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Decisions of Interest

Rodney A. Brown, P.C., formerly known as Brown & Whalen, P.C. represented:

1. The Respondents in a discovery proceeding, pursuant to SCPA § 2103, filed in the Surrogate’s Court, County of Queens, in the matter captioned In the Matter of the Application of Esther Rachel Hersh, as Executor of the Estate of George Hersh, Deceased, to Discover Property Withheld, Index No. 2007-4035. In 2011, Respondents successfully moved to have certain New Jersey domiciled entities dismissed as Respondents, due to the Surrogate’s Court’s lack of personal jurisdiction over the entities. Subsequently, the Surrogate’s Court, by Order, dated June 6, 2012, denied Respondents’ Motion for a Protective Order that sought to relieve an individual Respondent, who is domiciled in New York, from executing authorizations that would have provided for the release of certain documents related to the previously dismissed New Jersey entities’ books, records, financial and banking information. Following Respondents’ appeal, the Appellate Division, Second Department, in its Decision and Order, dated September 25, 2013, modified the Surrogate’s Court’s Order denying Respondents’ Motion for a Protective Order, and relieved the individual Respondent from executing authorizations with respect to the dismissed New Jersey entities unless the information relates “to the management and operation of those entities” by the individual Respondent.

2. Martal Cosmetics, Ltd. (“Martal”), as the Plaintiff in a trademark counterfeiting lawsuit filed in the United States District Court, Eastern District of New York, against various individual and corporate Defendants, in the matter captioned Martal Cosmetics, Ltd. v. International Beauty Exchange, Inc., et al., Index No. 01–cv–7595 (TLM). After a seven-day bench trial, the District Court Judge issued a ruling in favor of Martal, granting statutory damages of seven hundred and fifty-five thousand dollars, and attorneys’ fees and costs, pursuant to the Lanham Act (15 U.S.C. § 1117(c)), against the corporate defendants for willfully infringing on Martal’s trademarks. The Court also found certain individual Defendants to be the moving, active and conscious forces behind the corporate Defendants’ infringement. The ruling was based, in part, on the credibility determinations made during the trial by the Court, which found, in part, Defendants’ testimony to be “riddled with inconsistencies, contradicted time and again by the documentary evidence, contradictory to their own testimony during and prior to trial….” See Martal Cosmetics, Ltd. v. International Beauty Exchange Inc, et al., 2011 WL 3687633 (E.D.N.Y. 2011).

3. Fish & Richardson P.C. (“F&R”), as the Plaintiff in a lawsuit filed in the State of New York Supreme Court, County of New York, against Randy Schindler, in the matter captioned Fish & Richardson P.C. v. Schindler, Index No. 601327/2007 (Kornreich, J.). After a ten-day inquest on damages and attorneys’ fees before a Special Referee, F&R was awarded the full amount of damages sought in its claims against Defendant for breach of contract, quantum meruit and account stated. In addition, the Court awarded the full amount of attorneys’ fees and costs sought by F&R, as a result of the Defendant’s willful and contumacious violation of four separate court orders over a period of approximately 10 months. In the same action, the Appellate Division, First Department, affirmed the Order of the Supreme Court, granting F&R’s motion to strike Defendant’s Answer and awarding F&R attorneys’ fees and costs, pursuant to CPLR § 3126, for Defendant’s failure to comply with multiple court orders and discovery deadlines. The Appellate Division agreed with the Supreme Court’s finding that Defendant’s pattern of noncompliance with court orders was willful, contumacious and in bad faith. Moreover, the Appellate Division held that Defendant’s failure to offer a reasonable excuse for his dilatory behavior further supported the Court’s finding of willfulness. On June 1, 2010, the Decision and Order of the Appellate Division, First Department, was featured on pages 1, 17 and 18 in the “Decisions of Interest” column of the New York Law Journal.

4. Conopco, Inc. d/b/a Unilever (“Unilever”), as the Plaintiff in a lawsuit filed in the United States District Court, Southern District of New York, against Dina Wein, and various related persons and entities, in the matter captioned Conopco, Inc. d/b/a v. Dina Wein, et al., Index No. 05 Civ. 9899 (RCC)(THK). In its Complaint, Unilever alleged a wide-ranging RICO trade diversion scheme by Defendants, in which Defendants defrauded numerous Fortune 500 consumer product companies. Brown & Whalen was able to adduce through discovery that the Defendants, being aware of the fraudulent nature of their conduct, generated bogus exculpatory documents to cover their tracks. This discovery of the “meta-fraud” as another level of the scheme enhanced Brown & Whalen’s ability to successfully litigate the case on behalf of Unilever, resulting in a multi-million dollar settlement. In addition, the discovery obtained by, and assistance of, Brown & Whalen, led, in part, to the subsequent Federal criminal indictment and conviction of Dina Wein Reis and others. An article, entitled “The Grifter,” appeared in Fortune Magazine’s August 17, 2009, issue, at pages 58-68, highlighted legal actions concerning fraud and trade diversion, including the lawsuit in which Brown & Whalen, P.C., formerly known as The Brown Law Group, P.C., represented Unilever.

5. Johnson & Johnson Consumer Companies, Inc. (“JJCC”), as the Plaintiff in a trademark counterfeiting lawsuit filed in the United States District Court, Eastern District of New York, against various individual and corporate Defendants, in the matter captioned Johnson & Johnson Consumer Companies, Inc. v. Harry Aini, et al., Index No. 02–cv–6624 (TLM). In a reported decision in this Lanham Act proceeding, United States District Court Judge Dora Irizarry granted JJCC’s motion for summary judgment, in part, on the Lanham Act claims, state law dilution and unfair competition claims. In addition, the Court determined that various Defendants had distributed the counterfeit products at issue “with at least willful blindness, or a reckless disregard for Plaintiff’s rights.” As a result, the Court determined that JJCC may be awarded statutory damages, pursuant to the Lanham Act (15 U.S.C. § 1117(c)). See Johnson & Johnson Consumer Companies, Inc. v. Harry Aini, et al., 540 F.Supp.2d 374 (E.D.N.Y. 2008).

6. Bonds Financial Inc. (“Bonds”), as the Plaintiff in a lawsuit filed in the State of New York Supreme Court, County of New York, against a corporate and individual Defendants, in the matter captioned Bonds Financial Inc. & John Barry, III v. Kestrel Technologies, LLC a/k/a Kestrel Technologies Inc. & Edward L. Bishop, III, Index No. 602380/06 (Freedman, J.). Following a six-day jury trial, Bonds was awarded $600,000.00, in compensatory damages resulting from Defendants’ breach of contract. During the trial, Bonds produced evidence showing that 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 $600,000.00, pursuant to the parties’ 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 the trial, the jury found that Kestrel had anticipatorily breached the parties’ contract and determined that Bonds’ damages totaled $600,000.00. The Court further held that the individual Plaintiff, John Barry III, should be awarded damages in the amount of $250,000.00, for loans Defendants never repaid. The total amount awarded to Plaintiffs was $850,000.00, not including interest and attorneys’ fees. On April 28, 2008, the verdict was featured in the “Verdicts & Settlements” Section of the New York Law Journal.

A sampling of the firm’s case history includes:

  1. Successfully litigating a trade diversion case in a federal district court on behalf of a major consumer product and pharmaceutical Fortune 500 company, culminating in a multi-million dollar settlement;
  2. Successfully representing a plaintiff at trial in a federal trademark counterfeiting case, in which the Court, after finding willful infringement against the defendants, awarded significant statutory damages and attorneys’ fees;
  3. Arbitrating and obtaining an award for damages before the Financial Industry Regulatory Authority in a breach of employment contract against a New York financial services company;
  4. Successfully obtaining a seven-figure judgment for unpaid broker commissions in a litigation for breach of contract against a well-known gourmet market chain;
  5. An arbitration and federal trial on behalf of a well-known talent management company, in which the firm successfully represented the client in enforcing its contractual rights and defeated various statutory and common law defenses;
  6. Obtaining a jury verdict against a software developer on an anticipatory breach of contract claim, resulting in two judgments totaling over seven figures, on behalf of a financial services company;
  7. Successfully appealing an award of attorneys’ fees, resulting in the reduction of the attorneys’ fees by a substantial amount, from approximately $652,000.00 to $290,000.00;
  8. Obtaining decisions that have been cited numerous times in the area of sanctions for discovery abuse in New York State and Federal Courts; and
  9. Successfully arguing a case before the New York State Court of Appeals resolving statutory issues concerning Marshal’s fees.