the honorable ricardo s. martinez - the am law daily

LAW OFFICES OF MCNAUL EBEL NAWROT & HELGREN PLLC

600 University Street, Suite 2700

Seattle, Washington 98101-3143

(206) 467-1816

AMENDED COMPLAINT (C09-0894 RSM) –

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THE HONORABLE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE HAGENS BERMAN SOBOL SHAPIRO LLP,

Plaintiff,

v. ERAN RUBINSTEIN and SUSAN M. BOLTZ RUBINSTEIN,

Defendants.

No. C09-0894 RSM AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES1 JURY DEMAND

I. INTRODUCTION

1. This action is brought by Hagens Berman Sobol Shapiro LLP (“Hagens

Berman”), a limited liability partnership. Hagens Berman seeks declaratory and

injunctive relief and damages against Eran Rubinstein and Susan M. Boltz Rubinstein

(hereinafter referred to together as “the Rubinsteins), two attorneys who became “of

counsel” to Hagens Berman pursuant to a written agreement dated July 30, 2008 (the

“Agreement”), but who failed to perform their duties under the Agreement, breached their

fiduciary duties to Hagens Berman, acted in bad faith, and made multiple, unfounded

threats of legal liability and litigation against Plaintiff and its managing partners.

1 Hagens Berman serves and files this amended complaint pursuant to Fed. R. Civ. P.

15(a)(1).




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2. The Agreement provided, among other things, that the Rubinsteins, as “of

counsel” to the firm, would focus on augmenting Hagens Berman’s representation of

international institutional investors in securities monitoring and litigation matters. The

primary purpose of the Agreement was to engage the Rubinsteins for a one-year trial

period during which they would use their purported existing relationships with persons

and entities in Israel and Ireland to bolster the firm’s securities litigation practice.

Approximately midway through the 12-month period, the Rubinsteins sought to add to the

Agreement enhanced incentive pay for work that they wished to do with purported

contacts in Australia, as well as an extension of the Agreement.

3. From approximately January 2009 to the present, the Rubinsteins all but

abandoned efforts in Israel and Ireland and focused on developing contacts in Australia.

But the Rubinsteins withheld information from Hagens Berman regarding their activities

in Australia and attempted to bootstrap prospects of litigation on behalf of entities in

Australia into a longer-term relationship with Hagens Berman.

4. The Rubinsteins withheld, among other things, critical information

identifying purported clients and other information necessary for Hagens Berman to run

conflict checks and assess the potential claims of Australian entities; refused to answer

questions posed by Hagens Berman management in its effort to supervise the Rubinsteins

and representations that they were purportedly making on behalf of the firm; unilaterally

“fired” Hagens Berman’s Managing Partner and insisted on dealing only with one lawyer

in the firm’s Boston office; filed a frivolous grievance against the Managing Partner with

the Washington State Bar Association; refused to direct to entities with whom they were

ostensibly communicating information as directed by Hagens Berman management;

purported to sign three Australian entities to unauthorized retainer agreements; refused to

submit time records to the firm as required by the Agreement, and otherwise disregarded

the Agreement.




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5. To serve their own financial interests, the Rubinsteins have attempted to

railroad Hagens Berman into filing litigation on behalf of entities without proper due

diligence by the firm. Hagens Berman refuses to do so.

6. While receiving generous compensation and reimbursement of expenses,

the Rubinsteins worked on their own agenda at the expense of the firm, ignored and failed

to perform their obligations under the Agreement, and otherwise failed to discharge their

duties of loyalty and full disclosure to the firm.

7. By their actions, the Rubinsteins have put the firm at risk. In addition, they

have threatened further irreparable harm to the members of the firm’s Executive

Committee. This suit is necessary to end the Rubinsteins’ breaches, to protect Hagens

Berman (and nonparties too) from further imminent and eventual harm, and to recover

damages.

II. PARTIES

8. Plaintiff Hagens Berman Sobol Shapiro LLP is a limited liability

partnership organized under the laws of the State of Washington. Headquartered in

Seattle, Washington, Hagens Berman is engaged in the practice of law with additional

offices in Berkeley, California, Los Angeles, California, Phoenix, Arizona, Oak Park,

Illinois, and Boston, Massachusetts. Hagens Berman’s Seattle offices are found at 1301

Fifth Avenue, Suite 2900, Seattle, Washington 98101.

9. Defendant Eran Rubinstein (“Rubinstein”) is an individual residing at 3444

Wiltshire Road, Furlong, Pennsylvania 18925. He is admitted to practice law in the

Commonwealth of Pennsylvania and is married to defendant Susan M. Boltz Rubinstein.

Effective July 30, 2008, Rubinstein became “of counsel” to Hagens Berman, a

relationship that the law firm is terminating.

10. Defendant Susan M. Boltz Rubinstein (“Boltz”) is an individual residing at

3444 Wiltshire Road, Furlong, Pennsylvania 18925. She is admitted to practice law in




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the Commonwealth of Pennsylvania and the State of New York and is married to

defendant Eran Rubinstein. Effective July 30, 2008, Boltz became “of counsel” to Hagens

Berman, a relationship that the law firm is terminating.

III. JURISDICTION AND VENUE

11. This Court has subject matter jurisdiction over this action based on

diversity of citizenship under 28 U.S.C. § 1332(a). Plaintiff is organized under the laws of

the State of Washington and is headquartered here. Defendants are residents of the

Commonwealth of Pennsylvania. Plaintiff seeks compensatory damages in excess of

$75,000 as further set forth in the Prayer for Relief.

12. This Court has personal jurisdiction over the defendants because they

served as “of counsel” to Hagens Berman, which is headquartered here, and defendants

have conducted business in the State of Washington and in this District through this “of

counsel” relationship and under the Agreement. By way of example and without

limitation, Defendants’ contacts with this State and District are extensive and include:

a. Attending and participating in meetings and interviews in the

Hagens Berman Seattle office in 2008 to tout their putative services and propose

that the firm associate with them;

b. Negotiating the terms of the Agreement via telephone calls to

Seattle and e-mails sent to Seattle;

c. Making innumerable telephone calls and sending innumerable e-

mails to Hagens Berman attorneys in Seattle during the 12-month period covered

by the Agreement;

d. Directing correspondence and threats to attorneys in the Seattle

office of Hagens Berman, including much of the correspondence referenced in this

Complaint;




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e. Using a Seattle-based IT system on a regular basis for electronic

resources such as the e-mail system, the firm’s document management system, and

other network-based services that are hosted in Seattle; and

f. Submitting expenses to Hagens Berman’s Seattle-based Controller

for reimbursement.

The Rubinsteins’ contacts with this jurisdiction have been substantial, continuous and

systematic. They have purposefully availed themselves of the benefits of this forum by

deliberately engaging in significant activities here and otherwise creating continuing

obligations between themselves and the firm.

13. Venue is proper in this judicial District pursuant to 28 U.S.C. § 1391(a)(1)

because a substantial part of the events or omissions giving rise to Plaintiff’s claims

occurred in this District. Venue is also proper in this judicial District pursuant to 28

U.S.C. § 1391(a)(3) because Defendants are subject to personal jurisdiction here.

III. STATEMENT OF FACTS

A. The Rubinsteins’ Search for a Law Firm to Support Their Efforts to Develop a Securities Fraud Practice

14. In the Spring and Summer of 2008, the Rubinsteins represented that they

had substantial securities fraud litigation experience. They said they were searching for a

law firm to support their efforts to extend and develop their securities fraud law practice

and wanted a firm with substantial securities litigation experience, a nationwide practice,

and the ability and willingness to make significant financial investments in the

Rubinsteins.

15. Steve Berman, the Managing Partner of Hagens Berman, leads the firm’s

securities practice. Mr. Berman has litigated securities class actions and other securities

matters for over 25 years. Securities class actions in which the firm has played lead roles

include cases involving the Washington Public Power Supply System (“WPPSS”),

Einstein-Noah Bagel, Boston Chicken, Oppenheimer, Morrison Knudsen, ProCyte, Wall




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Data, PriceCostco, MK Rail, Bonneville Pacific, Mercer International, NeoRx, Egghead,

Omega Environmental, Boeing and Enron.

16. The Rubinsteins, well aware of Hagens Berman’s securities litigation

expertise and reputation, approached the firm with an offer to assist the firm in

representing international institutional investors in securities monitoring and litigation

matters.

17. Hagens Berman was interested in the opportunity presented by the

Rubinsteins to augment the firm’s institutional investor protection services that it was

offering. In particular, the firm was attracted by the business contacts that the Rubinsteins

claimed to have in Israel.

18. During negotiations, the Rubinsteins held many discussions with Mr.

Berman and traveled to Seattle to meet with other Hagens Berman attorneys. Ultimately,

an Agreement was reached to affiliate the Rubinsteins with the firm as “of counsel.”

During negotiations, the Rubinsteins did not fully disclose problems that they had

experienced at prior law firms.

B. Hagens Berman and the Rubinsteins Execute a Memorandum of Understanding

19. On July 30, 2008, Hagens Berman and the Rubinsteins executed the

Memorandum of Understanding, referred to herein as the “Agreement.”

20. Material obligations and roles that the Rubinsteins assumed in the

Agreement include the following:

a. Work as “of counsel” to Hagens Berman.

b. Submit billable hours in conformance with the firm’s policies and

guidelines and as expected of other Hagens Berman attorneys.

c. Comply with Hagens Berman policies and guidelines governing the

use of firm electronic resources.




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d. Assist with the firm’s international institutional client outreach as

follows: Duties and Responsibilities. Rubinstein’s [sic2] primary duties will be international institutional client outreach, client maintenance and case identification and analysis. Rubinstein also desires broad experience and exposure in the litigation of securities fraud matters in which clients brought to Hagens by Rubinstein participate. To that end, the parties agree that Rubinstein shall also work on cases to the extent feasible, and in such amounts as does not interfere with their primary duties[.]”

e. Be the “‘primary point of contact’ with clients which they have

currently or with whom they establish primary relations during the course of this

agreement” and assist in the litigation of any cases.

21. The obligations and roles assumed by Hagens Berman in the Agreement

include the following:

a. Pay the Rubinsteins monthly compensation of $30,000 per month

for one year from the date of execution of the Agreement.

b. “[R]eimburse Rubinstein for reasonable travel expenses on receipt

of proper documentation up to $50,000 per year.” (Emphasis added.) (The

Rubinsteins agreed to “seek prior approval from Steve Berman in the event that

this amount needs to be exceeded.”)

c. List the Rubinsteins on the firm’s website with their biographies.

d. Pay for and register a New York office for the Rubinsteins to use in

meeting with potential clients and witnesses and list this office and the Rubinsteins

as working out of this office on the firm web site and marketing materials.

e. Provide the Rubinsteins with Blackberries tied to the Hagens

Berman e-mail system.

2 The Agreement uses Rubinstein in the singular, although it clearly applies to both Eran

and Susan Rubinstein.




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f. Provide the Rubinsteins with access to firm electronic resources

such as e-mail, Lexis and Pacer.

g. If necessary, reimburse the Rubinsteins to hire assistance in

translating, compiling and maintaining monthly trading data detailing the public

securities holdings of Israeli investment houses, insurance companies and pension

funds.

22. In addition to the foregoing, the Agreement provided the Rubinsteins with

certain incentive compensation opportunities for the cases on which they would work,

including 10% of any fees received by Hagens Berman, minus total salaries paid to the

Rubinsteins, “for any case started while Rubinstein is of-counsel to Hagens, in which one

of Rubinstein’s clients located in the State of Israel is lead plaintiff;” and 5% of any fees

received by Hagens Berman, minus total salary paid to the Rubinsteins, “for any case

started while Rubinstein is Of-Counsel to Hagens, in which one of Rubinstein’s clients

located in Ireland and/or the United Kingdom and/or South Africa is lead plaintiff[.]” For

any other matters excepting the Verifone litigation, the Rubinsteins would “be

compensated in the same manner as other attorneys at Hagens for any case started while

Rubinstein is of-counsel to Hagens, in which one of Rubinstein’s clients not located in

Israel, Ireland, United Kingdom or South Africa is lead plaintiff.” C. The Rejected Addendum to the Memorandum of Understanding

23. In the wake of the market demise of risky mortgage-backed securities, the

Rubinsteins wished to develop their purported contacts in Australia who the Rubinsteins

represented were seeking representation for litigation against credit rating agencies

located in the United States.

24. But recognizing that, under the Agreement, the Rubinsteins would not

receive any compensation in association with such cases other than the general

compensation to which they would be entitled as attorneys at Hagens Berman, the




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Rubinsteins sought to amend the Agreement to provide them with (1) additional

compensation in the event that any fees were recovered in specified credit rating agency

litigation (or other unspecified cases) filed as a result of their efforts, and (2) an extension

of the Agreement if any such cases were filed.

25. Hagens Berman offered to amend the Agreement to provide, in pertinent

part, that “Rubinstein will receive 10% of any fees received by Hagens in the Credit

Rating Agencies litigation. The 10% fee will be minus any unrecovered costs, which the

Court does not award to the attorneys in this case,” but the Rubinsteins rejected the terms

offered. Their rejection left the Agreement unaltered. D. Potential Opportunities in Australia

26. The Rubinsteins made several overseas trips to Ireland and Israel, but no

cases resulted from their efforts. By 2009, no communications were made by the

Rubinsteins with respect to these purported clients and, on information and belief, the

Rubinsteins ceased all such efforts with these purported clients by 2009.

27. The Rubinsteins represented that they had promising leads in Australia.

There were discussions and exchanges of ideas between Steve Berman and the

Rubinsteins with regard to potential cases against the credit rating agencies on behalf of

Australian municipalities.

28. The Rubinsteins were slow to provide information. The first information

Hagens Berman received on behalf of a purported Rubinstein contact was for one small

municipality. The information was substantially incomplete and insufficient for the firm

to adequately evaluate any potential claims.

29. Discussions among attorneys at Hagens Berman in regard to a potential

credit rating agency case continued, and some legal research was underway, although

significant gaps in the information being provided by the Rubinsteins continued,

including, among other things, failures to identify their contacts. Mr. Berman encouraged




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the Rubinsteins to provide this information in addition to the other information that they

had allegedly gathered, including offering materials and subscription agreements.

30. The Rubinsteins continued to balk at meaningfully identifying specific

entities that may have claims yet demanded that the firm finance them on an extended trip

of unknown duration to Australia. In an effort to prudently manage the firm’s resources,

and in accordance with the Agreement, Steve Berman requested basic information about

the Rubenstein’s purported contacts and plans of action – who the Rubinsteins would

meet, how long the trip would take, what the estimated expenditures would be and why

the Rubinsteins believed they were necessary. The Rubinsteins refused to provide this

information. They continued to do so despite Mr. Berman’s assurances that he would not

interfere with their “outreach.”

31. Despite a conference call in which the Rubinsteins failed to provide a plan

for the Australian trip and failed to identify any of their purported contacts, Mr. Berman

nonetheless authorized further action. In an e-mail dated February 27, 2009, Steve

Berman told the Rubinsteins that the case was “a go,” meaning for due diligence,

including obtaining and reviewing the necessary entity and investment information. Mr.

Berman specified that precise entity information, investment details, and any offering

materials would be (among other things) needed. E. The Rubinsteins Breached the Agreement and Other Duties Owed to Hagens

Berman and Have Made It Impossible for the Firm to Work with Them

32. An essential element of the Agreement was that the Rubinsteins

communicate with Hagens Berman regarding their client outreach and development

efforts. Their fiduciary duties of loyalty to the firm also mandated that they carry out

these rudimentary obligations. But the Rubinsteins stopped doing so and instead initiated

a campaign of threats and harassment against Steve Berman, other members of the firm’s

Executive Committee, and the firm itself.




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33. On March 4, 2009, Eran Rubinstein wrote Mr. Berman and advised that

they would not agree to provide any potential client information to the firm or permit Mr.

Berman “or anyone else in your firm” to have any contact with the Rubinsteins’ purported

clients. As a stated basis for his position, Rubinstein accused Mr. Berman of attempting

to negotiate contracts with Australian entities through a third party. But Rubinstein had

raised the issue previously, and Mr. Berman had already assured him that neither he nor

anyone else at the firm was doing any such thing.

1. The Rubensteins cease cooperation and commence threats.

34. In response, Steve Berman confirmed, in a letter dated March 4, 2009, that

no contact had been made with the group with which the Rubinsteins had believed Hagens

Berman attorneys had been holding negotiations. In addition, Mr. Berman offered to

dissolve the Agreement so that the Rubinsteins could develop the cases with another firm.

35. Apparently unsatisfied, the Rubinsteins further cut off the firm from

information about the work that the Rubinsteins were allegedly doing in Australia and

otherwise refused to communicate with Mr. Berman in substantive and productive

manners. Indeed, the Rubinsteins unilaterally decided not to communicate with any

Hagens Berman West Coast lawyer on substantive matters and refused to do so.

36. The Rubinsteins then initiated a letter writing campaign of harassment,

sometimes using a lawyer named Nino Tinari. Tinari’s first letter, dated March 9, 2009,

threatened Hagens Berman with a lawsuit. This would be the first of many threats to

come. In addition, and despite multiple requests, the Rubinsteins refused to submit their

time records as required by the Agreement.

37. Deprived of basic information about the purported potential claims at issue,

Hagens Berman was unable to adequately evaluate them. As of March 12, 2009, for

example, the Rubinsteins had transmitted little information. They had provided only




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presentations from a securities broker to a potential client3; 23 “Contract Notes” from this

potential client; 13 general Term Sheets for the same potential client; and a single

Offering Memorandum for Federation A-1 Floating Rate Notes. Among the array of

missing information were: identification of all of the collateralized debt obligations

(“CDOs”) at issue and to whom they were sold; the number of and names of potential

entities that may be part of any representation; any other Offering Memoranda; what other

representations (or disclosures) may have been made about the CDOs; and any reasonable

estimate of the total value of CDOs at issue and potential damages—all information that

was pertinent to evaluate the validity of the claims as required under Federal Rule of Civil

Procedure 11 and the Rules of Professional Conduct.

38. On March 12, 2009, Steve Berman wrote to the Rubinsteins’ lawyer asking

the information necessary for the firm to evaluate the purported case and again reaffirmed

Hagens Berman’s good faith. Mr. Berman reminded the Rubinsteins that the firm had

abided by all terms of the Agreement; had underwritten all trips requested by the

Rubinsteins; and had taken extra efforts not required by the Agreement to support the

Rubinsteins, including offering the Addendum, to provide the Rubinsteins with potential

for additional compensation, and extending the Rubinsteins opportunities to opt-out of the

Agreement

39. Once again, the Rubinsteins refused to provide the requested information.

Nonetheless, Hagens Berman continued good-faith efforts to work through the extreme

difficulty being created by the Rubinsteins. For example, in a letter March 23, 2009,

Steve Berman wrote:

If the Rubinsteins are ultimately retained by Australian clients for such litigation, we will consider whether to accept the representation based on, inter alia, legal research into the viability of the potential common law

3 Hagens Berman has no knowledge of any retainer agreement or lawsuit filed by this

entity and, accordingly, is keeping its identity confidential.




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causes of action, a realistic assessment of the true value of the case, and a review of the missing information that we expect the Rubinsteins will gather, as outlined in our last letter. If the Australian clients retain the Rubinsteins in the matter, and we decline to participate in the representation, we will agree that the Rubinsteins can develop the case(s) on their own or in conjunction with another firm.

40. On March 25, 2009, the Rubinsteins unilaterally decided that Tom Sobol, a

partner in the firm’s Boston office and a member of the firm’s Executive Committee,

should be the lawyer who worked with them on evaluating and filing any credit rating

agency case and that his participation on such a case was “require[d].” Of course, it was

Hagens Berman management’s prerogative to make staffing decisions like this and not the

Rubinsteins’.

41. On March 26, 2009, the Rubinsteins went so far as to threaten to file “an

emergency complaint” with unspecified “disciplinary board(s)” unless Tom Sobol began

working with them in “the immediate future.” This was followed by an e-mail from Eran

Rubinstein to Tom Sobol in which Eran again demanded that Sobol “take over working

with us on this case,” warning that there wasn’t “much more time” due to a “growing

malpractice liability here for all of us” associated with potential statute of limitations

issues.

42. The Rubinsteins’ invocation of potential firm liability to unknown potential

clients with unknown potential claims prompted an immediate response from the firm’s

Executive Committee that included a demand that the Rubinsteins communicate to the

Australian entities with whom the Rubinsteins were purportedly in contact that the firm

did not represent them. That March 31, 2009, letter provided, in pertinent part:

1. Whatever potential Australian clients that you are meeting with are not clients of this firm, and we do not represent their interests. We direct you to communicate this to them. We would do so directly but, of course, we do not know who they are because you have not told us who they are.




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2. We do not know whether your potential Australian clients have viable legal claims against the rating agencies. We simply do not have sufficient information to conclude one way or another because, inter alia, you have not identified them and have not provided us with the relevant documentation and other information necessary to make a full case evaluation, and necessary legal research has not been completed.

3. You continue to raise statute of limitations concerns. We, of course, do not possess sufficient information to fully advise your potential clients on statute of limitations issues. It is your duty to do so in all respects. Nino Tinari’s letter of March 17, 2009 states, with regard to “a statute of limitations issue,” that “the clients have been and continue to be apprised of such.” In your continuing interaction with these unknown potential clients, we direct you to advise them that they should also be considering other firms to represent them. There is no guarantee that Hagens Berman Sobol Shapiro LLP will agree to undertake the representation if and when we receive the information necessary to fully evaluate the potential claims.

4. As we have advised you before, if Australian clients retain you, and we decline to participate in the representation, we will agree that you can develop the case(s) on your own or in conjunction with another firm. If statute of limitations concerns are critical, as you infer, then you should be seeking the counsel of other firms already so that you can move quickly to file a case if need be.

5. Your e-mail references “growing malpractice liability for all of us . . . .” Please be advised that we will not sit idle while you attempt to manufacture a baseless malpractice claim against this firm on behalf of the unknown Australian entities. We do not represent your potential clients.

43. In response to the foregoing letter, on April 2, 2009, the Rubinsteins

insisted that attorney-client relationships had been formed between Hagens Berman and

unspecified Australian entities. But they again failed to provide information necessary for

Hagens Berman to evaluate any potential claims.

44. On April 7, 2009, Steve Berman wrote to Eran Rubinstein and again urged

him to provide a “prompt and thorough production of the information we have

continuously requested on the Rating Agency case.” Mr. Berman explained that




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We can’t advance the ball on behalf of unidentified clients, without factual information that would satisfy Rule 11 and without retainer agreements, and we don’t believe any disciplinary board would require us to do so. And, of course, you are free to have any firm in the country you wish to associate with take this matter on. You had had adequate time to have another firm pick up the reins since you began your letter writing.

Mr. Berman also reiterated the firm’s concern about ensuring that the potential

unidentified clients with whom the Rubinsteins were purportedly communicating

understood that Hagens Berman did not represent them. To that end, Mr. Berman asked

Rubinstein to provide such entities with the following letter:

To Whom It May Concern:

We understand that you may have had communications with Eran and Susan Rubinstein regarding a possible case against Rating Agencies in the United States.

This firm is willing to evaluate and possibly prosecute such claims assuming there exists a sufficient factual and legal basis to do so. In order to make that determination, we need for you to transmit any documents concerning your investment including any offering materials and documents showing the amount of your purchases. We will also need a description of what you were told concerning the investment. To make sure we receive this, please transmit a copy to both myself and the Rubinsteins.

There may or may not be an issue of the timeliness of any case, so providing this information promptly is important.

If you have any questions please direct them to the Rubinsteins, who by contract with us are to be the primary contact with you.

45. The foregoing letter and effort to protect both the potential clients and the

firm was met by yet another bizarre letter of false accusation in return, this time from

Susan Boltz Rubinstein. The Rubinsteins declined to provide to the potential clients the

letter that Mr. Berman requested that they provide, and again refused to provide




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information to the firm that could be used to assess potential claims. They reiterated their

demand to work with Tom Sobol.

46. The firm was unwilling to have the Rubinsteins dictate who would lead a

case. Nonetheless, on behalf of the firm’s Executive Committee, Mr. Sobol reached out to

the Rubinsteins in a good faith effort to resolve the dispute. For example, in an April 14,

2009, e-mail to Eran Rubinstein, Mr. Sobol asked, among other things, whether the

Rubinsteins had communicated to the purported Australian entities that Hagens Berman

had not yet agreed to represent them. The e-mail stated:

Prior to receiving your email of this morning, I had reviewed your earlier correspondence to me with the EC. I am willing to work on some of the issues invoked by the back-and-forth between yourselves and Steve. Let’s jointly make a good faith effort to move forward together.

To do this, we need to understand each other’s needs. I am willing and interested in hearing from you where things are and where they need to go. I ask that you do the same for me. I think we should have a common understanding on a couple of important items:

1. Have you communicated to your Australian clients that the firm has not yet agreed to represent them? It is important that you do so that the potential clients are not relying at this time on the firm to file any case(s) on their behalf. Of course, we review all of the information that you provide and make a final recommendation on whether the firm is indeed willing to take on these cases. And I am sure we both hope that the cases will go forward with HBSS. However, I want to make sure that your clients understand that there needs to be some due diligence period on the part of the firm (in addition to your review), and every potential client should understand that there is a chance that the firm won’t take the case. Please note that I am not expressing an opinion on the merits of the cases at this time and am just reemphasizing the fact that the evaluation still has to be done. In the meantime, your clients need to understand that we are not presently representing them.

2. I am a bit confused about the client identification issue. I understand your position and sensitivity about being the sole gatekeeper to the clients. Without expressing any opinion on that particular issue, let me ask the following: Is it your position that you do not have to identify the clients during the firm’s due diligence process? If so, I really don’t think that I can help you here.




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In order to make a fully informed decision on whether to recommend that we accept or reject the representation on behalf of the firm, I need, among other information, all material information identifying the potential plaintiffs, the details surrounding their purchases, all of the information that they received in association with the offerings and all representations made to them about the offering. I also don’t understand how I can ethically agree to file a case when I don’t know who the plaintiffs are.

Assuming that we can get beyond the foregoing, I need your help with a few substantive observations and questions as I try to quickly get up to speed on this and also attempt to help resolve the issues between you an others in the firm who have been working on this. But let’s first see if we share common ground with regard to the above questions. And please share with me your needs as well.

Regards,

Tom.

P.S.: I am not addressing the issues set forth in your most recent letter to the EC. As I indicated above, I drafted this before I got that letter, and wanted to move the ball forward by getting this to you. Thanks.

47. In a response made on the same day, Rubinstein refused to identify the

supposed “clients,” represented that “the clients have been told that we have not

necessarily agreed to file this case,” and contended that “this firm still has a duty to these

clients as an attorney client relationship has been established.” He was otherwise

uncooperative, reiterated the false accusation that Mr. Berman was attempting to interfere

with their so-called “clients,” and did not provide the firm with any signed retainer

agreements.

48. Incredibly, on April 4, 2009, the Rubinsteins filed a bogus “emergency”

grievance against Mr. Berman with the Washington State Bar Association (the

“Grievance”). The Grievance, which was replete with misrepresentations and bizarre

accusations, failed to identify any violation of the Rules of Professional Responsibility.

The Grievance represented a gross abuse of the disciplinary process employed by an




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associated lawyer against a member of the firm’s management and constituted a blatant

interference with the Agreement and breach of the Rubinsteins’ obligations to Hagens

Berman. Mr. Berman has been responding to the Grievance through ethical counsel.

49. In early April, the firm canceled the Rubinsteins’ Amex cards because

(among other things) of their failures to communicate.

50. On April 12, 2009, the Rubinsteins revealed their motivation for filing the

Grievance. They sent an e-mail to Tom Sobol asserting that Steve Berman was unable to

work on the matter as a result of the Grievance that the Rubinsteins had filed. They

trumped up a bogus grievance in a misguided effort to create a false conflict.

51. On April 17, 2009, Tom Sobol sent the following e-mail to the

Rubinsteins: Eran—

Thanks for your note; I appreciate the communication. I also appreciate your patience in my getting back to you as I have not been in the office.

Because you believe that attorney-client relationships have been established between HBSS and entities that our unknown to us, we need you to please provide the following information:

1. The name and address of each entity with whom you believe an attorney-client relationship has been established;

2. What you have told each entity about the scope of the retention;

3. Copies of all communications between you and each entity;

4. Copies of any and all retainer agreements that have been signed by the entities; and

5. Copies of your communications with third parties regarding the attorney-client agreements, including (a) any materials that you have shared with potential clients who have not signed retainer agreements, and (b) contacts with experts.

Our ethics counsel has advised that it imperative that you provide this information immediately.




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I remain willing to move the ball forward with you and continue the dialogue. I can be available by phone early next week, but I very much hope you can understand that we cannot go any further until you provide this information.

Thanks.

Tom

52. On April 21, 2009, the Rubinsteins wrote Tom Sobol and rejected the

firm’s demand that the Rubinsteins immediately provide the foregoing information. They

did, however, volunteer that “not one of our Australian clients has signed an HBSS

retainer agreement nor has any expert been retained.”

53. On June 9, 2009, Eran Rubinstein transmitted to Tom Sobol a limited

amount of information consisting of (i) a paper of unknown origin regarding collateralized

debt obligations, (ii) a Wall Street Journal article and a photograph of Eran Rubinstein

with one of the persons named in the article, and (iii) a local government review of

investments. The letter identified a local council as “a major lead Australian client.” This

was the first time that the Rubinsteins had affirmatively identified what they believed to

be a client (although, to date, the firm has not received a retainer agreement from this

supposed client).

54. On June 23, 2009, the Rubinsteins provided Tom Sobol with three

“Contingent Fee Agreement[s] for Multi-Plaintiff Group Claims.” The agreements were

ostensibly signed by a single person on behalf of three entities. The Rubinsteins were not

authorized to offer or execute these agreements. The agreements deviated in material

respects from the retainer agreements utilized by Hagens Berman. Further, the

agreements purport to commit Hagens Berman to filing suit on behalf of the entities, when

no such decision had been made and no due diligence by the firm completed. The

Rubinsteins were well aware that the firm had not agreed to accept this litigation.




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55. Although the June 23 letter transmitting the foregoing agreements

represented that it was transmitting additional agreements for four additional entities, no

such agreements were included.

56. In that same letter, the Rubinsteins represented that “[m]ore signed

retainers are forthcoming,” and “[i]t has been predicted that we will receive approximately

fifty (50) more retainer agreements.”

57. Included with the letter was a “memory key” with a high volume of

documents purportedly relevant to the potential claims. Coming on the eve of the

expiration of monthly payments to the Rubinsteins under the Agreement, this is the first

time that the Rubinsteins provided Hagens Berman with virtually any entity-specific

information, with the exception of a small amount of incomplete material for a potential

client provided earlier in the year and discussed above (see footnote 2).

2. The Rubinsteins’ threats escalate.

58. On June 10, 2009, attorney Nino Tinari had Steve Berman personally

served at his home address with a letter advising that the Rubinsteins would provide

retainer agreements and client documents to Tom Sobol, demanding that Berman not

“further delay in the filing of complaints on behalf of these clients,” and closing with the

following threat: “I am hereby advising you that if Eran and Susan are no longer with the

HBSS law firm after July 31, 2009 I will bring suit against you individually.”

59. On June 23, 2009, attorney Nino Tinari wrote to Executive Committee

members Tony Shapiro, Tom Sobol, and Robert Carey, with an inaccurate representation

of the parties’ actions under the Agreement. He stated that the firm would “receive

approximately fifty five (55) signed retainer agreements from Australian institutional

investors.” Tinari closed the letter with the following threat in the event that the firm did

not file credit rating agency litigation on behalf unspecified Australian entities: “I have

advised Susan and Eran that, should you continue to refuse to engage with them towards




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case prosecution within forty eight (48) hours of your receipt of this correspondence, they

should bring this matter to the immediate attention of your respective Disciplinary Boards.

I continue to be impressed with the level of documented evidence supporting several

causes of action. I intend to use that documentation to plead with particularity in federal

court should we not reach a final resolution of the greater issues at hand.”

60. In a separate letter, on June 23, 2009, Rubinstein threatened Tom Sobol:

“If you do not engage with us immediately to discuss the next necessary steps to serve the

interests of these clients and to make sure their rights are not prejudiced any further, we

will have no choice but to turn to the Massachusetts Board of Bar Overseers.”

61. The threats continued to escalate even further. In an e-mail dated June 24,

2009 and directed to Thomas Sobol, Robert Carey and Tony Shapiro, Rubinstein

threatened to sue each in their personal capacity unless the firm capitulated to the

Rubinsteins’ demands.

62. With great bravado, Rubinstein threatened Messrs. Sobol, Carey, and

Shapiro with “the loss of your own homes” and “irreperable [sic] harm to your own

careers.” “I will sleep just fine at night,” Rubinstein announced, “after [attorney] Nino

Tinari attaches your properties and the disc[iplinary] boards and possibly the Federal

authorities come knocking on your doors.”

63. “Put the $12,815.42 for expenses in to our account right now” Rubinstein

demanded.

64. Thus, after refusing to identify supposed clients for months, and after

refusing to provide the firm with documentation with which Hagens Berman could

adequately evaluate the potential claims of such unidentified clients, the Rubinsteins

dumped a volume of material on the firm on June 23 and threatened further bar

complaints, irreparable reputation harm and the loss of the homes of the Executive

Committee members unless Hagens Berman immediately acceded to the Rubinsteins’




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demands to pay more money to them and move forward with credit rating agency

litigation.

65. For Hagens Berman, this was the proverbial “last straw.” Hagens Berman

had been struggling against all odds to salvage the relationship and protect potential

clients, and a review of the Rubinstein “paper dump” was underway when Rubinstein

made his June 24 threat. But the Rubinsteins’ latest threat was one too many. Hagens

Berman initiated this lawsuit to protect the firm’s (and nonparties’) legal rights and

decided to terminate the Rubinsteins’ “of counsel” relationship.

. The Rubinsteins Materially Interfered with Hagens Berman Management and The Firm’s Prerogative to Assign Resources

66. As “of counsel” to the firm, the Rubinsteins have no right to determine

which Hagens Berman attorneys work on specific matters, including matters that the

Rubinsteins develop with the firm. Nor did the Agreement provide them with this right,

other than reserving to the Rubinsteins their right to participate “to the extent feasible,”

and as is consistent with the Rules of Professional Conduct and “in such amounts as does

not interfere with their primary duties.” Nor does the Agreement permit them to refuse

reasonable requests for information and cooperation.

67. By refusing to disclose purported client information in a timely fashion, the

Rubinsteins precluded the firm from being able to conduct the due diligence necessary to

determine whether any Australian entities indeed have meritorious claims.

68. And the Rubinsteins’ failure to divulge information in a timely fashion has

limited the firm’s ability to monitor representations and commitments, if any, that the

Rubinsteins have made to Australian entities purportedly on the firm’s behalf.

69. The Rubinsteins’ persistent failures to communicate with Hagens Berman

generally and Managing Partner Steve Berman in particular has also limited the firm’s

ability to properly supervise them.




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70. The Rubinsteins have no right to purport to bind Hagens Berman to any

retainer agreements and this conduct must be stopped.

. The Rubinsteins Have Advanced Their Own Interests At The Expense Of Hagens Berman And The Rubinsteins’ Own So-Called Clients

71. As the foregoing demonstrates, the Rubinsteins have jeopardized the firm’s

interests with their bad faith maneuvering to advance the Rubinsteins’ own perceived

financial self-interest in exacting further payments from the firm.

72. And although professing to vigilantly protect their so-called clients in

Australia, the Rubinsteins have failed to do so by delaying necessary vetting of the

potential clients’ claims, trying to game Hagens Berman in order to extract more

payments, and apparently failing to obtain alternative counsel to assist despite Hagens

Berman’s pleas that they do so.

H. Hagens Berman Has Fully Performed Its Obligations Under The Agreement

73. In contrast to the Rubinsteins’ breaches and bad faith, Hagens Berman has

fully performed its obligations under the Agreement in good faith.

74. Hagens Berman has made all 12 of the $30,000 monthly compensation

payments to the Rubinsteins, for a total of $360,000.

75. Hagens Berman provided the Rubinsteins with firm American Express

cards and reimbursed the Rubinsteins for their travel expenses, including a trip to Ireland,

two trips to Israel, an extended trip to Australia with associated travel within Australia,

and several trips within the United States (including to Dallas and Chicago). Hagens

Berman has paid a total of approximately $59,00 in travel expenses for the Rubinsteins,

although an accounting is pending, meaning that the number could be higher. The

Rubinsteins appear to have exceeded their travel budget and have received or demanded

reimbursement for expenses that are not “reasonable” under the circumstances.




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76. And the Rubinsteins continue to demand that the firm reimburse thousands

of dollars in unreasonable expenses.

77. The Agreement with the Rubinsteins did not obligate Hagens Berman to

file any case with the Rubinsteins. Nor did it authorize the Rubinsteins to bind the firm to

any representation or piece of litigation. And it did not provide the Rubinsteins with the

right to withhold client information from the firm.

. The Rubinsteins Have Attempted to Scam Other Law Firms

78. In negotiating the Agreement, the Rubinsteins failed to fully disclose

material facts relating to the difficulties that the Rubinsteins had in working with prior law

firms.

79. As just one example, Hagens Berman learned that the Rubinsteins were

sued by another law firm for allegedly engaging in behaviors similar to those exhibited

here.

80. In allegations that are similar to the manner to the manner in which the

Rubinsteins have treated Hagens Berman, the law firm Berman DeValerio averred:

25. By mid-July 2007 the Rubinsteins were openly rejecting requests for information on the status of their efforts and were contriving excuses for refusing to cooperate. On July 12, 2007, Eran Rubinstein wrote an email complaining that a copy of his memorandum providing some information about the Rubinsteins’ client development efforts was sent to other BD partners. On July 18, 2007 the Rubinsteins sent an email to a BD partner in which they announced that they would no longer communicate with the several BD partners who were charged with supporting the firm’s international client development. Instead, the Rubinsteins declared that they would now only report to one BD partner who was not directly involved in the firm’s international client development efforts.

26. The Rubinsteins’ refusal to communicate with all but one of the partners of BD effectively cut off any chance of communication between BD and its existing and prospective clients. The Rubinsteins refused to enable BD to provide information to and receive information from its new clients. BD was also rendered unable to finalize the




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relationships which had been cultivated by the Rubinsteins on behalf of BD. The Rubinsteins postponed meetings and telephone conferences. Despite their commitment to do so, the Rubinsteins failed to assist BD in implementing its agreement with its clients.

27. Despite their unwarranted reluctance to communicate with BD and their interference with BD’s efforts to serve its new clients, the Rubinsteins continued to claim that they were about to deliver several additional significant clients to BD and that BD should continue to work with them and continue to pay their monthly draws and expenses. Indeed, in a July 18, 2007 email to BD, the Rubinsteins claimed to be on the verge of signing on two new clients.

81. On information and belief, the Rubinsteins have had a pattern and practice

of misusing and threatening law firms with which they have affiliated, employing schemes

similar to those alleged here.

COUNT I

DECLARATORY AND INJUNCTIVE RELIEF

82. Hagens Berman realleges the allegations contained in the paragraphs above

and, by this reference, adopts and incorporates them here.

83. As demonstrated above, an actual controversy exists of sufficient

immediacy and reality to warrant the issuance of a declaratory judgment. The declaratory

relief sought will serve to forestall the accrual of additional damages to Hagens Berman,

potentially prevent (additional) harm to third parties, and prevent additional litigation

between the parties and, potentially, among the parties and third parties.

84. Pursuant to 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, Hagens Berman seeks

a Declaration that:

1. Hagens Berman has fully performed under the Agreement;

2. Rubinsteins have breached the Agreement;

3. Rubinsteins have breached the duty of good faith and fair dealing;




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4. Rubinsteins have breached fiduciary duties owed to Hagens

Berman;

5. Hagens Berman’s termination of the Agreement and of Defendants’

“of counsel” status to the firm is proper and effective;

6. Rubinsteins are required to provide to Hagens Berman all

information relating to Rubinsteins’ activities in, or contacts with, Australia that

relate in any way to Hagens Berman, including without limitation:

a. the name and email address and phone numbers for the

contact persons for each Australian entity with whom Rubinsteins have

purportedly established an attorney-client relationship, or with whom

Rubinsteins have communicated an offer of potential representation and

which offer was not rejected by the entity;

b. What Rubinsteins told each entity identified in item a. about

the scope of any purported retention of Hagens Berman;

c. Copies of all documents referring or relating to any

communications between Rubinsteins and each purported client or

prospective client; and

d. Copies of all retainer agreements that person or entities in

Australia have signed or been provided;

7. Rubinsteins must cease and desist from making any representations

to any person or entity that they have any affiliation with or authority to speak or

act on behalf of Hagens Berman;

8. Defendants neither have nor ever have had any right or authority to

enter into any attorney-client relationship with any entity on behalf of Hagens

Berman, and Defendants are therefore solely liable for any losses resulting from

their failures to fulfill their obligations in handling those entities’ claims; and




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9. Hagens Berman has been—and absent the injunctive and

declaratory relief outlined in paragraphs 6 and 7 above—will be irreparably

harmed by Defendants’ conduct and breaches of the Agreement.

COUNT II

BREACH OF CONTRACT



86. Rubinsteins signed the Agreement with Hagens Berman to establish the

terms of their “of counsel” relationship and to receive compensation for their services.

87. Hagens Berman has performed all of its obligations under the Agreement

with the Rubinsteins.

88. Rubinsteins failed to perform their obligations under the Agreement as

described more particularly above.

89. As a result of this conduct, Hagens Berman has suffered damages and harm

for which the Rubinsteins are liable, all in an amount to be proved at trial.

COUNT III

BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING



91. Rubinsteins owed a duty of good faith and fair dealing to Hagens Berman.

92. By their actions and failures to act as described more particularly above,

Rubinsteins have breached that duty of good faith and fair dealing, and any further

obligations or performance owed by Hagens Berman, if any, have been excused.

93. As a result of Rubinsteins’ breaches, Hagens Berman has suffered damages

and harm for which the Rubinsteins are liable, all in an amount to be proved at trial.




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COUNT IV

BREACH OF FIDUCIARY DUTY



95. By entering into the Agreement with Hagens Berman and becoming

associated with Hagens Berman as “of counsel”, the Rubinsteins undertook positions of

trust and confidence and owed fiduciary duties to Hagens Berman.

96. Included in these fiduciary duties were duties of loyalty, good faith,

reasonable care and full disclosure.

97. By their conduct as set forth above, Rubinsteins have breached their

fiduciary duties to Hagens Berman causing it damages and harm for which the

Rubinsteins are liable, all in an amount to be proved at trial.

PRAYER FOR RELIEF

WHEREFORE, Hagens Berman requests that this Court:

A. Declare, pursuant to 28 U.S.C. § 2201, that:

1. Hagens Berman has fully performed under the Agreement, or all

obligations of Hagens Berman under the Agreement have been excused;

2. Rubinsteins have breached the Agreement;

3. Rubinsteins have breached the duty of good faith and fair dealing;

4. Rubinsteins have breached fiduciary duties owed to Hagens

Berman;

5. Hagens Berman’s termination of the Agreement and of

Rubinsteins’ “of counsel” status to the firm is proper and effective;



relate in any way to Hagens Berman, including without limitation:




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a. the name and email address and phone numbers for the

contact persons for each Australian entity with whom Rubinsteins have

purportedly established an attorney-client relationship, or with whom

Rubinsteins have communicated an offer of potential representation and

which offer was not rejected by the entity;

b. What Rubinsteins told each entity identified in item a. about

the scope of any purported retention of Hagens Berman;

c. Copies of all documents referring or relating to any

communications between Rubinsteins and each purported client or

prospective client; and

d. Copies of all retainer agreements that person or entities in

Australia have signed or been provided;



act on behalf of Hagens Berman;

8. Rubinsteins neither have nor ever have had any right or authority to


Berman; and

9. Hagens Berman has been—and absent the injunctive and

declaratory relief outlined in paragraphs 6 and 7 above—will be irreparably

harmed by Rubinsteins’ conduct and breaches of the Agreement.

B. Enter preliminary and permanent injunctive relief providing that:



relate in any way to Hagens Berman;




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act on behalf of Hagens Berman; and

3. Rubinsteins neither have nor ever have had any right or authority to


Berman;

C. Enter judgment for Hagens Berman on all Counts.

D. Award Hagens Berman all damages proved at trial, totaling not less than

$75,000, including return of sums unjustly received by Rubinsteins, plus interest and costs

as provided by law;

E. Grant Hagens Berman such other damages as provided by law, and any

other relief that the Court deems just and proper.

Respectfully submitted this 14th day of July, 2009. MCNAUL EBEL NAWROT & HELGREN PLLC By: /s/ Gregory J. Hollon Peter M. Vial, WSBA No. 6408 Robert M. Sulkin, WSBA No. 15425 Gregory J. Hollon, WSBA No. 26311 David A. Linehan, WSBA No. 34281 600 University Street, Suite 2700 Seattle, Washington 98101-3143 Telephone (206) 467-1816 Facsimile (206) 624-5128 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiff Hagens Berman Sobol Shapiro LLP




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CERTIFICATE OF SERVICE

I certify that on July 14, 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system.

I certify that I have caused a legal messenger to attempt delivery, sent via Federal express, via facsimile and email forgoing to Eran Rubinstein and Susan M. Boltz Rubinstein, 3444 Wiltshire Road, Furlong, Pennsylvania 18925, [email protected], Facsimile (646) 205-3251.

I further certify that I have caused the hard copies of the foregoing to be delivered by email, fax and send via Federal Express to Nino V. Tinari, 1528 Walnut Street, Suite #400, Philadelphia, PA 19102, [email protected], Facsimile 215-790-4002. DATED July 14, 2009.

By: /s/ Gregory J. Hollon Gregory J. Hollon 600 University Street, Suite 2700 Seattle, Washington 98101-3143 Telephone (206) 467-1816 Facsimile (206) 624-5128

mailto:[email protected]

mailto:[email protected]




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JURY DEMAND

Plaintiff demands a trial by jury. DATED: June 30, 2009

MCNAUL EBEL NAWROT & HELGREN PLLC By: /s/ Peter M. Vial Peter M. Vial, WSBA No. 6408 Robert M. Sulkin, WSBA 15425 David A. Linehan, WSBA 34281 600 University Street, Suite 2700 Seattle, Washington 98101-3143 Telephone (206) 467-1816 Facsimile (206) 624-5128 [email protected] [email protected] [email protected] Attorneys for Plaintiff Hagens Berman Sobol Shapiro LLP

2554-001 vg111803 7/14/09

the honorable ricardo s. martinez - the am law daily

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