August 2009
An article entitled, "The Grifter," appeared in
Fortune Magazine's August 17, 2009 issue, at pages 58-68. The article highlights legal actions concerning fraud and trade diversion, including a lawsuit where Brown & Whalen, P.C., formerly known as The Brown Law Group, P.C., represented Unilever, and a federal prosecution which has followed. The article is available on
Fortune Magazine's website:
http://money.cnn.com/2009/07/31/news/companies/dina_wein_reis_fraud_trial.fortune/index.htm?postversion=2009080316.
May 2009 On May 28, 2009, this Firm successfully obtained an Order by the New York Supreme Court, New York County (Kornreich, J.), dismissing the Complaint alleging legal malpractice in the action captioned,
Schindler v. Fish & Richardson, P.C., N.Y. Sup. Ct., N.Y. Co., Index No. 117290/2008. The Court's Order was entered upon the record at the May 28, 2009 oral argument of the motion to dismiss. The Court also denied a cross-motion to consolidate the action with the attorneys' fees action brought by this firm on behalf of the Plaintiff Fish & Richardson, P.C., in which the Court entered an Order,
inter alia, striking the Defendant Randy Schindler's Answer. See below, March 2009 Firm News.
March 2009 On March 20, 2009, in the case of
Fish & Richardson, P.C. v. Schindler, N.Y. Sup. Ct., N.Y. Co., Index No. 601327/2007, the New York Supreme Court, New York County (Kornreich, J.), granted a motion filed by this Firm on behalf of the Plaintiff seeking, among other things, sanctions against the Defendant in the form of an Order striking Mr. Schindler's Answer and awarding attorneys' fees and costs, based upon Mr. Schindler's failure to comply with multiple Court Orders and deadlines concerning discovery. The Court granted the motion, pursuant to CPLR 3126. The statute allows a Court to strike pleadings, dismiss an action or enter a default judgment against a party who willfully fails to disclose information which the court finds ought to have been disclosed[.] In granting the motion at bar, the Court determined that Mr. Schindler's continued violation of four separate court orders over a period of approximately 10 months clearly constitutes willful and contumacious conduct and rejected Mr. Schindler's alleged excuses for the defaults. The Court's Decision and Order was highlighted in the March 31, 2009 edition of the
New York Law Journal (NYLJ) and featured in the
NYLJ's April 2, 2009 "Decision of Interest" column.
April 2008 On April 24, 2008, the New York State Court of Appeals held, in the case of
Solow Management Corp. v. Steven Tanger and Debra Tanger, N.Y. Sup. Ct., N.Y. Co., Index No. 4044/1991, that the Defendants' posting of an appeal bond did not constitute "affirmative interference" with a marshal's collection process entitling the marshal to poundage fees. The Court of Appeals explained that the filing of the appeal bond stayed enforcement proceedings but did not require the vacatur of the purported levy. Thus, the marshal, who was unable to establish entitlement, under the provisions of CPLR 8012 or any judicially created exception to the statute, was not entitled to recover such fees. The Court of Appeals affirmed the January 11, 2007 Order of the Appellate Division, First Judicial Department of the New York Supreme Court (see below), denying the marshal poundage fees. The Opinion of the Court was written by Judge Ciparick. Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concurred. This Firm represented the Defendants Tanger against the marshal's appeal.
On April 1, 2008, a jury sitting in the New York Supreme Court, New York County, awarded Plaintiff Bonds Financial Inc. ("Bonds") $600,000 in compensatory damages resulting from Defendants' breach of contract in the case of
Bonds Financial Inc. & John Barry, III v. Kestrel Technologies, LLC a/k/a Kestrel Technologies Inc. & Edward L. Bishop, III, N.Y. Sup. Ct., N.Y. Co., Index No. 602380/06. During the six-day trial of the action, Plaintiff produced evidence showing that in January 2006, Bonds, an Internet-based firm developing a platform to allow online trading of bonds and other fixed-income securities, entered into a contract with Defendant Kestrel Technologies Inc. ("Kestrel"), in which Kestrel agreed to design and create software to facilitate Bonds' anticipated online trading services. Bonds paid Kestrel $600,000, pursuant to the contract, however, Kestrel's Chief Technology Officer admitted under cross-examination that Kestrel had performed little or none of the software development work as required by the contract. Following trial, the jury found that Kestrel had anticipatorily breached the parties' contract and determined that Bonds' damages totaled $600,000. The Court (Freedman, J.) further held that Plaintiff John Barry III should be awarded damages in the amount of $250,000 for loans Defendants never repaid. The total amount awarded to Plaintiffs was $850,000, not including interest and attorneys' fees. Both Plaintiffs were represented by this Firm. On April 28, 2008, the verdict was featured in the "Verdicts & Settlements" Section of the
New York Law Journal.
January 2008 This Firm filed a Complaint dated January 14, 2008 on behalf of APP Pharmaceuticals, LLC f/k/a Abraxis BioScience, Inc. f/k/a American Pharmaceutical Partners, Inc. ("APP"), 08-cv-315, in the New Jersey District Court against Defendants C.M.H. Care Group, Inc. ("CMH"), Christian M. Hall ("C. Hall"), Philip Harris, Robert Hall, MB of New Jersey, Inc., IVRX, L.L.C., Paul Pilof, PTN Wholesale, Inc., (or L.L.C.), Medi-Source of America, Inc., a/k/a Johar Saran, Cherie Ann Word, and George Schmidt (collectively, the "Enterprise"). (A related case is pending in the New Jersey District Court entitled
APP v. CMH, 00-CV-5613, in which this Firm represents Plaintiff APP). The new Complaint alleges, among other things, that after the cessation of APP's direct business relationship with CMH in or about June 2000, the Enterprise continued its fraudulent activities by making false representations to others and by using multiple layers of "surrogate"/ "captive" entities to obtain APP's pharmaceutical products. The Complaint is based on fraud, Federal RICO statutes 18 U.S.C. Sections 1962 (c) and (d), New Jersey RICO statutes Section 2C:41-2 (c) and Section 2C:41:2(d) and unjust enrichment. The new Complaint is accessible through
www.pacer.uscourts.gov. In this connection, one of the principals of CMH was recently Indicted, based on similar mail and wire fraud allegations, in a criminal action (3:05-CR-240-P). The case was transferred to the New Jersey District Court on January 7, 2008. On February 6, 2008, one of the principals of CMH pled guilty to Count One of the Indictment, Criminal Docket No. 3:-05-CR-240-P, which charges conspiracy to commit health care, mail and wire fraud, in violation of 18 U.S.C. § 371 (18 U.S.C. §§ 1347, 1341 and 1343).
December 2007 In December 2007, this Firm settled the action captioned,
Conopco, Inc. d/b/a Unilever v. Wein et al., 05-Civ.-9899, on behalf of its client, Conopco, Inc. d/b/a Unilever. Stipulations of dismissal were filed.
September 2007 On September 19, 2007, Senior District Judge Herman J. Weber for the U.S. District Court, Southern District of Ohio, granted the motion by Plaintiffs The Merisant Company, Monsanto Company and The Nutrasweet Company objecting to certain Orders by the Magistrate Judge. This Firm filed the motion on behalf of Plaintiffs in the case of
Monsanto Company et al. v. Brothers Trading Co. d/b/a Victory Wholesale Grocers, et al., Case No. C-1-00-371. In granting the motion, Judge Weber determined that Plaintiffs did not waive their right to a jury trial and were entitled to a jury trial on the remaining legal issues in the case, despite a prior court hearing on Plaintiffs' application for permanent injunctive relief. The Court further held that the Court's factual findings in granting Plaintiffs permanent injunctive relief against Defendant Victory Wholesale Grocers were not binding with respect to Plaintiffs' remaining legal claims. The Court also granted Plaintiffs' request for additional discovery.
August 2007
Magistrate Judge Katz rendered a 72-page Report and Recommendation ("R&R") dated August 31, 2007, which was adopted by District Court Judge Holwell by Order dated September 27, 2007. The R&R concerns, among other things, Plaintiff Conopco, Inc.'s d/b/a Unilever ("Unilever") opposition to Defendants' motion to dismiss the First Amended Complaint in the action captioned
Conopco, Inc. d/b/a Unilever v. Wein et al, 05-Civ.-9899 filed in the Southern District of New York. Plaintiff Unilever was represented by this Firm. In the R&R, Magistrate Judge Katz held that Unilever's First Amended Complaint adequately pled its fraud claim and federal RICO violations predicated on 18 U.S.C. Sections 1962 (c) and (d) against certain Defendants, as well as its breach of contract claim. The R&R, containing extensive analysis in Plaintiff's favor, is accessible through
www.pacer.uscourts.gov. July 2007 On July 6, 2007, the
New York Law Journal featured in its "Decision of Interest Civil Practice" column a decision by Magistrate Judge Katz in the action entitled
Conopco, Inc. d/b/a Unilever v. Wein et al., 05-CV-9899 (S.D.N.Y. June 6, 2007). Plaintiff Conopco, Inc. d/b/a Unilever ("Unilever") was represented by this Firm in this action involving, among other things, common law fraud and federal RICO claims. Magistrate Judge Katz resolved in Plaintiff's favor its challenge of Defendant Wein's assertion of attorney-client privilege. Unilever argued, among other things, that the withheld documents "had nothing to do with seeking or giving legal advice, and everything to do with being a de facto and covert 'senior editor' of every written document leaving the [RICO Enterprise]." After review of the privilege log, as well as the record evidence proffered by Plaintiff, Magistrate Judge Katz determined that Defendant counsel's involvement in drafting and reviewing the documents at issue suggested business advice rather than solely legal advice. Accordingly, the Court, in granting Plaintiff's application, ordered Defendant Wein to produce the documents for an in camera review.
June 2007 On June 29, 2007, this Firm successfully achieved the dismissal of the Petition by William Webb ("Webb") against Respondents Robert Lewis Rosen and Robert Lewis Rosen Associates, Ltd. ("RLR"), filed with the Labor Commissioner with the State of California. In the Petition, Webb sought the disgorgement of certain manager's fees that were awarded to RLR by the American Arbitration Association and later confirmed by the U.S. District Court for the Southern District of New York. Webb alleged that such relief should be granted because Respondents, although based in New York, were in violation of the California Talent Agencies Act. The Labor Commissioner agreed with Respondents' position that Webb's Petition should be dismissed. The Labor Commissioner determined that the prior New York Federal Judgment awarding Respondents' fees was valid and binding and should not be collaterally attacked through the California State Labor Commissioner's office, particularly where California's contacts with the underlying case were minimal. The Labor Commissioner additionally determined that Webb was barred, under the doctrine of res judicata, from relitigating in California claims that Webb previously lost in New York, and was also barred from bringing said claims by the applicable statute of limitations. Respondents Robert Lewis Rosen and RLR were represented by this Firm.
April 2007 On April 16, 2007, the "Decision of the Day" Section of the
New York Law Journal featured a decision on evidence by Magistrate Judge Katz in the action entitled
Conopco, Inc. d/b/a Unilever v. Wein et al ., (05-cv-9899 S.D.N.Y.), filed in November 2005, in which this Firm represents Plaintiff Conopco, Inc. d/b/a Unilever ("Unilever"). Defendants sought to quash Unilever's non-party subpoena served on a law firm that represented Roche Diagnostics Corp. ("Roche") in a January 2007 action instituted in the Southern District of Indiana (07-cv-0034), where the allegations by Roche based on fraud and the RICO statutes were virtually identical to those alleged in Unilever's action. In denying Defendants' motion to quash, the Court held that "any evidence of an ongoing pattern of fraudulent activity by the RICO enterprise is clearly relevant to Plaintiff's RICO claim." The information sought was patently relevant as the Roche action filed in January 2007, in which the fraudulent scheme alleged continued from approximately December 2005 through December 2006, after the filing of Unilver's action, was the "best evidence" of an open-ended, continued pattern of racketeering. Significantly, the Court agreed with Unilever and held that the Confidential Settlement Agreement between Roche and the defendants in that case was also discoverable as Federal Rule 408 "pertains only to evidentiary issues at trial, and does not govern pretrial disclosure of settlement agreement" and "the disclosure of the terms of the [Roche] settlement agreement could certainly lead to discovery of the admissible evidence."
January 2007 On January 22, 2007, this Firm won a significant victory in the case of
Matter of Steven J. Popper and Xansa, plc et al., Case No. 50 166 T00011 06, which was instituted before the American Arbitration Association's International Centre For Dispute Resolution to recover damages resulting from respondents' breach of claimant's employment agreement. Following a two-day hearing held at the offices of this Firm, the Panel of Arbitrators issued an award to claimant, including reimbursement of sizeable business expenses incurred in the performance of claimant's duties for respondents, additional compensation for accrued but unused vacation time, as well as the fees and expenses of the arbitration.
On January 19, 2007, the Opinion by the United States Court of Appeals for the Second Circuit in
Robert Lewis Rosen Associates, Ltd. v. William Webb, Docket No. 05-3578-cv, was highlighted by the
New York Law Journal as "Decision of the Day" (at pg. 22, col. 1). The January 11, 2007 Opinion affirmed a District Court Order, which awarded the plaintiff-appellee a Supplemental Judgment, pursuant to Federal Rule of Civil Procedure 60(a). Plaintiff-appellee was represented by this Firm.
On January 18, 2007, the
New York Law Journal featured as "Decision of the Day" (pg. 22, col. 1) the First Department's unanimous reversal of a Decision of the Supreme Court (Lippmann, J.) in
Solow Management Corporation v. Steven Tanger and Debra Tanger, New York County Index No. 4044/91, awarding a City Marshal $32,916.55 in poundage fees to be paid by defendants. Defendants' successful appeal was brought by this Firm.
June 2006 Sara Lee/DE International B.V. v. Pell, Inc., et al. Case No. 1:03-CV-0788
On Friday, June 9, 2006, a Consent Permanent Injunction and Final Judgment was filed against Pell, Inc. in the Federal Court for the Western District of Michigan. This Firm represented Sara Lee in this counterfeiting case involving Kiwi Shoe Polish. The final judgment against Pell, Inc. was in the sum of five hundred thousand dollars ($500,000). The "Consent Preliminary Injunction and Final Judgment" is reported at 2006 U.S. Dist. LEXIS 40619.
November 2005
On November 22, 2005, this Firm filed a Complaint in the U.S. District Court, Southern District of New York, on behalf of Conopco, Inc. d/b/a Unilever ("Unilever") against defendants Dina Wein, Sheryl Raport, Axis Holdings, Inc., Great Grades Marketing, Inc. and Advanced Marketing Concepts, Inc. (collectively, the "Defendants"). Unilever's claims, based on, inter alia, the civil RICO statute, fraud, breach of contract and unjust enrichment, are predicated on Defendants' fraudulent representations to Unilever (and to other publicly held companies) in order to obtain products at prices substantially below the prices ordinarily charged for merchandise intended for the U.S. domestic market. The case, Index No. 05-CV-9899, has been assigned to Judge Richard Conway Casey.
September 2005 On May 19, 2005, the adversary proceeding entitled,
Merisant Company v. Mark Siegel, Adv. No. 04-2298-BKL-RBR-A, was tried before U.S. Bankruptcy Judge Larry Lessen, based on the Merisant Company's objection to the dischargeability of a five million dollar ($5,000,000) consent judgment previously entered against Mark Siegel by the U.S. District Court, Southern District of Florida. See here under "Reported Cases"
Monsanto Company et al. v. Campuzano et al., 206 F.Supp.2d 1239, 2002 U.S Dist. LEXIS 16342 (S.D. Fla. April 25, 2002), where summary judgment was granted in favor of Merisant, in part, on its counterfeiting claims. In its decision dated September 21, 2005, the Bankruptcy Court issued an Order, denying the dischargeability of the Judgment, pursuant to 11 U.S.C. 523 (a)(6). The Court determined, that, among other things, defendant's conduct in respect of Merisant's trademark rights was willful and malicious.
June 2005 As reported on the front page of the June 13, 2005 edition in the New York Law Journal, in the action entitled:
Robert Lewis Rosen Associates, Ltd. v. William Webb, 03 Civ. 6338 (S.D.N.Y.), the Court addressed the "novel issue" of awarding an additional money, judgment pursuant to a previously confirmed arbitration award. The Court awarded our client the additional money judgment. The Court held that when it confirmed the arbitration award, it confirmed the entire award, including the provision requiring the future payment of manager's fees.
This Firm was retained as appellate counsel in the action entitled:
Maloney Carpentry Inc. v. Budnick et al., 2004-01045. The Appellate Division, Second Department overturned the trial court's judgment and granted our client a new trial. The Second Department held that the trial court's jury instruction on the issue of substantial performance was "erroneous, incomplete, and ambiguous."