NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11476

MILTON C. WEILER, JR. vs. PORTFOLIOSCOPE, INC., & others.1

Suffolk. March 3, 2014. - July 11, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,

& Lenk, JJ.

Secured Transactions. Uniform Commercial Code, Secured 

creditor, Secured transaction, Good faith. Corporation, 

Stock. Contract, Performance and breach, Implied covenant 

of good faith and fair dealing, Interference with 

contractual relations. Conversion. Consumer Protection 

Act, Unfair or deceptive act. Uniform Fraudulent Transfer 

Act.

Civil action commenced in the Superior Court Department on 

February 17, 2009.

The case was heard by Margaret R. Hinkle, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Curtis C. Pfunder for the plaintiff.

Andrew N. Nathanson (Keith P. Carroll with him) for the 

defendants.

1 Kevin B. Kimberlin and Joseph T. Whelihan.

 
2

BOTSFORD, J. The disputes in this case arise from a 

complex web of relationships between various individual and 

corporate entities. The plaintiff, Milton C. Weiler, Jr., the 

former president and chief operating officer of the defendant 

corporation, PortfolioScope, Inc. (PortfolioScope), brought suit 

against the defendants raising various claims, including breach 

of contract, violation of G. L. c. 93A, and fraudulent transfers 

pursuant to the Uniform Fraudulent Transfer Act (UFTA). After a 

jury-waived trial, Weiler prevailed, and a judgment entered in 

his favor. The Appeals Court reversed the judgment in part, and 

we granted Weiler's application for further appellate review.

For the reasons discussed hereafter, we affirm the judgment of 

the Superior Court in almost all respects.

1. Background. We summarize the pertinent facts as found 

by the trial judge; additional facts are discussed in connection 

with the issues raised. In 1981 and 1998, respectively, Weiler 

cofounded Computer Aided Decisions and CAD Research, Inc. (CAD 

entities), companies that developed and marketed software to 

help manage investment portfolios. In early 2000, Spencer Trask 

& Co. (Spencer Trask), a venture capital firm effectively 

controlled by the defendant Kevin Kimberlin,2 acquired the CAD

2 Kevin Kimberlin owns approximately ninety-five per cent of 

Spencer Trask & Co. (Spencer Trask). The principal 

beneficiaries of Spencer Trask are trusts and partnerships in 

the names of Kimberlin's wife and children. Kimberlin served as 

 
3

entities from Weiler and the cofounder. After the purchase, the 

CAD entities were merged into a new company that became the 

defendant PortfolioScope. Weiler received cash as well as stock 

and stock options in the new company at the time of the sale and 

served at that time as its president and chief operating 

officer.

In 2001, PortfolioScope began experiencing financial 

difficulty, and it received a series of loans from Wachovia 

Bank, N.A. (Wachovia), beginning on February 20, 2001.3 Kevin 

Kimberlin Partners, L.P. (KKP), guaranteed these Wachovia loans, 

and in that connection, on February 20, 2001, PortfolioScope 

executed a security agreement granting KKP a security interest 

in all of PortfolioScope's property, including its deposit 

accounts and cash. On July 25, 2001, PortfolioScope executed a 

demand note in favor of Wachovia in the amount of $4.01 million.4

On July 10, 2002, KKP paid off PortfolioScope's debt to 

Wachovia, and thereafter received an assignment of all of 

Wachovia's rights and interests in PortfolioScope. The 

the chairman of the board and the sole director of Spencer 

Trask.

3 The initial loan from Wachovia Bank, N.A. (Wachovia), to 

PortfolioScope was for $3.01 million.

4 All of the loans Wachovia made to PortfolioScope were 

covered by the February 20, 2001, security agreement between 

Kevin Kimberlin Partners, L.P. (KKP), and PortfolioScope.

 
4

assignment agreement incorporated the security agreement that 

PortfolioScope previously had executed in favor of KKP. Between

2003 and 2008, PortfolioScope received additional loans from KKP 

directly.5

Weiler served as PortfolioScope's president and chief 

operating officer from January, 2000, to May, 2002. Kimberlin 

hired the defendant, Joseph T. Whelihan, in January, 2002, to 

become PortfolioScope's chief executive officer. On February 

13, 2002, Weiler entered into a stock option purchase and sale 

agreement with PortfolioScope (five per cent agreement), in 

which Weiler agreed to sell back to PortfolioScope 666,667 

vested and unvested stock options in the company, and in 

exchange would be paid a contingent purchase price. On October 

21, 2002, the parties amended the five per cent agreement (five 

per cent amendment) to include a provision that PortfolioScope 

would pay Weiler five per cent of the net proceeds received in 

connection with a pending lawsuit between PortfolioScope and 

iFlex Solutions Limited (iFlex litigation).6

 Whelihan, as 

5 These loans were made between October 1, 2003, and 

October 9, 2008, totaled $1.272 million, and were evidenced by 

senior secured promissory notes executed by PortfolioScope.

6 The amendment to the five per cent agreement (five per 

cent amendment) provides in pertinent part that, "[i]n addition 

to payments to be made by the Company as described in the [five 

per cent agreement]," PortfolioScope would pay Weiler:

 
5

Portfolioscope's chief executive officer, signed both the five 

per cent agreement and the five per cent amendment on behalf of 

the company; the five per cent agreement also was initialed by 

Kimberlin.

Between May, 2002, and October 21, 2008, Weiler consulted 

with PortfolioScope, principally in connection with the then 

pending iFlex litigation.7 On October 21, 2008, the iFlex 

litigation settled for $10 million. The law firm serving as 

PortfolioScope's counsel in that litigation received the $10 

million settlement funds on November 7, and, after deducting the 

amount claimed by the firm as legal fees, transferred 

approximately $8.2 million to PortfolioScope on November 12. 

That same day, Kimberlin directed Whelihan to wire $5.2 million 

of the proceeds to a Spencer Trask brokerage account because he 

wanted to gain immediate access to the settlement proceeds. On 

"Five (5) percent of the net proceeds (or net recovery) to 

the Company [PortfolioScope] in connection with any claims 

by the Company against Citicorp (and its affiliates) 

related to copyright infringement and/or theft of 

confidential information and trade secrets. The term net 

proceeds or net recovery as used in this Section shall mean 

gross proceeds less legal fees of the Company's counsel."

The parties do not dispute that the litigation with iFlex 

Solutions Limited (iFlex litigation) is covered by the five per 

cent amendment.

7 Weiler and PortfolioScope also entered into various 

consulting agreements between 2002 and 2008, of which the trial 

judge found PortfolioScope had committed a breach.

 
6

November 17, again at Kimberlin's direction, Whelihan wired 

another $1.296 million to the Spencer Trask account and, 

separately, another $1,231,186.13, also to Spencer Trask.8 Also 

on November 17, at Kimberlin's direction, Whelihan wired 

$500,000 to an account in Whelihan's wife's name. Finally, on 

November 25, Whelihan paid himself $15,000 from the iFlex 

litigation settlement proceeds, a transaction authorized by 

Kimberlin.9 Taken together, these transfers accounted for almost 

all of the iFlex litigation settlement proceeds.10

After the iFlex litigation settled, beginning on 

November 10, 2008, Weiler initiated a series of "increasingly 

frustrated" inquiries directed at Whelihan, Kimberlin, and 

others connected to PortfolioScope and Spencer Trask as to when 

he was to be paid his entitlement under the five per cent 

amendment. On December 2, 2008 -- after the iFlex litigation 

proceeds were essentially depleted -- Whelihan sent a message 

via electronic mail (e-mail) to Weiler, with a copy to 

8 This second transfer on November 17, 2008, appears to have 

been intended to satisfy an escrow order entered by a Superior 

Court judge in a then-pending lawsuit between PortfolioScope and 

Charles Hunt, Weiler's former business partner.

9 For ease of reference, we refer to the transfer to 

Whelihan's wife and the transfer to Whelihan collectively as 

transfers to Whelihan.

10 After these transfers, approximately $36,000 remained 

from the iFlex litigation settlement funds.

 
7

Kimberlin, asking whether Weiler would settle for an amount less 

than that he was otherwise entitled to under the five per cent 

amendment. On December 4, Weiler responded that he would accept 

$406,000 as payment in full. When no transfer of funds was 

made, Weiler sent an e-mail to Whelihan on December 8, asking 

when he should expect payment; Whelihan asked Weiler to "hold on 

a little longer." Weiler made a subsequent inquiry on 

December 17, to which Whelihan indicated that Weiler was "[his] 

first priority tomorrow. Promise."11 Weiler never received 

payment from PortfolioScope.

On March 23, 2009, Whelihan sent an e-mail to Weiler 

informing him that he was sending Weiler a $20,000 check as part 

of an instalment plan as an incentive to help with the pending 

litigation between PortfolioScope and Charles Hunt.12 See note 

8, supra. Shortly thereafter, Weiler served his complaint in 

this action, alleging various claims against PortfolioScope, 

Whelihan, and Kimberlin (collectively, defendants).13 Only after 

11 The trial judge found that "[a]t this point . . . 

Whelihan was simply stringing Weiler along."

12 Weiler subsequently received and cashed the $20,000 

check.

13 Weiler asserted the following claims in his amended 

complaint: (1) breach of contract against PortfolioScope; (2) 

breach of the implied covenant of good faith and fair dealing 

against PortfolioScope; (3) tortious interference with 

contractual relations against Kimberlin; (4) violation of G. L. 

c. 93A, § 11, against PortfolioScope, Whelihan, and Kimberlin 

 
8

the lawsuit was filed did Weiler learn that: (1) Whelihan had 

transferred $515,000 to himself; and (2) the defendants were 

asserting that Weiler was not being paid because KKP was a 

secured creditor of PortfolioScope and had a priority interest 

in the settlement proceeds that trumped Weiler's contractual 

rights.

After a bench trial, the judge issued a written decision in 

which she made detailed findings and concluded that: (1) 

PortfolioScope committed a breach of the five per cent amendment 

and the consulting agreements with Weiler as well as the 

covenant of good faith and fair dealing;14 (2) Kimberlin 

tortiously interfered with Weiler's contractual rights vis-à-vis 

Portfolioscope; (3) the defendants converted funds belonging to 

Weiler; (4) the defendants knowingly and wilfully engaged in 

unfair or deceptive acts or practices in violation of G. L. 

c. 93A, § 11; (5) the defendants violated UFTA; and (6) the 

(collectively, defendants); (5) fraudulent transfers in 

violation of the Uniform Fraudulent Transfer Act (UFTA) against 

the defendants; (6) misrepresentation against the defendants; 

(7) violation of the Massachusetts Wage Act against the 

defendants; (8) quantum meruit, unjust enrichment, and equitable 

estoppel against the defendants; (9) detrimental reliance 

against Kimberlin and Whelihan; (10) conversion against the 

defendants; (11) civil conspiracy against the defendants; (12) 

piercing the corporate veil against Kimberlin; and (13) a claim 

for an accounting against the defendants.

14 The defendants do not challenge the judge's finding of 

breach of contract (the five per cent amendment or the 

consulting agreements) against Portfolio, or the judgment of 

$471,122.97 on this count.

 
9

defendants conspired against Weiler.15 The defendants appealed 

to the Appeals Court, which affirmed the judgment against 

Portfolioscope for breach of contract, but otherwise reversed, 

concluding that judgment should enter in favor of the defendants 

on all other counts in Weiler's amended complaint. Weiler v. 

PortfolioScope, Inc., 83 Mass. App. Ct. 216, 233 (2013). We 

affirm the judgment of the Superior Court with the exception of 

Weiler's claim for conversion.

2. Discussion. The defendants argue that the judge erred 

in certain fundamental respects in her interpretation of the 

five per cent agreement and five per cent amendment, as well as 

in her analysis of secured transaction principles as applied to 

this case; in the defendants' view, these errors infected almost 

every part of the disposition of the case. As to the five per 

cent agreement and amendment, the defendants contend that the 

judge misinterpreted the five per cent amendment as giving 

Weiler a right to five per cent of the actual settlement 

proceeds of the iFlex litigation (less legal fees), rather than 

a right to five per cent of the value of the settlement (less 

legal fees). With respect to secured transaction principles, 

15 Judgment entered awarding damages against the defendants, 

jointly and severally where applicable, with respect to each 

count of the amended complaint on which one or more of the 

defendants were found liable, including double damages and 

attorney's fees in connection with the violation of G. L. 

c. 93A, and additional remedies in connection with the violation 

of UFTA.

 
10

the defendants contend that the judge failed to accord proper 

legal significance to the fact that the $515,000 in transfers 

from the iFlex litigation settlement proceeds to Whelihan and 

the approximately $6.5 million in transfers from the proceeds to 

Spencer Trask in substance and legal effect were transfers to 

PortfolioScope's secured creditor, KKP, an entity that as a 

matter of law had priority over Weiler.16 The Appeals Court 

agreed with the defendants. See Weiler, 83 Mass. App. Ct. at 

218, 223-226. We also agree that the five per cent amendment 

did not give Weiler a right to recover from the actual 

settlement proceeds, but in the factual circumstances of this 

case, conclude that any error in the judge's interpretation of 

the five per cent amendment affects only Weiler's claim for 

conversion. On the law of secured transactions, the judge's 

factual findings in this case persuade us that no legal error 

16 There is a question whether KKP's February 20, 2001, 

security agreement actually covered the iFlex litigation 

settlement proceeds. To have a security interest in commercial 

tort claims, they must be named expressly in the security 

agreement and must be in existence at the time the security 

agreement is created. See G. L. c. 106, § 9-108 (e) (1) 

(description by type insufficient for commercial tort claims); 

G. L. c. 106, § 9-204 (b) (2) (after-acquired property clause 

ineffective against commercial tort claims). At all relevant 

times in this case, however, the iFlex litigation settlement had 

been reduced to cash and placed in PortfolioScope's account, and 

KKP had a security interest in PortfolioScope's cash and deposit 

accounts. For the purposes of our discussion, we assume, 

without deciding, that KKP's security interest in 

PortfolioScope's assets extended to the settlement proceeds of 

the iFlex litigation.

 
11

infected the judge's consideration of KKP's security interest in 

the iFlex litigation settlement proceeds.

a. Standard of review. "We accept the judge's findings of 

fact in a bench trial unless they are clearly erroneous," 

Makrigiannis v. Nintendo of Am., Inc., 442 Mass. 675, 677 

(2004), and the credibility of the witnesses rests within the 

purview of the trial judge. See Mass. R. Civ. P. 52 (a), as 

amended, 423 Mass. 1402 (1996).

b. Breach of implied covenant of good faith and fair 

dealing by PortfolioScope. The judge found that Portfolioscope 

committed a breach of the covenant of good faith and fair 

dealing when it paid $515,000, which constituted more than five 

per cent of the net proceeds of the iFlex litigation, to 

Whelihan. She explained that there was "simply no tenable 

argument that the [five per cent] [a]greement[17] permitted 

PortfolioScope to make any payment to Whelihan before paying 

Weiler." PortfolioScope takes the position that it did not 

commit a breach of the covenant of good faith and fair dealing 

because its payment to Whelihan was directed by KKP --

PortfolioScope's secured creditor. Its argument is that 

PortfolioScope was required to comply with KKP's instructions to 

17 It is clear from the context that the trial judge was 

focusing on the five per cent amendment.

 
12

pay Whelihan directly.18 See G. L. c. 106, § 9-405 (a). We 

affirm the judge's finding.

"The covenant of good faith and fair dealing is implied in 

every contract," Uno Restaurants, Inc. v. Boston Kenmore Realty 

Corp., 441 Mass. 376, 385 (2004), citing Kerrigan v. Boston, 361 

Mass. 24, 33 (1972), including contracts between sophisticated 

business people. See Anthony's Pier Four, Inc. v. HBC Assocs., 

411 Mass. 451, 473 (1991). The implied covenant provides "that 

neither party shall do anything which will have the effect of 

destroying or injuring the right of the other party to receive 

the fruits of the contract . . . ." Drucker v. Roland Wm. 

Jutras Assocs., Inc., 370 Mass. 383, 385 (1976), quoting Uproar 

Co. v. National Broadcasting Co., 81 F.2d 373, 377 (1st Cir. 

1934), cert. denied, 298 U.S. 670 (1936), and "exists so that 

the objectives of the contract may be realized," Ayash v. DanaFarber Cancer Inst., 443 Mass. 367, 385, cert. denied sub nom.

Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005). "A breach 

occurs when one party violates the reasonable expectations of 

the other." Chokel v. Genzyme Corp., 449 Mass. 272, 276 (2007), 

and cases cited.

"In determining whether a party violated the implied 

covenant of good faith and fair dealing, we look to the 

18 The Appeals Court essentially adopted this rationale in 

reversing the breach of implied covenant of good faith and fair 

dealing claim against PortfolioScope. See Weiler, 83 Mass. App. 

Ct. 216, 226-227 (2013).

 
13

party's manner of performance. . . . There is no 

requirement that bad faith be shown; instead, the plaintiff 

has the burden of proving a lack of good faith. . . . The 

lack of good faith can be inferred from the totality of the 

circumstances." (Citations omitted.)

T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 456 Mass. 562, 570 

(2010).

PortfolioScope's argument, that the payment to Whelihan was 

actually a payment ordered by its secured creditor KKP, is at 

odds with the trial judge's findings concerning the transfers 

made to Whelihan from the iFlex litigation proceeds. The judge 

found that the $500,000 transfer was made "at Kimberlin's 

direction," and the $15,000 transfer was "authorized by 

Kimberlin." What is absent from these findings -- and what is 

necessary for Portfolioscope's secured creditor argument -- is 

that Kimberlin authorized or directed these payments on behalf 

of KKP. The defendants apparently assume that Kimberlin did so, 

but do not identify the basis for this assumption; the mere fact 

that Kimberlin controlled KKP is not a sufficient one.19

19 Moreover, a finding that Kimberlin acted on behalf of KKP 

in directing Whelihan to pay himself from the iFlex litigation 

proceeds logically would seem to require a corollary finding 

that KKP credited the $515,000 transferred to Whelihan against 

PortfolioScope's debt to KKP. We do not read the judge's 

decision as including such a finding. The judge stated, "KKP, 

L.P. allegedly gave PortfolioScope a $500,000 credit on 

Portfolioscope's secured debt obligation for the $500,000 

Whelihan payment" (emphasis added). This was the only fact 

included in the judge's decision that she qualified with 

"allegedly," and the judge also stated at a different point in 

her decision, when discussing Weiler's UFTA claim, that 

 
14

What the judge's findings do indicate is that 

PortfolioScope, at Kimberlin's direction, transferred $515,000 

to Whelihan, who was neither a secured creditor of 

PortfolioScope nor otherwise entitled to the funds;20 and that 

PortfolioScope's $515,000 payment to Whelihan represented more 

than five per cent of the net proceeds from the iFlex 

litigation, which was the amount to which Weiler was entitled 

under the five per cent amendment.21 Moreover, the judge found 

"PortfolioScope received no value in exchange for" the transfers 

of $515,000 to Whelihan. Moreover, the only evidence that 

PortfolioScope did receive credit was the testimony of 

Kimberlin, a witness the judge discredited in several respects. 

The defendants did not introduce any financial or other business 

records of either PortfolioScope or KKP reflecting this alleged 

credit. Cf. Automobile Insurers Bur. of Mass. v. Commissioner 

of Ins., 430 Mass. 285, 291 (1999) (commissioner could properly 

draw adverse inference from insurers' failure to produce 

complete information on subject "peculiarly within their 

control"). Given that the judge's findings quoted here indicate 

she did not believe Kimberlin's testimony, the factual premise 

on which the defendants' argument is built does not exist.

At oral argument before this court, counsel for the 

defendants agreed that, if PortfolioScope had not credited the 

$515,000 payment to Whelihan against the amount it owed to KKP, 

the failure to have done so would undermine the defendants' 

contention that PortfsolioScope's payment to Whelihan 

constituted a payment to the secured creditor.

20 The judge expressly discredited Whelihan's testimony that 

he was "owed" $500,000 for past services rendered to 

PortfolioScope and various other entities connected to 

Kimberlin.

21 The judge's discussion of the implied covenant claim may 

be read to indicate that she interpreted the five per cent 

amendment as giving Weiler a right to recover five per cent of 

the actual iFlex litigation settlement proceeds. As previously 

 
15

that these transfers were motivated by a desire to enrich 

Whelihan at the expense of Weiler who had provided substantial 

services in order to make the iFlex litigation settlement 

possible -- a finding which is supported by the evidence. See 

T.W. Nickerson, Inc., 456 Mass. at 574 (looking to whether 

defendant's motivation was "to affect negatively the plaintiff's 

rights" under the contract to determine whether breach of 

implied covenant of good faith and fair dealing occurred). See 

also Chokel, 449 Mass. at 278 n.5; Anthony's Pier Four, Inc., 

411 Mass. at 472-473. PortfolioScope's argument fails.

c. Tortious interference with contractual relations by 

Kimberlin. "To prevail on a claim of tortious interference with 

a contract, a plaintiff must establish that '(1) he had a 

contract with a third party; (2) the defendant knowingly induced 

the third party to break that contract; (3) the defendant's 

stated, we agree with the defendants and the Appeals Court that 

such an interpretation is not correct, but the error has no 

significance because the settlement proceeds represented 

essentially all of PortfolioScope's assets. In other words, the 

company would have been required to transfer a portion of the 

settlement proceeds in order to meet its contractual obligation 

to Weiler.

Although it is true that approximately $1.231 million of 

the iFlex litigation settlement funds, which represented more 

than five per cent of the net proceeds, purportedly went to 

satisfy an escrow order for then pending litigation between 

PortfolioScope and Charles Hunt, during the time period involved 

in this case, PortfolioScope had no ability to reach that money 

to pay Weiler, and there was no guarantee that that sum would 

ever be returned to PortfolioScope.

 
16

interference, in addition to being intentional, was improper in 

motive or means; and (4) the plaintiff was harmed by the 

defendant's actions.'" Psy-Ed Corp. v. Klein, 459 Mass. 697, 

715-716 (2011), quoting G.S. Enters., Inc. v. Falmouth Marine, 

Inc., 410 Mass. 262, 272 (1991). Accord Blackstone v. Cashman, 

448 Mass. 255, 260 (2007). However, "[w]here the defendant is a 

corporate official acting in the scope of his corporate 

responsibilities, a plaintiff has a heightened burden of showing 

the improper motive or means constituted 'actual malice,' that 

is, 'a spiteful, malignant purpose, unrelated to the legitimate 

corporate interest.'" Psy-Ed Corp., supra at 716, quoting 

Blackstone, supra at 260-261.

The judge concluded that Kimberlin intentionally interfered 

with Weiler's right to be paid from the iFlex litigation 

proceeds under the five per cent amendment by authorizing 

Whelihan to pay $515,000 to himself, and that Kimberlin did so 

with improper motive or means; the judge did not apply the 

"actual malice" standard in reaching this result, or even 

discuss the standard -- presumably because the defendants did 

not mention this standard or suggest that the standard had any 

application to this case. The Appeals Court reversed, 

concluding that because Kimberlin served as chair of the board 

and sole director of Spencer Trask, which owned ninety per cent 

of PortfolioScope, he qualified as a "corporate official" of 
17

Portfolioscope to whom the actual malice standard applied, and 

Weiler failed to meet the "heightened burden" that the standard 

imposes. Weiler, 83 Mass. App. Ct. at 228. Before this court, 

Kimberlin embraces the Appeals Court's theory and argues that he 

is entitled to the actual malice standard because, as the 

Appeals Court concluded, he was a Portfolioscope "corporate 

official."

We have stated that "[t]he 'actual malice' standard for 

proving improper motive or means on the part of a corporate 

official is a burden placed on the plaintiff, not a defense that 

must be proved by the defendant." Blackstone, 448 Mass. at 261. 

See id. at 261 n.10. That the plaintiff must prove a corporate 

official acted with actual malice, however, does not absolve the 

defendant from bringing to the attention of the plaintiff and 

the court in some fashion that he claims to qualify as a 

"corporate official" of the relevant corporation and therefore 

is entitled to have the actual malice standard apply. See id. 

at 256, 259, 268 (defendant, one of two directors of close 

corporation employing plaintiff, requested actual malice jury 

instruction at trial; error not to give it). Cf. Teller v. 

Schepens, 381 Mass. 621, 623 (1980) (once defendant raises 

statute of limitations issue, plaintiff bears burden of proving 

claims are not time barred). Cf. also Commonwealth v. 

Humphries, 465 Mass. 762, 771 (2013) (where defendant was 
18

charged with joint venture possession of firearm, his claim that 

coventurer possessed license to carry firearm would be defense 

to charge; defendant not required to produce evidence of 

coventurer's license, but only bears burden of raising issue of 

license; once issue raised, burden on Commonwealth to prove 

coventurer was not licensed). The need to identify the 

"corporate official" issue is especially pronounced in a case 

like the present one, where the complexities of the corporate 

and individual relationships raise, at best, a possibility that 

the defendant qualifies as a corporate official.22

To summarize: only where a defendant raises a claim that 

he qualifies as a corporate official does the plaintiff then 

bear the burden of proving either that the defendant does not so 

qualify and is not entitled to the actual malice standard, or 

22 Contrast Weber v. Community Teamwork, Inc., 434 Mass. 

761, 762, 781 (2001) (executive director constituted corporate 

official); King v. Driscoll, 418 Mass. 576, 578, 587 (1994), 

S.C., 424 Mass. 1 (1996) (shareholder-directors actively 

involved in management as corporate officials); Gram v. Liberty 

Mut. Ins. Co., 384 Mass. 659, 660, 663-664 (1981), S.C., 391 

Mass. 333 (1984) (direct supervisors entitled to actual malice 

standard). In Blackstone v. Cashman, 448 Mass. 255, 267 (2007), 

this court concluded that a director of a close corporation, 

even if not involved in the day-to-day operations of the 

company, still "has an important interest in and responsibility 

for the conduct of business" because of his status as director, 

and qualifies as a corporate official to whom the actual malice 

standard would apply. The court left open whether the same 

would be true for a person who was simply a shareholder of a 

close corporation. See id. at 267 n.16. Although, as the judge 

found, Kimberlin may have exerted practical control over 

PortfolioScope, he was not an employee, officer, director, or 

even shareholder of the company.

 
19

that the defendant did act with actual malice. Here, Kimberlin 

did not argue or suggest at trial (or before the Appeals Court) 

that he was a "corporate official" of PortfolioScope and thereby 

was entitled to the actual malice standard.23 Rather, he 

advances it for the first time before this court. Having failed 

to raise the issue below, he has waived it. See Canton v. 

Commissioner of Mass. Highway Dep't, 455 Mass. 783, 795 n.18 

(2010), and cases cited; Mullins v. Pine Manor College, 389 

Mass. 47, 63 (1983), citing Royal Indem. Co. v. Blakeley, 372 

Mass. 86, 88 (1977) (issues not raised below are usually not 

considered on appeal unless "the questions presented are of some 

public importance and the result we reach is not changed by our 

consideration of them").

The defendants claim also that even if Kimberlin was not 

entitled to the benefit of the actual malice standard, Weiler 

failed to establish that Kimberlin used improper motive or means 

in interfering with the five per cent amendment because 

Kimberlin, acting on behalf of the secured creditor KKP, was 

privileged to interfere with Weiler's contract in order to 

23 In fact, at trial, Kimberlin emphasized his limited 

involvement with PortfolioScope for the purposes of defending 

against Weiler's claim to pierce the corporate veil and hold 

Kimberlin personally liable for Weiler's claims against 

PortfolioScope. Advancing a corporate official claim would run 

counter to this stance.

 
20

further KKP's own legitimate economic interest.24 As discussed, 

the judge did not find that in directing or authorizing Whelihan

to transfer $515,000 from PortfolioScope to himself (Whelihan), 

Kimberlin was acting on behalf of KKP in its capacity as 

PortfolioScope's secured creditor.25,26

d. Conversion. To be liable for conversion, a defendant 

must wrongfully "exercise dominion or control over the personal 

property of" the plaintiff. See Third Nat'l Bank of Hampden 

24 The Appeals Court adopted this reasoning in concluding 

that, even if Kimberlin was not a corporate official, reversal 

of the tortious interference claim against him was required. 

See Weiler, 83 Mass. App. Ct. at 228-229.

25 There was ample evidence to support the judge's 

conclusion that Kimberlin acted with improper motive or means in 

directing that $515,000 be paid to Whelihan, leaving 

PortfolioScope with insufficient funds to meet its contractual 

commitment to Weiler. As to improper means, Kimberlin, who was 

not an employee, officer, or director of PortfolioScope, 

nonetheless personally assumed the right and authority to direct 

the transfer of a portion of PortfolioScope's assets –- the 

iFlex litigation settlement proceeds –- to Whelihan and 

assiduously concealed the transfer from Weiler for months, 

impeding Weiler's ability to recover what was due to him. As to 

improper motive, the judge in substance found that Kimberlin 

directed the transfer in an effort to benefit Whelihan, his 

consultant for Spencer Trask who otherwise was not entitled to 

the $515,000, to the detriment of Weiler, who had a legitimate 

contractual claim to the money.

26 The defendants' sole argument as to why Weiler's claim 

for civil conspiracy cannot stand is that there was no 

underlying tort to which they could conspire. The argument 

fails in light of our affirmance of the claim of tortious 

interference with contractual relations against Kimberlin. 

Moreover, the finding that the defendants conspired to 

tortiously interfere with Weiler's contractual relations is 

amply supported by the record.

 
21

County v. Continental Ins. Co., 388 Mass. 240, 244 (1983). 

Accord Spooner v. Holmes, 102 Mass. 503, 506 (1869). The 

defendants argue that the conversion claim cannot stand because 

the iFlex litigation proceeds never constituted Weiler's 

property. Weiler counters that money can be the subject of 

conversion, and, therefore, the judge correctly held the 

defendants liable for converting Weiler's five per cent share of 

the iFlex litigation net proceeds pursuant to the five per cent 

amendment. Weiler is correct that conversion may lie if an 

individual wrongly exercises dominion or control over the money 

of another. Matter of Hilson, 448 Mass. 603, 611 (2007), citing 

Morrin v. Manning, 205 Mass. 205, 211 (1910). However, as 

previously stated, we agree with the defendants and the Appeals 

Court, see Weiler, 83 Mass. App. Ct. at 223, that under the 

terms of the five per cent agreement and five per cent 

amendment, Weiler was entitled to the value of five per cent of 

the net proceeds of the iFlex litigation; the contractual 

documents did not give him a right to five per cent of the iFlex 

litigation funds themselves. Contrast Matter of Hilson, supra. 

Therefore, the judgment for Weiler on his conversion claim must 

be reversed.

e. Fraudulent transfers. Under UFTA, a transfer made by a 

debtor before or after the creditor's claim arose is fraudulent 

if made with actual intent to hinder, delay, or defraud, see 
22

G. L. c. 109A, § 5 (a) (1), or if made without receiving the 

reasonably equivalent value of the property in exchange and 

after the transfer, the debtor would not have enough assets to 

carry on its business or pay expected creditors. See G. L. 

c. 109A, § 5 (a) (2).27 The judge concluded that the defendants 

violated UFTA, based on her finding that the transfers were made 

with the actual intent to hinder, delay, or defraud Weiler. See 

G. L. c. 109A, § 5 (a) (1). With respect to the $515,000 

transferred by PortfolioScope to Whelihan, the judge pointed to 

the following: (1) at the time of the transfers, Whelihan was 

not a secured or even an unsecured creditor of PortfolioScope, 

and Portfolioscope received no value in exchange for the 

27 General Laws c. 109A, § 5 (a), provides in pertinent 

part:

"A transfer made or obligation incurred by a debtor is 

fraudulent as to a creditor, whether the creditor's claim 

arose before or after the transfer was made or the 

obligation was incurred, if the debtor made the transfer or 

incurred the obligation:

"(1) with actual intent to hinder, delay, or defraud any 

creditor of the debtor; or

"(2) without receiving a reasonably equivalent value in 

exchange for the transfer or obligation, and the debtor:

"(i) was engaged or was about to engage in a business or a 

transaction for which the remaining assets of the debtor 

were unreasonably small in relation to the business or 

transaction; or

"(ii) intended to incur, or believed or reasonably should 

have believed that he would incur, debts beyond his ability 

to pay as they became due."

 
23

transfers;28 (2) Whelihan was an "insider," see G. L. c. 109A, 

§ 2; (3) the settlement proceeds as a whole represented 

substantially all of PortfolioScope's assets; and (4) Whelihan 

and Kimberlin attempted to conceal the transfers while 

simultaneously delaying response to Weiler's requests to be 

paid. As to the $6.496 million29 transferred by PortfolioScope 

to the Spencer Trask brokerage account, the judge observed that: 

(1) the transfers were made to Spencer Trask, a PortfolioScope 

insider, for the benefit of KKP, controlled by Kimberlin; (2) 

the transfers involved substantially all of PortfolioScope's 

assets, rendering it insolvent; (3) KKP never perfected its 

security interest until after Weiler commenced this litigation; 

(4) neither Whelihan nor Kimberlin ever informed Weiler that 

PortfolioScope was unable to pay him because it was required to 

pay its secured creditor, KKP; and (5) both Kimberlin and 

Whelihan engaged in a series of actions that were intended to 

28 The judge expressly discredited Whelihan's testimony that 

he was owed $500,000 for his work both at PortfolioScope and at 

Spencer Trask. She further rejected Whelihan's assertion that 

he had been working for years as a Spencer Trask employee 

without compensation, citing the fact that Whelihan was 

receiving a monthly $9,000 retainer from Spencer Trask.

29 This sum consisted of the $5.2 million wired on 

November 12 and the $1.296 million wired on November 17. The 

judge did not find the approximately $1.231 million transfer, 

apparently designed to satisfy the Superior Court escrow order 

in the Hunt litigation, to be a fraudulent transfer under UFTA.

 
24

conceal the transfers from Weiler and avoid his attempts to 

collect what was due him.30

The defendants contend that the trial judge's finding that 

the transfers to Whelihan and to Spencer Trask were made with 

intent to hinder or delay was clearly erroneous. We disagree.31

i. Transfers to Whelihan. The defendants' only argument 

as to why the transfers made to Whelihan are not fraudulent 

within the meaning of UFTA is that the payment to Whelihan was, 

in actuality, a transfer to KKP, PortfolioScope's secured 

creditor. As discussed, the trial judge's findings do not 

support this factual claim, therefore the issue of paying a 

secured creditor is irrelevant. The question that remains is 

whether the evidence showed that the Whelihan transfers were 

made with actual intent to hinder, delay, or defraud, or more 

particularly, whether the judge's finding that they were made 

30 The Appeals Court concluded that the transfers at issue 

did not violate UFTA. Weiler, 83 Mass. App. Ct. at 231-233. 

That court reasoned that, because "the transfers were made at 

the instruction of KKP, a secured creditor and holder of a 

demand note," id. at 232, Weiler was required to prove that 

PortfolioScope received some hidden benefit in making the 

transfers. Id. at 232-233.

31 Essentially, the defendants' argument is that KKP was a 

secured creditor of PortfolioScope, that the various transfers 

were made in satisfaction of that security interest, and that 

accordingly they are insulated from being found to have violated 

UFTA. Additionally, they claim that there was insufficient 

evidence to support the finding that the transfers to Spencer 

Trask were to an "insider," and to support the finding that 

PorfolioScope became insolvent as a result of the transfers.

 
25

with such intent was clearly erroneous. Cf. Max Sugarman 

Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 1255 (1st 

Cir. 1991) (finding of actual intent to hinder, delay, or 

defraud under § 548 of United States Bankruptcy Code "is a 

finding of fact, which [is] not disturb[ed] absent clear 

error").32 

General Laws c. 109A, § 5 (b), provides a nonexclusive list 

of factors that may be considered in determining whether the 

parties made the transfers with actual intent to hinder, delay,

or defraud.33 See Alford v. Thibault, 83 Mass. App. Ct. 822, 828 

32 See In re Spatz, 222 B.R. 157, 164 (N.D. Ill. 1998) 

(noting that provisions of UFTA parallel § 548 of Bankruptcy 

Code).

33 The factors set forth in G. L. c. 109A, § 5 (b), are 

whether:

"(1) the transfer or obligation was to an insider;

"(2) the debtor retained possession or control of the 

property transferred after the transfer;

"(3) the transfer or obligation was disclosed or 

concealed;

"(4) before the transfer was made or obligation was 

incurred, the debtor had been sued or threatened with suit;

"(5) the transfer was of substantially all of the 

debtor's assets;

"(6) the debtor absconded;

"(7) the debtor removed or concealed assets;

 
26

(2013). "While the 'presence of a single badge of fraud may 

spur mere suspicion, the confluence of several can constitute 

conclusive evidence of an actual intent to defraud.'" Hasbro,

Inc. v. Serafino, 37 F. Supp. 2d 94, 98 (D. Mass. 1999), quoting 

Max Sugarman Funeral Home, Inc., supra at 1254-1255.

The subsidiary findings listed by the judge in support of 

her ultimate finding of actual intent included at least four 

indicia listed in UFTA, see G. L. c. 109A, § 5 (b): the 

transfers to Whelihan, the chief executive officer of 

PortfolioScope, were to an insider, see § 5 (b) (1)34; Whelihan 

and Kimberlin concealed the transfers from Weiler, see § 5 (b) 

(3); the transfers to Whelihan, combined with the virtually 

simultaneous transfers to Spencer Trask, accounted for 

substantially all of PortfolioScope's assets at that time, see 

"(8) the value of the consideration received by the 

debtor was reasonably equivalent to the value of the asset 

transferred or the amount of the obligation incurred;

"(9) the debtor was insolvent or became insolvent 

shortly after the transfer was made or the obligation was 

incurred;

"(10) the transfer occurred shortly before or shortly 

after a substantial debt was incurred; and

"(11) the debtor transferred the essential assets of 

the business to a lienor who transferred the assets to an 

insider of the debtor."

34 See also G. L. c. 109A, § 2 (officer of debtor

corporation is insider for purposes of UFTA).

 
27

§ 5 (b) (5); and, because Whelihan was not a secured or 

unsecured creditor of PortfolioScope and had no entitlement to 

any portion of the iFlex litigation settlement proceeds, 

PortfolioScope received no value -- much less something of 

equivalent value -- as a result of the transfer, see § 5 (b) 

(8). As the trial evidence supports these findings, the judge's 

determination that the transfer of $515,000 to Whelihan was made 

with intent to hinder, delay, or defraud was not clearly 

erroneous.

ii. Transfers to Spencer Trask. Kimberlin principally 

argues that because KKP was a secured creditor of 

PortfolioScope, the approximately $6.5 million in transfers to 

KKP through Spencer Trask represented a preference of paying one 

creditor over another, and, therefore, it is not fraudulent 

under UFTA. "Fraudulent conveyance laws, such as the Bankruptcy 

Code and [S]tate statutes adopting some form of the Uniform 

Fraudulent Conveyance Act or the Uniform Fraudulent Transfers 

Act, are intended to prevent shareholders, secured creditors, 

and others from benefitting at the expense of others, including 

unsecured creditors" (emphasis added). In re Hechinger Inv. Co. 

of Del., 274 B.R. 71, 81 (D. Del. 2002). Accordingly, 

compliance with the law of secured transactions, see G. L. 

c. 106, §§ 9-101 to 9-709, does not by itself protect a secured 

creditor from a fraudulent transfer claim. See Steel Co. v. 
28

Morgan Marshall Indus., Inc., 278 Ill. App. 3d 241, 250-252 

(1996) (although no dispute that art. 9 of Uniform Commercial 

Code was complied with, genuine issue of material fact remained

whether transfers made with actual intent to defraud). Cf. 

Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. 

Ct. 47, 50 (1980), quoting 1B Coogan, Hogan & Vagts, Secured 

Transactions under the Uniform Commercial Code § 13.07(1), at 

1381 (1980) ("Clearly, article 9 does not replace the Uniform 

Fraudulent Conveyance Act").

Cases decided before the enactment of UFTA in Massachusetts 

have stated that when a debtor has paid one creditor over 

another, even when the payment comprised substantially all of 

the debtor's assets, this fact by itself is insufficient to 

establish an intent to hinder, delay, or defraud. See, e.g., 

Goldstein v. Columbia Diamond Ring Co., Inc., 366 Mass. 835, 

843-844 (1975). See also Mason v. Wylde, 308 Mass. 268, 281-

283, cert. denied, 314 U.S. 638 (1941). Implicit in those 

cases, however, is a premise that the debtor is acting in good 

faith in making the challenged transfers -- that the debtor's 

motivation or purpose in doing so was to pay the creditor the 

antecedent debt, not to advance a goal of secretly benefiting 

the debtor's own, personal interests at the expense of the 

unpaid creditor. See Mason, supra at 282-283. As to the 

approximately $6.5 million in transfers to Spencer Trask, the 
29

judge expressly rejected a conclusion that PortfolioScope, 

acting through Whelihan and Kimberlin in effecting these 

transfers, was acting in good faith, concluding instead that the 

defendants' purpose was to benefit Kimberlin and Whelihan at 

Weiler's expense. And, as is true of the transfers to Whelihan, 

the indicia of actual intent to hinder, delay, or defraud found 

by the judge -- the defendants' failure at the time of making 

the transfers to explain to Weiler that PortfolioScope was 

unable to pay him because of the need to pay its secured 

creditor KKP; their concealment from Weiler of the transfers;

and the fact that the transfers to Spencer Trask, combined with 

the transfers to Whelihan, constituted substantially all of 

PortfolioScope's assets -- are supported by the evidence.35,36

35 The judge also found that the $6.5 million in transfers 

to Spencer Trask effectively rendered PortfolioScope insolvent. 

The defendants, as noted, contend that this finding was clearly 

erroneous. It may be that the evidence failed to show that 

PortfolioScope was insolvent within the meaning of UFTA, see 

G. L. c. 109A, § 3. Nevertheless, there still is sufficient 

evidence of actual intent to hinder, delay, or defraud to affirm 

the judge's conclusion that the transfers were fraudulent under 

§ 5 (a) (1) of UFTA.

36 The defendants argue that, although Spencer Trask may 

have qualified as an insider under UFTA as it was a ninety per 

cent owner of PortfolioScope, Spencer Trask was a transferee in 

"name only"; the actual transferee was KKP, its secured 

creditor. We are not convinced that we should ignore that 

Spencer Trask was the initial transferee for purposes of UFTA, 

especially where Kimberlin admitted that he did not have a "good 

answer" as to why he directed Whelihan to wire the settlement 

proceeds purportedly for KKP to a Spencer Trask brokerage 

account. In any event, even if the transfers were not made to 

 
30

e. G. L. c. 93A, § 11. The trial judge concluded that by 

improperly using the iFlex litigation settlement proceeds to 

benefit themselves rather than meeting PortfolioScope's 

contractual obligations to pay Weiler and by intentionally 

misleading and concealing their improper conduct, the defendants 

acted unfairly or deceptively within the meaning of G. L. c. 

93A, § 11, and did so knowingly and wilfully, entitling Weiler 

to double damages and attorney's fees. The Appeals Court 

disagreed. Although the defendants had not raised the issue in 

the Superior Court or on appeal, the Appeals Court concluded 

that Weiler was not entitled to recover under G. L. c. 93A, § 

11, because "the dispute . . . arose out of a private 

transaction between PortfolioScope and Weiler in his role as a 

former employee and options holder of the company," Weiler, 83 

Mass. App. Ct. at 230, and as a result Weiler did not meet the 

trade or commerce requirement of the statute. Id. at 230-231. 

Weiler argues that the defendants have waived this defense --

that it is too late for them to take up the intra-corporate 

transaction banner at this stage of the case. The defendants do 

not contest that they did not previously raise this issue, but 

claim that the "trade or commerce" requirement of c. 93A, § 11, 

an insider, they were nonetheless made to an entity with which 

PortfolioScope "had an intimate financial relationship." Max 

Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 

1255 (1991).

 
31

goes to the court's subject matter jurisdiction and therefore 

cannot be waived.

Our cases make clear that G. L. c. 93A, § 11, does not 

cover internal employment or intra-enterprise disputes. See, 

e.g., Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 549-551 

(2014); Psy-Ed Corp., 459 Mass. at 719-720; Manning v. 

Zuckerman, 388 Mass. 8, 12-15 (1983). This does not mean, 

however, that the Superior Court lacks jurisdiction even to 

entertain arguments that the plaintiff's claim of unfair or 

deceptive conduct on the part of various individuals and 

entities falls squarely within the proper "trade or commerce” 

scope of § 11, and is not a private employment or intracorporate dispute. See G. L. c. 93A, § 11, first par. (granting 

Superior Court jurisdiction to hear such claims).37 See also

Wachovia Bank, Nat'l Ass'n v. Schmidt, 546 U.S. 303, 316 (2006) 

(question for purposes of subject matter jurisdiction is, "Has 

the Legislature empowered the court to hear cases of a certain 

37 General Laws c. 93A, § 11, first par., provides in 

relevant part:

"Any person who engages in the conduct of any trade or 

commerce and who suffers any loss of money or property

. . . as a result of the use or employment by another 

person who engages in any trade or commerce of an unfair or 

deceptive act or practice declared unlawful by [§ 2] . . . 

may, as hereinafter provided, bring an action in the 

superior court . . . for damages and such equitable relief, 

including an injunction, as the court deems to be necessary 

and proper."

 
32

genre?"); Doe, Sex Offender Registry Bd., No. 3974 v. Sex 

Offender Registry Bd., 457 Mass. 53, 56-57 (2010).38 Our cases 

routinely have addressed the argument or defense that a dispute 

is intra-corporate in nature, and therefore fails to satisfy the 

"trade or commerce" requirement of § 11, as a basis for a motion 

to dismiss for failure to state a claim upon which relief can be 

granted under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). 

See, e.g., First Enters., Ltd. v. Cooper, 425 Mass. 344, 345 

n.3, 347-348 (1997) (analyzing whether G. L. c. 93A, § 11, claim 

38 Our cases addressing whether an issue is one of subject 

matter jurisdiction have distinguished between the general 

"'nature of the case assigned' to [the court]," which implicates 

the court's subject matter jurisdiction, and "the elements of a 

prima facie case before the [court]," which do not. Doe, Sex 

Offender Registry Bd., No. 3974 v. Sex Offender Registry Bd., 

457 Mass. 53, 57 (2010) (Doe, No. 3974). See Wachovia Bank, 

Nat'l Ass'n v. Schmidt 546 U.S. 303, 316 (2006) ("Subject matter 

jurisdiction . . . concerns a court's competence to adjudicate a 

particular category of cases"). Here, the Superior Court is 

clearly granted the authority to hear G. L. c. 93A claims. See 

G. L. c. 93A, §§ 9 (1) and 11. Whether the parties were engaged 

in "trade or commerce" at the time the alleged unfair or 

deceptive practices occurred is a substantive question. Cf. 

Doe, No. 3974, supra at 57 (whether sex offender was person who 

resides in Massachusetts, which board was required to prove for 

statutory definition of "sex offender," was substantive question 

not going to board's subject matter jurisdiction, and was waived 

when not raised until appeal); Middleborough v. Housing Appeals 

Comm., 449 Mass. 514, 520-521 (2007) (requirement that project 

be "fundable" before permit decision could be challenged was 

substantive as opposed to jurisdictional). Contrast St. 

Joseph's Polish Nat'l Catholic Church v. Lawn Care Assocs., 

Inc., 414 Mass. 1003, 1003 & n.1 (1993) (Housing Court lacked 

jurisdiction to hear G. L. c. 93A action where claim was that 

defendant failed "properly to perform an agreement for grading, 

seeding and paving work on a cemetery owned by the plaintiff," 

as claims were only tangentially related to housing).

 
33

was properly dismissed for failure to state claim under rule 12 

[b] [6] because it constituted intra-enterprise dispute); 

Manning, 388 Mass. at 9, 12-14 (same); Cavicchi v. Koski, 67 

Mass. App. Ct. 654, 655, 662-663 (2006) (same). We continue to

view a rule 12 (b) (6) motion as the proper vehicle for a party 

to raise such a defense. A rule 12 (b) (6) motion, however, 

does not implicate the court's subject matter jurisdiction, and 

it may be waived. See Mass. R. Civ. P. 12 (h) (2), 365 Mass. 

754 (1974) (failure to state claim on which relief can be 

granted may be raised by pleading, motion to dismiss, motion for 

judgment on pleadings, or at trial). Compare Mass. R. Civ. P. 

12 (h) (3), 365 Mass. 754 (1974) ("Whenever it appears by 

suggestion of a party or otherwise that the court lacks 

jurisdiction of the subject matter, the court shall dismiss the 

action" [emphasis added]). Because the defendants did not raise 

the issue of employment or intra-enterprise dispute before 

judgment entered in the Superior Court (and also did not raise 

the issue before the Appeals Court), it is waived.39 The 

39 Although we do not decide the issue, it is far from clear 

that the dispute here in any event could qualify as a private, 

employment-related or intra-enterprise controversy outside the 

trade or commerce boundary line of G. L. c. 93A, § 11. 

Kimberlin was not a stockholder, officer, director, or employee 

of PortfolioScope, there are a variety of separately organized 

entities involved in this case, and the conduct of the 

defendants giving rise to Weiler's claim under § 11 took place 

six years after the five per cent agreement and five per cent 

amendment were signed –- six years in which Weiler had been 

 
34

defendants do not challenge the judge's disposition of Weiler's 

c. 93A claim on any other ground, and therefore, the judgment on 

this claim is affirmed.

3. Conclusion. The judgment of the Superior Court is 

affirmed as to all counts of the first amended complaint with 

the exception of count 9 for conversion, and as to that count, 

the judgment is reversed.

So ordered.

working not as an employee of PortfolioScope but as a 

consultant. In short, the factual circumstances of this case 

appear to be significantly different from the direct 

employer-employee or shareholder-corporation disputes to which 

we have held G. L. c. 93A inapplicable. Contrast, e.g., Selmark 

Assocs., Inc. v. Ehrlich, 467 Mass. 525, 550 (2014), quoting 

Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 563 (2008); 

Zimmerman v. Bogoff, 402 Mass. 650, 662-663 (1988) (G. L. c. 93A 

inapplicable to transactions and disputes between fellow 

shareholders in close corporation); Manning v. Zuckerman, 388 

Mass. 8, 15 (1983) (G. L. c. 93A in applicable to dispute 

between employer and employee).