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Michael S. Gardener

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Education

  • University of Pennsylvania (JD)
  • Cornell University (BS)

Bar Admissions

  • Massachusetts
  • United States Court of Appeals for the First Circuit
  • United States District Court for the District of Massachusetts
  • United States Supreme Court

Michael specializes in complex civil and criminal litigation and class actions, representing Fortune 100 corporations, health care companies, real estate developers and financial institutions in courts across the country. He also is Chair of the firm’s Privacy Litigation Practice. In addition to his full litigation practice, Michael also serves as General Counsel to the firm.

Representative Matters

  • Michael litigated one of the largest bankruptcy proceedings ever brought in the District of Massachusetts involving claims owed on International Place, the premier office tower in Boston. Michael’s client was a secured creditor and is the largest office tower owner and developer in the United States. At the close of Michael’s presentation of evidence in the trial, the debtor agreed to pay Michael’s client $679 million, allowing the client to realize a return of more than double its cash investment in less than 10 months. See, In re Fort Hill Square Associates, United States Bankruptcy Court, District of Massachusetts, Docket Nos. 04-13855, 04-13857.
  • Representing over 100 chain and independent pharmacies, following a bench trial, Michael obtained a judgment from the Massachusetts Business Court overturning the state’s pharmacy assessment tax and ordering the Commonwealth to refund $18 million in taxes collected from the pharmacies. The court enjoined any further collection of the tax, resulting in a savings to Michael’s clients of over $36 million annually. See, Allen’s Pharmacy Cape Ann, et al. v. Ferguson, Massachusetts Business Court Civil Action No. 03-1913. This case and another matter also handled by Mintz Levin lawyers were reported by Massachusetts Lawyers Weekly as the two largest trial verdicts awarded in Massachusetts in that year.
  • Michael represented a Fortune 50 company under investigation by the federal government and 24 state attorneys general for alleged violations of the False Claims Act regarding drug pricing matters. Despite two years of grand jury proceedings, Michael persuaded the government agencies not to pursue any criminal charges and subsequently negotiated a favorable civil settlement.
  • Michael is litigation counsel for the Indenture Trustee for the holders of over a quarter billion dollars of municipal bonds issued by Stockton, California in the second largest municipal bankruptcy case ever filed in the United States. In re City of Stockton, California, United States Bankruptcy Court, Eastern District of California, Case No. 2012-32118.
  • Michael represented the CFO of a high-tech company for alleged unlawful backdating of stock options for hundreds of employees. Notwithstanding comments in the media by one of the nation’s most respected securities law professors that the case presented “the clearest instance of criminal scienter he had ever seen,” Michael persuaded the federal government not to bring a criminal action against his client. Michael then negotiated a settlement with the SEC of all claims, without any admission of guilt by the client.
  • Michael won a complete dismissal of a $360 million class action lawsuit alleging violations of RICO and the laws of over 25 states brought against one of the nation’s leading laboratories. International Brotherhood of Teamsters Local 456 Health and Welfare Trust Fund v. Quest Diagnostics Incorporated, (E.D.N.Y. 2010) (Docket No. 10-CV-1692).
  • Michael represented the CEO of a Fortune 50 company in a federal political corruption investigation. While other officers of the company were indicted (and subsequently acquitted), no charges were ever brought against Michael’s client.
  • After a six-week trial in the Federal Court of Claims in Washington, DC, Michael won a verdict for $8.8 million against the United States, the largest verdict for lost profits damages for a new venture ever awarded against the government. See, Energy Capital Partners v. United States, 47 Fed. Cl. 382, affirmed 302 F.2d 1314.
  • Michael is representing a major oil company in connection with a multi-state investigation asserting violations of Underground Storage Tank Fund statutes and regulations.
  • Following almost two weeks of hearings, Michael won an award of $10.2 million from a three-member arbitration panel in a manufacturing dispute. The panel denied all of the respondent's counterclaims and awarded Michael over two million dollars in attorney's fees. Michael persuaded even the other side's appointed arbitrator to join in the unanimous decision.
  • Representing a multibillion-dollar grocery chain and its president, Michael won a verdict of dismissal following a trial in the US District Court in Massachusetts in a case alleging violations of ERISA by Michael’s clients. See, Evanthea Demoulas v. Sullivan.
  • In a first-of-its-kind privacy class action lawsuit brought in New York seeking $100 million in damages, Michael won a trial verdict dismissing all claims against his client, a Fortune 100 company. See, Anonymous v. Hinderstein, et al., (NY Sup. Ct. Index No. 604804/99). Michael was lead defense counsel on two other major privacy class action lawsuits where he obtained dismissal of all class actions claims.
  • Representing the nation’s largest hospital chain, Michael along with co-counsel successfully defeated an effort to enjoin the client’s $33 billion leveraged buyout, the second largest LBO in American history. See, Foundation for Seacoast Health v. Hospital Corporation of America, N.H. Sup. Ct., Rockingham CO., Docket No. 06-E-583.
  • Representing the nation’s largest laboratory testing corporation and its board of directors, Michael won a complete dismissal of a shareholder derivative action seeking over $300 million in damages. See, Stern v. Baldwin, N.J. Chancery Court, Docket No. MRS-C-88-09.
  • Michael is representing a health care provider in an industry-wide investigation of certain billing practices by the Department of Justice.
  • Michael won a judgment of dismissal at the close of plaintiff’s evidence in the trial of an eight-figure accounting malpractice claim brought against a Big Five accounting firm.
  • After being retained to represent one of the nation’s largest health care providers that had received a criminal target letter from the US Attorney’s Office, Michael was able to persuade the government to drop the case entirely against his client.
  • Michael won a full dismissal of a $240 million derivative shareholders action brought against a major health care client. See Cornish v. Britell, N.J. Chancery Court, Docket No. MRS-C-155-11. 
  • Michael is representing a leading laboratory in connection with a qui tam action filed in federal court in Ohio.
  • Michael represented a multinational insurance company in a dispute litigated in the US District Court in Indiana. Plaintiff, another major insurance company, asserted that Michael’s client had breached the terms of an acquisition by improperly underwriting over a billion dollars of placed insurance. Following nationwide discovery, the plaintiff settled for a small fraction of its claimed losses.
  • Michael represented the plaintiff, a major real estate company, in the first and only case in the history of Massachusetts to succeed in overturning an eminent domain taking on the ground of municipal bad faith. See, Pheasant Ridge Ltd. Partnership v. Town of Burlington, 399 Mass. 771, 506 N.E. 2d 1152.
  • Representing a business corporation against a national bank in a jury trial in the US District Court in Massachusetts, immediately following the commencement of Michael’s cross-examination of the bank’s chief witness, the bank quadrupled its settlement offer and the case resolved.
  • Representing one of the largest cable companies in the United States, Michael succeeded in negotiating a favorable settlement of false advertising and unfair and deceptive business practices claims asserted by the Massachusetts Attorney General.
  • Michael wrote the amicus brief in the Supreme Court on behalf of the Anti-Defamation League, the American Israel Public Affairs Committee and other prominent organizations in support of the appellant plaintiff in Zivotofsky v. Hillary Rodham Clinton. The Court vacated the judgment for the defendant and remanded for further proceedings.
  • Following a trial in the US Immigration Court, Michael obtained an award of asylum for his pro bono client, a refugee from the Rwandan genocide.
  • Michael represented a Ghana family pro bono in obtaining over $1.85 million from the September 11 Victims Compensation Fund.
  • Michael served as counsel to one of the nation’s largest private universities, advising on governance issues and a major restructuring of the board.

Recognitions & Awards

  • Recommended by The Legal 500 United States for Municipal Bankruptcy (2014)
  • Massachusetts Super Lawyers: Business Litigation (2004 – 2014)
  • Recommended by The Legal 500 United States for Finance: Municipal Bankruptcy (2013)
  • Martindale-Hubbell AV Preeminent
  • Order of the Coif

Professional & Community Involvement

  • Member, American Bar Association
  • Member, Massachusetts Bar Association
  • Member, Boston Bar Association
  • Trustee of Temple Emanuel in Newton, Massachusetts
  • Board Member and Treasurer of Massachusetts Coalition for the Homeless
  • Board Member of D.E.A.F., Inc.