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1 WILLIAM A. LAPCEVIC (SBN 238893)
DIBENEDETTO LAPCEVIC & DRAA, LLP
2 1101 Pacific Avenue, Suite 320
Santa Cruz, California 95060
3
Tel.: (831) 325-2674
4 Fax: (831) 477-7617
Email: wal@dld-law.com
5
6 Attorneys for Plaintiff and Cross-Defendant
JEFFREY F. RYAN
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO — UNLIMITED CIVIL JURISDICTION
11
JEFFREY F. RYAN Case No. 21-CIV-04391
12
13 Plaintiff, CROSS-DEFENDANT’S INDEX OF
EXHIBITS IN SUPPORT OF MOTION
14 vs. FOR SUMMARY JUDGMENT, OR, IN
THE ALTERNATIVE, SUMMARY
15 WILLIAM CARLOS LEET, et al., ADJUDICATION
16
Defendants.
17 Date: June 13, 2023
Time: 2:00 PM
18 WILLIAM CARLOS LEET, Dept: 4
19 Cross-Complainant,
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vs.
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JEFFREY F. RYAN, et al.,
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Cross-Defendants.
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25 Plaintiff/Cross-Defendant JEFFREY F. RYAN (“Ryan”) hereby submits the following
26 index of exhibits in support of Cross-Defendant’s Motion for Summary Judgment, or, in the
27 alternative, Summary Adjudication.
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{00183922;1} 1
CROSS-DEFENDANT’S INDEX OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1
Exhibit Description
2
No.
3 1 Declaration of Fred Geisler M.D. Ph.D.
4 2 Declaration of Norm Fleming
5 3 Declaration of Jeffrey Ryan, Esq.
6 4 Declaration of William Lapcevic, Esq.
5 May 1, 2017 Fee Agreement
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6 June 25, 2017 Fee Agreement
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7 March 1, 2019 Contingency Fee Agreement
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8 December 11, 2019 Email Correspondence and Invoice from Leet Law
10 June 28, 2019 Invoice from Leet Law
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11 10 August 17, 2021 Email Correspondence between Fred Geisler and
12 William Carlos Leet
13 11 Settlement Agreement from Underlying Case
12 Verified Cross-Complaint f'lled by William Carlos Leet
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13 Requests for Admission, Set One propounded on William Carlos Leet
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14 Responses of William Carlos Leet to Requests for Admission, Set One
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15 August 17, 2021 E-mail Correspondence from William Carlos Leet to
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Jeffrey F. Ryan
18 16 Civil Complaint Case No. 21-CIV-04391
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Dated: February 22, 2023 DIBENEDETTO LAPCEVIC & DRAA, LLP
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By:
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WILLIAM A. LAPCEVIC
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Attorneys for Plaintiff JEFFREY F. RYAN
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001 83922;1 2
CROSS-DEFENDANT'S INDEX OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
EXHIBIT 1
1 WILLIAM A. LAPCEVIC (SBN 238893)
DIBENEDETTO LAPCEVIC & DRAA, LLP
2
1101 Pacific Avenue, Suite 320
3 Santa Cruz, California 95060
Tel.: (831) 325-2674
4 Fax: (831) 477-7617
5 Email: wal@dld-law.com
6 Attorneys for Plaintiff JEFFREY F. RYAN
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN MATEO
10 CIVIL DIVISION
11 JEFFREY F. RYAN, ) Case No. 21-CIV-04391
)
12 Plaintiff and Cross-Defendant, ) DECLARATION OF FRED H.
) GEISLER, M.D., Ph.D., IN
13
v. ) SUPPORT OF MOTION FOR
14 ) SUMMARY JUDGMENT, OR,
WILLIAM CARLOS LEET, ) ALTERNATIVELY, SUMMARY
15 ) ADJUDICATION OF ISSUES ON
16 Defendant and Cross-Complainant. ) VERIFIED CROSS-COMPLAINT
) (C.C.P. 437c.)
17 ) Date: June 13, 2023
) Time: 2:00 PM
18 ______________________________________ ) Dept: Dept 4
19 )
) Assigned for All Purposes to Hon.
20 ) Nancy L. Fineman, Dept. 4
21
AND RELATED CROSS ACTION )
) (Notice of Motion & Motion and,
22 ) Memorandum of Points & Authorities,
) and Separate Statement filed
23 ______________________________________) Separately and Concurrently.)
24
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I, FRED H. GEISLER, M.D., Ph.D, declare that I am a resident of the State of
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Michigan, over the age of 18 years and not a party to the above-entitled action; that if called
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as a witness I could, and would, competently testify that:
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0001
1 Background
2 1. I am a board-certified neurosurgeon licensed to practice in the State of Illinois,
3 where I founded and headed the Illinois Neuro-Spine Center at Rush Copley Medical Center
4 in Aurora, IL. I am a pioneer in the field of integration of titanium wire in spinal applications,
5 and hold several patents on spinal implant devices, including cervical plates, VBR cervical
6 implants, Plage cervical spine implants, a spinal drill guide, microbeam radiation surgical
7 therapy and allograft bone grafts.
8 2. In 2005, I met a medical device salesman named Terry Johnston, with whom
9 I worked to design patented surgical devices which we then sold to Kentucky Packaging
10 Company, d.b.a., Olsen Medical Company. Later, in 2008, at Mr. Johnston’s invitation, I
11 became a founder of, investor in, and Chief Medical Officer and corporate director of
12 Rhausler, Inc., which was incorporated in California in January of that year. I not only
13 assigned valuable patents to Rhausler, for which I was to be paid a royalty, I loaned, directly
14 or through a solely owned entity, large sums of money to the company, as well as personally
15 guaranteeing a large bank loan.
16 3. Rhausler, Inc., was headquartered in San Mateo County, California, which is
17 where Terry Johnston resided. The company was intended to design, manufacture and sell
18 surgical instruments and related accessories to hospitals and individual surgeons in both the
19 United States and abroad, and while I continued my own surgical practice in the Midwest,
20 Terry Johnston ran Rhausler from its San Carlos, California offices, which he located and
21 staffed.
22 4. Initially, Rhausler appeared to be on course to meet or exceed the projections
23 that Terry Johnston had predicted in seeking my and others’ investment in the company.
24 Sales were increasing and so was the customer base, and I felt confident that my involvement
25 with Johnston and investment in Rhausler would contribute to a comfortable retirement for
26 me and my wife.
27 5. However, by 2016 I began to suspect that something was amiss. While the sales
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0002
1 seemed to have stabilized rather than continue to climb, such a pause was fairly normal with
2 new companies, but it is also appeared that the costs of running the business were increasing
3 at a rate that no longer matched the growth in sales. What’s more, I was not being paid any
4 royalties on the sales on my patented surgical devices, nor were the loans I made being
5 repaid. I therefore attempted to take a more active role in the management of Rhausler, but
6 Terry Johnston and the staff of the San Carlos office, including the company’s certified
7 public accountants and income tax return preparers, either ignored me, or actively resisted
8 my requests for information and suggestions for improvement.
9 6. By Spring, 2017, I had been in contact with other investors in Rhausler,
10 including Norman Fleming, who had retired to Arizona after a long career in the medical
11 device industry, where he, too, had met Terry Johnston. Based on what information we had
12 pieced together, it seemed that Mr. Johnston was running 2 or more other businesses out of
13 the Rhausler offices and using the Rhausler facilities and personnel to do so without
14 reimbursing the company. It also appeared that Mr. Johnston was more interested in----and
15 spent more time on---making those other businesses successful, while neglecting Rhausler
16 and its interests. I needed legal help, and I began a search for an experienced, competent,
17 and aggressive California litigator to represent me and the other Rhausler shareholders.
18 First/Initial Legal Services Agreement
19 7. In April 2017, I was referred to Jeffrey F. Ryan and contacted him about legal
20 representation on a contingency fee basis. Mr. Ryan listened to my story but advised me that
21 at the time he had too many contingency fee cases on active status and he could not afford
22 another one. He offered to refer me to other attorneys, but I persisted, and we finally
23 compromised on a modified hourly-fee/contingency fee agreement, whereby I would pay
24 one-half of the usual and customary hourly rate, and, if the litigation was successful, an
25 additional 16 and ½ percent of the gross recovery. A true copy of that initial agreement,
26 dated May 1, 2017, is appended to the Index of Exhibits as Exhibit 5.
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0003
1 8. After researching the legal issues and gathering more facts from me and other
2 Rhausler investors, Mr. Ryan and his team recommended that a lawsuit be filed in San Mateo
3 County Superior Court against Terry Johnston, his business associates in a Texas LLC of
4 which Johnston owned one-third, that Texas LLC, the CPA who was preparing the Rhausler
5 tax returns and her accounting firm, the third director of Rhausler, who was also its corporate
6 attorney, as well as representing Johnston on various matters, and several other individuals
7 and entities. Mr. Ryan explained that some of the other investors and I had direct claims
8 against the defendants, and that on behalf of Rhausler, Inc., I and other shareholders could
9 commence a shareholder derivative action in which Rhausler itself would be a nominal
10 defendant.
11 9. On June 28, 2017, our lawsuit was filed in San Mateo Superior Court, case
12 number 17CV02888. The court’s docket reflects the many motions, responses, replies and
13 counteractions, amended pleadings and motions that were filed over the succeeding 2 years,
14 beginning with hotly contested and extensively litigated motions to quash service of
15 summons by the Texas LLC and, after that motion was finally denied, by one of the 3
16 manager-members of that LLC, who himself was a Texas resident.
17 Modification of Legal Services Agreement; Approval of Fee-Splitting Agreement
18 10. Suffice to say, after nearly two years of this protracted litigation, I was out-
19 of-pocket nearly $500,000 in fees under the half-hourly-rate provision, and more than
20 $80,000 in costs that I had paid, and we were at least a year from going to trial. This was a
21 burn-rate that I knew that I could not sustain, so I contacted Mr. Ryan and implored him to
22 renegotiate the legal services agreement. Mr. Ryan agreed that we could convert the fee
23 arrangement to a straight contingency fee of 33 1/3 % if the matter settled 120 days or earlier
24 before a trial date was set, and 40% thereafter, and that against that fee would be credited
25 the amounts already paid on the half-hourly rate basis. However, one of the attorneys on his
26 team, Jennifer Hagan, declined to work on a straight contingency basis, so I was advised that
27 she would be replaced by a former partner of Mr. Ryan’s named William Carlos Leet, who
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0004
1 would split the contingency fee with Mr. Ryan. Attached to the Index of Exhibits as
2 Exhibit 7 is a true copy of that contingency fee agreement dated March 1, 2019, which I
3 executed and returned to Mr. Ryan and which I understood to be my approval of the fee-
4 splitting with Mr. Leet, on a 2/3 (Ryan) 1/3 (Leet).
5 11. It was my expectation that this new fee agreement would provide fair and
6 adequate compensation to our lead attorney, Jeffrey F. Ryan, and to those he had working
7 under his supervision. I had come to be very appreciative and grateful for Mr. Ryan’s hands-
8 on, knowledgeable, experienced and firm grip on the facts, the procedures and course of the
9 case; it never, ever occurred to me, and it was never my intention, that the fee-splitting
10 agreement with Mr. Leet would be construed to mean that all of the credits from the earlier
11 hourly fees I had paid would be deducted solely, or even primarily, from the share of our
12 lead attorney, the person doing essentially all of the legal work.
13 12. I did not have much contact with Mr. Leet during the ensuing 3 years,
14 although I frequently spoke with Mr. Ryan and others on his team daily, and quite often
15 several times per day. I was, however, confused when Mr. Leet would send me bills for his
16 services and demand to be paid, since I thought that he was working on a contingency fee
17 basis. Appended to the Index of Exhibits as Exhibit 8 is a true copy of an email exchange I
18 had with Mr. Leet in December 2019 in which I asked why I was being billed $1,000 by
19 him, and he replied that he “thought” I had been advised by Mr. Ryan that there were
20 exceptions to the contingency fee agreement. Indeed, as he mentioned in his 12/10/2019
21 email, I had been charged and had paid an earlier invoice submitted by him soon after the
22 contingency fee agreement was signed, which I had not thought about at the time. Attached
23 to the Index of Exhibits as Exhibit 9 is a true and correct copy of Mr. Leet’s 6/28/2019
24 invoice showing my payments of $3,200. But, there was never, ever any discussion, let alone
25 agreement, with Mr. Leet, or anyone else, about him being paid outside of the straight
26 contingency fee agreement; he never attempted to make that clear to me before he sent me
27 those bills. Nor did Mr. Leet or anybody else ever explain to me, let alone seek my approval,
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0005
1 of any fee-splitting agreement that deviated from what was clearly written and clearly
2 intended by the March 1, 2019 (Exhibit 7) writing, namely that after the credits were
3 deducted from the contingency fee due (either 33 1/3% or 40%), Mr. Ryan would receive
4 2/3 and Mr. Leet would receive 1/3.
5 13. Mr. Leet never, ever, contacted me to explain his interpretation of the fee-
6 splitting provisions in the fee agreement, nor did he ever send me any kind of writing
7 explaining that (a) his services were being provided on a modified part-cash, part
8 contingency basis and/or (b) the credits due from my earlier cash payments were to be
9 deducted solely, entirely from Mr. Ryan’s portion of the fee split. Had I been presented with
10 that information, I would not have agreed to the employment of Mr. Leet because I would
11 have instantly realized that under such a scheme, Mr. Ryan’s incentive to devote sufficient
12 time and effort to the case going forward would be compromised.
13 The disappearance of Mr. Leet
14 14. By the time that Mr. Leet signed on to our legal team, the operative pleading
15 had become the Fourth Amended Verified Complaint (“4AVC”), which was filed on
16 February 1, 2019, one month before the fee agreement with the fee-splitting provision. Thus,
17 by the time Mr. Leet was retained we had litigated demurrers, motions to strike, discovery
18 disputes, and engaged in both written and testimonial discovery, in addition to the motions
19 to quash I mentioned earlier.
20 15. I do recall that Mr. Leet drafted the opposition to a demurrer, and the
21 opposition to a motion for summary adjudication of issues. But even after he was retained,
22 he did not participate in any of the many depositions that were taken, nor did he make any
23 effort to help prepare me or our other witnesses for their deposition or trial testimony.
24 Indeed, from the first day of trial on November 9, 2020, until the final (and 34th day) of that
25 court trial, which was October 3, 2022, Mr. Leet never even signed on to the Zoom to
26 monitor the proceedings. He did not, therefore, examine any of the witnesses---plaintiffs’ or
27 defense—during the entire case.
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0006
1 16. I do acknowledge that Mr. Leet helped on 2 of the 8 motions in limine we
2 filed, and also helped on 1 of our oppositions to the 17 motions in limine that the defendants
3 filed. But, he did not argue any of the motions, or oppositions. In other words ALL of the
4 trial work was done by Mr. Ryan, with little or no help from Mr. Leet, who would claim that
5 the press of other cases prevented him from helping. It was because of Mr. Leet’s absence
6 from the case, his refusal, failure or inability to provide the assistance that mirrored what
7 Jennifer Hagan, the attorney he was replacing, had been doing, that I was forced to pay, out
8 of my pocket, an attorney named Mary Mock and a paralegal named Greg Rader, over
9 $100,000 to do the legal research and writing that was required before and during trial.
10 17. As our case slowly moved through the court, it was Jeffrey Ryan who at all
11 times was our all advocate; the lawyer who interfaced with the several attorneys representing
12 the several defendants, and with the court; the attorney who prepared our expert witnesses
13 after personally locating and selecting them. Finally, in Spring, 2021, it was Jeffrey Ryan
14 who vigorously and effectively negotiated a settlement with Terry Johnston’s LLC partners
15 and the LLC itself, and also with Rhausler’s CPA and her accounting firm. I was personally
16 very much put off when suddenly, after the settlement had been approved by the Court,
17 Mr. Leet suddenly resumed communicating about the case, but only to satisfy his desire to
18 learn the amount and terms of the settlement, which involved resolving both direct and
19 derivative claims. The settlement agreement provided that those defendants would pay a
20 total of $2,975,000, of which $2,250,000 would go to the individual/direct claims, and
21 $725,000 would go to the Rhausler shareholders to settle the derivative claims.
22 18. Since that settlement occurred mid-trial, plaintiffs’ attorneys were entitled to
23 a 40% contingency fee as to both direct and derivative claims, after the court approved the
24 latter, which it did. However, both direct and derivative settlement payments were to be
25 made in installments, with the individual/direct claims paid over 4 months and the derivative
26 claims paid over 4 years. This settlement was welcome for a number of reasons, including
27 the effect the infusion of capital would have on plaintiffs’ ability to continue paying the
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0007
1 bankruptcy attorneys in the District of Nevada Chapter 7 cases Terry Johnston had initiated
2 in May and June 2020.
3 19. In early or mid-August 2021, I learned from Mr. Ryan that he and Mr. Leet
4 were having a dispute over the division of the contingency fee. I was nauseated when I heard
5 that Mr. Leet was arguing that all of the credits for the money, I had paid during the time the
6 half hourly fee and part contingency fee agreement had been in effect should be deducted
7 from Mr. Ryan’s 2/3 of the contingency fee, leaving Mr. Leet’s 1/3 of the contingency
8 virtually unaffected. That is not the way the fee-split provision was written, and it is most
9 certainly not the fee-split that I intended, or that I approved.
10 20. I was so incensed by the temerity of Mr. Leet that when he wrote an email to
11 me and Norm Fleming on August 17, 2021, assuring us that his dispute with Jeff Ryan would
12 not affect our net recovery, I was compelled to tell him in no uncertain terms what I thought,
13 and that whatever he believed, one thing was certain: Mr. Leet was officially fired as our
14 attorney, even though both Norm Fleming and I believed he had abandoned the case long
15 before that date. Appended to the Index of Exhibits as Exhibit 10 is a true and correct copy
16 of my email exchange with Mr. Leet on August 17, 2021.
17 21. It may be true that the net recovery I and the other individual plaintiffs and
18 Rhausler shareholders received from that partial settlement of our lawsuit may be unaffected
19 by the dispute about the fee split, but another thing is true: the lawsuit was not over; it
20 required another year of litigation, motions and settlement discussions to winnow down the
21 causes of action and reduce the number of defendants to just one: Terry Johnston. There is
22 no way I would have entrusted my case to Mr. Leet; there is no way, in my opinion, that
23 Mr. Leet could, or even would, have tried the case to completion. Yet, his idea is to deprive
24 Mr. Ryan of the incentive or motivation to finish the case.
25 22. I repeat and emphasize that Mr. Leet never explained his version of the fee
26 split to me; never sought my approval of his version of the fee split, and I did not approve,
27 and would not have approved Mr. Leet’s fee-split version. In fact, I never approved his
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT - 1 -0008
II
DocuS\gn Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30FOA3
1 version of the contingency fee agreement whereby I would pay him cash for his court
2 appearances.
3 This Declaration is executed on the 'J.l"Qday of Y- e,~ 2023, at Petoskey,
4 Michigan. I declare under penalty of perjury under the laws of the State of California that
5 the foregoing is true and correct.
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«~-
Fred H. Geisler, M.D., Ph.D.
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Ryan v. Leet, No. 21-CJV-04391 • Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint
MSJ EXHIBIT • 1 •0009
EXHIBIT 2
DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3
1 WILLIAM A. LAPCEVIC (SBN 238893)
DIBENEDETTO LAPCEVIC & DRAA, LLP
2
1101 Pacific Avenue, Suite 320
3 Santa Cruz, California 95060
Tel.: (831) 325-2674
4 Fax: (831) 477-7617
5 Email: wal@dld-law.com
6 Attorneys for Plaintiff JEFFREY F. RYAN
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN MATEO
10 CIVIL DIVISION
11 JEFFREY F. RYAN, ) Case No. 21-CIV-04391
)
12 Plaintiff and Cross-Defendant, ) DECLARATON OF NORMAN C.
) FLEMING IN SUPPORT OF
13
v. ) MOTION FOR SUMMARY
14 ) JUDGMENT, OR, IN THE
WILLIAM CARLOS LEET, ) ALTERNATIVE, SUMMARY
15 ) ADJUDICATION OF ISSUES ON
16 Defendant and Cross-Complainant. ) VERIFIED CROSS-COMPLAINT
) (C.C.P. 437c.)
17 ) Date: June 13, 2023
) Time: 2:00 PM
18 ______________________________________ ) Dept: 4.
19 )
) Assigned for All Purposes to Hon.
20 ) Nancy L. Fineman, Dept. 4
21
AND RELATED CROSS ACTION. )
) (Notice of Motion & Motion and,
22 ) Memorandum of Points & Authorities,
) and Separate Statement filed
23 ______________________________________) Separately and Concurrently.)
24
25
I, NORMAN C. FLEMING, declare that I am a resident of Maricopa County, State of
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Arizona, over the age of 18 years and not a party to the above-entitled action; that if called
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as a witness I could, and would, competently testify that:
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint
MSJ EXHIBIT - 2 -0001
DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3
1 Background
2 1. I retired to Arizona following a 35-year successful career as a senior executive
3 in medical device design, manufacturing and sales organizations. Since March 2008, I have
4 been a holder of 40,000 shares of Rhausler, Inc., (approximately 2.15% ownership), which I
5 purchased for the sum of $2.50 a share ($100,000) in 2008 pursuant to the representations
6 made to me in the Rhausler Private Placement Memorandum prepared by Terry Johnston. I
7 am a cash investor in Rhausler, and as such, I represent the class of shareholders who were
8 duped by Terry Johnston into investing money in Rhausler through material factual
9 misrepresentations and omissions made in that private placement memorandum.
10 2. Initially, I and the other Rhausler shareholders would receive periodic reports
11 from Terry Johnston about the progress the company was making, and we would also receive
12 annual K-1 forms from the company’s CPA for use in preparing our individual income tax
13 returns. However, by 2015 those communications had become few and far between, and I
14 often had to send repeated requests for the annual income tax information.
15 3. In early 2017, I was contacted by Fred H. Geisler, M.D., Ph.D., who I knew
16 to be a Rhausler founder, a member of the board of directors, and the company’s chief
17 medical officer. I also knew of his reputation as an internationally renowned spine surgeon.
18 Dr. Geisler advised me that he was experiencing some of the same problems I was, e.g., lack
19 of communication by Terry Johnston, failure of the company’s staff and/or CPA to send
20 timely reports, including tax information. But he also informed me that he was beginning to
21 suspect that Terry Johnston was using the Rhausler office, office personnel and FDA
22 certificates of approval for the benefit of other entities that Johnston was involved in.
23 However, Dr. Geisler, like I, resided and worked in another state, whereas Rhausler and
24 Mr. Johnston were headquartered in San Mateo County, California.
25 4. As further investigation through our contacts in the medical device business
26 and elsewhere seemed to confirm our suspicions, we agreed that Dr. Geisler would take the
27 laboring oar in trying to obtain competent California legal counsel to help us. So it was that
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint
MSJ EXHIBIT - 2 -0002
DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3
1 in April 2017 Dr. Geisler advised me that he was trying to obtain the services of Jeffrey F.
2 Ryan as his counsel.
3 First/Initial Legal Services Agreement
4 1. Dr. Geisler told me that effective May 1, 2017, he had hired Mr. Ryan on a
5 modified hourly-fee/contingency fee basis, whereby he would pay one-half of Mr. Ryan’s
6 usual and customary hourly rate, and, if the litigation was successful, an additional 16 and
7 ½ percent of the gross recovery. However, after a couple of weeks of researching the legal
8 issues and gathering more facts from me, Dr. Geisler and other Rhausler investors, Mr. Ryan
9 and his team recommended that a lawsuit be filed in San Mateo County Superior Court
10 against Terry Johnston, his business associates in a Texas LLC of which Johnston owned
11 one-third, that Texas LLC, the CPA who was preparing the Rhausler tax returns and her
12 accounting firm, the third director of Rhausler, who was also its corporate attorney, as well
13 as representing Johnston on various matters, and several other individuals and entities.
14 Mr. Ryan explained that Dr. Geisler, some of the other investors and I had direct claims
15 against the defendants, and that on behalf of Rhausler, Inc., we as representatives of the
16 shareholders could commence a shareholder derivative action in which Rhausler itself would
17 be a nominal defendant.
18 2. Based on this information, I contacted Mr. Ryan about including me in his
19 representation of Dr. Geisler and the other Rhausler shareholders, with me being responsible
20 for a pro rata share of the attorney fees being paid in cash, and agreeing to the part-
21 contingency fee agreement. On June 25, 2017, I executed a written agreement to those terms
22 and conditions, a true copy of which is appended to the Index of Exhibits as Exhibit 6.
23 3. On June 28, 2017, our lawsuit was filed in San Mateo Superior Court, case
24 number 17CV02888. The court’s docket reflects the many motions, responses, replies and
25 counteractions, amended pleadings and motions that were filed over the succeeding 2 years,
26 beginning with hotly contested and extensively litigated motions to quash service of
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint
MSJ EXHIBIT - 2 -0003
DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3
1 summons by the Texas LLC and, after that motion was finally denied, by one of the 3
2 manager-members of that LLC, who himself was a Texas resident.
3 Modification of Legal Services Agreement; Approval of Fee-Splitting Agreement
4 4. Suffice to say, after nearly two years of this protracted litigation, I was out-
5 of-pocket more than $40,000 in fees under the half-hourly-rate provision, and more than
6 $6,000 in costs that I had paid, and we were at least a year from going to trial. I knew that
7 Dr. Geisler’s outlay had been significantly greater and that at this rate we would both be
8 hard-pressed to continue to fund our legal representation. I agreed with Dr. Geisler that he
9 should contact Mr. Ryan and ask him to renegotiate the legal services agreement. Mr. Ryan
10 agreed that we could convert the fee arrangement to a straight contingency fee of 33 1/3 %
11 if the matter settled 120 days or earlier before a trial date was set, and 40% thereafter, and
12 that against that fee would be credited the amounts already paid on the half-hourly rate basis.
13 However, one of the attorneys on his team, Jennifer Hagan, declined to work on a straight
14 contingency basis, so I was advised that she would be replaced by a former partner of
15 Mr. Ryan’s named William Carlos Leet, who would split the contingency fee with Mr. Ryan.
16 Attached to the Index of Exhibits as Exhibit 7 is a true copy of that contingency fee
17 agreement dated March 1, 2019, which I executed and returned to Mr. Ryan and which I
18 also understood to be my approval of the fee-splitting with Mr. Leet, on a 2/3 (Ryan) 1/3
19 (Leet).
20 5. It was my expectation that this new fee agreement would provide fair and
21 adequate compensation to our lead attorney, Jeffrey F. Ryan, and to those he had working
22 under his supervision. I had come to be very appreciative and grateful for Mr. Ryan’s hands-
23 on, knowledgeable, experienced and firm grip on the facts, the procedures and course of the
24 case; it never, ever occurred to me, and it was never my intention, that the fee-splitting
25 agreement with Mr. Leet would be construed to mean that all of the credits from the earlier
26 hourly fees Dr. Geisler and I had paid would be deducted solely, or even primarily, from the
27 share of our lead attorney, the person doing essentially all of the legal work.
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1 6. I did not have much contact with Mr. Leet during the ensuing 3 years,
2 although I frequently spoke with Mr. Ryan and others on his team daily, and was copied on
3 all email communications of a substantive nature. Mr. Leet never, ever, contacted me to
4 explain his interpretation of the fee-splitting provisions in the fee agreement, nor did he ever
5 send me any kind of writing explaining that (a) his services were being provided on a
6 modified part-cash, part contingency basis and/or (b) the credits due from my earlier cash
7 payments were to be deducted solely, entirely from Mr. Ryan’s portion of the fee split. Had
8 I been presented with that information, I would not have agreed to the employment of Mr.
9 Leet because I would have realized that under such a scheme, Mr. Ryan’s incentive to devote
10 sufficient time and effort to the case going forward would be compromised.
11 The disappearance of Mr. Leet
12 7. By the time that Mr. Leet signed on to our legal team, the operative pleading
13 had become the Fourth Amended Verified Complaint (“4AVC”), which was filed on
14 February 1, 2019, one month before the fee agreement with the fee-splitting provision. Thus,
15 by the time Mr. Leet was retained we had litigated demurrers, motions to strike, discovery
16 disputes, and engaged in both written and testimonial discovery, in addition to the motions
17 to quash I mentioned earlier.
18 8. I do recall that Mr. Leet drafted the opposition to a demurrer, and the
19 opposition to a motion for summary adjudication of issues. I also believe that he drafted, or
20 contributed to the drafting of one of the two, or three mediation statements that we submitted.
21 But even after he was retained, he did not participate in any of the many depositions that
22 were taken, nor did he make any effort to help prepare me or our other witnesses for their
23 deposition or trial testimony. Indeed, from the first day of trial on November 9, 2020, until
24 the final (and 34th day) of that court trial, which was October 3, 2022, Mr. Leet never even
25 signed on to the Zoom to monitor the proceedings. He did not, therefore, examine any of the
26 witnesses---plaintiffs’ or defense—during the entire case.
27
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint
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1 9. I do acknowledge that Mr. Leet helped on 2 of the 8 motions in limine we
2 filed, and also helped on 1 of our oppositions to the 17 motions in limine that the defendants
3 filed. But he did not argue any of the motions, or oppositions. In other words, ALL of the
4 trial work was done by Mr. Ryan, with little or no help from Mr. Leet, who would claim that
5 the press of other cases prevented him from helping.
6 10. As our case moved through the court, it was Jeffrey Ryan who always was our
7 all advocate; the lawyer who interfaced with the several attorneys representing the several
8 defendants, and with the court; the attorney who prepared our expert witnesses after
9 personally locating and selecting them. Finally, in Spring, 2021, it was Jeffrey Ryan who
10 vigorously and effectively negotiated a settlement with Terry Johnston’s LLC partners and
11 the LLC itself, and also with Rhausler’s CPA and her accounting firm. I was personally very
12 much put off when suddenly, after the settlement had been approved by the Court, Mr. Leet
13 suddenly resumed communicating about the case, but only to satisfy his desire to learn the
14 amount and terms of the settlement, which involved resolving both direct and derivative
15 claims. The settlement agreement provided that those defendants would pay a total of
16 $2,975,000, of which $2,250,000 would go to the individual/direct claims, and $725,000
17 would go to the Rhausler shareholders to settle the derivative claims.
18 11. Since that settlement occurred mid-trial, plaintiffs’ attorneys were entitled to
19 a 40% contingency fee as to both direct and derivative claims, after the court approved the
20 latter, which it did. However, both direct and derivative settlement payments were to be
21 made in installments, with the individual/direct claims paid over 4 months and the derivative
22 claims paid over 4 years. This settlement was welcome for a number of reasons, including
23 the effect the infusion of capital would have on plaintiffs’ ability to continue paying the
24 bankruptcy attorneys in the District of Nevada Chapter 7 cases Terry Johnston had initiated
25 in May and June 2020, as well as help defray the on-going court costs.
26 12. In early or mid-August 2021, I learned from Mr. Ryan that he and Mr. Leet
27 were having a dispute over the division of the contingency fee. I was disgusted when I heard
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Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint
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1 that Mr. Leet was arguing that all of the credits for the money Dr. Geisler and I had paid
2 during the time the half hourly fee and part contingency fee agreement had been in effect
3 should be deducted from Mr. Ryan’s 2/3 of the contingency fee, leaving Mr. Leet’s 1/3 of
4 the contingency virtually unaffected. That is not the way the fee-split provision was written,
5 and it is most certainly not the fee-split that I intended, or that I approved.
6 13. I was so incensed by what Mr. Leet was trying to do that I first sent an email
7 to Greg Rader with copies of the total of 6 emails I had received about the case from Mr. Leet
8 during the entire time he was supposed to acting as our attorney, and noting that, “I didn’t
9 even think or know that he was in any way involved in our case beyond that brief period in
10 2019.”
11 14. I also talked with Dr. Geisler about the email that Mr. Leet had sent to both of
12 us earlier that day assuring us that his dispute with Jeff Ryan would not affect our net
13 recovery. Dr. Geisler and I agreed that we should advise Mr. Leet, in no uncertain terms,
14 how dismayed we were about his position, and make clear that despite what he believed,
15 Mr. Leet was officially fired as our attorney, even though both Dr. Geisler and I believed he
16 had abandoned the case long before that date. Appended to the Index of Exhibits as
17 Exhibit 10 is a true copy of the email exchange Dr. Geisler had with Mr. Leet on August
18 17, 2021, which I approved in advance and which I was cc’d.
19 15. It may be true that the net recovery I and the other individual plaintiffs and
20 Rhausler shareholders received from that partial settlement of our lawsuit may be unaffected
21 by the dispute about the fee split, but another thing is true: the lawsuit was not over; it
22 required another year of litigation, motions and settlement discussions to winnow down the
23 causes of action and reduce the number of defendants to just one: Terry Johnston. There is
24 no way I would have entrusted my case to Mr. Leet; there is no way, in my opinion, that
25 Mr. Leet could, or even would, have tried the case to completion. Yet, his idea is to deprive
26 Mr. Ryan of the incentive or motivation to finish the case.
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1 16. I repeat and emphasize that Mr. Leet never explained his version of the fee
2 split to me; never sought my approval of his version of the fee split, and I did not approve,
3 and would not have approved Mr. Leet’s fee-split version. It goes without saying that
4 Mr. Leet never presented his version of the fee-split in writing to me, or asked me to approve
5 it by signing any paper.
22 February
6 This Declaration is executed on the ___ day of _________ 2023, at Scottsdale,
7 Arizona. I declare under penalty of perjury under the laws of the State of California that the
8 foregoing is true and correct.
9 ______________________________
10 Norman C. Fleming
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1 WILLIAM A. LAPCEVIC (SBN 238893) DIBENEDETTO LAPCEVIC & DRAA, LLP 2 1101 Pacific Avenue, Suite 320 Santa Cruz, California 95060 3 Tel.: (831) 325-2674 4 Fax: (831) 477-7617 Email: wal@dld-law.com 5 6 Attorneys for Plaintiff and Cross-Defendant JEFFREY F. RYAN 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO — UNLIMITED CIVIL JURISDICTION 11 JEFFREY F. RYAN Case No. 21-CIV-04391 12 13 Plaintiff, CROSS-DEFENDANT’S INDEX OF EXHIBITS IN SUPPORT OF MOTION 14 vs. FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY 15 WILLIAM CARLOS LEET, et al., ADJUDICATION 16 Defendants. 17 Date: June 13, 2023 Time: 2:00 PM 18 WILLIAM CARLOS LEET, Dept: 4 19 Cross-Complainant, 20 vs. 21 JEFFREY F. RYAN, et al., 22 Cross-Defendants. 23 24 25 Plaintiff/Cross-Defendant JEFFREY F. RYAN (“Ryan”) hereby submits the following 26 index of exhibits in support of Cross-Defendant’s Motion for Summary Judgment, or, in the 27 alternative, Summary Adjudication. 28 {00183922;1} 1 CROSS-DEFENDANT’S INDEX OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Exhibit Description 2 No. 3 1 Declaration of Fred Geisler M.D. Ph.D. 4 2 Declaration of Norm Fleming 5 3 Declaration of Jeffrey Ryan, Esq. 6 4 Declaration of William Lapcevic, Esq. 5 May 1, 2017 Fee Agreement 7 6 June 25, 2017 Fee Agreement 8 7 March 1, 2019 Contingency Fee Agreement 9 8 December 11, 2019 Email Correspondence and Invoice from Leet Law 10 June 28, 2019 Invoice from Leet Law 9 11 10 August 17, 2021 Email Correspondence between Fred Geisler and 12 William Carlos Leet 13 11 Settlement Agreement from Underlying Case 12 Verified Cross-Complaint f'lled by William Carlos Leet 14 13 Requests for Admission, Set One propounded on William Carlos Leet 15 14 Responses of William Carlos Leet to Requests for Admission, Set One 16 15 August 17, 2021 E-mail Correspondence from William Carlos Leet to 17 Jeffrey F. Ryan 18 16 Civil Complaint Case No. 21-CIV-04391 19 20 Dated: February 22, 2023 DIBENEDETTO LAPCEVIC & DRAA, LLP 21 22 23 By: 24 WILLIAM A. LAPCEVIC 25 Attorneys for Plaintiff JEFFREY F. RYAN 26 27 28 001 83922;1 2 CROSS-DEFENDANT'S INDEX OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION EXHIBIT 1 1 WILLIAM A. LAPCEVIC (SBN 238893) DIBENEDETTO LAPCEVIC & DRAA, LLP 2 1101 Pacific Avenue, Suite 320 3 Santa Cruz, California 95060 Tel.: (831) 325-2674 4 Fax: (831) 477-7617 5 Email: wal@dld-law.com 6 Attorneys for Plaintiff JEFFREY F. RYAN 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN MATEO 10 CIVIL DIVISION 11 JEFFREY F. RYAN, ) Case No. 21-CIV-04391 ) 12 Plaintiff and Cross-Defendant, ) DECLARATION OF FRED H. ) GEISLER, M.D., Ph.D., IN 13 v. ) SUPPORT OF MOTION FOR 14 ) SUMMARY JUDGMENT, OR, WILLIAM CARLOS LEET, ) ALTERNATIVELY, SUMMARY 15 ) ADJUDICATION OF ISSUES ON 16 Defendant and Cross-Complainant. ) VERIFIED CROSS-COMPLAINT ) (C.C.P. 437c.) 17 ) Date: June 13, 2023 ) Time: 2:00 PM 18 ______________________________________ ) Dept: Dept 4 19 ) ) Assigned for All Purposes to Hon. 20 ) Nancy L. Fineman, Dept. 4 21 AND RELATED CROSS ACTION ) ) (Notice of Motion & Motion and, 22 ) Memorandum of Points & Authorities, ) and Separate Statement filed 23 ______________________________________) Separately and Concurrently.) 24 25 I, FRED H. GEISLER, M.D., Ph.D, declare that I am a resident of the State of 26 Michigan, over the age of 18 years and not a party to the above-entitled action; that if called 27 as a witness I could, and would, competently testify that: 28 1 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0001 1 Background 2 1. I am a board-certified neurosurgeon licensed to practice in the State of Illinois, 3 where I founded and headed the Illinois Neuro-Spine Center at Rush Copley Medical Center 4 in Aurora, IL. I am a pioneer in the field of integration of titanium wire in spinal applications, 5 and hold several patents on spinal implant devices, including cervical plates, VBR cervical 6 implants, Plage cervical spine implants, a spinal drill guide, microbeam radiation surgical 7 therapy and allograft bone grafts. 8 2. In 2005, I met a medical device salesman named Terry Johnston, with whom 9 I worked to design patented surgical devices which we then sold to Kentucky Packaging 10 Company, d.b.a., Olsen Medical Company. Later, in 2008, at Mr. Johnston’s invitation, I 11 became a founder of, investor in, and Chief Medical Officer and corporate director of 12 Rhausler, Inc., which was incorporated in California in January of that year. I not only 13 assigned valuable patents to Rhausler, for which I was to be paid a royalty, I loaned, directly 14 or through a solely owned entity, large sums of money to the company, as well as personally 15 guaranteeing a large bank loan. 16 3. Rhausler, Inc., was headquartered in San Mateo County, California, which is 17 where Terry Johnston resided. The company was intended to design, manufacture and sell 18 surgical instruments and related accessories to hospitals and individual surgeons in both the 19 United States and abroad, and while I continued my own surgical practice in the Midwest, 20 Terry Johnston ran Rhausler from its San Carlos, California offices, which he located and 21 staffed. 22 4. Initially, Rhausler appeared to be on course to meet or exceed the projections 23 that Terry Johnston had predicted in seeking my and others’ investment in the company. 24 Sales were increasing and so was the customer base, and I felt confident that my involvement 25 with Johnston and investment in Rhausler would contribute to a comfortable retirement for 26 me and my wife. 27 5. However, by 2016 I began to suspect that something was amiss. While the sales 28 2 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0002 1 seemed to have stabilized rather than continue to climb, such a pause was fairly normal with 2 new companies, but it is also appeared that the costs of running the business were increasing 3 at a rate that no longer matched the growth in sales. What’s more, I was not being paid any 4 royalties on the sales on my patented surgical devices, nor were the loans I made being 5 repaid. I therefore attempted to take a more active role in the management of Rhausler, but 6 Terry Johnston and the staff of the San Carlos office, including the company’s certified 7 public accountants and income tax return preparers, either ignored me, or actively resisted 8 my requests for information and suggestions for improvement. 9 6. By Spring, 2017, I had been in contact with other investors in Rhausler, 10 including Norman Fleming, who had retired to Arizona after a long career in the medical 11 device industry, where he, too, had met Terry Johnston. Based on what information we had 12 pieced together, it seemed that Mr. Johnston was running 2 or more other businesses out of 13 the Rhausler offices and using the Rhausler facilities and personnel to do so without 14 reimbursing the company. It also appeared that Mr. Johnston was more interested in----and 15 spent more time on---making those other businesses successful, while neglecting Rhausler 16 and its interests. I needed legal help, and I began a search for an experienced, competent, 17 and aggressive California litigator to represent me and the other Rhausler shareholders. 18 First/Initial Legal Services Agreement 19 7. In April 2017, I was referred to Jeffrey F. Ryan and contacted him about legal 20 representation on a contingency fee basis. Mr. Ryan listened to my story but advised me that 21 at the time he had too many contingency fee cases on active status and he could not afford 22 another one. He offered to refer me to other attorneys, but I persisted, and we finally 23 compromised on a modified hourly-fee/contingency fee agreement, whereby I would pay 24 one-half of the usual and customary hourly rate, and, if the litigation was successful, an 25 additional 16 and ½ percent of the gross recovery. A true copy of that initial agreement, 26 dated May 1, 2017, is appended to the Index of Exhibits as Exhibit 5. 27 28 3 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0003 1 8. After researching the legal issues and gathering more facts from me and other 2 Rhausler investors, Mr. Ryan and his team recommended that a lawsuit be filed in San Mateo 3 County Superior Court against Terry Johnston, his business associates in a Texas LLC of 4 which Johnston owned one-third, that Texas LLC, the CPA who was preparing the Rhausler 5 tax returns and her accounting firm, the third director of Rhausler, who was also its corporate 6 attorney, as well as representing Johnston on various matters, and several other individuals 7 and entities. Mr. Ryan explained that some of the other investors and I had direct claims 8 against the defendants, and that on behalf of Rhausler, Inc., I and other shareholders could 9 commence a shareholder derivative action in which Rhausler itself would be a nominal 10 defendant. 11 9. On June 28, 2017, our lawsuit was filed in San Mateo Superior Court, case 12 number 17CV02888. The court’s docket reflects the many motions, responses, replies and 13 counteractions, amended pleadings and motions that were filed over the succeeding 2 years, 14 beginning with hotly contested and extensively litigated motions to quash service of 15 summons by the Texas LLC and, after that motion was finally denied, by one of the 3 16 manager-members of that LLC, who himself was a Texas resident. 17 Modification of Legal Services Agreement; Approval of Fee-Splitting Agreement 18 10. Suffice to say, after nearly two years of this protracted litigation, I was out- 19 of-pocket nearly $500,000 in fees under the half-hourly-rate provision, and more than 20 $80,000 in costs that I had paid, and we were at least a year from going to trial. This was a 21 burn-rate that I knew that I could not sustain, so I contacted Mr. Ryan and implored him to 22 renegotiate the legal services agreement. Mr. Ryan agreed that we could convert the fee 23 arrangement to a straight contingency fee of 33 1/3 % if the matter settled 120 days or earlier 24 before a trial date was set, and 40% thereafter, and that against that fee would be credited 25 the amounts already paid on the half-hourly rate basis. However, one of the attorneys on his 26 team, Jennifer Hagan, declined to work on a straight contingency basis, so I was advised that 27 she would be replaced by a former partner of Mr. Ryan’s named William Carlos Leet, who 28 4 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0004 1 would split the contingency fee with Mr. Ryan. Attached to the Index of Exhibits as 2 Exhibit 7 is a true copy of that contingency fee agreement dated March 1, 2019, which I 3 executed and returned to Mr. Ryan and which I understood to be my approval of the fee- 4 splitting with Mr. Leet, on a 2/3 (Ryan) 1/3 (Leet). 5 11. It was my expectation that this new fee agreement would provide fair and 6 adequate compensation to our lead attorney, Jeffrey F. Ryan, and to those he had working 7 under his supervision. I had come to be very appreciative and grateful for Mr. Ryan’s hands- 8 on, knowledgeable, experienced and firm grip on the facts, the procedures and course of the 9 case; it never, ever occurred to me, and it was never my intention, that the fee-splitting 10 agreement with Mr. Leet would be construed to mean that all of the credits from the earlier 11 hourly fees I had paid would be deducted solely, or even primarily, from the share of our 12 lead attorney, the person doing essentially all of the legal work. 13 12. I did not have much contact with Mr. Leet during the ensuing 3 years, 14 although I frequently spoke with Mr. Ryan and others on his team daily, and quite often 15 several times per day. I was, however, confused when Mr. Leet would send me bills for his 16 services and demand to be paid, since I thought that he was working on a contingency fee 17 basis. Appended to the Index of Exhibits as Exhibit 8 is a true copy of an email exchange I 18 had with Mr. Leet in December 2019 in which I asked why I was being billed $1,000 by 19 him, and he replied that he “thought” I had been advised by Mr. Ryan that there were 20 exceptions to the contingency fee agreement. Indeed, as he mentioned in his 12/10/2019 21 email, I had been charged and had paid an earlier invoice submitted by him soon after the 22 contingency fee agreement was signed, which I had not thought about at the time. Attached 23 to the Index of Exhibits as Exhibit 9 is a true and correct copy of Mr. Leet’s 6/28/2019 24 invoice showing my payments of $3,200. But, there was never, ever any discussion, let alone 25 agreement, with Mr. Leet, or anyone else, about him being paid outside of the straight 26 contingency fee agreement; he never attempted to make that clear to me before he sent me 27 those bills. Nor did Mr. Leet or anybody else ever explain to me, let alone seek my approval, 28 5 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0005 1 of any fee-splitting agreement that deviated from what was clearly written and clearly 2 intended by the March 1, 2019 (Exhibit 7) writing, namely that after the credits were 3 deducted from the contingency fee due (either 33 1/3% or 40%), Mr. Ryan would receive 4 2/3 and Mr. Leet would receive 1/3. 5 13. Mr. Leet never, ever, contacted me to explain his interpretation of the fee- 6 splitting provisions in the fee agreement, nor did he ever send me any kind of writing 7 explaining that (a) his services were being provided on a modified part-cash, part 8 contingency basis and/or (b) the credits due from my earlier cash payments were to be 9 deducted solely, entirely from Mr. Ryan’s portion of the fee split. Had I been presented with 10 that information, I would not have agreed to the employment of Mr. Leet because I would 11 have instantly realized that under such a scheme, Mr. Ryan’s incentive to devote sufficient 12 time and effort to the case going forward would be compromised. 13 The disappearance of Mr. Leet 14 14. By the time that Mr. Leet signed on to our legal team, the operative pleading 15 had become the Fourth Amended Verified Complaint (“4AVC”), which was filed on 16 February 1, 2019, one month before the fee agreement with the fee-splitting provision. Thus, 17 by the time Mr. Leet was retained we had litigated demurrers, motions to strike, discovery 18 disputes, and engaged in both written and testimonial discovery, in addition to the motions 19 to quash I mentioned earlier. 20 15. I do recall that Mr. Leet drafted the opposition to a demurrer, and the 21 opposition to a motion for summary adjudication of issues. But even after he was retained, 22 he did not participate in any of the many depositions that were taken, nor did he make any 23 effort to help prepare me or our other witnesses for their deposition or trial testimony. 24 Indeed, from the first day of trial on November 9, 2020, until the final (and 34th day) of that 25 court trial, which was October 3, 2022, Mr. Leet never even signed on to the Zoom to 26 monitor the proceedings. He did not, therefore, examine any of the witnesses---plaintiffs’ or 27 defense—during the entire case. 28 6 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0006 1 16. I do acknowledge that Mr. Leet helped on 2 of the 8 motions in limine we 2 filed, and also helped on 1 of our oppositions to the 17 motions in limine that the defendants 3 filed. But, he did not argue any of the motions, or oppositions. In other words ALL of the 4 trial work was done by Mr. Ryan, with little or no help from Mr. Leet, who would claim that 5 the press of other cases prevented him from helping. It was because of Mr. Leet’s absence 6 from the case, his refusal, failure or inability to provide the assistance that mirrored what 7 Jennifer Hagan, the attorney he was replacing, had been doing, that I was forced to pay, out 8 of my pocket, an attorney named Mary Mock and a paralegal named Greg Rader, over 9 $100,000 to do the legal research and writing that was required before and during trial. 10 17. As our case slowly moved through the court, it was Jeffrey Ryan who at all 11 times was our all advocate; the lawyer who interfaced with the several attorneys representing 12 the several defendants, and with the court; the attorney who prepared our expert witnesses 13 after personally locating and selecting them. Finally, in Spring, 2021, it was Jeffrey Ryan 14 who vigorously and effectively negotiated a settlement with Terry Johnston’s LLC partners 15 and the LLC itself, and also with Rhausler’s CPA and her accounting firm. I was personally 16 very much put off when suddenly, after the settlement had been approved by the Court, 17 Mr. Leet suddenly resumed communicating about the case, but only to satisfy his desire to 18 learn the amount and terms of the settlement, which involved resolving both direct and 19 derivative claims. The settlement agreement provided that those defendants would pay a 20 total of $2,975,000, of which $2,250,000 would go to the individual/direct claims, and 21 $725,000 would go to the Rhausler shareholders to settle the derivative claims. 22 18. Since that settlement occurred mid-trial, plaintiffs’ attorneys were entitled to 23 a 40% contingency fee as to both direct and derivative claims, after the court approved the 24 latter, which it did. However, both direct and derivative settlement payments were to be 25 made in installments, with the individual/direct claims paid over 4 months and the derivative 26 claims paid over 4 years. This settlement was welcome for a number of reasons, including 27 the effect the infusion of capital would have on plaintiffs’ ability to continue paying the 28 7 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0007 1 bankruptcy attorneys in the District of Nevada Chapter 7 cases Terry Johnston had initiated 2 in May and June 2020. 3 19. In early or mid-August 2021, I learned from Mr. Ryan that he and Mr. Leet 4 were having a dispute over the division of the contingency fee. I was nauseated when I heard 5 that Mr. Leet was arguing that all of the credits for the money, I had paid during the time the 6 half hourly fee and part contingency fee agreement had been in effect should be deducted 7 from Mr. Ryan’s 2/3 of the contingency fee, leaving Mr. Leet’s 1/3 of the contingency 8 virtually unaffected. That is not the way the fee-split provision was written, and it is most 9 certainly not the fee-split that I intended, or that I approved. 10 20. I was so incensed by the temerity of Mr. Leet that when he wrote an email to 11 me and Norm Fleming on August 17, 2021, assuring us that his dispute with Jeff Ryan would 12 not affect our net recovery, I was compelled to tell him in no uncertain terms what I thought, 13 and that whatever he believed, one thing was certain: Mr. Leet was officially fired as our 14 attorney, even though both Norm Fleming and I believed he had abandoned the case long 15 before that date. Appended to the Index of Exhibits as Exhibit 10 is a true and correct copy 16 of my email exchange with Mr. Leet on August 17, 2021. 17 21. It may be true that the net recovery I and the other individual plaintiffs and 18 Rhausler shareholders received from that partial settlement of our lawsuit may be unaffected 19 by the dispute about the fee split, but another thing is true: the lawsuit was not over; it 20 required another year of litigation, motions and settlement discussions to winnow down the 21 causes of action and reduce the number of defendants to just one: Terry Johnston. There is 22 no way I would have entrusted my case to Mr. Leet; there is no way, in my opinion, that 23 Mr. Leet could, or even would, have tried the case to completion. Yet, his idea is to deprive 24 Mr. Ryan of the incentive or motivation to finish the case. 25 22. I repeat and emphasize that Mr. Leet never explained his version of the fee 26 split to me; never sought my approval of his version of the fee split, and I did not approve, 27 and would not have approved Mr. Leet’s fee-split version. In fact, I never approved his 28 8 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT - 1 -0008 II DocuS\gn Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30FOA3 1 version of the contingency fee agreement whereby I would pay him cash for his court 2 appearances. 3 This Declaration is executed on the 'J.l"Qday of Y- e,~ 2023, at Petoskey, 4 Michigan. I declare under penalty of perjury under the laws of the State of California that 5 the foregoing is true and correct. 6 7 8 «~- Fred H. Geisler, M.D., Ph.D. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Ryan v. Leet, No. 21-CJV-04391 • Declaration of Fred H. Geisler, M.D., Ph.D., ISO MSJ Cross-Complaint MSJ EXHIBIT • 1 •0009 EXHIBIT 2 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 WILLIAM A. LAPCEVIC (SBN 238893) DIBENEDETTO LAPCEVIC & DRAA, LLP 2 1101 Pacific Avenue, Suite 320 3 Santa Cruz, California 95060 Tel.: (831) 325-2674 4 Fax: (831) 477-7617 5 Email: wal@dld-law.com 6 Attorneys for Plaintiff JEFFREY F. RYAN 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN MATEO 10 CIVIL DIVISION 11 JEFFREY F. RYAN, ) Case No. 21-CIV-04391 ) 12 Plaintiff and Cross-Defendant, ) DECLARATON OF NORMAN C. ) FLEMING IN SUPPORT OF 13 v. ) MOTION FOR SUMMARY 14 ) JUDGMENT, OR, IN THE WILLIAM CARLOS LEET, ) ALTERNATIVE, SUMMARY 15 ) ADJUDICATION OF ISSUES ON 16 Defendant and Cross-Complainant. ) VERIFIED CROSS-COMPLAINT ) (C.C.P. 437c.) 17 ) Date: June 13, 2023 ) Time: 2:00 PM 18 ______________________________________ ) Dept: 4. 19 ) ) Assigned for All Purposes to Hon. 20 ) Nancy L. Fineman, Dept. 4 21 AND RELATED CROSS ACTION. ) ) (Notice of Motion & Motion and, 22 ) Memorandum of Points & Authorities, ) and Separate Statement filed 23 ______________________________________) Separately and Concurrently.) 24 25 I, NORMAN C. FLEMING, declare that I am a resident of Maricopa County, State of 26 Arizona, over the age of 18 years and not a party to the above-entitled action; that if called 27 as a witness I could, and would, competently testify that: 28 1 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint MSJ EXHIBIT - 2 -0001 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 Background 2 1. I retired to Arizona following a 35-year successful career as a senior executive 3 in medical device design, manufacturing and sales organizations. Since March 2008, I have 4 been a holder of 40,000 shares of Rhausler, Inc., (approximately 2.15% ownership), which I 5 purchased for the sum of $2.50 a share ($100,000) in 2008 pursuant to the representations 6 made to me in the Rhausler Private Placement Memorandum prepared by Terry Johnston. I 7 am a cash investor in Rhausler, and as such, I represent the class of shareholders who were 8 duped by Terry Johnston into investing money in Rhausler through material factual 9 misrepresentations and omissions made in that private placement memorandum. 10 2. Initially, I and the other Rhausler shareholders would receive periodic reports 11 from Terry Johnston about the progress the company was making, and we would also receive 12 annual K-1 forms from the company’s CPA for use in preparing our individual income tax 13 returns. However, by 2015 those communications had become few and far between, and I 14 often had to send repeated requests for the annual income tax information. 15 3. In early 2017, I was contacted by Fred H. Geisler, M.D., Ph.D., who I knew 16 to be a Rhausler founder, a member of the board of directors, and the company’s chief 17 medical officer. I also knew of his reputation as an internationally renowned spine surgeon. 18 Dr. Geisler advised me that he was experiencing some of the same problems I was, e.g., lack 19 of communication by Terry Johnston, failure of the company’s staff and/or CPA to send 20 timely reports, including tax information. But he also informed me that he was beginning to 21 suspect that Terry Johnston was using the Rhausler office, office personnel and FDA 22 certificates of approval for the benefit of other entities that Johnston was involved in. 23 However, Dr. Geisler, like I, resided and worked in another state, whereas Rhausler and 24 Mr. Johnston were headquartered in San Mateo County, California. 25 4. As further investigation through our contacts in the medical device business 26 and elsewhere seemed to confirm our suspicions, we agreed that Dr. Geisler would take the 27 laboring oar in trying to obtain competent California legal counsel to help us. So it was that 28 2 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint MSJ EXHIBIT - 2 -0002 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 in April 2017 Dr. Geisler advised me that he was trying to obtain the services of Jeffrey F. 2 Ryan as his counsel. 3 First/Initial Legal Services Agreement 4 1. Dr. Geisler told me that effective May 1, 2017, he had hired Mr. Ryan on a 5 modified hourly-fee/contingency fee basis, whereby he would pay one-half of Mr. Ryan’s 6 usual and customary hourly rate, and, if the litigation was successful, an additional 16 and 7 ½ percent of the gross recovery. However, after a couple of weeks of researching the legal 8 issues and gathering more facts from me, Dr. Geisler and other Rhausler investors, Mr. Ryan 9 and his team recommended that a lawsuit be filed in San Mateo County Superior Court 10 against Terry Johnston, his business associates in a Texas LLC of which Johnston owned 11 one-third, that Texas LLC, the CPA who was preparing the Rhausler tax returns and her 12 accounting firm, the third director of Rhausler, who was also its corporate attorney, as well 13 as representing Johnston on various matters, and several other individuals and entities. 14 Mr. Ryan explained that Dr. Geisler, some of the other investors and I had direct claims 15 against the defendants, and that on behalf of Rhausler, Inc., we as representatives of the 16 shareholders could commence a shareholder derivative action in which Rhausler itself would 17 be a nominal defendant. 18 2. Based on this information, I contacted Mr. Ryan about including me in his 19 representation of Dr. Geisler and the other Rhausler shareholders, with me being responsible 20 for a pro rata share of the attorney fees being paid in cash, and agreeing to the part- 21 contingency fee agreement. On June 25, 2017, I executed a written agreement to those terms 22 and conditions, a true copy of which is appended to the Index of Exhibits as Exhibit 6. 23 3. On June 28, 2017, our lawsuit was filed in San Mateo Superior Court, case 24 number 17CV02888. The court’s docket reflects the many motions, responses, replies and 25 counteractions, amended pleadings and motions that were filed over the succeeding 2 years, 26 beginning with hotly contested and extensively litigated motions to quash service of 27 28 3 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint MSJ EXHIBIT - 2 -0003 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 summons by the Texas LLC and, after that motion was finally denied, by one of the 3 2 manager-members of that LLC, who himself was a Texas resident. 3 Modification of Legal Services Agreement; Approval of Fee-Splitting Agreement 4 4. Suffice to say, after nearly two years of this protracted litigation, I was out- 5 of-pocket more than $40,000 in fees under the half-hourly-rate provision, and more than 6 $6,000 in costs that I had paid, and we were at least a year from going to trial. I knew that 7 Dr. Geisler’s outlay had been significantly greater and that at this rate we would both be 8 hard-pressed to continue to fund our legal representation. I agreed with Dr. Geisler that he 9 should contact Mr. Ryan and ask him to renegotiate the legal services agreement. Mr. Ryan 10 agreed that we could convert the fee arrangement to a straight contingency fee of 33 1/3 % 11 if the matter settled 120 days or earlier before a trial date was set, and 40% thereafter, and 12 that against that fee would be credited the amounts already paid on the half-hourly rate basis. 13 However, one of the attorneys on his team, Jennifer Hagan, declined to work on a straight 14 contingency basis, so I was advised that she would be replaced by a former partner of 15 Mr. Ryan’s named William Carlos Leet, who would split the contingency fee with Mr. Ryan. 16 Attached to the Index of Exhibits as Exhibit 7 is a true copy of that contingency fee 17 agreement dated March 1, 2019, which I executed and returned to Mr. Ryan and which I 18 also understood to be my approval of the fee-splitting with Mr. Leet, on a 2/3 (Ryan) 1/3 19 (Leet). 20 5. It was my expectation that this new fee agreement would provide fair and 21 adequate compensation to our lead attorney, Jeffrey F. Ryan, and to those he had working 22 under his supervision. I had come to be very appreciative and grateful for Mr. Ryan’s hands- 23 on, knowledgeable, experienced and firm grip on the facts, the procedures and course of the 24 case; it never, ever occurred to me, and it was never my intention, that the fee-splitting 25 agreement with Mr. Leet would be construed to mean that all of the credits from the earlier 26 hourly fees Dr. Geisler and I had paid would be deducted solely, or even primarily, from the 27 share of our lead attorney, the person doing essentially all of the legal work. 28 4 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint MSJ EXHIBIT - 2 -0004 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 6. I did not have much contact with Mr. Leet during the ensuing 3 years, 2 although I frequently spoke with Mr. Ryan and others on his team daily, and was copied on 3 all email communications of a substantive nature. Mr. Leet never, ever, contacted me to 4 explain his interpretation of the fee-splitting provisions in the fee agreement, nor did he ever 5 send me any kind of writing explaining that (a) his services were being provided on a 6 modified part-cash, part contingency basis and/or (b) the credits due from my earlier cash 7 payments were to be deducted solely, entirely from Mr. Ryan’s portion of the fee split. Had 8 I been presented with that information, I would not have agreed to the employment of Mr. 9 Leet because I would have realized that under such a scheme, Mr. Ryan’s incentive to devote 10 sufficient time and effort to the case going forward would be compromised. 11 The disappearance of Mr. Leet 12 7. By the time that Mr. Leet signed on to our legal team, the operative pleading 13 had become the Fourth Amended Verified Complaint (“4AVC”), which was filed on 14 February 1, 2019, one month before the fee agreement with the fee-splitting provision. Thus, 15 by the time Mr. Leet was retained we had litigated demurrers, motions to strike, discovery 16 disputes, and engaged in both written and testimonial discovery, in addition to the motions 17 to quash I mentioned earlier. 18 8. I do recall that Mr. Leet drafted the opposition to a demurrer, and the 19 opposition to a motion for summary adjudication of issues. I also believe that he drafted, or 20 contributed to the drafting of one of the two, or three mediation statements that we submitted. 21 But even after he was retained, he did not participate in any of the many depositions that 22 were taken, nor did he make any effort to help prepare me or our other witnesses for their 23 deposition or trial testimony. Indeed, from the first day of trial on November 9, 2020, until 24 the final (and 34th day) of that court trial, which was October 3, 2022, Mr. Leet never even 25 signed on to the Zoom to monitor the proceedings. He did not, therefore, examine any of the 26 witnesses---plaintiffs’ or defense—during the entire case. 27 28 5 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint MSJ EXHIBIT - 2 -0005 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 9. I do acknowledge that Mr. Leet helped on 2 of the 8 motions in limine we 2 filed, and also helped on 1 of our oppositions to the 17 motions in limine that the defendants 3 filed. But he did not argue any of the motions, or oppositions. In other words, ALL of the 4 trial work was done by Mr. Ryan, with little or no help from Mr. Leet, who would claim that 5 the press of other cases prevented him from helping. 6 10. As our case moved through the court, it was Jeffrey Ryan who always was our 7 all advocate; the lawyer who interfaced with the several attorneys representing the several 8 defendants, and with the court; the attorney who prepared our expert witnesses after 9 personally locating and selecting them. Finally, in Spring, 2021, it was Jeffrey Ryan who 10 vigorously and effectively negotiated a settlement with Terry Johnston’s LLC partners and 11 the LLC itself, and also with Rhausler’s CPA and her accounting firm. I was personally very 12 much put off when suddenly, after the settlement had been approved by the Court, Mr. Leet 13 suddenly resumed communicating about the case, but only to satisfy his desire to learn the 14 amount and terms of the settlement, which involved resolving both direct and derivative 15 claims. The settlement agreement provided that those defendants would pay a total of 16 $2,975,000, of which $2,250,000 would go to the individual/direct claims, and $725,000 17 would go to the Rhausler shareholders to settle the derivative claims. 18 11. Since that settlement occurred mid-trial, plaintiffs’ attorneys were entitled to 19 a 40% contingency fee as to both direct and derivative claims, after the court approved the 20 latter, which it did. However, both direct and derivative settlement payments were to be 21 made in installments, with the individual/direct claims paid over 4 months and the derivative 22 claims paid over 4 years. This settlement was welcome for a number of reasons, including 23 the effect the infusion of capital would have on plaintiffs’ ability to continue paying the 24 bankruptcy attorneys in the District of Nevada Chapter 7 cases Terry Johnston had initiated 25 in May and June 2020, as well as help defray the on-going court costs. 26 12. In early or mid-August 2021, I learned from Mr. Ryan that he and Mr. Leet 27 were having a dispute over the division of the contingency fee. I was disgusted when I heard 28 6 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint MSJ EXHIBIT - 2 -0006 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 that Mr. Leet was arguing that all of the credits for the money Dr. Geisler and I had paid 2 during the time the half hourly fee and part contingency fee agreement had been in effect 3 should be deducted from Mr. Ryan’s 2/3 of the contingency fee, leaving Mr. Leet’s 1/3 of 4 the contingency virtually unaffected. That is not the way the fee-split provision was written, 5 and it is most certainly not the fee-split that I intended, or that I approved. 6 13. I was so incensed by what Mr. Leet was trying to do that I first sent an email 7 to Greg Rader with copies of the total of 6 emails I had received about the case from Mr. Leet 8 during the entire time he was supposed to acting as our attorney, and noting that, “I didn’t 9 even think or know that he was in any way involved in our case beyond that brief period in 10 2019.” 11 14. I also talked with Dr. Geisler about the email that Mr. Leet had sent to both of 12 us earlier that day assuring us that his dispute with Jeff Ryan would not affect our net 13 recovery. Dr. Geisler and I agreed that we should advise Mr. Leet, in no uncertain terms, 14 how dismayed we were about his position, and make clear that despite what he believed, 15 Mr. Leet was officially fired as our attorney, even though both Dr. Geisler and I believed he 16 had abandoned the case long before that date. Appended to the Index of Exhibits as 17 Exhibit 10 is a true copy of the email exchange Dr. Geisler had with Mr. Leet on August 18 17, 2021, which I approved in advance and which I was cc’d. 19 15. It may be true that the net recovery I and the other individual plaintiffs and 20 Rhausler shareholders received from that partial settlement of our lawsuit may be unaffected 21 by the dispute about the fee split, but another thing is true: the lawsuit was not over; it 22 required another year of litigation, motions and settlement discussions to winnow down the 23 causes of action and reduce the number of defendants to just one: Terry Johnston. There is 24 no way I would have entrusted my case to Mr. Leet; there is no way, in my opinion, that 25 Mr. Leet could, or even would, have tried the case to completion. Yet, his idea is to deprive 26 Mr. Ryan of the incentive or motivation to finish the case. 27 28 7 Ryan v. Leet, No. 21-CIV-04391 - Declaration of Norman C. Fleming ISO MSJ Cross-Complaint MSJ EXHIBIT - 2 -0007 DocuSign Envelope ID: EF8736E4-0331-4B05-BFDE-31D90E30F0A3 1 16. I repeat and emphasize that Mr. Leet never explained his version of the fee 2 split to me; never sought my approval of his version of the fee split, and I did not approve, 3 and would not have approved Mr. Leet’s fee-split version. It goes without saying that 4 Mr. Leet never presented his version of the fee-split in writing to me, or asked me to approve 5 it by signing any paper. 22 February 6 This Declaration is executed on the ___ day of _________ 2023, at Scottsdale, 7 Arizona. I declare under penalty of perjury under the laws of the State of California that the 8 foregoing is true and correct. 9 ______________________________ 10 Norman C. Fleming 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8