Arbitration – Accounting malpractice – Chapter 93A

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Where two defendants have moved to compel arbitration, their motion should be allowed based on arbitration provisions in two letter engagement agreements.

“Bruce Dubeau brings this action against BDO USA, LLP (‘BDO’) and one of its former Certified Public Accountants, Justin Amico (‘Amico’) (together, the ‘BDO Defendants’), and against Lipresti Law, P.C. and attorney Nicholas Lipresti (together, the ‘Lipresti Defendants’), for alleged malpractice mainly in connection with the sale of his business. The BDO Defendants move to compel arbitration of the claims against them. For the following reasons, I must enforce plaintiff’s agreement to resolve his disputes with the BDO Defendants through arbitration. I also stay this case pending arbitration. …

“Plaintiff is a successful electrician and was the sole owner of Energy Electric Company, Inc. (‘EEC’). BDO advised EEC ‘for years on its tax obligations and liabilities.’ … Plaintiff, as President of EEC, and BDO entered into a letter engagement agreement dated October 7, 2020 (‘the Review Agreement’). …

“In addition to its work for EEC and its advice to EEC’s management, plaintiff and his wife also hired BDO to prepare their personal tax returns, including under a letter engagement agreement dated January 15, 2021 (the ‘Tax Agreement’). …

“The SJC has described four principles governing arbitration agreements: (i) a party may be ‘required to arbitrate’ only those disputes it has agreed to submit to arbitration; (ii) unless the parties provide otherwise, courts decide whether a dispute is arbitrable; (iii) courts do ‘not consider the merits of the underlying claims’ in making that determination; and (iv) ‘broadly worded arbitration clause[s]’ create a presumption that disputes are arbitrable unless expressly excluded. Commonwealth v. Philip Morris, Inc., 448 Mass. 836, 843 (2007).

“Plaintiff tries to distinguish advice the BDO Defendants gave him personally from advice they provided to him in his capacity as CEO of EEC. He alleges that Amico, a principal at BDO, acted outside the scope of the Review Agreement and provided advice about the SPA to him individually. Given the language of the various engagement agreements, I find the argument unconvincing.

“Guided by the four principles of arbitration, I must first determine whether the parties intended for their present dispute to be resolved through arbitration. … The issue of ‘accounting malpractice’ relates to the scope of work provided for in the Review Agreement, which also covered advice provided to EEC’s executives and to help EEC’s management make decisions. Thus, the arbitration clause appears to cover the present dispute.

“Second, unless the parties provide otherwise, courts decide whether a dispute is arbitrable. Here, the Review Agreement provides that ‘[t]he arbitration panel shall have the power to rule upon its own jurisdiction and authority, including any objection to the initial or continuing existence, validity, effectiveness, or scope of this arbitration agreement.’ The parties agreed to have the arbitration panel decide whether the present dispute is arbitrable.

“Third, I do not consider the merits of the underlying claims in making my determination.

“Fourth, broadly worded arbitration clauses generally give rise to a presumption that disputes fall within arbitration unless they are specifically carved out. … In the present case, the Review Agreement’s arbitration clause is broad enough to encompass plaintiff’s claims. In short, the parties acknowledged that by signing the Review Agreement, they were ‘giving up the right to litigate claims’ and ‘voluntarily agree[d] to binding arbitration.’

“Plaintiff’s Chapter 93A claim based on BDO’s decision in 2022 that it would not file plaintiff’s 2021 tax returns without plaintiff signing a release, plainly triggers the Tax Agreement’s arbitration clause. … Plaintiff does not challenge the validity or enforceability of the Tax Agreement or its dispute resolution provision. Without more, there is no merit to plaintiff’s argument that enforcing the arbitration provisions would be ‘unconscionable and contrary to Massachusetts public policy.’

“As to plaintiff’s claims against the Lipresti Defendants, no one contends they are subject to arbitration. Plaintiff contends that splitting the proceeding would increase the risk of inconsistent results and ‘improperly fragment the case.’ …

“On balance, it makes sense for the arbitration to run its course in the first instance. The arbitration may make further litigation of the claims against the Lipresti Defendants unnecessary, or may considerably narrow the issues that have to be addressed by the court. Moreover, arbitration is generally designed to proceed on an expedited schedule. Accordingly, it makes sense to stay further proceedings in this case pending the results of the arbitration of plaintiff’s claims against the BDO Defendants.”

Dubeau v. BDO USA, LLP, et al. (Lawyers Weekly No. 09-041-26) (8 pages) (Krupp, J.) (Suffolk Superior Court) (Civil No. 25-869-BLS1) (April 29, 2026).

Click here to read the full text of the opinion.