# Llorens v. LexShares, Inc.

> District Court, D. Massachusetts · December 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10754004

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** December 3, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10754004

## How later opinions describe it (automated extraction)

- explaining that Warfield “directly overruled [the Massachusetts Appeals Court’s] rejection of the requirement of a specific reference to discrimination claims”
- explaining that “§ 4(4A) is best understood as a device through which an individual falling outside the scope of the definition of ‘employer’ may otherwise be liable for conduct which the antidiscrimination statute aims to prevent”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
CAYSE LLORENS, )
)
Plaintiff, )
)
v. )
) Civil Action
LEXSHARES, INC., DAVID ROSNER, ) No. 24-cv-12452-PBS
and FRANK VAN LINT, )
)
Defendants. )
)

MEMORANDUM AND ORDER

December 3, 2024

Saris, D.J.
INTRODUCTION
Plaintiff Cayse Llorens, a Black male, is the former Chief
Executive Officer (“CEO”) of Defendant LexShares, Inc.
(“LexShares”). Llorens’s relationship with the board of directors
of LexShares (“Board”) soured throughout 2022, and the Board
decided to replace him at the end of the year. Llorens resigned
rather than be terminated. He then sued LexShares and Defendants
David Rosner and Frank van Lint -- the chairman of the Board and
a Board member, respectively -- alleging racial discrimination in
violation of Massachusetts General Laws Chapter 151B (“Chapter
151B”). LexShares, Rosner, and van Lint (collectively,
“Defendants”) now move to dismiss Llorens’s suit under Federal
Rule of Civil Procedure 12(b)(6).
After hearing, the Court ALLOWS in part and DENIES in part
Defendants’ motion to dismiss (Dkt. 8).

BACKGROUND
The complaint alleges the following facts, which the Court
accepts as true at this stage. See Artuso v. Vertex Pharms., Inc.,
637 F.3d 1, 5 (1st Cir. 2011).
Llorens graduated from business school in 2019 and founded a
private equity firm. In 2020, the firm took a majority stake in
LexShares, a litigation financing company. Llorens became the CEO
of LexShares at the time of his firm’s investment. He joined the
Board as its only Black member as well. Llorens’s employment

contract with LexShares contained a Massachusetts choice-of-law
provision. It also included a “Waiver of Statutory Limitations
Periods” provision stating:
Employee [Llorens] agrees that any claim against the
Company [LexShares] relating to the employment
relationship between the Company and Employee (including
the termination of the employment relationship) must be
brought against the Company within 180 days of the event
giving rise to the claim, or within the applicable
statutory limitations period (whichever period is
shorter) . . . .

Dkt. 9-1 ¶ 24.
In February 2022, the Board established key performance
indicators (“KPIs”) for Llorens and the two White members of
LexShares’ executive team, President Jay Greenberg and Chief
Investment Officer Max Volsky. The KPIs set metrics to measure job
performance, determine year-end bonuses, and set salaries for the
following year. Llorens, Greenberg, and Volsky had the same salary
for 2022, but Greenberg and Volsky had the opportunity to earn a

larger bonus than Llorens.
Llorens had a contentious relationship with the Board during
2022. The Board did not allow him to bring a scribe to meetings
after a thumb injury hampered his ability to type or write. Board
members also cut him off during meetings and rejected his ideas
without giving them adequate consideration. Nonetheless, Llorens
had a successful tenure at LexShares, including growing earnings
by around a third.
On November 18, 2022, Llorens attended a performance
evaluation with Rosner and van Lint, two Board members. At the
meeting, Llorens learned that the Board had changed the KPIs that
it had previously set for him. Llorens received a negative

performance review based on the new KPIs and did not earn a bonus
for 2022. The Board did not, however, change the KPIs for Greenberg
and Volsky. And even though Volsky had announced in September 2022
that he planned to leave LexShares in 2023, the Board gave Volsky
a raise, several contract concessions, and possibly a bonus for
2022.
Two weeks after his performance evaluation, Llorens proposed
amendments to his employment contract. Rosner and van Lint told
Llorens that the Board would not consider any contract amendments
because he had not added value to the company. During the meeting,
Rosner admitted that he had not read an email Llorens had sent
detailing his accomplishments at LexShares.

On December 14, 2022, Rosner informed Llorens that the Board
was looking for a replacement CEO. Llorens tendered his resignation
the next day. His last day as CEO was January 13, 2023. LexShares
replaced Llorens with a White man.
Llorens filed a charge of racial discrimination against
Defendants with the Massachusetts Commission Against
Discrimination (“MCAD”) on September 11, 2023. He withdrew his
charge in March 2024 and then filed suit five months later.

LEGAL STANDARD
To survive a motion to dismiss, a complaint must allege “a
plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 559 (2007). “While a complaint attacked by a Rule
12(b)(6) motion does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of a cause of action’s elements will not
do.” Id. at 555 (cleaned up). This standard requires a court to
“separate the complaint’s factual allegations (which must be
accepted as true) from its conclusory legal allegations (which
need not be credited).” Kando v. R.I. State Bd. of Elections, 880

F.3d 53, 58 (1st Cir. 2018) (quoting Morales-Cruz v. Univ. of P.R.,
676 F.3d 220, 224 (1st Cir. 2012)). The court must then determine
whether the factual allegations permit it “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”

Germanowski v. Harris, 854 F.3d 68, 72 (1st Cir. 2017) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
In addition to the well-pleaded allegations in the complaint,
a court evaluating a motion to dismiss may consider certain
extrinsic documents, including those “the authenticity of which
are not disputed by the parties” and “documents central to the
plaintiff’s claim.” Newman v. Lehman Bros. Holdings Inc., 901 F.3d
19, 25 (1st Cir. 2018) (quoting Freeman v. Town of Hudson, 714
F.3d 29, 36 (1st Cir. 2013)). The parties agree that the Court may
consider Llorens’s employment contract and his MCAD filings in
connection with the motion to dismiss.

DISCUSSION
I. Statute of Limitations
Defendants first argue that Llorens’s claim is time-barred
because he failed to file his MCAD charge and lawsuit within the
180-day limitations period set forth in his employment contract.
An individual seeking to bring an employment discrimination claim
under Chapter 151B normally must file a “charge[] with MCAD within
300 days of experiencing the adverse action alleged.” Rae v. Woburn
Pub. Schs., 113 F.4th 86, 99 (1st Cir. 2024); see Mass. Gen. Laws

ch. 151B, § 5. After waiting at least 90 days for a response from
MCAD, he may then file suit in court. See Mass. Gen. Laws ch. 151B,
§ 9; Rae, 113 F.4th at 99. Any “Chapter 151B claim must be filed
in court within three years of the adverse employment action.”

Rae, 113 F.4th at 99; see Mass. Gen. Laws ch. 151B, § 9. Llorens
alleges that he suffered multiple adverse employment actions
within 300 days of the filing of his MCAD charge on September 11,
2023, and within three years of the filing of this lawsuit. These
actions include being told on November 18, 2022, that the Board
had revised his KPIs, the resulting denial of a bonus, and the
subsequent Board decision to replace him as CEO in mid-December
2022.
Defendants claim that Llorens’s employment contract shortened
these statutory deadlines to 180 days. In general, “Massachusetts
law permits contractually shortened limitations periods so long as
they are ‘reasonable’ and ‘not contrary to other statutory

provisions or to public policy.’” Machado v. System4 LLC, 28 N.E.3d
401, 414-15 (Mass. 2015) (quoting Creative Playthings Franchising,
Corp. v. Reiser, 978 N.E.2d 765, 767 (Mass. 2012)). The
Massachusetts Supreme Judicial Court (“SJC”) has held, however,
that “an employment contract containing an agreement by the
employee to limit or waive any of the rights or remedies conferred
by [Chapter] 151B is enforceable only if such an agreement is
stated in clear and unmistakable terms.” Warfield v. Beth Israel
Deaconess Med. Ctr., Inc., 910 N.E.2d 317, 325 (Mass. 2009); see
id. at 326 (“[A] private agreement that purports to waive or limit
-- whether in an arbitration clause or on some other contract
provision -- the employee’s otherwise available right to seek

redress for employment discrimination through the remedial paths
set out in [Chapter] 151B, must reflect that intent in unambiguous
terms.”). A contractually shortened limitations period to bring a
Chapter 151B claim is an agreement to limit the employee’s rights
under the statute. Thus, the 180-day limitations period in
Llorens’s employment contract is enforceable with regard to his
Chapter 151B claim only if the shortened period clearly and
unmistakably applies to such claims.1
To clearly and unmistakably apply to Chapter 151B claims, a
contract must, at minimum, state that the relevant waiver or
limitation applies to discrimination claims. Compare Joulé,
Inc. v. Simmons, 944 N.E.2d 143, 152 n.15 (Mass. 2011) (holding

that an arbitration clause clearly and unmistakably applied to
Chapter 151B claims where it covered “disputes between [the
employee] and [the employer] . . . relating to [her] employment
and/or termination of [her] employment (which includes without

1 Defendants assert that “Massachusetts courts consistently enforce
mutual agreements to shorten” the 300-day deadline to file an MCAD
complaint in connection with a Chapter 151B claim. Dkt. 9 at 7.
The only case they cite for this proposition, though, is one from
this district enforcing a contractually shortened limitations
period with regard to a federal employment discrimination claim
rather than a Chapter 151B claim. See Morales v. Fed. Express
Corp., 610 F. Supp. 3d 317, 323-25 (D. Mass. 2022).
limitation, claims of discrimination, harassment, hostile work
environment, retaliation, or other wrongful termination claims”
(emphasis omitted)), with Warfield, 910 N.E.2d at 328 (reaching

the opposite conclusion where “there [was] nothing in the
arbitration clause or elsewhere in the agreement stating that any
claims of employment discrimination by [the plaintiff were]
subject to arbitration”). A contractual provision does not clearly
and unmistakably apply to Chapter 151B claims if it merely
references disputes relating to “employment” or the “termination
of employment” without any further specificity. See Warfield, 910
N.E.2d at 324 n.11; see also Minkina v. Frankl, 16 N.E.3d 492, 499
(Mass. App. Ct. 2014) (explaining that Warfield “directly
overruled [the Massachusetts Appeals Court’s] rejection of the
requirement of a specific reference to discrimination claims”).
The language in Llorens’s employment contract does not

satisfy this standard. The contract imposes a 180-day limitations
period for “any claim against the Company [LexShares] relating to
the employment relationship between the Company and Employee
[Llorens] (including the termination of the employment
relationship).” Dkt. 9-1 ¶ 24. This provision does not
specifically mention claims of discrimination and, thus, does not
clearly and unmistakably apply to Chapter 151B claims. Llorens’s
Chapter 151B claim is not time-barred.
II. Chapter 151B Claim Against LexShares
Defendants next argue that Llorens has not plausibly alleged
a claim of racial discrimination against LexShares under Chapter

151B. A discrimination claim under Chapter 151B has “four elements:
membership in a protected class, harm, discriminatory animus, and
causation.” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky &
Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016) (quoting Lipchitz v.
Raytheon Co., 751 N.E.2d 360, 368 (Mass. 2001)). To establish a
prima facie case of discrimination, an employee must show “that
‘(1) he is a member of a class protected by [Chapter] 151B; (2) he
performed his job at an acceptable level; [and] (3) he was
terminated’ or otherwise subjected to an adverse employment
action.” Id. (second alteration in original) (quoting Blare v.
Husky Injection Molding Sys. Bos., Inc., 646 N.E.2d 111, 115 (Mass.
1995)); see Diaz v. City of Somerville, 59 F.4th 24, 28-29 (1st

Cir. 2023). “It is not necessary to plead facts sufficient to
establish a prima facie case at the pleading stage,” but “the
elements of the prima facie case . . . are part of the background
against which a plausibility determination should be made.”
Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st Cir.
2013); see Germanowski, 854 F.3d at 72.
Llorens has plausibly alleged the elements of a prima facie
case of discrimination. He pleads that he is Black and that he was
successful during his tenure at LexShares. His complaint also
describes multiple adverse employment actions that he allegedly
suffered. See Yee v. Mass. State Police, 121 N.E.3d 155, 161-62
(Mass. 2019) (explaining that adverse employment actions include

“effects on working terms, conditions, or privileges that
are . . . substantial enough to have materially disadvantaged an
employee” (first quoting King v. City of Boston, 883 N.E.2d 316,
323 (Mass. App. Ct. 2008); then quoting Psy-Ed Corp. v. Klein, 947
N.E.2d 520, 530 (Mass. 2011))). Defendants do not develop the
argument that the belated change to Llorens’s KPIs -- and the
accompanying negative performance review and denial of a year-end
bonus -- did not constitute an adverse employment action. See
Boutin v. Home Depot USA, Inc., 490 F. Supp. 2d 98, 107 (D. Mass.
2007) (listing an action “that affects ‘ . . . bonuses’” as an
example of an adverse employment action (quoting Swallow v. Fetzer
Vineyards, 46 F. App’x 636, 646 (1st Cir. 2002))). And although

Defendants contend that Llorens’s resignation prevents him from
advancing a termination-related claim, the complaint supports a
reasonable inference that, for all intents and purposes, LexShares
fired Llorens when Rosner informed him that the Board was seeking
a replacement CEO. See Edwards v. Commonwealth, 174 N.E.3d 1153,
1167 (Mass. 2021) (holding that a plaintiff showed an adverse
employment action where the record indicated that she “was fired
and that her letter of resignation was merely an attempt to save
face professionally”).
Moreover, the complaint supports a plausible inference that
these adverse employment actions resulted from racial
discrimination. Llorens alleges that the Board did not similarly

change the KPIs of the two White men on the executive team, Volsky
and Greenberg. He also alleges that while the Board refused to
entertain any amendments to his contract, it gave Volsky a raise
and various contract concessions even after Volsky announced that
he would be leaving the company. These comparator allegations
suffice at this stage to render plausible the claim that LexShares
changed his KPIs, gave him a negative performance review, denied
him a bonus, and then terminated him as a result of discriminatory
animus. See, e.g., Dexter v. Dealogic, LLC, 390 F. Supp. 3d 233,
241 (D. Mass. 2019) (denying a motion to dismiss an employment
discrimination claim based on the plaintiff’s plausible comparator
allegations). Defendants protest that Llorens served in a unique

position as CEO and, thus, that Volsky and Greenberg are not fair
comparators, but the Court cannot resolve this fact-intensive
argument on a motion to dismiss. See Trs. of Health & Hosps. of
City of Bos. v. Mass. Comm’n Against Discrimination, 871 N.E.2d
444, 451 (Mass. 2007) (explaining that the test for comparator
evidence “is whether a prudent person, looking objectively at the
incidents, would think them roughly equivalent and the
protagonists similarly situated” (quoting Dartmouth Rev. v.
Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989))).
Defendants argue that Llorens has failed to state a claim of
racial discrimination because he does not allege that LexShares
replaced him as CEO with a similarly qualified person. While the

SJC has previously included this element in its prima facie case
standard, see McKenzie v. Brigham & Women’s Hosp., 541 N.E.2d 325,
327 (Mass. 1989), it has not done so in more recent decisions. See
Verdrager, 50 N.E.3d at 793; Bulwer v. Mount Auburn Hosp., 46
N.E.3d 24, 32-33 (Mass. 2016). Regardless, the absence of an
allegation that Llorens was similarly qualified to the White CEO
who replaced him does not undermine the plausible inference of
racial discrimination that arises from LexShares’ different
treatment of the White executives.
The Court therefore denies the motion to dismiss with regard
to LexShares.
III. Chapter 151B Claim Against Rosner and van Lint

Finally, Defendants contend that Llorens has failed to
adequately allege that Rosner and van Lint violated Chapter 151B.
Certain provisions of Chapter 151B allow for liability against
individuals in addition to employers. See Verdrager, 50 N.E.3d at
793; Thomas v. EDI Specialists, Inc., 773 N.E.2d 415, 417 (Mass.
2002). In particular,
individuals, whether supervisors, fellow employees, or
third parties, also may be held liable by provisions
that forbid ‘any person . . . to . . . interfere with
another person in the exercise or enjoyment of any right
granted or protected by this chapter,’ [Mass. Gen. Laws
ch. 151B, § 4(4A)], and that prohibit ‘any person,
whether an employer or an employee or not, to aid [or]
abet . . . the doing of any of the acts forbidden under
this chapter.’ [Mass. Gen. Laws ch. 151B, § 4(5)].

Verdrager, 50 N.E.3d at 793 (first, second, and fourth alterations
in original).
An individual violates § 4(4A) if he “interfere[s] with [the
plaintiff’s] rights in deliberate disregard of those rights,’
which requires a showing of ‘an intent to discriminate.’”
Cocuzzo v. Trader Joe’s E. Inc., __ F.4th __, __ (1st Cir. 2024)
[2024 WL 4799281, at *9] (quoting Coogan v. FMR, LLC, No. 15-cv-
13148, 2018 WL 4405614, at *10 (D. Mass. Sept. 17, 2018)); cf.
McLaughlin v. City of Lowell, 992 N.E.2d 1036, 1058 n.34 (Mass.
App. Ct. 2013) (explaining that Ҥ 4(4A) is best understood as a
device through which an individual falling outside the scope of
the definition of ‘employer’ may otherwise be liable for conduct
which the antidiscrimination statute aims to prevent”). An aiding
and abetting claim under § 4(5) requires proof “(1) that the
defendant committed ‘a wholly individual and distinct wrong . . .
separate and distinct from the claim in main’; (2) ‘that the aider
or abetter shared an intent to discriminate not unlike that of the
alleged principal offender’; and (3) that ‘the aider or abetter
knew of his or her supporting role in an enterprise designed to
deprive [the plaintiff] of a right guaranteed him or her under
[Chapter] 151B.’” Lopez v. Commonwealth, 978 N.E.2d 67, 82 (Mass.
2012) (first and second alterations in original) (quoting
Harmon v. Malden Hosp., 19 Mass. Discrimination L. Rep. 157, 158
(1997)).

Llorens does not specify which provision of Chapter 151B he
alleges Rosner and van Lint violated, but his complaint does not
state a plausible claim under either theory of individual
liability. Most of the allegations in the complaint regard
decisions made by the Board as a whole. As to the individual
defendants specifically, the complaint alleges that Rosner
admitted on multiple occasions to disregarding Llorens’s emails
and proposals; that Rosner and van Lint informed Llorens of various
Board decisions and delivered his performance evaluation; that
Rosner excluded Llorens from compensations conversations; and that
Rosner and van Lint threatened to cancel a meeting with a
prospective buyer because Llorens planned to bring a scribe. These

allegations do not support a plausible inference that Rosner and
van Lint personally acted with intent to discriminate on the basis
of race, which is a necessary element for liability under either
§ 4(4A) or § 4(5).
The Court therefore allows the motion to dismiss with regard
to Rosner and van Lint. This decision is without prejudice to the
filing of an amended complaint with additional factual allegations
to establish a plausible claim against Rosner and van Lint under
Chapter 151B.
ORDER
Accordingly, Defendants’ motion to dismiss (Dkt. 8) is
ALLOWED as to Defendants David Rosner and Frank van Lint without

prejudice to filing an amended complaint within 30 days. The motion
to dismiss is otherwise DENIED.

SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10754004. Public record. Not legal advice.