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Hays v. Ellrich

Supreme Judicial Court of Massachusetts, Suffolk

June 10, 2015

Molly A. Hays
David J. Ellrich & others. [1]

Argued: February 3, 2015.

Civil action commenced in the Superior Court Department on September 11, 2006.

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The case was heard by Christine M. Roach, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

David B. Mack ( Stephanie R. Parker with him) for the defendants.

Patrick J. Dolan for the plaintiff.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


[31 N.E.3d 1067] Gants, C.J.

In January, 2001, in reliance on the advice of her investment advisor, the plaintiff, Molly A. Hays, invested approximately three-quarters of her retirement savings in a hedge fund that became insolvent in 2003, resulting in the loss of her entire investment. In 2006, Hays filed suit in the Superior Court, alleging that her investment advisor, Morgan Financial Advisors, Inc. (MFA), and David J. Ellrich, the sole owner and officer of MFA, had, among other claims, violated the Massachusetts Uniform Securities Act (act), G. L. c. 110A, § 410 ( a ) (2), committed fraud, and committed a breach of their fiduciary duty to her. After a jury-waived trial, the judge ruled that Ellrich and MFA were liable under § 410 ( a ) (2), and entered judgment in Hays's favor for $381,354.80 plus interest.[2], [3] MFA and Ellrich appealed, and we transferred the case to this court on our own motion.

On appeal, Ellrich and MFA claim that they were not " sellers" of securities within the meaning of § 410 ( a ) (2), and therefore cannot be liable under the act. They also argue that the claims on which Hays prevailed are barred by the statute of limitations. In addition, they contend that the judgment must be vacated because it is contrary to the great weight of the evidence.[4] We affirm the judgment.


We summarize the findings of fact made by the judge, supplemented where necessary by uncontested evidence in the record that the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S. C., 450 Mass. 818, 882 N.E.2d 328

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(2008). We reserve certain facts that directly relate to the legal issues we address.

In approximately 1991, when Ellrich was employed by another investment advisory firm, Hays and her husband retained Ellrich as an investment advisor to manage some of their funds. Before her husband's death in 1993, Ellrich communicated almost exclusively with Hays's husband, and rarely with her. Shortly after her husband's death, Hays met with Ellrich to discuss the management of the individual retirement account (IRA) she had inherited, which totaled approximately [31 N.E.3d 1068] $310,000 at the time. Hays told Ellrich that she needed income but wanted to remain at home with her five year old daughter.[5] Ellrich told Hays, who was forty-one years old in 1993, that she could elect to make periodic withdrawals from the IRA without a tax penalty at the maximum rate permitted under § 72(t) of the Internal Revenue Code -- seven per cent per year at the time.[6] As a consequence, Hays's investment portfolio needed to achieve an average annual rate of return of more than 11.75 per cent: seven per cent to cover the withdrawal rate, plus inflation, which averaged approximately three per cent, plus Ellrich's management fee of 1.75 per cent. From 1993 to 1999, Hays directed Ellrich to employ a " moderate growth and income" investment strategy, which he implemented, maintaining an equities-to-fixed-income ratio of approximately seventy-five per cent to twenty-five per cent. Ellrich pursued a " market-timing" strategy for the equities portion of Hays's investment account, which, by 2000, was invested in funds at Rydex Series Trust (Rydex) and at Profunds Investments (Profunds). He pursued a " buy and hold" strategy for the fixed income portion, which was invested in long-term investment vehicles maintained by Fidelity Investments (Fidelity).[7] Hays had no investment experience and had relied upon Ellrich as her financial advisor since her husband's death; during that time period, she made no investment without Ellrich's advice.

In 2000, after Ellrich had registered MFA as an investment

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advisor, Hays transferred her accounts to MFA, and executed first a portfolio management and services agreement and later a superseding investment advisory agreement with MFA. MFA was designated as the registered investment advisor on all of Hays's accounts, which totaled approximately $470,000 at the end of 2000.

Also in 2000, Ellrich was approached by Richard Furber about becoming the investment advisor to Convergent Market Funds (Convergent), a new " hedge fund" Furber was creating.[8] Ellrich agreed in September, 2000, to become the investment advisor to one or more Convergent funds, and MFA executed an investment advisor agreement with Convergent's general partner, Emerging Health Capital Partners LLC (EHCP). Ellrich determined that, as Convergent's investment advisor, he would no longer " have the time or resources" to perform market-timing services for individual accounts, and needed to terminate MFA's advisory business for all of his individual market-timing accounts. In December, 2000, he spoke with each of his approximately 150 individual clients, including Hays, to tell them that [31 N.E.3d 1069] those services would be terminating as of December 31, 2000.

During Ellrich's conversation with Hays, he explained to her that he was going to be the investment advisor to a new private fund, and encouraged Hays to transfer her funds to Convergent, telling her that he would personally be making the trades for Convergent and would employ the same strategies and techniques that Ellrich had always employed for her accounts. Ellrich did not explain to Hays what a hedge fund is or the distinctive risks of investing in a hedge fund. He did not speak with her about whether, in light of those risks, such an investment would be suitable for someone relying on her investments to produce a fixed income. He did not tell her that he had no experience trading for a private equity fund, or that Convergent had no track record. And he never provided Hays with a " full and practical explanation of ... how the historical role he had played as Hays'[s] investment advisor would change," never telling her that he would no longer be considering her individual needs in making trades for Convergent. The judge found that, " by a combination

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of his words, his manner, and his tone, Ellrich strongly implied to Hays ... that Convergent would be a suitable investment for her." [9]

Hays told him that she wanted to invest in Convergent, relying entirely on Ellrich's encouragement. Nearly seventy-five per cent of Ellrich's individual market-timing clients also decided to invest in Convergent, contributing all but ...

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