Litigation & Trial

In a victory for consumers and the ride-hailing public, the Massachusetts Supreme Judicial Court recently barred the Secretary of State from placing on the November ballot initiative petitions proposed by companies such as Uber, Lyft, and Doordash that sought to insulate them from liability for automobile accidents and other wrongs committed by their drivers. The consumers were represented by Thomas Bean and Sarah Grossnickle from Verrill Dana LLP and M. Patrick Moore from Hemenway & Barnes LLP.

The Court held that the initiative petitions did not meet the requirement in Article 48 of the Massachusetts Constitution that ballot questions to include only subjects “which are related or which are mutually dependent.” The Court held that the petitions failed the “related subjects” requirement because they contained “at least two substantively distinct policy decisions.” The initiative petitions sought to classify drivers for rideshare and delivery companies as independent contractors and provide certain minimum compensation and benefits. But “buried in obscure language at the end of the petitions” were provisions that also narrowed the scope of tort recovery for third parties, including those who may have been injured in traffic accidents caused by the negligence of app-based drivers, or even sexually assaulted by them.

The Court noted that voters may “strongly approve of better wages and benefits for drivers struggling to make ends meet in the gig economy, but at the same time strongly oppose limiting their own rights to recover money damages from network companies if the tortious actions of drivers who provide services through those companies’ platforms cause them injury.” The Court concluded, “[p]etitions that bury separate policy decisions in obscure language heighten concerns that voters will be confused, misled, and deprived of a meaningful choice -- the very concerns that underlie art. 48's related subjects requirement.”

The decision is El Koussa v. Attorney General, Mass., No. SJC-13237.

Represented small biotech company and two academic researchers against large pharmaceutical company in dispute over inventorship of several patents relating to mesenchymal stem cells and their uses, as well as defending against numerous state law claims regarding alleged improper use of information; co-lead counsel; responsible for damages experts and substantial responsibility for state law claims; examined (and cross examined) multiple witnesses in one of the first Zoom bench trials in Massachusetts; prevailed on all state law claims, including a finding that defendants were not entitled to any monetary compensation.

Represented many companies over the years in patent litigations brought by numerous non-practicing entities, including in U.S. District Courts for the Eastern District of Texas, District of Delaware and Northern District of California; aggressively pursued early motions and uncovered key prior art that led to favorable settlements for his clients.

Represented large semiconductor manufacturer in an ITC investigation and parallel district court proceeding in U.S. District Court for the Northern District of Illinois, defending against two patents owned by a competitor relating to microelectromechanical systems (MEMS) microphones; instrumental in prevailing in a rare initial determination proceeding (akin to a preliminary injunction hearing), in which an administrative law judge found the competitor's patents were invalid, and then in proving invalidity at full merits hearing; ITC affirmed both invalidity determinations.

Represented large golf equipment manufacturer in case in U.S. District Court for the District of Massachusetts against numerous golf ball sellers over patents relating to aerodynamics of golf balls; defeated a motion to dismiss and obtained favorable settlements with all defendants early in proceedings.

Defended large golf equipment manufacturer against competitor who alleged that several golf clubs infringed a patent; obtained summary judgment of non-infringement for all golf clubs and claims from U.S. District Court for the Eastern District of New York, defended decision on appeal to the U.S. Court of Appeals for the Federal Circuit, and obtained second summary judgment of non-infringement after initial decision was partially vacated on appeal.

Represented company that developed speech-to-text software in action against large software company for patent infringement; successfully transferred case from E.D. Tex. to D. Mass; obtained favorable claim construction ruling; and matter settled after business resolution between the parties.

Represented company that provides intelligent video monitoring products who sued larger competitor for infringement of patent related to video monitoring and for theft of trade secrets in U.S. District Court for the Central District of California; case settled favorably during fact discovery after Mr. Stern took key deposition of engineering employee of defendant.

Defended large manufacturer and reseller of telecommunications equipment against copyright infringement, breach of contract and misappropriation of trade secret claims involving Simple Network Management Protocol (SNMP) in numerous cases filed in U.S. District Court for the District of Delaware and U.S. Bankruptcy Court for the District of Delaware; was responsible for the day-to-day conduct of all cases, took and defended numerous fact and expert depositions, and was instrumental in filing summary judgment and Daubert motions, as well as numerous other pretrial motions; all cases were settled within days of trial of lead case.

Represented large international manufacturer and seller of telecommunications equipment to all major wireless providers against a supplier in a breach of contract, theft of trade secrets and unfair competition action brought in the Commercial Division of the New York State Supreme Court, a case in which the plaintiff brought two separate preliminary injunction motions to stop our client from selling key hardware and software that is instrumental in sending data over Code-Division Multiple Access (CDMA) wireless networks; the case was settled favorably during a hearing on second preliminary injunction when it became clear that plaintiffs motion was unlikely to succeed.