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|The LibbyHoopes News page is the resource for finding out about current happenings at the firm. These include hiring announcements, attorney participation in seminars and panels, awards and recognition, and press releases concerning LibbyHoopes cases and accomplishments. This page also includes links to articles written by our attorneys.|
On July 20, 2016, a federal Boston jury acquitted LibbyHoopes' client, Patrick Fabian, of all 14 felony fraud charges brought by the government against the medical device executive. In particular, the jury unanimously acquitted Fabian (and his co-defendant William Facteau) of the single conspiracy count, three counts of wire fraud and 10 counts of distributing adulterated and misbranded medical devices, "with intent to defraud or mislead."
The Wall Street Journal quoted Fabian lead counsel and LibbyHoopes partner Frank Libby: "After five years investigation and a six week trial, the jury flatly rejected the government's core fraud and conspiracy theories."
Importantly, proof at trial made clear that no injuries were associated with use of the implantation device, widely used by surgeons to successfully treat patients with chronic sinus problems.
Mr. Fabian had been Vice President of Sales, while Mr. Facteau was CEO at medical-device maker Acclarent, a unit of Johnson & Johnson. In April 2015, a federal grand jury indicted Fabian and Facteau on felony charges including conspiring to market a sinus-opening device for an "intended use" not approved by the U.S. Food and Drug Administration, and conspiring to commit securities fraud by not disclosing the alleged conduct to Johnson & Johnson when it acquired Acclarent in 2010 for $785 million.
Frank Libby recently served as Moderator of a Board Leaders seminar, hosted at Babson Executive Center, captioned: "Internal Investigations from the Director's Perspective." The panel - which included another experienced white collar defense lawyer, and a seasoned member of several boards, including service as Lead Director and Chair of Audit Committee - addressed areas of current concern to directors of public and privately-held companies faced with signs of possible violations of federal criminal or regulatory law. Among the questions considered were: "What are the telltale signals of corporate wrongdoing?" "How and where do we begin to investigate?" "What is the role of the Director in the course of the investigation?" "Should we - must we-- self-report?" "While we investigate, what's the Message- to the media, our employees and our customers?"
Tom Hoopes and associates obtained a decision by Massachusetts United States Attorney's Office to not prosecute a healthcare company or its owners following an investigation for alleged overbilling.
LibbyHoopes Partners Frank Libby and Doug Brooks recently served as presenters at a CLE entitled: "Pigs Do Fly: Why the Government Dismissed the Charges In United States v. Stryker Biotech During Trial" at the Annual Meeting of the International Association of Defense Counsel (IADC) in Ashville, North Carolina. After Doug explained the general parameters of the prohibition against "off-label promotion" in the pharmaceutical and medical device industries, Frank shared his insights regarding the background, defense strategy, pre-trial preparation and stunning conclusion to the federal wire fraud, misbranding and conspiracy trial held last January, in Boston. (See below).
In 2008, a federal grand jury sitting in Boston, indicted Massachusetts-based Stryker Biotech, its president and three of its high-level sales managers for (among others) wire fraud and conspiracy to defraud both the FDA and spine surgeons and hospitals, into using an allegedly untested and unapproved mixture of synthetic bone growth products for use in high-risk spine surgery. These felony charges followed several years of intensive governmental investigation, resulting in pre-trial production to the defense, of several millions of pages of discovery. LibbyHoopes - Frank A. Libby, Jr. and Alathea Porter - represented one of the three sales manager defendants in this aggressive prosecution combining criminal theories of "off label promotion" and wire fraud.
Shortly before trial got underway and on the president's motion, the court severed all counts against the president, and set them aside for separate trial.
Trial commenced on January 9, 2012, with three days of jury selection and two days of opening statements. The government had previously represented to the court that trial would last "between six to eight weeks." Before the government completed its own examination of its first witness, however, the government entered into a (misdemeanor misbranding) plea agreement with the company - dismissing all felony charges - and dismissed all counts against another sales manager.
In a matter of days, and in response to a host of procedural, evidentiary and other legal challenges immediately pressed upon the court by LibbyHoopes and counsel to the other remaining sales manager-defendant, the government dismissed all charges against LibbyHoopes' client and the other remaining defendant. In its next day's edition, The Boston Globe quoted Frank Libby: "[My client] can resume his normal life....To the Government's credit, they came to this conclusion... and they dismissed this with the right term, in the interests of justice."
Sarah was also recently named to the Board of Directors of the Boston Dance Alliance. Established in 1985, BDA is Boston's largest official organization addressing issues of importance to the local and regional dance community.
John Commisso and Sarah Walsh, LibbyHoopes Attorneys, co-chaired a seminar on May 19 at the Boston Bar Association entitled White Collar Practice in Federal Court: Practical Skills, Expert Advice. Panelists included LibbyHoopes Partner Frank Libby along with present and former Assistant U.S. Attorneys and lawyers in private white collar criminal defense practices. The program provided practice tips and thoughtful analysis of hot topics for both novice and experienced attorneys and included discussion of several areas of federal court proceedings, such as: grand jury practice, proffer sessions, and immunity; initial appearances, detention and probable cause hearings; pleas and cooperation; and sentencing guidelines and advocacy. The seminar was sponsored, in part, by the BBA's New Lawyers Section and was followed by a networking reception.
LibbyHoopes was co-counsel in successfully defending a national nursing home corporation against charges, brought by the Massachusetts Attorney General's Office, of involuntary manslaughter, neglect of a resident, and Medicaid fraud. This success came first, in the form of a favorable decision in a preliminary appeal to the Massachusetts Supreme Judicial Court, on an issue of first impression regarding corporate criminal liability, and then later, before a jury, which returned a verdict of not guilty.
The firm is very pleased to announce that the 2010 Super Lawyers for Massachusetts has recognized LibbyHoopes attorneys for their professional accomplishments. Partners Tom Hoopes, Frank Libby, and Doug Brooks were named as Super Lawyers while Attorneys Matt Rickman, John Commisso, Thea Porter, and Sarah Walsh were honored as Rising Stars. Frank was listed as one of the top 100 Super Lawyers for the state. For more information, go to (www.superlawyers.com)
Christopher Hunter had an article on campaign finance law published at the end of September in both New England In-House and Massachusetts Lawyers Weekly. In the article, Chris examines issues involving conduit campaign contributions. A link to the full article is here.
LibbyHoopes is pleased to announce that Christopher J. Hunter, a former federal prosecutor for the Southern District of Florida, has joined the firm as Counsel. A magna cum laude graduate of Boston College with a J.D. from Boston College Law School, Chris has served as an FBI agent, an Assistant District Attorney in Boston, and in private practice. He can be reached at email@example.com."Trying Cases to Win: Principles Uniform from Coast to Coast." Tom Hoopes was a panelist on this nationally distributed seminar sponsored by Massachusetts Continuing Legal Education.
On May 13, Doug Brooks appeared before a three-member panel of the United States Circuit Court of Appeals for the District of Columbia Circuit. Doug argued that the judgment entered in favor of LibbyHoopes' client after a two-week jury trial should be affirmed.
LibbyHoopes Attorney Thea Porter published an article in the May 10th issue of Massachusetts Lawyers Weekly that examined the Fourth Amendment implications of DNA swabbing of arrestees. Thea co-authored with John Reinstein, legal director of the American Civil Liberties Union of Massachusetts. To view the article, click here.
On May 4, Doug Brooks provided insight concerning the legal issues involved in representing college students and universities in an event sponsored by the Boston Bar Association. Participating on a panel of defense counsel, prosecutors, university counsel and university police officers, Doug discussed various civil and criminal legal issues based on his vast experience in this area of the law. To view a web album of this event, please click here.
Doug Brooks appeared before a three-member panel of the Massachusetts Appeals Court, arguing that a Superior Court's ruling which granted LibbyHoopes' client summary judgment and awarded him full recovery of his legal fees should be affirmed.
A clean sweep! The three partners and all four associates of LibbyHoopes were listed in the 2009 New England Super Lawyers, a joint publication of Boston Magazine and Law & Politics. Frank Libby, Tom Hoopes, and Doug Brooks were named Super Lawyers in white collar criminal defense. In the same practice area, Attorneys Matt Rickman, John Commisso, Thea Porter, and Sarah Walsh were honored as Rising Stars, outstanding lawyers under the age of 40. The Super Lawyers comprise the top 5% of lawyers in the region, while the Rising Stars represent 2.5%. For more: (www.superlawyers.com)
LibbyHoopes Attorney Sarah W. Walsh has been selected to participate in the Boston Bar Association's Public Interest Leadership Program (PILP), a 12 month leadership development program for lawyers in their first ten years of practice. LibbyHoopes Managing Partner Tom Hoopes expressed the firm's pride, saying "Sarah's inclusion in this dynamic group of Up and Coming Leaders is a real statement about her commitment to the Bar and the wider commmunity. All of us at LibbyHoopes take great satisfaction in her recognition." For more, click here.
LibbyHoopes Partner Doug Brooks was nominated and accepted for membership in the International Association of Defense Counsel (IADC). IADC membership is offered only to "the best and the brightest" in the legal profession. The IADC has been serving a distinguished membership of corporate and insurance defense attorneys since 1920. Its activities benefit the approximately 2,500 invitation-only, peer-reviewed members, as well as their clients.
Doug Brooks was recently quoted in Massachusetts Lawyers Weekly, concerning a high-profile and controversial decision from a federal magistrate judge on the issue of attorney disqualification. From the article, entitled "Caught in the Middle: Conflict-of-Interest Ruling Spells Bad News for Laid-Off Assciates, Would-Be Employers":
"Douglas S. Brooks of LibbyHoopes in Boston, who handled a 2007 disqualification matter against the firm of Robinson Cole, said [Magistrate Judge] Collings' decision reiterates an important principle laid out by then-Superior Court Judge Ralph D. Gants.
That principle, Brooks said, is that an attorney's subjective memory is not the key factor in the analysis. Instead, cases are to be decided on whether or not a lawyer - like Getchell - was privy to substantial information."
On May 28 after a two-week jury trial in federal court in Washington, D.C., LibbyHoopes Partner Doug Brooks, as lead trial counsel, secured a Judgment in favor of his client in a breach of contract dispute. Representing the defendant in that federal civil action, Doug successfully argued that an enforceable contract did not exist between the parties.
On May 21, Frank Libby provided insight, from the white collar criminal defense perspective, into taking — and defending — an officer or director deposition. Participating on a panel of other senior lawyers hosted by Board Leaders, Frank demonstrated the value of preparation, and the heightened need for disciplined thinking, when speaking for the company.
Tom Hoopes was recently quoted in PRWeek, the major outlet of the public relations industry. From the article entitled Law Firms Use PR to Court Attention: “I have had a number of cases where… the story has appeared in the press or is going to appear in the press…As a lawyer, you want to influence the press because you know [it] may impact the decision maker and the press may also impact the brand of the client.…With the advent of the Internet, [the media] is all pervasive. It can surround the case and impact it in all kinds of different ways."
On May 28, Frank Libby served alongside strategic communications and management consultants in a program designed to explore the manner and means by which a public company may respond to concerns of internal corporate misconduct. The program, hosted by Board Leaders at the Babson College Executive Center, was entitled: "The Board's Role in Crisis Management." Frank demonstrated how preparing a pre-crisis "action plan" encompassing board decision-making, communications within the company, and a balanced relationship with law-enforcement authorities, can pay significant dividends, particularly when coupled with an effective internal corporate investigation.
On April 16, Frank Libby joined John Dugan, Chief of Enforcement, Boston District Office of the Securities and Exchange Commission, in discussing the evolution of director responsibilities and enforcement trends, in compliance and fraud detection. The seminar was entitled: "Board Responsibility When Communicating with the SEC."
Tom Hoopes was recently quoted in MassLawyers Weekly concerning a ruling from Chief U.S. District Court Judge Mark L. Wolf. The ruling, which stated that the U.S. Attorney's Office could not share business and computer records, produced for a grand jury, with the Department of Justice without establishing a specific need to do so.
Hoopes, who was not involved in the case, said that "while some may view the ruling as a criticism of the U.S. Attorney's Office, it is actually an example of Wolf doing his job as a judge — and, more significantly, as chief of the U.S. District Court."
"'There are three things he's supposed to do: rule on the case, teach what the law is through his rulings and — as chief judge — to lead," said Hoopes. "Clearly, he was telling the government that this is the law and that they need to follow it in the future.'"
The article went on: "For lawyers who represent companies facing both criminal and civil issues, Hoopes said this is 'one of those fundamental cases that they need to be aware of. It doesn't change the law so much as restate a 25-year-old standard that the government can't willy-nilly use grand jury material on the criminal side to help out the civil side.'"
Frank Libby served as a moderator at a February 6, 2008 SEC seminar hosted by the Boston Bar Association. Frank's panel – which included trial attorneys from the Boston District Office of the Securities and Exchange Commission, as well as the U.S. Attorney for the District of Massachusetts – was captioned: "The Subprime Mortgage Mess: Is It Coming? Is It Already Here?"
The speakers addressed the potential for civil – and possibly criminal – enforcement efforts in this topic of growing concern.
Frank Libby was a panel member at the Board Leaders Seminar at the Babson College Executive Center on June 19. His topic, "Crisis Management: Legal Considerations for the Board", was part of the one-day seminar focusing on important issues confronting corporate directors.
LibbyHoopes is pleased to announce that Alathea E. Porter has joined the firm as an Associate Attorney. Thea is a graduate of the University of California, Los Angeles (B.A., cum laude) and the Northeastern University School of Law. Previously, she was a Litigation Associate with Day Pitney LLP in Boston. Alathea can be reached at: firstname.lastname@example.org.
LibbyHoopes is pleased to announce that Sarah W. Walsh has joined the firm as an Associate Attorney. She is a graduate of Ithaca College (B.S.) and Suffolk University Law School. Sarah has been a Legislative Aide with the Massachusetts House of Representatives, Office of James M. Murphy. She can be reached at: email@example.com.
LibbyHoopes Partner Frank Libby moderated a panel discussion entitled "Nuts and Bolts of Qui Tam Actions: Perspectives from the Relator, Government and Defense." The discussion was held at Nutter McLennon & Fish LLP on October 19. LibbyHoopes Associate Matt Rickman is a co-chair of the ABA Regional White Collar Crime Young Lawyers Subcommittee, which hosted the event.
Frank Libby and Doug Brooks recently secured jury verdicts in favor of two county retirement associations, in a Superior Court action for breach of fiduciary against the General Partner of a limited partnership investment fund. The verdict will return nearly one million dollars to the four (county and municipal) members of a pension fund limited partnership. One month later, these same pension fund clients enjoyed another trial victory, this time in a Virginia court. The limited partners had invested several million of pension fund money in a "high end" golf course to be constructed in Loudon County, Virginia. Under Libby and Brooks' guidance, these clients brought a "lender liability" action against their General Partner (for self-dealing) and a well-known commercial lender, for arranging a multi-million dollar loan to the General Partner's company. The deal included a provision stripping the pension fund of its sole security, a mortgage on the golf course. At the close of trial, the Virginia court restored the pension fund to first mortgage holder on the course; the limited partners now expect to recover a substantial amount of their original investment.
"Not guilty!" Doug Brooks recently defended a client charged with arson and use of a destructive device at a six-day jury trial before U.S. District Judge Nathaniel Gorton in federal court in Boston. Despite a government case that included forensic evidence, alleged admissions by the defendant, and a surveillance videotape that the Assistant U.S. Attorney argued depicted the defendant both before and after the fire, it took a jury less than three hours to return a unanimous verdict of "not guilty" on both criminal charges. Had the client been convicted he would faced in excess of 40 years in federal prison. He is now a free man.
Each of the LibbyHoopes Partners has recently appeared on local television news stations and in the Boston newspapers addressing current events and cases of interest in the local community, including the arrest and indictment of Neil Entwistle for the alleged murder of his wife and child, the publication of a book by Boston mobster Kevin Weeks, and Congressional hearings into alleged misconduct by federal agents in the handling of criminal informants.
LibbyHoopes recently obtained favorable monetary settlements on behalf of clients who suffered serious injuries due to the wrongdoing or negligence of others. In one case, LibbyHoopes secured a six-figure settlement for a young man who fell over 30 feet through an opening in the platform of a fire escape at a residential home causing internal injuries and lingering back problems. In another case, LibbyHoopes represented another young man who was shot in the face with a projectile by one or more police officers outside Fenway Park following the Boston Red Sox victory over the New York Yankees in the American League Championship series in October 2004. This was the same event in which a young female college student was tragically killed when shot in the eye with the same "crowd-control" weapon. The financial settlement in the case was significant, and fairly reflected the potential exposure to the City of Boston and the officials involved.
LibbyHoopes is pleased to announce that John J. Commisso has joined the firm as an Associate Attorney. He is a graduate of Boston College (B.S.) and the Georgetown University Law Center. John clerked for the Hon. George A. O'Toole, United States District Court, Boston, Massachusetts. He was also an associate in the litigation department at Goodwin Procter LLP, Boston. John can be reached at: firstname.lastname@example.org.
The firm is pleased to announce that Doug Brooks has been named Partner. Doug has been a member of the LibbyHoopes team of trial lawyers since the firm opened its doors in 2000. Doug is an extraordinary advocate for his clients and a wonderful asset to the firm, especially in the areas of white collar criminal defense and complex civil litigation.
Felony firearms and other charges were dismissed against a client of LibbyHoopes following issuance of a court order suppressing several key pieces of allegedly incriminating evidence that were seized from the client's residence by ATF agents and Wayland police officers. After an evidentiary hearing in which several witnesses, including police officers, testified, Paul Kelly, Nick Klinefeldt, and Matt Rickman successfully argued that the seizure of evidence had been in violation of the Fourth Amendment. The ruling was upheld on appeal, leading to a dismissal of the charges against our client.
LibbyHoopes Associate Lisa Asiaf has accepted an appointment as an Assistant US Attorney with the Office of the United States Attorney, District of Massachusetts. Lisa will begin work shortly after the New Year.
Lisa has been with our firm since its inception in June, 2000. Her accomplishments in the courtroom and contributions to LibbyHoopes have been invaluable, to her clients and to the firm. We are proud to count her among the LibbyHoopes Boston/LibbyHoopes team of trial lawyers.
The partners and several associates of the firm were listed in the 2004 Massachusetts Super Lawyers, a joint publication of Boston Magazine and Law & Politics. The Super Lawyers comprise the top 5% of lawyers in the state. For more: (www.superlawyers.com)
The firm and its partners were recognized in Massachusetts Lawyers Weekly as part of "Boston's Power Matrix", a legal roadmap of "prominent lawyers and their connections." The article and graphic, in the publication's "Power Issue," took note of the firm's "serious synergy among [the] trio of ex-prosecutors."
LibbyHoopes Associate Matt Rickman was instrumental in coordinating a panel discussion sponsored by the Boston Chapter of the ABA White Collar Crime Committee Young Lawyers Subcommittee. The event, on November 10, covered a range of issues related to the acquittal of eight TAP Pharmaceutical employees in federal court in Boston.
LibbyHoopes Partner Frank Libby was a principal panelist for a seminar entitled Responding to Governmental Investigations: legal strategies, managing risk/exposure, and dealing with a 24/7 media. The other panelists were Joseph Baerlein, Esq. (Rasky/Baerlein Strategic Communications) and David Holley, Managing Director and Office Head for Kroll's Boston office. The seminar was held in Boston's Baytower Room on June 3. Attendees included in-house corporate counsel, human resources and security personnel.
LibbyHoopes Associate Lisa Asiaf was instrumental in coordinating a seminar to kick off The Women's Bar Association Business Development and Marketing series. The topic was Rainmaking for Women: Tips from the Top on Business Development. Panelists included Gloria Larsen of Foley Hoag, Leigh Ann Patterson of Nixon Peabody, and Sara Goldsmith Schwartz of Schwartz Hannum. The moderator was Diane Danielson, Executive Director of the Downtown Women's Club (Boston and New York).
LibbyHoopes Partner Tom Hoopes successfully defended Plymouth County (Mass.) Sheriff Joseph in a federal civil action brought by three former deputy sheriffs. In the suit, the deputies alleged that McDonough fired them because of their political support of the previous sheriff, who had lost his re-election bid. The three-week trial ended when the jury, who deliberated for less than an hour, found for McDonough and his Special Sheriff, Matthew Hanley. "Justice was done, " McDonough stated after the trial, in which he testified that the personnel changes he made were aimed at improving the professionalism of his department.
On December 31, 2003, the United States Court of Appeals for the First District issued a ruling favorable to Tolls Bros. Inc. a LibbyHoopes client. Associate Lisa Asiaf had argued the appeal in the matter, Kozikowski v. Toll Bros., Inc., (a contract / Chapter 93A action.) Click here for a PDF version of the opinion.
In her Massachusetts Lawyers Weekly article (September 8) "Does Disclosure to PR Consultants Waive Privilege?," LibbyHoopes attorney Lisa Asiaf explores the state of the law governing application of the attorney-client privilege to communications with public relations consultants. As high profile cases often require the use of public relations experts to achieve the best possible defense, Ms. Asiaf urges Massachusetts courts to follow a recent decision by a federal judge in the Southern District of New York, which extends the attorney-client privilege to confidential communications between lawyers and their public relations consultants where the communications were directed at handling the client's legal problems.
LibbyHoopes Associate Doug Brooks wrote an article for the June 9, 2003 issue of Massachusetts Lawyers Weekly entitled "Bureau of Prisons' Controversial New Policy." Doug writes: "Premised on the conclusion that it is 'unlawful', the Bureau of Prisons has recently terminated its longstanding policy of placing certain non-violent inmates in community corrections facilities or 'halfway houses' to serve short terms of imprisonment. Defense lawyers across the country have taken aim at this new policy, receiving mixed results from the courts."
LibbyHoopes Associate Matt Rickman was interviewed on New England Cable News (NECN) concerning the likelihood of finding the killer of Worcester County (Massachusetts) teenager Molly Bish. Matt discussed a variety of factors in the case, including the difficulty of establishing cause of death, the possibility of further circumstantial evidence, and the unprecedented 6,000 leads pursued by police.
On May 7, LibbyHoopes Partner Tom Hoopes was the legal panelist in a program entitled Effectively Managing Crisis Situations. Tom Served with Beth Healy, Business Reporter for the Boston Globe and Peter Prodromou of Trinity Communications at the Trinity Communications seminar in Boston.
A revision of the Massachusetts Superior Court Criminal Practice Manual was published by the MCLE. Tom Hoopes co-authored the first two chapters.
Every January, LibbyHoopes partner Tom Hoopes hosts the BBA's annual Cutting Edge: The Most Important Developments in Criminal Law seminar. Tom invites a panel of highly regarded judges, prosecutors and defense attorneys to assist him with this popular and well-attended CLE program to discuss recent court decisions, verdicts, statutory and rule changes, and developments in the practice of criminal law, both state and federal.
On January 23, 2003, LibbyHoopes partner Frank Libby gave a talk to the Service Academy Business Network (SABN) entitled Making a Federal Case Out of It: The Trajectory of a White Collar Prosecution. The lecture traced the typical case, from origin (for example, whistleblowers and existing investigations) through trial and sentencing. To download a Powerpoint of the lecture, click here.
On December 31, 2002, the United States Court of Appeals for the First District issued a ruling favorable to The Town of Brookline, a LibbyHoopes client. Associate Lisa Asiaf had argued the appeal in the matter (Dirranve v. Brookline Police Department et al), a civil rights/whistleblower action brought by an officer on the force. Click here for a PDF version of the opinion.
In 2002 (and 2001), Tom Hoopes, together with Joe Baerlein of the Rasky/Barelein Group, taught a workshop entitled Responding to Crises: The Legal, Policy, and Media Dilemmas for the Massachusetts Council of Human Services Providers Annual Convention at the World Trade Center in Boston.