Restatement rule in Massachusetts

2003Cal. 1990) (accountants knew that audit report would be placed in prospectus for public offering and had expressly consented to its inclusion). ‘Under the Restatement rule, an auditor retained to conduct an annual audit and to furnish an opinion for no particular purpose generally undertakes no duty to third parties.’ Bily v. Arthur Young & Co., [ 3 Cal. 4th 370 ,] 393 [1992].” Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. at 499-500 .

2003Cal. 1990) (accountants knew that audit report would be placed in prospectus for public offering and had expressly consented to its inclusion). ‘Under the Restatement rule, an auditor retained to conduct an annual audit and to furnish an opinion for no particular purpose generally undertakes no duty to third parties.’ Bily v. Arthur Young & Co., [ 3 Cal. 4th 370 ,] 393 [1992].” Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. at 499-500 .

2009See Cosme, 417 Mass. at 646-47 (announcing the two-step Restatement analysis); see also New England Tel & Tel Co., 419 Mass. at 663-64 (applying the Cosme approach).

2009See Cosme, 417 Mass. at 646-47 (announcing the two-step Restatement analysis); see also New England Tel & Tel Co., 419 Mass. at 663-64 (applying the Cosme approach).

2009See Cosme, 417 Mass. at 646-47 (announcing the two-step Restatement analysis); see also New England Tel & Tel Co., 419 Mass. at 663-64 (applying the Cosme approach).

2009See Cosme, 417 Mass. at 646-47 (announcing the two-step Restatement analysis); see also New England Tel & Tel Co., 419 Mass. at 663-64 (applying the Cosme approach).

2004In his motion for reconsideration, Chrisos points out that the Supreme Judicial Court’s decision in Nierman, 441 Mass. at 696 , requires an analysis of both prongs of the Restatement test.

2004In his motion for reconsideration, Chrisos points out that the Supreme Judicial Court’s decision in Nierman, 441 Mass. at 696 , requires an analysis of both prongs of the Restatement test.

2001While the defendant suggests in his brief on appeal that the judge “explicitly stated that the severity of the defendant’s sentence was based on his belief that the jury’s verdict was erroneous,” the judge in fact stated, “I deeply respect the verdict of the jury.” Just as in Commonwealth v. O’Connor, 407 Mass. 663, 674 (1990), “the judge’s remark was merely a restatement of the principle that the factors he considers in making a decision on sentencing are wholly distinct from, and much broader than, those a jury may take into account in making findings on guilt or nonguilt at trial.” See Comm

2001While the defendant suggests in his brief on appeal that the judge “explicitly stated that the severity of the defendant’s sentence was based on his belief that the jury’s verdict was erroneous,” the judge in fact stated, “I deeply respect the verdict of the jury.” Just as in Commonwealth v. O’Connor, 407 Mass. 663, 674 (1990), “the judge’s remark was merely a restatement of the principle that the factors he considers in making a decision on sentencing are wholly distinct from, and much broader than, those a jury may take into account in making findings on guilt or nonguilt at trial.” See Comm

2001Compare Commonwealth v. White, 48 Mass. App. Ct. 658, 663 (2000), quoting from Commonwealth v LeBlanc, 370 Mass. 217, 224 (1976), (judge’s remarks created the appearance that the sentences may have been influenced by judge’s belief that defendant’s prior prison terms were inadequate because “a sentencing judge may not undertake to punish the defendant for any conduct other than that for which the defendant stands convicted in the particular case”); Commonwealth v. McFadden, 49 Mass. App. Ct. 441, 443-444 (2000) (trial judge who determined sentence based in part on his stated belief that the de

2001Compare Commonwealth v. White, 48 Mass. App. Ct. 658, 663 (2000), quoting from Commonwealth v LeBlanc, 370 Mass. 217, 224 (1976), (judge’s remarks created the appearance that the sentences may have been influenced by judge’s belief that defendant’s prior prison terms were inadequate because “a sentencing judge may not undertake to punish the defendant for any conduct other than that for which the defendant stands convicted in the particular case”); Commonwealth v. McFadden, 49 Mass. App. Ct. 441, 443-444 (2000) (trial judge who determined sentence based in part on his stated belief that the de

2001Compare Commonwealth v. White, 48 Mass. App. Ct. 658, 663 (2000), quoting from Commonwealth v LeBlanc, 370 Mass. 217, 224 (1976), (judge’s remarks created the appearance that the sentences may have been influenced by judge’s belief that defendant’s prior prison terms were inadequate because “a sentencing judge may not undertake to punish the defendant for any conduct other than that for which the defendant stands convicted in the particular case”); Commonwealth v. McFadden, 49 Mass. App. Ct. 441, 443-444 (2000) (trial judge who determined sentence based in part on his stated belief that the de

1998See generally West’s Case, 313 Mass. 146, 150-151 (1943).

1998See generally West’s Case, 313 Mass. 146, 150-151 (1943).

1998The better reasoned decisions interpret § 552 as limiting the potential liability of an accountant to noncontractual third parties who can demonstrate “actual knowledge on the part of accountants of the limited — though unnamed — group of potential [third parties] that will rely upon the [report], as well as actual knowledge of the particular financial transaction that such information is designed to influence.” First Nat’l Bank of Commerce v. Monco Agency Inc., 911 F.2d 1053, 1062 (5th Cir. 1990).

1998The better reasoned decisions interpret § 552 as limiting the potential liability of an accountant to noncontractual third parties who can demonstrate “actual knowledge on the part of accountants of the limited — though unnamed — group of potential [third parties] that will rely upon the [report], as well as actual knowledge of the particular financial transaction that such information is designed to influence.” First Nat’l Bank of Commerce v. Monco Agency Inc., 911 F.2d 1053, 1062 (5th Cir. 1990).

1996See Ware v. Gulda, 331 Mass. 68, 70 (1954); Merchants Nat’l Bank v. Morrissey, 329 Mass. 601, 605 (1953).

1996See Ware v. Gulda, 331 Mass. 68, 70 (1954); Merchants Nat’l Bank v. Morrissey, 329 Mass. 601, 605 (1953).

1995Cir. 1979); Hicks v. Quaker Oats Co., 662 F.2d at 1173 (holding that the second Restatement rule is “especially appropriate in the case of offensive collateral estoppel, where the problems of assuring a rigorous determination of all grounds of decision are magnified”); C.

1990Commonwealth v. Burke, 392 Mass. 688, 694 (1984).

1987See and compare Sullivan v. Burkin, 390 Mass. 864, 867, 869-874 (1984). 5 The Kelly case, 358 Mass, at 156, recognizes that factors, additional to membership in the same family, may give rise to a fiduciary relationship, such as reliance by one less experienced upon one better trained “in financial matters or . . . [by placing] trust and confidence ... in important affairs” upon that person.

1987See and compare Sullivan v. Burkin, 390 Mass. 864, 867, 869-874 (1984). 5 The Kelly case, 358 Mass, at 156, recognizes that factors, additional to membership in the same family, may give rise to a fiduciary relationship, such as reliance by one less experienced upon one better trained “in financial matters or . . . [by placing] trust and confidence ... in important affairs” upon that person.

1982Bank v. Dawes, 369 Mass. at 554 . 8 As has been noted, the current Restatement test for joint enterprise is stricter than our own, requiring that the common purpose of the trip involve a “pecuniary interest.” See Easter v. McNabb, 97 Idaho 180, 182 (1975).

1982Bank v. Dawes, 369 Mass. at 554 . 8 As has been noted, the current Restatement test for joint enterprise is stricter than our own, requiring that the common purpose of the trip involve a “pecuniary interest.” See Easter v. McNabb, 97 Idaho 180, 182 (1975).

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1981Compare, Lovely v. LaLiberte, 489 F. 2d 1261, 1263 (1st Cir. 1974), cert. denied, 417 U.S. 1038 (1974) and Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015 , 1018 (8th Cir. 1974) with Lombard v. Board of Education, 502 F. 2d 631, 635 (2d Cir. 1974) cert. denied, 420 U.S. 976 (1975) and New Jersey Education, Assoc. v. Burke, 579 F. 2d 764 , 774 (3rd Clr. 1978), cert. denled 439 U.S. 894 .

1979Martin v. Reis, 344 Mass. 32, 36 (1962), and cases cited.