Preview
3f
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT DEPARTMENT
BUSINESS LITIGATION SESSION
CIVIL ACTION NO. 2084-CV-02375-
BLS1
TRANSFORMATIVE HEALTHCARE, INC.
and FALLON AMBULANCE SERVICE, LLC,
Plaintiffs,
2A »
PARICK SEAN TYLER and RANDSECO, LLC,
Defendants.
<
Ne SS
TOV bz wy
w
1
dug
rr
JOINT STATEMENT OF MATERIAL FACTS CONCERNING .
PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT
Pursuant to Superior Court Rule 9A(b)(5), Plaintiffs submit this Statement of Facts in
Support of their Cross-Motion for Summary Judgment:
1. When Patrick Sean Tyler resigned his employment with Plaintiffs, he did not exit
out of the “Slack” messaging app on his work computer, and Plaintiffs were able to see
conversations that had already taken place, as well as watch in real time as Tyler exchanged
messages with his colleagues at Randseco. Exhibit 12 14,
Response: Defendants do not have knowledge or information sufficient to admit or deny
the allegations in this paragraph.
2. On October 6, 2020, in a Slack channel titled “#Fallon”, Tyler wrote that he was
“feeling a bit retributive”. He also assured his colleagues, referring to a Transformative
employee, that “Jim Harris is one of us. Whatever we need he will provide.” Exhibit 30.Response: Defendants admit the allegations in this paragraph, except they dispute that
Mr. Tyler “assured” his colleagues, and only admit that he “said” to his colleagues.
3.
On October 7, 2020, in a Slack channel titled “#epic”, Tyler discussed a software
update with his Randseco colleagues Dan Starvish and Rob Thompson. Thompson asked “how
much are we allowed to break fallon in the process??” Tyler replied “A for’. Exhibit 31.
Response: Admitted.
4.
On October 8, 2020, in a Slack channel titled “#dev_server_move”, Tyler,
Starvish and Thompson discussed ways to deprive Plaintiffs of access to the Randseco software
they used. Tyler, Starvish and Thompson made the following statements, among others:
a.
Tyler (3:58 PM): “Dicky = Richard Spencer. He’s the board member for Acuity
Link.”
. Starvish (3:59 PM): “Will Dicky be not at all pleased when I pull our API keys
too?” You know, Robs life and then my life, get easier if Jim has a server
catastrophe with our stuff.”
Tyler (4:14 PM): “T am fine with the pulling of the keys. Jt’s about time we fuck
with them.”
Tyler (4:16 PM): “A server failure would suck.”
Starvish (4:20 PM): “Pulling the API keys just shuts shit off. ... Does it hurt the
enemy ?”
Starvish (8:42 PM): “How do we nuke it?”
Thompson (9:30 PM): “Make sure PHS know this is because of them that they
won’t hit their go live date”
. Tyler (9:31 PM): “I will be sure to message Alice first thing in the morning.”
Starvish (9:32 PM): “What’s the order commander? Are we killing api access?”
Tyler (9:36 PM): “Kill STATCall and then move to FASTCall. The MDTs give
me pause as the field crews use this for emergency security. Day time hours will
be a better time to kill it as the crew safety risks are less.”
Starvish (9:41 PM): “I prefer not to let these shit bags win in any form... .”1. Thompson (9:48 PM): “I’m not entirely sure how granular the kill will be. ... I
would need to check how integrated we made the kill switch.”
m. Starvish (9:49 PM): “I know for sure statcall dies quickly with no API key ....”
Exhibit 29.
Response: Defendants deny the allegations in the first sentence of this paragraph and
admit the allegations in the second sentence and the subparts of this paragraph.
5. Tyler, Starvish and Thompson continued discussing ways to harm Plaintiffs the
following day, October 9, on the “#dev_server_move” Slack channel. Starvish and Thompson
made the following statements, among others:
a. Starvish (7:28 PM): “These mother fuckers need to suffer.”
b. Starvish (7:32 PM): “I think making a deal with the devils is the play. Even if it
physically hurts to do it, all wars are won through unforeseen alliances being
formed.”
c. Thompson (8:00 PM): “that or nuke from orbit”
Exhibit 29.
Response: Defendants deny the allegations in the first sentence of this paragraph and
admit the allegations in the second sentence and the subparts of this paragraph.
6. On October 14, 2020, Tyler wrote to Starvish and Thompson that “fijhe key is to
let Fatlon fall flat.” Exhibit 30.
Response: Admitted.
7. Kamylon had been planning to sell Acuity Link prior to October 2020, and the
sale was completed in January 2021. Exhibit 12 427.
Response: Defendants do not have knowledge or information sufficient to admit or deny
the allegations in this paragraph.8. When Transformative employee Jim Harris allowed. Tyler to take away a server
that was located on Fallon’s premises, Richard’ Spencer did not find Harris’s explanation of the
situation to be credible, Exhibit 9 at 98:2-106:7.
Response: Disputed. Exhibit 9 at 98:1-16 and Exhibit 7 thereto.
9. The decision-makers at Transformative, Mr. Lelon and Mr. Spencer, decided to
file suit because they had seen the threats that the defendants were making against their
company. Exhibit 12 26; Exhibit 27 22.
Response: Disputed. Exhibit 1, ] 4, 5, 6, 11, 12, 13, 14; Exhibit 3, 55; Exhibit 4, 7 3,
4; Exhibit 5, | 3; Exhibit 6, { 4, 6; Exhibit 7, at 133-142; Exhibit 9 at 98:1-16, 166-67
and Exhibit 7 thereto.
Pursuant to Superior Court Rule 9A(b)(5), Defendants submit these additional facts
regarding the Cross-Motion for Summary Judgment:
10. Patrick Sean Tyler (“Mr. Tyler”) has been a leader in the EMS (emergency
medical services) and ambulance communities for over 25 years, and in January of 2001, he
became Executive Vice President and Chief Operating Officer of Fallon. Exhibit 1, 73.
11. Mr. Tyler was not asked to agree to a non-compete, non-solicitation or other
restrictive covenant agreement with Fallon at that time, nor did he ever agree to one thereafter.
Exhibit 1, 13.
12. 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, { 4.13. Not only was Timothy Fallon, Fallon’s CEO, fully aware that Mr. Tyler had
started Randseco, but Mr. Fallon executed a contract with Randseco that gave Fallon a license to
use Randseco’s software. Exhibit 1, 4, and Exhibit 2.
14. In or about September of 2016, Randseco purchased a computer server (the
“Server”) to use in connection with its business. Exhibit 38, § 2; Exhibit 39.
15. That Server contained Randseco’s intellectual property, including its code base,
and the Server was used by Randseco solely for the purposes of developing and testing its code.
Exhibit 38, q 3.
16. In or about November of 2016, the Server was shipped to Fallon’s headquarters,
as Randseco and Fallon agreed the Server could be stored there. Exhibit 38, { 4.
17. Thereafter, the Server was plugged into a wall outlet and used Fallon’s wifi
connection, but it never was connected to Fallon’s computer system. Exhibit 38, { 5.
18. 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, 75.
19. As was the case when he worked for Fallon, Mr. Tyler had no non-compete
agreement with Transformative. Exhibit 38, ] 6.
20. Later that year, Priority Ambulance, LLC (“Priority”), a national ambulance and
EMS company, expressed an interest in purchasing Transformative from its owner, Kamylon
Holdings, LLC (“Kamylon”). Exhibit 38, 4 7.
21. After that potential transaction ended, Priority independently began discussions
with Randseco about investing in it. Exhibit 38, § 8.22. — Those discussions bore fruit, with Priority purchasing a minority interest in
Randseco in June of 2020 and obtaining an option to purchase the remaining equity in Randseco
at a later date. Exhibit 38, 4 9.
23. On October 6, 2020, Mr. Tyler resigned from Transformative, and he notified Mr.
Harris the next day that he (Mr. Tyler) wanted to retrieve Randseco’s Server. Exhibit 38, ] 10.
24. Mr. Harris then texted Transformative’s President, Richard Spencer (“Mr.
Spencer”), saying: “the Ranseco [sic] folks would like to pick up their development server,
which “rey own and isn’t on our network.” (Emphasis added.) Exhibit 9, at p. 98 and
Deposition Exhibit 7 thereto.
25. Thereafter, Mr. Tyler arrived at Fallon’s offices, but he never went inside.
Exhibit 38, ¥ 11.
26. Instead, Mr. Harris and Chris Andreozzi retrieved the Randseco Server and
brought it out to me in the parking lot. Exhibit 38, q 12.
27. Mr. Harris then sent another text to Mr. Spencer stating: “[H]aving not heard from
you, I have already given them the [Server]. Jf was solely their property, with no connection to
our network, and I was glad to get rid of it and free up the space.” (Emphasis added.) Exhibit 9,
at p. 98 and Deposition Exhibit 7 thereto.
28. Nine days later, Plaintiffs filed their Initial Complaint in this action, which
included the following false allegations, among others:
« Mr. Tyler entered Fallon’s headquarters on October 7, 2020, went to the server room and
removed the Server. Exhibit 3, 7 22 and 23.
¢ “Fallon and Transformative are not aware of any facts or information suggesting that
Tyler or Randseco owned or paid for the server.” Exhibit 3, ] 23.
« The “server that Tyler took contained a copy of the Fallon-licensed STATCall
program and Mobile Data Terminal interface. It also contained extensiveassociated data specific to Fallon’s use of those programs. In particular, the server
contained code that would allow Randseco and Tyler to disable Fallon’s use of
those programs. Randseco and Tyler would not be able to prevent Fallon from
using the software without the data on the server.” Exhibit 3, 25.
© The data on the Server would enable Randseco and Mr. Tyler to revoke Fallon’s “API”
keys, effectively locking Fallon out of its ability to utilize software it licensed from
Randseco. Exhibit 3, 26 and 27.
29. At the time the Initial Complaint was filed, Kamylon also owned Acuity Link,
which was a competitor of Randseco. Exhibit 9, at p. 15-16, 182-183.
30. Further, Kamylon’s Managers, Mr. Spencer and Transformative’s Executive
Chairman, Charles Lelon (“Mr. Lelon”), also were members of Acuity Link’s board of directors
at that time. Exhibit 9, at p. 15-16, 182-183.
31. After this lawsuit was filed, Plaintiffs provided copies of the Complaint to various
third-parties. Exhibit 9, at p. 195-197.
32. Moreover, this was done at a time when Plaintiffs viewed Mr. Tyler and
Randseco as direct and indirect competitors ofboth Transformative and Acuity Link, and
Plaintiffs specifically were concerned that Mr. Tyler might compete against Transformative.
Exhibit 9, at p. 189-190.Respectfully submitted,
TRANSFORMATIVE HEALTHCARE,
INC. and FALLON AMBULANCE
SERVICE, LLC
By their Attorneys,
{s/ Michael Boudett
Michael Boudett (BBO #558757)
James Fullmer (BBO #696682)
Foley Hoag LLP
155 Seaport Blvd
Boston, MA 02210
617-832-1000
mboudett@foleyhoag.com
jfullmer@foleyhoag.com
Dated: March 15, 2022
PATRICK SEAN TYLER and
RANDSECO, LLC
By their attorneys,
¢s/ Shepard Davidson
Shepard Davidson (BBO #557082)
sdavidson@burnsley.com
Laura Lee Mittelman (BBO #689752)
Imittelman@burnslev.com
Burns & Levinson LLP
125 High Street
Boston, MA 02110
617-345-3000CERTIFICATE 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 02210-2600
mboudett@foleyhoag.com
jfullmer@foleyhoag.com
sf Laura Lee Mittelnan
Preview
3f COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DEPARTMENT BUSINESS LITIGATION SESSION CIVIL ACTION NO. 2084-CV-02375- BLS1 TRANSFORMATIVE HEALTHCARE, INC. and FALLON AMBULANCE SERVICE, LLC, Plaintiffs, 2A » PARICK SEAN TYLER and RANDSECO, LLC, Defendants. < Ne SS TOV bz wy w 1 dug rr JOINT STATEMENT OF MATERIAL FACTS CONCERNING . PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to Superior Court Rule 9A(b)(5), Plaintiffs submit this Statement of Facts in Support of their Cross-Motion for Summary Judgment: 1. When Patrick Sean Tyler resigned his employment with Plaintiffs, he did not exit out of the “Slack” messaging app on his work computer, and Plaintiffs were able to see conversations that had already taken place, as well as watch in real time as Tyler exchanged messages with his colleagues at Randseco. Exhibit 12 14, Response: Defendants do not have knowledge or information sufficient to admit or deny the allegations in this paragraph. 2. On October 6, 2020, in a Slack channel titled “#Fallon”, Tyler wrote that he was “feeling a bit retributive”. He also assured his colleagues, referring to a Transformative employee, that “Jim Harris is one of us. Whatever we need he will provide.” Exhibit 30.Response: Defendants admit the allegations in this paragraph, except they dispute that Mr. Tyler “assured” his colleagues, and only admit that he “said” to his colleagues. 3. On October 7, 2020, in a Slack channel titled “#epic”, Tyler discussed a software update with his Randseco colleagues Dan Starvish and Rob Thompson. Thompson asked “how much are we allowed to break fallon in the process??” Tyler replied “A for’. Exhibit 31. Response: Admitted. 4. On October 8, 2020, in a Slack channel titled “#dev_server_move”, Tyler, Starvish and Thompson discussed ways to deprive Plaintiffs of access to the Randseco software they used. Tyler, Starvish and Thompson made the following statements, among others: a. Tyler (3:58 PM): “Dicky = Richard Spencer. He’s the board member for Acuity Link.” . Starvish (3:59 PM): “Will Dicky be not at all pleased when I pull our API keys too?” You know, Robs life and then my life, get easier if Jim has a server catastrophe with our stuff.” Tyler (4:14 PM): “T am fine with the pulling of the keys. Jt’s about time we fuck with them.” Tyler (4:16 PM): “A server failure would suck.” Starvish (4:20 PM): “Pulling the API keys just shuts shit off. ... Does it hurt the enemy ?” Starvish (8:42 PM): “How do we nuke it?” Thompson (9:30 PM): “Make sure PHS know this is because of them that they won’t hit their go live date” . Tyler (9:31 PM): “I will be sure to message Alice first thing in the morning.” Starvish (9:32 PM): “What’s the order commander? Are we killing api access?” Tyler (9:36 PM): “Kill STATCall and then move to FASTCall. The MDTs give me pause as the field crews use this for emergency security. Day time hours will be a better time to kill it as the crew safety risks are less.” Starvish (9:41 PM): “I prefer not to let these shit bags win in any form... .”1. Thompson (9:48 PM): “I’m not entirely sure how granular the kill will be. ... I would need to check how integrated we made the kill switch.” m. Starvish (9:49 PM): “I know for sure statcall dies quickly with no API key ....” Exhibit 29. Response: Defendants deny the allegations in the first sentence of this paragraph and admit the allegations in the second sentence and the subparts of this paragraph. 5. Tyler, Starvish and Thompson continued discussing ways to harm Plaintiffs the following day, October 9, on the “#dev_server_move” Slack channel. Starvish and Thompson made the following statements, among others: a. Starvish (7:28 PM): “These mother fuckers need to suffer.” b. Starvish (7:32 PM): “I think making a deal with the devils is the play. Even if it physically hurts to do it, all wars are won through unforeseen alliances being formed.” c. Thompson (8:00 PM): “that or nuke from orbit” Exhibit 29. Response: Defendants deny the allegations in the first sentence of this paragraph and admit the allegations in the second sentence and the subparts of this paragraph. 6. On October 14, 2020, Tyler wrote to Starvish and Thompson that “fijhe key is to let Fatlon fall flat.” Exhibit 30. Response: Admitted. 7. Kamylon had been planning to sell Acuity Link prior to October 2020, and the sale was completed in January 2021. Exhibit 12 427. Response: Defendants do not have knowledge or information sufficient to admit or deny the allegations in this paragraph.8. When Transformative employee Jim Harris allowed. Tyler to take away a server that was located on Fallon’s premises, Richard’ Spencer did not find Harris’s explanation of the situation to be credible, Exhibit 9 at 98:2-106:7. Response: Disputed. Exhibit 9 at 98:1-16 and Exhibit 7 thereto. 9. The decision-makers at Transformative, Mr. Lelon and Mr. Spencer, decided to file suit because they had seen the threats that the defendants were making against their company. Exhibit 12 26; Exhibit 27 22. Response: Disputed. Exhibit 1, ] 4, 5, 6, 11, 12, 13, 14; Exhibit 3, 55; Exhibit 4, 7 3, 4; Exhibit 5, | 3; Exhibit 6, { 4, 6; Exhibit 7, at 133-142; Exhibit 9 at 98:1-16, 166-67 and Exhibit 7 thereto. Pursuant to Superior Court Rule 9A(b)(5), Defendants submit these additional facts regarding the Cross-Motion for Summary Judgment: 10. Patrick Sean Tyler (“Mr. Tyler”) has been a leader in the EMS (emergency medical services) and ambulance communities for over 25 years, and in January of 2001, he became Executive Vice President and Chief Operating Officer of Fallon. Exhibit 1, 73. 11. Mr. Tyler was not asked to agree to a non-compete, non-solicitation or other restrictive covenant agreement with Fallon at that time, nor did he ever agree to one thereafter. Exhibit 1, 13. 12. 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, { 4.13. Not only was Timothy Fallon, Fallon’s CEO, fully aware that Mr. Tyler had started Randseco, but Mr. Fallon executed a contract with Randseco that gave Fallon a license to use Randseco’s software. Exhibit 1, 4, and Exhibit 2. 14. In or about September of 2016, Randseco purchased a computer server (the “Server”) to use in connection with its business. Exhibit 38, § 2; Exhibit 39. 15. That Server contained Randseco’s intellectual property, including its code base, and the Server was used by Randseco solely for the purposes of developing and testing its code. Exhibit 38, q 3. 16. In or about November of 2016, the Server was shipped to Fallon’s headquarters, as Randseco and Fallon agreed the Server could be stored there. Exhibit 38, { 4. 17. Thereafter, the Server was plugged into a wall outlet and used Fallon’s wifi connection, but it never was connected to Fallon’s computer system. Exhibit 38, { 5. 18. 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, 75. 19. As was the case when he worked for Fallon, Mr. Tyler had no non-compete agreement with Transformative. Exhibit 38, ] 6. 20. Later that year, Priority Ambulance, LLC (“Priority”), a national ambulance and EMS company, expressed an interest in purchasing Transformative from its owner, Kamylon Holdings, LLC (“Kamylon”). Exhibit 38, 4 7. 21. After that potential transaction ended, Priority independently began discussions with Randseco about investing in it. Exhibit 38, § 8.22. — Those discussions bore fruit, with Priority purchasing a minority interest in Randseco in June of 2020 and obtaining an option to purchase the remaining equity in Randseco at a later date. Exhibit 38, 4 9. 23. On October 6, 2020, Mr. Tyler resigned from Transformative, and he notified Mr. Harris the next day that he (Mr. Tyler) wanted to retrieve Randseco’s Server. Exhibit 38, ] 10. 24. Mr. Harris then texted Transformative’s President, Richard Spencer (“Mr. Spencer”), saying: “the Ranseco [sic] folks would like to pick up their development server, which “rey own and isn’t on our network.” (Emphasis added.) Exhibit 9, at p. 98 and Deposition Exhibit 7 thereto. 25. Thereafter, Mr. Tyler arrived at Fallon’s offices, but he never went inside. Exhibit 38, ¥ 11. 26. Instead, Mr. Harris and Chris Andreozzi retrieved the Randseco Server and brought it out to me in the parking lot. Exhibit 38, q 12. 27. Mr. Harris then sent another text to Mr. Spencer stating: “[H]aving not heard from you, I have already given them the [Server]. Jf was solely their property, with no connection to our network, and I was glad to get rid of it and free up the space.” (Emphasis added.) Exhibit 9, at p. 98 and Deposition Exhibit 7 thereto. 28. Nine days later, Plaintiffs filed their Initial Complaint in this action, which included the following false allegations, among others: « Mr. Tyler entered Fallon’s headquarters on October 7, 2020, went to the server room and removed the Server. Exhibit 3, 7 22 and 23. ¢ “Fallon and Transformative are not aware of any facts or information suggesting that Tyler or Randseco owned or paid for the server.” Exhibit 3, ] 23. « The “server that Tyler took contained a copy of the Fallon-licensed STATCall program and Mobile Data Terminal interface. It also contained extensiveassociated data specific to Fallon’s use of those programs. In particular, the server contained code that would allow Randseco and Tyler to disable Fallon’s use of those programs. Randseco and Tyler would not be able to prevent Fallon from using the software without the data on the server.” Exhibit 3, 25. © The data on the Server would enable Randseco and Mr. Tyler to revoke Fallon’s “API” keys, effectively locking Fallon out of its ability to utilize software it licensed from Randseco. Exhibit 3, 26 and 27. 29. At the time the Initial Complaint was filed, Kamylon also owned Acuity Link, which was a competitor of Randseco. Exhibit 9, at p. 15-16, 182-183. 30. Further, Kamylon’s Managers, Mr. Spencer and Transformative’s Executive Chairman, Charles Lelon (“Mr. Lelon”), also were members of Acuity Link’s board of directors at that time. Exhibit 9, at p. 15-16, 182-183. 31. After this lawsuit was filed, Plaintiffs provided copies of the Complaint to various third-parties. Exhibit 9, at p. 195-197. 32. Moreover, this was done at a time when Plaintiffs viewed Mr. Tyler and Randseco as direct and indirect competitors ofboth Transformative and Acuity Link, and Plaintiffs specifically were concerned that Mr. Tyler might compete against Transformative. Exhibit 9, at p. 189-190.Respectfully submitted, TRANSFORMATIVE HEALTHCARE, INC. and FALLON AMBULANCE SERVICE, LLC By their Attorneys, {s/ Michael Boudett Michael Boudett (BBO #558757) James Fullmer (BBO #696682) Foley Hoag LLP 155 Seaport Blvd Boston, MA 02210 617-832-1000 mboudett@foleyhoag.com jfullmer@foleyhoag.com Dated: March 15, 2022 PATRICK SEAN TYLER and RANDSECO, LLC By their attorneys, ¢s/ Shepard Davidson Shepard Davidson (BBO #557082) sdavidson@burnsley.com Laura Lee Mittelman (BBO #689752) Imittelman@burnslev.com Burns & Levinson LLP 125 High Street Boston, MA 02110 617-345-3000CERTIFICATE 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 02210-2600 mboudett@foleyhoag.com jfullmer@foleyhoag.com sf Laura Lee Mittelnan