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Ex-Peterson lawyer, patent attorneys at odds over fees, share of Gerchen Keller 3rd party loan in patent lawsuit

By Jonathan Bilyk | Aug 11, 2016

Editor's Note: This article has been updated, with further comment from attorney Joel Brodsky, below.

A lawyer who led the defense of Drew Peterson has launched a court fight with a pair of prominent Chicago patent litigation lawyers, saying the Chicago firm of Niro McAndrews owes him more than $32 million for allegedly horning in on a patent lawsuit against the makers of supermarket canned soup dispensers, while maneuvering to secure a chunk of a financing deal through leading lawsuit financier Gerchen Keller Capital, and cutting him and another attorney out of the case altogether.

On Aug. 8, Joel Brodsky filed suit in Cook County Circuit Court against the Chicago intellectual property firm of Niro McAndrews LLC, as well as attorneys Raymond P. Niro Jr. and Matthew G. McAndrews individually.

Other named defendants in the action include Brodsky’s former client, Terry Johnson, president and majority stockholder in Gamon Plus and Gamon International. The businesses, based in Bensenville, produce “specialty packaging and point-of-purchase displays,” according to the lawsuit.

In response, Niro McAndrews has asked a Cook County judge to remove the complaint from the public record, and order all of Brodsky’s filings sealed. Niro McAndrews cites a federal judge’s decision to seal proceedings related to the lawyers’ fight over Brodsky’s continued claims to represent the Gamon companies in the patent case, despite having been removed from the Gamon legal team.  

In the motion filed Aug. 11, Niro McAndrews described Brodsky’s conduct in relation to his recently filed lawsuit against them as “retaliatory, unethical and illegal.”

According to Brodsky’s complaint, he was retained in 2014 by Johnson and his Gamon companies to launch a legal action against Campbell Soup Company and retailers Meijer and Kroger for using supermarket canned soup dispensers made by New Jersey-based Trinity Manufacturing, which the Gamon companies said infringed their patents for “multi-chute gravity feed dispenser displays.”

The complaint said Brodsky, whose website advertises his services as a criminal defense lawyer, brought in a New York patent attorney, identified in the court filing as Andrew Tiajoloff, to assist with the case.

According to Brodsky’s Cook County complaint, the retainer agreement purportedly guaranteed Brodsky a fee worth 40 percent of any judgment the Gamon companies might collect, and purportedly granted him an attorney lien on the potential judgment.

The agreement also purportedly allowed them to retain additional attorneys to assist with the case “at their discretion.”

Brodksy said he and Tiajoloff then enlisted the aid of Niro Jr. and McAndrews, purportedly to bring in more expertise in patent litigation and land potential third-party financing for their case against Campbell’s and the other large corporate defendants.

Niro Jr. is the son of noted patent trial lawyer, Raymond P. Niro. The elder Niro, who co-founded prominent IP litigation firm Niro, Haller & Niro, died Monday, Aug. 8, while vacationing in Italy, according to published reports.

Niro Jr. and McAndrews, who is the son of George P. McAndrews, who founded the IP firm McAndrews, Held & Malloy, each practiced in the Niro Haller law firm until January 2015, when they launched Niro McAndrews LLC.

According to Brodsky’s lawsuit, Niro Jr. and McAndrews were added to the Gamon legal team in January 2015, after an independent analysis determined the Gamon companies’ patent claims made for an “extremely strong case.”

Based on that analysis, Brodsky said he estimated the lawsuit would be worth “many tens of millions of dollars,” and estimated he could earn a fee worth $7.5 million, based on his retainer agreement with the Gamon companies.

According to Brodsky’s lawsuit, the Niro McAndrews firm eventually enlisted the aid of Chicago-based litigation financier Gerchen Keller Capital.

However, after the Gamon legal team launched their action against Campbell’s and the other defendants in Chicago federal court, Brodsky alleged Niro McAndrews began to alter their relationship, beginning with a “terms sheet” presented to Johnson by Niro McAndrews which Brodsky said would essentially guarantee the Niro McAndrews firm a “commission” from Gerchen Keller’s loan. Brodksy asserted the retainer agreement did not allow for such a payment, as any loan supporting the litigation was only to cover the lawsuit’s costs and not fees, which Brodsky claimed were only to be paid on a contingency basis.

According to the lawsuit, the term sheet also allegedly guaranteed Gerchen Keller a 350 percent return on their loan, plus 3 percent of any judgment awarded to Johnson and his companies. The complaint did not specify the amount of the loan.

Brodksy said he objected to the terms sheet signed by Johnson.

In response, Brodsky said he sought to remove Niro McAndrews from the case. Instead, Johnson fired Brodsky, a decision Brodksy alleged came at the guidance of Niro McAndrews, who, Brodsky alleged wished “to prevent Mr. Johnson from getting any independent advise (sic) and counsel in this case, and to start to get Brodsky, and later (Tiajoloff) out of the patent case so that Niro and McAndrews could steal their fee.”

The lawsuit includes counts alleging breach of fiduciary duty and intentional interference with a prospective economic advantage against Niro Jr., McAndrews and their firm, and counts alleging Johnson and the Gamons companies aided and abetted

He has requested $7.5 million in damages, plus an additional $25 million in punitive damages against Niro Jr., McAndrews and their firm, as well as against Johnson and the Gamon companies.

Brodksy is representing himself in the lawsuit.

In an interview, McAndrews said the allegations in Brodsky’s complaint were “absolutely without merit,” adding: “Joel Brodsky cannot escape his own rank dishonesty and hopeless incompetence any more than the leopard can change its spots.”

In the memorandum supporting the Aug. 11 motion, McAndrews said he intended to seek sanctions against Brodsky in this case, including for civil and criminal contempt, for filing the lawsuit which "improperly divulges to Gamon’s codefendants, their counsel, and the public Gamon’s highly-confidential business information as well as communications and information subject to the attorney-client privilege and work product immunity."

He asserted he has already complained of Brodsky's actions in the patent case to the Illinois Attorney Registration and Disciplinary Commission, and intended to similarly complain of Brodsky's latest lawsuit in federal court.

McAndrews’ Aug. 11 Cook County motion referenced Brodsky’s “long history of professional misconduct.”

According to the ARDC’s records, Brodksy’s law license was suspended for three months in 2004 for allegedly signing a deceased estate executor’s name on bank documents to release funds contained in a probate estate account.

Brodsky also was reprimanded from the bench by a judge in 2013 in the Drew Peterson case for using a television news interview to blame Peterson for his decisions in the high profile defense of the former Bolingbrook Police officer accused of killing his ex-wife. The judge in that case also referred Brodsky’s actions to the ARDC.

UPDATE: Brodsky has replied to the assertions leveled against him by McAndrews and Niro. In a motion filed in August in Cook County court, Brodsky asserted none of the information he presented in his lawsuit should be placed under seal.

In the motion, he described McAndrews' and Niro's assertions against him as "extreme and outrageous misrepresentations," and he said his opponents merely desire to "make threats" against him, to "obtain orders ... that they can use in a campaign to try to intimidate (Brodsky) to walk away from his very large million dollar plus dollar (sic) case against them."

In a statement provided to The Cook County Record, Brodsky added to his response further.

"Facts are a stubborn thing, and the facts show that Ray Niro and Matthew McAndrews are client pilfering lawyers who tried to steal the fees of over a million dollars in a referred case," Brodsky said. "They are upset, as all thieves are, that they got caught and are being called to account. They can complain to the ARDC, the FBI, CIA, DEA, or the NAACP, it does not matter. 

"My lawsuit is based on solid detailed facts that I can prove and long established law, and I am very confident that I will prevail.”

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Organizations in this Story

Illinois Attorney Registration and Disciplinary Commission Niro McAndrews LLC