Mr. Tully has litigated numerous disputes in a wide range of industries, including those involving trade secrets, business interference, and unlawful competition claims. He has also represented clients in connection with federal and state antitrust investigations, and he regularly counsels clients on antitrust and other trade regulation issues. In addition to his jury and non-jury trial experience in both personal injury and commercial cases, Mr. Tully has participated in numerous court-ordered and privately arranged mediations and arbitrations, and he has served as a court-appointed mediator.
Mr. Tully’s representative matters, trials and significant reported decisions include:
- Teva Pharmaceuticals/Propofol Litigation. Mr. Tully is lead trial counsel for Teva, one of the largest generic drug manufacturers in the world, in several thousand product liability actions in Las Vegas, Nevada. This mass tort litigation arises out of a Hepatitis C outbreak allegedly caused in part by the misuse of Teva’s generic, injectable anesthesia drug, Propofol. Mr. Tully has conducted multiple trials and briefed and argued hundreds of motions in Teva’s defense of these actions, which raise novel issues concerning whether a generic drug manufacturer can be held liable under various state law theories relating to design defect, failure to warn and implied warranties, issues which are being litigated in state and federal courts throughout the country as well as before the United States Supreme Court.
- HRH/Kinlock. Mr. Tully successfully represented a major insurance brokerage firm against a competitor that attempted to hire over 20 of its brokers and “lift out” tens of millions of dollars in customer contracts. In a case that went to trial within three months of the initial complaint, Mr. Tully successfully enjoined the competitor from hiring any of the employees or servicing or soliciting any of the customers, effectively putting the competitor out of business.
- Nuance Communications, Inc./Employment and Business Litigation. Mr. Tully regularly represents Nuance Communications, a leading speech recognition and imaging technologies company, in an array of litigation matters ranging from employee noncompetition and nonsolicitation to commercial contract disputes. Mr. Tully has successfully prosecuted and defended such claims throughout the country.
- BlueShift Technologies, Inc. Mr. Tully represents BlueShift Technologies, Inc. (BlueShift) in a trade secret and noncompete case in the Business Law Section of the Suffolk Superior Court. The case tried to a jury verdict, resulting in a total victory for our client. The jury returned a verdict in favor of BlueShift and its founder, Peter van der Meulen, ruling that there had been no trade secret misappropriation or breach of any noncompete or other contractual provisions. In addition the jury ruled in favor of BlueShift on its intentional interference with contract claim. The court also ruled in favor of BlueShift on its Chapter 93A claim (unfair and deceptive acts or practices) and awarded BlueShift treble damages on the jury's award as well as its attorneys’ fees. The trial judge opined that Mr. Tully’s conduct of the trial was superb.
- Gulf Oil Limited Partnership/Cumberland Farms, Inc. Mr. Tully is the principal partner in this matter, in which Goodwin Procter serves as National Counsel for Gulf Oil Limited Partnership (Gulf) and Cumberland Farms, Inc. (CFI), branded and unbranded gasoline wholesaler and marketer, and wholesaler, retailer and marketer, respectively, in the defense of more than 50 cases brought by over 140 plaintiffs (consisting of cities, towns, water districts and private water companies from 13 states) seeking property damages, remediation and monitoring costs for alleged groundwater contamination as the result of defendants’ use of the gasoline additive methyl tertiary-butyl ether (MTBE). Plaintiffs in these cases assert state law product liability and trespass and nuisance claims against the majority of the gasoline refining, distribution and marketing industry. We successfully removed the cases to federal court, and succeeded in having all cases transferred to the federal district court for the Southern District of New York, creating a massive consolidated litigation, MDL No. 1358. Goodwin Procter attorneys, led by Mr. Tully, have represented Gulf, CFI and others in all proceedings before the multi-district litigation court, drafted motions to dismiss on substantive and personal jurisdiction grounds, participated in the negotiations with plaintiffs’ coordinating counsel concerning the formation of MDL case discovery plans, and collected and reviewed company documents for use in the litigation and production in response to discovery requests.
- NYCE Corporation v. Concord EFS, Inc. et al., Docket No. BER-L-000532-004 (Superior Court of New Jersey). NYCE sued its primary competitor, Concord EFS, Inc. (and affiliated companies) for breach of a 1993 Settlement Agreement arising out of an unfair competition dispute regarding operation of their competing electronic funds transfer networks (EFT Networks). Under the terms of that agreement, debit card issuers were to have the choice of directing transactions to the EFT Network that offers the best combination of price, reliability, efficiency and quality. NYCE claimed that defendants breached the agreement by adopting a rule that frustrates issuer choice and mandates that certain point-of-sale transactions must be routed over defendants’ EFT Network, under threat of financial sanctions and penalties, regardless of the issuer’s expressed desire.
- Exhaust Unlimited, Inc. v. Cintas Corporation, Unifirst Corporation, et al., 223 F.R.D. 506 (S.D.Ill. 2004). In this potentially enormous litigation, plaintiff Exhaust Unlimited, Inc. (Exhaust), an automotive repair shop, brought an action against companies that rented uniforms to the shop, alleging that the defendants, “who in large part make up the national textile linen supply industry,” were not true competitive rivals but instead jointly imposed improper ancillary charges and otherwise conspired to restrain trade in violation of federal antitrust laws (Sherman Act). 223 F.R.D. 506, 508. The plaintiff moved for certification of a broadly defined nationwide class. Mr. Tully and other Goodwin Procter lawyers, representing Unifirst Corporation, successfully defeated Exhaust’s motion for class certification, effectively ending the litigation.
- NSA Investments II LLC v. SeraNova, Inc., Intelligroup, Inc., et al., 227 F.Supp.2d 200 (D.Mass. 2002). Mr. Tully represented plaintiff NSA Investments II LLC (NSA) in this matter, in which it bought stock in the defendant company SeraNova, Inc. (SeraNova), as part of a private placement transaction after which SeraNova was to publicly “spin off” from its parent company, Intelligroup, Inc. NSA charged that following its $4 million investment, SeraNova breached the warranty contained in the companies’ stock purchase agreement when it repeatedly and publicly failed to satisfy the Securities and Exchange Commission’s registration requirements. On motion for partial summary judgment, the Court agreed with NSA that it had never waived the benefit of the stock purchase agreement warranty and that SeraNova had breached that warranty.
- Micro Networks Corp. v. HIG Hightec, Inc., 195 F.Supp.2d 255 (D.Mass. 2001). Mr. Tully represented plaintiff Micro Networks Corporation (MNC) in this matter, in which MNC successfully sued HIG Hightec, Inc. (HIG), a venture capital firm that held a substantial block of MNC’s preferred stock. HIG sought to block the acquisition of MNC by Integrated Circuit Systems, Inc. (ICS), despite months of negotiations and ultimate approval of the deal by the MNC Board of Directors. The Federal District Court in Massachusetts agreed with MNC that its securities purchase agreement with HIG (i) was legitimate and specifically applicable, and (ii) that the securities purchase agreement denied HIG veto rights over MNC’s corporate decisions. The court further estopped HIG from interfering in any way with execution of the deal. In a case that threatened to undermine the financial stability of this high tech client, Mr. Tully and his team obtained a terrific result, enabling MNC to complete its deal with ICS.
- Samos Imex Corporation v. Nextel Communications, Inc. v. Brook Hill Enterprises, Inc., Edwards & Kelcey, Inc., and Valmont Industries, Inc., 20 F.Supp.2d 248 (D.Mass. 1998). In this litigation, Mr. Tully represented third party defendant Valmont Industries, Inc. (Valmont). Plaintiff Samos Imex Corporation (SIC) sued Nextel Communications, Inc. (Nextel), a provider of cellular communications, for damage to SIC’s building as a consequence of the erection of a cellular telephone monopole on adjacent property. Nextel brought third-party claims for indemnification and contribution against Valmont and others (the parties with whom Nextel contracted to construct the cellular tower). Summary judgment was entered in favor of Nextel on the main claim in the lawsuit. Thereafter, Nextel sought reimbursement for its attorneys fees and costs from Valmont and the other third party defendants. On motions for summary judgment, the Court found that with respect to Valmont, which provided the design specifications for the monopole and its foundation, “no basis exists for finding actual or vicarious liability” and summary judgment was granted in its favor. 20 F.Supp.2d 248, 252.
- Goebel v. Schmid Bros., Inc., 871 F.Supp. 68 (D.Mass. 1994). In this matter, Mr. Tully and other Goodwin Procter attorneys represented Schmid Brothers, Inc. (Schmid) in a commercial dispute with plaintiffs Goebel Art GmbH, a German corporation, and its parent (both referred to as “Goebel”). Schmid was the exclusive U.S. distributor of figurines manufactured by Goebel. Plaintiffs claims against Schmid included allegations of breach of contract, bad faith, unfair competition, tortious interference with business relations and fraud, among others. After extensive briefing, the Court granted, with prejudice, the motion to dismiss on behalf of Schmid’s sole owner, Paul Schmid, after previously dismissing all alter ego claims against Schmid, the corporation. It was a complete victory for both Schmid, and its owner, Paul Schmid.