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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS.
TRANSFORMATIVE HEALTHCARE, INC.
and FALLON AMBULANCE SERVICES, LLC,
Plaintiffs,
v.
PARICK SEAN TYLER and RANDSECO, LLC,
Defendants.
)
)
wee eee eee
SUPERIOR COURT DEPARTMENT
BUSINESS LITIGATION SESSION
CIVIL ACTION NO. 2084-CV-02375-
BLS1
DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF
THEIR MOTION FOR SUMMARY JUDGMENT
(‘Plaintiff's Opposition”) does not even attempt to respond directly to the vast majority of
2
ry
23.
Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary JuéSment :
Defendants’ arguments which expose Plaintiffs’ utter failure to come forward with evidence to
support the essential elements of any of their claims. Instead, that Opposition relies on (i) 11
rambling pages of “Facts” — many of which aré irrelevant and/or only are “supported” by
inadmissible assertions or documents;! and (ii) “Arguments” that never cite to the Parties’ Joint
Statement of Facts or Appendix of Exhibits. Ultimately, Plaintiffs have failed to show that there
are any genuine issues of material fact that preclude the entry of summary judgment in favor of
Defendants.
1 Defendants’ have moved to strike large portion of the Affidavits and Exhibits Plaintiffs have submitted
with their Opposition because they fail to comply with Rule 56(e) of the Massachusetts Rules of Civil Procedure.
As just one example, the Affidavit of Danielle Thomas contains blatantly inadmissible hearsay, such as “Dr. Scott
Goldberg of MGB told me that ...” and “MGB said ....”ARGUMENT
1 Mr. Tyler Is Entitled To Summary Judgment On Count I, Alleging Breach Of The
Fiduciary Duty of Loyalty
“To prevail on their claim for breach of fiduciary duty against (Defendants, Plaintiffs]
must show: (1) the existence of a fiduciary duty; (2) breach of that duty; (3) damages; and (4) a
causal connection between breach of the duty and the damages.” Baker v. Wilmer Cutler
Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835, 842 (2017).? Nevertheless, Plaintiffs have
not come forward with any admissible evidence from which they could prove these essential
elements.
A. Plaintiffs Have Not Come Forward With Evidence From Which They Could
Prove That Mr. Tyler Breached His Fiduciary Duty, As Alleged In Count I
Of The Complaint
While Count I of the Complaint alleges six ways in which Mr. Tyler supposedly breached
his fiduciary duty, the section of Plaintiffs’ Opposition arguing that Count I is viable only
addresses three? (i) that Mr. Tyler caused Partners-MGB to terminate its relationship with
Plaintiffs, (ii) that Mr. Tyler failed to have Fallon pay its medical director in a timely manner,
and (iii) that Mr. Tyler failed to promptly renew certain Fallon licenses. See Plaintiffs’
Opposition at pp. 14-17. Even with respect to these three instances, however, Plaintiffs have not
2 At the end of their argument on breach of fiduciary duty, Plaintiffs cite to Clean Harbors Env't Servs., Inc.
v. Sheppard, No. SUCV20172013BLS2, 2020 WL 6364865 (Mass. Super. Sept. 14, 2020) for the proposition that
the burden of proof on causation should shift such that Mr. Tyler must prove that there was no causal connection
between his alleged breaches of fiduciary duty and the losses Plaintiffs claim to have suffered. That contention fails
for two reasons. First, Clean Harbors is a Superior Court decision that is at odds with the Appeals Court’s decision
in Baker. Second, even if Clean Harbors was not inconsistent with Baker, Clean Harbors makes clear that such
burden shifting only could apply if “there is some factual support in the summary judgment record showing that the.
[Plaintiff] uffer[ed] some compensable harm because of the defendant's conduct.” Jd. at *1 (emphasis added).
Because no such factual showing has been made in this case, Clean Harbors does not support Plaintiffs’ position.
3 While not contained in their argument that Mr. Tyler breached his fiduciary duty, Plaintiffs assert in the
most conclusory fashion and without citing anything that “[a] jury could easily infer that the failures of Randseco’s
software were the intentional acts of Randseco’s agents ....” Plaintiffs’ Opposition at p. 18. As Defendants discussed
on pages 7-8 of their initial Memorandum, however, Plaintiffs have admitted that the only “facts” indicating Mr.
Tyler was responsible for these problems are the slack channel discussions — which plainly is not enough to prove
that Mr. Tyler actually sabotaged their computer system.come forward with evidence from which they could establish that anything Mr. Tyler did or
failed to do constituted a breach of fiduciary duty and/or caused Plaintiffs to suffer any harm.
1. Plaintiffs Cannot Prove That Mr. Tyler Caused Partners-MGB To
Terminate Its Relationship With Plaintiffs
While Plaintiffs assert on pages 15-16 of their Opposition that “Mr. Tyler’s actions left
Plaintiffs in a precarious and ultimately unsalvageable situation with ... MGB, leading to the loss
of this client relationship,” they cite nothing to support this bald assertion. Plaintiffs have not
submitted any affidavit or deposition testimony from anyone on behalf of MGB that touches
upon why it ended its relationship with Plaintiffs. Indeed, the only information in the record on
this topic is the inadmissible hearsay statements of Plaintiffs’ own representatives — which may
not be considered on summary judgment.’ Accordingly, Plaintiffs cannot prove their claim that
Mr. Tyler breached his fiduciary duty of loyalty to them on the theory that he destroyed their
relationship with Partners-MGB, and this claim should be dismissed.
2. Plaintiffs Cannot Prove That Mr. Tyler Breached His Fiduciary Duty
By Failing To Promptly Have Fallon’s Medical Director Paid And/Or
Renew Certain Operational Licenses
The entirety of Plaintiffs’ argument that they have a viable breach of fiduciary duty claim
on the theory that Mr. Tyler failed to promptly-have Fallon’s medical director paid and/or certain
operational licenses renewed consists of the conclusory assertion on page 16 of their Opposition
that his conduct in this regard was “grossly negligent” and was “potentially fatal to Plaintiffs’
business ....” (Emphasis added). Even if the foregoing contentions were supported by actual
evidence, and they are not, that would not be enough to establish liability because Plaintiffs must
show aetual harm, not simply potential harm. See, e.g., Baker, 91 Mass. App. Ct. at 842. In this
4 See, ¢.g., Billings v. GTFM, LLC, 449 Mass. 281, 295 (2007) (All affidavits or portions thereof constituting
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)).case, nothing in the record establishes that Plaintiffs suffered any harm as a result of Fallon
paying its medical direct or late or being tardy ‘in renewing any operational licenses.*
Accordingly, this aspect of their claim for breach of the duty of loyalty also fails as a matter of
law and should be dismissed.
B. Plaintiffs’ New Claims Of Breach Of Fiduciary Have No Merit
In addition to the claims alleged in their Complaint, Plaintiffs make the following new
claims of supposed breaches of fiduciary duty on page 15 of their Opposition:
[Mr.] Tyler breached his fiduciary duty of loyalty by appropriating
Transformative’s goodwill for Randseco’s business purposes. ... He did this by
using Transformative’s name and its work on the Epic Integration project as a
stepping-stone for Randseco to fry to sell software developed exclusively for
Transformative and MGB. Similarly, he tried to help Randseco sell software
developed as part of Transformative’s COVID test data initiative. He even
overbilled Transformative for services provided by Randseco, only correcting this
issue belatedly when someone else caught it. [Emphasis added.]
These claims should be dismissed for several reasons. First, they are not included in
Count I of the Complaint, where Plaintiffs very specifically set out what Mr. Tyler’s supposed
fiduciary breaches to be. See Plourde v. Sorin Grp. USA, Inc., 517 F. Supp. 3d 76, 88 n.3 (D.
Mass, 2021) (refusing to allow Plaintiffs to move forward on a theory of liability advanced on
summary judgment where it was not in complaint because “[t]he proper method for raising new
allegations is by a motion to amend the complaint, not in response to a motion for summary
judgment.”). Second, again, none of the vague assertions set forth above is supported by any
record citation, and there does not appear to be any admissible evidence in the record that would
support them. Finally, even if Plaintiffs could clear those hurdles, there is nothing in the record
5 Defendants dispute that the medical director payment and license renewal issues were Mr. Tyler’s fault.
Even assuming, arguendo, that Mr. Tyler made mistakes or performed poorly, there is nothing in the applicable
legal authorities to support a finding that simple neglect in the performance of job duties constitutes a breach of
fiduciary duty.establishing that Plaintiffs suffered any harm based on the foregoing conduct. Accordingly, these
new claims also fail to create a genuine issue of material fact sufficient to stave off summary
judgment on Plaintiffs’ claim of breach of fiduciary duty.
I. Defendants Are Entitled To Summary Judgment On Count IV, Alleging
Misappropriation Of Trade Secrets
In response to Defendants’ concise argument that Plaintiffs cannot prevail on their claim
for misappropriation of trade secrets because they failed to identify any supposed trade secret
(nitial Memorandum at p. 14), Plaintiffs contend that they:
[H]ave cited two separate trade secrets that they possessed, that they kept
secret. ... [C]ustomer information relating to MGB consisting of communications
with MBG that Mr. Tyler deleted [and] employee information, which [Mr.] Tyler
accessed and sued to send an unauthorized, company-wide email.®
Plaintiffs’ Opposition at p. 19 (emphasis added).
Notwithstanding this contention, Plaintiffs do not even articulate a reason why the Tyler-
MBG communications or Fallon employee information should be deemed to be trade secrets, let
alone discuss such information in the context of the following factors used to determine whether
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).
Thus, Plaintiffs literally have come forward with nothing to establish that any email
between Mr. Tyler and someone at MGB and/or the employee information might qualify as a
6 Plaintiffs never way where they “cited” this information as being trade secrets.trade secret. Further, even if Plaintiffs could do this, as they acknowledge on page 19 of their
Opposition, to prevail on a claim for misappropriation they also must have taken “reasonable
steps to preserve the secrecy” of the putative trade secrets. Again, however, the record is devoid
of anything describing what measures Plaintiffs took to preserve the secrecy of the information at
issue. Accordingly, summary judgment should enter in favor of Defendants on Count IV of the
Complaint.
III. Defendants Are Entitled To Summary Judgment On Count ITI, Alleging Tortious
Interference And Count VII, Alleging A Violation Of M.G.L. c. 93A
After acknowledging that proof of actual interference is an essential element of their
tortious interference claim, Plaintiffs assert that summary judgment should not enter on this
claim because “Transformative’s relationship with MGB was damaged and ultimately broken as
a result of Tyler’s and Randseco’s actions ....” Plaintiffs’ Opposition at p. 18 and n.3. Plaintiffs
then contend that their Chapter “93A claim survives for the same reason ....” Jd. at p. 19. Again,
however, because there is no admissible evidence in the record from which Plaintiffs could prove
that Defendants’ conduct caused the demise of the Transformative-MGB/Partners relationship,
summary judgment should enter, dismissing those claims.
IV. Defendants Are Entitled To Summary Judgment On Count V, Alleging That
They Violated The Computer Fraud And Abuse Act And Count VI, alleging
Breach Of Contract
Plaintiffs do not dispute that an essential element of their claim for a violation of the
CEAA is proof that Defendants’ conduct caused Plaintiffs to suffer damage or loss. See 18
U.S.C. §1030. Instead, they contend that (i) “the evidence in the record is sufficient for a jury to
infer that [Mr.] Tyler and Randseco recklessly‘caused damage to the software on
Transformative’s computers by causing it to malfunction,” and (ii) the same “evidence” proves
their breach of contract claim. Plaintiffs’ Opposition at p. 20. Again, however, Plaintiffs fail toidentify what this “evidence” is — because there is none.’ As such, these claims also cannot
survive summary judgment and should be dismissed.
CONCLUSION
For all of the foregoing reasons, and the reasons set forth in Defendants’ initial
Memorandum, summary judgment should enter, dismissing all of Plaintiffs’ claims with
prejudice.
Dated: March 15, 2022
7
Respectfully submitted,
PATRICK SEAN TYLER and
RANDSECO, LLC
By their attorneys,
ts! Shepard Davidson
Shepard Davidson (BBO #557082)
sdavidson@burnslev.com
Laura Lee Mittelman (BBO #689752)
Imittelman@pburnslev.com
Burns & Levinson LLP
125 High Street
Boston, MA 02110
617-345-3000
It is telling that Plaintiffs hired a forensic expert “[t]o examine all of the[ir] systems” (Lelon Tr. at p. 48),
yet none of those experts has provided any opinion as to what actually went wrong with Plaintiff's systems, let alone
that Mr. Tyler and/or anyone at Randseco did — or even could have — caused those problems.CERTIFICATE OF SERVICE
1, Laura Lee Mittelman, hereby certify that on March 15, 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
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. TRANSFORMATIVE HEALTHCARE, INC. and FALLON AMBULANCE SERVICES, LLC, Plaintiffs, v. PARICK SEAN TYLER and RANDSECO, LLC, Defendants. ) ) wee eee eee SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION CIVIL ACTION NO. 2084-CV-02375- BLS1 DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT (‘Plaintiff's Opposition”) does not even attempt to respond directly to the vast majority of 2 ry 23. Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary JuéSment : Defendants’ arguments which expose Plaintiffs’ utter failure to come forward with evidence to support the essential elements of any of their claims. Instead, that Opposition relies on (i) 11 rambling pages of “Facts” — many of which aré irrelevant and/or only are “supported” by inadmissible assertions or documents;! and (ii) “Arguments” that never cite to the Parties’ Joint Statement of Facts or Appendix of Exhibits. Ultimately, Plaintiffs have failed to show that there are any genuine issues of material fact that preclude the entry of summary judgment in favor of Defendants. 1 Defendants’ have moved to strike large portion of the Affidavits and Exhibits Plaintiffs have submitted with their Opposition because they fail to comply with Rule 56(e) of the Massachusetts Rules of Civil Procedure. As just one example, the Affidavit of Danielle Thomas contains blatantly inadmissible hearsay, such as “Dr. Scott Goldberg of MGB told me that ...” and “MGB said ....”ARGUMENT 1 Mr. Tyler Is Entitled To Summary Judgment On Count I, Alleging Breach Of The Fiduciary Duty of Loyalty “To prevail on their claim for breach of fiduciary duty against (Defendants, Plaintiffs] must show: (1) the existence of a fiduciary duty; (2) breach of that duty; (3) damages; and (4) a causal connection between breach of the duty and the damages.” Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835, 842 (2017).? Nevertheless, Plaintiffs have not come forward with any admissible evidence from which they could prove these essential elements. A. Plaintiffs Have Not Come Forward With Evidence From Which They Could Prove That Mr. Tyler Breached His Fiduciary Duty, As Alleged In Count I Of The Complaint While Count I of the Complaint alleges six ways in which Mr. Tyler supposedly breached his fiduciary duty, the section of Plaintiffs’ Opposition arguing that Count I is viable only addresses three? (i) that Mr. Tyler caused Partners-MGB to terminate its relationship with Plaintiffs, (ii) that Mr. Tyler failed to have Fallon pay its medical director in a timely manner, and (iii) that Mr. Tyler failed to promptly renew certain Fallon licenses. See Plaintiffs’ Opposition at pp. 14-17. Even with respect to these three instances, however, Plaintiffs have not 2 At the end of their argument on breach of fiduciary duty, Plaintiffs cite to Clean Harbors Env't Servs., Inc. v. Sheppard, No. SUCV20172013BLS2, 2020 WL 6364865 (Mass. Super. Sept. 14, 2020) for the proposition that the burden of proof on causation should shift such that Mr. Tyler must prove that there was no causal connection between his alleged breaches of fiduciary duty and the losses Plaintiffs claim to have suffered. That contention fails for two reasons. First, Clean Harbors is a Superior Court decision that is at odds with the Appeals Court’s decision in Baker. Second, even if Clean Harbors was not inconsistent with Baker, Clean Harbors makes clear that such burden shifting only could apply if “there is some factual support in the summary judgment record showing that the. [Plaintiff] uffer[ed] some compensable harm because of the defendant's conduct.” Jd. at *1 (emphasis added). Because no such factual showing has been made in this case, Clean Harbors does not support Plaintiffs’ position. 3 While not contained in their argument that Mr. Tyler breached his fiduciary duty, Plaintiffs assert in the most conclusory fashion and without citing anything that “[a] jury could easily infer that the failures of Randseco’s software were the intentional acts of Randseco’s agents ....” Plaintiffs’ Opposition at p. 18. As Defendants discussed on pages 7-8 of their initial Memorandum, however, Plaintiffs have admitted that the only “facts” indicating Mr. Tyler was responsible for these problems are the slack channel discussions — which plainly is not enough to prove that Mr. Tyler actually sabotaged their computer system.come forward with evidence from which they could establish that anything Mr. Tyler did or failed to do constituted a breach of fiduciary duty and/or caused Plaintiffs to suffer any harm. 1. Plaintiffs Cannot Prove That Mr. Tyler Caused Partners-MGB To Terminate Its Relationship With Plaintiffs While Plaintiffs assert on pages 15-16 of their Opposition that “Mr. Tyler’s actions left Plaintiffs in a precarious and ultimately unsalvageable situation with ... MGB, leading to the loss of this client relationship,” they cite nothing to support this bald assertion. Plaintiffs have not submitted any affidavit or deposition testimony from anyone on behalf of MGB that touches upon why it ended its relationship with Plaintiffs. Indeed, the only information in the record on this topic is the inadmissible hearsay statements of Plaintiffs’ own representatives — which may not be considered on summary judgment.’ Accordingly, Plaintiffs cannot prove their claim that Mr. Tyler breached his fiduciary duty of loyalty to them on the theory that he destroyed their relationship with Partners-MGB, and this claim should be dismissed. 2. Plaintiffs Cannot Prove That Mr. Tyler Breached His Fiduciary Duty By Failing To Promptly Have Fallon’s Medical Director Paid And/Or Renew Certain Operational Licenses The entirety of Plaintiffs’ argument that they have a viable breach of fiduciary duty claim on the theory that Mr. Tyler failed to promptly-have Fallon’s medical director paid and/or certain operational licenses renewed consists of the conclusory assertion on page 16 of their Opposition that his conduct in this regard was “grossly negligent” and was “potentially fatal to Plaintiffs’ business ....” (Emphasis added). Even if the foregoing contentions were supported by actual evidence, and they are not, that would not be enough to establish liability because Plaintiffs must show aetual harm, not simply potential harm. See, e.g., Baker, 91 Mass. App. Ct. at 842. In this 4 See, ¢.g., Billings v. GTFM, LLC, 449 Mass. 281, 295 (2007) (All affidavits or portions thereof constituting 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)).case, nothing in the record establishes that Plaintiffs suffered any harm as a result of Fallon paying its medical direct or late or being tardy ‘in renewing any operational licenses.* Accordingly, this aspect of their claim for breach of the duty of loyalty also fails as a matter of law and should be dismissed. B. Plaintiffs’ New Claims Of Breach Of Fiduciary Have No Merit In addition to the claims alleged in their Complaint, Plaintiffs make the following new claims of supposed breaches of fiduciary duty on page 15 of their Opposition: [Mr.] Tyler breached his fiduciary duty of loyalty by appropriating Transformative’s goodwill for Randseco’s business purposes. ... He did this by using Transformative’s name and its work on the Epic Integration project as a stepping-stone for Randseco to fry to sell software developed exclusively for Transformative and MGB. Similarly, he tried to help Randseco sell software developed as part of Transformative’s COVID test data initiative. He even overbilled Transformative for services provided by Randseco, only correcting this issue belatedly when someone else caught it. [Emphasis added.] These claims should be dismissed for several reasons. First, they are not included in Count I of the Complaint, where Plaintiffs very specifically set out what Mr. Tyler’s supposed fiduciary breaches to be. See Plourde v. Sorin Grp. USA, Inc., 517 F. Supp. 3d 76, 88 n.3 (D. Mass, 2021) (refusing to allow Plaintiffs to move forward on a theory of liability advanced on summary judgment where it was not in complaint because “[t]he proper method for raising new allegations is by a motion to amend the complaint, not in response to a motion for summary judgment.”). Second, again, none of the vague assertions set forth above is supported by any record citation, and there does not appear to be any admissible evidence in the record that would support them. Finally, even if Plaintiffs could clear those hurdles, there is nothing in the record 5 Defendants dispute that the medical director payment and license renewal issues were Mr. Tyler’s fault. Even assuming, arguendo, that Mr. Tyler made mistakes or performed poorly, there is nothing in the applicable legal authorities to support a finding that simple neglect in the performance of job duties constitutes a breach of fiduciary duty.establishing that Plaintiffs suffered any harm based on the foregoing conduct. Accordingly, these new claims also fail to create a genuine issue of material fact sufficient to stave off summary judgment on Plaintiffs’ claim of breach of fiduciary duty. I. Defendants Are Entitled To Summary Judgment On Count IV, Alleging Misappropriation Of Trade Secrets In response to Defendants’ concise argument that Plaintiffs cannot prevail on their claim for misappropriation of trade secrets because they failed to identify any supposed trade secret (nitial Memorandum at p. 14), Plaintiffs contend that they: [H]ave cited two separate trade secrets that they possessed, that they kept secret. ... [C]ustomer information relating to MGB consisting of communications with MBG that Mr. Tyler deleted [and] employee information, which [Mr.] Tyler accessed and sued to send an unauthorized, company-wide email.® Plaintiffs’ Opposition at p. 19 (emphasis added). Notwithstanding this contention, Plaintiffs do not even articulate a reason why the Tyler- MBG communications or Fallon employee information should be deemed to be trade secrets, let alone discuss such information in the context of the following factors used to determine whether 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). Thus, Plaintiffs literally have come forward with nothing to establish that any email between Mr. Tyler and someone at MGB and/or the employee information might qualify as a 6 Plaintiffs never way where they “cited” this information as being trade secrets.trade secret. Further, even if Plaintiffs could do this, as they acknowledge on page 19 of their Opposition, to prevail on a claim for misappropriation they also must have taken “reasonable steps to preserve the secrecy” of the putative trade secrets. Again, however, the record is devoid of anything describing what measures Plaintiffs took to preserve the secrecy of the information at issue. Accordingly, summary judgment should enter in favor of Defendants on Count IV of the Complaint. III. Defendants Are Entitled To Summary Judgment On Count ITI, Alleging Tortious Interference And Count VII, Alleging A Violation Of M.G.L. c. 93A After acknowledging that proof of actual interference is an essential element of their tortious interference claim, Plaintiffs assert that summary judgment should not enter on this claim because “Transformative’s relationship with MGB was damaged and ultimately broken as a result of Tyler’s and Randseco’s actions ....” Plaintiffs’ Opposition at p. 18 and n.3. Plaintiffs then contend that their Chapter “93A claim survives for the same reason ....” Jd. at p. 19. Again, however, because there is no admissible evidence in the record from which Plaintiffs could prove that Defendants’ conduct caused the demise of the Transformative-MGB/Partners relationship, summary judgment should enter, dismissing those claims. IV. Defendants Are Entitled To Summary Judgment On Count V, Alleging That They Violated The Computer Fraud And Abuse Act And Count VI, alleging Breach Of Contract Plaintiffs do not dispute that an essential element of their claim for a violation of the CEAA is proof that Defendants’ conduct caused Plaintiffs to suffer damage or loss. See 18 U.S.C. §1030. Instead, they contend that (i) “the evidence in the record is sufficient for a jury to infer that [Mr.] Tyler and Randseco recklessly‘caused damage to the software on Transformative’s computers by causing it to malfunction,” and (ii) the same “evidence” proves their breach of contract claim. Plaintiffs’ Opposition at p. 20. Again, however, Plaintiffs fail toidentify what this “evidence” is — because there is none.’ As such, these claims also cannot survive summary judgment and should be dismissed. CONCLUSION For all of the foregoing reasons, and the reasons set forth in Defendants’ initial Memorandum, summary judgment should enter, dismissing all of Plaintiffs’ claims with prejudice. Dated: March 15, 2022 7 Respectfully submitted, PATRICK SEAN TYLER and RANDSECO, LLC By their attorneys, ts! Shepard Davidson Shepard Davidson (BBO #557082) sdavidson@burnslev.com Laura Lee Mittelman (BBO #689752) Imittelman@pburnslev.com Burns & Levinson LLP 125 High Street Boston, MA 02110 617-345-3000 It is telling that Plaintiffs hired a forensic expert “[t]o examine all of the[ir] systems” (Lelon Tr. at p. 48), yet none of those experts has provided any opinion as to what actually went wrong with Plaintiff's systems, let alone that Mr. Tyler and/or anyone at Randseco did — or even could have — caused those problems.CERTIFICATE OF SERVICE 1, Laura Lee Mittelman, hereby certify that on March 15, 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