Gary S. Matsko
Practice Focus and Experience
Gary Matsko practices in the Business Law and Litigation areas representing individuals and business entities in civil litigation and before regulatory agencies, including the Securities and Exchange Commission. He has represented parties in actions throughout New England and in federal courts in several states, as well as in arbitration proceedings. Gary has litigated cases involving claims arising from business sales and acquisitions, securities claims, employment disputes, shareholder disputes, environmental matters and other business litigation. Prior to joining Davis Malm, Gary was an Enforcement Branch Chief for the New England Region of the Securities and Exchange Commission and also served as a legal assistant to an SEC Commissioner.
- Obtained a jury verdict worth approximately $6 million for a NYSE-listed company after a three-week trial in Delaware Superior Court in a breach of contract action arising out of defendant's failure to honor an environmental indemnification.
- Successfully prosecuted breach of contract, negligent supervision, failure to supervise and vicarious liability claims against a broker and brokerage house before a Financial Industry Regulatory Authority (FINRA) arbitration panel.
- Represented former senior officer of major mutual fund complex in SEC investigation and enforcement litigation.
- Represented outside director of a public company in SEC enforcement litigation.
- Represented former public company employee in an SEC revenue recognition investigation.
- Represented trust beneficiary in claims against trustees for misuse and diversion of trust assets.
- Represented LLC and majority members in suit with respect to diversion of business opportunity and fiduciary breaches.
- Represented the sellers of two major hospitals in prosecuting their suit against the buyer for breach of post-closing contract and third party contract obligations resulting in a $6,000,000 judgment for our clients.
- Represented a senior securities trader for a major investment company complex in an SEC investigation and enforcement action.
- Successfully defended a local businessman in an SEC insider trading investigation.
- Represented the sellers of a sports promotion and agency business with respect to the buyer's failure to account to clients for post-closing revenues.
- Represented the majority shareholder and members of the board of directors of a golf course enterprise in defending against claims advanced by a minority shareholder.
- Represented the trustee of a trust engaged in real estate development in prosecuting claims against an agent of the trust for fiduciary breach and other matters.
Representative Reported Cases
- Lattuca v. Robsham, 442 Mass. 205 (2004) - Represented plaintiff Trustee in claim against an agent and lender to the trust who had used access as lender to facilitate diversion of trust assets to himself. Trial court found that agent/lender had violated fiduciary duty and the covenant of good faith and fair dealing. Supreme Judicial Court affirmed the decision.
- DiCarlo v. Lattuca, 60 Mass. App. Ct. 344 (2004) - Procured reversal of judgment against client as executor of his mother's estate where trial court had found the estate owed sums to mother's former partner in real estate partnership. Case established the principal that a claim for a partnership accounting accrues for statute of limitations purposes on the dissolution of a partnership which occurs by operation of law on the death of a partner. The Appeals Court ruled that the trial court erred in declining to dismiss the claim on statute of limitations grounds.
- John G. Danielson, Inc. v. Winchester-Conant Properties, Inc., 322 F. 3rd 26 (1st Cir. 2003) - Procured the reversal of judgment and remand for new trial in Federal Copyright case brought by architect against developer client where the trial court had given improper jury instruction with respect to apportioning profits between copyright owner and party determined to have infringed on the copyright. The decision of the U.S Court of Appeals for the First Circuit established important authority with respect to the criteria to be applied in apportioning profits in copyright suit.
- Striar v. American Medical International, Inc., 45 Mass. App. Ct. 87 (1998) - Obtained a breach of contract judgment for client who was one of several sellers of two hospitals sold to a national hospital chain. Client was not a direct party to the medical services contract entered in connection with the sale of the hospitals, and held to have been breached, but was a party to the sales contract. Succeeded in establishing the client's right to sue on the theory that the services contract was incorporated by reference into the sales contract and on third party beneficiary theory. Appeals Court affirmed.
- 21 Merchants Row Corp v. Merchants Row, Inc., 412 Mass. 204 (1992) - Successfully defended commercial landlord client against a tenant's claim that the landlord's refusal to consent to an assignment of the lease interfered with the tenant's contract to sell its business. Supreme Judicial Court rendered a landmark decision regarding lease assignments.
- Distinctions: Peer Review AV® Preeminent™ rated by Martindale-Hubbell, the highest bestowed rating; Massachusetts Super Lawyers, 2004-2005, 2007, 2010-2018.
- Admitted: Massachusetts; United States District Courts for the District of Massachusetts; Southern and Eastern Districts of New York; United States Courts of Appeal for the First and Second Circuits.
- Member: Boston Bar Association (Member, Securities Litigation Committee); Massachusetts Bar Association; New York Bar Association.
- Active Board Member of Friends of Boston Homeless, an organization devoted to helping Boston's homeless population.
Publications and Speaking Engagements
- Cato sues SEC over gag order practice, Politico, January 2019, Gary S. Matsko (quoted)
- Law practice enjoined from distributing fee from PI settlement, Massachusetts Lawyers Weekly, December 2018, Gary S. Matsko (quoted)
- F-Squared Was Wrong Test Case For SEC Disgorgement, Law360, August 2018, Gary S. Matsko (quoted)
- Unexpected Successor Liability Arising From an Asset Purchase, Corporate Counsel, May 2018, Gary S. Matsko (author)
De Facto Merger: The Threat of Unexpected Successor Liability, Business Law Today, March 2018, Gary S. Matsko (author)
- MCLE Annual Business Litigation Conference, Massachusetts Continuing Legal Education, 2018, Joshua S. Grossman (co-chair), Gary S. Matsko (presenter)
In the Wake of Blank-Chokel-Merriam, Massachusetts Continuing Legal Education, Inc., March 2015, Gary S. Matsko (author)
- Navigating the Tricky Terrain of Closely Held Entity Owners' Disputes, Massachusetts Continuing Legal Education, 2015, Gary S. Matsko (panelist)
Second Circuit Mixes Clarity with Opacity in Ruling on Trial Courts' Review of SEC Settlement, Washington Legal Foundation, The Legal Pulse, Gary S. Matsko (author)
SEC "Gag Orders": Does Settling in Silence Advance the Public Interest?, Washington Legal Foundation, Legal Backgrounder, Gary S. Matsko (author)
Unsuspecting Employees Can Be Snared: The Perils of Securities Fraud Claims, Executive Counsel, Gary S. Matsko (coauthor)
Joint Defense Agreements Helpful in Securities Cases, New England In-House, Gary S. Matsko and Joshua S. Grossman (coauthors)
Use of Joint Defense Agreements In Securities Laws Enforcement Proceedings, Boston Bar Association Continuing Legal Education, Gary S. Matsko and Joshua S. Grossman (coauthors)
Fraud Traps for the Unwary, The Corporate Board, Gary S. Matsko (author)
To Arbitrate or Not To Arbitrate, Andrew D. Myers and Gary S. Matsko (authors)