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COMMONWEALTH OF MASSACHUSETTS
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SUFFOLK, SS. i SUPERIOR COURT DEPARTMENT
| BUSINESS LITIGATION SESSION
CIVIL ACTION NO. 2084-CV-02375-
BLS1
TRANSFORMATIVE HEALTHCARE, INC.
and FALLON AMBULANCE SERVICES, LLC,
Plaintiffs,
PARICK SEAN TYLER and RANDSECO, LLC,
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DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF |
THEIR MOTION FOR SUMMARY JUDGMENT ~*
While Plaintiffs’ Complaint spins a tale of corporate sabotage and deccit,! there simply is
no evidence to support any of the claims asserted therein. Because Plaintiffs have no reasonable
expectation of proving those claims, summary judgment dismissing the Complaint should enter.
UNDISPUTED FACTS?
Patrick Sean Tyler (“Mr. Tyler”) has been a leader in the EMS (emergency medical
services) and ambulance communities for over,25 years.? Among the many prestigious positions
he has held and honors he has received are the following:
* In 2000, after acting as an EMT (emergency medical technician) for the City of Boston
and as a paramedic for the South Shore’ Hospital, Mr. Tyler became a member of the
1 While the Court has not ruled on Plaintiffs’ unopposed Motion for Leave to File an Amended Complaint,
Defendants’ Motion for Summary Judgment treats the Proposed Amended Complaint as the operative “Complaint”
in this action. The Complaint is included as Exhibit 3. All Exhibits are included in the Appendix of Exhibits
submitted herewith,
2 Defendants admit the facts set forth herein, and in the parties’ Joint Statement of Facts (“SOF”), solely for
the purposes of their Motion for Summary Judgment. Defendants reserve the right to dispute any or all such facts in
any other context,
3 Exhibit 1, 72. 11
Metropolitan Boston Emergency Medi¢al Services Council, Inc., an agency designated
by the Department of Public Health to coordinate the delivery of emergency medical
services within the sixty-one cities and jtowns comprising the Metropolitan Boston Area.
In 2012, Mr. Tyler was named Chairman of the Board and President of that organization,
a position he still holds today. ,
« In 2011, Mr. Tyler was appointed by Governor Deval Patrick to the Commonwealth’s
911 Commission, an organization providing advice on all matters regarding enhanced
911 services in the Commonwealth. Mr. Tyler held that position for more than seven
years.4
In January of 2001, Mr. Tyler became Executive Vice President and Chief Operating
Officer of Fallon Ambulance Services, Inc. (“Fallon”).> Mr. Tyler was not asked to agree to a
non-compete, non-solicitation or other restrictive covenant agreement with Fallon at that time,
nor did he ever agree to one thereafter.° Further, not being bound by any such restrictive
covenants was very important to Mr. Tyler.”
In or about 2015, Mr. Tyler formed Randseco, LLC (“Randseco”), a company that
deploys integrated software solutions to bridge various communication gaps between healthcare
providers, such as hospitals, and those who transport patients, such as ambulance companies.®
Not only was Timothy Fallon, Fallon’s CEO, fully aware that Mr. Tyler had started Randseco,
but Mr. Fallon executed a contract with Randseco that gave Fallon a license to use Randseco’s
software (the “Randseco-Fallon Agreement”).?
In 2018, Fallon was acquired by Transformative Healthcare, Inc. (“Transformative”), and
Mr. Tyler was named President and CEO of Transformative.!° Thereafter, Transformative,
Randseco, and Transformative’s largest client, Partners HealthCare (which later became known
Exhibit 1, § 2.
SOF, { 1 and Exhibit 1, 73.
Exhibit 1, 94.
it, 14, and Exhibit 2.
it 3,9] 15 and Exhibit, 75.i
as Mass General Brigham) (collectively, “Partiers/MGB”) began working on a project to allow
Randseco’s software to communicate directly with Partners/MGB’s electronic medical records
system.!! The purpose behind this project was fo make Fallon’s deployment of ambulances for
Partners/MGB even more efficient and effective.!2
The software that Randseco was developing in connection with this project was known as
the “Integration Software.” Further, while Plaintiffs allege that Partners/MGB misunderstood
who actually was developing the Integration Software, Mr. Tyler and Randseco’s point of
'
contact for Partners/MGB, Daniel Starvish (Mr. Starvish”), always were clear that Randseco,
and not Fallon or Transformative, was responsible for developing the Integration Software. '+
By the beginning of 2020, Mr. Tyler had become unhappy with how Transformative was
operating and he entered into discussions with its Executive Chairman, Charles Lelon (“Mr.
Lelon”), and President, Richard Spencer (“Mr..Spencer”), about transitioning out of the
company.'5 Once the Covid-19 crisis hit and threatened to destroy Fallon’s business, however,
Mr. Tyler agreed to suspend those discussions. '® In fact, Mr. Tyler conceived and implemented a
wholly new business for Fallon that revolved around mobile testing for Covid-19.!7 While Fallon
still struggled over the next several months, thé mobile testing business was an enormous
success, and Fallon likely would have gone out of business if Mr. Tyler had not implemented
it'8 ‘
n SOF, 75 and Exhibit 1, 15. '
2 SOF, ¥ 6 and Exhibit 1, 15.
3 SOF, J 7; Exhibit 3, [ 55. '
u SOF, { 8, Exhibit 1, {| 6, Exhibit 4, 43. '
5 SOF, 19 and Exhibit 1, 7. '
6 SOF, J 10 and Exhibit 1, 97. :
” SOF, 11 and Exhibie1, 18. '
ag SOF, ] 12 and Exhibit 1, 78. 'In the summer of 2020, Mr. Tyler renewed discussions with Messrs. Lelon and Spencer
about transitioning out of Transformative, and ihe informed them on August 20 that while he
intended to resign, he would agree to a short stay package in order to ensure a smooth
transition.'? On September 4, Mr. Tyler told Messrs. Lelon and Spencer what it would take for
him to stay in his position at Transformative for another 90-135 days, and that if they could not
agree to binding terms, he would resign, effective September 11.7° The parties continued their
discussions, and on September 19, Mr. Tyler sent a term sheet for his transition, and one of the
provisions therein was a $28,000 signing bonus due upon acceptance of the terms in the term
sheet, which Transformative paid.?! On September 30, however, Mr. Tyler was sent a draft
agreement from Transformative that included an overly broad restrictive covenant that was
completely unacceptable him.” Mr. Tyler was' upset with this because he had been very clear
that he would not agree to any restrictive covenant.” He then emailed a response that outlined
acceptable terms and stated that if Transformative did not agree to them by October 6, his
resignation would be effective on October 7.74
Because Mr. Tyler did not receive a response to his email, he assumed his terms had been
rejected, his resignation was effective and he sent a farewell email to all Fallon employees after
the close of business on October 6.”> Because virtually none of those employees have Fallon
email addresses, Mr. Tyler needed to download the company roster to obtain their contact
information, which he did.6 At no time, however, did Mr. Tyler download or delete any Fallon
» SOF, 7 13 and Exhibit 1, 19.
20 SOF, § 14 and Exhibit 1, J 10.
2 SOF, J 15 and Exhibit 1, { 10.
2 SOF, 16 and Exhibit 1, 7 11.
3 SOF, 117 and Exhibit 1, 7 11. !
a SOF, {18 and Exhibit 1, ] 11.
8 SOF, {19 and Exhibit 1, ] 12.
6 SOF, § 20 and Exhibit 1, ] 12.or Transformative confidential information except in the ordinary course of his work for
Plaintiffs)?” '
Over the next few days, Mr. Tyler participated in several slack channel communications
with Mr. Starvish and Robert Thompson, Randseco’s Chief Technology Officer (“Mr.
Thompson”), venting their frustrations about how difficult Transformative had been to work
with.?5 Notwithstanding anything in those communications, none of them actually took any
actions that could have negatively impacted the Plaintiffs’ ability to use their computers or
access Randseco’s software.?
ARGUMENT
Where, as here, the party moving for stimmary judgment does not have the burden of
proof at trial, a prima facie showing of summary judgment is made either by submitting
affirmative evidence to negate any essential element of an opponent’s case or by
“demonstrat[ing] that proof of [any such] element is unlikely to be forthcoming at trial.” Flesner
v. Tech, Comme’ns Corp., 410 Mass. 805, 809 (1991); see also Kourouvacilis v. Gen, Motors
Corp., 410 Mass. 706, 716 (1991) (‘A party moving for summary judgment in a case in which
the opposing party will have the burden of proof at trial is entitled to summary judgment if [it]
demonstrates ... that the party opposing the motion has no reasonable expectation of proving an
essential element of that party’s case.”); Butcher v. Univ. af Mass., 483 Mass. 742, 747 (2019).
At best, Plaintiffs have come forward with “vague and general allegations of expected
proof,” which is insufficient to stave off summary judgment. Cmty. Nat'l Bank v. Dawes, 369
Mass. 550, 555-556 (1976). Put another way, Plaintiffs have failed to come forward with
a SOF, (21 and Exhibit 1, § 12.
8 SOF, § 22, Exhibit 1, ] 13, Exhibit 4, 4/4, and'Exhibit 5, 43.
» SOF, § 23, Exhibit 1, ] 13, Exhibit 4, 44, and Exhibit 5, § 3.evidence from which they could prove all of the essential elements of any of the claims in their
Complaint. As such, “a fair-minded jury could'[not] return a verdict [in their favor,]” and
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summary judgment should enter. F/esner, 410, Mass. at 809.
L Mr. Tyler Is Entitled To Summary Judgment On Count I, Alleging Breach of
the Duty of Loyalty
In order to prevail on their claim that Mr. Tyler breached his duty of loyalty, Plaintiffs
would have to prove that he engaged in disloyal conduct that caused Plaintiffs to suffer damages.
Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 164 (1999); see also Augat, Inc. v. Aegis,
Inc., 409 Mass. 165, 175 (1991) (‘The plaintiffs must prove that losses ... sustained would not
have occurred but for Greenspan’s breach of his duty of loyalty.). In this regard, Plaintiffs
specify Mr. Tyler’s supposed breaches of his duty of loyalty as:
* Conspiring to sabotage Fallon’s computer system;
* Causing Fallon’s largest customer (Partners/MGB) to terminate its relationship
with Fallon;
* Downloading and deleting Fallon’s confidential information;
* Accepting a payment from Transformative in bad faith; and
* Failing to ensure that (i) Fallon’s Medical Director was paid, and (ii) certain
operational licenses for 2020 were renewed in a timely manner.
Complaint, § 75-77.
Notwithstanding these allegations, Plaintiffs have no evidence (i) that Mr. Tyler engaged
in such conduct, and/or (ii) that such conduct caused Plaintiffs to suffer any harm. As such,
Plaintiffs cannot prove essential elements of their claim of breach of the duty of loyalty, and
summary judgment on Count I should enter as a matter of law. See Kourouvacilis, 410 Mass. at
716 (“A party moving for summary judgment in a case in which the opposing party will have the
burden of proof at trial is entitled to summary judgment if he demonstrates, . . . that the partyopposing the motion has no reasonable expectation of proving an essential clement of that
party’s case.”); see also Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
A. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Conspiring
To Sabotage Fallon’s Computer System
While Mr. Tyler does not dispute that he, Mr. Thompson, and Mr. Starvish discussed
various vulnerabilities in Fallon’s computer system, there is not a shred of evidence that Mr.
Tyler (or anyone at his direction or on his behest) took any actions that impeded Fallon’s
computer system from functioning and/or caused any of the problems Plaintiffs allegedly
experienced with Randseco’s software in the fall of 2020. In fact, Fallon has not even specified
all of the problems, nor has it explained, on a technical level, from where they emanated.*°
Ultimately, Plaintiffs’ Rule 30(b)(6) designee, Mr. Lelon, was forced to admit that the
only “facts” Plaintiffs have indicating that Mr. Tyler was responsible for the problems Fallon
experienced with Randseco’s software are the slack channel discussions and the lack of evidence
that someone else was responsible. See Transcript of the Deposition of Charles Lelon (“Lelon
Tr.”), excerpts from which are included as Exhibit 8, at pp. 63-64; Exhibit 6, ]5.°! Plainly,
however, software malfunctions every day for reasons other than sabotage, and there is nothing
to suggest any of those myriad other reasons was not the cause of the problems Plaintiffs
experienced. As such, Fallon’s allegation that Mr. Tyler was responsible is pure conjecture —
30 The only specific problem Plaintiffs detail in the Complaint is that in the fall of 2020, instead of a drop-
down menu displaying, the phrase “Hahaha” appeared. Complaint, 7 42. While Plaintiffs would have this Court
infer that Mr. Tyler caused this malfunction, Mr. Thompson explained the facts surrounding the issue at his
deposition. See Transcript of the Deposition of Robert Thompson, excerpts from which are included as Exhibit 7, at
pp. 133-142; Exhibit 6, Affidavit of Shepard Davidson,,{| 4. Specifically, Mr. Thompson testified that in 2018 —
long before any disputes between the parties arose — he wanted to imbed something in Randseco’s “StatCall”
software to notify him if the code was malfunctioning. Ultimately, he revised StatCall so that it would display
“Hahaha” if a major code malfunction occurred. Mr. Thompson testified that he has no idea why “Hahaha” appeared
in the fall of 2020 when Plaintiffs sought to use StatCall, and there is no evidence that he, Mr. Tyler and/or anyone
else associated with Randseco was responsible for that happening.
3 Mr. Lelon testified as the Rule 30(b)(6) designee of both Transformative and Fallon. See Exhibit 8, at pp.
8-10,which is not evidence that can be considered on summary judgment. See, e.g., King’s Case, 352
Mass. 488, 491 (1967) (testimony “will be disregarded where it amounts to no more than
speculation or a mere guess from subordinate facts”) (internal citation omitted); Toubianna v.
Priestly, 402 Mass. 84, 91 (1988) (an opinion that is “a mere guess or conjecture ... in the form
of a conclusion from basic facts that do not tend toward that conclusion any more than toward a
contrary one has no evidential value.”); see also In re JFD Enter., Inc., 2000 WL 560189, *4 (1st
Cir. 2000) (dismissing a breach of fiduciary duty claim on summary judgment because plaintiff
had not submitted enough evidence of a causal link between the breaches and the losses, stating
“[cJorrelation alone, here as elsewhere, does not prove causation”); Redfern v. Howard, 2002
WL 1020661, *2 (Mar. 20, 2002) (citing Giraedi v. Gabriel, 38 Mass. App. Ct. 553, 558-59
(1995)) (causation can be resolved as a matter of law at the summary judgment stage if plaintiffs
will be unable to demonstrate causation at trial on their breach of fiduciary duty claim); Meehan
v. Shaughnessy, 404 Mass. 419, 439 (1989) (causation between breach of fiduciary duty and loss
is an essential element of the claim).
Accordingly, Plaintiffs cannot prove their claim that Mr. Tyler breached his duty of
loyalty to them by supposedly conspiring to sabotage Fallon’s computer system.
B. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By
Undermining Their Relationship With Partners/MGB
While Plaintiffs claim that Fallon lost its largest client (Partners/MGB) as a result of
various actions and inactions by Mr. Tyler, minimal scrutiny exposes this theory as utterly
baseless. There literally is no evidence that Partners/MGB ended its relationship with Fallon
because of anything Mr. Tyler did or did not do. Even the timeline of relevant events is
inconsistent with Plaintiffs’ position. Six months after Mr. Tyler teft Fallon, Partners/MGB
actually renewed or extended its contract with Fallon, and it was not until another six monthspassed that Partners/MGB ended its relationship until with Fallon. See Transcript of the
Deposition of Richard Spencer, excerpts from which are included as Exhibit 9, at pp. 166-167;
Exhibit 6, 1 6. Thus, the notion that Mr. Tyler was the proximate cause of destroying Fallon’s
relationship with Partners/MGB simply makes no sense, and Plaintiffs cannot prove their claim
that Mr. Tyler breached his duty of loyalty to them by undermining that relationship.
Cc Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Downloading
Or Deleting Transformative’s Confidential Information
Plaintiffs allege in paragraph 75 of the Complaint that Mr. Tyler breached his duty of
loyalty to them by “deleting and downloading Transformative’s confidential information
regarding [Partners/MGB].” See Exhibit 3. In Fallon’s Interrogatory Answers, Fallon broadens
this allegation to include the contention that immediately prior to resigning, Mr. Tyler accessed
confidential information about Fallon’s employees. See Fallon’s Ambulance Service, LLC’s First
Supplemental Responses to Patrick Sean Tyler’s Second Set of Interrogatories (“Fallon’s Second
Interrogatory Answers”) a copy of which is included as Exhibit 10, at Answer No. 1; Exhibit 6
4/7. When Mr. Leton was asked at deposition to state the basis for Plaintiff's claim that Mr. Tyler
had downloaded and deleted information about Partners/MGB, his primary response was that
Plaintiff's forensic experts “confirmed that there had been a lot of deleting and downloading ....”
Exhibit 8, at pp. 91-92. Not only can such rank hearsay not be considered on summary
judgment,” but, even if it could, Mr. Lelon went on to acknowledge that this expert could not
tell what was deleted.?3 Id.
2 See Garside v, Osco Drug, Inc., 895 F.2d 46, 50 (Ist Cir. 1990) (Court refused to consider plaintiff's
interrogatory answer describing its expert’s opinion because “[a] third party's description of an expert's supposed
testimony is not suitable grist for the summary judgment mill.”); see also Billings v. GTFM, LLC, 449 Mass. 281,
295 (2007) (hearsay should be “disregarded in considering a motion for summary judgment ....’”) (quoting Shapiro
Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968, 968 (1976)).
Plaintiffs never produced any expert report, and the time to do so has expired.The only other “evidence” Plaintiffs offer to support their claim that Mr. Tyler deleted
emails is their observation that they found fewer emails between Mr. Tyler and Partners/MBG on
his hard drive than they would have expected. /d. Plainly, however, that is not evidence of
deletion. Indeed, Mr. Tyler has confirmed that he simply did not often communicate with
Partners/MGB via email — and that fact is undisputed. Exhibit 1, 14. Further, even if Mr.
Tyler had downloaded and/or deleted any such emails, Plaintiffs acknowledge that they have no
evidence that this caused them any harm. Exhibit 8, at pp. 96-97. See also Exhibit 10, at Answer
No. 2. Accordingly, the notion that Mr. Tyler breached his duty of loyalty by downloading or
deleting emails with Partners/MGB has no merit.
As far as Plaintiffs’ claim that Mr. Tyler accessed Fallon’s supposedly confidential
employee information, the only such information at issue is the company’s employee roster.
Exhibit 8, at pp. 93-94. While Mr. Tyler does not dispute that he did this, it is undisputed that he
only used such information to pull email addresses for his farewell email. /d. at 95-96. Moreover,
even if this could be construed as a breach of duty of loyalty, and Mr. Tyler respectfully suggests
that it could not, Plaintiffs have acknowledged that they are unable to identify any harm that
Fallon suffered as a result. Jd. at 97-98; see also Exhibit 10, at Answer No. 2. As such, any
downloading of Fallon’s employee roster also could not be considered a breach of the duty of
loyalty sufficient to defeat summary judgment. Orrall v. French, 2003 WL 25333415 (Feb. 19,
2003) (damages caused by breach of duty an essential element of the claim).
D. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Accepting
The $28,000 Signing Bonus Payment From Transformative
While Plaintiffs claim in the Complaint that Mr. Tyler breached his duty of loyalty by
accepting and not returning the $28,000 signing bonus (as part of a temporary “‘stay package”),
as Mr. Tyler has explained, that money was paid to secure an interim extension of his
10employment so that the parties could have time to work out the details of his severance
agreement. See Exhibit 1, 10. The signing bonus was due upon acceptance of the terms in the
term sheet. See Exhibit 1, { 10. Thus, Mr. Tyler had no obligation to return such funds. Indeed,
it is telling that Plaintiffs never made a demand on Mr. Tyler to return that money (Exhibit 8, at
128; Exhibit 1, 1 10), nor did they assert a claim for the return of this money in their original
complaint. See Dkt. No. 1. It was not until Plaintiffs sought leave to file their Amended
Complaint -— five months after Mr. Tyler had resigned from Transformative — that they first
conjured up the theory that retaining the signing bonus was a breach of the duty of loyalty.
Accordingly, Plaintiffs cannot prove their claim that Mr. Tyler breached his duty of
loyalty to them by accepting the $28,000 payment from Transformative.
E. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Failing To
Ensure That (i) FalJon’s Medical Director Was Paid And/Or (ii) Certain
Operational Licenses For 2020 Were Renewed
While Plaintiffs al/ege in paragraph 77 of the Complaint that Mr. Tyler breached his duty
of loyalty by failing to ensure that (i) Fallon’s Medical Director was paid, and (ii) certain
operational licenses were renewed, they provided no support for such allegations in response to a
clear interrogatory asking them to state the basis of such claims. See Exhibit 10, at Answer No.
1. As such, Mr. Tyler’s attestations that any delay in paying Fallon’s Medical Director and/or
renewing operational licenses was not the product of any actionable conduct by him stands
uncontradicted. Exhibit 1, 7 15. Further, even if there were evidence to the contrary (and there is
not), Plaintiffs have failed to come forward with any evidence that the delay in paying Fallon’s
4 Even if the Court were to accept, arguendo, that it was wrong for Mr. Tyler to retain the payment (which he
definitely disputes), at most that might give rise to a claim for breach of contract or quasi-contract/unjust
enrichment, which Plaintiffs have not pled. Such conduct simply cannot accurately be characterized as a breach of
an employee’s “duty of loyalty.”
11Medical Director and/or renewal of operational licenses caused Plaintiffs to suffer any damages.
See Exhibit 10, at Answer No. 1.
Finally, in this regard, Mr. Tyler notes that employees make mistakes and fail to perform
job duties all the time, and that does not, and cannot, automatically mean that those employees
breached their duty of loyalty to their employer. Thus, even if Mr. Tyler was negligent in failing
to ensure that Fallon’s medical director was paid and/or licenses were renewed in a timely
manner, there is no evidence that such conduct rose to the level of being a breach of the duty of
loyalty. See, e.g., Marks v. Southcoast Hosp. Grp., Inc., 2011 WL 13324016, *19 (Mass. Sup. Ct.
2011) (“A breach of a fiduciary’s duty is not established by mere errors of judgment or want of
prudence in the performance of their duties.”); Keres v. Mass. Mutual Life Ins. Co., 958 F. Supp.
2d 306, 311 (D. Mass. 2013) (the duties of loyalty and of care are of “reasonable intelligence”
and fiduciaries “cannot be held responsible for mere errors of judgment or want of prudence”);
see also Massachusetts Superior Court Civil Practice Jury Instructions, Volume II, Chapter 12
(2018 ed.) (noting in several places that “mere errors of judgment” or “lack of prudence” do not
constitute a breach of a fiduciary duty).
Accordingly, Plaintiffs could not prove their claim that Mr. Tyler breached his duty of
loyalty by failing to ensure that (i) Fallon’s Medical Director was paid and (ii) certain
operational licenses were renewed.
id. Randseco Js Entitled To Summary Judgment On Count I, Alleging Aiding And
Abetting Breach Of The Duty Of Loyalty
Plainly, if Mr. Tyler is not liable for breach of duty of loyalty, then Randseco could not
be liable for aiding and abetting such conduct. See Arcadi v. NAGE, Inc., 447 Mass. 616, 623-24
(2006) (one of the three elements for a claim of aiding and abetting a breach of fiduciary duty is
an actual breach of fiduciary duty). Thus, because, as set forth in Section II, supra, Mr. Tyler isnot liable for breach of duty of loyalty, summary judgment in Randseco’s favor on Count IT
should enter.
Ill. Defendants Are Entitled To Summary Judgment On Count ITT, Alleging
Tortious Interference With Contractual Or Advantageous Relations
Count III of the Complaint alleges that Mr. Tyler and Randseco tortiously interfered with
Plaintiffs’ business relationship with Partners/MBG. To prevail on such a claim a plaintiff:
[M]Just prove that (1) [it] had an advantageous relationship with a third party ... ;
(2) the defendant knowingly induced a breaking of the relationship; (3) the
defendant's interference with the relationship, in addition to being intentional,
was improper in motive or means; and (4) the plaintiff was harmed by the
defendant's actions.
Blackstone v. Cashman, 448 Mass. 255, 260 (2007) (emphasis added).
As discussed in Section II, supra, Plaintiffs simply have no evidence that Defendants’
conduct (i) induced Partners/MBG to break its business relationship with Fallon; (ii) was
improper in motive or means; and/or (iii) caused Plaintiffs to suffer any harm.
Accordingly, summary judgment in favor of Mr. Tyler and Randseco on Count III should
enter.
IV. Defendants Are Entitled To Summary Judgment On Count IV, Alleging
Misappropriation Of Trade Secrets
Count IV of the Complaint alleges that Mr. Tyler misappropriated Transformative’s trade
secrets in violation of M.G.L. c. 93, §42 and 18 U.S.C. §§1831-39.
To demonstrate misappropriation of trade secrets under Massachusetts law,
[Plaintiffs] must prove: (1) the information in question is a trade secret, (2)
[Plaintiffs] took reasonable steps to preserve the secrecy of that information, and
(3) [Mr. Tyler] “used improper means, in breach of a confidential relationship, to
acquire and use the trade secret.”
13Baystate Techs., Ine. v. Bentley Sys., Inc., 946 F. Supp. 1079, 1091 (D. Mass. 1996) (internal
quotation and citation omitted).**
When Transformative was asked to state the basis of this claim, it did not identify
anything that even remotely could be considered to be a trade secret. See Transformative
Healthcare Inc.’s First Supplemental Responses to Patrick Sean Tyler’s Second Set of
Interrogatories, a copy of which is included as Exhibit 11, at Answers | and 9; Exhibit 6, | 8.6
Thus, Plaintiffs have failed to establish the most fundamental element of a trade secrets claim —
I
that a trade secret exists.>”
Accordingly, summary judgment in favor of Mr. Tyler and Randseco on Count IV should
enter.
Vv. Defendants Are Entitled To Summary Judgment On Count V, Alleging That
They Violated The Computer Fraud And Abuse Act
Count V of the Complaint alleges that Defendants violated the Computer Fraud and
Abuse Act, 18 U.S.C. §1030 (“CFAA”),*® “[bly interfering with Transformative’s use of the
Randseco Software.” Complaint, 4108. As discussed in Section II(A), supra, however, Plaintiffs
6 18 U.S.C. §§1832(a) sets substantially similar elements of trade secrets misappropriation under federal law.
6 Massachusetts law requires evaluating the following factors to determine if something is a trade secret:
(1) the extent to which the information is known outside of the business; (2) the extent to which it
is known by employees and others involved in the business; (3) the extent of measures taken by the
employer to guard the secrecy of the information; (4) the value of the information to the employer
and to his competitors; (5) the amount of effort or money expended by the employer in developing
the information; and (6) the ease or difficulty with which the information could be properly acquired
or duplicated by others.
Jet Spray Cooler, Inc, v. Crampton, 361 Mass. 835, 840 (1972).
7 Even if Plaintiffs somehow can obviate this defect, they also have no evidence that any trade secret was
improperly acquired and used by Defendants. As such, for this reason, as well, summary judgment should enter,
38 Per 18 U.S.C. §1030(a)(5), it is a violation of the CFAA to:
a. knowingly causes the transmission of a program, information, code, or command, and as a result of
such conduct, intentionally causes damage without authorization, to a protected computer;
b. intentionally accesses a protected computer without authorization, and as a result of such conduct,
recklessly causes damage; or :
c. intentionally accesses a protected computer without authorization, and as a result of such conduct,
causes damage and loss.
14have no evidence from which they could establish that Defendants, in fact, interfered with
Transformative’s use of the Randseco Software.
Accordingly, summary judgment in favor of Mr. Tyler and Randseco on Count V should
enter.
VI. Randseco Is Entitled To Summary Judgment On Count VI, Alleging Breach Of
Contract
Count VI of the Complaint alleges that Randseco breached the Randseco-Fallon
Agreement by preventing Plaintiffs’ “use of the Randseco Software ....” Complaint, 117.
Again, as discussed in Section II(A), supra, Plaintiffs have no evidence from which they could
establish that Randseco prevented them from using its Software.
Accordingly, summary judgment in favor of Randseco on Count VI should enter.
VII. Randseco Is Entitled To Summary Judgment On Count VII, Alleging That It
Violated M.G.L. c. 93A
To prove that Randseco violated Chapter 93A, Plaintiffs would have to establish that (i)
Randseco engaged in deceptive or unfair acts or practices, and (ii) such conduct caused them to
suffer a loss of money or property. M.G.L. ¢. 93A, §§2 and 11. In this regard, the deceptive or
unfair acts or practices in which Plaintiffs claim Randseco engaged are: (i) interfering with
Transformative’s use of the Randseco software; (ii) using Transformative’s name and goodwill
to attempt to sell the Integration Software to current and potential customers of Transformative;
(ii) pressuring Transformative’s customers into requiring their ambulance vendors to adopt the
Integration Software; and (iv) severing Transformative’s relationship with Partners/MGB.
Complaint, ff 121-122.
Again, however, there simply is no evidence that Randseco engaged in such conduct
and/or that such conduct caused Plaintiffs to suffer a loss of money or property. Accordingly,
summary judgment in favor of Randseco on Count VII should enter.
15CONCLUSION
\
For all of the foregoing reasons, summary judgment should enter, dismissing this entire
action with prejudice.
Respectfully submitted,
PATRICK SEAN TYLER and
RANDSECO, LLC
By their attorneys,
sf Shepard Davidson
Shepard Davidson (BBO #557082)
sdavidson@burnsiev.com
Laura Lee Mittelman (BBO #689752)
Imittelman@burnslev.com
Burns & Levinson LLP
125 High Street
Boston, MA 02110
617-345-3000
Dated: January 19, 2022
CERTIFICATE OF SERVICE
I, Laura Lee Mittelman, hereby certify that on January 19, 2022 I served a true and
accurate copy of the foregoing document on the following counsel of record via email and U.S.
Mail.
Michael Boudett, Esq.
James Fullmer, Esq.
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA 02210-2600
mboudett@foleyhoag.com
jfullmer@foleyhoag.com
s/ Laura Lee Mittelman
Preview
PR ee COMMONWEALTH OF MASSACHUSETTS 1 SUFFOLK, SS. i SUPERIOR COURT DEPARTMENT | BUSINESS LITIGATION SESSION CIVIL ACTION NO. 2084-CV-02375- BLS1 TRANSFORMATIVE HEALTHCARE, INC. and FALLON AMBULANCE SERVICES, LLC, Plaintiffs, PARICK SEAN TYLER and RANDSECO, LLC, ) ) ) ) ) ve ) ) ) ) Defendants. ) ) ~ 5 = Sa = nN 2 oS i; = . Pa DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF | THEIR MOTION FOR SUMMARY JUDGMENT ~* While Plaintiffs’ Complaint spins a tale of corporate sabotage and deccit,! there simply is no evidence to support any of the claims asserted therein. Because Plaintiffs have no reasonable expectation of proving those claims, summary judgment dismissing the Complaint should enter. UNDISPUTED FACTS? Patrick Sean Tyler (“Mr. Tyler”) has been a leader in the EMS (emergency medical services) and ambulance communities for over,25 years.? Among the many prestigious positions he has held and honors he has received are the following: * In 2000, after acting as an EMT (emergency medical technician) for the City of Boston and as a paramedic for the South Shore’ Hospital, Mr. Tyler became a member of the 1 While the Court has not ruled on Plaintiffs’ unopposed Motion for Leave to File an Amended Complaint, Defendants’ Motion for Summary Judgment treats the Proposed Amended Complaint as the operative “Complaint” in this action. The Complaint is included as Exhibit 3. All Exhibits are included in the Appendix of Exhibits submitted herewith, 2 Defendants admit the facts set forth herein, and in the parties’ Joint Statement of Facts (“SOF”), solely for the purposes of their Motion for Summary Judgment. Defendants reserve the right to dispute any or all such facts in any other context, 3 Exhibit 1, 72. 11 Metropolitan Boston Emergency Medi¢al Services Council, Inc., an agency designated by the Department of Public Health to coordinate the delivery of emergency medical services within the sixty-one cities and jtowns comprising the Metropolitan Boston Area. In 2012, Mr. Tyler was named Chairman of the Board and President of that organization, a position he still holds today. , « In 2011, Mr. Tyler was appointed by Governor Deval Patrick to the Commonwealth’s 911 Commission, an organization providing advice on all matters regarding enhanced 911 services in the Commonwealth. Mr. Tyler held that position for more than seven years.4 In January of 2001, Mr. Tyler became Executive Vice President and Chief Operating Officer of Fallon Ambulance Services, Inc. (“Fallon”).> Mr. Tyler was not asked to agree to a non-compete, non-solicitation or other restrictive covenant agreement with Fallon at that time, nor did he ever agree to one thereafter.° Further, not being bound by any such restrictive covenants was very important to Mr. Tyler.” In or about 2015, Mr. Tyler formed Randseco, LLC (“Randseco”), a company that deploys integrated software solutions to bridge various communication gaps between healthcare providers, such as hospitals, and those who transport patients, such as ambulance companies.® Not only was Timothy Fallon, Fallon’s CEO, fully aware that Mr. Tyler had started Randseco, but Mr. Fallon executed a contract with Randseco that gave Fallon a license to use Randseco’s software (the “Randseco-Fallon Agreement”).? In 2018, Fallon was acquired by Transformative Healthcare, Inc. (“Transformative”), and Mr. Tyler was named President and CEO of Transformative.!° Thereafter, Transformative, Randseco, and Transformative’s largest client, Partners HealthCare (which later became known Exhibit 1, § 2. SOF, { 1 and Exhibit 1, 73. Exhibit 1, 94. it, 14, and Exhibit 2. it 3,9] 15 and Exhibit, 75.i as Mass General Brigham) (collectively, “Partiers/MGB”) began working on a project to allow Randseco’s software to communicate directly with Partners/MGB’s electronic medical records system.!! The purpose behind this project was fo make Fallon’s deployment of ambulances for Partners/MGB even more efficient and effective.!2 The software that Randseco was developing in connection with this project was known as the “Integration Software.” Further, while Plaintiffs allege that Partners/MGB misunderstood who actually was developing the Integration Software, Mr. Tyler and Randseco’s point of ' contact for Partners/MGB, Daniel Starvish (Mr. Starvish”), always were clear that Randseco, and not Fallon or Transformative, was responsible for developing the Integration Software. '+ By the beginning of 2020, Mr. Tyler had become unhappy with how Transformative was operating and he entered into discussions with its Executive Chairman, Charles Lelon (“Mr. Lelon”), and President, Richard Spencer (“Mr..Spencer”), about transitioning out of the company.'5 Once the Covid-19 crisis hit and threatened to destroy Fallon’s business, however, Mr. Tyler agreed to suspend those discussions. '® In fact, Mr. Tyler conceived and implemented a wholly new business for Fallon that revolved around mobile testing for Covid-19.!7 While Fallon still struggled over the next several months, thé mobile testing business was an enormous success, and Fallon likely would have gone out of business if Mr. Tyler had not implemented it'8 ‘ n SOF, 75 and Exhibit 1, 15. ' 2 SOF, ¥ 6 and Exhibit 1, 15. 3 SOF, J 7; Exhibit 3, [ 55. ' u SOF, { 8, Exhibit 1, {| 6, Exhibit 4, 43. ' 5 SOF, 19 and Exhibit 1, 7. ' 6 SOF, J 10 and Exhibit 1, 97. : ” SOF, 11 and Exhibie1, 18. ' ag SOF, ] 12 and Exhibit 1, 78. 'In the summer of 2020, Mr. Tyler renewed discussions with Messrs. Lelon and Spencer about transitioning out of Transformative, and ihe informed them on August 20 that while he intended to resign, he would agree to a short stay package in order to ensure a smooth transition.'? On September 4, Mr. Tyler told Messrs. Lelon and Spencer what it would take for him to stay in his position at Transformative for another 90-135 days, and that if they could not agree to binding terms, he would resign, effective September 11.7° The parties continued their discussions, and on September 19, Mr. Tyler sent a term sheet for his transition, and one of the provisions therein was a $28,000 signing bonus due upon acceptance of the terms in the term sheet, which Transformative paid.?! On September 30, however, Mr. Tyler was sent a draft agreement from Transformative that included an overly broad restrictive covenant that was completely unacceptable him.” Mr. Tyler was' upset with this because he had been very clear that he would not agree to any restrictive covenant.” He then emailed a response that outlined acceptable terms and stated that if Transformative did not agree to them by October 6, his resignation would be effective on October 7.74 Because Mr. Tyler did not receive a response to his email, he assumed his terms had been rejected, his resignation was effective and he sent a farewell email to all Fallon employees after the close of business on October 6.”> Because virtually none of those employees have Fallon email addresses, Mr. Tyler needed to download the company roster to obtain their contact information, which he did.6 At no time, however, did Mr. Tyler download or delete any Fallon » SOF, 7 13 and Exhibit 1, 19. 20 SOF, § 14 and Exhibit 1, J 10. 2 SOF, J 15 and Exhibit 1, { 10. 2 SOF, 16 and Exhibit 1, 7 11. 3 SOF, 117 and Exhibit 1, 7 11. ! a SOF, {18 and Exhibit 1, ] 11. 8 SOF, {19 and Exhibit 1, ] 12. 6 SOF, § 20 and Exhibit 1, ] 12.or Transformative confidential information except in the ordinary course of his work for Plaintiffs)?” ' Over the next few days, Mr. Tyler participated in several slack channel communications with Mr. Starvish and Robert Thompson, Randseco’s Chief Technology Officer (“Mr. Thompson”), venting their frustrations about how difficult Transformative had been to work with.?5 Notwithstanding anything in those communications, none of them actually took any actions that could have negatively impacted the Plaintiffs’ ability to use their computers or access Randseco’s software.? ARGUMENT Where, as here, the party moving for stimmary judgment does not have the burden of proof at trial, a prima facie showing of summary judgment is made either by submitting affirmative evidence to negate any essential element of an opponent’s case or by “demonstrat[ing] that proof of [any such] element is unlikely to be forthcoming at trial.” Flesner v. Tech, Comme’ns Corp., 410 Mass. 805, 809 (1991); see also Kourouvacilis v. Gen, Motors Corp., 410 Mass. 706, 716 (1991) (‘A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if [it] demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.”); Butcher v. Univ. af Mass., 483 Mass. 742, 747 (2019). At best, Plaintiffs have come forward with “vague and general allegations of expected proof,” which is insufficient to stave off summary judgment. Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 555-556 (1976). Put another way, Plaintiffs have failed to come forward with a SOF, (21 and Exhibit 1, § 12. 8 SOF, § 22, Exhibit 1, ] 13, Exhibit 4, 4/4, and'Exhibit 5, 43. » SOF, § 23, Exhibit 1, ] 13, Exhibit 4, 44, and Exhibit 5, § 3.evidence from which they could prove all of the essential elements of any of the claims in their Complaint. As such, “a fair-minded jury could'[not] return a verdict [in their favor,]” and | summary judgment should enter. F/esner, 410, Mass. at 809. L Mr. Tyler Is Entitled To Summary Judgment On Count I, Alleging Breach of the Duty of Loyalty In order to prevail on their claim that Mr. Tyler breached his duty of loyalty, Plaintiffs would have to prove that he engaged in disloyal conduct that caused Plaintiffs to suffer damages. Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 164 (1999); see also Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 175 (1991) (‘The plaintiffs must prove that losses ... sustained would not have occurred but for Greenspan’s breach of his duty of loyalty.). In this regard, Plaintiffs specify Mr. Tyler’s supposed breaches of his duty of loyalty as: * Conspiring to sabotage Fallon’s computer system; * Causing Fallon’s largest customer (Partners/MGB) to terminate its relationship with Fallon; * Downloading and deleting Fallon’s confidential information; * Accepting a payment from Transformative in bad faith; and * Failing to ensure that (i) Fallon’s Medical Director was paid, and (ii) certain operational licenses for 2020 were renewed in a timely manner. Complaint, § 75-77. Notwithstanding these allegations, Plaintiffs have no evidence (i) that Mr. Tyler engaged in such conduct, and/or (ii) that such conduct caused Plaintiffs to suffer any harm. As such, Plaintiffs cannot prove essential elements of their claim of breach of the duty of loyalty, and summary judgment on Count I should enter as a matter of law. See Kourouvacilis, 410 Mass. at 716 (“A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, . . . that the partyopposing the motion has no reasonable expectation of proving an essential clement of that party’s case.”); see also Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Conspiring To Sabotage Fallon’s Computer System While Mr. Tyler does not dispute that he, Mr. Thompson, and Mr. Starvish discussed various vulnerabilities in Fallon’s computer system, there is not a shred of evidence that Mr. Tyler (or anyone at his direction or on his behest) took any actions that impeded Fallon’s computer system from functioning and/or caused any of the problems Plaintiffs allegedly experienced with Randseco’s software in the fall of 2020. In fact, Fallon has not even specified all of the problems, nor has it explained, on a technical level, from where they emanated.*° Ultimately, Plaintiffs’ Rule 30(b)(6) designee, Mr. Lelon, was forced to admit that the only “facts” Plaintiffs have indicating that Mr. Tyler was responsible for the problems Fallon experienced with Randseco’s software are the slack channel discussions and the lack of evidence that someone else was responsible. See Transcript of the Deposition of Charles Lelon (“Lelon Tr.”), excerpts from which are included as Exhibit 8, at pp. 63-64; Exhibit 6, ]5.°! Plainly, however, software malfunctions every day for reasons other than sabotage, and there is nothing to suggest any of those myriad other reasons was not the cause of the problems Plaintiffs experienced. As such, Fallon’s allegation that Mr. Tyler was responsible is pure conjecture — 30 The only specific problem Plaintiffs detail in the Complaint is that in the fall of 2020, instead of a drop- down menu displaying, the phrase “Hahaha” appeared. Complaint, 7 42. While Plaintiffs would have this Court infer that Mr. Tyler caused this malfunction, Mr. Thompson explained the facts surrounding the issue at his deposition. See Transcript of the Deposition of Robert Thompson, excerpts from which are included as Exhibit 7, at pp. 133-142; Exhibit 6, Affidavit of Shepard Davidson,,{| 4. Specifically, Mr. Thompson testified that in 2018 — long before any disputes between the parties arose — he wanted to imbed something in Randseco’s “StatCall” software to notify him if the code was malfunctioning. Ultimately, he revised StatCall so that it would display “Hahaha” if a major code malfunction occurred. Mr. Thompson testified that he has no idea why “Hahaha” appeared in the fall of 2020 when Plaintiffs sought to use StatCall, and there is no evidence that he, Mr. Tyler and/or anyone else associated with Randseco was responsible for that happening. 3 Mr. Lelon testified as the Rule 30(b)(6) designee of both Transformative and Fallon. See Exhibit 8, at pp. 8-10,which is not evidence that can be considered on summary judgment. See, e.g., King’s Case, 352 Mass. 488, 491 (1967) (testimony “will be disregarded where it amounts to no more than speculation or a mere guess from subordinate facts”) (internal citation omitted); Toubianna v. Priestly, 402 Mass. 84, 91 (1988) (an opinion that is “a mere guess or conjecture ... in the form of a conclusion from basic facts that do not tend toward that conclusion any more than toward a contrary one has no evidential value.”); see also In re JFD Enter., Inc., 2000 WL 560189, *4 (1st Cir. 2000) (dismissing a breach of fiduciary duty claim on summary judgment because plaintiff had not submitted enough evidence of a causal link between the breaches and the losses, stating “[cJorrelation alone, here as elsewhere, does not prove causation”); Redfern v. Howard, 2002 WL 1020661, *2 (Mar. 20, 2002) (citing Giraedi v. Gabriel, 38 Mass. App. Ct. 553, 558-59 (1995)) (causation can be resolved as a matter of law at the summary judgment stage if plaintiffs will be unable to demonstrate causation at trial on their breach of fiduciary duty claim); Meehan v. Shaughnessy, 404 Mass. 419, 439 (1989) (causation between breach of fiduciary duty and loss is an essential element of the claim). Accordingly, Plaintiffs cannot prove their claim that Mr. Tyler breached his duty of loyalty to them by supposedly conspiring to sabotage Fallon’s computer system. B. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Undermining Their Relationship With Partners/MGB While Plaintiffs claim that Fallon lost its largest client (Partners/MGB) as a result of various actions and inactions by Mr. Tyler, minimal scrutiny exposes this theory as utterly baseless. There literally is no evidence that Partners/MGB ended its relationship with Fallon because of anything Mr. Tyler did or did not do. Even the timeline of relevant events is inconsistent with Plaintiffs’ position. Six months after Mr. Tyler teft Fallon, Partners/MGB actually renewed or extended its contract with Fallon, and it was not until another six monthspassed that Partners/MGB ended its relationship until with Fallon. See Transcript of the Deposition of Richard Spencer, excerpts from which are included as Exhibit 9, at pp. 166-167; Exhibit 6, 1 6. Thus, the notion that Mr. Tyler was the proximate cause of destroying Fallon’s relationship with Partners/MGB simply makes no sense, and Plaintiffs cannot prove their claim that Mr. Tyler breached his duty of loyalty to them by undermining that relationship. Cc Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Downloading Or Deleting Transformative’s Confidential Information Plaintiffs allege in paragraph 75 of the Complaint that Mr. Tyler breached his duty of loyalty to them by “deleting and downloading Transformative’s confidential information regarding [Partners/MGB].” See Exhibit 3. In Fallon’s Interrogatory Answers, Fallon broadens this allegation to include the contention that immediately prior to resigning, Mr. Tyler accessed confidential information about Fallon’s employees. See Fallon’s Ambulance Service, LLC’s First Supplemental Responses to Patrick Sean Tyler’s Second Set of Interrogatories (“Fallon’s Second Interrogatory Answers”) a copy of which is included as Exhibit 10, at Answer No. 1; Exhibit 6 4/7. When Mr. Leton was asked at deposition to state the basis for Plaintiff's claim that Mr. Tyler had downloaded and deleted information about Partners/MGB, his primary response was that Plaintiff's forensic experts “confirmed that there had been a lot of deleting and downloading ....” Exhibit 8, at pp. 91-92. Not only can such rank hearsay not be considered on summary judgment,” but, even if it could, Mr. Lelon went on to acknowledge that this expert could not tell what was deleted.?3 Id. 2 See Garside v, Osco Drug, Inc., 895 F.2d 46, 50 (Ist Cir. 1990) (Court refused to consider plaintiff's interrogatory answer describing its expert’s opinion because “[a] third party's description of an expert's supposed testimony is not suitable grist for the summary judgment mill.”); see also Billings v. GTFM, LLC, 449 Mass. 281, 295 (2007) (hearsay should be “disregarded in considering a motion for summary judgment ....’”) (quoting Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968, 968 (1976)). Plaintiffs never produced any expert report, and the time to do so has expired.The only other “evidence” Plaintiffs offer to support their claim that Mr. Tyler deleted emails is their observation that they found fewer emails between Mr. Tyler and Partners/MBG on his hard drive than they would have expected. /d. Plainly, however, that is not evidence of deletion. Indeed, Mr. Tyler has confirmed that he simply did not often communicate with Partners/MGB via email — and that fact is undisputed. Exhibit 1, 14. Further, even if Mr. Tyler had downloaded and/or deleted any such emails, Plaintiffs acknowledge that they have no evidence that this caused them any harm. Exhibit 8, at pp. 96-97. See also Exhibit 10, at Answer No. 2. Accordingly, the notion that Mr. Tyler breached his duty of loyalty by downloading or deleting emails with Partners/MGB has no merit. As far as Plaintiffs’ claim that Mr. Tyler accessed Fallon’s supposedly confidential employee information, the only such information at issue is the company’s employee roster. Exhibit 8, at pp. 93-94. While Mr. Tyler does not dispute that he did this, it is undisputed that he only used such information to pull email addresses for his farewell email. /d. at 95-96. Moreover, even if this could be construed as a breach of duty of loyalty, and Mr. Tyler respectfully suggests that it could not, Plaintiffs have acknowledged that they are unable to identify any harm that Fallon suffered as a result. Jd. at 97-98; see also Exhibit 10, at Answer No. 2. As such, any downloading of Fallon’s employee roster also could not be considered a breach of the duty of loyalty sufficient to defeat summary judgment. Orrall v. French, 2003 WL 25333415 (Feb. 19, 2003) (damages caused by breach of duty an essential element of the claim). D. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Accepting The $28,000 Signing Bonus Payment From Transformative While Plaintiffs claim in the Complaint that Mr. Tyler breached his duty of loyalty by accepting and not returning the $28,000 signing bonus (as part of a temporary “‘stay package”), as Mr. Tyler has explained, that money was paid to secure an interim extension of his 10employment so that the parties could have time to work out the details of his severance agreement. See Exhibit 1, 10. The signing bonus was due upon acceptance of the terms in the term sheet. See Exhibit 1, { 10. Thus, Mr. Tyler had no obligation to return such funds. Indeed, it is telling that Plaintiffs never made a demand on Mr. Tyler to return that money (Exhibit 8, at 128; Exhibit 1, 1 10), nor did they assert a claim for the return of this money in their original complaint. See Dkt. No. 1. It was not until Plaintiffs sought leave to file their Amended Complaint -— five months after Mr. Tyler had resigned from Transformative — that they first conjured up the theory that retaining the signing bonus was a breach of the duty of loyalty. Accordingly, Plaintiffs cannot prove their claim that Mr. Tyler breached his duty of loyalty to them by accepting the $28,000 payment from Transformative. E. Mr. Tyler Did Not Breach His Duty Of Loyalty To Plaintiffs By Failing To Ensure That (i) FalJon’s Medical Director Was Paid And/Or (ii) Certain Operational Licenses For 2020 Were Renewed While Plaintiffs al/ege in paragraph 77 of the Complaint that Mr. Tyler breached his duty of loyalty by failing to ensure that (i) Fallon’s Medical Director was paid, and (ii) certain operational licenses were renewed, they provided no support for such allegations in response to a clear interrogatory asking them to state the basis of such claims. See Exhibit 10, at Answer No. 1. As such, Mr. Tyler’s attestations that any delay in paying Fallon’s Medical Director and/or renewing operational licenses was not the product of any actionable conduct by him stands uncontradicted. Exhibit 1, 7 15. Further, even if there were evidence to the contrary (and there is not), Plaintiffs have failed to come forward with any evidence that the delay in paying Fallon’s 4 Even if the Court were to accept, arguendo, that it was wrong for Mr. Tyler to retain the payment (which he definitely disputes), at most that might give rise to a claim for breach of contract or quasi-contract/unjust enrichment, which Plaintiffs have not pled. Such conduct simply cannot accurately be characterized as a breach of an employee’s “duty of loyalty.” 11Medical Director and/or renewal of operational licenses caused Plaintiffs to suffer any damages. See Exhibit 10, at Answer No. 1. Finally, in this regard, Mr. Tyler notes that employees make mistakes and fail to perform job duties all the time, and that does not, and cannot, automatically mean that those employees breached their duty of loyalty to their employer. Thus, even if Mr. Tyler was negligent in failing to ensure that Fallon’s medical director was paid and/or licenses were renewed in a timely manner, there is no evidence that such conduct rose to the level of being a breach of the duty of loyalty. See, e.g., Marks v. Southcoast Hosp. Grp., Inc., 2011 WL 13324016, *19 (Mass. Sup. Ct. 2011) (“A breach of a fiduciary’s duty is not established by mere errors of judgment or want of prudence in the performance of their duties.”); Keres v. Mass. Mutual Life Ins. Co., 958 F. Supp. 2d 306, 311 (D. Mass. 2013) (the duties of loyalty and of care are of “reasonable intelligence” and fiduciaries “cannot be held responsible for mere errors of judgment or want of prudence”); see also Massachusetts Superior Court Civil Practice Jury Instructions, Volume II, Chapter 12 (2018 ed.) (noting in several places that “mere errors of judgment” or “lack of prudence” do not constitute a breach of a fiduciary duty). Accordingly, Plaintiffs could not prove their claim that Mr. Tyler breached his duty of loyalty by failing to ensure that (i) Fallon’s Medical Director was paid and (ii) certain operational licenses were renewed. id. Randseco Js Entitled To Summary Judgment On Count I, Alleging Aiding And Abetting Breach Of The Duty Of Loyalty Plainly, if Mr. Tyler is not liable for breach of duty of loyalty, then Randseco could not be liable for aiding and abetting such conduct. See Arcadi v. NAGE, Inc., 447 Mass. 616, 623-24 (2006) (one of the three elements for a claim of aiding and abetting a breach of fiduciary duty is an actual breach of fiduciary duty). Thus, because, as set forth in Section II, supra, Mr. Tyler isnot liable for breach of duty of loyalty, summary judgment in Randseco’s favor on Count IT should enter. Ill. Defendants Are Entitled To Summary Judgment On Count ITT, Alleging Tortious Interference With Contractual Or Advantageous Relations Count III of the Complaint alleges that Mr. Tyler and Randseco tortiously interfered with Plaintiffs’ business relationship with Partners/MBG. To prevail on such a claim a plaintiff: [M]Just prove that (1) [it] had an advantageous relationship with a third party ... ; (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions. Blackstone v. Cashman, 448 Mass. 255, 260 (2007) (emphasis added). As discussed in Section II, supra, Plaintiffs simply have no evidence that Defendants’ conduct (i) induced Partners/MBG to break its business relationship with Fallon; (ii) was improper in motive or means; and/or (iii) caused Plaintiffs to suffer any harm. Accordingly, summary judgment in favor of Mr. Tyler and Randseco on Count III should enter. IV. Defendants Are Entitled To Summary Judgment On Count IV, Alleging Misappropriation Of Trade Secrets Count IV of the Complaint alleges that Mr. Tyler misappropriated Transformative’s trade secrets in violation of M.G.L. c. 93, §42 and 18 U.S.C. §§1831-39. To demonstrate misappropriation of trade secrets under Massachusetts law, [Plaintiffs] must prove: (1) the information in question is a trade secret, (2) [Plaintiffs] took reasonable steps to preserve the secrecy of that information, and (3) [Mr. Tyler] “used improper means, in breach of a confidential relationship, to acquire and use the trade secret.” 13Baystate Techs., Ine. v. Bentley Sys., Inc., 946 F. Supp. 1079, 1091 (D. Mass. 1996) (internal quotation and citation omitted).** When Transformative was asked to state the basis of this claim, it did not identify anything that even remotely could be considered to be a trade secret. See Transformative Healthcare Inc.’s First Supplemental Responses to Patrick Sean Tyler’s Second Set of Interrogatories, a copy of which is included as Exhibit 11, at Answers | and 9; Exhibit 6, | 8.6 Thus, Plaintiffs have failed to establish the most fundamental element of a trade secrets claim — I that a trade secret exists.>” Accordingly, summary judgment in favor of Mr. Tyler and Randseco on Count IV should enter. Vv. Defendants Are Entitled To Summary Judgment On Count V, Alleging That They Violated The Computer Fraud And Abuse Act Count V of the Complaint alleges that Defendants violated the Computer Fraud and Abuse Act, 18 U.S.C. §1030 (“CFAA”),*® “[bly interfering with Transformative’s use of the Randseco Software.” Complaint, 4108. As discussed in Section II(A), supra, however, Plaintiffs 6 18 U.S.C. §§1832(a) sets substantially similar elements of trade secrets misappropriation under federal law. 6 Massachusetts law requires evaluating the following factors to determine if something is a trade secret: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Jet Spray Cooler, Inc, v. Crampton, 361 Mass. 835, 840 (1972). 7 Even if Plaintiffs somehow can obviate this defect, they also have no evidence that any trade secret was improperly acquired and used by Defendants. As such, for this reason, as well, summary judgment should enter, 38 Per 18 U.S.C. §1030(a)(5), it is a violation of the CFAA to: a. knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; b. intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or : c. intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss. 14have no evidence from which they could establish that Defendants, in fact, interfered with Transformative’s use of the Randseco Software. Accordingly, summary judgment in favor of Mr. Tyler and Randseco on Count V should enter. VI. Randseco Is Entitled To Summary Judgment On Count VI, Alleging Breach Of Contract Count VI of the Complaint alleges that Randseco breached the Randseco-Fallon Agreement by preventing Plaintiffs’ “use of the Randseco Software ....” Complaint, 117. Again, as discussed in Section II(A), supra, Plaintiffs have no evidence from which they could establish that Randseco prevented them from using its Software. Accordingly, summary judgment in favor of Randseco on Count VI should enter. VII. Randseco Is Entitled To Summary Judgment On Count VII, Alleging That It Violated M.G.L. c. 93A To prove that Randseco violated Chapter 93A, Plaintiffs would have to establish that (i) Randseco engaged in deceptive or unfair acts or practices, and (ii) such conduct caused them to suffer a loss of money or property. M.G.L. ¢. 93A, §§2 and 11. In this regard, the deceptive or unfair acts or practices in which Plaintiffs claim Randseco engaged are: (i) interfering with Transformative’s use of the Randseco software; (ii) using Transformative’s name and goodwill to attempt to sell the Integration Software to current and potential customers of Transformative; (ii) pressuring Transformative’s customers into requiring their ambulance vendors to adopt the Integration Software; and (iv) severing Transformative’s relationship with Partners/MGB. Complaint, ff 121-122. Again, however, there simply is no evidence that Randseco engaged in such conduct and/or that such conduct caused Plaintiffs to suffer a loss of money or property. Accordingly, summary judgment in favor of Randseco on Count VII should enter. 15CONCLUSION \ For all of the foregoing reasons, summary judgment should enter, dismissing this entire action with prejudice. Respectfully submitted, PATRICK SEAN TYLER and RANDSECO, LLC By their attorneys, sf Shepard Davidson Shepard Davidson (BBO #557082) sdavidson@burnsiev.com Laura Lee Mittelman (BBO #689752) Imittelman@burnslev.com Burns & Levinson LLP 125 High Street Boston, MA 02110 617-345-3000 Dated: January 19, 2022 CERTIFICATE OF SERVICE I, Laura Lee Mittelman, hereby certify that on January 19, 2022 I served a true and accurate copy of the foregoing document on the following counsel of record via email and U.S. Mail. Michael Boudett, Esq. James Fullmer, Esq. Foley Hoag LLP Seaport West 155 Seaport Boulevard Boston, MA 02210-2600 mboudett@foleyhoag.com jfullmer@foleyhoag.com s/ Laura Lee Mittelman