By: Daily Record Staff Reports//July 28, 2015
By: Daily Record Staff Reports//July 28, 2015//
U.S. District Court, WDNY – Legal Malpractice – Settlement Due to Negligence
Oak Forest Products, Inc. et al v. Hiscock & Barclay
Background: The plaintiff alleges legal malpractice related to the defendant’s representation of the plaintiff’s sister corporation concerning copyright and patent matters. Previously, the defendant’s motion for summary judgment was denied on the ground that a settlement in a related copyright action did not preclude the plaintiff from pursuing malpractice claims for pre-litigation conduct, especially when the settlement was caused by the firm’s underlying negligence. The defendant moved to reconsider the order on the ground that the court inserted facts not in the record.
Ruling: The District Court denied the motion. The court found that while the plaintiff did not initially insert allegations that the settlement was compelled by the malpractice, such a failure did not bar them from asserting them now. The motivation to settle from the alleged malpractice flows from the facts initially alleged by the plaintiff. The District Court noted that the alleged failure to timely provide patent infringers with actual notice is one of the primary acts of malpractice alleged by the plaintiffs and the communications between the parties demonstrate there was knowledge of the diminished potential for recovering damages in the related case.
Alexander D. Brown of the Concept Law Group and Edward R. Curtis, Jonathan Benjamin Lewis and Peter G. Herman of Tripp Scott for the plaintiffs; Kevin E. Hulslander, David R. Duflo and Karen Guyder Felter of Smith, Sovik, Kendrick & Sugnet and Monica Theresa Cronin and David Palmer Hartnett of Hinshaw & Culbertson for the defendant