Orkin v. Albert

• Decision Date: 01 February 2023
• Docket Number: CIVIL 21-40060-LTS
• Parties: WAYNE ORKIN, Plaintiff, v. LISA SUE ALBERT and IAN ALBERT, Defendants, and BOOST WEB SEO, INC. Intervenor-Plaintiff, v. WAYNE ORKIN, Intervenor-Defendant.
• Court: U.S. District Court — District of Massachusetts

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WAYNE ORKIN, Plaintiff, v. LISA SUE ALBERT and IAN ALBERT, Defendants, and BOOST WEB SEO, INC. Intervenor-Plaintiff, v. WAYNE ORKIN, Intervenor-Defendant.

CIVIL No. 21-40060-LTS

United States District Court, D. Massachusetts

February 1, 2023

ORDER ON DEFENDANTS' AND INTERVENOR-PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. NO. 105) AND PLAINTIFF'S AND INTERVENOR-DEFENDANT'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. NO. 122)

Leo T Sorokin, United States District Judge

Plaintiff Wayne Orkin and his father, the late Arthur Orkin (who was dismissed as a party to the case following his death) commenced this action in May 2021 against Defendants Lisa Albert (Wayne's sister and Arthur's daughter) and Ian Albert (Lisa's son, Wayne's nephew, and Arthur's grandson). Doc. Nos. 1, 5, 87.^[1] Subsequently, Boost Web SEO, Inc. intervened and filed an Intervenor Complaint alleging claims against Wayne Orkin. Doc. No. 23. This case is an intra-family dispute concerning various allegations of misconduct related to the operation of multiple family businesses as well as alleged defamatory statements. Doc. Nos. 1-1, 23. The Alberts and Intervenor-Plaintiff Boost Web now seek partial summary judgment on the Intervenor Complaint (Doc. No. 23) for release of funds currently held by third-party CardConnect, Corp. (which the Court assesses under the conversion claim, Count I) and an accounting (Count III). Doc. Nos. 105, 106. They also seek partial summary judgment against three counts asserted by Wayne Orkin against Lisa Albert in the original Complaint (Doc. No. 11): a defamation claim (Count I) and two claims alleging intentional interference with advantageous business relationships (Counts X and XI). Doc. Nos. 105, 106. Plaintiff/Intervenor-Defendant Wayne Orkin cross-moves for partial summary judgment on two counts asserted by Boost Web in the Intervenor Complaint: a conversion claim (Count I) and an unjust enrichment claim (Count II). For the reasons explained below, the Alberts and Boost Web's Motion for Partial Summary Judgment (Doc. No. 105) is DENIED as to the request for release of funds currently held by third-party CardConnect but ALLOWED in all other respects. Wayne Orkin's Cross-Motion for Partial Summary Judgment (Doc. No. 122) is DENIED as to the conversion claim but ALLOWED as to the unjust enrichment claim.

I. BACKGROUND^[2]

Wayne Orkin and his late father, Arthur Orkin,^[3] filed the original Complaint in this case on May 28, 2021 in state court, and Defendants removed the action to federal court on June 7, 2021. Doc. Nos. 1, 5. The original Complaint alleged 11 counts against Lisa and Ian Albert. Doc. No. 1-1 ¶¶ 1, 59-115. These claims were for defamation, breach of fiduciary duty, unjust enrichment, intentional interference with advantageous business relationship, and breach of contract. Id. The Orkins also sought a preliminary injunction in the Complaint. Id. ¶¶ 1, 100-103.

About two months after the case was originally filed, Boost Web SEO, Inc. (“Boost Web”), a Florida corporation, filed a Motion to Intervene. Doc. No. 10. Judge Hillman, the judge previously assigned to this case, granted that motion, Doc. No. 19, and Boost Web filed an Intervenor Complaint on August 26, 2021 alleging three counts against Wayne Orkin, the Intervenor-Defendant, for conversion, unjust enrichment, and accounting. Doc. No. 23.

Boost Web is a corporation specializing in search engine optimization, merchant processing, and credit card processing. Doc. No. 125 ¶ 1. Boost Web's Articles of Incorporation list Lisa Albert as the registered agent, incorporator, and sole “initial officer(s) and/or director(s).” Doc. No. 23-2 at 2-3. Florida Secretary of State reports for each year from 2018 to 2021 list Lisa Albert as the “current registered agent” and “officer/director,” and she signed each of those reports as “President.” Doc. No. 23-1 at 2; Doc. No. 23-3 at 2-4. Wayne Orkin's role in and authority over Boost Web is disputed and is discussed further in the discussion section below. Doc. No. 125 ¶ 2; infra Section III.A.1.

Financial Transaction Services, Inc. (“FTS”) was a credit card processing platform for which agents sell FTS products and services in exchange for residual income based on fees paid by the merchants to FTS. Doc. No. 106 at 3. Prior to the formation of Boost Web in 2013, Pass Thru Merchant Services, LLC (“Pass Thru”), controlled by Wayne Orkin, was an agent for FTS under an agent agreement (the “Assignor ISO Agreement”). Doc. No. 125 ¶ 3; Doc. No. 59-3 at 5-15. FTS later rebranded as CardConnect, which became an in-house independent sales organization of Fiserv, Inc. responsible for acquiring agents, like Pass Thru, to sell credit card processing products and services to merchants. Doc. No. 125 ¶ 4. On January 23, 2014, FTS and Wayne Orkin signed a Consent to Assignment Agreement (the “2014 Assignment Agreement”) with FTS for Pass Thru to assign to Boost Web “all right, title, and interest to residuals and compensation under the Assignor ISO Agreement.” Doc. No. 59-3 at 17-20; Doc. No. 125 ¶ 5. Wayne Orkin's signature appears only once on the 2014 Assignment Agreement, Doc. No. 59-3 at 20, but it is undisputed that Pass Thru and Boost Web were both parties to this Agreement. Doc. No. 125 ¶ 5.

The 2014 Agreement contains the following relevant positions:

WHEREAS the Assignor wishes to assign to the Assignee all right, title and interest to residuals and compensation under the Assignor ISO Agreement to the Assignee (“Assignment”);

4. Assignment. The parties hereto hereby agree that as of January 23, 2014 (the “Effective Date”), the Assignment will take effect and the residuals for the Merchants Assigned shall be paid to Assignee after such date. As such, all payments after the Effective Date shall be made to Assignee.

9. Interim or Final Termination. FTS shall continue to make the residual income or other ISO payments to Assignee [Boost Web] unless and until it receives either written instructions executed by both the Assignor [Pass Thru] and Assignee [Boost Web], or an order of any court of competent jurisdiction requiring it to make different payment arrangements.”

14. Whole Agreement.... This Agreement may only be modified by a writing signed by all Parties. Notwithstanding same, if the Assignor and Assignee agree in a writing signed by both to the applicability of this Agreement to new and additional merchant accounts referred by Assignor after the Effective Date, FTS shall consider such new and additional merchant accounts as encompassed by the terms of this Agreement.

Doc. No. 59-3 ¶¶ 4, 9, 14. From 2014 to April 2021, CardConnect paid into Boost Web's Wells Fargo Bank account all residuals for merchants originated by Pass Thru both before and after the date of the 2014 Assignment Agreement. Doc. No. 125 ¶ 9.^[4]

In April 2021, for reasons that the parties dispute, Lisa Albert terminated Wayne Orkin's access to Boost Web's Wells Fargo bank account. Id. ¶ 11. Shortly thereafter in May 2021, Lisa Albert sent letters to several of her father Arthur Orkin's doctors regarding her concerns about his care. Doc. No. 107-1 at 2-7. The letters state that Wayne Orkin had assumed the role of Arthur Orkin's “primary care-taker,” raise concerns about whether Arthur Orkin was receiving appropriate care based on several recent emergency room visits and numerous other alleged facts about her father's experiences, and assert that UMass Memorial (Arthur Orkin's primary healthcare provider) had “ethical and moral responsibilities to their patient and [to] take reasonable steps to ensure that he is being cared for in the appropriate manner.” Id. Though the parties dispute Lisa Albert's reasons for sending the letters, it is undisputed that Wayne Orkin suffered no compensable losses as a result of these letters. Doc. No. 125 ¶ 15.

On April 29, 2021, Lisa Albert sent an email to “partnercompliance@cardconnect.com” regarding her concerns with Wayne Orkin's “fraudulent activities.” Doc. No. 96-4 at 86. The letter states that Lisa Albert is “President of Boost Web SEO” and that Boost Web “ha[s] been experiencing fraudulent activities with a Wayne Orkin, who may have attempted to either access, change, or otherwise alter any arrangements between you (First Data/Card Connect) and Boost Web SEO.” Id. It further notes that “[t]his is currently a civil and criminal matter that is being pursued” and that “Wayne Orkin is not an authorized representative of Boost Web SEO and any such attempted activity by him will be further pursued in court.” Id.

Wayne Orkin and Arthur Orkin filed the present action on May 28 2021 in state court, and Defendants removed the action to federal court on June 7, 2021. Doc. Nos. 1, 5. Less than a week after filing this action, on June 3, 2021 Wayne Orkin entered into an agreement with Laith Yaldoo of MKY FTS Sales, LLC (MKY) (previously employed at CardConnect as Director of ISO Sales) and Erik Nicholson of CardConnect redirecting the CardConnect residuals from Boost Web to MKY (the “MKY Agreement”). Doc. No. 59-3 at 23, 36-41; Doc. No. 125 ¶ 16. Wayne Orkin's signature on the MKY Agreement document is explicitly as President of Pass Thru. Doc. No. 59-3 at 37. Boost Web was not listed as a party to the MKY Agreement and is not mentioned anywhere in the MKY Agreement document. Id. at 36-41. Boost Web is also not mentioned anywhere in the email chain between Wayne Orkin, Laith Yaldoo, and other representatives of CardConnect and Fiserv in which Laith Yaldoo instructed CardConnect to redirect the residuals “for our long time friend and agent partner Wayne Orkin” to MKY “until further notice” and Wayne Orkin confirmed Mr. Yaldoo's instructions. Id. at 31-34. Following the signing of the MKY...