Kenneth D. JENKINS
David BAKST & another.
February 8, 2019
N.E.3d 201] CIVIL ACTION commenced in the Superior Court
Department on February 24, 2015. The case was heard by
Hélène Kazanjian, J., on a motion for summary
T. Guthrie, Andover, for the plaintiff.
A. Curley, Jr., Braintree, for the defendants.
Hanlon, Kinder, & Englander, JJ.
is an attorney malpractice action. The plaintiff, Kenneth D.
Jenkins, claims that his attorney was negligent in
negotiating the stock buy-back clause (clause or buy-back
clause) in Jenkins’s employment agreement with his new
company, Apollo Security International, Inc.
(Apollo). Jenkins claims that the clause
contained in the employment agreement did not comport
with the instructions he gave to his attorney, and that as a
result he was damaged when, upon his termination from Apollo,
he received an inadequate payment from Apollo for his Apollo
stock. A Superior Court judge granted summary judgment for
the defendants, reasoning that Jenkins had failed to adduce
facts from which a fact finder could find either a breach of
the standard care, or causation. We affirm.
2003, Jenkins entered into negotiations with Apollo with a
view toward joining the company as its president and chief
operating officer. Apollo provided security services to
businesses. As of 2003 Jenkins was working as a regional
president for Pinkerton Security, and he had decades of
experience in the security business.
principal of Apollo was Dennis Crowley. Crowley and Jenkins
were friends, having worked together in the security industry
years earlier. Crowley and Jenkins worked out the basics of
Jenkins’s compensation, which included a salary and a
percentage of Apollo’s stock. Because Apollo was privately
owned, Jenkins and Crowley agreed that if Jenkins were
terminated, Apollo would buy back Jenkins’s stock from him.
retained David Bakst, of the law firm of Morrison Mahoney LLP
(Morrison), to represent him in the negotiation and drafting
of his employment agreement. The point of contention
in this case is the clause in the employment agreement that
defined how Jenkins’s stock would be valued upon buy-back;
Jenkins’s position is that he told Bakst he wanted to receive
fair market value for the stock, and that Apollo’s fair
market value should be measured by a percentage of Apollo’s
annual revenues -- "anywhere from 25 to 35 percent or
some numbers like that." The buy-back clause in the
employment agreement, however, did not establish fair market
value based on a ...