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4:09-cv-04017-JBM-JAG # 1 Page 1 of 18



E-FILED
Friday, 13 March, 2009 04:41:43 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

COREY J. ENGLAND and MIDWEST GEMS,
INC.,

Plaintiffs,

v.

KENNETH S. FELDMAN and FELDMAN LAW
GROUP,

Defendants

)
)
)
)
)
) NO:
)
)
)
)
)

COMPLAINT

FILED
MAR 132009

~CLEAK'S OFFICE
ISLAND. IUINoIS

09-4017

Plaintiffs. Corey J. England and Midwest Gems,

Inc., by and through their

attorneys, for their Complaint against Defendants, Kenneth S. Feldman and Feldman

Law Group allege as follows:

PARTIES

1.

2.

Corey J. England ("England") is an individual residing in Moline, Illinois.

Midwest Gems, Inc., ("Midwest") is an Illinois corporation with its principal

place of business located in Moline, Illinois.

3..

At all

relevant

times herein, England has served as the principal of

Midwest.

4.

Defendant Kenneth S. Feldman ("Feldman") is an individual residing in

Huntington, New York.

5.

Feldman Law Group ("Law Group") is a law firm with its principal office

located at 12 East 41 st Street, New York, New York and a reg ional office located in

Huntington, New York. On information and belief, Law Group is the same firm and/or

4:09-cv-04017-JBM-JAG # 1 Page 2 of 18



successor in interest to Law Offices of Stephen E. Feldman, P.C., the law firm where

Feldman practiced during all relevant times and said law firm used the same address as

Law Group.

6.

Feldman is a partner and the Managing Attorney of Law Group, according

to its website.

JURISDICTION

7.

This Court has jurisdiction over this matter based on the diversity of

citizenship of the parties and that the amount in controversy exceeds $75,000, pursuant

to 28 U.S.C. § 1332(a).

8.

Venue is proper in this District, pursuant to 28 U.S.C. § 1391 (a)(2) and (3).

FACTUAL BACKGROUND

License Agreement

England is the owner of the trademark Iceman and has used this mark in

A.

9.

commerce in the sale of jewelry, gemstones and diamonds since at least 1991.

10.

In May, 2003, England and MatBros,

Inc. ("Mat") entered into a license

ag reement pursuant to which England, licensor, granted to Mat, licensee, an exclusive

license to use the Iceman mark on watches in consideration for an annual licensing fee

of $25,000.

(Attached as Exhibit A is a copy of the License Agreement).

11. Mat's license to use the Iceman mark was limited to watches only.

12.

During negotiations of the License Agreement, England was represented

by separate counsel and Mat was represented by Feldman. England's counsel and

Feldman together negotiated and drafted the terms of the License Agreement.

2

4:09-cv-04017-JBM-JAG # 1 Page 3 of 18



13.

The License Agreement was for an initial term of three years, from April 1,

2003 through March 31, 2006 with Mat paying a licensing fee of $25,000 each year.

14.

The License Agreement contains no provision requiring England to

indemnify or defend Mat for any litigation or threats of litigation against Mat relating to its

use of the Iceman trademark.

15.

In 2004, England became aware that Mat was using the Iceman mark in

conjunction with the marketing and sale of jewelry other than watches, in breach of the

License Agreement. On two separate occasions in 2004, England sent

letters to

Feldman advising him that Mat was breaching the License Agreement by using the

Iceman mark to advertise jewelry other than watches.

16.

In order to promote the sale of jewelry other than watches, Mat was also

involved

with

the

development

of

the

websites

www.iceman4u.com.

www.icemanusa.com, and www.itshot.cbm that used the Iceman mark in their text and

metatags. Feldman had knowledge of Mat's involvement with the development of these

websites.

17.

As a result of Mat's ongoing breach of the License Agreement and failure

to pay the licensing fees, England sent a termination notice to Mat on April 6, 2006.

18.

England subsequently made Feldman aware that Mat was also breaching

the License Agreement by infringing and misusing the Iceman mark in websites,

Internet links and domain names for the advertising and sale of merchandise other than

watches and by continuing to unlawfully use the Iceman mark and variations thereof.

3

4:09-cv-04017-JBM-JAG # 1 Page 4 of 18



B.

Underlying Lawsuit

19.

On March 26, 2004, Christopher Aire and Solid 21, Inc. (collectively "Aire")

filed Civil Action No. 1:04-CV-02370-DAB in the U.S. District Court for the Southern

District of New York against England, Midwest and Mat ("Underlying Lawsuit") asserting

trademark infringement and dilution of the "Iceman" trademark, among other claims.

20.

In the Underlying Lawsuit, England and Midwest disputed Aire's

ownership to the Iceman trademark. England and Midwest asserted that England is the

rightful owner of the Iceman trademark with respect

to the sale and marketing of

jewelry, gemstones, diamonds and watches.

21. Mat retained Feldman to represent its interests in the Underlying Lawsuit.

Subsequent to Mat's retention of Feldman, Feldman persuaded England to also retain

him to represent the interests of England and Midwest in the Underlying Lawsuit.

c.

Malpractice of Feldman and Law Group

22.

From the outset,

the interests of England and Midwest were in direct

conflict with those of Mat as a result of Mat's breach of the License Agreement and its

continued wrongful use of the Iceman trademark. While England had terminated the

License Agreement for these reasons through correspondence to Feldman, Feldman

took no action requiring Mat to cure the continuing breach.

23.

Despite this

clear

conflict of

interest, Feldman

undertook

the

representation of England and Midwest while at the same time representing Mat in the

Underlying Lawsuit until March, 2007.

4

4:09-cv-04017-JBM-JAG # 1 Page 5 of 18



24.

Feldman continued to simultaneously represent England, Midwest and

Mat

in the Underlying Lawsuit without disclosing the actual conflicts of interest to

England and Midwest and without obtaining their informed consent thereto.

25.

Throughout his representation of England and Midwest, Feldman failed to

advise them to pursue claims against Mat for breach of the License Agreement and

misuse and infringement of the Iceman mark.

26.

At the direction of Mat, Denis Stepansky had created websites and links

using the Iceman mark, which continued to advertise Iceman diamond watches and

jewelry or link to said advertisements. Throughout his representation of England and

Midwest, Feldman failed to advise them that they had trademark infringement and

related claims against Stepansky.

27.

Feldman was fully aware of all claims that could have been asserted

against both Mat and Stepansky.

28.

After England and Midwest retained new counsel

in the spring, 2007 a

Crossclaim against Mat and a Third-Party Complaint against Stepansky were filed on

behalf of England and Midwest.

29.

Throughout the Underlying Lawsuit Feldman advised England that he had

an obligation to indemnify Mat and pay the attorneys' fees of Mat pursuant to the

License Agreement. The License Agreement contains no such obligation.

30.

Throughout Feldman's representation of England and Midwest, he issued

billing statements to them for legal services rendered on behalf of Mat and accepted

payment for these services, knowing that England and Midwest had no obligation to pay

the attorney fees of Mat. As a result, England and Midwest paid at least $48,000 in

5

4:09-cv-04017-JBM-JAG # 1 Page 6 of 18



attorneys' fees, the majority of which were the sole responsibility of Mat. England paid

these billing statements in reliance on the advice of Feldman that he had obligation to

do so pursuant to the License Agreement.

31.

During the discovery process, Feldman repeatedly advised counsel for

plaintiff Aire, Todd Sharinn, that Mat would assist Aire in his case against England and

Midwest if Aire would license the Iceman mark to Mat or otherwise settle the litigation

with Mat. This conduct was directly adverse to the interests of England and Midwest

and was not disclosed to them.

32.

England advised Feldman of information and documents he had which

would conclusively establish that he and Midwest used the Iceman mark prior to Aire

but Feldman failed to use this information and these documents to mount a competent

defense or to challenge Aire's right to the Iceman mark.

33.

During the discovery process, Feldman also failed to provide competent

representation of England and Midwest at the depositions,

instead focusing on the

representation of Mat.

34.

Counsel for Aire repeatedly advised Feldman that his conduct throughout

the underlying lawsuit constituted vexatious and bad faith litigation pursuant to Rule 11

of the Federal Rules of Civil Procedure.

35.

Throughout Feldman's representation of England and Midwest

in the

Underlying Lawsuit, Feldman made numerous telephone calls from his office in New

York to England in this District, sent numerous correspondence from his office in New

York to England in this District and issued billing statements from his office in New York

to England in this District.

6

4:09-cv-04017-JBM-JAG # 1 Page 7 of 18



36.

In June. 2007, England retained Jacqueline A. Criswell of the law firm of

Tressler Soderstrom Maloney & Priess, LLP to represent him and Midwest

in the

Underlying Lawsuit. When Ms. Criswell came into the case, she realized that England

and Midwest had information and documents that demonstrated use of the trademark

prior to Aire, had viable trademark infringement and related claims against Mat and had

viable trademark infringement and related claims against Stepansky and explained the

circumstances of pursuing these claims to England.

37.

The State of New York lists Feldman as delinquent in his registration

status.

(See Exhibit B).

38.

But for Defendants' breach of the standard of care in failing to competently

represent England and Midwest and continuing said representation despite a blatant

conflict of

interest, England and Midwest would have prevailed in the Underlying

Lawsuit with Aire or at minimum reached a resolution at an early stage of the litigation

and would have obtained significant damages from Mat and Stepansky.

39.

Feldman breached his duty to fully, professionally and competently

represent England and Midwest

in the Underlying Lawsuit

in one or more of the

following respects:

a.

b.

c.

Feldman failed to inform England regarding the conflicts of interest
associated with Feldman's representation of both Mat and England
and Midwest;

Feldman informed England that he was required to pay for
Feldman's representation of Mat in the Underlying Lawsuit pursuant
to Paragraph 9 the License Agreement;

Feldman failed to pursue a Crossclaim against Mat for trademark
infringement and related claims, as well as a Third Party Complaint
against Denis Stepansky for his infringement of
the Iceman
trademark because he was involved in the establishment of the

7

4:09-cv-04017-JBM-JAG # 1 Page 8 of 18



www.iceman4u.com, www.icemanusa.com, and www.itshot.com
websites;

Feldman failed and was unwilling to produce England's best
evidence of his first use of the Iceman trademark as requested by
the Court;

Feldman failed to properly and adequately investigate and/or raise
defenses and affirmative matters in defense of the Underlying
Lawsuit on behalf of England and Midwest;

Feldman on behalf of Mat willingly and intentionally offered to assist
Aire in his case against England and Midwest; and

Feldman was otherwise negligent
Midwest.

in representing England and

d.

e.

f.

g.

40.

But for the forgoing negligent acts, errors and/or omissions of Feldman,

England and Midwest:

a.

b.

c.

d.

e.

Would have retained counsel as necessary to protect
interests;

their

Would not have followed Feldman's advice in the Underlying
Litigation;

Would not have paid for Feldman's representation of Mat;

Would have properly investigated and pursued affirmative matters
available to them in the Underlying Lawsuit,
including, but not
limited to, the filing of a Crossclaim against Mat and the filing of a
Third Party Complaint against Denis Stepansky; and

Would otherwise have acted in a manner to avoid the negative and
adverse economic consequences of the failures, omissions and
professional errors of Feldman.

41.

As a direct and proximate result of one or more of

the aforesaid

professional negligent or

intentional acts, errors and/or omissions constituting

malpractice by Feldman, England and Midwest have been injured and damaged in that:

a.

They did not hire independent and unbiased legal counsel
protect their interests in the Underlying Lawsuit in its early stages;

to

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4:09-cv-04017-JBM-JAG # 1 Page 9 of 18



b.

c.

d.

e.

Their interests were not properly represented in the Underlying
Lawsuit;

They were precluded from asserting valid defenses and affirmative
matters and were not permitted to produce their best evidence of
first use of the trademark at issue in the Underlying Lawsuit;

They had to unnecessarily incur attorneys' fees and costs as well
as other business resources associated with the Underlying
Lawsuit for Feldman's representation of Mat;

the retention of
They had to unnecessarily incur the cost of
subsequent counsel
in order to reduce the damage resulting from
Feldman's aforesaid negligent and intentional acts, errors and
omissions; and

f.

Was otherwise injured and damaged.

COUNT I

Professional Negligence

42.

Plaintiffs incorporate by reference the allegations set forth in paragraphs 1

through 41 above.

43.

Feldman and Law Group violated the New York Code of Professional

Responsibility D.R. 5-105 by simultaneously representing England and Midwest, along

with Mat in the Underlying Lawsuit, to the detriment of England and Midwest.

22

NYCRR 12.24.

44.

Feldman and Law Group violated New York Code of Professional

Responsibility D.R. 6-101 by neglecting the representation of England and Midwest,

failing to present an adequate defense and breaching the standards of professional care

and skill owed to England and Midwest. 22 NYCRR § 1200.30.

45.

Feldman and Law Group violated New York Code of Professional

Responsibility D.R. 7-101 by failing to zealously represent England and Midwest and

9

4:09-cv-04017-JBM-JAG # 1 Page 10 of 18



intentionally prejudicing and damaging their legal position in the underlying lawsuit. 22

NYCRR § 1200.32.

46.

By engaging in the actions and non-action as set forth above, Feldman

and Law Group breached the standard of care expected of attorneys in their community

and violated the applicable Rules of Professional Responsibility governing the practice

of law in the State of New York.

47.

As a proximate cause of Defendants' errors and omissions, England and

Midwest suffered significant damages, including damages they would have recovered

had the underlying lawsuit been properly litigated, damages in the form of attorneys'

fees paid to Defendants for incompetent representation of England and Midwest and for

legal services rendered on behalf of Mat, for which they were not obligated, damages

paid to subsequent counsel England and Midwest retained in the underlying lawsuit and

damages in the form of the loss of certain trademark rights in the Iceman mark.

COUNT II

Breach of Contract

48.

Plaintiffs incorporate by reference the allegations set forth in paragraphs 1

through 41 above.

49.

Feldman and Law Group entered into a fee agreement in exchange for

which Defendants agreed to represent England and Midwest in the Underlying Lawsuit.

50.

In performing the legal services for which they were retained, Defendants

were required to exercise ordinary skill and care required of attorneys practicing law in

their community.

10

4:09-cv-04017-JBM-JAG # 1 Page 11 of 18



51.

Defendants failed to exercise ordinary skill and care in connection with the

performance of these legal services for which they were retained.

52.

As a proximate cause of Defendants' errors and omissions, England and

Midwest suffered significant damages, including damages they would have recovered

had the underlying lawsuit been properly litigated, damages in the form of attorneys'

fees paid to Defendants for incompetent representation of England and Midwest and for

legal services rendered on behalf of Mat, for which they were not obligated, damages

paid to subsequent counsel England and Midwest retained in the underlying lawsuit and

damages in the form of the loss of certain trademark rights in the Iceman mark.

COUNT III

Breach of Implied Covenant of Good Faith and Fair Dealing

53.

Plaintiffs incorporate by reference the allegations set forth in paragraphs 1

through 41 above.

54.

55.

All contracts contain an implied covenant of good faith and fair dealing.

By simultaneously representing England, Midwest and Mat despite the

obvious conflicts of interest,

failing to advise England and Midwest of their claims

against Mat and Stepansky and failing to provide an adequate defense in the

Underlying Litigation and accepting attorneys' fees to which Defendants knew they were

not entitled, Defendants breached the covenant of good faith and fair dealing.

56.

As a proximate cause of Defendants' errors and omissions, England and

Midwest suffered significant damages, including damages they would have recovered

had the underlying lawsuit been properly litigated, damages in the form of attorneys'

fees paid to Defendants for incompetent representation of England and Midwest and for

11

4:09-cv-04017-JBM-JAG # 1 Page 12 of 18



legal services rendered on behalf of Mat, for which they were not obligated, damages

paid to subsequent counsel England and Midwest retained in the underlying lawsuit and

damages in the form of the loss of certain trademark rights in the Iceman mark.

WHEREFORE, plaintiffs Corey J. England and Midwest Gems, Inc., respectfully

request that this Court enter judgment in their favor and against Defendants in an

amount a be proved at trial in excess of $75,000, plus interest, costs, and such further

relief as is just and appropriate.

JURY DEMAND

Plaintiffs demand trial by jury.

COREY J. ENGLAND and
MIDWEST GEMS, INC.

By:

lsI Jacqueline A. Criswell

One of its Attorneys

Jacqueline A. Criswell (ARDC No. 6180148)
James Barcia (ARDC No. 6200926)
Tressler Soderstrom Maloney & Priess, LLP
Sears Tower, 22nd Floor
233 South Wacker
Chicago, IL 60606-6314
Phone:
(312) 627-4003
Fax: (312) 627-1717

Local Counsel:

Robert T. Park (ARDC No. 02143585)
Synder, Park & Nelson, P.C.
1600 Fourth Avenue, Suite 200
P.O. Box 3700
Rock Island, IL 61204-3700
Phone:
Fax:

(309) 786-0463

(309) 786-8497

JAC:las:453492v5

12

4:09-cv-04017-JBM-JAG # 1 Page 13 of 18



EXHIBIT A

4:09-cv-04017-JBM-JAG # 1 Page 14 of 18



Case 1:04-cv-02370-DAB Document 34-2

Filed 12/20/2007

Page 2 of 4

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5011'" SlrMt. MoIirlI, IIIInllI.Sl285 (l.Jc.naor),M .'or PROS DUNnyp,
(L1Clll11l81) r.nIIng"

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,ljSll.))1:ut;le~§.w.Q3...._ .....1!Y1A.4,,',..l1fY1U.....!,1l!'0Oi!,;3~6:-
liclnu of IhI tr-'emark "ICEMAN" (lIlI Mlrte).

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TRAPEMARK blliENSJ; UcenlOr tMlrwby lIfIlIlllO UaInI. In

8llCM~lIcI"..1o II. the Martr 011 WlIChea (!hi PrDduct). by,..." th8 MaIIl_.

d1r_ on !he p~, on tlgl or l.bellaHlxed 10 tilt PYoducl, IlIldfar on .
cliIpII,. ."DeI.11d WIt" 1/11 Praduct. UceN" may U., tile Martr In

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witI! ~ indMdu.... lltlarlCllr or pellDIl. No ll1tler Ilc:InII II granlld hllIIn
'Illllrdl"ll 111. Mcartr, nor 1I1ny 1ID11lM granllCl herein .1 to right of puIllioIly In ..
lncfll:ll "ICEMANe ,
gWN1SSH'P; LIClfNOrlilhe aw,., DIU. I'ldemark "ICEMAN'.
an appllca1lon .or Whll:h .. pelldlng In lIlI UnltlCl StaIN '.nllnd TlldllMIlI
..onlee. L.IclInIor 111"".'IIlh1i owner III publicily ri~1I In the indIcI. "ICEMAN:

oltHIr rIghlS granted 1IIrUl,Llc._ sIIIII fIlI110 UClInsor an .nnUIIIlc8nle ,.

WQNSIDEBAIIOM; In oonlicl.,.1kln lot lhllllcenlo. IIIIIIDr ..

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fl. dill upon IIlftiGllllOn ollhlllQl'IlIIIIIlI... 1ICIIlIIII Y'arI paymIftI on Mar ao,
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year, until !.rrnlnallcJn, n.•• par-ms Shill bl Ilon-r8lUnd.bll lI'Ilhe IlrIni aI
II/bIIlIUlInI.nn~,

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SlaleI, JIa ,.rrliv'rIe. Incr PD!I,,11/onI.

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4:09-cv-04017-JBM-JAG # 1 Page 15 of 18



Case 1:04ccv-02370-DAB· Document 34-2

Filed 12/20/2007

Page 3 of 4

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4:09-cv-04017-JBM-JAG # 1 Page 16 of 18



___ c.a.. se.. 1.:0..4-•.cv.-02370-DAB

_

Document 34·2

F"I

I ed 12/20/2007

Page 4 of 4

" • "

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EXHIBIT B

4:09-cv-04017-JBM-JAG # 1 Page 18 of 18



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~S:;COURTS

Attorney Detail

as of 03/12/2009

Registration Number:

2177228

KENNETH S. FELDMAN
KENNETH S. FELDMAN
12 E 41ST ST FL 7TH
NEW YORK, NY 10017-6221
United States
(212) 532-8585

Year Admitted in NY:
Appellate Division
Department of
Admission:
law School:
Registration Status:
Next Registration:

1988

1
RUTGERS NEWARK
Delinquent
Sep 2010

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REGISTRATION STATUS, which is generated from the OCA
database. Every effort is made to insure the information in
the database is accurate and up-to-date.

The good standing of an attorney and/or any information
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Registration Unit at 212-428-2800.

w'Ww.NYCOURTS.gov

http://iapps.couns.state.ny.uslattomey/AltomeyDetails?attomeyId=5448688

3/12/2009