Preview
ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 1 of 7 Trans ID: LCV20201274152
July 22, 2020
Honorable Thomas R. Vena, JSC
Essex County Superior Court
Historic Courthouse
470 Martin Luther King Jr. Blvd.
Newark, NJ 07102
Re: Kirsch, Gelband, et al v Mazie
Docket No.: ESX-L-3110-20
Dear Judge Vena:
Please accept this letter as a sur-reply brief in connection
with the motion to dismiss returnable on July 29, 2020.
As a starting point, the Mazie firm has just filed a motion
returnable on August 7, 2020 seeking to release over $8 million
from the escrow account contending that the Mazie firm has
purchased the right of Mr. Rosenbach to receive a referral fee
from Mr. Stone. Since the referral fee is derivative of the amount
of fees awarded to Mr. Stone, the purchase of the referral fee by
the Mazie firm is a purchase of a portion of the cause of action
against himself and his firm! The more that Stone is awarded in
ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 2 of 7 Trans ID: LCV20201274152
the case against Mazie, the more Mazie profits from buying Mr.
Rosenbach’s referral fee at a discount. This highly suspect
transaction is likely unethical and simply stinks to high heaven.
What is relevant for the present motion is that the Mazie firm
cannot argue on the one hand that Stone forfeited the fee claim,
and at the same time disclose that it owns the referral fee on the
Stone portion of the fees, while moving to disburse over $8 million
to themselves. The fact that the Mazie firm is now arguing that it
is entitled to an $8 million referral fee which is derivative of
the Stone claim, estops the Mazie firm from claiming forfeiture.
In repeating the mantra that the Stone complaint is frivolous,
Mazie continues to argue dismissal by virtue of the filing of a
separate lawsuit which included tort claims against the Mazie firm,
yet ignores the fact that Judge Moore has already consolidated the
two cases. With a consolidated caption, what does it matter whether
the case was filed separately or part of the underlying case? The
issue is moot.
Nor does Mazie even address the discretionary language in the
attorney lien statute or the fact that the statute does not
establish exclusive jurisdiction in the underlying case where
additional claims beyond a fee dispute are asserted. The same logic
from Nostrame, where the Mazie firm had been sued for tortious
interference in a separate action and no court, including the New
Jersey Supreme Court, ever ruled that the court did not have
ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 3 of 7 Trans ID: LCV20201274152
jurisdiction to adjudicate the separate action which included the
tort claims, applies in the instant matter.
The argument that the Second Count was not pleaded with
particularity must also fail. The complaint expressly pleaded two
of the many improper statements made to induce the client to switch
counsel: (i) assurances that the Mazie firm would avoid allocation
of punitive damages and avoid any taxes, despite the fact that a
team of attorneys and advisors had advised otherwise and the client
prepared several charts calculating the taxes he would pay on the
punitive damage aspect of the case; and (ii) misrepresentations to
the client that Stone was improperly seeking more than 25% fees,
in violation of law. In the record in the companion motion (motion
to discharge lien) are several emails which detail and support
these allegations. (See June 9, 2020 Certification of Gregg Stone,
¶¶21-36, and Exhibits M to HH).
What is obviously lacking in Mazie’s reply brief is any
rebuttal to the Printing Mart extremely liberal standard on a R.
4:6-2 motion and that any “suggested” cause of action should not
be dismissed. Printing Mart-Morristown v. Sharp Elecs. Corp., 116
N.J. 739, 746 (1989). The complaint more than satisfies the
Printing Mart standard and any question regarding sufficiency of
pleadings can be cured with an amended complaint. Dismissal with
prejudice is hardly the remedy envisioned by Printing Mart and its
progeny.
ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 4 of 7 Trans ID: LCV20201274152
Mazie’s reliance upon an unpublished decision stemming from
a case heard by Judge Carey1 and his descent into mudslinging and
personal attacks upon counsel must be ignored. Sadly, Mr. Mazie
has been rabidly attempting to attack his former partners for over
a decade and a federal Judge issued a stinging published decision
chastising him for his gross unprofessional conduct, his
unfettered vendetta against his former partners, and his self-
interested conduct which was at the expense of his critically ill
client. In Drazin v. Horizon Blue Cross Blue Shield of NJ, 832
F.SUpp.2d. 432 (D.N.J. 2011), Mazie sought to disrupt the valuable
settlement giving extensive medical benefits to thousands with
eating disorders and requested that his firm be awarded the lion’s
share of the $2.7 million fee. After a trial where Mr. Mazie
testified, the court found that Mazie and his firm first attempted
1 Mazie’s reliance on Krugman v. Mazie Slater, 2015 WL 1880073
(App. Div. 2015) is puzzling. In Krugman, Nagel Rice was retained
to represent an objector who objected to a class action in which
Mazie Slater was counsel to the class. The objection was based on
the fact that Mazie Slater obtained no monetary relief for the
class but the firm was seeking a substantial legal fee. Mazie
Slater sued the objector in order to bully and stifle the objector
and facilitate getting their fee award. This unseemly conduct is
standard fare for the Mazie firm.
In a different case handled by Mazie Slater, after objectors
which included many doctors and medical societies objected to a
class action settlement where the class got no monetary recovery
and Mazie Slater was to receive $6.5 million, the Mazie firm sued
several of the objectors. This suit against the objectors was
dismissed and the objectors were successful in vacating the
settlement and reducing the fee award by $2 million. Sutter v.
Horizon Blue Cross Blue Shield, 406 N.J. Super 86 (App. Div. 2009).
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to derail a settlement in the companion Aetna case where they did
not even represent a member of the class, simply to strike at their
former partners (Nagel Rice) who were class counsel. Drazin, 832
F.Supp.2d at 436-437 (“Mazie Slater appeared at the DeVito
preliminary approval hearing despite having no client with
standing” and “in defamatory language” wrongfully blamed others
for their failures. Judge Hochberg blasted Mazie and stated “these
accusations against the honorable counsel in the DeVito action,
[including Nagel Rice and Bruce Nagel] were entirely unfounded,
and it is shameful that they were made against fine
lawyers.”)(emphasis added).
Then, in the Drazin settlement where they did represent a
member of the class, Mazie Slater attempted to delay and derail
the settlement because they wanted the court to determine their
entitlement to fees prior to the women with eating disorders
receiving the extraordinary and needed benefits provided for in
the settlement. Drazin, at 437-438. Judge Hochberg called Mazie
Slater’s actions “shocking” and lacking any semblance of
“professionalism” and concluded that their actions were motivated
by their desire to “pursue its own interests” at the expense of
their client. Drazin, at 437 and fn 10. In addition, Judge Hochberg
concluded that Mazie Slater’s conduct was motivated by their desire
to “undermine Nagel Rice” rather than focus on the facts and issues
in the case. Drazin, at fn 7. Further, the court found that Mazie
ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 6 of 7 Trans ID: LCV20201274152
represented the “seamy side” of the practice. Drazin, 832 F.Supp.2d
at 433. Mazie was awarded zero for is efforts in the case.
Most recently, the Maize firm filed suit against his former
partners naming the senior partner who had no involvement in the
underlying cases. See, Gore v. Nagel, CV 19-14287, 2020 WL 1429761
(D.N.J. Mar. 24, 2020). This case was dismissed on motion by Judge
Arleo, and the Mazie firm continues pressing a claim that is
groundless.
In these papers, the Mazie firm unprofessionally references
settlement discussions and an offer, when they were involved in a
confidential mediation with retired Judge Carey. We will honor the
mediation privilege and not comment on his assertions, in stark
contrast to Mr. Mazie who sees nothing improper about breaching
that privilege.
In the matter at hand, the issue of causation is fact
sensitive and cannot be determined on a R. 4:6-2 motion. Miller v.
Estate of Sperling, 166 N.J. 370, 386 (2001)
(proximate cause is generally an issue for the jury; Perez v.
Wyeth Labs. Inc., 161 N.J. 1, 27 (1999)(issues
of proximate cause are considered to be jury questions); Martin v.
Bengue, Inc., 25 N.J. 359, 374 (1957)(proximate cause is
ordinarily a jury question); Glaser v. Hackensack Water Co., 49
N.J. Super. 591, 597 (App. Div. 1958)(where there is a factual
dispute as to the events and circumstances surrounding the cause
ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 7 of 7 Trans ID: LCV20201274152
of damages, proximate cause is a jury question). In the Stone
complaint, we pleaded causation, and that is sufficient under the
Printing Mart standard.
Finally, Mazie deliberately ignores the fact that he
certified that the case only involved compensatory damage claims,
and failed to provide the court with the mountain of evidence that
both he and Mr. Stone had amassed to support the punitive damage
claim. Nor does he acknowledge that the punitive damage claim was
the driving force behind the entire settlement. It is irrelevant
that he mentioned the punitive claim in one sentence, that defense
counsel would never acknowledge that his client committed any
wrongdoing, or that he defended the punitive damage claim and even
stipulated to the net worth of the company at $5.4 billion for the
trial. The fact remains that Mazie assured the client that he would
not pay taxes, and that was a key incentive to induce the client
to switch counsel. The conduct of the client amounted to a
constructive discharge and gave good cause for Stone to withdraw
and the fact of the withdrawal does not bar him from suing the
Mazie firm for tortious interference.
Respectfully,
Bruce H. Nagel
BRUCE H. NAGEL
BHN/ls
cc: David A. Mazie, Esq.
Thomas P. Scrivo, Esq.
Preview
ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 1 of 7 Trans ID: LCV20201274152 July 22, 2020 Honorable Thomas R. Vena, JSC Essex County Superior Court Historic Courthouse 470 Martin Luther King Jr. Blvd. Newark, NJ 07102 Re: Kirsch, Gelband, et al v Mazie Docket No.: ESX-L-3110-20 Dear Judge Vena: Please accept this letter as a sur-reply brief in connection with the motion to dismiss returnable on July 29, 2020. As a starting point, the Mazie firm has just filed a motion returnable on August 7, 2020 seeking to release over $8 million from the escrow account contending that the Mazie firm has purchased the right of Mr. Rosenbach to receive a referral fee from Mr. Stone. Since the referral fee is derivative of the amount of fees awarded to Mr. Stone, the purchase of the referral fee by the Mazie firm is a purchase of a portion of the cause of action against himself and his firm! The more that Stone is awarded in ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 2 of 7 Trans ID: LCV20201274152 the case against Mazie, the more Mazie profits from buying Mr. Rosenbach’s referral fee at a discount. This highly suspect transaction is likely unethical and simply stinks to high heaven. What is relevant for the present motion is that the Mazie firm cannot argue on the one hand that Stone forfeited the fee claim, and at the same time disclose that it owns the referral fee on the Stone portion of the fees, while moving to disburse over $8 million to themselves. The fact that the Mazie firm is now arguing that it is entitled to an $8 million referral fee which is derivative of the Stone claim, estops the Mazie firm from claiming forfeiture. In repeating the mantra that the Stone complaint is frivolous, Mazie continues to argue dismissal by virtue of the filing of a separate lawsuit which included tort claims against the Mazie firm, yet ignores the fact that Judge Moore has already consolidated the two cases. With a consolidated caption, what does it matter whether the case was filed separately or part of the underlying case? The issue is moot. Nor does Mazie even address the discretionary language in the attorney lien statute or the fact that the statute does not establish exclusive jurisdiction in the underlying case where additional claims beyond a fee dispute are asserted. The same logic from Nostrame, where the Mazie firm had been sued for tortious interference in a separate action and no court, including the New Jersey Supreme Court, ever ruled that the court did not have ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 3 of 7 Trans ID: LCV20201274152 jurisdiction to adjudicate the separate action which included the tort claims, applies in the instant matter. The argument that the Second Count was not pleaded with particularity must also fail. The complaint expressly pleaded two of the many improper statements made to induce the client to switch counsel: (i) assurances that the Mazie firm would avoid allocation of punitive damages and avoid any taxes, despite the fact that a team of attorneys and advisors had advised otherwise and the client prepared several charts calculating the taxes he would pay on the punitive damage aspect of the case; and (ii) misrepresentations to the client that Stone was improperly seeking more than 25% fees, in violation of law. In the record in the companion motion (motion to discharge lien) are several emails which detail and support these allegations. (See June 9, 2020 Certification of Gregg Stone, ¶¶21-36, and Exhibits M to HH). What is obviously lacking in Mazie’s reply brief is any rebuttal to the Printing Mart extremely liberal standard on a R. 4:6-2 motion and that any “suggested” cause of action should not be dismissed. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). The complaint more than satisfies the Printing Mart standard and any question regarding sufficiency of pleadings can be cured with an amended complaint. Dismissal with prejudice is hardly the remedy envisioned by Printing Mart and its progeny. ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 4 of 7 Trans ID: LCV20201274152 Mazie’s reliance upon an unpublished decision stemming from a case heard by Judge Carey1 and his descent into mudslinging and personal attacks upon counsel must be ignored. Sadly, Mr. Mazie has been rabidly attempting to attack his former partners for over a decade and a federal Judge issued a stinging published decision chastising him for his gross unprofessional conduct, his unfettered vendetta against his former partners, and his self- interested conduct which was at the expense of his critically ill client. In Drazin v. Horizon Blue Cross Blue Shield of NJ, 832 F.SUpp.2d. 432 (D.N.J. 2011), Mazie sought to disrupt the valuable settlement giving extensive medical benefits to thousands with eating disorders and requested that his firm be awarded the lion’s share of the $2.7 million fee. After a trial where Mr. Mazie testified, the court found that Mazie and his firm first attempted 1 Mazie’s reliance on Krugman v. Mazie Slater, 2015 WL 1880073 (App. Div. 2015) is puzzling. In Krugman, Nagel Rice was retained to represent an objector who objected to a class action in which Mazie Slater was counsel to the class. The objection was based on the fact that Mazie Slater obtained no monetary relief for the class but the firm was seeking a substantial legal fee. Mazie Slater sued the objector in order to bully and stifle the objector and facilitate getting their fee award. This unseemly conduct is standard fare for the Mazie firm. In a different case handled by Mazie Slater, after objectors which included many doctors and medical societies objected to a class action settlement where the class got no monetary recovery and Mazie Slater was to receive $6.5 million, the Mazie firm sued several of the objectors. This suit against the objectors was dismissed and the objectors were successful in vacating the settlement and reducing the fee award by $2 million. Sutter v. Horizon Blue Cross Blue Shield, 406 N.J. Super 86 (App. Div. 2009). ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 5 of 7 Trans ID: LCV20201274152 to derail a settlement in the companion Aetna case where they did not even represent a member of the class, simply to strike at their former partners (Nagel Rice) who were class counsel. Drazin, 832 F.Supp.2d at 436-437 (“Mazie Slater appeared at the DeVito preliminary approval hearing despite having no client with standing” and “in defamatory language” wrongfully blamed others for their failures. Judge Hochberg blasted Mazie and stated “these accusations against the honorable counsel in the DeVito action, [including Nagel Rice and Bruce Nagel] were entirely unfounded, and it is shameful that they were made against fine lawyers.”)(emphasis added). Then, in the Drazin settlement where they did represent a member of the class, Mazie Slater attempted to delay and derail the settlement because they wanted the court to determine their entitlement to fees prior to the women with eating disorders receiving the extraordinary and needed benefits provided for in the settlement. Drazin, at 437-438. Judge Hochberg called Mazie Slater’s actions “shocking” and lacking any semblance of “professionalism” and concluded that their actions were motivated by their desire to “pursue its own interests” at the expense of their client. Drazin, at 437 and fn 10. In addition, Judge Hochberg concluded that Mazie Slater’s conduct was motivated by their desire to “undermine Nagel Rice” rather than focus on the facts and issues in the case. Drazin, at fn 7. Further, the court found that Mazie ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 6 of 7 Trans ID: LCV20201274152 represented the “seamy side” of the practice. Drazin, 832 F.Supp.2d at 433. Mazie was awarded zero for is efforts in the case. Most recently, the Maize firm filed suit against his former partners naming the senior partner who had no involvement in the underlying cases. See, Gore v. Nagel, CV 19-14287, 2020 WL 1429761 (D.N.J. Mar. 24, 2020). This case was dismissed on motion by Judge Arleo, and the Mazie firm continues pressing a claim that is groundless. In these papers, the Mazie firm unprofessionally references settlement discussions and an offer, when they were involved in a confidential mediation with retired Judge Carey. We will honor the mediation privilege and not comment on his assertions, in stark contrast to Mr. Mazie who sees nothing improper about breaching that privilege. In the matter at hand, the issue of causation is fact sensitive and cannot be determined on a R. 4:6-2 motion. Miller v. Estate of Sperling, 166 N.J. 370, 386 (2001) (proximate cause is generally an issue for the jury; Perez v. Wyeth Labs. Inc., 161 N.J. 1, 27 (1999)(issues of proximate cause are considered to be jury questions); Martin v. Bengue, Inc., 25 N.J. 359, 374 (1957)(proximate cause is ordinarily a jury question); Glaser v. Hackensack Water Co., 49 N.J. Super. 591, 597 (App. Div. 1958)(where there is a factual dispute as to the events and circumstances surrounding the cause ESX-L-003110-20 07/22/2020 3:57:21 PM Pg 7 of 7 Trans ID: LCV20201274152 of damages, proximate cause is a jury question). In the Stone complaint, we pleaded causation, and that is sufficient under the Printing Mart standard. Finally, Mazie deliberately ignores the fact that he certified that the case only involved compensatory damage claims, and failed to provide the court with the mountain of evidence that both he and Mr. Stone had amassed to support the punitive damage claim. Nor does he acknowledge that the punitive damage claim was the driving force behind the entire settlement. It is irrelevant that he mentioned the punitive claim in one sentence, that defense counsel would never acknowledge that his client committed any wrongdoing, or that he defended the punitive damage claim and even stipulated to the net worth of the company at $5.4 billion for the trial. The fact remains that Mazie assured the client that he would not pay taxes, and that was a key incentive to induce the client to switch counsel. The conduct of the client amounted to a constructive discharge and gave good cause for Stone to withdraw and the fact of the withdrawal does not bar him from suing the Mazie firm for tortious interference. Respectfully, Bruce H. Nagel BRUCE H. NAGEL BHN/ls cc: David A. Mazie, Esq. Thomas P. Scrivo, Esq.