Foley Hoag LLP

Medical Device Class Action

We defended a modest-sized orthopedic device manufacturer faced with a federal court national class action lawsuit involving the company’s hip implant. The plaintiffs’ own implants had not failed but plaintiffs claimed the implant had an excessive failure rate and violated implied warranties, the Massachusetts unfair and deceptive practices statute and similar statutes of other states. Plaintiffs claimed class members had been harmed because the implants were not worth what the class members had paid for them.

To try to spare the company the expense of prolonged litigation, we moved to dismiss the suit immediately. We argued that under the law of the state in which plaintiffs resided, and Massachusetts law, they had not suffered any legal injury because their implants were functioning properly. Our arguments under Massachusetts law were based on interpretations of several decisions by the state’s highest court, in almost all of which we had represented either a party or an amicus curiae (friend of the court). The court accepted our arguments and dismissed the suit.

Asbestos National Counsel

For a number of years we have been national counsel to a major valve manufacturer facing hundreds of asbestos suits involving tens of thousands of plaintiffs in at least 18 different states. Many of the claims involve serious injury or death from respiratory cancers that are linked to asbestos exposure, at least at certain doses. Companies faced with such litigation have frequently decided to conduct a brief defense and then settle, to avoid both further litigation costs and the risk of a judgment greater than the available settlement.

After we investigated the critical scientific and medical literature, our client determined not to adopt the “traditional” strategy, believing the scientific data would not support an adverse verdict and settling meritless claims only encouraged more suits. By thoroughly probing the basis for plaintiffs’ claims, moving for summary judgment and principled negotiating, we have resolved hundreds of suits without payments.

Pharmaceutical Class Action

We defended a major pharmaceutical company against a state court national class claiming the company had committed unfair and deceptive practices and breached patient privacy. The client had contracted with a national pharmacy chain to send informational mailings to customers who, according to the chain’s database, had been prescribed the client’s medication. Plaintiffs also sued the pharmacy chain and several other pharmaceutical companies that had independent agreements with the chain.

After initial discovery, we defeated recognition of a national class, convincing the court that the different issues posed by claims under various states’ laws far outweighed any common issues. Later, we disqualified plaintiffs and their counsel from even representing a class of Massachusetts patients, and ultimately won summary judgment against all remaining individual claims.

Chemical Manufacturer Lawsuit

We defended a major chemical manufacturer in a multi-defendant federal court suit claiming a worker had suffered permanent asthma, lung damage and total disability from automotive spray paints. Acting as defendants’ lead counsel, we were skeptical of plaintiff’s deposition testimony that he had not had any significant symptoms or sought medical treatment until less than three years before he sued, i.e., within the statute of limitations.

After obtaining all of plaintiffs’ known medical records, we spotted a single word that led us to a prior physician whom plaintiff had not mentioned in his testimony and of whom his current treating physician was unaware. We then obtained that doctor’s records, which revealed a lengthy history of prior similar symptoms that plaintiff himself attributed to his work. We therefore moved for summary judgment based on the statute of limitations and for dismissal as a sanction for plaintiff’s perjury, as it represented a fraud on the court. Our victory on both grounds was upheld on appeal.

Defending and Prosecuting Design-Related Claim

After successfully defending the Massachusetts Housing Finance Authority from a contractor’s design-related claims in arbitration, Foley Hoag brought a winning summary judgment motion against the project’s designer to enforce a contractual indemnification clause and recoup the lion’s share of the authority’s defense costs.

Foley Hoag Clears Way for Senior Financial Services Executive

In one of the few decisions in the country on the enforceability of “garden leave” notice provisions, lawyers in Foley Hoag’s Litigation Department recently secured a favorable outcome for a senior-level financial executive whose former employer sought to block his departure from the company. In a recent ruling by Judge Nathaniel M. Gorton, U.S. District Judge for the District of Massachusetts, the employer’s motion for a preliminary injunction was denied. Partners Michael Boudett and Michael Rosen represented the client, the former head of the Boston office of Bear Stearns. Bear Stearns alleged that the executive violated his employment contract by failing to give 90-days’ notice before departure and by seeking to persuade clients and staff to follow his move to a competitor. In the ruling, Judge Gorton noted that plaintiff’s allegations of misappropriation of confidential information and interference with contractual and business relationships was unsubstantiated. Further, the Foley Hoag team was successful in proving that Bear Stearns would not be subject to irreparable harm with the departure of this executive. Widely covered by national financial media, the case is now pending before an arbitration panel before the Financial Industry Regulatory Association (FINRA).

Global Bio-Chem Technology Group Company Limited

Our lawyers, in conjunction with Adduci, Mastriani & Schaumberg LLP and East Associates, represented Global Bio-Chem Technology Group Company Limited and its affiliates (GBT), the largest lysine producer in China and the largest vertically integrated corn-based biochemical manufacturer in Asia, which prevailed after an evidentiary hearing before the United States International Trade Commission (USITC) in a patent infringement investigation brought by Ajinomoto Heartland LLC and Ajinomoto Co., Inc. (Ajinomoto). In a ruling in July 2008, the Administrative Law Judge (ALJ) held that the claims of Ajinomoto’s two patents were invalid for failure to disclose the best mode of practicing the invention, thus finding no violation of Section 337 of the Tariff Act of 1930. The ALJ also ruled that both patents were unenforceable because Ajinomoto had committed inequitable conduct.

KVH Industries

Our lawyers recently secured a key patent win for longtime client KVH Industries, a Rhode Island-based provider of in-motion satellite television and communication systems, in addition to navigation and guidance products. A jury in the U.S. District Court in Minnesota returned a verdict in favor of KVH that the company was not liable for infringing King Controls' U.S. Patent 6,864,846 involving satellite switching technology because the asserted claim of the patent was invalid over prior art presented by KVH at trial. The win clears the way for KVH to continue sales of its leading TracVision® line of in-motion satellite television products used around the world on boats, automobiles, recreational vehicles, trucks and buses.

Apex v. DiMauro

Our lawyers represented one of the oil company defendants in the Apex v. DiMauro litigation. The case involved allegations of an antitrust and commodities fraud conspiracy among a number of heating oil companies that had traded contracts on the New York Mercantile Exchange.

In re Imprimis v. KPMG LLP

Defended Big Four firm in defense of hedge fund fraud, negligent misrepresentation and c. 93A claims, obtaining summary judgment, resulting in a summary judgment decision and related decision striking "settlement affidavit," reported at 19 Mass. L. Rep. 51 and 19 Mass. L. Rep. 26 (2005) and an Appeals Court decision affirming summary judgment at 69 Mass App. Ct. 218 (2007).

In re Raytheon Company Securities Litigation

Our lawyers successfully represented a Big Four accounting firm in a federal securities class action, with a decision granting a motion to dismiss for the accounting firm reported in In re Raytheon Co. Securities Litigation, 157 F. Supp. 2d 131 (D. Mass. 2001).

Nicaragua v. the United States of America (Case Concerning Military and Paramilitary Activities In and Against Nicaragua)

We represented Nicaragua in this historic proceeding, which resulted in a decision condemning the United States for its military, logistical and financial aid to counterrevolutionary forces attempting to overthrow the Government of Nicaragua, and for the mining of Nicaraguan harbors by U.S. intelligence forces.

A Major FTC Investigation

Our lawyers represented a major automotive distributor in a Federal Trade Commission (FTC) investigation alleging conspiracy to restrict the importation of goods into the United States.

Completing a Design-Build Highway

When a contractor’s business failure stalled progress on Massachusetts’ first ever design-build project, Foley Hoag led a team of experts on behalf of the Massachusetts Highway Department in a multi-party mediation to close out the project and resolve a $100 million claim for pennies on the dollar.

Defending Allegations of Illegal Kickbacks

Our lawyers successfully defended an individual who was the target of a federal grand jury investigation on allegations that he and his company paid illegal kickbacks to physicians to encourage the purchase of kidney dialysis supplies. We successfully prevented charges from being brought against him.

Defending Companies against Federal Healthcare Fraud Allegations

Our client, an international pharmaceutical company, was a subject of several complex federal healthcare fraud investigations concerning various practices allegedly implicating the federal health care anti-kickback statute. We investigated the facts surrounding the government's allegations, interviewed witnesses and analyzed the voluminous documents obtained by the government, and were able to demonstrate to the government that our client did not violate the anti-kickback statute in any of the investigations. Ultimately, our client was not charged criminally or civilly or otherwise penalized.

Defending our Public Transportation

Using sophisticated critical-path analyses, our lawyers defended a public transportation authority against delay and disruption claims for signal work on the authority’s commuter rail and subway lines. In one case, we reduced a $15 million claim by roughly 75 percent after four days of mediated negotiations.

Guyana v. Suriname

Our lawyers represented Guyana in this proceeding under the Convention on the Law of the Sea (Annex VIII) to delimit the maritime boundary between the two neighboring countries. The arbitration resulted in a victory for Guyana, which was awarded the vast majority of the maritime area in dispute, including all of the area where significant oil deposits are believed to exist.

Protecting Individuals from Allegations of Federal Healthcare Fraud

Our client, a senior executive at a large international pharmaceutical company, was a subject of a complex, wide-ranging criminal and civil healthcare fraud investigation. During the nearly three-year investigation, the government explored various theories of culpability including use of an unauthorized medical device, violations of the anti-kickback statute and off-label promotion. We were able to demonstrate legal and factual inaccuracies and weaknesses in the legal basis for the government's evolving theories. Ultimately, our client was not charged criminally or civilly or otherwise penalized.

Providing Counsel to a Chemical Manufacturing Giant

Our lawyers defended a major chemical manufacturer in an action involving contamination at a 150- year-old waterfront facility against claims for property damage and cleanup cost recovery. We obtained a complete dismissal of the property damage claim, and, after a trial, obtained a favorable judgment on the allocation of future cleanup costs.

Providing Counsel to a Retail Giant

We successfully defended a national specialty retailer in an enforcement action initiated by the Massachusetts Attorney General regarding the retailer’s discounting claims and compliance with consumer protection laws.

QLT

We represented QLT in complex patent and trade secret litigation arising out of a collaboration among QLT, Massachusetts Eye and Ear Infirmary, and Massachusetts General Hospital that led to the development of photodynamic therapeutic treatment for age-related macular degeneration. We obtained a district court order correcting inventorship to add QLT’s scientist to the patent, leading to a stipulated dismissal.

Rapid Response Yielding a Positive Outcome

Our client, a high tech manufacturer and government contractor, was the subject of a defense department investigation and parallel qui tam false claims action. Our rapid response to the first inkling of the government’s inquiry, coupled with a swift and thorough internal investigation to develop the facts, allowed us to demonstrate to the government that the client had not misrepresented its products to the defense department, resulting in the complete vindication of the company and dismissal of the qui tam action.

Setting a Precedent with Chicago Bridge & Iron Co.

We served as Chicago Bridge & Iron Co.’s lead trial and lead appellate counsel in a precedent-setting case arising from the alleged environmental liability of a policyholder from wood treating operations of a former affiliate. Our lawyers won a $6 million judgment after trial, which was affirmed on appeal, in a frequently cited opinion holding that the policyholder was entitled to recover “all sums” under each triggered policy, rather than mere pro-rated amount.

Settling Generator Parties

Our lawyers played a leading role in negotiating a $20 million settlement with federal and state governments on behalf of the settling generator parties. We currently serve on the executive committee, which is implementing the cleanup at the site. Although the generator parties are the most numerous, the settlement we achieved required that the federal and local governments pay the lion’s share of cleanup costs.

Stone & Webster Securities Litigation

We successfully defended a national accounting firm in a federal securities class action, resulting in a motion to dismiss as reported in In re Stone & Webster, Inc. Securities Litigation, 253 F. Supp. 2d 102 (D. Mass. 2003).

Successful High-stakes Patent Defense

Our lawyers were victorious as counsel to Johns Hopkins University, Baxter Healthcare Corporation, and Becton Dickinson and Company in a closely watched biotechnology patent litigation against CellPro, Inc., enabling our clients to successfully enforce monoclonal antibody and stem cell technology patents