusetts law, dismissal of the breach of fiduciary duty claim against Cox in Count III is not warranted. " Whether ... a fiduciary relationship exists in a particular case is largely a question of fact." Baker v. Wilmer Cutler Pickering Hale and Dorr, LLP, 91 Mass.App.Ct. 835, 837 (2017). " Employees occupying a position of trust and confidence owe a duty of loyalty to their employer and must protect the interests of the employer." Chelsea Industries, Inc. v. Gaffney, 389 Mass. 1, 11 (1983).
Even if Delaware law applied to the breach of fiduciary duty claim, dismissal would still not be warranted. See Triton Const. Co. v. Eastern Shore Elec. Servs., Inc., 2009 WL 1387115 at *9-*11 (Del.Ch. 2009), aff’d, 988 A.2d 938 (Del. 2010) (citation omitted) (recognizing that " key managerial employees, " and even non-managerial employees, may be liable for breaches of fiduciary duty based on hallmark principles of agency law and noting that " hallmark principles of agency law apply to traditional corporate fiduciaries, such as officers and directors, and to key managerial personnel").
As a fiduciary, Cox was obligated to disclose all material facts to the Christensens regardless of whether the Christensens could have discovered the facts by reading the documents. See Markell v. Sidney B. Pfeifer Foundation, Inc., 9 Mass.App.Ct. 412, 440-41 (1980) (noting that " where a person is induced to sign a legal document by one standing in a fiduciary relation to that person and where the fiduciary has an interest in the document’s execution ... the document can generally be avoided by its signer on a showing merely that the fiduciary failed to make him aware of the legal significance of the signing of the document"). The document may be subject to avoidance if the fiduciary failed to make the person aware of the legal significance of signing of the document. Id. at 440-41. " The rule is based on the principle that the fiduciary owes complete and undivided loyalty to the person towards whom he stands in such a relation and should not permit any other consideration to influence his actions or advice." Id. at 441. See also Passatempo v. McMenimen, 461 Mass. 279, 294-302 (2012) (noting that fiduciary owes a duty of full disclosure and discussing reasonable reliance on misrepresentations from a trusted advisor); Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519 (1997) (explaining that fiduciary owes duty of full disclosure); Production Mach. Co. v. Howe, 327 Mass. 372, 375 (1951) (recognizing that defendant failed to make " full disclosure which as a fiduciary he owed").
Here, plaintiffs allege enough in their Complaint to plausibly suggest that Cox owed them a fiduciary duty. Therefore, he was required to make a full disclosure of the contents of the documents he presented to the Christensens. Taking the allegations regarding the procurement of the Christensens’ execution of the documents as true, as I must at this stage of the case, the claim for breach of fiduciary duty is plausible. Consequently, Cox’s request to dismiss the breach of fiduciary duty claim in Count III is denied.
Unilateral Mistake
In Count II, plaintiffs assert that this court should hold that the Updated Operating Agreement is " invalid" because it is a result of a unilateral mistake. Complaint, ¶ 58. Cox moves to dismiss plaintiffs’ claim of unilateral mistake for failure to state a claim upon which relief can be granted under Mass.R.Civ.P. 12(b)(6). Cox argues that: (1) plaintiffs’ factual allegations are insufficient to rescind a contract under unilateral mistake, and (2) the agreement that the plaintiffs seeks to invalidate is so unambiguous on its face that it " render[s] implausible plaintiffs’ bald declarations of mistake."
In Count II, plaintiffs are seeking rescission or avoidance of the Updated Operating Agreement based on a unilateral mistake. They do not seek reformation of this document. See Complaint, ¶ 58 (" Disruptive Innovation and the Christensens request that the Court hold that the Updated Operating Agreement is invalid as a result of the aforementioned unilateral mistake"). See Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d 665, 677 (Del. 2013) (distinguishing between avoidance and reformation).
Massachusetts choice of law rules recognize that the state of incorporation dictates the governing law in claims involving the internal affairs of a corporation. See Harrison v. Netcentric Corp., 433 Mass. 465, 471-72 (2001) (applying general rule that law of state of incorporation governs claims concerning internal affairs of a corporation). Plaintiffs concede in the Complaint that Disruptive Innovation is a Delaware limited liability company. Plaintiffs’ claim for rescission of the Updated Operating Agreement necessarily involves the internal corporate affairs of a Delaware corporation. The claim presupposes that Cox became a putative member of a Delaware corporation, and requests that the membership be rescinded. Based solely on the conceded fact that Disruptive Innovation is a Delaware company, Delaware law applies to this count.
Under Delaware law, " [r]escission of a transaction because of a unilateral mistake is an extraordinary remedy." FdG Logistics, LLC v. A &R Logistics Holdings, Inc., 131 A.3d 842, 861 (Del.Ch. 2016). " It is only available under Delaware law when a party can demonstrate that (1) the enforcement of the agreement would be unconscionable; (2) the mistake relates to the substance of the consideration; (3) the mistake occurred regardless of the exercise of ordinary care; and (4) it is possible to place the other party in the status quo." Id. at 861-62 (citation and internal quotation marks omitted).
Plaintiffs’ claim for unilateral mistake in Count II fails to state a claim under Delaware law. Delaware allows rescission if " the mistake occurred regardless of the exercise of ordinary care ..." FdG Logistics, LLC v. A &R Logistics Holdings, Inc., 131 A.3d at 861-62. Plaintiffs concede in the Complaint that they failed to read or review before signing the April 5, 2013 memo or the Updated Operating Agreement. As a matter of law, such conduct or lack of conduct is not the exercise of ordinary care. Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d at 677 (" We adhere to our case law holding that a party cannot seek avoidance of a contract he never read"). See also Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 913 (Del. 1989) (" A party to a contract cannot silently accept its benefits, and then object to its perceived disadvantages, nor can a party’s failure to read a contract justify its avoidance"). Plaintiffs’ claim for unilateral mistake in Count II is, therefore, dismissed.
Breach of Contract
Plaintiff’s claim in Count IV of the Complaint is based solely on the " Rose Park Advisors, LLC Employee Handbook." Plaintiffs claim that Cox breached the handbook by, among other things, obtaining employment at Clarke Capital, disclosing confidential and propriety information, and disparaging the Christensens and Rose Park. Cox moves to dismiss Count IV, noting that the final section of the handbook on page forty-one is entitled, " Employee’s Acknowledgment of the Purpose and Legal Effect of This Employee Handbook, " which states:
As RPA [Rose Park] provides the information contained in the Handbook for general guidance only, employees should not expect RPA to adhere to these policies and procedures in every instance. Accordingly, nothing stated in the Handbook is intended or should be understood to create a binding contract between RPA and any one or all of its employees.
* * *
Neither the Handbook, RPA practice, nor other oral or written policies or statements of RPA or its agents shall create an employment contract, guarantee a definite term of employment, or otherwise modify in any way the agreement and understanding that employment with RPA is at-will.
Rose Park Advisors, LLC Employee Handbook at 41. Cox signed the acknowledgment dated June 3, 2011.
Plaintiffs’ breach of contract claim in Count IV must be dismissed. " [I]f the employer, for whatever reason, does not want the [employment] manual to be capable of being construed by the court as a binding contract, there are simple ways to attain that goal." Ferguson v. Host Int’l, Inc., 53 Mass.App.Ct. 96, 103 (2001) (citation omitted). " All that need be done is the inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing ..." Id. Plaintiffs required Cox to sign the " Employee’s Acknowledgment of the Purpose and Legal Effect of This Employee Handbook, " which unequivocally states that the handbook does not create a binding contract between Rose Park and its employees. The legal effect of plaintiffs’ decision to require Cox, an employee of Rose Park, to sign this prominent statement at the end of the employee handbook is that they cannot now pursue a breach of contract claim against Cox based solely on the employee handbook in Count IV of the Complaint.
Wiretapping
Clayton brings wiretapping claims against Cox alleging violation of G.L.c. 272, § 99(Q) in Count V and G.L.c. 214, § 1B in Count VI. See G.L.c. 272, § 99(Q) (providing a civil remedy for violations of wiretap act). See also G.L.c. 214, § 1B (" A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages."). The Massachusetts Wiretap Act, G.L.c. 272, § 99, prohibits the recording of oral communications without the consent of all parties. Commonwealth v. Blood, 400 Mass. 61, 66 (1987). However, " nothing in the wiretap statute suggests any intention to regulate conduct outside the bounds of the Commonwealth." Commonwealth v. Maccini, 22 Mass.L.Rptr. 393, 2007 WL 1203560, *2 (Mass.Super.Ct. Apr. 23, 2007) (Fabricant, J.). See Commonwealth v. Wilcox, 63 Mass.App.Ct. 131, 139 (2005) (" The defendant cites no authority for the proposition that G.L.c. 272, § 99, applies to recordings made outside of Massachusetts"). See also Marquis v. Google, Inc., 2015 WL 13037257, *9 (Mass.Super.Ct. Feb. 13, 2015) (Billings, J.). (concluding that Massachusetts wiretap statute did not apply to out of state conduct); MacNeill Engineering Co., Inc. v. Trisport, Ltd., 59 F.Supp.2d 199, 202 (D.Mass. 1999) (holding that secretly recording a conversation outside Massachusetts does not give rise to liability under G.L.c. 272, § 99Q even if call originated within Massachusetts). Moreover, Federal law permits recording with the consent of one party to the communication. Commonwealth v. Blood, 400 Mass. at 67.
Counts V and VI are based on a call Clayton initiated from Massachusetts to Cox. The Complaint alleges the following facts: In May 2017, Clayton initiated a call to Cox. Clayton was in his office in Boston. Cox recorded the call. Cox did not tell Clayton that their conversation was being recorded, and Clayton was unaware that it was being recorded. Clayton did not consent to the recording.
At the October 24, 2017 hearing on Cox’s summary judgment motion, counsel for Cox suggested that this court should dismiss Counts V and VI without prejudice to plaintiffs being allowed to amend their Complaint to allege that Cox was in Massachusetts, and not in Utah, at the time Cox made the alleged recording. Currently, the Complaint is silent as to Cox’s location at the time he recorded the call. Plaintiffs do not allege that Cox was located in Massachusetts at the time of the recording. Accordingly, the wiretap claim must be dismissed, without prejudice. If plaintiffs have a good faith basis for alleging that Cox was located in Massachusetts at the time of the recording, they may amend Count V to assert this fact.
The Complaint does allege that Cox is a resident of Orem, Utah.
Finally, plaintiffs’ claim in Count VI that the recording of the telephone call was a violation of G.L.c. 214, § 1B. That claim is dismissed because " the Legislature has given persons whose conversations are illegally intercepted a specific and exclusive statutory remedy" under G.L.c. 272, § 99(Q). Tedeschi v. Reardon, 5 F.Supp.2d 40, 46 (D.Mass. 1998). Legally recording a telephone conversation is not an invasion of privacy.
CONCLUSION
Defendant Shawn E. Cox’s Motion to Dismiss is ALLOWED in part and DENIED in part as follows:
The Motion is ALLOWED as to Count II (unilateral mistake), Count IV (breach of contract), and Count VI (violation of G.L.c. 214, § 1B).
The Motion is ALLOWED as to Count V (violation of G.L.c. 272, § 99(Q)), without prejudice to amending the Complaint as to the wiretapping claim in Count V.
The Motion is DENIED as to Count I (declaratory judgment) and Count III (breach of fiduciary duty).