Author: RCS Legal

Law360 (August 14, 2020, 10:15 PM EDT) — Delaware’s chief federal judge heard opening statements Friday in a bench trial conducted by video conference, concerning one water heater maker’s claims that a rival’s low-emission model infringes its intellectual property.   

The trial between plaintiff A.O. Smith Corp. and the defendant Bradford White Corp. appears to be the first fully remote trial conducted by Chief Judge Leonard Stark during the coronavirus pandemic. It is expected to run about one week.

At the start of opening statements, A.O. Smith attorney David A. Bilson of Phillips Goldman McLaughlin & Hall PA gave Judge Stark a brief history of the family-owned hot water heater company, which dates back to 1874.

Bilson then described how California in 2012 tightened emissions standards for water heaters, requiring them to give off “ultra low” levels of nitrogen oxides, or NOx. Even though more efficient, modern water heaters could hit these standards, A.O. Smith discovered that consumers didn’t want to buy them because they required improved ventilation systems, he said.

Bilson said that A.O. Smith inventor Eddie Smith, who has been at the company since 1991, came up with the idea to use components called a power burner and exhaust plenum to create a new water heater that met the California emissions standards but was compatible with conventional exhaust systems.

Bradford White launched its own “ultra low NOx” water heaters in August 2012, Bilson said. But this “U Series” of products didn’t sell, and months later Bradford White applied for its own patent for a water heater that infringes A.O. Smith’s technology and launched its infringing so-called Commander product line in 2014, he continued.

A.O. Smith is seeking a reasonable royalty of $500 per unit sold, Bilson said.

Bilson told Judge Stark that Smith, along with A.O. Smith Chief Technology Officer Robert Heideman and Vice President of Engineering Greg Reynolds, would be testifying to describe the invention.

Bradford White attorney Andrew J. Koopman of RatnerPrestia told Judge Stark during his opening statement that “this case is about a failure of proof.”

Koopman said that A.O. Smith was trying to accuse Bradford White of infringement without actually testing Bradford White’s Commander series water heater, and that testing showed the Commander series doesn’t actually infringe.

Koopman told Judge Stark that A.O. Smith’s experts had failed to use the claims construction he had settled in their testing, and therefore can’t actually say whether Bradford White’s water heaters infringe A.O. Smith’s patent.

Public and press access to the trial is provided via an audio-only phone number, so exactly how the remote video trial was conducted was not apparent.

The proceedings did appear to go off smoothly, with only slight hiccups when, on a couple of occasions, the companies’ attorneys failed to take themselves off mute before trying to speak at the beginning of the day’s proceedings.

The trial comes one month after Judge Stark ordered a postponement in a jury trial originally planned to start this month between Sunoco and Magellan Midstream over gasoline patents, scrapping an earlier experimental plan to have jurors attend in-person with witnesses testifying remotely due to the pandemic.

Judge Stark postponed the trial, which had been scheduled for Aug. 3, after Sunoco Partners Marketing & Terminals LLC requested a postponement, citing increasing COVID-19 cases in Delaware. Magellan Midstream Partners LP, on the other hand, said the case was ready for trial.

The patent-in-suit is U.S. Patent No. 8,375,897.

A.O. Smith is represented by John C. Phillips Jr. and David A. Bilson of Phillips Goldman McLaughlin & Hall PA and S. Edward Sarskas and Kenneth M. Albridge III of Michael Best & Friedrich LLP.

Bradford White is represented by Andrew J. Koopman, Christopher H. Blaszkowski and Benjamin E. Leace of RatnerPrestia.

The case is A.O. Smith Corporation v. Bradford White Corporation, case number 1:18-cv-00412, in the District of Delaware.

–Additional reporting by Sarah Jarvis. Editing by Haylee Pearl.

Originally published at Law 360 on Friday, August 14, 2020

On March 31st, Rob Rosenberg, President of Rosenberg Consulting Services (RCS), was featured by the Waukesha County Business Alliance in the CEO Spotlight.  RCS has been a proud member of the WCBA since 2017. 

Q: Describe your business in 2 sentences or less:
A: Rosenberg Consulting Services provides strategic visual consulting services to law firms when they go to trial. We help communicate complex information in a easy to understand format and translate them into visual building blocks for fact finders.

Q. What has been your biggest challenge in running your business?
A. Our biggest challenges have always been making sure that we find a healthy work/home life balance. I’ve learned that most success starts in the home and have worked very hard to incorporate a healthy balance in all facets of my life.

Q. What is the most important lesson you’ve learned while running your business?
A. One of the most important things I have learned over the years is to treat people with kindness. Building the people around you up versus dressing them down is always a sure way to help others be better at their jobs.

Q. What is your personal key to success?
A. When I started Rosenberg Consulting, someone asked me (before coming to work for me) what I wanted the company to stand for. I said to them “I want to do good work for good clients and have fun doing it.” I’ve stayed as true to that as possible over the years and I’m still having fun.

Q. What’s the first job you ever had?
A. The first job I ever had was when I was 11 or 12. I used to deliver transcripts to law firms throughout Chicago for my father’s court reporting firm. I learned my way around downtown Chicago as well as some of the biggest law firms in the country at a very young age. It was a great experience.

Q. What’s your dream job?
A. I’m not sure I ever had a “dream job.” I like having a “reality job.” That mindset keeps me grounded in what I’m doing versus what I’d rather be doing.

Q. What book are you currently reading or would you recommend?
A. Admittedly, I don’t read many books. I read a lot of trade pieces and tons of news. I like to keep up on what’s happening in the world. However, the last book I read was fantastic. The Devil in the White City was an amazing read. Being from Chicago, I learned things I didn’t know about the city I grew up in.

Q. What is something unique about you?
A. A lot of people don’t know this, but I actually studied art/photography in college and not law. All of my knowledge of the law comes from experience working on many high stakes cases. That sort of makes me a professional layman in law.

Q. What is your favorite pastime?
A. I would say my favorite activity is to travel. My family and I travel a lot. We love to explore new places and try new things.

In May 2014, two 12-year-old Waukesha girls, Morgan Geyser and Anissa Weier, lured their friend, Payton Leutner, into a Waukesha park and stabbed her 19 times.

It was the start of a case that quickly became national news and continues to enthrall filmmakers. In 2017, HBO released “Beware the Slender Man,” a documentary which its makers alleged would explain why Weier and Geyser had done what they did. Last year, Sony Pictures came out with “Slender Man,” a horror film about four friends who appear to have summoned the character when one of them goes missing.

Now, the latest work to crop up is a documentary called “Slender Man Stabbing: The Untold Story,” which was released last month on the cable channel REELZ.

REELZ’s piece, produced by Dorsey Pictures, takes a particularly close look at Geyser. The film features interviews not only with the lawyers involved in the case, including one of Geyser’s defense lawyers, the Waukesha attorney Tony Cotton, but also investigators and Geyser’s trial consultants, one of whom was Rob Rosenberg, owner of Hartland-based Rosenberg Consulting Services.

“As we go through the process, especially in litigation, you’re dealing with things as they’re happening, but you’re also trying to form the long-term strategy,” Rosenberg said. “I think once all is done … I think that you have a better understanding of the impact of the decisions that were made along the way.”

He said he thought the filmmakers had compiled an accurate presentation of what had happened while remaining solicitous of the victim and providing a good explanation of Rosenberg Consulting Service’s role in the defense.

In the end, Geyser pleaded guilty to attempted first-degree homicide as part of a deal struck with prosecutors and was sentenced last year to 40 years in a mental hospital. She recently filed an appeal. A jury separately sentenced Weier, who pleaded guilty to a reduced charge, to a mental hospital for 25 years.

So, after looking back at the case, does Rosenberg feel that he and his team did all they could for Geyser, or at least got her some justice?

It depends on the measuring stick you use. Rosenberg noted that although getting Geyser home was a goal, it was not the most likely outcome.

“If our measurement was first and foremost to Morgan the care that she needed, I think we were extremely successful,” he said. “And we also kept Morgan out of jail. That was a huge victory.”

To defend Geyser, Rosenberg Consulting Services, Rosenberg himself and his team used a technique called Wizpor, which was devised by Florida-based trial consultant Amy Singer, who was also featured in the film. The technique involves doing mock trials and tailoring attorneys’ arguments using real-time advice from online focus groups.

Rosenberg said the film hit on the same argument Geyser’s defense team would have used at trial. “You probably heard throughout the documentary this constant reference to a comparison of mental illness to diseases like leukemia and cancer,” he said. “One of the cornerstones of our strategy was to properly analogize it to that.

“In all fairness, that’s not even just a strategy. That’s a reality. Our job really was to … help shape the perception so that people could see the reality.”

Originally published at Wisconsin Law Journal on Monday, February 25, 2019

RCS President, Rob Rosenberg, was featured in a documentary related to the infamous case, State of Wisconsin v. Morgan Geyser (aka Slenderman Stabbing case).  Rosenberg was the lead trial consultant for the defense (Geyser) and helped successfully guide the team to keeping Morgan out of jail and establish extensive psychiatric care services.

A Wisconsin trial-consulting firm will be featured in a documentary that premieres this weekend.

Hartland-based Rosenberg Consulting Services President Rob Rosenberg will be featured in a two-hour documentary titled “Slender Man Stabbing: The Untold Story.” It premieres Saturday at 7 p.m. on the REELZ channel and was produced by Dorsey Pictures.

REELZ is a cable and satellite network that focuses on programs related to celebrities and national news.

The documentary explores the case of two 12-year-old Wisconsin girls, Morgan Geyser and Anissa Weier, who in May 2014 lured a friend, Payton Luetner, into a Waukesha park and stabbed her 19 times in order to appease a fictional character called Slender Man.

RCS, which specializes in courtroom technology and trial graphics, was part of Geyser’s defense team. Geyser pleaded guilty to attempted first-degree homicide and was sentenced last year to 40 years in a mental hospital. She recently filed an appeal. Weier was sentenced to a mental hospital for 25 years.

Filmmakers interviewed Rosenberg about his firm’s work on the case. RCS, Rosenberg and his team used a technique called Wizpor, which was created by Trial Consultant Amy Singer and involves doing mock trials and tailoring attorneys’ arguments using advice from online focus groups.

Originally published at Wisconsin Law Journal on Friday, January 25, 2019

RCS President, Rob Rosenberg, will be featured in the new documentary “Slender Man Stabbing: The Untold Story” on January 26th at 8pm Eastern/7pm Pacific.

Slender Man Stabbing: The Untold Story

Should children be tried as adults? Can a mentally ill person premeditate a crime? Can a psychopath be rehabilitated? Can an attempted murderer also be a victim? Where is the line drawn between compassion and retribution? The Slender Man Stabbing: The Untold Story asks the viewer what they believe. A two-hour exploration of this polarizing case, the documentary focuses on details from the day of arrest to the sentencing of Morgan Geyser. Going beyond the headlines to get perspectives from those closest to the plea deal that lead to her sentence, the evidence sited by both sides of this gripping ordeal will challenge what you know about this case… and what you think is just.

Law360 (December 14, 2018, 6:43 PM EST) — An Illinois federal jury sided with a lawyer and his law firm Friday over a man’s claims that the two participated in a scheme to defraud him out of more than $10 million in sham film investments.

The seven-member jury’s verdict was that investor Bill Busbice failed to show by clear and convincing evidence that Illinois lawyer Adrian Vuckovich and his law firm, Collins Bargione & Vuckovich, either participated in or aided and abetted a conspiracy to defraud him of the money, which he claimed was shuffled through the firm’s and lawyer’s bank accounts before it landed in accounts belonging to an alleged co-conspirator. The jury’s decision caps a 10-day trial over Busbice’s claims.

Busbice’s lawsuit claimed he was approached in 2013 by Gerald Seppala, who held himself out as a film industry insider, about an opportunity to invest in the film “Made in America.” He says Seppala then introduced him to David Williams, who Busbice also believed was well connected in the industry and promised to match a $500,000 personal investment in the film if Busbice made a commitment as well.

Busbice says that he relied on those representations in wiring his money, but that Williams never matched the investment and instead transferred $450,000 to another account the day it was received. Williams withdrew more than $112,000 of the transferred money in cashier’s checks from an account he controlled, including more than $87,000 made payable to Steven J. Brown, another alleged co-conspirator, and the Noble Group, whose checks were deposited in the law firm’s retainer account, according to the lawsuit.

From there, and after an additional withdrawal from Williams’ account, Vuckovich wrote a $75,000 check from one of the firm’s accounts to Stuart Manashil, an agent at a prestigious Hollywood talent agency, Busbice alleged.

The scheme continued over about 10 months, with Williams persuading Busbice to invest $2 million to publicize the film “The Letters” in June 2013, $2 million to help publicize the film “Angels Sing” that October and a further $4 million on “The Letters” that November, Busbice claimed.

While details of the purported investment opportunities would change slightly each time Busbice was approached, the basic concept was the same, he claimed. He would wire his money and then receive falsified documents and bank statements indicating that his investment had been matched, but the money would be transferred into other accounts from which thousands of dollars would be deposited in the law firm’s client trust accounts and used to pay the alleged co-conspirators for their work in the ploy, according to the lawsuit.

Busbice claimed he lost about $10.9 million to the alleged scheme.

Vuckovich claimed throughout trial that he never knew Busbice, or what kind of scheme the men had concocted. But knowing Busbice and the scheme “wasn’t his role,” Busbice’s attorney Paul Gale told the jurors during closing argument Friday.

“His role in this conspiracy was to make the money disappear,” he argued. “Who best to help you launder money than a very good longtime friend who happens to be a lawyer in control of a bank account and a trust account?”

The financial accounts used to transfer Busbice’s money were frozen in April 2014 by the bank holding those accounts, and Busbice sued Williams, Seppala, Brown and the companies associated with those accounts in California federal court two months later.

He settled that case in 2015, and the three have since pled guilty along with Manashil to criminal charges over similar sham film investment claims. And while his case in Illinois federal court seeks to hold Vuckovich and his law firm liable for their alleged role in the claimed conspiracy, Vuckovich’s attorney Daniel Konicek told the jurors in his closing argument that Busbice had not come close to meeting the standard to prove his claims with clear and convincing evidence.

“Accidental, negligent participation is not enough, and maybe we can say thank God, right?” Konicek said. “We don’t want to pull innocent people in like Adrian, and the law protects that. Sometimes our clients may be bad people, but we still represent them. And simply by virtue of that, that doesn’t make us bad people.”

U.S. District Judge Andrea Wood cleared the parties’ path to trial in November, when she rejected their dueling bids for summary judgment.

Counsel for Busbice declined comment Friday.

Counsel for Vuckovich and his firm told Law360 in a statement that “the jury reached the right result.”

“Adrian was very grateful to have his day in court,” the statement continued.

By Lauraann Wood

Originally published at on Friday, December 14, 2018 on Law360

After 3 long weeks at trial, these two brewing giants agreed to settle this matter.  RCS was hired by MillerCoors to provide consultative services throughout the trial up until settlement (which happened on the 2nd day of deliberations).  See AP article below:

MILWAUKEE (AP) — MillerCoors and Pabst Brewing Co. settled a lawsuit Wednesday in which the hipster’s brand of choice claimed the bigger brewer lied about its ability to continue brewing Pabst’s beers to put that company out of business.

The settlement came as jurors were ending their second day of deliberations after a two-week trial in Milwaukee County Circuit Court. Details of the settlement were not disclosed.

“We have reached an amicable settlement in the case and are pleased to resolve all outstanding issues with Pabst,” MillerCoors LLC said in a statement.In a separate statement, Pabst said it “will continue to offer Pabst Blue Ribbon and the rest of our authentic, great tasting and affordable brews to all Americans for many, many years to come.” Since 1999, Chicago-based MillerCoors has made and shipped nearly all of Pabst’s beers, which include Pabst Blue Ribbon, Old Milwaukee, Lone Star and Schlitz. Pabst’s lawyers argued in the company’s 2016 lawsuit that MillerCoors worried that Pabst would cut into its market share and devised a plan to stop brewing for the smaller competitor. MillerCoors’ attorneys called Pabst’s claim a conspiracy theory and said the company was simply deciding what makes economic sense.

The agreement between MillerCoors and Pabst, which was founded in Milwaukee in 1844 but is now headquartered in Los Angeles, expires in 2020 but provides for two possible five-year extensions. The companies disagreed on how the extensions were to be negotiated: MillerCoors argued it had sole discretion to determine whether it can continue brewing for Pabst, whereas Pabst said the companies must work “in good faith” to find a solution if Pabst wanted to extend the agreement but MillerCoors lacked capacity.

However, Pabst said internal documents from MillerCoors showed the company was worried about competition from Pabst and went as far as hiring a consultant to find a way to get out of the brewing agreement.

“They decided upon the solution before determining their sufficient capacity,” Adam Paris, one of Pabst’s lawyers, said during closing arguments Tuesday. “Their problem wasn’t a capacity problem. Their problem was a financial problem.”

Pabst needs 4 million to 4.5 million barrels brewed annually and claims MillerCoors is its only option. Pabst’s lawsuit sought more than $400 million in damages and a court order for MillerCoors to honor its contract.MillerCoors’ attorney, Eric Van Vugt, told jurors that Pabst presented them with “a tale of conspiracy and deceit that frankly is pretty compelling,” but not true. “Most of what you heard is a complete distortion of the evidence. It was taken out of context, the facts were distorted, keywords dropped,” he said.

MillerCoors and Anheuser-Busch, which have the biggest U.S. market share at 24.8 percent and 41.6 percent, respectively, have been losing business to smaller independent brewers, imports, and wine and spirits in recent years, according to the Brewers Association, a U.S.-based trade group. Overall U.S. beer sales have declined, with shipments down from 213.1 million barrels in 2008 to 204.2 million in 2017, according to the association.

Anheuser-Busch doesn’t do contract brewing, leaving MillerCoors as the only U.S. brewery with the capacity to make Pabst’s beers.

During contract-extension negotiations in 2015, MillerCoors announced it would close its brewing facility in Eden, North Carolina, and that it eventually might have to shutter another facility in Irwindale, California. Pabst contended that MillerCoors refused to provide any information to substantiate its claim that it would no longer have the capacity to continue brewing Pabst’s beers.

MillerCoors’ attorneys said at trial the company was obligated to project its future capacity to determine whether it could continue its partnership with Pabst, and that it always intended to keep brewing for Pabst until the expiration of the contract, which included a two-year wind-down provision. That meant MillerCoors would still brew for Pabst through 2022.

___

Find Ivan Moreno on Twitter: http://twitter.com/1TrueIvan

Originally published at Associate Press on Wednesday, November 28, 2018

Law360 (October 2, 2018, 9:49 PM EDT) — An Iowa federal jury held on Monday that a Nebraska law firm didn’t commit legal malpractice while representing a man in a suit over ownership of an insurance marketing company, awarding the firm $150,000 on its cross-claim for unpaid fees.

The late Douglas M. West’s son Douglas J. West and brother Mark West, as co-executors of his estate, had alleged that Domina Law Group PC’s shoddy representation during a dispute over the ownership of life and health insurance marketing company Western Marketing Associates Corp. left the senior West stuck with a reduced value when selling his stake in the company.

After deliberating for less than three hours following a five-day trial, the jury returned with a verdict fully in favor of Domina Law and its attorneys David Domina, Christian Williams and Brian Jorde, finding that they were not negligent in their representation of West, and that the firm is entitled to $152,037 in damages on its breach of contract claim over unpaid fees.

The estate was seeking over $5 million in damages, said Thomas I. Henderson of Whitfield & Eddy Law, who represented Domina Law.

The law firm’s lead trial counsel, Daniel Konicek of Konicek & Dillon PC, told Law360 on Tuesday that the jury had given a clear indication about how it felt about the case by sending out a note during deliberations asking if it could award Domina Law’s attorneys’ fees for defending the case. That wasn’t allowed, but it indicated that the jury felt the legal malpractice claim shouldn’t have been brought, Konicek said.

“I think it was pretty loud and clear by the jury that the Domina Law Group not only didn’t do anything wrong, but also concluded that they frankly did an excellent job,” he said.

An attorney for the plaintiffs did not immediately respond to a request for comment on Tuesday.

The suit, filed by West’s estate in July 2016, alleged that Domina Law — a Nebraska-based firm that specializes in trial practice in a variety of areas including personal injuries, product liability and medical malpractice — had been retained by West in September 2013 to represent him in a pair of Iowa District Court suits between himself and his Western Medical co-owner, Mark Finken.

The co-owners had previously entered into a buy-sell agreement that provided a framework for each of them to transfer shares and retire from the corporation, but Domina Law advised West not to use it and to pursue a judicial dissolution of Western Medical instead, according to the complaint.

As a result of Domina Law’s advice, a court ultimately issued a judgment that resulted in West getting a much lower value for his share of the company than he would have received by using the buy-sell agreement, according to the suit.

In its answer and counter-claim filed in March 2016, Domina Law alleged that the estate still owed roughly $150,000 in legal fees and that the estate couldn’t sue for legal malpractice because West had accepted the benefits of Domina Law’s representation, accepting the judgment in the ownership dispute without appealing it and taking the payments he got from it.

West died in November 2015, according to case documents.

David Domina, the firm’s founding partner and defendant in the suit, was the Democratic nominee for one of Nebraska’s U.S. Senate seats in 2014, losing to Republican Ben Sasse.

West’s estate is represented by Matthew G. Sease and Scott M. Wadding of Kemp & Sease.

Domina Law is represented by Daniel Konicek of Konicek & Dillon PC and Thomas I. Henderson of Whitfield & Eddy Law.

The case is Estate of Douglas M. West v. Domina Law Group PC LLO, case number 1:16-cv-00030, in the U.S. District Court for the Southern District of Iowa. 

–Editing by Haylee Pearl.

Slender Man stabbing: Parents recall what happened that morning; 12-year-old survives being stabbed 19 times by her friends; What is Slender Man, the figure that motivated two girls to stab their friend

Click here for read the original article: https://abc.go.com/shows/2020/episode-guide/2018-02/02-020218-slender-man