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February 2, 2008

Pass the Glue

In F&G Research v. Dynapoint (Taiwan), the CAFC ruled Allen D. Brufsky a scumbag: having "significantly misrepresented the facts," relying on "vague allegations without basis in the record," and showing "a willingness to mislead the court." It's a shame, because Brufsky has one gorgeous web site. You'd think a guy with taste would have class, but there you go.

F&G Research v. Dynapoint (Taiwan) (CAFC 07-1350)

F&G tried using 5,313,229 as a cudgel against Dynapoint, suing in the Sunshine State, Brufsky's stomping grounds. Small problem there -

Dynapoint Taiwan specifically contended, and F&G does not contest, that Dynapoint Taiwan has no office in the State of Florida, has never operated, conducted, engaged in, or carried on any business venture in the State of Florida or anywhere else in the United States, has not sold or solicited customers for Dynapoint China in the State of Florida or anywhere in the United States, has not attended any trade shows in the United States, has no corporate officers who are residents of the United States, maintains no financial accounts in the United States, does not manufacture computer mice, and has only a passive website, which does not enable visitors to order products.

So Brufsky steps up to the plate with his own hard word. Brufsky is always on point, except of course when he's not; please, no wagering on the Brufsky hit rate.

In opposing Dynapoint Taiwan’s motion to dismiss for lack of personal jurisdiction, F&G relied upon a declaration from its counsel, Brufsky... That declaration does not mention Dynapoint Taiwan, and instead links the distribution of computer mice allegedly infringing F&G’s patent to Dynapoint China.

Taiwan, China, what's the difference? For Christ's sake, they're Dynapoint! What more do you need? Alas, after a day of head-scratching, the district court pitched Brufsky's roping in Dynapoint China.

Naturally, to keep the clock running, F&G appealed. Small problem with that -

In this appeal, F&G argues that the district court improperly dismissed its case for lack of personal jurisdiction over Dynapoint Taiwan. F&G’s appeal has no merit. F&G points to no errors in the district court’s decision, contending only that support for its position can be found in the Brufsky declaration. As previously noted, the Brufsky declaration does not mention Dynapoint Taiwan but, rather, links the distribution of computer mice allegedly infringing F&G’s patent to Dynapoint China, a company distinct from Dynapoint Taiwan, notwithstanding the shared use in their respective business names of the word “Dynapoint.” F&G cites nothing in the record to link Dynapoint Taiwan with the State of Florida or to any sales activities by Dynapoint Taiwan on Dynapoint China’s behalf in the United States. Instead, it simply treats the Taiwanese and Chinese companies as if they are one and the same. In response to Dynapoint Taiwan’s argument that Dynapoint China and Dynapoint Taiwan are not the same, Brufsky, on page 1 of the reply brief, misrepresents that Dynapoint China “is a co-defendant in this case,” citing the district court’s order of April 11, 2007, with no mention of the fact that the April 11, 2007 order was set aside on April 12, 2007.

The CAFC issued a show cause order. Sensing some tension, Brufsky eased up, offering to dismiss.

What defines frivolity? The CAFC has an answer, though tautology creeps in. Personally, I always considered tautological definition ipso facto frivolous.

“If a court of appeals determines that an appeal is frivolous, it may, after . . . notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R. App. P. 38. We have held that an appeal may be “frivolous as filed” when “an appellant grounds his appeal on arguments or issues that are beyond the reasonable contemplation of fair-minded people, and no basis for reversal in law or fact can be or is even arguably shown.” Abbs, 237 F.3d at 1345 (internal quotation marks omitted). An appeal may be “frivolous as argued when an appellant has not dealt fairly with the court, [or] has significantly misrepresented the law or facts.” Id. “[A]n appeal which is frivolous as filed must also be frivolous as argued, since any arguments made in support of it are, by definition, frivolous.Constant v. United States, 929 F.2d 654, 658 (Fed. Cir. 1991). Although “[w]e are reluctant to impose sanctions,” Abbs, 237 F.3d at 1346, “examples of actions deemed sanctionable include . . . failing to explain how the trial court erred or to present cogent or clear arguments for reversal, . . . making irrelevant and illogical arguments, [and] misrepresenting facts or law to the court,” id. at 1345 (internal citations omitted).

Discovering that Dynapoint China and Dynapoint Taiwan are not the same irked the CAFC. But that wasn't really Brufsky's fault - he tried to glue them together as best he could.

F&G’s persistent and exclusive reliance on the Brufsky declaration, which identifies Dynapoint China—rather than Dynapoint Taiwan—as the producer of the allegedly infringing products, can best be described as the type of irrelevant and illogical argument warned against in Abbs. F&G makes no effort to identify any legal or factual error in the district court’s reasoning or findings. Instead, F&G relies on vague allegations without basis in the record,... and on generalized statements that treat both the Taiwanese and Chinese companies as if they were one and the same... F&G and Brufsky attempt to portray Dynapoint Taiwan and Dynapoint China as “one entity,” id. at 5 n.1, despite their separate corporate existence and the district court’s decision to set aside its order joining Dynapoint China as a co-defendant. This approach to advocacy reflects not only a “fail[ure] to explain how the trial court erred or to present cogent or clear arguments for reversal,” but also a willingness to mislead the court. Abbs, 237 F.3d at 1345. Brufsky’s misrepresentation regarding Dynapoint China’s status in this case along with F&G’s reliance on an order withdrawn by the district court, see Reply Br. at 1, more than justify a conclusion that this appeal is frivolous as filed and as argued.

The CAFC awarded attorneys' fees and costs to Dynapoint Taiwan, to be paid by F&G and Brufsky.

Posted by Patent Hawk at February 2, 2008 12:26 PM | Inequitable Conduct

Comments

Your magazine wrote an article on Allen D brufsky in Feb 2008, his antics continue, please update readers, my father was Frank C Blumeyer, Brufsky took him to the cleaners, he passed Sept 21, of this year at 92. Brufsky is a jack of all trades at one time even pimped his furture wife Marcia J Carroll out as an escort, Memorable Escorts was the comapny, a Florida corp, believe it or not Brufsky spelled his name Bruffsky, I can only assume so his wife and family would not put two and two together. You all called him a scumbag an endearing term that has stuck.


IN THE SUPREME COURT OF FLORIDA
(Before a Referee)
THE FLORIDA BAR,
Complainant,
CASE NO.
TFB NO. 2008-10,924 (20B)
v.
ALLEN DAVID BRUFSKY,
Respondent.
COMPLAINT
Complainant, The Florida Bar files this Complaint against Respondent,
Allen David Brufsky, pursuant to Rule 3-3.2(b), Rules Regulating The Florida Bar,
and alleges:
1. Respondent is, and at all times mentioned herein was, a member of
The Florida Bar, subject to the jurisdiction of the Supreme Court of Florida.
2. Beginning on or around October 31, 2003, Respondent represented
F & G Research, Inc.
3. F & G Research was owned by Federico Gilligan and Fernando
Falcon.
4. Gilligan was the client contact with Respondent for F & G Research.
5. Respondent's representation of F & G Research included litigation
matters handled on a contingency basis.
6. According to the initial terms of the representation, a percentage of
any recovery from the litigation would have been shared with J & B Properties,
which agreed to advance costs.
7. Respondent's wife was the general partner of J & B Properties.
8. On or about August 6, 2004, F & G Research entered into an
agreement with J & B Properties in which F & G granted a percentage interest in
certain litigation claims to J & B Properties in exchange for J & B Properties
agreeing to advance costs for the litigation.
9. Respondent recommended that F & G Research enter into the
agreement with J & B Properties.
10. Respondent failed to disclose to F & G Research Respondent's wife's
role with J & B Properties prior to advising F & G Research to enter into an
agreement with J & B Properties.
11. Disagreements arose between F & G Research, J & B Properties, and
Respondent regarding costs and other issues.
12. As a result of the disagreement, F & G Research and Respondent
agreed to change the terms of the representation, eliminating any percentage
interest of J & B Properties and increasing the percentages of the recovery for
F & G Research and for Respondent.
13. After the elimination of J & B Properties from the agreement,
Respondent arranged for costs to be advanced by Frank C. Blumeyer.
14. Blumeyer was a friend and neighbor of Respondent.
15. During the course of the representation, Respondent developed a
belief that F & G Research might default on contractual obligations to Blumeyer.
16. Respondent took action contrary to the interests of F & G Research in
order to protect the interests of Blumeyer, including but not limited to:
a. Placing Blumeyer on the board of directors of F & G Research;
b. Issuing shares of stock in F & G Research to Blumeyer; and,
c. Blocking access to the funds of F & G Research by Gilligan.
17. The foregoing actions were taken without the knowledge or approval
of Gilligan or Falcon.
18. In the course of the representation, Respondent became an officer and
director of F & G Research.
19. Respondent failed to advise F & G Research regarding the implications
of his service as an officer and director as they relate to his obligations as attorney.
20. Respondent failed to obtain waiver of the conflict of interest which
arose from his roles both as officer and director and as attorney.
21. Respondent placed himself in the position of director of F & G
Research without the knowledge or authorization of Gilligan or Falcon.
22. Respondent placed his wife in the position of director of F & G
Research without the knowledge or authorization of Gilligan or Falcon.
23. At the time he placed his wife on the board of directors, Respondent
knew his wife was hostile to the interests of Gilligan and Falcon.
24. Respondent did not inform Gilligan or Falcon of his wife's hostility to
their interests.
25. Respondent settled litigation on behalf of F & G Research without the
knowledge or approval of Gilligan or Falcon.
26. Respondent disbursed the proceeds of the settled litigation without the
knowledge or authority of Gilligan or Falcon.
27. On or about February 4, 2008, Gilligan filed a grievance against
Respondent.
28. On or about July 22, 2008, Respondent, Gilligan, and other relevant
parties entered into a Settlement Agreement regarding civil disputes between and
among them.
29. As part of the Settlement Agreement, Gilligan was required to send a
letter to the Bar purporting to withdraw his grievance.
30. On February 3, 2009, Twentieth Judicial Circuit Grievance
Committee "B" found probable cause for further disciplinary proceedings, and the
presiding member of the grievance committee has approved this Complaint as
alleging the misconduct considered by the committee.
31. On August 5, 2010, Twentieth Circuit Grievance Committee "B"
reconsidered the matter and rescinded its probable cause as to one of the rules
identified in its prior vote and replacing that finding with a probable cause finding
on an additional rule; no new factual allegations were considered at that time. The
presiding member of the grievance committee has approved this Complaint as
correctly reflecting the rules violated on which the committee found probable
cause.
32. As a result of the foregoing, Respondent violated the following Rules
Regulating The Florida Bar:
a. Rule 4-1.4 (failure to communicate with client);
b. Rule 4-1.7 (conflict of interest - current client);
c. Rule 4-1.8 (conflict of interest - transactions with client);
d. Rule 4-8.4(c) (conduct involving dishonesty); and,
e. Rule 4-8.4(d) (conduct prejudicial to the administration of justice).
WHEREFORE, The Florida Bar respectfully requests that Respondent be
appropriately disciplined.
Kenneth Lawrence Marvin Trdy^Matthew Lovell
Staff Counsel Bar Counsel
The Florida Bar The Florida Bar
651 E. Jefferson Street 4200 George J. Bean Parkway
Tallahassee, Florida 32399-2300 Suite 2580
(850) 561-5600 Tampa, Florida 33607-1496
Florida Bar No. 200999 (813) 875-9821
Florida Bar No. 946036
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of this Complaint has been furnished
by regular U. S. mail to The Honorable Thomas D. Hall, Clerk, the Supreme Court
of Florida, 500 South Duval Street, Tallahassee, Florida 32399-1925; a true and
correct copy by U.S. certified mail No. 7006 2150 0002 3002 8929, Return Receipt
Requested, and by regular U.S. mail to Allen David Brufsky, c/o Allen S. Katz,
777 Brickell Avenue, Suite 1114, Miami, Florida 33131-2867, Counsel for
Respondent; a copy to Troy Matthew Lovell, Bar Counsel, The Florida Bar, 4200
George J. Bean Parkway, Suite 2580, Tampa, Florida 33607-1496; and a copy to
Laird Andrew Lile, Designated Reviewer, at 3033 Riviera Drive, Suite 104, Naples
Florida 34103-2746; this H^h day of ftllUmVwT, 2010.
Kenneth Lawrence Marvin
Staff Counsel
NOTICE OF TRIAL COUNSEL
PLEASE TAKE NOTICE that the trial counsel in this matter is Troy
Matthew Lovell, Bar Counsel, whose address is The Florida Bar, 4200 George J.
Bean Parkway, Suite 2580, Tampa, Florida 33607-1469. Respondent need not
address pleadings, correspondence, etc. in this matter to anyone other than trial
counsel and to Staff Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee,
Florida 32399-2300.

Posted by: Blumeyer at November 9, 2010 12:09 PM

Brufsky lost his licence to practice law for 91 days, a mere slap on the hand. I am sure by now he is back out there practicing law or should I say exploiting to the full extent the law will allow. This article does not tell the whole story on how he and his wife befriended an elderly man, turned him against family and at the end had power over his health care, having him get a reverse on his home so they could stay in theirs. The list goes on and on, bottom line is sex sells, grubbers know how to make it marketable.

Posted by: blumeyer at February 6, 2011 1:40 PM