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COMMONWEALTH OF MASSACHUSETTS
BUSINESS LITIGATION SESSION
CIVIL ACTION NO. 2084-CV-02375-
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SUFFOLK, SS. | SUPERIOR COURT DEPARTMENT
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TRANSFORMATIVE HEALTHCARE, INC. )
and FALLON AMBULANCE SERVICES, LLC, )
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Plaintiffs, i
v. '
PARICK SEAN TYLER and RANDSECO, LLC,
Defendants.
ere
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1 ~ ot : :
DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO stk IKE ;
MATERIALS SUBMITTED BY PLAINTIFFS IN OPPOSITION:TO ‘°° _
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT :. eo
i
Because large portions of the affidavits and exhibits Plaintiffs submitted in oppositionto =~
+
Defendants’ Motion for Summary Judgment constitute rank hearsay and/or otherwise would not
be admissible in evidence, Defendants move to strike them from the summary judgment record.
|
Defendants also move to strike various of Plaintiffs’ responses to Defendants’ proposed
statements of fact because such responses blatantly violate the mandate in Superior Court Rule
9A(b)(5)(iii)€A) that a party opposing summary judgment should simply admit or deny a
proposed statement and not include additional information (other than a supporting citation).
ARGUMENT
After being served with Defendants’ Motion for Summary Judgment and supporting
1
materials, Plaintiffs served Defendants with an Opposition that included the Affidavit of Richard
Spencer (“Spencer Aff.”), the Affidavit of Charles Lelon (“Lelon Aff.”), the Affidavit ofDanielle Thomas (“Thomas Aff.”), the Affidavit of Michael DeCosta (“DeCosta Aff.”), various
other proposed exhibits and a Joint Statement pf Facts that includes Plaintiffs’ responses
(“SOF”). Large portions of these materials fail to comply with Rule 56(e) of the Massachusetts
Rules of Civil Procedure. They should be struck and not considered on summary judgment.
I. Only Information That Would Be Admissible In Evidence At Trial May Be
Considered On Summary Judgment
As this Court is well aware, Rule 56(e) of the Massachusetts Rules of Civil Procedure
states that on summary judgment “(s]upporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters stated therein.” This
requirement also applies to documents, which should be struck and not considered in connection
with a motion for summary judgment if the party relying on them has not established that they
would be admissible at trial. Finn v. Consol. Rail Corp., 782 F.2d 13, 16 (Ist Cir. 1986).
I. This Court Should Strike And Refuse To Consider Exhibits 14, 16, 17, 18, 19 and 20
A. The Exhibits At Issue Have Not Been Authenticated
Because unauthenticated documents plainly would be inadmissible at trial, such
documents fail to comply “with Rule 56(c), . s [are] not in a form appropriate for summary
judgment consideration and should [be] stricken from the record upon [a party’s] motion [to
strike].” Cruickshank v. Com. Ins. Co., 2004 Mass. App. Div. 109 (2004); see also Hamilton v.
Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976) (“Exhibits which have not had a
proper foundation laid to authenticate them cannot support a motion for summary judgment.”).
Further, to properly authenticate a document, the offering party must provide “evidence
sufficient to support a finding that the matter in question is what its proponent claims.” Mass. G.
|
Evid. § 901(A); Gent v. Teadyne, Inc., No. 07104676-BLS2, 2010 WL 5071862, at *8 (Sup. Ct.
2of Mass. Oct. 8, 2010). Finally, ifa documentlis authenticated by affidavit, the affiant must be
someone who has personal knowledge that the document is what the offering party purports it to
be. See 8 Mass. Practice Series (J.W. Smith & H.B. Zobel) § 56.7 at 358 (1993) (“The court will
not consider ... exhibit[s] unless the affiant is a person through whom, and his . . . testimony
through which, the exhibit[s] could be introduced into evidence at a trial.””).
In this case, because Exhibits 14, 16, and 18-20 are not properly authenticated, all of
them should be struck. While Charles Lelon purports to authenticate Exhibits 14, 16 and 18-20
(among others), he is not even referenced on those documents, and there is nothing to suggest
that he would have personal knowledge that any of them are what he claims them to be. For this
reason alone, they should be struck and not considered on summary judgment.
B Exhibits 14, 16, 17, 18, 19 and 20 Contain Inadmissible Hearsay
Even if Exhibits 14, 16, 17, 18, 19, and 20 were (or could be) authenticated, they still
should be struck and not considered on summary judgment because each plainly constitutes
hearsay, which is not admissible in evidence. See, e.g., Barraford v. T&N Lid., 988 F. Supp. 2d
81 (2013) (striking from summary judgment record evidence containing inadmissible hearsay).
I. This Court Should Strike And Refuse To Consider Portions Of The Affidavits
Plaintiffs Submitted In Opposition To Summary Judgment
The requirements in Rule 56(e) that a summary judgment affidavit be made on the
affiant’s personal knowledge and comprise facts that would be admissible in evidence “are
mandatory.” Madsen v, Erwin, 395 Mass. 715, 719 (1985). As such, affidavits (or portions
thereof) that (i) constitute hearsay; (ii) are made on information and belief, (iii) contain legal or
factual conclusions; and/or (iv) comprise speculation and/or conjecture should be struck and not
considered on summary judgment. Garside v. Osco Drug, Inc., 895 F2d 46, 50 (Ist Cir. 1990) (a
“third party’s description of [another’s] supposed testimony is not suitable grist for the summaryjudgment mill.”); Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968, 968
(1976) (‘All affidavits or portions thereof made on information and belief, as opposed to
personal knowledge, are to be disregarded in considering a motion for summary judgment”);
Stanton Indus., Inc. v. Columbus Mills, Inc., 4 Mass. App. Ct. 793, 794 (1976) (an affidavit
should be disregarded on a motion for summary judgment if it was not made on the personal
knowledge of the affiant or where he would not be permitted to testify at trial in accordance with
the affidavit); Post v. Comm’r of the Dept. of Enviro. Quality Eng., 403 Mass. 29, 35 n.8 (1988)
(‘Statements of conclusion are not appropriately part of an affidavit from a nonexpert.”);
Maldonado v. Int’! Bus. Mach. Corp., 56 F.R.D. 452, 454 (D.P.R. 1972) (a summary judgment
affidavit “is no place for ultimate facts and conclusions of law”); 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”); Mariasch v. Gillette Co., 521 F.2d 68, 71 (1*' Cir. 2008)
(“[SJummary judgment cannot be defeated by relying on improbable inferences, conclusory
allegations or rank speculation.”).
Large portions of the Lelon Aff. Spencer Aff., Thomas Aff., and DeCosta Aff. contain
statements that would not be admissible and, therefore should be struck and not considered on
summary judgment. As just one example, paragraph 6 of the Thomas Aff. says that “Dr. Scott
Goldberg of MGB told me that Mr. Tyler had told him that Transformative had been
underperforming because ‘Kamylon had been starving the company of resources,’ or words to
that effect.” (Emphasis added.) Plainly, Ms. Thomas never would be permitted to testify at trial
as to what Dr. Scott Goldberg told her. Thus, 'the Court should not consider it on summary
1
judgment. Because there are so many other instances of inadmissible information in theaffidavits Plaintiffs have submitted, Defendants have prepared charts (Exhibit A hereto),
detailing such instances and setting forth the bases for striking them.
Ill. This Court Should Strike The Portions Of Plaintiffs’ Responses To The Statement
Facts That Violate Superior Court Rule 9A(b)(5)(iii)(A)
Superior Court Rule 9A(b)(5)(ii)(A) limits any response to a moving party’s proposed
Statement of Facts to “stating whether a given fact is disputed and, if so, citation] to the specific
evidence.” Plaintiffs’ responses go much farther, often including additional facts in the guise of
I
explaining their denial of a statement. Because there are so many inappropriate responses,
Defendants attach hereto as Exhibit B a version of the Joint Statement of Facts that highlights
those responses that Defendants contend should be struck.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court grant their
Motion to Strike and issue such other and further relief that it believes to be just and proper
under the circumstances.
Respectfully submitted,
PATRICK SEAN TYLER and
RANDSECO, LLC
By their attorneys,
4s/ 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
Dated: March 15, 2022CERTIFICATE OF SERVICE
I, 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 022:10-2600
mboudett@foleyhoag.com
jfullmer@foleyhoag.com
sf Laura Lee MittelmanEXHIBIT AEXHIBIT 12 AFFIDAVIT OF CHARLES T. LELON
Paragraph
Sentence
Objection
4
Although Randseco employees (other than Mr. Tyler)
helped with coding and other tasks, as Chairman I always
understood this to be a Transformative (or Fallon) project,
in part because Mr. Tyler was managing it, and that it was
to benefit our relationship with MGB.
Lack Of Personal Knowledge, Conclusion, Speculation
If Transformative needed documentation of its ownership,
T would have expected Mr. Tyler as CEO to ensure that
we had such documentation.
Lack Of Personal Knowledge, Conclusion, Speculation
In connection with the COVID testing initiative,
Transformative developed software to transmit test result
data to and from Quest Diagnostics and patients,
Lack Of Personal Knowledge, Speculation
Randseco personne! helped with this initiative, but it was
a Transformative project.
Lack Of Personal Knowledge, Speculation
In May, 2020, however, Randseco published a press
release on its website identifying the resulting test data
software product as having been “built by Randseco” and
stating that it was “available today” from Randseco.
Lack Of Personal Knowledge
A true and accurate copy of this press release is filed
herewith as Exhibit 13.
Lack Of Personal Knowledge
Mr. Spencer saw this and brought it to my attention,
Lack of Personal KnowledgeParagraph Sentence Objection
7 We agreed that it was completely improper, and thathe | Hearsay
would speak to Mr. Tyler about it.
7 He reported back to me that he spoke to Mr. Tyler, and | Hearsay
Mr. Tyler said the statements were “a mistake” and that he
would have Randseco take the press release down,
8 We have since leamed in discovery that Mr. Tyler made | Lack of Personal Knowledge, Speculation
otter attempts to appropriate this project from
Transformative to Randseco,
8 Filed herewith as Exhibit 14 is a true and accurate copy of | Lack of Personal Knowledge to authenticate this Exhibit.
an e-mail dated May 21, 2020, ftom Mr. Tyler to an The Exhibit also contains hearsay.
“~~ “"Yexecutive at Quest Diagnostics niméd Michael McCarroll ~ . oO
8 Init, he characterizes the Quest partnership as being with | Lack of Personal Knowledge, Conclusion, Speculation,
Transformative, but then states that “Randseco and Quest | the Document, iffadmissible, would speak for itself.
is [sic] the key to this success” and invites Mr. McCarroll
to follow up with Mike Silk, “the Randseco sales expert.”
8 Had he done so, we would not have approved it, because | Conclusion, Speculation
it basically constitutes an attempt to steal a
Transformative asset.
9 Beginning in July, 2020, Mr. Tyler started sending us | Conclusion, Speculation
ambiguous signals about whether he wanted to remain as
CEO of Transformative, and hinted that he might resign,Paragraph
Sentence
Objection
Mr. Tyler has been aware since at least March, 2021,
when we filed our Amended Complaint, that we have
been demanding refund of this money.
Lack of Personal Knowledge, Speculation
As he now admits, he did so by improperly accessing and
using a company list of employees’ personal addresses (on
domains such as gmail.com, northeastern.edu, etc.),
Lack of Personal Knowledge, Conclusion, Speculation
Rather, it was clearly timed so that employees would see
it late at night or first thing in the moming, without any
accompanying communication from the company.
Lack of Personal Knowledge, Conclusion, Speculation
12
Mr. Tylet’s improper use of company records to send this
resignation e-mail on his way out the door caused harm to
Transformative.
Lack of Foundation, Conclusion, Speculation
12 As such, it was calculated to, and did, spread Lack of Foundation, Lack of Personal Knowledge,
consternation and alarm throughout our workforce during | Conclusion, Speculation
atime when there was a national, ongoing shortage of
EMS professionals and our workforce had very high stress
levels due to being on the front lines during the pandemic,
3 We discovered several things. Lack of Personal Knowledge
13 First, we discovered that all of his correspondence with | Lack of Personal Knowledge, Conclusion, Speculation
MGB was missing from his e-mail folders,Paragraph
Sentence
Objection
13 MGB was our company’s largest customer, and Mr. Tyler | Lack of Personal Knowledge, Lack of Foundation,
would have participated in or been copied on regulare- | Conclusion, Speculation
mails with MGB personnel.
13 A true and accurate copy of an example such email is | Mr. Lelon is unable to authenticate this Exhibit. The
attached as Exhibit 16, which was obtained from our Exhibit contains hearsay.
company server in discovery.
13 There would have been many other similar documents in | Lack of Foundation, Lack Of Personal Knowledge,
the regular course of business. Conclusion, Speculation
14 For instance, they referred to Mr. Spencer and myself'as / Conclusion, Speculation, the Document Speaks for Itself
“those shitbags” and “the enemy”, and when Mr.
~~~ "Y'Thompson asked how riuch they were allowed'to “break” ~~ —
Fallon, Mr. Tyler responded “a fot.”
14 They planned to cause a “server catastrophe” and to Conclusion, Speculation, the Document Speaks for itself
“nuke” the apps that Randseco was providing to us,
14 In particular, Mr. Tyler wrote on October 8, 2020 that | Conclusion, Speculation, the Document Speaks for itself
they would “kill STATCall and then move to FASTCall,”
and then “kill” the “MDTs” (Mobile Data Terminals,
which were run by Randseco software called
STATMobile) during “day time hours.”
15 We also discovered via the Slack channel messages Mr. | Conclusion, Speculation
Tyler left open that he and Randseco had co-opted our
head of Information Technology, Jim Harris,Paragraph
Sentence
Objection
15
Mr. Tyler then persuaded Mr. Harris to give him a server
from company premises, without getting authorization
first from me or Mr. Spencer,
Lack of Foundation, Conclusion, Speculation
16
One of them, Dr. Scott Goldberg, told us that Mr. Tyler
had disparaged Kamylon before resigning (see Thomas
Aff).
Hearsay
16
In the context of the EPIC Integration Project being
scheduled to go live in mid-October, we informed MGB
that Randseco personnel were threatening our servers and
our software.
Hearsay
") The MGB personnel We spoke with were shocked to learn
that a separate company called Randseco had a significant
role in the project, that Mr. Tyler was President of that
company, and that Randseco was now threatening us,
MGBs medical transportation provider.
Hearsay, Conclusion, Speculation
16
MGB personnel told us they had understood that the EPIC
Integration Project was a Transformative project.
Hearsay
16
In the circumstances, they decided that the project had to
be stopped.
Hearsay, Speculation, Lack of Foundation
16
This caused significant harm to our relationship, because
from MGB’s perspective it caused years of work to be
wasted,
Hearsay, Conclusion, Speculation, Lack of FoundationParagraph
Sentence
Objection
17
In the discussions with MGB after Mr. Tyler’s
resignation, we also learned that, contrary to Mr. Tyler’s
statements to us in management meetings, MGB was
highly dissatisfied with the transportation service levels,
we were providing under his leadership.
Hearsay, Conclusion, Speculation, Lack of Foundation
1
They had made this clear to Danielle Thomas, the
employee who had the day-to-day responsibility for trying
to maintain the MGB relationship, and she had told Mr.
Tyler.
Hearsay, Conclusion, Speculation, Lack of Foundation
However, Mr. Tyler did not tell anyone on the board about
the extent of the problems,
Speculation
We learned that MGB had even sent an e-mail on
September 3, 2020 which demanded service level
improvements and threatened to put Fallon on a
performance improvement plan.
Hearsay, Conclusion, Speculation, the document, if one
exists and if' admissible, would speak for itself.
This e-mail should have been immediately forwarded to
the board of directors,
Conclusion, Speculation, Lack of Foundation
Instead, Mr. Tyler limited his reply to Ms. Thomas and
others who reported to him, and - remarkably — instructed
them that they should “take the email from [MGB] as a
positive.”
Conclusion, Speculation
A true and accurate copy of this email threat is filed
herewith as Exhibit 16.
Mr. Lelon lacks personal knowledge to authenticate this
Exhibit. The Exhibit also contains hearsay.Paragraph
Sentence
Objection
1
This was inexcusable, and a direct and clear violation of
Mr. Tyler's fiduciary duty.
Legal Conclusion, Speculation
In short, upon Mr. Tyler’s resignation we learned that our
relationship with MGB was in tatters as a result of his
actions.
Hearsay, Conclusion, Speculation, Lack of Foundation
In fact, it was clear that this was his explicit goal,
Conclusion, Speculation, Speculation, Lack of
Foundation
18
Fallon’s MGB contract.
On October 14, 2020, he wrote in a Slack channel
message that “the key is to let Fallon fall flat,” referencing
The Document Speaks for Itself
18
This statement from our own CEO, eight days after he
resigned, shows his intent to damage our contractual
relationship with MGB through his disparagement, his
failure to provide proper service levels, and his hiding all
these issues from the board of directors of Transformative.
Conclusion, Speculation, the Document Speaks for Itself
A failure by Fallon would have presented a business
opportunity to Randseco, in that they could sell software
to Fallon’s replacement,
Conclusion, Speculation
In fact, Tyler himself wrote to his compatriots at
Randseco that Randseco could sell software for “$1M” to
Fallon’s eventual replacement.
Conclusion, Speculation, the Document Speaks for Itself
Mr. Tyler’s actions did in fact fiarm our relationship with
MGB.
Conclusion, Speculation, Lack of FoundationParagraph
Sentence
Objection
19
Instead of granting Fallon a new multi-year contract, as
had been their practice when the relationship was going
well, they put us on 6 months of probationary status, and
let us know that it was questionable whether we would be
renewed after that.
Hearsay, Conclusion, Speculation
19
In response, we had to divert all our resources to MGB in
order to improve call response times - at times even going
so far as have idle units waiting for potential MGB calls -
to try and salvage the relationship.
Conclusion, Speculation
19
This cost us large amounts of lost revenue from other
customers whom we could not service promptly, as well
as increased costs'through inefficiencies.
Conclusion, Speculation
Tn the end, MGB did not renew Fallon’s contract after this
probationary period, even though our performance had
improved.
Conclusion, Speculation
19
The loss of the MGB relationship, and the other business
losses we suffered as a result of trying to salvage that
relationship, are directly attributable to Mr. Tyler’s efforts
to sabotage Transformative with MGB.
Conclusion, Speculation, Lack of Foundation
20
We also leamed after Mr. Tyler’s resignation that he had
seriously neglected certain basic management duties,
Hearsay, Conclusion, Speculation
20
We learned that he had failed to cause our Medical
Director, Dr. Schoenfeld, to be paid for over three years,
Hearsay, Conclusion, SpeculationParagraph Sentence Objection
20 This was despite Dr. Schoenfeld appealing directly to Mr. | Hearsay, Conclusion
Tyler for the overdue payments,
20 A true and accurate copy ofan email summarizing this | Mr. Lelon is not able to authenticate this Exhibit.
situation is filed herewith as Exhibit 17.
vi This is absurd. Conclusion
20 Ambulance companies such as Fallon are required to Conclusion, Lack of Foundation
retain a medical director by state law.
21 We also learned that Mr. Tyler had failed to maintain | Hearsay, Speculation
~~~ | licenses to operate fromm thie Commonwealth of .
Massachusetts pertaining to three of our subsidiaries
(Fallon, Lifeline, and FEMS).
| We leamed that the Commonwealth had been contacting | Hearsay, Speculation
us since April 2020 asking for information pertaining to
our license renewal, and nothing had been provided,
despite direct inquiries to Mr. Tyler, our CEO.
21 By December, 2020, the state had issued us an “order to | Hearsay
correct.”
21 This was embarrassing and harmful to the company, with | Conclusion, Speculation, Lack of Foundation
the Commonwealth being not only our licensing authority
but our partner for large-scale testing and vaccination
services.Paragraph
Sentence
Objection
2
In discovery in this matter, we have learned that Mr. Tyler
began working for Randseco’s interests, and those of
Randseco investor Priority Healthcare, and against the
interests of Transformative, in an ongoing and harmful
manner.
Hearsay, Conclusion, Speculation, Lack of Foundation
2
For instance, in June 2020, the Chief Executive Officer of
MetroWest Medical Center in Framingham sent an e-mail
to Mr. Tyler and to Christopher Walden, an executive at
Tenet Health (parent of MetroWest), thanking them both
for “agreeing to connect.”
Hearsay, Conclusion, Speculation, Lack of Foundation
2
The circumstances strongly suggest that this e-mail was
sent at Mr, Tyler’s request,
Conclusion, Speculation, Lack of Foundation
2
The email states that “Sean has a unique platform to
connect hospitals, ambulances and post-acute care
networks.”
Hearsay, Conclusion, Speculation, Lack of Foundation
2
This clearly refers to the EPIC Integration Project, and it
attributes ownership to “Sean” (Mr. Tyler), not to
Transformative.
Hearsay, Conclusion, Speculation, Lack of Foundation
2
Mr. Tyler responded, copying Dan Starvish at Randseco
but no one at Transformative.
Conclusion, Speculation, Lack of Foundation, The
Document Speaks for Itself
2
He wrote, “Christopher, please let me know a good time
to briefly connect on this exciting project.
Conclusion, Speculation, Lack of Foundation, The
Document Speaks for ItselfParagraph
Sentence
Objection
2
We have bona fides with Partners (Mass General,
Brigham, etc.), George Washington University Medical
Strategy, Hackensack Meridian JFK to name a few.”
Conclusion, Speculation, Lack of Foundation, The
Document Speaks for Itself
2 A true and accurate copy of this email exchange is filed | There is no basis on which Mr. Lelon could authenticate
herewith as Exhibit (8. this Exhibit,
22 Other than MGB, however, the references that Mr. Tyler | Conclusion, Speculation, Lack of Foundation, Lack of
provided to Mr. Walden at Tenet are Randseco customers, | Authentication
not Transformative’s, implying that the “We” he is
referring to is Randseco,
2 Mr. Tyler failed to clarify that the EPIC Integration Conclusion, Speculation, the Document Speaks for Itself,
- ~”) Project belonged to Transformative, Lack of Authentication TT
2 Most tellingly, he only copied a Randseco employee for | Speculation, the Document speaks for Itself, Lack of
follow-up sales discussions, Authentication
2 Mr. Tyler never disclosed to me, or to my knowledge Hearsay, Speculation, Lack of Authentication
anyone on the board of directors, that he was helping
Randseco try to sell this software, as this email clearly
shows he was,
2 We would have immediately objected and taken prompt | Conclusion, Speculation
action to stop it, as it basically constituted theft of a
Transformative asset in my view,
3 We have learned that in August 2020, Mr. Tyler was Hearsay, Speculation, Lack of Authentication
involved in an effort to help Priority Ambulance (which
flParagraph
Sentence
Objection
was an investor in Randseco as of June 2020) sell its
services to a health system called Erlanger.
B Priority’s Vice President of Special Projects referred to | Hearsay, Speculation, Lack of Authentication
Mr. Tyler as “the closer” for Priority’s sale efforts,
3B Mr. Tyler readily agreed, saying “T'll be there” on the key | Conclusion, Speculation, Lack of Authentication
Zoom sales call.
B A true and accurate copy of an e-mail string pertaining to | Mr. Lelon has no basis on which to authenticate this
this meeting is filed herewith as Exhibit 19. Exhibit,
% The e-mail states that Mr. Tyler had performed this role | Hearsay, Lack of Authentication
— ~~ "lfor Priority Before; with success, ~~ ~
B Mr. Tyler never disclosed these activities to me or anyone | Lack of Authentication
else on the Transformative board,
B Had he done so, we would have never allowed our CEO to | Speculation, Lack of Authentication
spend time selling to or on behalf of another ambulance
company while our company was facing major challenges
due to the pandemic,
4 We have learned that in September, 2020 Randseco was / Hearsay, Lack of Personal Knowledge
still working with Priority to sell its STATCall application
to Erlanger.
24 Remarkably, Priority was using the EPIC Integration Conclusion, Speculation
Project software - a Transformative asset - as its selling
point,Paragraph
Sentence
Objection
4
On September 14, 2020, an Erlanger employee named
Alisha Rice asked Priority to provide “{t}he name/contact
info for other organizations that successfully integrated
StatCall with EPIC?”
Hearsay, Conclusion, Lack of Authentication
4 Priority forwarded this request to Mr. Tyler, and Mr. Tyler | Hearsay, Conclusion, Lack of Authentication
responded by providing the contact information for Alice
King at MGB - Transformative’s customer.
24 A true and accurate copy of an e-mail string containing | Mr. Lelon has no basis on which to authenticate this
this exchange is filed herewith as Exhibit 20, Exhibit.
4 The same email implies that Randseco employee Mike | Hearsay, Conclusion, Speculation, Lack of
~~ PSilk had provided MGB’s flow diagrams~ which are part | Authentication . .
ofthe EPIC Integration Project -to Erlanger.
24 Mr. Tyler did not copy anyone from the Transformative | Lack of Personal Knowledge, Lack of Authentication
board of directors on this e-mail string, nor did he inform
me (or to my knowledge any other board member) or ask
our permission to leverage our customer relationship to
aid Priority,
4 Had he asked us, we would have forbidden it. Speculation
35 The programs that failed were the ones specified in Mr. | Conclusion, The Documents Speak for Themselves
Tyler’s threat written on October 8, 2020: “kill STATCall
and then move fo FASTCall,” and then “kill” the Mobile
Data Terminals (which relied on STATMobile).Paragraph Sentence Objection
35 After performing a reasonable investigation with the help | Hearsay, Conclusion
of IT security experts, we have no indication that any
random “hacker” or any third party caused this,
25 Randseco is the only entity that would have the access and | Conclusion, Speculation, Lack of Foundation, Hearsay
ability to do so,
25 Given all these circumstances, I strongly believe that Conclusion, Speculation, Irrelevant
Randseco caused these disruptions,
14Exhibit 25 - AFFIDAVIT OF DANIELLE THOMAS
Paragraph
Sentence
Objection
2
Thus, I would expect that Mr. Tyler’s desktop computer,
while he still worked with Transformative, would have had
many e-mails relating to MGB in his exchange folders,
Conclusion, Speculation, Lack of Foundation
3 Starting in the summer, however, MGB expressed serious | Hearsay
dissatisfaction with our on-time performance to me.
3 Each time, he said that we need to improve, or fix things, | Speculation, Lack of Foundation, Lack of Personal
or words to that effect, but he never devoted the resources | Knowledge
to do so.
3” | Instead, he kept devoting resources to our COVID testing | Speculation, Lack of Foundation, Lack of Personal
effort (including paying staff overtime for such work), and | Knowledge
told us not to let MGB know we were doing this,
3 Twas increasingly uncomfortable with this situation as the | Irrelevant, More Prejudicial than Probative
summer progressed,
5 One example of correspondence with MGB is an e-mail | Exhibit 16 contains hearsay.
exchange with Brian Yorko dated Sept. 2-3, 2020
{submitted herewith as Exhibit 16).
5 This surprised me, since MGB was expressing a high level | Hearsay, Irrelevant, More Prejudicial than Probative
of unhappiness, stating that they had heard elsewhere that
we were devoting trucks to COVID testing instead of
serving them (which was true), and stating that they would
put us on a performance improvement plan if the situation
did not change,Paragraph
Sentence
Objection
I did not see it as a “positive,” and was concerned that our
relationship with MGB was in trouble, but felt that I had
to follow Mr. Tyler’s direction,
Conclusion, Irrelevant, More Prejudicial than Probative
Tn one of them, Dr. Scott Goldberg of MGB told me that
Mr. Tyler had told him that Transformative had been
underperforming because “Kamylon had been starving the
company of resources,” or words to that effect.
Hearsay
After Mr. Tyler's resignation, I also heard many
individuals at MGB express frustration and dismay about
the Epic Integration Project.
Hearsay
We told them that Randseco had played a significant role
in the project.
Hearsay
MGB said they had to stop the project which had been
scheduled to go live soon,
Hearsay
Various MGB personnel stated that they had understood
this to be a Transformative project.
Hearsay
They also stated that this was causing years of work to be
wasted,
Hearsay
This harmed our relationship with MGB, which was
already facing difficulties,
Conclusion, SpeculationEXHIBIT 26 AFFIDAVIT OF MICHAEL DECOSTA
Sentence
Objection
This Sort of system-wide outage, with problems
happening across all of Randseco’s software programs,
had never happened before and were suspicious.
Conclusion, Speculation
Tbelieved at the time that Randseco was intentionally
causing our applications to malfunction, and I stilt believe
that to be the case,
Speculation, Imelevant, More Prejudicial Than ProbativeEXHIBIT 27 AFFIDAVIT OF RICHARD A. SPENCER
Paragraph
Sentence
Objection
3
Although Randseco employees helped with coding and
other tasks, | always understood this to be a
Transformative project building a custom integration for
MGB.
Lack of Personal Knowledge
The Commonwealth of Massachusetts requested us to
implement a mobile COVID testing operation.
Hearsay
This was a Transformative project in which I was
involved at Tyler’s request and played a coordinating role,
Conclusion
In May, 2020; however, Fsaw that Randseco published a
new product page and press release on its website
identifying a COVID test and result software product as
having been “built by Randseco” and stating that it was
“available today” from Randseco.
Lack of Personal Knowledge, Hearsay ~
A true and accurate copy of this press release is being
submitted as Exhibit 13,
Mr. Spencer is unable to authenticate this document.
We have since learned in discovery that Randseco
offering the testing data software for sale was not a
“mistake” at all, but appears to have been part of a
coordinated plan to appropriate this project from
Transformative to Randseco.
Conclusion, Speculation, Lack of Personal KnowledgeParagraph
Sentence
Objection
Mr. Tyler has been aware since at least March, 2021,
when we filed our Amended Complaint, that we have
been demanding refund of this money,
Lack of Personal Knowledge, Conclusion, Speculation
10
As he now admits, he did so by improperly accessing and
using a company list of employees’ personal addresses (on
domains such as gmail.com, northeastemn.edu, etc.)
Conclusion, Speculation
Rather, it was clearly timed so that employees would see
it late at night or first thing in the morning, without any
accompanying communication from the company.
Lack of Personal Knowledge, Conclusion, Speculation
Mr. Tyler’s improper use of company records to send this
resignation e-mail-on his way out the door caused harm to
Transformative.
Conclusion, Speculation, Lack of Foundation
As such, it was calculated to, and did, spread
constemation and alarm throughout our workforce, during
atime when performance at our top customers was
challenged, there was a national shortage of EMS
professionals and our staff were experiencing very high
stress levels due to being on the front lines during a
pandemic,
Lack of Personal Knowledge, Conclusion, Speculation
First, I noticed that all of his correspondence with MGB
was missing from his exchange e-mail folders,
Lack of Personal Knowledge, Conclusion, Speculation
MGB was our company’s largest customer, and Mr. Tyler
was deeply involved in all aspects of communication with
Lack of Personal Knowledge, Conclusion, SpeculationParagraph
Sentence
Objection
MGB and would have participated in or been copied on
regular e-mails with a wide array of MGB personnel,
A true and accurate copy of an example such email is
being submitted as Exhibit 16.
Mr. Spencer is unable to authenticate this document,
This document, which was quite important as discussed
below, was not in his mail folders on the Company’s
exchange server,
Conclusion
There would have been many other similar documents in
the regular course of business,
Speculation, Lack of Personal Knowledge, Lack of
Foundation
We also discovered via the Slack channel messages Mr.
Tyler left open that he and Randseco had co-opted our
head of Information Technology, Jim Harris.
Conclusion, Speculation, Lack of Foundation;Lack of --
Personal Knowledge
Mr. Tyler wrote on October 6, 2020 that Mr. Harris “is
one of us” and “whatever we need he will provide.”
Mr. Tyler then persuaded Mr. Harris to give him a server
from company premises, without checking with me or Mr.
Lelon (in fact, as [ testified in my deposition, Mr. Harris
and I had an earlier conversation in which we both agreed
not to give the server to Randseco if Mr. Tyler resigned).
Lack of Personal Knowledge, Conclusion, Speculation
15
One of them, Dr. Goldberg, told us that Mr. Tyler had
disparaged Kamylon before resigning (see Affidavit of
Danielle Thomas, filed herewith).
Hearsay, Lack of Personal knowledgeParagraph Sentence Objection
1 The MGB personnel we spoke with were shocked to learn | Hearsay
that a separate company called Randseco had a significant
role in the project, or that Randseco might be in a position
to threaten to or actually “kill” the project.
15 MGB personnel told us they had understood that the EPIC | Hearsay
Integration Project was a custom MGB-Transformative
project.
15 MGB also invested significant internal resources on this | Hearsay, Lack of Personal Knowledge, Conclusion,
project over more than two years with the intent it would | Speculation
benefit only MGB.
~- | Inthe circumstances, they decided that the project Hearsay, Lack of Personal Knowledge; Conclusion; ---}
unfortunately had to be stopped. Speculation
15 This caused significant harm to our relationship, because | Hearsay, Lack of Personal Knowledge, Conclusion,
from MGB’s perspective it caused years of work tobe —_| Speculation
wasted,
16 In the discussions with MGB after Mr. Tyler’s Hearsay, Lack of Personal Knowledge
resignation, we also learned that, directly contrary to Mr.
Tyler’s statements to us in management meetings, MGB
was highly dissatisfied with the medical transport service
levels we were providing under his leadership.
16 We leamed that MGB had even sent an e-mail on Hearsay, Lack of Personal Knowledge, Conclusion,
September 3, 2020 which demanded service level
improvements and threatened to put Fallon on a
SpeculationParagraph
Sentence
Objection
performance improvement plan, a contractual precursor to
a potential contract termination.
16 A true and accurate copy of this email threat is being Mr. Spencer is unable to authenticate this document,
submitted as Exhibit 16.
16 This was inexcusable, and a direct and clear violation of —} Legal Conclusion
Mr. Tyler’s fiduciary duty,
1 In short, upon Mr. Tyler’s resignation we leamed that our | Hearsay, Lack of Personal Knowledge, Conclusion,
relationship with MGB was in tatters as a result of his | Speculation
actions.
17- ~-—Fln-fact, it was clear that this washis-explicit goal. - Lack of Personal Knowledge, Conclusion; Speculation~-|- - ~~~
Lack of Foundation
17 This statement from our own CEO, a week after he Lack of Personal Knowledge, Conclusion, Speculation,
resigned, shows his very explicit intent to damage our —_| Lack of Foundation
contractual relationship with MGB through his
disparagement, his failure to provide proper service levels,
and his hiding all these issues from the board of directors
of Transformative,
18 Mr. Tyler’s actions did in fact harm our relationship with | Conclusion, Speculation, Hearsay
MGB.
18 Instead of granting Fallon a new multi-year contract, as | Hearsay
had been their practice when the relationship was going
well, they put us on 6 months of probationary status, andParagraph
Sentence
Objection
Jet us know that it was extremely questionable whether
that would be renewed.
In response, we had to divert all our resources to MGB in
order to improve call response times — at times even going
$0 far as have idle units waiting for potential MGB calls -
to try and salvage the relationship.
Conclusion, Lack of Foundation, Speculation
This cost us large amounts of lost business with other
customers whom we could not service promptly.
Lack of Foundation, Speculation
In the end, MGB did not renew Fallon’s contract after this
probationary period, even though our performance had
--improved, 9-9 ~~ :
Lack of Foundation, Speculation
The loss of the MGB relationship, and the other business
losses we suffered as a result of trying to salvage that
relationship, are directly attributable to Mr. Tyler’s
explicit efforts to sabotage Transformative.
Lack of Personal Knowledge, Conclusion, Speculation
We also learned shortly after Mr. Tyler's resignation that
he had seriously neglected certain basic management
duties.
Hearsay, Lack of Personal Knowledge, Conclusion,
Speculation
19
We leamed that he had failed to cause our Medical
Director, Dr. Schoenfeld, to be paid for over three years,
and failed to maintain licenses to operate from the
Commonwealth of Massachusetts pertaining to three of
our subsidiaries (Fallon, LifeLine, and FEMSI),
Hearsay, Lack of Personal Knowledge, Lack of
FoundationParagraph
Sentence
Objection
20 In discovery in this matter, we have leaned that Mr. Tyler ) Hearsay, Lack of Personal Knowledge, Conclusion,
began working for Randseco’s interests, and those of | Speculation
Randseco investor Priority Healthcare, and against the
interests of Transformative, in an ongoing and harmful
manner starting earlier in 2020.
21 After performing a reasonable investigation with the help | Hearsay, Conclusion, Speculation, Lack of Personal
of information technology vendors, we have no indication | Knowledge
that any random “hacker” or any third party other than
Randseco caused this,
21 strongly believe that Randseco intentionally caused these | Speculation, Irrelevant, More Prejudicial Than Probative
disruptions.EXHIBIT BCOMMONWEALTH. OF MASSACHUSETTS
SUFFOLK, SS. | SUPERIOR COURT DEPARTMENT
' BUSINESS LITIGATION SESSION
CIVIL ACTION NO. 2084-CV-02375-
BLSI
TRANSFORMATIVE HEALTHCARE, INC. )
and FALLON AMBULANCE SERVICE, LLC, )
)
Plaintiffs, : )
)
y )
)
PARICK SEAN TYLER and RANDSECO, LLC, )
)
Defendants. )
)
JOINT STATEMENT OF MATERIAL FACTS CONCERNING
DEFENDANTS’ MOTION FOR SUMMARY JUDGME
Pursuant to Superior Court Rule 9A(b)(5), Defendants submit this Statement of Facts in
Support of their Motion for Summary Judgment:
1, In January of 2001, Mr. Tyler became Executive Vice President and Chief
Operating Officer of Fallon Ambulance Services, Inc. (“Fallon”). Exhibit 1, 73.
Response: Admitted.
2. 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.
Exhibit 1, { 4.
Response: Transformative does not have requisite knowledge to admit or deny the
alleged facts in this paragraph.3. Not only was Timothy Fallon, Fallon’s CEO, fully aware that Mr. Tyler had
started Randseco, but Mr. Fallon executed a edptract with Randseco that gave Fallon a license to
use Randseco’s software (the “Randseco-Fallon Agreement”). Exhibit 1, 4, and Exhibit 2.
Response: Admitted that Mr. Fallon executed a contract with Randseco. Transformative
does not have requisite knowledge to admit or deny the remaining alleged facts in this paragraph,
including Mr. Fallon’s state of mind.
4. In 2018, Fallon was acquired by Transformative Healthcare, Inc.
(“Transformative”), and Mr. Tyler was named President and CEO of Transformative. Exhibit 3,
4 15 and Exhibit 1, 95.
Response: Admitted.
5. Thereafter, Transformative, Randseco, and Transformative’s largest client,
Partners HealthCare (which later became known as Mass General Brigham) (collectively,
“Partners/MGB”) began working on a project to allow Randseco’s software to communicate
directly with Partners/MGB’s electronic medical records system. Exhibit 1, 5.
Response: Disputed to the extent that Paragraph 5 implies that the Transformative/MGB
project to integrate Transformative’s software, licensed from Randseco, was Randseco’s project.
{It was Transformative’s project, Exhibit 12, 912, 4, 16.
6. The purpose behind this project was to make Fallon’s deployment of ambulances
for Partners/MGB even more efficient and effective. Exhibit 1, 5.
Response: Admitted.
7. The software that Randseco was developing in connection with this project was
known as the “Integration Software.” Exhibit 3, ] 55.
!Response: Admitted that the project was called the “Integration Software.” Disputed to
the extent Paragraph 7 implies the project was Randseco’s. It was Transformat i project
‘designed specifically for MGB where individuals from Transformative and MGB also’
‘contributed. Exhibit 12, 4 2, 4, 16; Exhibit 22, at 45:18-46:8,
8. 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. Exhibit 1, 16, Exhibit 4, ] 3.
Response: Denied that Randseco was clear to Partners/MGB that Randseco and not
Fallon or Transformative were responsible for developing the Integration Software. Exhibit 9, at
159:9-162:8; Exhibit 12, { 16. Further disputing to the extent Paragraph 8 implies the project
where)
individuals from Transformative and MGB also contributed }Exhibit 12, 42, 4, 16; Exhibit 22,
at 45:18-46:8.
9. 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. Exhibit 1, 47.
of the Company did not occu
‘July of 2020, Exhibit 12, 9.
10. Once the Covid-19 crisis hit and threatened to destroy Fallon’s business, however,
Mr. Tyler agreed to suspend those discussions. Exhibit 1, ] 7.Response: Disputed that Tyler discusséd leaving Transformative in Early 2020, and that
any conversations about Tyler transitioning out of the Company did not occur until July of 2020.
Exhibit 12, ] 9.
Ll In fact, Mr. Tyler conceived and implemented a wholly new business for Fallon
that revolved around mobile testing for Covid-19. Exhibit 1, ] 8.
Response: Disputed. The mobile testing for Covid-19 was a group effort with many key,
butors,'See Exhibit 22, at 53:13-55:5; Exhibit 9, at 44:4,
12. While Fallon still struggled over the next several months, the mobile testing
business was an enormous success, and Fallon likely would have gone out of business if Mr.
Tyler had not implemented it. Exhibit 1, ] 8.
Response: Admitted that the mobile testing business was a success. Transformative
denies the remaining alleged facts in Paragraph 12. See Exhibit 12, { 6.
13. In the summer of 2020, Mr. Tyler renewed discussions with Messrs. Lelon and
Spencer about transitioning out of Transformative, and he 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. Exhibit 1, 79.
_ through January.2021 ,Exhibit 12, 9.
14. 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. Exhibit 1, 4 10.
Response: Denied in so far as this paragraph alleges this took place on September 4",
‘instead of September 3! See Exhibit 33,I
|
!
|
t
15. The parties continued their discussions, and on September 19, Mr. Tyler sent a
term sheet for his transition. One of the provisions therein was a $28,000 signing bonus due
|
upon acceptance of the terms in the term sheet, which Transformative paid. Exhibit 1, ] 10.
Response: Disputed that this payment was a “signing bonus” and that the $28,000 was
tually acceptable final terms for the transition agreement j Exhibit 12, 10.
16. 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. Ex 1,41.
Response: Disputed that the agreement contained an “overly broad” restrictive covenant.
Further stating an and the: ‘draft ft agreement speaks fc for itself! i
17. Mr. Tyler was upset with this because he had been very clear that he would not
agree to any restrictive covenant. Exhibit 1, { 11.
Response: Transformative does not have requisite knowledge to admit or deny the
alleged facts in this Paragraph concerning Mr. Tyler’s emotions.18. He then emailed a response thatloutlined acceptable terms and stated that if
|
. : I : : . .
Transformative did not agree to them by October 6, his resignation would be effective on
October 7. Exhibit 1, { 11.
Response: Disputed that Tyler told Transformative if they did not agree to his “options”
by October 6", his resignation would be effective on October 7". Exhibit 35. ‘Further stating)
ithis e: mail was sent o
before he allegedly said his resignation would take take effect. Exhibit 3
19. 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, Exhibit 1, 4 12.
20. 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.
Exhibit 1, 412.21. Atno time, however, did Mr. Tyler download or delete any Fallon or
Transformative confidential information except in the ordinary course of his work for Plaintiffs.
Exhibit 1, | 12.
Response: Disputed that Tyler did not download or delete any confidential information,
22. 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. Exhibit 1, § 13, Exhibit 4, 4, and Exhibit 5, § 3.
Response: Disputed that Tyler and Randseco employees were merely “venting their
ing ways to harm’ just
4
s/MGB. Exhibit 12, {9 14-
server failure would sucl
23. 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. Exhibit 1, | 13, Exhibit 4, ] 4, and Exhibit 5, { 3.
Response: Disputed that no one from Randseco took action
Preview
“% 26 COMMONWEALTH OF MASSACHUSETTS BUSINESS LITIGATION SESSION CIVIL ACTION NO. 2084-CV-02375- | | SUFFOLK, SS. | SUPERIOR COURT DEPARTMENT | BLSL TRANSFORMATIVE HEALTHCARE, INC. ) and FALLON AMBULANCE SERVICES, LLC, ) | Plaintiffs, i v. ' PARICK SEAN TYLER and RANDSECO, LLC, Defendants. ere | | | | \ 1 ~ ot : : DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO stk IKE ; MATERIALS SUBMITTED BY PLAINTIFFS IN OPPOSITION:TO ‘°° _ DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT :. eo i Because large portions of the affidavits and exhibits Plaintiffs submitted in oppositionto =~ + Defendants’ Motion for Summary Judgment constitute rank hearsay and/or otherwise would not be admissible in evidence, Defendants move to strike them from the summary judgment record. | Defendants also move to strike various of Plaintiffs’ responses to Defendants’ proposed statements of fact because such responses blatantly violate the mandate in Superior Court Rule 9A(b)(5)(iii)€A) that a party opposing summary judgment should simply admit or deny a proposed statement and not include additional information (other than a supporting citation). ARGUMENT After being served with Defendants’ Motion for Summary Judgment and supporting 1 materials, Plaintiffs served Defendants with an Opposition that included the Affidavit of Richard Spencer (“Spencer Aff.”), the Affidavit of Charles Lelon (“Lelon Aff.”), the Affidavit ofDanielle Thomas (“Thomas Aff.”), the Affidavit of Michael DeCosta (“DeCosta Aff.”), various other proposed exhibits and a Joint Statement pf Facts that includes Plaintiffs’ responses (“SOF”). Large portions of these materials fail to comply with Rule 56(e) of the Massachusetts Rules of Civil Procedure. They should be struck and not considered on summary judgment. I. Only Information That Would Be Admissible In Evidence At Trial May Be Considered On Summary Judgment As this Court is well aware, Rule 56(e) of the Massachusetts Rules of Civil Procedure states that on summary judgment “(s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” This requirement also applies to documents, which should be struck and not considered in connection with a motion for summary judgment if the party relying on them has not established that they would be admissible at trial. Finn v. Consol. Rail Corp., 782 F.2d 13, 16 (Ist Cir. 1986). I. This Court Should Strike And Refuse To Consider Exhibits 14, 16, 17, 18, 19 and 20 A. The Exhibits At Issue Have Not Been Authenticated Because unauthenticated documents plainly would be inadmissible at trial, such documents fail to comply “with Rule 56(c), . s [are] not in a form appropriate for summary judgment consideration and should [be] stricken from the record upon [a party’s] motion [to strike].” Cruickshank v. Com. Ins. Co., 2004 Mass. App. Div. 109 (2004); see also Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976) (“Exhibits which have not had a proper foundation laid to authenticate them cannot support a motion for summary judgment.”). Further, to properly authenticate a document, the offering party must provide “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Mass. G. | Evid. § 901(A); Gent v. Teadyne, Inc., No. 07104676-BLS2, 2010 WL 5071862, at *8 (Sup. Ct. 2of Mass. Oct. 8, 2010). Finally, ifa documentlis authenticated by affidavit, the affiant must be someone who has personal knowledge that the document is what the offering party purports it to be. See 8 Mass. Practice Series (J.W. Smith & H.B. Zobel) § 56.7 at 358 (1993) (“The court will not consider ... exhibit[s] unless the affiant is a person through whom, and his . . . testimony through which, the exhibit[s] could be introduced into evidence at a trial.””). In this case, because Exhibits 14, 16, and 18-20 are not properly authenticated, all of them should be struck. While Charles Lelon purports to authenticate Exhibits 14, 16 and 18-20 (among others), he is not even referenced on those documents, and there is nothing to suggest that he would have personal knowledge that any of them are what he claims them to be. For this reason alone, they should be struck and not considered on summary judgment. B Exhibits 14, 16, 17, 18, 19 and 20 Contain Inadmissible Hearsay Even if Exhibits 14, 16, 17, 18, 19, and 20 were (or could be) authenticated, they still should be struck and not considered on summary judgment because each plainly constitutes hearsay, which is not admissible in evidence. See, e.g., Barraford v. T&N Lid., 988 F. Supp. 2d 81 (2013) (striking from summary judgment record evidence containing inadmissible hearsay). I. This Court Should Strike And Refuse To Consider Portions Of The Affidavits Plaintiffs Submitted In Opposition To Summary Judgment The requirements in Rule 56(e) that a summary judgment affidavit be made on the affiant’s personal knowledge and comprise facts that would be admissible in evidence “are mandatory.” Madsen v, Erwin, 395 Mass. 715, 719 (1985). As such, affidavits (or portions thereof) that (i) constitute hearsay; (ii) are made on information and belief, (iii) contain legal or factual conclusions; and/or (iv) comprise speculation and/or conjecture should be struck and not considered on summary judgment. Garside v. Osco Drug, Inc., 895 F2d 46, 50 (Ist Cir. 1990) (a “third party’s description of [another’s] supposed testimony is not suitable grist for the summaryjudgment mill.”); Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968, 968 (1976) (‘All affidavits or portions thereof made on information and belief, as opposed to personal knowledge, are to be disregarded in considering a motion for summary judgment”); Stanton Indus., Inc. v. Columbus Mills, Inc., 4 Mass. App. Ct. 793, 794 (1976) (an affidavit should be disregarded on a motion for summary judgment if it was not made on the personal knowledge of the affiant or where he would not be permitted to testify at trial in accordance with the affidavit); Post v. Comm’r of the Dept. of Enviro. Quality Eng., 403 Mass. 29, 35 n.8 (1988) (‘Statements of conclusion are not appropriately part of an affidavit from a nonexpert.”); Maldonado v. Int’! Bus. Mach. Corp., 56 F.R.D. 452, 454 (D.P.R. 1972) (a summary judgment affidavit “is no place for ultimate facts and conclusions of law”); 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”); Mariasch v. Gillette Co., 521 F.2d 68, 71 (1*' Cir. 2008) (“[SJummary judgment cannot be defeated by relying on improbable inferences, conclusory allegations or rank speculation.”). Large portions of the Lelon Aff. Spencer Aff., Thomas Aff., and DeCosta Aff. contain statements that would not be admissible and, therefore should be struck and not considered on summary judgment. As just one example, paragraph 6 of the Thomas Aff. says that “Dr. Scott Goldberg of MGB told me that Mr. Tyler had told him that Transformative had been underperforming because ‘Kamylon had been starving the company of resources,’ or words to that effect.” (Emphasis added.) Plainly, Ms. Thomas never would be permitted to testify at trial as to what Dr. Scott Goldberg told her. Thus, 'the Court should not consider it on summary 1 judgment. Because there are so many other instances of inadmissible information in theaffidavits Plaintiffs have submitted, Defendants have prepared charts (Exhibit A hereto), detailing such instances and setting forth the bases for striking them. Ill. This Court Should Strike The Portions Of Plaintiffs’ Responses To The Statement Facts That Violate Superior Court Rule 9A(b)(5)(iii)(A) Superior Court Rule 9A(b)(5)(ii)(A) limits any response to a moving party’s proposed Statement of Facts to “stating whether a given fact is disputed and, if so, citation] to the specific evidence.” Plaintiffs’ responses go much farther, often including additional facts in the guise of I explaining their denial of a statement. Because there are so many inappropriate responses, Defendants attach hereto as Exhibit B a version of the Joint Statement of Facts that highlights those responses that Defendants contend should be struck. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court grant their Motion to Strike and issue such other and further relief that it believes to be just and proper under the circumstances. Respectfully submitted, PATRICK SEAN TYLER and RANDSECO, LLC By their attorneys, 4s/ 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 Dated: March 15, 2022CERTIFICATE OF SERVICE I, 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 022:10-2600 mboudett@foleyhoag.com jfullmer@foleyhoag.com sf Laura Lee MittelmanEXHIBIT AEXHIBIT 12 AFFIDAVIT OF CHARLES T. LELON Paragraph Sentence Objection 4 Although Randseco employees (other than Mr. Tyler) helped with coding and other tasks, as Chairman I always understood this to be a Transformative (or Fallon) project, in part because Mr. Tyler was managing it, and that it was to benefit our relationship with MGB. Lack Of Personal Knowledge, Conclusion, Speculation If Transformative needed documentation of its ownership, T would have expected Mr. Tyler as CEO to ensure that we had such documentation. Lack Of Personal Knowledge, Conclusion, Speculation In connection with the COVID testing initiative, Transformative developed software to transmit test result data to and from Quest Diagnostics and patients, Lack Of Personal Knowledge, Speculation Randseco personne! helped with this initiative, but it was a Transformative project. Lack Of Personal Knowledge, Speculation In May, 2020, however, Randseco published a press release on its website identifying the resulting test data software product as having been “built by Randseco” and stating that it was “available today” from Randseco. Lack Of Personal Knowledge A true and accurate copy of this press release is filed herewith as Exhibit 13. Lack Of Personal Knowledge Mr. Spencer saw this and brought it to my attention, Lack of Personal KnowledgeParagraph Sentence Objection 7 We agreed that it was completely improper, and thathe | Hearsay would speak to Mr. Tyler about it. 7 He reported back to me that he spoke to Mr. Tyler, and | Hearsay Mr. Tyler said the statements were “a mistake” and that he would have Randseco take the press release down, 8 We have since leamed in discovery that Mr. Tyler made | Lack of Personal Knowledge, Speculation otter attempts to appropriate this project from Transformative to Randseco, 8 Filed herewith as Exhibit 14 is a true and accurate copy of | Lack of Personal Knowledge to authenticate this Exhibit. an e-mail dated May 21, 2020, ftom Mr. Tyler to an The Exhibit also contains hearsay. “~~ “"Yexecutive at Quest Diagnostics niméd Michael McCarroll ~ . oO 8 Init, he characterizes the Quest partnership as being with | Lack of Personal Knowledge, Conclusion, Speculation, Transformative, but then states that “Randseco and Quest | the Document, iffadmissible, would speak for itself. is [sic] the key to this success” and invites Mr. McCarroll to follow up with Mike Silk, “the Randseco sales expert.” 8 Had he done so, we would not have approved it, because | Conclusion, Speculation it basically constitutes an attempt to steal a Transformative asset. 9 Beginning in July, 2020, Mr. Tyler started sending us | Conclusion, Speculation ambiguous signals about whether he wanted to remain as CEO of Transformative, and hinted that he might resign,Paragraph Sentence Objection Mr. Tyler has been aware since at least March, 2021, when we filed our Amended Complaint, that we have been demanding refund of this money. Lack of Personal Knowledge, Speculation As he now admits, he did so by improperly accessing and using a company list of employees’ personal addresses (on domains such as gmail.com, northeastern.edu, etc.), Lack of Personal Knowledge, Conclusion, Speculation Rather, it was clearly timed so that employees would see it late at night or first thing in the moming, without any accompanying communication from the company. Lack of Personal Knowledge, Conclusion, Speculation 12 Mr. Tylet’s improper use of company records to send this resignation e-mail on his way out the door caused harm to Transformative. Lack of Foundation, Conclusion, Speculation 12 As such, it was calculated to, and did, spread Lack of Foundation, Lack of Personal Knowledge, consternation and alarm throughout our workforce during | Conclusion, Speculation atime when there was a national, ongoing shortage of EMS professionals and our workforce had very high stress levels due to being on the front lines during the pandemic, 3 We discovered several things. Lack of Personal Knowledge 13 First, we discovered that all of his correspondence with | Lack of Personal Knowledge, Conclusion, Speculation MGB was missing from his e-mail folders,Paragraph Sentence Objection 13 MGB was our company’s largest customer, and Mr. Tyler | Lack of Personal Knowledge, Lack of Foundation, would have participated in or been copied on regulare- | Conclusion, Speculation mails with MGB personnel. 13 A true and accurate copy of an example such email is | Mr. Lelon is unable to authenticate this Exhibit. The attached as Exhibit 16, which was obtained from our Exhibit contains hearsay. company server in discovery. 13 There would have been many other similar documents in | Lack of Foundation, Lack Of Personal Knowledge, the regular course of business. Conclusion, Speculation 14 For instance, they referred to Mr. Spencer and myself'as / Conclusion, Speculation, the Document Speaks for Itself “those shitbags” and “the enemy”, and when Mr. ~~~ "Y'Thompson asked how riuch they were allowed'to “break” ~~ — Fallon, Mr. Tyler responded “a fot.” 14 They planned to cause a “server catastrophe” and to Conclusion, Speculation, the Document Speaks for itself “nuke” the apps that Randseco was providing to us, 14 In particular, Mr. Tyler wrote on October 8, 2020 that | Conclusion, Speculation, the Document Speaks for itself they would “kill STATCall and then move to FASTCall,” and then “kill” the “MDTs” (Mobile Data Terminals, which were run by Randseco software called STATMobile) during “day time hours.” 15 We also discovered via the Slack channel messages Mr. | Conclusion, Speculation Tyler left open that he and Randseco had co-opted our head of Information Technology, Jim Harris,Paragraph Sentence Objection 15 Mr. Tyler then persuaded Mr. Harris to give him a server from company premises, without getting authorization first from me or Mr. Spencer, Lack of Foundation, Conclusion, Speculation 16 One of them, Dr. Scott Goldberg, told us that Mr. Tyler had disparaged Kamylon before resigning (see Thomas Aff). Hearsay 16 In the context of the EPIC Integration Project being scheduled to go live in mid-October, we informed MGB that Randseco personnel were threatening our servers and our software. Hearsay ") The MGB personnel We spoke with were shocked to learn that a separate company called Randseco had a significant role in the project, that Mr. Tyler was President of that company, and that Randseco was now threatening us, MGBs medical transportation provider. Hearsay, Conclusion, Speculation 16 MGB personnel told us they had understood that the EPIC Integration Project was a Transformative project. Hearsay 16 In the circumstances, they decided that the project had to be stopped. Hearsay, Speculation, Lack of Foundation 16 This caused significant harm to our relationship, because from MGB’s perspective it caused years of work to be wasted, Hearsay, Conclusion, Speculation, Lack of FoundationParagraph Sentence Objection 17 In the discussions with MGB after Mr. Tyler’s resignation, we also learned that, contrary to Mr. Tyler’s statements to us in management meetings, MGB was highly dissatisfied with the transportation service levels, we were providing under his leadership. Hearsay, Conclusion, Speculation, Lack of Foundation 1 They had made this clear to Danielle Thomas, the employee who had the day-to-day responsibility for trying to maintain the MGB relationship, and she had told Mr. Tyler. Hearsay, Conclusion, Speculation, Lack of Foundation However, Mr. Tyler did not tell anyone on the board about the extent of the problems, Speculation We learned that MGB had even sent an e-mail on September 3, 2020 which demanded service level improvements and threatened to put Fallon on a performance improvement plan. Hearsay, Conclusion, Speculation, the document, if one exists and if' admissible, would speak for itself. This e-mail should have been immediately forwarded to the board of directors, Conclusion, Speculation, Lack of Foundation Instead, Mr. Tyler limited his reply to Ms. Thomas and others who reported to him, and - remarkably — instructed them that they should “take the email from [MGB] as a positive.” Conclusion, Speculation A true and accurate copy of this email threat is filed herewith as Exhibit 16. Mr. Lelon lacks personal knowledge to authenticate this Exhibit. The Exhibit also contains hearsay.Paragraph Sentence Objection 1 This was inexcusable, and a direct and clear violation of Mr. Tyler's fiduciary duty. Legal Conclusion, Speculation In short, upon Mr. Tyler’s resignation we learned that our relationship with MGB was in tatters as a result of his actions. Hearsay, Conclusion, Speculation, Lack of Foundation In fact, it was clear that this was his explicit goal, Conclusion, Speculation, Speculation, Lack of Foundation 18 Fallon’s MGB contract. On October 14, 2020, he wrote in a Slack channel message that “the key is to let Fallon fall flat,” referencing The Document Speaks for Itself 18 This statement from our own CEO, eight days after he resigned, shows his intent to damage our contractual relationship with MGB through his disparagement, his failure to provide proper service levels, and his hiding all these issues from the board of directors of Transformative. Conclusion, Speculation, the Document Speaks for Itself A failure by Fallon would have presented a business opportunity to Randseco, in that they could sell software to Fallon’s replacement, Conclusion, Speculation In fact, Tyler himself wrote to his compatriots at Randseco that Randseco could sell software for “$1M” to Fallon’s eventual replacement. Conclusion, Speculation, the Document Speaks for Itself Mr. Tyler’s actions did in fact fiarm our relationship with MGB. Conclusion, Speculation, Lack of FoundationParagraph Sentence Objection 19 Instead of granting Fallon a new multi-year contract, as had been their practice when the relationship was going well, they put us on 6 months of probationary status, and let us know that it was questionable whether we would be renewed after that. Hearsay, Conclusion, Speculation 19 In response, we had to divert all our resources to MGB in order to improve call response times - at times even going so far as have idle units waiting for potential MGB calls - to try and salvage the relationship. Conclusion, Speculation 19 This cost us large amounts of lost revenue from other customers whom we could not service promptly, as well as increased costs'through inefficiencies. Conclusion, Speculation Tn the end, MGB did not renew Fallon’s contract after this probationary period, even though our performance had improved. Conclusion, Speculation 19 The loss of the MGB relationship, and the other business losses we suffered as a result of trying to salvage that relationship, are directly attributable to Mr. Tyler’s efforts to sabotage Transformative with MGB. Conclusion, Speculation, Lack of Foundation 20 We also leamed after Mr. Tyler’s resignation that he had seriously neglected certain basic management duties, Hearsay, Conclusion, Speculation 20 We learned that he had failed to cause our Medical Director, Dr. Schoenfeld, to be paid for over three years, Hearsay, Conclusion, SpeculationParagraph Sentence Objection 20 This was despite Dr. Schoenfeld appealing directly to Mr. | Hearsay, Conclusion Tyler for the overdue payments, 20 A true and accurate copy ofan email summarizing this | Mr. Lelon is not able to authenticate this Exhibit. situation is filed herewith as Exhibit 17. vi This is absurd. Conclusion 20 Ambulance companies such as Fallon are required to Conclusion, Lack of Foundation retain a medical director by state law. 21 We also learned that Mr. Tyler had failed to maintain | Hearsay, Speculation ~~~ | licenses to operate fromm thie Commonwealth of . Massachusetts pertaining to three of our subsidiaries (Fallon, Lifeline, and FEMS). | We leamed that the Commonwealth had been contacting | Hearsay, Speculation us since April 2020 asking for information pertaining to our license renewal, and nothing had been provided, despite direct inquiries to Mr. Tyler, our CEO. 21 By December, 2020, the state had issued us an “order to | Hearsay correct.” 21 This was embarrassing and harmful to the company, with | Conclusion, Speculation, Lack of Foundation the Commonwealth being not only our licensing authority but our partner for large-scale testing and vaccination services.Paragraph Sentence Objection 2 In discovery in this matter, we have learned that Mr. Tyler began working for Randseco’s interests, and those of Randseco investor Priority Healthcare, and against the interests of Transformative, in an ongoing and harmful manner. Hearsay, Conclusion, Speculation, Lack of Foundation 2 For instance, in June 2020, the Chief Executive Officer of MetroWest Medical Center in Framingham sent an e-mail to Mr. Tyler and to Christopher Walden, an executive at Tenet Health (parent of MetroWest), thanking them both for “agreeing to connect.” Hearsay, Conclusion, Speculation, Lack of Foundation 2 The circumstances strongly suggest that this e-mail was sent at Mr, Tyler’s request, Conclusion, Speculation, Lack of Foundation 2 The email states that “Sean has a unique platform to connect hospitals, ambulances and post-acute care networks.” Hearsay, Conclusion, Speculation, Lack of Foundation 2 This clearly refers to the EPIC Integration Project, and it attributes ownership to “Sean” (Mr. Tyler), not to Transformative. Hearsay, Conclusion, Speculation, Lack of Foundation 2 Mr. Tyler responded, copying Dan Starvish at Randseco but no one at Transformative. Conclusion, Speculation, Lack of Foundation, The Document Speaks for Itself 2 He wrote, “Christopher, please let me know a good time to briefly connect on this exciting project. Conclusion, Speculation, Lack of Foundation, The Document Speaks for ItselfParagraph Sentence Objection 2 We have bona fides with Partners (Mass General, Brigham, etc.), George Washington University Medical Strategy, Hackensack Meridian JFK to name a few.” Conclusion, Speculation, Lack of Foundation, The Document Speaks for Itself 2 A true and accurate copy of this email exchange is filed | There is no basis on which Mr. Lelon could authenticate herewith as Exhibit (8. this Exhibit, 22 Other than MGB, however, the references that Mr. Tyler | Conclusion, Speculation, Lack of Foundation, Lack of provided to Mr. Walden at Tenet are Randseco customers, | Authentication not Transformative’s, implying that the “We” he is referring to is Randseco, 2 Mr. Tyler failed to clarify that the EPIC Integration Conclusion, Speculation, the Document Speaks for Itself, - ~”) Project belonged to Transformative, Lack of Authentication TT 2 Most tellingly, he only copied a Randseco employee for | Speculation, the Document speaks for Itself, Lack of follow-up sales discussions, Authentication 2 Mr. Tyler never disclosed to me, or to my knowledge Hearsay, Speculation, Lack of Authentication anyone on the board of directors, that he was helping Randseco try to sell this software, as this email clearly shows he was, 2 We would have immediately objected and taken prompt | Conclusion, Speculation action to stop it, as it basically constituted theft of a Transformative asset in my view, 3 We have learned that in August 2020, Mr. Tyler was Hearsay, Speculation, Lack of Authentication involved in an effort to help Priority Ambulance (which flParagraph Sentence Objection was an investor in Randseco as of June 2020) sell its services to a health system called Erlanger. B Priority’s Vice President of Special Projects referred to | Hearsay, Speculation, Lack of Authentication Mr. Tyler as “the closer” for Priority’s sale efforts, 3B Mr. Tyler readily agreed, saying “T'll be there” on the key | Conclusion, Speculation, Lack of Authentication Zoom sales call. B A true and accurate copy of an e-mail string pertaining to | Mr. Lelon has no basis on which to authenticate this this meeting is filed herewith as Exhibit 19. Exhibit, % The e-mail states that Mr. Tyler had performed this role | Hearsay, Lack of Authentication — ~~ "lfor Priority Before; with success, ~~ ~ B Mr. Tyler never disclosed these activities to me or anyone | Lack of Authentication else on the Transformative board, B Had he done so, we would have never allowed our CEO to | Speculation, Lack of Authentication spend time selling to or on behalf of another ambulance company while our company was facing major challenges due to the pandemic, 4 We have learned that in September, 2020 Randseco was / Hearsay, Lack of Personal Knowledge still working with Priority to sell its STATCall application to Erlanger. 24 Remarkably, Priority was using the EPIC Integration Conclusion, Speculation Project software - a Transformative asset - as its selling point,Paragraph Sentence Objection 4 On September 14, 2020, an Erlanger employee named Alisha Rice asked Priority to provide “{t}he name/contact info for other organizations that successfully integrated StatCall with EPIC?” Hearsay, Conclusion, Lack of Authentication 4 Priority forwarded this request to Mr. Tyler, and Mr. Tyler | Hearsay, Conclusion, Lack of Authentication responded by providing the contact information for Alice King at MGB - Transformative’s customer. 24 A true and accurate copy of an e-mail string containing | Mr. Lelon has no basis on which to authenticate this this exchange is filed herewith as Exhibit 20, Exhibit. 4 The same email implies that Randseco employee Mike | Hearsay, Conclusion, Speculation, Lack of ~~ PSilk had provided MGB’s flow diagrams~ which are part | Authentication . . ofthe EPIC Integration Project -to Erlanger. 24 Mr. Tyler did not copy anyone from the Transformative | Lack of Personal Knowledge, Lack of Authentication board of directors on this e-mail string, nor did he inform me (or to my knowledge any other board member) or ask our permission to leverage our customer relationship to aid Priority, 4 Had he asked us, we would have forbidden it. Speculation 35 The programs that failed were the ones specified in Mr. | Conclusion, The Documents Speak for Themselves Tyler’s threat written on October 8, 2020: “kill STATCall and then move fo FASTCall,” and then “kill” the Mobile Data Terminals (which relied on STATMobile).Paragraph Sentence Objection 35 After performing a reasonable investigation with the help | Hearsay, Conclusion of IT security experts, we have no indication that any random “hacker” or any third party caused this, 25 Randseco is the only entity that would have the access and | Conclusion, Speculation, Lack of Foundation, Hearsay ability to do so, 25 Given all these circumstances, I strongly believe that Conclusion, Speculation, Irrelevant Randseco caused these disruptions, 14Exhibit 25 - AFFIDAVIT OF DANIELLE THOMAS Paragraph Sentence Objection 2 Thus, I would expect that Mr. Tyler’s desktop computer, while he still worked with Transformative, would have had many e-mails relating to MGB in his exchange folders, Conclusion, Speculation, Lack of Foundation 3 Starting in the summer, however, MGB expressed serious | Hearsay dissatisfaction with our on-time performance to me. 3 Each time, he said that we need to improve, or fix things, | Speculation, Lack of Foundation, Lack of Personal or words to that effect, but he never devoted the resources | Knowledge to do so. 3” | Instead, he kept devoting resources to our COVID testing | Speculation, Lack of Foundation, Lack of Personal effort (including paying staff overtime for such work), and | Knowledge told us not to let MGB know we were doing this, 3 Twas increasingly uncomfortable with this situation as the | Irrelevant, More Prejudicial than Probative summer progressed, 5 One example of correspondence with MGB is an e-mail | Exhibit 16 contains hearsay. exchange with Brian Yorko dated Sept. 2-3, 2020 {submitted herewith as Exhibit 16). 5 This surprised me, since MGB was expressing a high level | Hearsay, Irrelevant, More Prejudicial than Probative of unhappiness, stating that they had heard elsewhere that we were devoting trucks to COVID testing instead of serving them (which was true), and stating that they would put us on a performance improvement plan if the situation did not change,Paragraph Sentence Objection I did not see it as a “positive,” and was concerned that our relationship with MGB was in trouble, but felt that I had to follow Mr. Tyler’s direction, Conclusion, Irrelevant, More Prejudicial than Probative Tn one of them, Dr. Scott Goldberg of MGB told me that Mr. Tyler had told him that Transformative had been underperforming because “Kamylon had been starving the company of resources,” or words to that effect. Hearsay After Mr. Tyler's resignation, I also heard many individuals at MGB express frustration and dismay about the Epic Integration Project. Hearsay We told them that Randseco had played a significant role in the project. Hearsay MGB said they had to stop the project which had been scheduled to go live soon, Hearsay Various MGB personnel stated that they had understood this to be a Transformative project. Hearsay They also stated that this was causing years of work to be wasted, Hearsay This harmed our relationship with MGB, which was already facing difficulties, Conclusion, SpeculationEXHIBIT 26 AFFIDAVIT OF MICHAEL DECOSTA Sentence Objection This Sort of system-wide outage, with problems happening across all of Randseco’s software programs, had never happened before and were suspicious. Conclusion, Speculation Tbelieved at the time that Randseco was intentionally causing our applications to malfunction, and I stilt believe that to be the case, Speculation, Imelevant, More Prejudicial Than ProbativeEXHIBIT 27 AFFIDAVIT OF RICHARD A. SPENCER Paragraph Sentence Objection 3 Although Randseco employees helped with coding and other tasks, | always understood this to be a Transformative project building a custom integration for MGB. Lack of Personal Knowledge The Commonwealth of Massachusetts requested us to implement a mobile COVID testing operation. Hearsay This was a Transformative project in which I was involved at Tyler’s request and played a coordinating role, Conclusion In May, 2020; however, Fsaw that Randseco published a new product page and press release on its website identifying a COVID test and result software product as having been “built by Randseco” and stating that it was “available today” from Randseco. Lack of Personal Knowledge, Hearsay ~ A true and accurate copy of this press release is being submitted as Exhibit 13, Mr. Spencer is unable to authenticate this document. We have since learned in discovery that Randseco offering the testing data software for sale was not a “mistake” at all, but appears to have been part of a coordinated plan to appropriate this project from Transformative to Randseco. Conclusion, Speculation, Lack of Personal KnowledgeParagraph Sentence Objection Mr. Tyler has been aware since at least March, 2021, when we filed our Amended Complaint, that we have been demanding refund of this money, Lack of Personal Knowledge, Conclusion, Speculation 10 As he now admits, he did so by improperly accessing and using a company list of employees’ personal addresses (on domains such as gmail.com, northeastemn.edu, etc.) Conclusion, Speculation Rather, it was clearly timed so that employees would see it late at night or first thing in the morning, without any accompanying communication from the company. Lack of Personal Knowledge, Conclusion, Speculation Mr. Tyler’s improper use of company records to send this resignation e-mail-on his way out the door caused harm to Transformative. Conclusion, Speculation, Lack of Foundation As such, it was calculated to, and did, spread constemation and alarm throughout our workforce, during atime when performance at our top customers was challenged, there was a national shortage of EMS professionals and our staff were experiencing very high stress levels due to being on the front lines during a pandemic, Lack of Personal Knowledge, Conclusion, Speculation First, I noticed that all of his correspondence with MGB was missing from his exchange e-mail folders, Lack of Personal Knowledge, Conclusion, Speculation MGB was our company’s largest customer, and Mr. Tyler was deeply involved in all aspects of communication with Lack of Personal Knowledge, Conclusion, SpeculationParagraph Sentence Objection MGB and would have participated in or been copied on regular e-mails with a wide array of MGB personnel, A true and accurate copy of an example such email is being submitted as Exhibit 16. Mr. Spencer is unable to authenticate this document, This document, which was quite important as discussed below, was not in his mail folders on the Company’s exchange server, Conclusion There would have been many other similar documents in the regular course of business, Speculation, Lack of Personal Knowledge, Lack of Foundation We also discovered via the Slack channel messages Mr. Tyler left open that he and Randseco had co-opted our head of Information Technology, Jim Harris. Conclusion, Speculation, Lack of Foundation;Lack of -- Personal Knowledge Mr. Tyler wrote on October 6, 2020 that Mr. Harris “is one of us” and “whatever we need he will provide.” Mr. Tyler then persuaded Mr. Harris to give him a server from company premises, without checking with me or Mr. Lelon (in fact, as [ testified in my deposition, Mr. Harris and I had an earlier conversation in which we both agreed not to give the server to Randseco if Mr. Tyler resigned). Lack of Personal Knowledge, Conclusion, Speculation 15 One of them, Dr. Goldberg, told us that Mr. Tyler had disparaged Kamylon before resigning (see Affidavit of Danielle Thomas, filed herewith). Hearsay, Lack of Personal knowledgeParagraph Sentence Objection 1 The MGB personnel we spoke with were shocked to learn | Hearsay that a separate company called Randseco had a significant role in the project, or that Randseco might be in a position to threaten to or actually “kill” the project. 15 MGB personnel told us they had understood that the EPIC | Hearsay Integration Project was a custom MGB-Transformative project. 15 MGB also invested significant internal resources on this | Hearsay, Lack of Personal Knowledge, Conclusion, project over more than two years with the intent it would | Speculation benefit only MGB. ~- | Inthe circumstances, they decided that the project Hearsay, Lack of Personal Knowledge; Conclusion; ---} unfortunately had to be stopped. Speculation 15 This caused significant harm to our relationship, because | Hearsay, Lack of Personal Knowledge, Conclusion, from MGB’s perspective it caused years of work tobe —_| Speculation wasted, 16 In the discussions with MGB after Mr. Tyler’s Hearsay, Lack of Personal Knowledge resignation, we also learned that, directly contrary to Mr. Tyler’s statements to us in management meetings, MGB was highly dissatisfied with the medical transport service levels we were providing under his leadership. 16 We leamed that MGB had even sent an e-mail on Hearsay, Lack of Personal Knowledge, Conclusion, September 3, 2020 which demanded service level improvements and threatened to put Fallon on a SpeculationParagraph Sentence Objection performance improvement plan, a contractual precursor to a potential contract termination. 16 A true and accurate copy of this email threat is being Mr. Spencer is unable to authenticate this document, submitted as Exhibit 16. 16 This was inexcusable, and a direct and clear violation of —} Legal Conclusion Mr. Tyler’s fiduciary duty, 1 In short, upon Mr. Tyler’s resignation we leamed that our | Hearsay, Lack of Personal Knowledge, Conclusion, relationship with MGB was in tatters as a result of his | Speculation actions. 17- ~-—Fln-fact, it was clear that this washis-explicit goal. - Lack of Personal Knowledge, Conclusion; Speculation~-|- - ~~~ Lack of Foundation 17 This statement from our own CEO, a week after he Lack of Personal Knowledge, Conclusion, Speculation, resigned, shows his very explicit intent to damage our —_| Lack of Foundation contractual relationship with MGB through his disparagement, his failure to provide proper service levels, and his hiding all these issues from the board of directors of Transformative, 18 Mr. Tyler’s actions did in fact harm our relationship with | Conclusion, Speculation, Hearsay MGB. 18 Instead of granting Fallon a new multi-year contract, as | Hearsay had been their practice when the relationship was going well, they put us on 6 months of probationary status, andParagraph Sentence Objection Jet us know that it was extremely questionable whether that would be renewed. In response, we had to divert all our resources to MGB in order to improve call response times — at times even going $0 far as have idle units waiting for potential MGB calls - to try and salvage the relationship. Conclusion, Lack of Foundation, Speculation This cost us large amounts of lost business with other customers whom we could not service promptly. Lack of Foundation, Speculation In the end, MGB did not renew Fallon’s contract after this probationary period, even though our performance had --improved, 9-9 ~~ : Lack of Foundation, Speculation The loss of the MGB relationship, and the other business losses we suffered as a result of trying to salvage that relationship, are directly attributable to Mr. Tyler’s explicit efforts to sabotage Transformative. Lack of Personal Knowledge, Conclusion, Speculation We also learned shortly after Mr. Tyler's resignation that he had seriously neglected certain basic management duties. Hearsay, Lack of Personal Knowledge, Conclusion, Speculation 19 We leamed that he had failed to cause our Medical Director, Dr. Schoenfeld, to be paid for over three years, and failed to maintain licenses to operate from the Commonwealth of Massachusetts pertaining to three of our subsidiaries (Fallon, LifeLine, and FEMSI), Hearsay, Lack of Personal Knowledge, Lack of FoundationParagraph Sentence Objection 20 In discovery in this matter, we have leaned that Mr. Tyler ) Hearsay, Lack of Personal Knowledge, Conclusion, began working for Randseco’s interests, and those of | Speculation Randseco investor Priority Healthcare, and against the interests of Transformative, in an ongoing and harmful manner starting earlier in 2020. 21 After performing a reasonable investigation with the help | Hearsay, Conclusion, Speculation, Lack of Personal of information technology vendors, we have no indication | Knowledge that any random “hacker” or any third party other than Randseco caused this, 21 strongly believe that Randseco intentionally caused these | Speculation, Irrelevant, More Prejudicial Than Probative disruptions.EXHIBIT BCOMMONWEALTH. OF MASSACHUSETTS SUFFOLK, SS. | SUPERIOR COURT DEPARTMENT ' BUSINESS LITIGATION SESSION CIVIL ACTION NO. 2084-CV-02375- BLSI TRANSFORMATIVE HEALTHCARE, INC. ) and FALLON AMBULANCE SERVICE, LLC, ) ) Plaintiffs, : ) ) y ) ) PARICK SEAN TYLER and RANDSECO, LLC, ) ) Defendants. ) ) JOINT STATEMENT OF MATERIAL FACTS CONCERNING DEFENDANTS’ MOTION FOR SUMMARY JUDGME Pursuant to Superior Court Rule 9A(b)(5), Defendants submit this Statement of Facts in Support of their Motion for Summary Judgment: 1, In January of 2001, Mr. Tyler became Executive Vice President and Chief Operating Officer of Fallon Ambulance Services, Inc. (“Fallon”). Exhibit 1, 73. Response: Admitted. 2. 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. Exhibit 1, { 4. Response: Transformative does not have requisite knowledge to admit or deny the alleged facts in this paragraph.3. Not only was Timothy Fallon, Fallon’s CEO, fully aware that Mr. Tyler had started Randseco, but Mr. Fallon executed a edptract with Randseco that gave Fallon a license to use Randseco’s software (the “Randseco-Fallon Agreement”). Exhibit 1, 4, and Exhibit 2. Response: Admitted that Mr. Fallon executed a contract with Randseco. Transformative does not have requisite knowledge to admit or deny the remaining alleged facts in this paragraph, including Mr. Fallon’s state of mind. 4. In 2018, Fallon was acquired by Transformative Healthcare, Inc. (“Transformative”), and Mr. Tyler was named President and CEO of Transformative. Exhibit 3, 4 15 and Exhibit 1, 95. Response: Admitted. 5. Thereafter, Transformative, Randseco, and Transformative’s largest client, Partners HealthCare (which later became known as Mass General Brigham) (collectively, “Partners/MGB”) began working on a project to allow Randseco’s software to communicate directly with Partners/MGB’s electronic medical records system. Exhibit 1, 5. Response: Disputed to the extent that Paragraph 5 implies that the Transformative/MGB project to integrate Transformative’s software, licensed from Randseco, was Randseco’s project. {It was Transformative’s project, Exhibit 12, 912, 4, 16. 6. The purpose behind this project was to make Fallon’s deployment of ambulances for Partners/MGB even more efficient and effective. Exhibit 1, 5. Response: Admitted. 7. The software that Randseco was developing in connection with this project was known as the “Integration Software.” Exhibit 3, ] 55. !Response: Admitted that the project was called the “Integration Software.” Disputed to the extent Paragraph 7 implies the project was Randseco’s. It was Transformat i project ‘designed specifically for MGB where individuals from Transformative and MGB also’ ‘contributed. Exhibit 12, 4 2, 4, 16; Exhibit 22, at 45:18-46:8, 8. 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. Exhibit 1, 16, Exhibit 4, ] 3. Response: Denied that Randseco was clear to Partners/MGB that Randseco and not Fallon or Transformative were responsible for developing the Integration Software. Exhibit 9, at 159:9-162:8; Exhibit 12, { 16. Further disputing to the extent Paragraph 8 implies the project where) individuals from Transformative and MGB also contributed }Exhibit 12, 42, 4, 16; Exhibit 22, at 45:18-46:8. 9. 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. Exhibit 1, 47. of the Company did not occu ‘July of 2020, Exhibit 12, 9. 10. Once the Covid-19 crisis hit and threatened to destroy Fallon’s business, however, Mr. Tyler agreed to suspend those discussions. Exhibit 1, ] 7.Response: Disputed that Tyler discusséd leaving Transformative in Early 2020, and that any conversations about Tyler transitioning out of the Company did not occur until July of 2020. Exhibit 12, ] 9. Ll In fact, Mr. Tyler conceived and implemented a wholly new business for Fallon that revolved around mobile testing for Covid-19. Exhibit 1, ] 8. Response: Disputed. The mobile testing for Covid-19 was a group effort with many key, butors,'See Exhibit 22, at 53:13-55:5; Exhibit 9, at 44:4, 12. While Fallon still struggled over the next several months, the mobile testing business was an enormous success, and Fallon likely would have gone out of business if Mr. Tyler had not implemented it. Exhibit 1, ] 8. Response: Admitted that the mobile testing business was a success. Transformative denies the remaining alleged facts in Paragraph 12. See Exhibit 12, { 6. 13. In the summer of 2020, Mr. Tyler renewed discussions with Messrs. Lelon and Spencer about transitioning out of Transformative, and he 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. Exhibit 1, 79. _ through January.2021 ,Exhibit 12, 9. 14. 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. Exhibit 1, 4 10. Response: Denied in so far as this paragraph alleges this took place on September 4", ‘instead of September 3! See Exhibit 33,I | ! | t 15. The parties continued their discussions, and on September 19, Mr. Tyler sent a term sheet for his transition. One of the provisions therein was a $28,000 signing bonus due | upon acceptance of the terms in the term sheet, which Transformative paid. Exhibit 1, ] 10. Response: Disputed that this payment was a “signing bonus” and that the $28,000 was tually acceptable final terms for the transition agreement j Exhibit 12, 10. 16. 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. Ex 1,41. Response: Disputed that the agreement contained an “overly broad” restrictive covenant. Further stating an and the: ‘draft ft agreement speaks fc for itself! i 17. Mr. Tyler was upset with this because he had been very clear that he would not agree to any restrictive covenant. Exhibit 1, { 11. Response: Transformative does not have requisite knowledge to admit or deny the alleged facts in this Paragraph concerning Mr. Tyler’s emotions.18. He then emailed a response thatloutlined acceptable terms and stated that if | . : I : : . . Transformative did not agree to them by October 6, his resignation would be effective on October 7. Exhibit 1, { 11. Response: Disputed that Tyler told Transformative if they did not agree to his “options” by October 6", his resignation would be effective on October 7". Exhibit 35. ‘Further stating) ithis e: mail was sent o before he allegedly said his resignation would take take effect. Exhibit 3 19. 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, Exhibit 1, 4 12. 20. 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. Exhibit 1, 412.21. Atno time, however, did Mr. Tyler download or delete any Fallon or Transformative confidential information except in the ordinary course of his work for Plaintiffs. Exhibit 1, | 12. Response: Disputed that Tyler did not download or delete any confidential information, 22. 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. Exhibit 1, § 13, Exhibit 4, 4, and Exhibit 5, § 3. Response: Disputed that Tyler and Randseco employees were merely “venting their ing ways to harm’ just 4 s/MGB. Exhibit 12, {9 14- server failure would sucl 23. 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. Exhibit 1, | 13, Exhibit 4, ] 4, and Exhibit 5, { 3. Response: Disputed that no one from Randseco took action