Bertolino v. Fracassa, 092619 MASUP, SUCV20174210BLS2

Docket Nº:SUCV20174210BLS2
Opinion Judge:Janet L. Sanders, Justice of the Superior Court
Party Name:Leo BERTOLINO et al. v. Terence FRACASSA et al. Terence Fracassa, Plaintiff in Counterclain and Derivatively on Behalf of Commonwealth Pain Management Connection, LLC v. Leo Bertolino et al. and Commonwealth Pain Management Connection, LLC; Terence Fracassa, Third-Party Plaintiff v. Kettle Black of MA, LLC et al. Third-Party Defendants
Case Date:September 26, 2019
Court:Superior Court of Massachusetts
 
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Leo BERTOLINO et al.

v.

Terence FRACASSA et al.

Terence Fracassa, Plaintiff in Counterclain and Derivatively on Behalf of Commonwealth Pain Management Connection, LLC

v.

Leo Bertolino et al. and Commonwealth Pain Management Connection, LLC; Terence Fracassa, Third-Party Plaintiff

v.

Kettle Black of MA, LLC et al. Third-Party Defendants

No. SUCV20174210BLS2

Superior Court of Massachusetts, Suffolk, Business Litigation Session

September 26, 2019

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT TERENCE FRACASSA’S MOTION FOR A PROTECTIVE ORDER

Janet L. Sanders, Justice of the Superior Court

This action arises from a failed medical marijuana venture. Plaintiffs are all investors in a Delaware limited liability company called Kettle Black of MA, LLC (Kettle Black), formed for the purpose of funding Commonwealth Pain Management Connection, LLC (CPMC). Plaintiffs have sued Terence Fracassa and Frederick McDonald, CPMC principals, alleging a violation of the Massachusetts Uniform Securities Act, G.L.c. 110A, § 410 (the Securities Act). Fracassa has in turn filed a Third-Party Complaint naming among others Kettle Black and his one-time attorneys, Burns and Levinson (B & L). Now before the Court is Fracassa’s Motion for a Protective Order. In support of the Motion, Fracassa alleges that B & L wrongfully turned over privileged and confidential documents to Kettle Black’s current counsel Murphy & King, who also represents the plaintiffs. Fracassa seeks an order that Murphy & King and plaintiffs destroy these documents, asserting that they are subject to an attorney client privilege belonging to Fracassa and CPMC. Both B & L and the plaintiffs oppose the motion. All parties have submitted affidavits; plaintiffs have also submitted (under seal) examples of some of the documents that Fracassa now claims to be privileged. After review of the party’s submissions, this Court concludes that the Motion must be DENIED, for reasons set forth in the Memoranda in opposition. Of particular importance to this Court’s conclusion is the following.

1. The medical marijuana venture that is at the heart of this case was the brainchild of two people, Fracassa and McDonald. McDonald was a manager of both...

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