Davis Malm & D'Agostine, P.C. - Attorneys at Law

Thomas S. Fitzpatrick

Shareholder

President

direct 617.589.3865

fax 617.305.3165

tfitzpatrick@davismalm.com

Practice Focus and Experience

Tom Fitzpatrick practices in the Business Law and Litigation areas. Tom is a trial lawyer focusing primarily on business, corporate, and commercial litigation. He has considerable experience in all manner of business disputes, including litigation and arbitration in corporate, real estate, construction, and shareholder cases.

Representative Matters

Successfully represented minority shareholders in an action for declaratory judgment, which permitted them to sell or otherwise dispose of their shares in any manner they see fit. The Supreme Judicial Court upheld the Superior Court’s decision that the shareholders owed no fiduciary duty to the corporation or their co-shareholders, as the issue was specifically governed by the articles of organization.
Successful prosecution of a corporate indemnification action in the Delaware Chancery Court. Read more.
Successful defense of a bank, a mortgage company and its loan officer in a case brought by a construction loan borrower alleging fraud and violation of Chapter 93A. Read more.
Successful prosecution of an action brought by an intestate estate to recover funds from a former administratrix of the estate. Read more.
Successful defense of a federal court action alleging fraud and breach of fiduciary duty by former chief financial officer and treasurer of investment banking firm. Read more.
Successful defense of a Chapter 93A suit for a commercial lessor brought by its commercial lessee.
Successful defense of a $7.9 million breach of fiduciary duty arbitration claim brought against a general partner of a Rhode Island limited partnership. Read more.
Proceedings before the Delaware Chancery Court involving competing proposals for the tax-free division or sale of assets of the corporation for the owners of 50% of a large privately held convenience store and retail gasoline business.
Conversion from a brick and mortar manufacturing operation to a licensing-based operation for a 100-year old sporting goods company.
Successful defense of a general partner of a New Hampshire limited partnership from a petition for dissolution brought by limited partners. Read more.
Successful defenses of mechanics lien claims for numerous real estate owners.

Representative Reported Cases

Merriam v. Demoulas Super Markets,Inc., 464 Mass. 721 (2012) - Represented minority shareholders who prevailed in upholding a Superior Court decision in a declaratory judgment action concerning sale of stock. The court’s finding that the minority shareholders owed no fiduciary duty to the corporation or their co-shareholders allowed them to sell or otherwise dispose of their shares in any manner they see fit.
Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass. App. Ct. 347, rev. denied, 445 Mass. 1105 (2005) - Concerning the enforcement of a liquidated damages provision of a securities purchase agreement and compliance with the Massachusetts usury statute.
Lattuca v. Robsham, 442 Mass. 205 (2004) - Represented plaintiff Trustee in claim against an agent and lender to the trust who had used access as lender to facilitate diversion of trust assets to himself. Trial court found that agent/lender had violated fiduciary duty and the covenant of good faith and fair dealing. Supreme Judicial Court affirmed the decision.
V.S. Haseotes & Son, L.P. v. Haseotes, 819 A.2d 1281 (R.I. 2003) - Represented a partner of a real estate partnership that prevailed in upholding a favorable arbitration award. The case established standards necessary to set aside an arbitration award on the grounds of arbitrator bias.
Demoulas v. Demoulas, 57 Mass. App. Ct. 456 (2003) - Concerning the methodology and principles applicable to tax deductions in the context of a disgorgement remedy.
Demoulas v. Demoulas, 432 Mass. 43, 732 N.E.2d 875 (2000) - Concerning bona fide purchaser status, judicial recusal and the taxation of costs.
Demoulas v. Demoulas, 428 Mass. 555 (1998) - Concerning numerous issues, including the burden of proof for purported bona fide purchasers, use of "fair value" of minority shareholder's stock in a breach of fiduciary duty action, and rescission of stock sales accomplished through breaches of fiduciary duty.
Arthur S. Demoulas v. Demoulas Super Markets, Inc., 428 Mass. 543 (1998) - Concerning judicial recusal.
Arthur S. Demoulas v. Demoulas Super Markets, Inc., & others, 424 Mass. 501 (1997) - Establishing numerous important principles of law in the areas of shareholder derivative litigation, corporate fiduciary duty, and limitations of actions.
Kettenbach v. Demoulas, 901 F. Supp. 486 (D. Mass. 1995) - Concerning "newly discovered evidence" as grounds for granting a new trial and the admissibility of the statements of a co-conspirator.

Professional

Distinctions: Peer Review AV^® Preeminent™ rated by Martindale-Hubbell, the highest bestowed rating: Massachusetts Super Lawyers, 2005-2006, 2011-2014.
Admitted: Massachusetts; United States District Court for the District of Massachusetts.
Fellow: Massachusetts Bar Foundation.
Member: Massachusetts Bar Association; Boston Bar Association.

Community Involvement

Volunteer attorney for Shelter Legal Services, Inc.

Publications and Speaking Engagements

Former CEO of Maine Today Media Accused of Stealing More Than $500,000 From Company, Thomas S. Fitzpatrick interviewed by WGME 13 News, Portland
Press Herald Parent Accuses Former CEO of Misusing More Than $530,000, Portland Press Herald, Thomas S. Fitzpatrick (quoted)
MaineToday Media Accuses Former CEO of Stealing $500,000, Bangor Daily News, Thomas S. Fitzpatrick (quoted)
New England Business Litigation Conference 2013, Massachusetts Continuing Legal Education, January 2013, Thomas S. Fitzpatrick (Co-Chair and Presenter)
Many Area Law Firms Are Resisting the Urge to Merge, Boston Business Journal, Thomas S. Fitzpatrick (quoted)
New England Business Litigation Conference 2012, Massachusetts Continuing Legal Education, January 2012, Thomas S. Fitzpatrick (Presenter)
Pay Dirt: Recycler Undeterred in Fight vs. Major Trash Hauler, Massachusetts Lawyers Weekly, Laurence M. Johnson, Thomas S. Fitzpatrick, and Neal J. Bingham (interviewed)
Fiduciary Duties of Directors, Officers and Owners of Closely-Held Businesses, Massachusetts Continuing Legal Education, May 2007, Thomas S. Fitzpatrick (Presenter)
Fiduciary Duties of Directors, Officers and Owners of Closely-Held Businesses, Massachusetts Continuing Legal Education, August 2004, Thomas S. Fitzpatrick (Presenter)
Demoulas: An Inside Look at the Twists and Turns of a Legal Blood Feud, Massachusetts Lawyers Weekly, Carol R. Cohen and Thomas S. Fitzpatrick (quoted)