In Hanselman v. Frank, Case No. 09-P-1490, 2010 Mass. App. Unpub. LEXIS 715 (June 23, 2010), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed the grant of a preliminary injunction upon the motion by one beneficiary of an irrevocable trust, Hanselman, to enjoin the trustee from making distributions to another beneficiary, Edward, during the pendency of litigation concerning whether Edward had violated the forfeiture provision of the trust by petitioning for the removal of the trustee for failure to account.In affirming the grant of the preliminary injunction, the Appeals Court reviewed (1) whether Hanselman had a likelihood of success on the merits, (2) whether Hanselman would be irreparably harmed if the injunction were not issued, and (3) whether a balancing of the harms favored Hanselman. Regarding the first element, likelihood of success on the merits, Massachusetts has long recognized forfeiture clauses--also known as in terrorem or no-contest clauses--as valid and enforceable, and the Court held that Edward's petition to remove the trustee triggered the forfeiture clause of the trust. The Court noted that Edward had not merely sought an accounting from the trustee. Regarding the second element, irreparable harm, the Court explained that potential inability to collect damages has sufficed to entitle a plaintiff to a preliminary injunction that does no more than preserve the status quo. Preserving the status quo was held to be warranted here because the evidence suggested that Edward would be unable to repay distributions if he were ultimately found to have violated the forfeiture provision. As to the third element, balancing of the harms, the Court explained that the risk to a plaintiff of funds being dissipated by a potentially judgment-proof defendant during litigation has been found to outweigh the defendant's loss of use of the money pending a final decision.
Day Pitney Newsletter
Clifford Nichols wrote an article, "When Addressing Cybersecurity and Data Breach, Don't Forget eDiscovery," for New Jersey Law Journal. The article is about how companies should consider eDiscovery and litigation response issues when making policy or infrastructure changes to address cybersecurity and data breach risks.
Day Pitney Press Release
Rick Sanders is quoted in an article, "Business Groups Encouraged by Legislators," in NJBIZ, which addresses political activity behind a bill to phase out New Jersey's estate tax. Under the bipartisan bill, the estate tax, which currently applies to inheritances valued at $675,000 or more, would be eliminated gradually over a five-year period. "It affects such a small part of the population," Sanders said. "It just strikes me as unusual that all of a sudden, this bill came. I think it's not coincidental that the governor was campaigning for president at the time he called for the repeal. For years and years, there's been proposals to increase the exemption to $1 million and it never got any traction in New Jersey."
Boston, Mass., January 20, 2016 – Day Pitney is pleased to announce Jillian Hirsch, a partner in Day Pitney’s Litigation Practice, has been selected as one of Massachusetts Lawyers Weekly’s 2015 Lawyers of the Year. Honorees were nominated by their colleagues, clients and other legal professionals for their outstanding professional accomplishments.
Boston, Mass. November 11, 2015 – Day Pitney is pleased to announce Leiha Macauley, a partner in Day Pitney’s Individual Clients Practice, has been selected as a 2015 Boston Rising Star by The National Law Journal.
Jillian Hirsch was quoted in an article, "Trust divisible in divorce despite possible new beneficiaries," in Massachusetts Lawyers Weekly. In the article, Hirsch, who represented the wife in the matter, explains why the Appeals Court's decision of Pfannenstiehl v. Pfannenstiehl is significant.
"It confirmed that an interest in a trust with an ascertainable standard--specifically one with a history of distributions woven into the fabric of the marriage--is a vested, presently enforceable interest and therefore properly included in a marital estate for purposes of equitable division of property in a divorce," she said.