Brown & Whalen, P.C.

Our successful representation of our clients is evidenced in numerous online, reported and unreported case decisions, including, among others:

In Solow Management Corp. v. Tanger, 2008 WL 1817278 (N.Y. Ct. App. Apr. 24, 2008), the New York State Court of Appeals affirmed an Order of the Appellate Division, First Department of the New York Supreme Court, denying poundage fees to a non-party New York City marshal. See Solow Management Corp. v. Tanger, 38 A.D.3d 49, 828 N.Y.S.2d 33 (1st Dep't 2007). The Court of Appeals held that the Defendants' posting of an appeal bond did not constitute "affirmative interference" entitling the marshal to poundage fees, pursuant to CPLR 8012 or the judicially-created exception to the provisions of the statute. The Court of Appeals agreed with the Appellate Division's finding that the filing of the appeal bond merely stayed enforcement proceedings, but did not require vacatur of the alleged levy. Thus, it was held that the marshal, who unilaterally released the alleged levy following the posting of the bond, could not recover fees, pursuant to the statute. The Court of Appeals ruled that since the marshal could not show his entitlement, under CPLR 8012 or any judicially created exception, the marshal was not entitled to recover poundage fees.

In Solow Management Corp. v. Tanger, 43 A.D.3d 691, 841 N.Y.S.2d 532 (1st Dep't 2007), the Appellate Division, First Department of the New York State Supreme Court, on an appeal by the Defendants Steven Tanger and Debra Tanger, unanimously reduced the Supreme Court's award of attorneys' fees to Plaintiff Solow Management Corp. in a substantial amount from $652,141.94 to $290,737. The Appellate Division determined that the prior award must be reduced because it was, among other things, "excessive." This Firm successfully represented Defendants Steven Tanger and Debra Tanger on the appeal.

In Martal Cosmetics Ltd. et al. v. Int'l Beauty Exchange et al. , 2007 U.S. Dist. LEXIS 53585 (E.D.N.Y. Jul. 24, 2007), Magistrate Judge James Orenstein denied motions by Defendants for reconsideration of the Magistrate's prior Report and Recommendation. The Magistrate's Report and Recommendation granted summary judgment to Plaintiff on Plaintiff's Lanham Act and related state law claims, and denied Defendants' cross-motions for relief. The Magistrate Judge found that Defendants' motions for reconsideration were meritless and were procedurally improper insofar as they were brought under Fed. R. Civ. Pro. Rule 60(b). In addition, the Magistrate denied Defendants' related motions for the reopening of discovery, finding that those motions were similarly unfounded.

In Conopco, Inc. d/b/a Unilever v. Wein et, al., 2007 U.S. Dist. LEXIS 53314 (S.D.N.Y. Jul. 23, 2007), Magistrate Judge Katz entered an Order allowing this Firm to proceed with the non-party subpoena duces tecum served on North-Fork Bank ("NFB") on behalf of Plaintiff Conopco, Inc. d/b/a Unilever ("Plaintiff"). Defendant Dina Wein ("Wein") sought to quash Plaintiff's subpoena based on its purported irrelevancy, over-breadth and the confidentiality of the documents sought because they were allegedly "strictly personal" in nature. In denying Defendant Wein's motion to quash, the Court relied on evidence presented by Plaintiff and held that "it now appears that Wein's so-called personal accounts and financial matters are not so distinct from her business affairs." Moreover, the Court ruled that the financial information sought by the non-party subpoena was narrowly tailored to lead to the discovery of relevant information as the financial transactions in Wein's "personal" account may lead to evidence of how the alleged RICO enterprise operated and the role Wein played in the RICO enterprise. Further to that end, the Court held that any alleged privacy concerns can be easily remedied with a Confidentiality Agreement between the parties. This decision is reported in 2007 U.S. Dist. LEXIS 53314 (S.D.N.Y. Jul. 23, 2007) and highlighted as a "Decision of Interest" in the August 2, 2007 edition of the New York Law Journal. Plaintiff was represented by this Firm.

In Conopco, Inc. d/b/a Unilever v. Wein et al., 2007 U.S. Dist. LEXIS 46945 (S.D.N.Y. June 27, 2007), Magistrate Judge Katz, among other things, resolved in Plaintiff's favor its challenge of Defendant Wein's assertion of attorney-client privilege in respect of documents concerning Defendant Avraham Moskowitz, who was Defendant Wein's former counsel. In accepting Plaintiff's arguments and proffered evidence, the Court determined that "Moskowitz's review does little to demonstrate that Moskowitz was predominantly providing legal advice." Relying on well-established case law that attorney-client applies only where legal advice, and not business advice, is sought and given, the Court directed Defendant Wein to submit the documents at issue for an in camera review due to the Court's finding that Plaintiff presented sufficient record evidence to demonstrate that the withheld documents contain business advice. Plaintiff was represented by this Firm.

In Martal Cosmetics, Ltd. et al. v. International Beauty Exchange, Inc. et al., 2007 U.S. Dist. LEXIS 20526 (E.D.N.Y. March 22, 2007), the Eastern District of New York (Feuerstein, J.), accepted and affirmed, as modified, the Report and Recommendation and Order of the United States Magistrate Judge James Orenstein dated September 22, 2006, recommending, among other things, that partial summary judgment be granted in favor of Plaintiff Martal Cosmetics, Ltd. ("Martal") on Martal's Lanham Act and state law claims relating to certain of its trademarks, and that a number of Defendants' other non-dispositive motions be denied. This Firm successfully represented Martal in connection with the motions.

In Robert Lewis Rosen Associates, Ltd. v. William Webb, 2007 WL 79448 (2d Cir. Jan. 11, 2007), the United States Court Of Appeals For the Second Circuit affirmed an Order of the United States District Court for the Southern District Of New York (Baer, J.), awarding plaintiff a Supplemental Judgment for monies that were previously awarded during underlying arbitration proceedings and confirmed by the District Court, but were not expressly quantified in the District Court's original Judgment. This Firm represented the plaintiff-appellee. The Second Circuit found that the Supplemental Judgment issued by the District Court, pursuant to Federal Rule of Civil Procedure 60(a), was proper, as it served to merely order the payment of sums that were previously awarded, but omitted from the original Judgment. Significantly, the Second Circuit upheld the District Court's use of Federal Rule of Civil Procedure 60(a) as a vehicle to correct the original Judgment, which did not reflect the confirmed arbitral award in its entirety. The Opinion of the United States Court of Appeals for the Second Circuit dated January 11, 2007 was featured as the "Decision of the Day" on January 19, 2007 in the New York Law Journal (at pg. 22, col. 1) and is also available on-line at: http://www.ca2.uscourts.gov/.

In Solow Management Corporation v. Steven Tanger and Debra Tanger, 2007 WL 64161 (App. Div. Jan. 11, 2007), this Firm represented defendants-appellants in obtaining from the Appellate Division, First Judicial Department, the unanimous reversal of a decision of the New York County Supreme Court (Lippmann, J.), which awarded a City Marshal $32,916.55 in poundage fees to be paid by defendants. As held by the Appellate Division, the Supreme Court erroneously determined that defendants had "affirmatively interfered" with the Marshal's collection efforts and were thus liable for his fees, by posting a bond in connection with their appeal from an attorneys' fees Judgment in the amount of $655,241.10, which was subsequently vacated (19 A.D.3d 225 [2005]). The Appellate Division found that the stay obtained by defendants, pursuant to CPLR 5519(a)(2), stayed actual collection, however it did not interfere with the Marshal's collection efforts or require a vacatur of the Marshal's levy. The Court further found that poundage should be denied as a matter of equity, as any interference with collection had resulted from ex parte actions of the Marshal, and not by any action of the defendants. The Decision and Order of the Appellate Division, First Judicial Department, dated January 11, 2007 appeared as the "Decision of the Day" on January 18, 2007 in the New York Law Journal (pg. 22, col. 1) and is also available on-line at: http://www.nycourts.gov.

In Sara Lee/DE International B.V. v. Pell, Inc., et al. Case No. 1:03-CV-0788, the Federal Court for the Western Distrct of Michigan entered a Consent Permanent Injunction and Final Judgment against Pell, Inc. 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.

In Webb v. Robert Lewis Rosen Associates, Ltd., 2004 U.S. Dist. LEXIS 12024 (S.D.N.Y. June 29, 2004), we successfully defended a talent management company from its former client's claims of breach of fiduciary duty/ "faithless servant" doctrine and unjust enrichment. See also Webb v Robert Lewis Rosen Associates, Ltd., 2004 U.S. Dist. LEXIS 4489 (S.D.N.Y. March 19, 2004), granting defendant's motion to strike the plaintiff's jury demand.

In The Clorox International Company v. Pacific Duty Free Services, Inc., et al., Case No. 01-857 (S.D.Fla. Dec. 23, 2003), we successfully represented the plaintiff in a RICO case based on product trade diversion. Defendants were found to have fraudulently induced plaintiff into selling products to defendants under the agreement that the products were to be sold only in Latin America. Defendants violated the agreement by shipping the products back into the United States. Defendants, in both their personal and civil capacity, were found liable pursuant to civil RICO and other claims. Plaintiff was awarded treble and punitive damages plus attorney's fees.

In Monsanto Company and the Nutrasweet Company v. Campuzano et al., 206 F.Supp.2d 1239, 2002 U.S. Dist. LEXIS 16342 (S.D.Fla. April 25, 2002), we represented plaintiffs, who were granted summary judgment on their claims of trademark and copyright infringement, false designation of origin, false description and dilution and Florida state law claims of unjust enrichment and unfair competition.

In Monsanto Company and the Nutrasweet Company v. Haskel Trading, Inc. et al., 13 F.Supp.2d 349 (E.D.N.Y. 1998), the Court, pursuant to plaintiffs' summary judgment motion, determined that defendants' repackaging of genuine product in containers manufactured by defendants created a "liklihood of confusion" as to the source of the product.

In Hershey Foods Corp. v. Collegiate Marketing, Inc., et al., 1997 U.S. Dist. LEXIS 19850 (S.D.N.Y. 1997), we represented the Plaintiff, who prevailed on summary judgment on liability in a product trade diverting case, against defendants, who failed to use "their best efforts" to distribute Plaintiff's products pursuant to the parties' contract.

In The Clorox International Company v. International Trade Expo, Inc. et al., 1995 U.S. Dist. LEXIS 2871 (S.D.N.Y. 1995), we represented the Plaintiff, who was granted summary judgment on fraud and conversion claims in a product trade diversion action.

In Galin Partnership v. Flynn Funeral Home, et al., 744 N.Y.S.2d 345, 295 A.D.2d 473 (2d Dep't 2002), we represented Plaintiff, who on appeal successfully "pierced the corporate veil" and recovered unpaid rent and taxes from corporate and individual defendants, pursuant to a commericial lease.

The firm has also litigated proceedings in Bankruptcy cases, including:

In the Bankrupcy adversary proceeding of In re Berger Industries, Inc., 260 B.R. 639, 2001 Bankr. LEXIS 318 (Bankr. E.D.N.Y. April 12, 2001), we successfully defended a client against a Chapter 11 debtor who sought to recover alleged preferential payments paid to our client. Our client sustained its burden of proof regarding all three elements of the ordinary course of business defense.

In addition, we have participated in a number of arbitrations, including hearings before the American Arbitration Association, which involved, among other issues, breach of contract, partnership disputes and the recovery of unpaid manager's fees.