Pegasystems, Inc. v. Ernst & Young LLP

13 Mass. L. Rptr. 136
CourtMassachusetts Superior Court
DecidedApril 5, 2001
DocketNo. CA002667F
StatusPublished

This text of 13 Mass. L. Rptr. 136 (Pegasystems, Inc. v. Ernst & Young LLP) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pegasystems, Inc. v. Ernst & Young LLP, 13 Mass. L. Rptr. 136 (Mass. Ct. App. 2001).

Opinion

Kottmyer, J.

Plaintiff Pegasystems, Inc. and two of its officers (collectively “Pegasystems”) brought this action against the defendant Ernst & Young and Alan B. Levine (collectively “E&Y’) seeking damages for professional malpractice, negligent misrepresentation, breach of fiduciary duty, contribution, business defamation and violation of G.L.c. 93A. The defendants have moved to dismiss Pegasystems’s complaint, or, in the alternative, to stay the proceedings based on Pegasystems’s failure to comply with the dispute resolution procedures set forth in an agreement between the parties. For the reasons discussed below, E&Y’s motion to dismiss is ALLOWED.

BACKGROUND

In 1983, Pegasystems retained Arthur Young & Co., now E&Y, to serve as Pegasystems’s independent auditors. In November 1995, E&Y and Pegasystems executed an Engagement Letter, drafted by E&Y “to confirm our engagement to audit and report on the financial statements of Pegasystems, Inc. for the year ending December 31, 1995.” E&Y contends that the Engagement Letter requires that the claims which are the subject matter of this lawsuit be submitted to arbitration. Paragraph 11 of the Engagement Letter states:

Any controversy or claim arising out of or relating to the services covered by this letter or hereafter provided by us to the Company (including any such matter involving any parent, subsidiary, affiliate, successor in interest, or agent of the Company or of Ernst & Young LLP) shall be submitted first to voluntary mediation, and if mediation is not successful, then to binding arbitration, in accordance with the dispute resolution procedures set forth in the attachment to this letter. Judgment on any arbitration award may be entered in any court having proper jurisdiction.

Dispute Resolution Procedures (“the Procedures”) attached to the Engagement Letter provide that “the following procedures shall be used to resolve any controversy or claim (’dispute’) as provided in our engagement letter of October 18, 1995.” The Procedures also provide as follows:

Any issues concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforcement of these procedures, including any contention that all or part of these procedures are unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators.

The advice given by E&Y that is at issue in this suit concerned the “accounting implications” of a proposed transaction between Pegasystems and First Data Resources, Inc., including advice as to “how to structure some of the various components of the overall deal in order to achieve certain revenue recognition objectives.” Plaintiffs’ Memorandum in Opposition to Defendants’ Motion to Dismiss at 5. The complaint alleges that based on this advice, Pegasystems recognized five million dollars in revenue in its second quarter 1997 financial statements. E&Y initially confirmed in writing that in recognizing the revenue, Pegasystems was acting in accordance with Generally Accepted Accounting Principles. E&Y subsequently reversed its position and Pegasystems was forced to restate its earnings for the second quarter of 1997. When E&Y provided the above advice to Pegasystems, the parties contemplated that E&Y would perform the 1997 year-end audit. E&Y billed Pegasystems separately for this advice noting that its services included “Revenue recognition/Contract Consulting” and “consultations . . . regarding the accounting for the contract with First Data."

Pegasystems contends that the Engagement Letter applies only to the 1995 and subsequent year-end audits. It asserts that the present claims arise out of advice given by E&Y on a potential business transaction and the arbitration clause and Dispute Resolution Procedures do not apply. The argument is without merit.

DISCUSSION

E&Y has moved to dismiss Pegasystems’s complaint or stay the proceedings pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §1 et. seq. (1988). The FAA provides that “a dispute is arbitrable if it falls within the scope of a written arbitration agreement that is otherwise valid and enforceable.” Carpenter v. Pomerantz, 36 Mass.App.Ct. 627, 628 (1994); 9 U.S.C. §2. The FAA “createfs] a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). The FAA governs the arbitrability of disputes in state or federal court. Carpenter, 36 Mass.App.Ct. at 628 n.3 (citing Moses H. Cone Mem’l Hosp., 460 U.S. at 24).

In determining whether a particular agreement calls for arbitration, the general principles of contract law should apply. Mugnano-Bornstein v. Crowell, 42 Mass.App.Ct. 347, 350 (1997). As such, any ambiguities in the language of the contract should be construed against its drafter. Merrimack Valley Nat’l Bank v. Baird, 372 Mass. 721, 724 (1977). However, “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration” over litigation. Moses H. Cone Mem’l Hosp., 460 U.S. at 24. In addition, under the FAA, “any doubts regarding arbitrability should be resolved in favor of coverage ’unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” Mugnano-Bornstein, 42 Mass.App.Ct. at 351 (quoting Peerless Pressed Metal Corp. v. International Union of Elec. Radio and Mach. Workers, AFL-CIO, 451 F.2d 19, 20 (1st Cir. [138]*1381971)). Lastly, “the question of who has the primary power to decide arbitrability turns upon what the parties agreed to about the matter.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995).

The arbitration clause contained in paragraph 11 of the Engagement Letter is broad; it covers “[a]ny controversy or claim arising out of or relating to the services covered by this letter or hereafter provided by us to the Company...” (Emphasis added.) The clause is unambiguous and does not limit the applicability of arbitration to claims and controversies arising out of year-end audits.

Pegasystems’s claims of professional malpractice, negligent misrepresentation, breach of fiduciary duty, business defamation, and violation of c. 93A clearly arise out of services provided by E&Y after the Engagement Letter was executed. However, relying on language in paragraph 9 of the Engagement letter, Pegasystems argues that the services which led to the dispute at issue did not concern a year-end audit and therefore were not services “covered by this letter.” Paragraph 9 provides in pertinent part:

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Related

First Options of Chicago, Inc. v. Kaplan
514 U.S. 938 (Supreme Court, 1995)
Sparling v. Hoffman Construction Company, Inc.
864 F.2d 635 (Ninth Circuit, 1988)
Merrimack Valley National Bank v. Baird
363 N.E.2d 688 (Massachusetts Supreme Judicial Court, 1977)
Carpenter v. Pomerantz
634 N.E.2d 587 (Massachusetts Appeals Court, 1994)
Mugnano-Bornstein v. Crowell
677 N.E.2d 242 (Massachusetts Appeals Court, 1997)

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Bluebook (online)
13 Mass. L. Rptr. 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pegasystems-inc-v-ernst-young-llp-masssuperct-2001.