OCM Partner David Mack Quoted in Massachusetts Lawyers Weekly

OCM partner David Mack was quoted in a June 9, 2022 Massachusetts Lawyers Weekly article regarding the scope of an indemnification provision in a license and service agreement between Massachusetts General Physicians Organization and Imaging Advantage.  MGPO sued Imaging for unpaid royalties and prevailed on its motion for summary judgment.    

In a post-judgment motion for counsel fees, MGPO argued that fees incurred in the litigation were recoverable under the indemnification provision, pursuant to which Imaging agreed to indemnify, defend and hold harmless MGPO “any liability, damage, loss or expense, including reasonable attorneys’ fees and expenses of litigation.” Judge Peter B. Krupp, however, disagreed, concluding that the provision could not be interpreted as a fee shifting provision on claims between the parties.  

David was quoted saying, “Third-party claims and attorneys’ fees shifting are two different concepts, and the courts treat them as such. The latter requires unambiguous language, which this contract lacked due to the inclusion of language about notice and opportunity to control the defense.”

For more information about the article and more of David’s thoughts, click here.