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MBBP Client Fanzcall Receives Backing from Red Sox’s David Ortiz 07/29/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Corporate, Games & Interactive Entertainment.
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Fanzcall, an interactive live sports game app, announced that Boston Red Sox’s David Ortiz is now a shareholder in the Waltham-based startup company.  Ortiz has an equity stake in the company, and will serve as an Ambassador.  Fanzcall allows users to guess the outcome of at-bats during live games.  It was founded by Anton Khinchuk and has already raised approximately $1.6 million through investors.  logo

 

Regarding his involvement with Fanzcall, Ortiz remarked “I’m excited that the Fanzcall app allows baseball fans to become a part of the game they love… I love this opportunity to work with Fanzcall to extend my own love of the game, even after I retire.”  The app is available for free in the App Store and in Google Play.

MBBP is thrilled to continue its work with client Fanzcall, and looks forward to witnessing its continued success!

Delaware Chancery Court Rules on “Fair Value” Doctrine 07/29/2016

Posted by Morse, Barnes-Brown Pendleton in Client News.
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M0846615The Delaware Chancery Court recently rejected the long-standing doctrine that the merger price in an arm’s-length transaction always represents fair value. The court carved out exceptions to the doctrine in two cases specifically: Appraisal of Dell, Inc (May 31, 2016) and Appraisal of DFC Global Corp. (July 8, 2016). In both cases, the Chancery Court found that there were specific, enumerated factors that made the merger price inadequate as a measure of fair value, despite the fact that the seller in both cases ran an aggressive and thorough sales process.

Read the full article on our M&A Today blog.

Good News for Patent Holders 07/22/2016

Posted by Morse, Barnes-Brown Pendleton in Intellectual Property, Legal Developments, New Resources.
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LMW Headshot Photo 2015 (M0846622xB1386)By: Lisa Warren

In what has been a seemingly rare occurrence in recent months, the U.S. Court of Appeals for the Federal Circuit recently issued a pro-patentee decision in Immersion Corporation v. HTC Corporation and HTC America, Inc., holding that a continuing application filed on the same day as the parent application issues as a patent satisfies the requirement that the continuing application be filed before the parent is patented.  The decision noted the consistent judicial and agency interpretations of the statutory language at issue (35 U.S.C. 120) as supporting its decision, stating that, “…that history, we think, is so weighty as to be determinative.”  A cheer undoubtedly arose from patent holders, as, according to the decision, over-turning the PTO’s position allowing priority claims for such filings would have affected the priority dates of more than 10,000 patents currently in force.

Client Alert: EU-U.S. Privacy Shield Adopted 07/15/2016

Posted by Morse, Barnes-Brown Pendleton in Client News.
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The European Commission Has Adopted and Launched
the EU-U.S. Privacy Shield 

By: Faith Kasparian

client alert skinnyEarlier this week, the European Commission adopted the EU-U.S. Privacy Shield – a new framework for transatlantic data flows.  The European Commission’s Press Release announcing the Shield promises that the new framework “protects the fundamental rights of anyone in the EU whose personal data is transferred to the United States” and brings “legal clarity for businesses relying on transatlantic data transfers.”

The EU-U.S. Privacy Shield replaces the Safe Harbor framework, which previously governed data transfers between the EU and the U.S. until it was declared invalid by the Court of Justice of the European Union on October 6, 2015.  On February 2, 2016, the EU and the U.S. reached political agreement as to the new Privacy Shield.  The European Commission’s “adequacy decision” implementing the Privacy Shield was approved on July 12.  See our prior Alerts on this subject here and here.

Read the full alert which includes the principal elements of the Privacy Shield.

MBBP’s Life Sciences Vector, Summer 2016 07/14/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Life Sciences, MBBP news, New Resources.
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ext2016 LIFE SCIENCES PANEL SERIES

At the second of our Life Sciences panel Series: “Laying the Foundation for Growth: Entity & Equity”, experts discussed whether a corporation or a limited liability company is the “Right Stuff ” for building an emerging company, and how to structure and optimize the equity compensation of the team. MBBP’s John Hession moderated the panel, which included Marc Cote of Accellient and Jeff Solomon of Katz Nannis + Solomon. Stay tuned for details on Panel 3 in the fall.

Click here to learn more.

MBBP ADDS TWO ATTORNEYS

Weatherly Ralph Emans, Corporate Senior Attorney – As a member of the firm’s PIFA team in the corporate group, Weatherly focuses her practice primarily on private investment funds, including private equity funds, venture funds, hedge funds and funds of funds. Weatherly’s practice also includes venture capital transactions and providing general corporate advice to early stage companies.

Amanda R. Phillips, Litigation Associate – As a member of the firm’s litigation practice, Amanda focuses her practice on commercial civil disputes and securities litigation, and has broad experience working with clients under investigation by federal and state government agencies.

WAIT A MINUTE MR. POSTMAN…

Sooner or later many companies with a successful product or service will receive an overture from a patent holder. Some are almost friendly, proposing a potential mutually beneficial business relationship involving the patent. Others are decidedly less so, leveling claims of patent infringement and seeking immediate termination of the activity or product sales and/or significant financial compensation. This entire range of written communications is commonly referred to as “demand letters.” So – what’s the next step if your company receives a demand letter?

Read more on Page 2.

SUPREME COURT DENIES SEQUENOM’ PETITION TO CLARIFY SCOPE OF MAYO IN SEQUENOM V. ARIOSA

On June 27, 2016, the United States Supreme Court denied a Petition for Writ of Certiorari filed by Sequenom, Inc. requesting the Supreme Court to clarify the scope of its Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012) decision, as applied to Sequenom’s claimed inventions. The Mayo decision, which held that a method correlating a drug dosage regimen and levels of the drug in the blood was an unpatentable law of nature, has had the profound effect of narrowing the scope of patent-eligible subject matter in the United States and has cast doubt on the validity and enforceability of previously issued United States patents.

Read more on Page 3.

CLIENT SPOTLIGHT: iSpecimen 

iSpecimen is a trusted, one-stop source of customized human biospecimen collections. Compliantly sourced from our diverse
partner network of hospitals, labs, biobanks, blood centers, and other healthcare organizations, our solid tissues, biofluids, and cells are delivered directly into the hands of biomedical researchers using our unique, turnkey technology. Scientists gain access to a ready supply of the high-quality, richly-annotated specimens they need from the patients they want. Supply partners gain an opportunity to further contribute to biomedical discovery as well as their bottom line.

Read more on Page 4.

Client Corista Selected by Johns Hopkins Medicine to Extend Pathology Capabilities 07/11/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Medical Devices.
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Corista Logo (M0931457xB1386)Exciting news for MBBP client Corista as Johns Hopkins Medicine, one of the leading health care systems in the United States, has successfully installed Corista’s DP3 system. The DP3 is a digital pathology network platform that removes the physical boundaries from pathology and enables real-time remote expert diagnoses. It is a workflow solution integrating multiple facilities, scanners, physicians, patients and Laboratory Information Systems.

Johns Hopkins is standardizing this DP3 system as its centralized digital pathology platform in order to streamline workflows among its five hospital centers. The overall objective is to provide more efficient and accurate flow of information across core systems that manage diverse functions in the hospital system. Specifically, the system will help improve each hospital’s Tumor Board process, integration of existing systems including LIS, and global remote access.

Congratulations, Corista! MBBP serves as general counsel to Corista and assisted in negotiating its contract with Johns Hopkins. For more information, visit Corista News & Events.

MBBP Client BBK Worldwide Partners with Apptomics on App to Monitor Parkinson’s Patients 07/11/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Computer Software & Hardware, Life Sciences, Medical Devices.
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Firm client BBK Worldwide is partnering with Wellesley-based digital health app maker, Apptomics, as it prepares to launch a one-year clinical trial in September. Using a combination of apps (iMotor and MyPD), for monitoring patients with Parkinson’s disease, the trial will test the effectiveness of these tools in impacting the management of Parkinson’s disease and health outcomes.  iMotor measures objectively patients’ motor function by combining several variables and MyPD focuses on collecting data related to symptoms, medications, side effects sleep quality, and emotional status. Data collected are transmitted in reports to patients’ neurologists.BBK Worldwide Holdings logo (M0790340xB1386)

BBK Worldwide is the foremost patient recruitment and engagement technology firm, providing a range of award-winning creative services and technology solutions to the world’s most innovative pharmaceutical and biopharmaceutical companies and their outsourced suppliers, such as CROs and eClinical providers. Apptomics works to achieve optimal management of chronic neurological conditions, including Parkinson’s, through scientifically validated mobile applications that allow collection of objective and patient reported data on disease progression.  BBK Worldwide is now a minority investor in Apptomics, with BBK Principal Matthew Stumm serving on the Apptomics Board of Directors.

The two companies will work to develop a collection of apps aimed at monitoring patients with chronic neurological diseases and relaying the information to their doctors.  Apptomics has already had success with the iMotor app through two studies that clearly demonstrated the scientific effectiveness of its data collection.  The app also proved able to distinguish Parkinson’s patients from healthy individuals, and distinguished with high sensitivity the effects of treatment plans.

Congratulations to both companies on their new venture!

 

MBBP Client ConforMIS, Inc. Acknowledged for Patient Satisfaction with Knee Replacements 07/07/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Employment, Life Sciences, Medical Devices.
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ConforMIS, Inc., a medical technology company that manufactures and sells joint replacement implants, received positive results from its iTotal CR study.  The iTotal CR is a fully customized implant for use in total knee replacement, and the study found that 92% of patients were satisfied with the product in the year after receiving a knee replacement.  conformis-inc-logo

In developing, manufacturing, and selling joint replacement implants, ConforMIS uses its iFit Image-to-Implant technology, which allows for a customized implant specifically designed to fit an individual’s anatomy.  The iTotal CR study included 300 patients in the United States, and is still ongoing.  The interim study results were presented at the 2016 SICOT International Orthopaedic “Specialized Knee Surgery” Conference in Germany, which ran from June 30th to July 2nd.

The positive feedback is consistent with a previous study that showed that patients noted significantly higher satisfaction with the ConforMIS iTotal CR in their knee replacements, than with off-the-shelf implants.  The positive results speak to the benefits of anatomically customized implants, and illustrate how ConforMIS’s products are making a positive and lasting impact in the joint replacement implant market.

To read more about the study and ConforMIS’s technology, read the full article.

Managing Partner Lisa Warren Moderating Entrepreneur’s University: Acquiring IP 07/06/2016

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events.
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LMW Headshot Photo 2015 (M0846622xB1386)Lisa Warren will be serving as a Co-Moderator for the upcoming, “Entrepreneur’s University: Acquiring IP” program organized by MassBio Entrepreneur’s University Working Group. Entrepreneur University hosts forums to help entrepreneurs thrive in today’s competitive biotech environment.  During this program specifically, industry experts will share critical advice for entrepreneurs who are setting out to acquire their intellectual property.

The key topics that will be discussed include:

  • Traditional routes of IP acquisition – including licensing from a university, e.g. the employer of a scientific founder
  • Licensing arrangements – often the first contractual relationships into which the emerging biotech company enters
  • How universities have changed their approaches to technology transfer and licensing terms in recent years – including an increased focus on revenue, especially in light of declining government research funding
  • Alternatives to university deals – for example, some companies have succeeded in “rescuing” assets from big pharma through in-licensing assets that have been shelved
  • Generating an IP portfolio – when, what and how entrepreneurs, scientists and biotech leaders should manage this important part of their IP expansion strategy

The program will take place the morning of July 13th. MassBio members can register here.

 

Client Bruce Brumberg of myStockOptions named Coach of the Year 07/05/2016

Posted by Morse, Barnes-Brown Pendleton in Client News.
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It’s been 16 years since myStockOptions.com went live for MBBP client and co-founder, Bruce Brumberg. Ever since, he has made complex legal and tax concepts understandable for people who don’t necessarily enjoy deciphering securities laws or the Internal Revenue Code. But, Bruce’s successes go beyond the office.

This year, Bruce was honored in the Boston Globe’s 2016 Boys’ Tennis All-Scholastics as Division 3 Coach of the Year! Bruce has coached tennis at Maimonides in Brookline, MA for seven years. This spring he lead the team to a 10-1-2 season and a final four appearance in the South Sectionals. Congratulations, Bruce!

Highlights from MBBP Life Sciences Series Panel 2 – Laying the Foundation for Growth: Entity & Equity 07/05/2016

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Client News, Corporate, Events, Life Sciences, Venture Capital & Private Equity.
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On Wednesday June 22nd, the offices of Morse, Barnes-Brown & Pendleton were filled with a crowd of people for a life sciences panel discussion on “Laying the Foundation for Growth: Entity & Equity.”  Esteemed panelists included Marc Cote, COO of Accellient; Jeffrey Solomon, Managing Shareholder of Katz Nannis + Solomon; and MBBP’s own John Hession as moderator.

The panel explained to the audience the importance of understanding the different entity options when starting a new business, and JMH Headshot Photo 2015 (M0846571xB1386)provided important tips on how to pick the right fit for the business.  John Hession stated that when choosing an entity it is crucial to consider where you plan on heading with the business and the long-term goals, how long before you generate money, investments, exit strategy, and how long before you will be investing money of your own into the business.

Jeffrey Solomon explained that most investors will insist that your business is a Delaware C-Corp.  He detailed that although LLCs can be beneficial because of their pass through tax benefits, they also have more complexities with tax filings.  However, since C-Corps are able to receive 1202 tax treatment and exclude gains, C-Corps are typically preferred.  The panel also discussed equity strategic considerations, including restricted stock options, with Marc Cote describing the importance of filing an 83(b) within 30 days of executing the agreement.

These were merely a few of the insightful topics discussed at the 2nd Life Sciences Series Panel.  The next panel in September will be equally educational, so keep an eye out for further details, including registration information, on our site.

New Employment Law Alert: Non-Compete Reform Update 06/30/2016

Posted by Morse, Barnes-Brown Pendleton in Client News.
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2015-01-05_8-57-41MBBP’s Employment Law Group just released a follow-up Employment Law Alert on noncompetition reform. In the prior alert, clients were informed about a proposed bill, H. 4323, imposing strict new requirements on the use of employee noncompetition agreements in MA. Yesterday, the Massachusetts House of Representatives unanimously approved a slightly modified bill, H. 4434.

Learn more in our Employment Law Blog.

Blue Stream Laboratories Acquired by Charles River Laboratories 06/28/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Deal News, Life Sciences, MBBP news.
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blue streamMBBP client Blue Stream Laboratories, an analytical contract research organization supporting the development of complex biologics and biosimilars, was acquired by Charles River Laboratories. Charles River Laboratories is a provider of essential products and services to help pharmaceutical and biotechnology companies, government agencies and leading academic institutions around the globe accelerate their research and drug development efforts.

According to Blue Stream, “The synergy of combining Blue Stream’s core expertise with Charles River’s existing broad portfolio of biopharmaceutical clinical development and supporting services creates a well-established services entity which can fully support biologic and biosimilar development.”

Morse, Barnes-Brown & Pendleton served as counsel to Blue Stream Laboratories and advised them in connection with the structuring, negotiation and documentation of this transaction. Shannon Zollo was the lead corporate attorney on MBBP’s team.

For more information, read the full news release.

New Employment Law Alert: Non-Compete Reform 06/28/2016

Posted by Morse, Barnes-Brown Pendleton in Employment, Legal Developments.
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2015-01-05_8-57-41MBBP’s Employment Law Group just released an Employment Law Alert. As legislative efforts for post-employment noncompetition agreement reforms have remained at a standstill for the past eight years, Speaker Robert A. DeLeo has signaled support for a bill entitled, “Massachusetts Noncompetition Act”. If H. 4323 is enacted, employers will have to quickly and carefully revise their employee restrictive agreements to comply with the new law.

Read the full post here.

Ad Network to pay $950,000 in civil penalties for alleged privacy misrepresentations and alleged COPPA violations 06/22/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Internet and E-Commerce, New Resources.
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The Federal Trade Commission (FTC) today announced a settlement with InMobi, a Singapore-based mobile advertising network.  The FTC alleged that InMobi engaged in deceptive trade practices in violation of Section 5(a) of the FTC Act by misrepresenting its practices regarding online consumer tracking and collection of information from children.  The FTC also alleged that InMobi violated the Children’s Online Privacy Protection Act (COPPA) by failing to comply with COPPA’s notice requirements and failing to obtain verifiable parental consent before collecting and using personal information (including geolocation information) from children under the age of 13.

The penalties imposed were $4 million (suspended to $950,000 based on the company’s financial condition).  This case underscores the importance of ensuring that privacy representations are accurate and complying with COPPA.  Please contact Faith Kasparian if you have questions about privacy representations and/or whether COPPA applies to your business and how to comply.

MBBP Client Valeritas, Inc. Announced Positive Results for V-Go® Disposable Insulin Delivery Device 06/16/2016

Posted by Morse, Barnes-Brown Pendleton in Client News.
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big valMBBP client Valeritas, Inc. has recently announced positive results for four studies on their flagship product. Valeritas is a commercial-stage medical technology company focused on developing innovative solutions to improve health and quality of life of people with Type 2 diabetes.

Their flagship product is the V-Go® Disposable Insulin Delivery Device which is a small, wearable, disposable insulin delivery solution for the delivery of basal-bolus insulin therapy in adults with Type 2 diabetes.

The four studies were as followed:

Study 1: Evaluating the Impact on Diabetes Control with V-Go® For Patients with Diabetes not Achieving Optimal Control: A Retrospective Cohort Analysis in a Large Endocrine and Specialized Diabetes System

Study 2: Evaluating V-Go® In Patients 65 Years of Age or Older with Poorly Controlled Diabetes: A Health Outcome and Economic Analysis from an Endocrine and Diabetes Specialty System

Study 3: Optimizing Insulin Therapy in Older Adults in Long-Term Care: A Com   parative Retrospective Analysis of V-Go® vs. Standard of Care

Study 4: Improved Glycemic Control in Patients with Type 2 Diabetes Switching to the V-Go® Insulin Delivery Device: A Prospective Study Utilizing Continuous Glucose Monitoring

These studies showed that when using, or switching to V-Go®, patients with diabetes experienced improved glycemic control, a reduction in A1C and cost savings when compared to comparison treatments. Overall, Dr. David Sutton remarks, “The studies that I am involved with provide data that continues to support the real-world clinical value of using V-Go® in patients that require insulin. Importantly, the data presented at ADA shows the value of V-Go® in older patients that require both a clinically-effective and cost-effective therapy.”

Great work, Valeritas, Inc.!

For more information, read Valeritas press release.

With Seagate Overturned, More Careful Analysis of Competitor Patents May Be A Good Idea 06/14/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Intellectual Property, New Resources.
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Sean D. Detweiler (SDD)By: Sean D. Detweiler

The U.S. Supreme Court has just issued a decision in two unrelated cases[1] that overturns the 2007 Federal Circuit ruling[2], known as “Seagate”. The Supreme Court considers Seagate to be “unduly rigid” and overly limiting as to the potential for enhanced damages in patent infringement cases.

Since 2007, under the now-overturned-Seagate-analysis, a patent infringer could more easily avoid paying treble, or otherwise enhanced damages for their infringing activity, by simply demonstrating that they had not acted in an “objectively reckless” manner regarding their infringing activities. This essentially meant that a patent infringer could escape paying higher damages as long as they could present virtually any form of explanation or reason as to why they did not consider their activity to be infringing. This could even, in some instances, include asserting a defense during the patent infringement trial that they ultimately lost, with nothing else such as a non-infringement opinion or other legal analysis.

Now in 2016, based on this overturned decision, a court can assess enhanced damages under 35 U.S.C. §284, including treble damages, for patent infringement activities at the discretion of the court. This decision eliminates the more rigid test requirements of Seagate, which means courts can now assess enhanced damages more often for less egregious infringing activities.

How does this affect you? The Supreme Court decision did not go so far as to specify whether willful infringement is required for an enhanced damages award (vs. a requirement that the infringement be “egregious”). As such, in a patent infringement case where infringement is found, the court will take into account all evidence and at its discretion decide at the end of a trial whether the patent infringer should be on the hook for enhanced damages or not. Many had interpreted the Seagate ruling of 2007 as reducing the need for non-infringement opinions to be drafted by attorneys as a protection against enhanced damages should infringement be found.

Whether or not you had that view in 2007, it is clear that now with Seagate being overruled you may want to more carefully consider whether you should obtain at least a legal memorandum or analysis, if not a full-fledged legal opinion, from your patent attorney if you are concerned about a competitor patent and whether your product may infringe. If nothing else, it appears that in light of this Supreme Court decision such documents from your attorney will now do more to protect you from enhanced damages, including treble damages, if you are found to infringe another’s patents.

For more information concerning this issue, please contact Sean D. Detweiler.

[1] Halo Electronics, Inc. v. Pulse Electronics, Inc., U.S., No. 14-1513, 6/13/2016; Stryker Corp. v. Zimmer, U.S., No. 14-1520, 6/13/2016

[2] In re Seagate Technology, LLC, 497 F. 3d 1360

InvestSoft Technology Acquired by Morningstar 06/13/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Computer Software & Hardware, Deal News, Financial Services.
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InvestSoft Technology Logo (M0921814xB1386)MBBP Client InvestSoft Technology, a provider of innovative software solutions designed to streamline workflow, reduce risk and harness the value of data throughout an organization, was acquired by Morningstar, Inc. (NASDAQ: MORN), a leading provider of independent investment research.

Todd Roitfarb, chief executive officer of InvestSoft, said, “InvestSoft understands the real-time needs of investment firms, and we pride ourselves on the speed and accuracy of our calculations and the seamlessness of our data processing. Now that we are part of Morningstar, we can reach and better serve more investors who need high-quality fixed-income analytics.”

MBBP has served as counsel to InvestSoft since 2009, and advised it in connection with the structuring, negotiation and documentation of this transaction. Jon Gworek was the lead attorney on MBBP’s team, which also included attorneys Howard Zaharoff and Matthew Loecker.

For more information, read the full news release here.

PULSE@Mass Challenge Now Open in Boston! 06/10/2016

Posted by Morse, Barnes-Brown Pendleton in Client News, Life Sciences, Medical Devices.
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logo_mcPULSE@MassChallenge officially opened in Boston last week, adding to the already increasing number of digital health companies in the area.  MBBP’s Peter Barnes-Brown attended the ribbon cutting ceremony.

Read more about Peter’s thoughts on the growing digital health industry and about the company on our VCs & Startups Blog.

MBBP Partner Carl Barnes to be Panelist on MCLE M&A Program 06/10/2016

Posted by Morse, Barnes-Brown Pendleton in Attorney News, Client News, Corporate, Events, M&A.
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Carl Barnes (CFB)Carl Barnes will be featured as a panelist on the upcoming MCLE program “Representations, Warranties, Indemnification and Termination Provisions: Drafting and negotiating to allocate risk in business transactions”.

For more detail and for information on how to register, visit our M&A Today blog.

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