PSD Welcomes New Partner Susan Cooke

PSD is proud to welcome new Partner Susan Cooke who is an experienced investigator, securities laws advisor, civil litigator, and trial attorney. Susan has an exceptional collection of accomplishments in government investigations, securities matters, and jury trials. During a prolific career as a trial, senior trial, and enforcement counsel with the SEC, she spearheaded litigations involving complex fraud and compliance issues, with a focus on matters in the asset management, health care, and life sciences industries. Susan secured a jury verdict in a first-of-its-kind case concerning the fiduciary obligations of registered investment advisers selling insurance products, won a federal insider trading trial for the SEC after an acquittal in the parallel criminal case, and obtained a jury verdict on all claims in a trial against the CFO of a publicly traded biotech company for fraudulently concealing negative developments involving the FDA.

Susan leads PSD’s Private Equity, Hedge Fund, and Founder Litigation practice area.

PSD filed an unfair competition claim by a large plaintiffs’ law firm against a self-proclaimed “national firm” that has described its nerve center as a call center. Coverage appeared in the Boston Globe, Lawyers Weekly, Law360, Boston Business Journal, the Insurance Journal, and Channel 5

In its new edition, Chambers & Partners has named PSD as one of five top boutique firms in the Boston area that focuses on white collar defense.

After a series of victories and developments that resulted in the dismissal of each and every charge of money laundering, violations of the Anti-Kickback Statute, and conspiracy charges, PSD’s client, on August 6, 2025, the CEO of a medical device company known as SpineFrontier, received a sentence of time served of one day, followed by 12 months of supervised release. The CEO resolved the matter, pending in the United States District Court for the District of Massachusetts, for a single reduced charge of making one false statement to CMS in which a payment was classified as a consulting payment when consulting services had not been received. Federal prosecutors lost their arguments to the Court seeking the maximum term of incarceration under the sentencing guidelines, focusing their arguments on the totality of problems in the health care industry rather than on the limited evidence in the record against the CEO. The proceedings exhausted years of efforts by the government involving more than a half-dozen present and former federal prosecutors who faced several motions during the course of the case based on grounds of government misconduct.

Despite the dismissed charges in the Indictment and a Superseding Indictment having exposed defendants and their company to decades of incarceration and tens of millions of dollars in fines, the Court imposed only a $9,500 fine on the CEO. All charges against SpineFrontier were dismissed.

PSD founding partner and former federal prosecutor, Barry Pollack, is an honoree included in the 2026 edition of Best Lawyers.

At a hearing on December 12, 2024, Vice Chancellor Laster denied a motion seeking the dismissal of claims by PSD’s client, FESI Holdings, Inc. Instead, the Court granted FESI’s motion for a stay pending the resolution of a related New York action.

As reflected in the transcript, the Court considered claims by FESI alleging that, in or about July 2020, defendants concealed the acquisition of a lucrative government contract to provide lead Covid testing services statewide, while proceeding with an equity issuance. The Vice Chancellor consider how these events impacted the value expectable in connection with later foreclosure efforts, stating “I’d increase the value you get based on the value of the company as of the foreclosure date. … you would be getting an amount of money that would reflect both your dilution and whatever the value of the company is as of the foreclosure date. So why can’t the New York court do that?”). When delivering its rulings, the Delaware court found likely value in FESI’s claims in that court, which could be factored into damages in favor of FESI in the related New York action:  “I do think there’s likely good information-based claims relating to the equity issuance. I do think there’s likely a disclosure claim that would be grounded in the implied covenant of good faith and fair dealing. That claim would run against the company for the alleged failure to identify a material contract at the time you are requesting stockholder action. For similar reasons, I think there’s likely a breach of fiduciary duty claim that runs against the controller relating to that transaction. …So it was a request for members to make an investment decision. And it seems to me that there would be some type of disclosure obligation that applies in that setting either under the implied covenant running to the company or under fiduciary duty principles running against the controller.”

The Delaware court sided with PSD’s suggestion that the New York court resolve the entire dispute among the parties, if possible, and the Vice Chancellor explained, in the following pertinent excerpts, how any remaining claims by FESI would revert back to the Delaware action:

But if all that was really being transferred was the economic right to proceeds from the company and not also the litigation right, then you wouldn’t fully value the plaintiff’s interests. You would only be partially valuing the plaintiff’s interests. So I think that’s a critical question that I at least would be thinking about. Again, the New York court may have its own approach, and I’m not trying to step on my judicial colleague’s toes.

Now, if it is true that in New York the court would value both the economic interest in the entity and the value associated with the dilution claim, either assuming a successful challenge or discounting it for risk, then I don’t think there’s anything left for me to do. I think at that point the plaintiff would have received full relief. And because the plaintiff can’t get a double recovery, we’d be done. And as far as I’m concerned, that would be great.

But now let’s think about a different world where New York only values the sale of the economic interests and says that whether this dilution claim was problematic under Delaware law is something that the Delaware court ought to deal with. At that point, I think it would be incumbent on me to try to value this claim or to let the claim be litigated so that the result could be incorporated in the damages remedy. And the value would be allocated based on the interest that the plaintiff would have owned but for the dilutive transaction.

As I suggested during colloquy, if I was going to just cut to the chase on this and if the sale was not good, I’d start by looking back in time and seeing if there was an actionable claim in terms of the dilution. I tend to think there is because of disclosure issues I’ve already told you about. As a remedy for that, I would likely reallocate the ownership so that the plaintiff owned more. Let’s just stop with the concept of “more.” I would then value the company, and I would give the plaintiff his proportionate share of the value of the company based on the “more.”

Barry Pollack and John Yokow lead the representation of FESI Holdings.

PSD represents the Nantucket Wine & Food Festival against Gordon Companies, Inc., and others related to their public claim of having acquired or taken over the festival. Pursuant to an Order dated December 12, 2024, a federal court in Boston directed certain defendants to make corrective disclosures over the same forms of press releases and emails by which they announced that they “acquired” Plaintiffs’ festival, that they “rebranded” it, that they would “continue” the “longrunning” event, or that their event was “previously known as” the Nantucket Wine & Food Festival. The Order required that they send the following corrective disclosure to each and every recipient to which they sent the Industry Email, the Customer Email, the Media Release, and the Industry Release, as those terms are defined in the Court’s Memorandum & Order, as well as to post this corrective disclosure on the allegedly offending website:

Pursuant to an Order of the U.S. District Court for the District of Massachusetts dated December 13, 2024, the Gordon Companies hereby discloses that, in June of 2024, the Gordon Companies sent out press releases and emails stating or suggesting that the Gordon Companies had acquired and rebranded the Nantucket Wine & Food Festival under new management. There was never any acquisition, rebranding, or new management of the Nantucket Wine & Food Festival. Any similar event previously announced by the Gordon Companies bears no relation to the Nantucket Wine & Food Festival. The long-running Nantucket Wine & Food Festival continues to operate. As previously announced by the Nantucket Wine & Food Festival, the annual tradition will continue May 14 – 18, 2025, under the leadership of its longtime Executive Director Nancy Bean. For more information, please visit www.nantucketwinefestival.com.

In a battle in Florida state court on behalf of several emergency medicine management groups in insurance coverage disputes based on an alleged pattern of underpayments, PSD prevailed in an e-discovery battle based on arguments over the significance of data in hit reports they demanded. Counsel for BCBS of FL argued that the hit reports showed 245,000 documents to review and continued, “I don’t know how many pages that is, but it’s obviously orders of magnitude beyond that, which would cost an arm and a leg to review,” raising objections based on proportionality, need, and purportedly “non-existent relevance.” The Court sided with PSD, ruling that its position “does not seem unreasonable” given the complexity of the case and the regular role that ESI plays.

December 15, 2023

Segway Inc., known for its personal transportation devices, brought a claim for breach of fiduciary duty against its former President. On December 14, 2023, the Delaware Chancery Court dismissed the action. According to the 12-page decision, Segway experienced declining sales of its personal transportation devices and an allegedly inordinate increase in accounts receivable. According to Segway, accounting irregularities were concealed.

In light of exculpation provisions in the corporate charter, Segway disavowed the duty of care as a basis for its claim, instead opting to rely on the duty of oversight, known as a Caremark claim. The decision labeled Segway’s position “distressing,” and explained the law on Caremark claims: “Liability can only attach in the rare case where fiduciaries knowingly disregard this oversight obligation and trauma ensues.” The court further stated, “Despite a proliferation of modern jurisprudence, bad faith remains a necessary predicate to any Caremark claim” and “Segway’s attempt to hold a corporate officer accountable for unexceptional financial struggles flouts these enduring principles.”

Barry Pollack, Peter Duffy, and Lauren Riddle represented the defendant.

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