A federal judge denied a motion to dismiss by Metropolitan Property & Casualty Insurance Company and the Commerce Insurance Company in a civil RICO case. PSD represents a large plaintiffs’ law firm. The firm brought claims against the insurance companies asserting that they improperly imposed prohibitions on healthcare providers’ cooperation with insurance claims by patients. As alleged, the insurance companies also purported to give criminal releases to those providers in return for those restraints, indicating that the insurers threatened the use of criminal charges in a civil context. The federal court found that the allegations stated plausible claims. Also, the federal court found agreed with PSD that the insurance carriers had inappropriately tried to combine multiple briefs in order to avoid page limitations.
The Court’s decision can be found here: 10 Order on Motions to Dismiss Counterclaims and to Strike
In a hotly contested RICO case, a PSD client won a motion to compel on several grounds. In the process, the federal court ruled that Plaintiffs Metropolitan Property & Casualty Insurance Company and the Commerce Insurance Company violated the Order governing an e-discovery protocol. Specifically, these insurance carriers did not allow their vendor to participate in efforts to resolve e-discovery issues. Metropolitan’s and Commerce’s lawyers had argued that they did not want to put their vendors in the position of being cross-examined. The federal court rejected that position. In so doing, the federal court held that Metropolitan’s and Commerce’s “refusal to allow participation by their vendors in the meet and confer process violates both the spirit and the letter of the December 20, 2017 Order Governing E-Discovery Protocol.”
On August 31, 2018, PSD resolved an international child abduction case in favor of its client, a father in Brazil. In so doing, PSD reunited its client, Carlos Ferrari, with his young daughter. About a year earlier, the 5-year old girl’s mother had taken her from Brazil to Massachusetts. At the time, Carlos understood the trip would be a thirty-day visit. Once in the U.S., the mother texted Carlos that she would not return their daughter to Brazil. Instead, the mother stated she would remain in the U.S. with her new husband.
PSD Brings International Child Abduction Case
Led by partners Peter Duffy and Phil Rakhunov, the PSD team filed an international child abduction case in federal court. Invoking the Hague Convention on the Civil Aspects of International Child Abduction, the petition sought a return of Carlos’s daughter to Brazil. After an initial hearing, PSD promptly obtained a resolution to send the parties’ daughter back to Brazil under a Consent Order with a parenting plan. Subsequently, Carlos expressed that he was “eternally grateful” to PSD for being reunited with his daughter after more than a year apart. PSD filed the case in federal court in the District of Massachusetts, styled as Ferrari v. Ottone, 18-cv-10599-ADB (D. Mass.).
As a background matter, the Hague Convention constitutes a multilateral treaty developed through the Hague Conference on Private International Law. The treaty provides an expeditious method to return a child who has been removed or retained internationally by a parent from one member country to another. Participating nations reached the treaty in 1980 and it went into force in 1983. The treaty can facilitate the prompt return of children who have been removed or retained from their country of habitual residence.
PSD Boston and New York class action lawyers won their opposition to a motion to dismiss before Chancellor Bouchard in the Delaware Chancery Court. PSD represents a medical device innovator, Ken Carr, who is the corporate founder of a medical device technology company. Carr suffered dilution of his holdings and the effects of a blown warrant sale to a major manufacturer. The court issued the 62-page Memorandum Opinion on March 26, 2018.
Novel Corporate Law Issues
The case presented several novel issues of Delaware law. In its written opinion, the Court rejected the suggestion by defense counsel that warrants cannot trigger Revlon duties. The court also found demand on the board excused as futile. As a result, the court left in the case both direct and derivative claims.The lengthy ruling keeps the majority stockholder group and certain affiliates of it in the case. The court will likely soon set a schedule for class action briefing and a trial.
The court explained: “Equity-Link and Binks support the proposition that it would be appropriate to
apply the intermediate scrutiny of Revlon, at least in certain circumstances, to evaluate a board’s decision to grant a third-party an option to acquire control of a corporation, as opposed to a decision to sell the corporation outright. Indeed, if that were not the case, a party could seek to evade the special protections Revlon affords stockholders through creative structuring of a transaction (e.g., an unconditional, immediately exercisable option to purchase the entire company) that in substance is equivalent to an outright sale of the corporation. That would be an absurd result.”
The case involves warrants priced in the tens of millions of dollars. The warrants had exercise prices and threshold payments that involve more than $100 million.
Lead Counsel
Boston and New York class action lawyers, and PSD founding partners, Barry Pollack and Joshua Solomon have served as lead counsel for Carr. Pollack argued the motion back in December 2017.
Boston probate litigation lawyer wons a trust contest. PSD founding partner Peter Duffy won dismissal of all claims by a beneficiary to change a family trust. Specifically the petitioner sought to treat as an heir, under the trust, a man he adopted as an adult.
Adopted Adult Son
The petitioner sought to permit his adopted son—whom he adopted as an adult—to succeed to his interest in his grandfather’s trust. Some family members challenged the petitioner’s ability to seek an advisory opinion. Consequently, Petitioner sought confirmation that his adopted son would stand in the petitioner’s shoes after his death. Of particular note, the petitioner had no biological children. As a result, he hoped adoption of the adult would allow him to pass along his interest in his grandfather’s trust. If not, his shares would go to his siblings and their heirs.
Boston Probate Litigation Lawyer Wins Trust Contest
Petitioner asked the court to modify the family trust or declare that petitioner’s adopted son may inherit his share of the Trust. Duffy argued that, in order for the inheritance to happen, certain precipitating events must transpire. Specifically, the Trust provided for its own termination twenty-one years following the deaths of several named individuals. Hence, certain individuals must die, and the Petitioner must perish before twenty-one years passed following their deaths. In a 12-page opinion, titled In re Phillips Trust, the court found the action premature because certain conditions had not occurred. The court explained that these conditions constituted prerequisites to an actual controversy. Furthermore, the court rejected the petitioner’s effort to amend the Trust because only some, not all, beneficiaries consented to the relief.
PSD Boston Probate Attorneys
With lawyers in Boston and New York, PSD represents clients in probate matters that include trust disputes and family law actions. These matters often involve custody issues and business valuations. PSD has significant experience in international child abduction and custody matters. Also, PSD represents individuals and businesses in high-stakes cases. These matters include private equity and hedge funds, securities transactions, False Claims Act issues, healthcare matters, and employment disputes. In this matter, Boston Probate litigation lawyer won a trust contest among family members.
False Claims Act Lawyers Move to Dismiss
Boston false claims act lawyers, led by Barry Pollack, won dismissal of qui tam case in Maryland.
On March 6, 2018, the United States District Court for the District of Maryland dismissed a qui tam action brought by a former employee against a PSD client. The plaintiff claimed that she was fired after reporting Form I-9 deficiencies to her supervisor. In a 21-page opinion, the court rejected all claims.
The court dismissed Count I, which attempted to plead a violation of the False Claims Act. The court found a lack of sufficient allegations of falsity and materiality. In doing so, the court agreed with defendants that it could consider the forms at issue. Defendants submitted blank versions of the forms to the motion to dismiss.
The court noted: “Because Potter has not contested the authenticity of these forms and they are integral to Potter’s Complaint, the Court considers them.” In its analysis, the court explained that, while allegations of false certifications of compliance can suffice , “the compliance at issue must be ‘a prerequisite’ to securing the government funding ….’” As a result of the limited items that CASA certified, the court found that Potter failed to allege a false certification. Also, the court held that, “[b]ecause the Complaint does not show how CASA’s failure to disclose its 1-9 noncompliance would have influenced the government’s funding decisions, Potter has not adequately demonstrated materiality.” The court dismissed the case without prejudice in light of Potter’s complaint predating a recent Supreme Court decision. But the court noted skepticism about Potter’s ability to state a claim.
Also, the court dismissed Count II, which attempted to plead a conspiracy to violate the FCA, agreeing with defendants. The court stated that “Potter’s conspiracy claim turns on the same factual basis … as her substantive FCA claim.”
A copy of the decision can be found here: 180307-opinion-dismissing-claims
Retaliation Claim Dismissed
In its decision, the court also dismissed Count III, which attempted to plead a retaliation claim under the FCA. The court found that Potter based her retaliation claim on reporting Form I-9 deficiencies. This did not trigger the statutory protection because she did not allege retaliation for raising potential FCA claims. In addition, the court found that Potter’s allegations failed to show an objectively reasonable belief that a claim under the FCA might proceed. Again the court allowed Potter to try to replead., but again expressed skepticism. The court cautioned that “according to Defendants’ Reply, Potter’s DOJ disclosure focused on CASA’s supposed violations of immigration law rather than fraud under the FCA.” The court continued, “to the extent Defendants are correct, Potter cannot cure her FCA retaliation claim ….”
New York and Boston False Claims Act Lawyers at PSD
PSD is a litigation law firm with a national focus and lawyers in Boston and New York. PSD’s areas of focus include private equity and hedge fund litigation, healthcare matters, white collar criminal defense, employment disputes. PSD also represents clients in probate court cases including family law, wills, trusts, and international child abduction/custody matters. In this matter, PSD’s Boston false claims act lawyers won dismissal of qui tam action. For further information about Boston false claims act lawyers, visit PSD’s website.
On February 9, 2018, the Business Litigation session in Charlotte, North Carolina dismissed all claims against a New York private equity fund, represented by PSD, arising from allegations brought by a software company as it was trying to enter the healthcare services market. In a 47-page opinion, the court found that, despite the fund’s stated objective to invest in a roll-up of North Carolina businesses, the actual investment in a North Carolina holding company, and the roll-up of North Carolina businesses, the plaintiff failed to prove a basis for personal jurisdiction in North Carolina over the fund. The court also dismissed most of the claims against a related management company, expressing skepticism and serious questions about the viability of the remaining claims in light of the evidence the court reviewed on the personal jurisdiction issues. The plaintiff in this matter remains subject to contract claims by the management company pending in New York Supreme Court. PSD attorneys Barry Pollack, Peter Duffy and Eric Baginski worked on the motions.
PSD attorneys Barry Pollack and Peter Duffy won both sides of cross-motions for summary judgment, along with an affirmative grant in their client’s favor in a commercial real estate dispute pending in federal court in the District of Massachusetts. In one written decision, the federal judge found that PSD’s client, 58 Swansea Mall Drive, LLC produced sufficient evidence to go to trial on not only breach of contract claims, but also claims based on the breach of the duty of good faith and fair dealing and under 93A for unfair and deceptive acts by an affiliate of a national real estate developer known as Gator. The judge focused on an email that PSD uncovered in discovery from Gator’s CEO instructing its general counsel that they were “okay following” the parties’ lease “if” an agreement to certain land use were reached. Prior to the summary judgment ruling, PSD won several discovery motions that led to the creation of a privilege log and the production of such materials for an in camera inspection. PSD’s client won the issue that the instruction from Gator’s CEO was not a privileged communication designed to obtain legal advice. In a separate written decision, PSD’s client won an affirmative grant of summary judgment in its favor on its claim for declaratory relief that it was able to use a particular pylon sign in compliance with its lease, resulting also in the dismissal of Gator’s entire counterclaim. The only claims of 58 Swansea that the court dismissed were those that it no longer pursued or that became moot because of the passage of time. The federal judge also rejected Gator’s argument that 58 Swansea had not demonstrated its damages.
On July 28,2017, Barry Pollack won an acquittal on all charges in a federal criminal case in Boston. PSD’s client was the CEO of one of the largest international Bluefin tuna dealers. The charges included alleged smuggling, falsifying records and conspiracy. During the trial, Pollack uncovered significant government misconduct, including pressure on government witnesses to implicate PSD’s client, threats that caused a defense witness to refuse to testify, and efforts by the government to take inconsistent factual positions that deviated from its representations to a federal judge in the Eastern District of New York who accepted guilty pleas from three other individuals involved in the events at issue. The unanimous 12-person jury returned a verdict of Not Guilty on each and every charge for the five counts pending against PSD’s clients, in less than a full hour of deliberation. Pollack was quoted in several news stories on his win.
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