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Judge rips plaintiffs' attorneys and verdict

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  • | 10:00 a.m. April 3, 2015
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A Sarasota judge took an unusual stand in a civil case that involved alleged stolen trade secrets, and in a doing so sent a message to attorneys: No frivolous lawsuits in my courtroom.
Sarasota County Circuit Court Judge Peter Dubensky, in a March 17 ruling, overturned a jury's decision that had awarded $3.3 million to the plaintiffs. Dubensky, among other points, cited “bait and switch tactics” designed to confuse jurors and “impermissible closing arguments” used by plaintiffs' attorneys that led the jury to make an incorrect decision. Dubensky, in turn, granted a motion from the defendants for a directed verdict — which invalidates the jury's decision.

The case began in 2005, when the plaintiffs, A/R Assist, a firm that helps health care providers collect accounts receivables, sued several parties and individuals in Sarasota County. Defendants included Steven Gray, a former A/R Assist board member, and ACS Healthcare Solutions, a management consulting firm and Xerox subsidiary where Gray worked. Xerox wasn't named in the lawsuit.

The allegations in the lawsuit, which initially claimed damages of $80 million, were that Gray helped ACS and others misappropriate trade secrets, including the process of how A/R Assist collects money. A/R Assist claimed in court documents that the defendants reformulated the software program to grab clients.

After an eight-day trial in November, the jury awarded A/R Assist $3.3 million in damages over misappropriation and fiduciary-duty claims. The jury dismissed unfair competition claims against Gray and ACS.

Miami attorney Alan Rosenthal, who represents Gray and ACS, appealed the jury's verdict. Dubensky agreed with Rosenthal, even though several attorneys say a decision to wipe out a jury verdict is rare. “This finding,” says Rosenthal, with Carlton Fields Jorden Burt, “affirms our belief that the company acted properly in all its business dealings.”

Dubensky, in his decision, writes that he basically had no choice but to flip the case. In addition to the bait and switch, Dubensky says the plaintiff changed evidence and testimony mid-trial in a “blatant attempt to construct a non-existent 'trade secret' program or process.”

David Maglich and Brendan McQuaid, attorneys with the Sarasota office of Fergeson Skipper, represented A/R Assist. Maglich and McQuaid didn't return several calls seeking comments on Dubensky's ruling.

The judge, in his ruling, left no doubt he thought the jury was deceived. “Having presided over the trial and considered all of the evidence in light of the court's years of judicial experience, the court has no doubt the jury was deceived as to the force and credibility of the evidence and that the verdict is contrary to the manifest weight of the evidence,” writes Dubensky. “Under no reasonable or proper view of the evidence could the jury have returned the verdict that it did.”


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