Jurisdiction – Cease-and-desist letter

Where two defendants have filed a motion to dismiss for lack of personal jurisdiction, that motion should be denied because (1) the defendants, through counsel, sent a cease-and-desist letter to Boston Children’s Hospital, (2) their additional contacts with the forum are purposeful acts that add the element of “more” to the equation, and (3) there is a lack of support for the defendants’ argument that the letter is protected by the Massachusetts litigation privilege and cannot be relied upon to form the basis for personal jurisdiction.

“Plaintiff MMAS Research LLC (‘MMAS’) has filed this lawsuit against Defendants The Children’s Hospital Corporation (‘Boston Children’s Hospital’ or ‘BCH’), Jacob Hartz (‘Dr. Hartz’) and Hannah Palfrey (‘Palfrey’) (collectively, the ‘BCH Defendants’), Donald Morisky (‘Dr. Morisky’) and Morisky Medication Adherence Research LLC (‘MMAR’) (collectively, the ‘Morisky Defendants’) and Does 1 through 10 (the ‘Doe Defendants’) (collectively, ‘Defendants’) alleging claims against the Morisky Defendants as to a violation of the Digital Millenium Copyright Act (‘DMCA’) (Count III) and tortious interference with contractual relations (Count IV). … The Morisky Defendants have now moved to dismiss MMAS’s claims against them (Counts III and IV) for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), D. 54. …

“In 1986, Dr. Morisky developed the ‘Morisky Medical Adherence Scale’ (‘MMAS’), a four-part questionnaire to effectively predict medical adherence also known as the ‘MMAS-4.’ … Dr. Morisky later developed an eight-part questionnaire (‘MMAS-8′) known as the Morisky Scales. …

“MMAS is a Washington limited liability company which conducts business in Boston, Massachusetts. … MMAS was co-owned by Steven Trubow (‘Trubow’), the current Chief Executive Officer, and Dr. Morisky, from January 2017 to July 2019. … Between November 2016 and February 2017, Trubow, Dr. Morisky and Dustin Machi (‘Machi’) collaborated to create the Morisky Widget MMAS-8 and the MMAS-4 software. … As alleged, MMAS owns the ‘MMAS REASEARCH WIDGET CODE’ (the ‘Morisky Widget MMAS-8′ or the ‘Morisky Widget’), a digital diagnostic assessment protocol to measure and identify medication nonadherence behaviors that allows doctors and healthcare providers to assess whether patients are taking their medications as prescribed. …

“MMAS registered the Morisky Widget with the U.S. Copyright Office and obtained a certificate of registration that comprised of the Morisky Widget diagnostic assessments, the MMAS-4, MMAS-8 and other diagnostic assessments. … Between February 2017 and July 2019, MMAS licensed the Morisky Widget software to over 200 pharmaceutical companies and firms, universities and hospitals. … On September 4, 2019, BCH executed a perpetual Morisky Widget license with MMAS. …

“… In a letter dated April 21, 2022 (the ‘Austin Letter’), Dr. Morisky’s counsel stated Trubow and MMAS did not have authority to use or license the MMAS-4 scale, the MMAS-8 scale or the Morisky Widget and that persons using or licensing the same without Dr. Morisky’s express written authorization would be in violation of U.S. federal copyright and trademark laws. … This letter came in the midst of what remains ongoing litigation between Dr. Morisky, MMAS, Trubow and others, regarding copyright infringement, trademark infringement and breach of contract claims. … The letter was published on Dr. Morisky’s website and emailed to Morisky Widget licensees, including BCH. …

“The Morisky Defendants, through counsel, sent the Austin Letter to MMAS Widget licensees, including BCH. …

“Although a cease-and-desist letter alone may be insufficient to establish personal jurisdiction in Massachusetts, the Morisky Defendants’ additional contacts with the forum are purposeful acts that ‘add[] the element of ‘more’ to the equation.’ … The record here establishes that the Austin Letter was not sent into the forum in isolation or absent prior contacts between Dr. Morisky and BCH. …

“… Accordingly, jurisdiction over the Morisky Defendants under Section 3(a) of the Massachusetts long-arm statute is proper.

“At the motion hearing, the Morisky Defendants’ counsel belatedly argued that the Austin Letter, a communication regarding active litigation sent to third parties that have a potential interest in the litigation, is protected by the Massachusetts litigation privilege and cannot be relied upon to form the basis for personal jurisdiction. The Court allowed the parties to file supplemental briefs pointing to case law regarding the application of the litigation privilege and copyright enforcement privilege as to third parties and for the purposes of personal jurisdiction. … The Morisky Defendants argue in their supplemental brief that the Austin Letter is immune from tort liability under the Massachusetts litigation privilege, which prevents plaintiffs from using the content of statements made ‘in the institution or conduct of litigation or in [conferences and other] communications preliminary to litigation’ to establish liability against the party that made the statement. … Even assuming arguendo that the Morisky Defendants’ argument was timely, this argument is unsuccessful. The cases cited by the Morisky Defendants do not address the application of litigation privilege in the context of establishing personal jurisdiction. …

“For the reasons aforementioned, the Court concludes jurisdiction over the Morisky Defendants is proper under Section 3(a) of the Massachusetts long-arm statute.”

MMAS Research LLC v. The Children’s Hospital Corporation, et al. (Lawyers Weekly No. 02-647-25) (23 pages) (Casper, C.J.) (Docket No. 24-cv-12108-DJC) (Dec. 3, 2025).

Click here to read the full text of the opinion.