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Merrimack College v. KPMG LLP

Supreme Judicial Court of Massachusetts, Suffolk

September 27, 2018


          Heard: May 8, 2018

         Civil action commenced in the Superior Court Department on June 30, 2014. A motion for leave to file an amended answer was heard by Kenneth W. Salinger, J., and the case was heard by him on a motion for summary judgment.

         The Supreme Judicial Court granted an application for direct appellate review.

          Elizabeth N. Mulvey for the plaintiff. Ian D. Roffman (George A. Salter also present) for the defendant.

          The following submitted briefs for amici curiae:

          Matthew P. Bosher, of the District of Columbia, & Elbert Lin for American Institute of Certified Public Accountants & another.

          Susan M. Whalen for Chelsea Housing Authority. Jeffrey J. Nolan for Massachusetts Academy of Trial Attorneys.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

          GANTS, C.J.

         "The doctrine of in pari delicto bars a plaintiff who has participated in wrongdoing from recovering damages for loss resulting from the wrongdoing." Choquette v. Isacoff, 65 Mass.App.Ct. 1, 3 (2005). The main issue presented in this civil case is whether, where the plaintiff is an organization acting through its agents, we should follow the traditional principles of agency law and impute the wrongdoing of those agents to the plaintiff organization when determining whether it should be barred from recovery under the in pari delicto doctrine. We hold that, for purposes of measuring fault under the in pari delicto doctrine, we impute only the conduct of senior management to the plaintiff organization. Because the judge here granted summary judgment to the defendant under the in pari delicto doctrine after imputing to the plaintiff college the wrongdoing of an employee who was not a member of senior management, we vacate the order allowing summary judgment and remand the case to the Superior Court.[1]


         Merrimack College (Merrimack) is a small private college incorporated under the laws of Massachusetts. From 1998 to 2004, Merrimack engaged KPMG LLP (KPMG), a large multinational accounting firm, as its independent auditor. Pursuant to this engagement, KPMG conducted annual audits of Merrimack's financial statements. Because Merrimack received substantial Federal funds in the form of student financial aid, KPMG also conducted audits pursuant to the United States Office of Management and Budget Circular A-133 (A-133 audits) to evaluate Merrimack's compliance with relevant Federal requirements.

         In conducting these audits, KPMG reviewed the operations of Merrimack's financial aid office, which was responsible for administering various grant and loan programs, including Federal programs such as the Perkins Loan Program.[2] On several occasions KPMG noted issues with the financial aid office, including delayed reconciliations, discrepancies between loan amounts recorded in the billing system and loan amounts recorded on the ledger, and Perkins loans disbursed without the required promissory notes. KPMG also noted a lack of formal policies and procedures relating to the disbursement of grants and loans. KPMG reported these issues to Merrimack's management and to its board of trustees. However, for every fiscal year between 1998 and 2004, KPMG issued an unqualified opinion that Merrimack's financial statements were free from material misrepresentation and also issued an opinion, based on its A-133 audits, that Merrimack was in material compliance with Federal program requirements.

         What KPMG's audits failed to reveal was that, during this time period, Merrimack's financial aid director, Christine Mordach, was engaged in a fraudulent scheme whereby she regularly replaced grants and scholarships that had previously been awarded to students with Perkins loans, often without the students' knowledge or consent and in some cases creating false paperwork with false names and false Social Security numbers. One consequence of Mordach's fraud was that it made the financial aid office's budget appear more balanced, because grants and scholarships reduce tuition revenue, whereas Perkins loans, because they are expected to be repaid in the future, are recorded as an asset on Merrimack's balance sheet. Another consequence of her fraud was that many students ended up shouldering student debt they had not sought and did not even know they had. Mordach did not tell anyone else at Merrimack that she was issuing fraudulent loans.

         Mordach's fraud went undetected until 2011, when Merrimack instituted a new system for keeping track of its student borrowers and many students started to receive billing statements for Perkins loans they never knew they had. As the number of complaints increased, Merrimack hired a forensic accounting team, unrelated to KPMG, to investigate the financial aid office. This investigation revealed more than 1, 200 "irregular" student loans that were either invalid or potentially uncollectible because of Mordach's activities.

         In 2014, Mordach pleaded guilty to Federal criminal charges of mail and wire fraud. She was sentenced to a term in prison and ordered to pay over $1.5 million in restitution to former Merrimack students. However, her motivation for committing this fraud remains unclear. No one at Merrimack ever told Mordach to issue loans to students without the students' consent. Mordach did not profit financially from her fraud; in fact, in order to avoid detection she sometimes used her own funds to pay back the fraudulent loans. There was evidence that, at least in the short run, until the fraud was detected, the fraud benefited Merrimack in that it enabled Merrimack to present a more favorable view of its financial position in connection with bond issues and bond ratings. But there was also evidence that Mordach devised the fraudulent scheme in order to keep her job, because she was under pressure to balance the financial aid office's budget, had nearly been fired in 1990 for her poor performance, and continued to have performance issues that caused Merrimack to place her on probation in 2003.

         Once Mordach's activities were discovered, Merrimack wrote off the fraudulent loans and repaid students who had already made payments on them. According to Merrimack, the total cost of these write-offs and repayments, along with investigation and administrative fees, amounted to more than $6 million.

         In an effort to recover some of these losses, Merrimack commenced an action against KPMG in the Superior Court, alleging professional malpractice, breach of contract, negligence, negligent misrepresentation, and violation of G. L. c. 93A. Following discovery, KPMG moved for summary judgment on four separate grounds, arguing that Merrimack's claims were barred under the equitable doctrine of in pari delicto, that Merrimack had released KPMG from liability under the terms of their agreements because its management had made false statements to KPMG, [3] that Merrimack's claims were barred by the Massachusetts statute of limitations for auditor malpractice claims, and that Merrimack had failed to establish a claim under c. 93A. KPMG also filed a motion for leave to file an amended answer, seeking to add the affirmative defense of release based on false statements from management.

         The Superior Court judge allowed KPMG's motion for summary judgment, concluding that Merrimack's claims were barred under the doctrine of in pari delicto. The judge's analysis proceeded in three steps. First, the judge considered whether Mordach's fraudulent conduct should be imputed to Merrimack. In doing so, the judge relied on traditional principles of agency law, concluding that "[the] same 'agency-based imputation rules' for deciding whether an employer will be held vicariously liable for its employee's wrongdoing" under a theory of respondeat superior "appl[ied] with full force in this case, because they also determine whether an employee's misconduct is imputed to the employer when applying the in pari delicto doctrine" (citation omitted). The judge then applied the familiar three-pronged test for determining vicarious liability under a theory of respondeat superior, concluding that, because Mordach's conduct was "of the kind [she was] employed to perform," "occur[red] substantially within the authorized time and space limits," and "[was] motivated, at least in part, by a purpose to serve the employer," it was "within the scope of [her] employment" and should be imputed to Merrimack. Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986).

         Second, the judge weighed the seriousness of the imputed misconduct against KPMG's failure to detect it. Because Merrimack had admitted to facts indicating that Mordach's conduct was deliberate, the judge concluded that Mordach's intentional fraud -- now imputed to Merrimack -- was "far more serious" than KPMG's alleged negligence in failing to uncover Mordach's fraud, and that Merrimack therefore could not recover from KPMG under the doctrine of in pari delicto.

         Third, the judge considered whether he should, on public policy grounds, make an exception to the in pari delicto doctrine for cases like this one, where an auditor through alleged negligence failed to discover fraud committed by a client's employee. The judge recognized that, because "[the in pari delicto] doctrine is equitable in nature, considerations of public policy are always relevant." But the judge declined to make an exception, reasoning that such an exception would be inconsistent with Massachusetts law, which, in the analogous context of legal malpractice claims, bars clients who engaged in wrongdoing from suing their attorneys for joining in the wrongdoing. See Choquette, 65 Mass.App.Ct. at 7-8. The judge also noted that the majority of courts that have considered the issue have "declined to create a blanket 'auditor exception' to the doctrine of in pari delicto." See, e.g., Stewart v. Wilmington Trust SP Servs., Inc., 112 A.3d 271, 315-318 (Del. Ch.), aff'd, 126 A.3d 1115 (Del. 2015); Kirschner v. KPMG LLP, 15 N.Y.3d 446, 476-477 (2010); Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Research Found, v. Price Waterhouse Coopers, LLP, 605 Pa. 269, 305 (2010).

         Having concluded that Merrimack's claims were barred under the in pari delicto doctrine, the judge dismissed the claims with prejudice, without addressing KPMG's other grounds for summary judgment. The judge also allowed KPMG's motion for leave to amend its answer to add an affirmative defense of release. ...

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