Category Archives: Recent Results

In this arbitration, BLA Schwartz defended our client against breach of contract, copyright infringement, and conversion claims seeking over $1 million in damages under a software license and services agreement.  We also successfully prosecuted counterclaims demonstrating that our client was fraudulently induced into entering the agreement, allowing our client to recover the approximately $575,000 it paid under the agreement, plus interest and attorneys’ fees…

In this multi-faceted litigaiton, which took place mostly through arbitration proceedings, BLA Schwartz successfully represented an automotive software development company resulting in a ruling that our client could terminate a long-standing and unfavorable contractual relationship with its distribution network.

In this Federal District Court case, BLA Schwartz successfully defended it clients against multi-million dollar copyright infringement claims by convincing a jury during the liability phase of the trial that our clients did not agree to an oral condition precedent to a license agreement to use photographs and that our clients had the full rights to use those photographs.

We were retained by groups of shareholders in six separate suits to appeal or object to the attorneys' fees applications of class counsel. In three of these actions, class counsel obtained settlement, but applied for what our clients believed were excessive fees relative to the actual hours worked, sometimes asking for 45% of the settlement fund. We appeared in these actions for two primary reasons: (1) to ensure that the class had an adequate opportunity to review the fee applications prior to submission to the court; and (2) to scrutinize and object to any unreasonable fee requests in those applications.

Denise Cassese V. Washington Mutual, Inc., Et Al., Civil Action No. 05-2724 (Ads)(Arl) (Federal District Court, Eastern District of New York) (2011) (successfully objected to plaintiff’s motions seeking to compel our individual objector client to appear for deposition and to travel cross country to attend fairness hearing).

In re Maxim Integrated Prods., Inc. Sec. Litig., No. C-08-00832-JW (Federal District Court, District of Northern California) (2010) (successful objection that four days was not sufficient time to evaluate the fee application before objections were due, leading to court ruling that class counsel deprived class of due process).

Hill v. State Street Corp., 09-CV-12146 (Federal District Court, Massachusetts) (2009) (appeared to ask for early intervention as to attorneys' fees).

New England Carpenters Health Benefits Fund v. First Databank, Inc., No. 05-11148 PBS (Federal District Court, Massachusetts) (2009) (preserving procedural due process, ultimately leading to the class counsel partially waiving $1.2 million in attorneys' fees and costs).

In re Leapfrog Enterprise, Inc. Securities Litigation, No. C-03-05421-RMW (Federal District Court, Northern District of California) (2008) (preserving procedural due process).

UCFW Local 880 v. Newmont Mining Corp., No. 05-01046-MSK-BNB (Federal District Court, Colorado) (2008) (saving the class $4.5 million and preserving procedural due process).

In this federal case, we survived two separate jurisdictional motions to dismiss and succeeded on partial summary judgment, whereby the Court entered a permanent injunction in favor of our client, Atlantech, earning them specific relief potentially valued in the millions of dollars. Atlantech is a Massachusetts-based exporter of aircraft LCD displays, and purchased many of these uniquely-manufactured displays domestically though American Panel, headquartered in Georgia. The purchase contracts for these displays obligated American Panel to provide service and sales support for the displays for ten years and warranty the displays for two years from purchase. Shortly after Atlantech purchased hundreds of displays collectively valued at several millions of dollars, American Panel breached its support obligations, and in January 2007 assigned all of its assets and obligations to a successor corporation, APC Acquisition. Thereafter, APC Acquisition generally refused to honor American Panel’s pre-existing support obligations unless Atlantech agreed to a number of unreasonable requirements. As APC Acquisition maintained the exclusive intellectual property to support and repair these displays, APC Acquisition’s refusal to support these displays placed Atlantech’s business in serious jeopardy. We filed suit in Federal Court seeking specific performance and contractual damages from American Panel, APC Acquisition, and American Panel’s parent company. Atlantech, Inc. v. American Panel Corp., No. 07-10342-JLT/DPW (D. Mass.). Initially, all three defendants sought to dismiss for lack of personal jurisdiction. We immediately moved for and were awarded the right to take jurisdictional discovery, which ultimately led to a finding that jurisdiction was proper against all three defendants in Massachusetts and defeating the motions to dismiss. Atlantech, No. 07-10342-JLT, slip op. at 1 (D. Mass. Aug. 24, 2007). Thereafter, we moved for partial summary judgment, upon which the Court found that Atlantech’s contracts with American Panel were indeed assigned to APC Acquisition, and due to the defendants’ breaches of those contracts, the Court ordered APC Acquisition to turn over the relevant intellectual property to Atlantech to allow Atlantech to support and repair the displays on its own. Atlantech, No. 07-10342-JLT, slip op. at 1-2 (D. Mass. Mar. 24, 2008). APC Acquisition appealed the decision to the United States Court of Appeals, First Circuit in April 2008. We represented Atlantech in defending the appeal, which was denied in October 2008. Atlantech, No. 08-1492, slip op. at 1 (1st Cir. Oct. 27, 2008). APC Acquisition then petitioned for writ of certiorari to the United States Supreme Court in September 2010, which we also successfully defended, resulting in the denial of certiorari in November 2010.

iRacing Motorsport Simulations, LLC retained us to protect its copyrights in the code base for NASCAR® 2003 computer game.  After Tim Robinson, a self-proclaimed simulated racing enthusiast: (1) distributed customized applications over the Internet that automatically modified the NASCAR® 2003 game to appear to run different cars; and (2) by-passed the embedded system designed to require an original disc to be inserted in the end user’s computer while running the program, we filed suit in Federal District Court in Massachusetts seeking a temporary restraining order and expedited discovery, which was granted.  iRacing Motorsport Simulations, LLC v. Robinson, No. 05-11639 NG (D. Mass. Aug. 26, 2005).  Thereafter, the Court denied Robinson’s motion to dismiss (or alternatively to transfer venue), even though the end user license agreement vested exclusive jurisdiction in the Los Angeles courts, given evidence that Robinson knew that iRacing was headquartered in Massachusetts and that his alleged violation of iRacing’s copyrights would cause injury in Massachusetts.  iRacing Motorsport Simulations, LLC v. Robinson, No. 05-11639 NG (D. Mass. May 1, 2006). The Court thereafter granted summary judgment for iRacing on its Digital Millennium Copyright Act claim and found that iRacing had established: (1) all of the requisite elements of its copyright infringement claim; and (2) three of the four factors of Robinson's fair use defense in iRacing's favor.  iRacing Motorsport Simulations, LLC v. Robinson, No. 05-11639 NG (D. Mass. May 25, 2007). The Court later found that Robinson had also breached the end user license agreement. iRacing Motorsport Simulations, LLC v. Robinson, No. 05-11639 NG (D. Mass. Sept. 24, 2007).

A bench trial was conducted to determine damages – and to consider the fourth factor of Robinson's fair use defense – in February 2009. On May 28, 2009, the Court entered an Order against Robinson finding him liable on all counts, including copyright infringement, violation of the Digital Millennium Copyright Act, breach of a confidentiality agreement, and breach of an end user license agreement. The court entered judgment against Robinson for over $25,000. Robinson, No. 05-11639 NG (D. Mass. May 28, 2009). See also First Racing LLC v. McArthur, No. 05-10544 JLT (D. Mass. May 10, 2005) (settled favorably for copyright holder following the entry of a temporary restraining order against further Internet distribution of applications infringing on NASCAR® 2003 copyrights). 

Sapient Corporation ("Sapient") retained us to represent it with Skadden, Arps, Slate, Meagher & Flom, LLP ("Skadden Arps") in multiple derivative actions alleging that Sapient and its board of directors failed to maintain adequate internal controls to ensure the accuracy of Sapient's financial statements, resulting in the issuance of allegedly backdated options. After the plaintiffs filed actions against Sapient in August 2006, the state court actions were consolidated into the Business Litigation Session in Suffolk County Superior Court in January 2007. Following the consolidation, together with Skadden Arps, we moved to dismiss on the grounds that the plaintiff shareholders failed to make a pre-suit demand to Sapient, which is a requirement before bringing a derivative action under Delaware law. We further argued that the required pre-suit demand was not excused due to any "futility" exceptions. Shortly after the motion to dismiss was filed, we sought – and the Court granted – a stay of discovery pending the Court's consideration of the motion, saving Sapient significant discovery expenses pending a ruling on the motion to dismiss. In May 2007, the Court heard oral arguments on the motion and in October 2007 the Court granted the motion to dismiss with prejudice, terminating the case against Sapient. In re Sapient Corp. Deriv. Litig., No. 07-0629-BLS1 (Mass. Super. Ct. Oct. 29, 2007).

iRacing retained us to represent it in an arbitration action against its former website designer, Keene Systems, Inc. ("KSI"). iRacing previously hired KSI to design a complex website upon which users could participate in and schedule racing simulations online. After several months of unsuccessful tests and demonstrations by KSI, and receiving bills from KSI in nearly triple the amount of the initially quoted estimate, iRacing terminated the consulting agreement for cause. KSI brought an arbitration action against iRacing for refusal to render payment for certain bills, and iRacing counterclaimed for KSI's breach of contract due to project mismanagement. After a full arbitration trial, the Tribunal entered judgment for iRacing on its Counterclaim. Keene Sys., Inc. v. iRacing Motorsport Simulations, LLC, No. 11-117-00854-06 (Am. Arb. Assoc. Apr. 5, 2007). Thereafter, KSI appealed the ruling by way of a motion to vacate/amend in Massachusetts Superior Court, and after another full briefing and hearing, the Superior Court denied the appeal and entered judgment for iRacing.  Keene Sys., Inc. v. iRacing Motorsport Simulations. LLC, No. 07-1936 (Mass. Super. Ct. Nov. 13, 2007). Following the entry of judgment, the principals of KSI attempted to re-incorporate under a different name, presumably to avoid paying the judgment, which we discovered and ultimately forced a favorable settlement.

The Boston Beer Company and Samuel Adams Brewery Company were named as defendants in several class action lawsuits nationwide that sought to impose liability and obtain injunctive relief for the alleged marketing of alcoholic beverages to minors. Boston Beer hired us to defend it in connection with declaratory judgment actions brought by its insurers, by which the carriers sought to avoid, among other things, their duties to defend these class actions, which was particularly difficult since most of the underlying cases were pending at that time and the coverage action implicated issues in dispute in the underlying actions. Boston Beer’s instruction to us was to defend the coverage actions without in any way prejudicing its defenses in the underlying actions.  After extensive motion practice seeking to limit the scope of the coverage actions, we successfully defeated motions for summary judgment filed by Boston Beer’s carriers, and in a first-in-the-nation ruling, obtained judgment that the carriers had a duty to defend Boston Beer under Massachusetts law. Mass. Bay Ins. Co. v. The Boston Beer Co., Inc., No. 05-4634 (Mass. Super. Ct. Feb. 12, 2007). See also Royal Ins. Co. v. The Boston Beer Co. Inc., No. 1:04cv2295 (N.D. Ohio Apr. 5, 2007) (attaining similar result in analagous Ohio litigation).

In-Fusio, S.A., a leading mobile phone game developer and distributor based in Bordeaux, France, retained us to represent it in connection with a notice of termination issued by Microsoft regarding Microsoft’s license to In-Fusio of the exclusive rights to create and distribute a mobile phone game based on Microsoft’s Halo computer game. After unsuccessfully attempting to negotiate a solution satisfactory to In-Fusio, we filed suit against Microsoft in Federal District Court, Western District of Washington seeking an injunction prohibiting Microsoft from terminating the Halo license, as well as declaratory relief that by Microsoft’s conduct it had waived its rights to creative control over In-Fusio’s development of the Halo mobile phone game.  On January 3, 2007, the Federal District Court entered a stipulated temporary restraining order preventing Microsoft from terminating the Halo license pending further motion practice and possible appeal.   In-Fusio, S.A. v. Microsoft Corp., No. 06-1801 MJP (W.D Wash. Jan. 3, 2007).  Shortly thereafter, the parties agreed to resolve their dispute and end their relationship relating to the development of mobile games based on Halo.