Affiliations

• American Bar Association (Litigation Section)
• Boston Bar Association (Education, Business Litigation, and IP Litigation Committees; former co-chair of Business Litigation Committee)

Representative Engagements

Representative Securities Litigation

• Spyridon C. Contogouris and Stephen A. Baldwin v. Westpac Resources, LLC, Patrick N. Smith, Kevin M. Costner and Rabobank N.A. (U.S. District Court, Eastern District of Louisiana) Represented Rabobank, one of several co-defendants including actor Kevin Costner, in lawsuit filed by actor Steven Baldwin and another plaintiff alleging Section 10(b) and Rule 10b-5 fraud claims related to the sale of oil removal technology in the wake of the Deepwater Horizon oil spill disaster. Plaintiffs were co-investors with Costner in a joint venture to market the technology, but sold their interests back to the other investors before any of the technology was sold. Plaintiffs claimed that had they known of the impending sale of the technology to BP, PLC, they either would not have sold their interests or would have only agreed to a much higher sales price. The court dismissed all claims against our client, on motion prior to trial in the case, which resulted in a jury verdict for all remaining defendants.
• Hamed Aboushanab, et al. v. ResQNet.com Inc., et al. (U.S. District Court, Southern District of New York) Represented all defendants in shareholder class action alleging purported state law claims for fraud in connection with plaintiffs’ purchase of Series A shares of ResQnet.com, Inc, and claims for breach of fiduciary duty, breach of contract, unjust enrichment, civil conspiracy, and fraudulent conveyances, among other claims.  After several motions to dismiss, the court dismissed all claims except for one, and the case settled shortly there after for a very small fraction of the case’s original worth.
• Harris Venture Partners, L.P. v. Gad Janay, et al. (Supreme Court, New York County) Represented all defendants in separate shareholder class actions brought in NY state court alleging purported claims for fraud in connection with plaintiffs’ purchase of Series A shares of ResQnet.com, Inc., and claims for breach of fiduciary duty, breach of contract, unjust enrichment, civil conspiracy, and fraudulent conveyances, among other claims.  After several motions to dismiss, the court dismissed virtually all claims without further leave to replead, and the case settled shortly thereafter for a very small fraction of the case’s original worth.
• Muhammed & Hana S. Rifai v. Gad Janay, et al. (Superior Court of New Jersey) Represented all defendants in separate shareholder class actions brought in NY state court alleging purported claims for fraud in connection with plaintiffs’ purchase of Series A shares of ResQnet.com, Inc., and claims for breach of fiduciary duty, breach of contract, unjust enrichment, civil conspiracy, and fraudulent conveyances, among other claims.  After several motions to dismiss, the court dismissed all claims, without further leave to replead and with prejudice.
• In Re: Copley Pharmaceutical Securities Litigation (U.S. District Court, District of Massachusetts) Represented a leading generic drug manufacturer and certain of its officers and directors in a consolidated class action alleging violations of Section 10(b) of the 1934 Act and Rule 10b-5 arising out of the announced recall and multiple deaths allegedly related to two of the company’s products.  Successfully coordinated with separate counsel handling product liability cases around the country and counsel handling a grand jury investigation, conducted joint internal investigation and obtained dismissal of 28 out of 29 alleged misstatements with the remainder of the case settling very favorably, solely with insurance proceeds, early in discovery. 
• Friedberg v. Discreet Logic Inc., et al. (U.S. District Court, District of Massachusetts) Represented a Montreal-based manufacturer of high-end editing and special effects software products for film, video and audio industries in three class actions filed in Massachusetts and California by shareholders of the company alleging violations of Section 10(b) and Rule 10b-5 in connection with reduced sales of company’s products. Settled very favorably early in discovery.
• Esner, et al. v. Discreet Logic Inc., et al. (California Superior Court, San Francisco County) Represented Discreet in a class action filed in California state court by shareholders of the company seeking to do an end run around the automatic stay of discovery in the PSLRA.  This action alleged the same fraud allegations under California law as those set forth in the companion California and Massachusetts federal cases.  Settled very favorably early in discovery.
• Paparella, et al. v. Discreet Logic Inc., et al. (U.S. District Court, Northern District of California) Represented a Montreal-based manufacturer of high-end editing and special effects software products for film, video and audio industries in three class actions filed in Massachusetts and California by shareholders of the company alleging violations of Section 10(b) and Rule 10b-5 in connection with reduced sales of company’s products.  Settled very favorably early in discovery. 
• In Re: SystemSoft Securities Litigation (U.S. District Court, District of Massachusetts) Represented leading Massachusetts software developer and certain of its officers and directors in multiple class actions filed by shareholders alleging violations of Section 10(b) and Rule 10b-5.  Settled very favorably, solely with insurance proceeds, prior to discovery. 
• In Re: Mercator Software Securities Litigation (U.S. District Court, District of Connecticut) Conducted internal investigation and represented business integration software manufacturer and certain of its officers and directors in over 12 class action lawsuits filed by shareholders, as well as a parallel SEC investigation, in the wake of a restatement of earnings by the company.  Class actions were resolved prior to discovery without any financial contribution by the company or the individual defendants.  SEC investigation resulted in a books and records administrative cease-and-desist order against the company, the lowest sanction available to the SEC.
• Hirsh, et al. v. PSSI World Medical, Inc. and Gulf South Medical Supply (U.S. District Court, Northern District of Florida) Represented two former officers and directors in a class action brought under section 14(a) of the 1934 Act, alleging misstatements and omissions in the joint Proxy issued by PSSI and Gulf South in connection with the 1998 merger of Gulf South into PSSI.  Successfully obtained dismissal - twice - of all section 10(b) and other fraud claims.  Settled favorably after completion of fact and expert discovery with no payment of any kind by the individual defendants.
• Asher v. Baxter International, Inc. (U.S. Court of Appeals for the Seventh Circuit) (U.S. Supreme Court) Represented several Amici in connection with a brief in support of Petitioner, Baxter International's, petition for writ of certiorari seeking reversal of the Seventh Circuit's recent decision interpreting the Safe Harbor provision of the PSLRA, and requiring discovery to determine the "principle risks" of which the defendant was aware at the time the defendant made its forward-looking statements.
• Multiple non-public internal investigations on behalf of individuals and issuers regarding allegations of insider trading, revenue recognition, inventory discrepancies, whistleblower claims and other securities related matters.

Representative Fiduciary Duty/Merger and Acquisition Litigation

• Aileen McKenna, et al. v. Capital Resource Partners, IV, L.P. and Loyaltyworks (Georgia Superior Court) (Georgia Court of Appeals) (Supreme Court of Georgia) Represented two directors and their affiliated venture funds in an action brought by certain minority shareholders of Loyaltyworks, Inc., alleging breach of fiduciary duty, self-dealing, and breach of contract, among other claims.  After dismissal of plaintiffs’ breach of fiduciary duty and related claims, we succeeded in winning summary judgment on the remaining breach of contract claim.  After extensive appellate practice, the case settled very favorably, with our clients acquiring the minority stockholders’ shares. 
• A. David Maroko, et al. v. Robert W. Howe, et al. (Massachusetts Superior Court; Suffolk County - Business Litigation Session) Represented certain directors of Atlantic Data Services, Inc. (ADS) in an action recently brought as a purported class action by certain stockholders of ADS alleging breaches of fiduciary duty in connection with our client’s “going private” acquisition of ADS’ publicly held shares.  Settled favorably with no consideration paid to any member of the purported class.   
• White, et al. v. Galley, et al.(Connecticut Superior Court, Bridgeport Div.) Represented certain current and former directors of Mercator Software, Inc. in a shareholder derivative action alleging breach of fiduciary duty and mismanagement in connection with the company’s restatement of financial results. Settled favorably with no consideration paid to any member of the purported class.
• S&A Biotech v. Baruch, et al. (California Superior Court, Santa Clara County) (California Court of Appeal, Sixth Appellate Dist.) Represented defendant director in a shareholder derivative litigation alleging breach of fiduciary duty and corporate waste against all directors in connection with a transaction that plaintiffs contended was grossly unfair to the shareholders.  The minority shareholders were seeking in excess of $60 million in damages.  Obtained summary judgment for our client after limited discovery, which was affirmed after hearing by the Court of Appeal. 
• Krim v. Discreet Logic, et al. (California Superior Court, Marin County) (California Court of Appeals, First Appellate Dist.) Represented company and certain directors in an action brought by former shareholders alleging breach of fiduciary duty in connection with the company’s acquisition by Autodesk, Inc.  Successfully obtained dismissal, prior to discovery, of the company and several individual defendants, including a successful writ petition to the Court of Appeal, and eventually a stipulation of voluntary dismissal of the balance of the defendants, with prejudice, with no payment of any kind to plaintiffs. 
• BTR v. Norton (Massachusetts Superior Court, Worcester County) Represented financial advisor to BTR in hostile takeover of Norton Co.  Litigation involved efforts to invalidate defensive devices implemented by Norton and efforts to enjoin consummation of transaction with French white knight. 
• Mills Acquisition Co. v. MacMillan Inc. (Delaware Court of Chancery) (Delaware Supreme Court) Represented bidder in hostile takeover battle for control of MacMillan Inc.  Litigation involved successful efforts on appeal to enjoin and invalidate lock-up agreement between MacMillan and rival bidder, KKR.  KKR had made a competing offer that was shown to be inadequate and the product of breaches of duty of care and loyalty by the board of MacMillan.  KKR’s lock-up sought to prematurely end the auction for MacMillan.  Client became successful acquiror.

Representative Intellectual Property Litigation

• Travel Sentry, Inc. v. David A. Tropp (U.S. District Court, Eastern District of New York) Representing Travel Sentry who seeks a declaration that it does not infringe any valid claim of two patents held by Tropp covering a method of improving airline luggage screening.  After discovery and Markman proceedings, we moved for summary judgment on grounds of non-infringement, invalidity and unenforceability.  The court granted our motion on non-infringement grounds and dismissed Tropp’s infringement claims, with prejudice. Tropp’s appeal to the Federal Circuit is pending. 
• David A. Tropp v. Conair Corporation, et al. (U.S. District Court, Eastern District of New York) Representing Conair and several of the other defendant manufacturers/retailers who are accused of infringing two patents held by Tropp covering a method of improving airline luggage screening.  After successfully limiting discovery to just written discovery, we obtained summary dismissal of Tropp’s claims on grounds of non-infringement. Tropp recently filed a notice of appeal to the Federal Circuit.
• Clock Spring, L.P. v. Wrapmaster, Inc., et al. (U.S. District Court, Southern District of Texas) (U.S. Court of Appeals, Federal Circuit) Represented the defendants in two consolidated cases filed by Clock Spring, L.P. alleging claims of patent infringement, false advertising, unfair competition, and civil conspiracy.  The plaintiff contended that Wrapmaster's method for pipe repair infringed on its patent, and that Wrapmaster engaged in false advertising by making erroneous comparisons between their competing pipe wrap products.  We successfully obtained summary judgment on the false advertising, unfair competition, and civil conspiracy claims, as well as summary judgment on invalidity of the patent.  Both orders of dismissal were affirmed on appeal, after hearing, by the Federal Circuit.
• Prince v. Candela Laser Corporation (U.S. District Court, District of Massachusetts) Represented Candela in connection with a patent inventorship dispute commenced by Dr. Prince, an alleged co-inventor of the three patents-in-suit.  Settled favorably before trial. 
• Re-Source America, Inc. v. Republic Packaging Corp. (U.S. District Court, Northern District of Illinois) Represented patent holder asserting two patents against a competitor.  After expedited discovery, the case was tried to the court, which found in favor of our client, Re-Source, upheld the validity of the patents, found the defendant to have willfully infringed, and awarded all damages sought and attorneys’ fees.
• Intra-Video, Inc. v. Hughes Electronics Corp. and General Instrument Corp. (U.S. District Court, Southern District of New York) Represented accused infringer General Instrument Corp. in connection with a patent covering pay-per-view cable television devices.  Successfully settled after fact discovery with minimal royalty payment and a fully paid-up worldwide license covering all of plaintiff’s technology.
• Re-Source America, Inc. v. American Recycling Manufacturing Co. (U.S. States District Court, Western District of New York) (U.S. Court of Appeals for the Federal Circuit) Represented patent holder Re-Source America, who asserted two more recently issued patents against a competitor.  Successfully settled with up front settlement payment to Re-Source America and ongoing royalty stream from ARM under a license.  The parties litigated a follow-on dispute under the License Agreement, in which the trial court found for our client, and the Federal Circuit recently affirmed. 
• Ivoclar Vivadent Inc. v. Hasel and ABCO Research, LLC (U.S. District Court, Western District of New York) (U.S. District Court, District of Minnesota) Represented plaintiff in a declaratory judgment action filed against patentee, seeking a declaration that certain of plaintiff’s dental replacement products do not infringe any valid claims in three of defendant’s patents.  Settled favorably before discovery and trial with a minimal royalty and license granted to Ivoclar.
• Entegris, Inc. v. Re-Source America, Inc. (U.S. District Court, District of Minnesota) Represented patentee, Re-Source America, in patent infringement action asserting five patents against Entegris.  Settled favorably after fact discovery with Entegris purchasing a license to Re-Source America’s patented technology.

Representative Complex Commercial Cases

• National Medical Care, et al. v. Home Medical of America, et al. (Massachusetts Superior Court, Middlesex County) Represented corporate purchasers of over $105 million in accounts receivable assets from a national medical services company in a complex breach of contract, fraud and deceptive trade practices litigation arising out of the transaction.  Case settled very favorably after fact and expert discovery, with no payment required by our clients. 
• General Instrument Corporation v. D&D Electronics, et al. (U.S. District Court, District of Massachusetts) Represented a leading manufacturer of cable television set top boxes in an action alleging unlawful use and sale of pirated set top boxes.  After bench trial, court awarded judgment in favor of our client, General Instrument, in the amount of $245,750,000. 
• Davis v. Computer Devices, Inc. (Massachusetts Superior Court, Middlesex County) Represented software and hardware manufacturer in connection with a former employee’s theft of customer lists and other trade secrets.  Preliminary injunction ordered against Davis, preventing Davis’ use and required the return of all customer information and other trade secret information. 
• Equity Resource Fund v. Summit Tax Exempt LLP II, et al. (Massachusetts Superior Court, Suffolk County) (Massachusetts Appeals Court) Represented defendant limited partnership in connection with plaintiff limited partner’s efforts to obtain books and records of the partnership so that it could commence a coercive tender offer for the remaining shares.  After an injunction ordering our client to turn over the records was issued by the Superior Court, we successfully appealed on an emergency basis to a single justice of the Appeals Court, which reversed the lower court’s order.  Thereafter, plaintiff voluntarily dismissed its case. 

Presentations

• Numerous speeches and panels on IP litigation, Securities litigation; deposition practice; Federal court practice at Massachusetts Continuing Legal Education, Boston Bar Association, and ALI-ABA conferences.

Publications

• Co-Author, “Supreme Court: SEC Must File Enforcement Actions Within Five Years of Alleged Fraud,” One Minute Memo, Seyfarth Shaw LLP (March 8, 2013)
• Co-Author, “Supreme Court Rejects Amgen’s Bid to Raise Bar for Investors in Securities Class Actions,” One Minute Memo, Seyfarth Shaw LLP (March 5, 2013)
• “Baseball Players Find Ally in SEC Lawsuit,” The Washington Times (July 28, 2009)

Press

• Quoted in “SEC Political Spending Rule Could Spur Investor Suits” Law360 (January 18, 2013)