JOHN A. ARTZ and JOHN S. ARTZ, COMPLAINT...

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

WARRIOR SPORTS, INC., A Michigan Corporation, Case No.

Plaintiff, Hon. v

DICKINSON WRIGHT, PLLC., a Michigan Professional Limited Liability Company; JOHN A. ARTZ, P.C., d/b/a ARTZ & ARTZ, P.C., a Michigan Professional Corporation; JOHN A. ARTZ and JOHN S. ARTZ,

Defendants. ____________________________________/

COMPLAINT AND DEMAND FOR TRIAL BY JURY

Warrior Sports, Inc. ("Warrior ) states:

THE PARTIES

1. Warrior is a Michigan corporation incorporated under the laws of Michigan with

its principal offices in Macomb County, Michigan. Warrior is a citizen of Michigan.

2. Dickinson Wright PLLC ("DW") is a professional limited liability company formed

under the laws of Michigan with its principal offices in Wayne County, Michigan. DW is a

citizen of Michigan.

3. John A. Artz, P.C. d/b/a Artz & Artz, P.C. (the "Artz Firm") is a Professional

Corporation, formed under the laws of Michigan, the registered office of which is located in

Oakland County, Michigan. The Artz Firm is a citizen of Michigan.

Case 2:09-cv-12102-GER-DAS Document 1 Filed 06/01/2009 of 21

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4. John A. Artz is an individual residing in Oakland County, Michigan and is a

citizen of Michigan.

5. John S. Artz is an individual residing in Wayne County, Michigan and is a citizen

of Michigan.

JURISDICTION AND VENUE

6. The controversy involves determination of issues involving application of patent

law and substantial questions relating to patent law. Accordingly, this Court has jurisdiction

under 28 U.S.C. §1338.

7. All Defendants do or have done business in this District. The current principal

place of business of DW, John A. Artz and John S. Artz is in this District. The attorney client

relation currently existing among Warrior and DW, John A. Artz and John A. Artz arose in this

District. Many of the alleged breaches of that contract and/or the tort alleged occurred in this

District. Accordingly, this Court has venue under 28 U.S.C. § 1391(a).

COMMON ALLEGATIONS

A. The Attorney-Client Relations

8. All Defendants are and/or were engaged in the practice of law.

9. An attorney client relationship has existed between Warrior, as client, and John

A. Artz and John S. Artz, as attorneys, for many years up to the present.

10. The relationship arose initially when John A. Artz and John S. Artz were

employed by a law firm named Brooks & Kushman, P.C. ( the B&K law firm ).

11. Subsequently, John A. Artz and John S. Artz left that firm and were employed at

the Artz Firm.


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12. The Artz Firm merged with the DW Firm in June 2007, publically announcing the

merger with a press release.

13. At that point, the attorney client relationship between Warrior and John A. Artz

and John S. Artz continued and exists as of this date.

14. DW became the successor in interest to the Artz Firm insofar as the attorney

client relationship existed with Warrior. Warrior was not consulted whether it would retain DW

as its lawyers. It began receiving statements from the DW law firm for services rendered by the

Artzes, who had become equity partners at DW as a result of the merger.

15. An attorney client relationship exists between Warrior and DW as of this date.

B. Nature of the Representation

16. Warrior is engaged in the design, manufacture and sale of sports equipment

including lacrosse heads and sticks.

17. Many of Warrior's designs and products are patented.

18. John A. Artz and John S. Artz are primarily patent attorneys and hold themselves

out as experts in that field.

19. Throughout the relationship, first at Brooks and Kushman, then with the Artz

Firm, and now with DW, the primary legal services provided to Warrior by John A. Artz and

John S. Artz have been in the speciality of patent law and related litigation.

C. The `216 Patent (a reissue of the `925 patent)

20. On August 12, 2003, the United States Patent and Trademark Office ("PTO )

issued United States Patent No. RE 38,216 ("the `216 Patent'), entitled "Scooped Lacrosse

Head" to inventors David Morrow and Philip Naumberg. The `216 Patent is a reissue of US

Patent No. 5,568,925 ("the `925 Patent ).


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21. Warrior Lacrosse, Inc. became the owner by assignment of the '216 Patent and,

owns all right, title and interest in it. Warrior Lacrosse subsequently changed its name to

Warrior Sports, Inc. ("Warrior") and this entity owns the rights and title to the '216 Patent.

22. Warrior retained the Detroit law firm of Barnes, Kisselle, Raisch, Choate

Whittenmore & Hulbert ("the Barnes Kisselle law firm") to file a patent application on the

subject matter that became the '925 Patent. The application was filed on August 18, 1995 and

the 925 patent issued on October 29, 1996.

23. Warrior transferred its patent files, including the file for the '925 Patent from

Barnes Kisselle to the B&K law firm in Southfield, Michigan.

24. The B&K law firm filed an application for Reissue of the '925 Patent on October

19, 1998. John S. Artz was the attorney on the application. Subsequently, John A. Artz and

John A. Artz started the Artz Firm.

25. Warrior transferred responsibility for the application for the '216 Patent to the Artz

Firm during the period from late 1999 to early 2000. The attorney primarily responsible for

handling Warrior files at the Artz Firm, including the continuing patent application for the '216

Patent, was Mr. John S. Artz.

26. The Artz Firm entered the '925 Patent and the '216 reissue application into its

docketing system. The Artz Firm undertook responsibility for making maintenance fee

payments on any patent owned by Warrior, including the '925 Patent and the '216 Patent.

27. The '216 reissue Patent ultimately issued on August 12, 2003.

28. The United States Patent and Trademark Office ( PTO ) requires that three

separate maintenance fees be paid on an issued patent. The first is due between the third and

fourth years after issuance of the patent ("First Maintenance Fee ). The second is due


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between the seventh and eighth years after issuance of the patent ("Second Maintenance

Fee"). The third is due between the eleventh and twelve years after issuance of the patent

("Third Maintenance Fee").

29. The First Maintenance Fee for the '925 Patent was paid by the Artz Firm after

there had supposedly been an issue as to which of Warrior's law firms was responsible for

paying it.

30. The Second Maintenance Fee for the '216 Patent was due during the period

ending in October, 2004.

D. Non-Payment Of The `216 Maintenance Fee

31. The Artz Firm undertook responsibility for paying the Second Maintenance Fee

on the '216 patent.

32. The responsibility for paying the Second Maintenance Fee for the '216 reissue

patent was ultimately that of Mr. John S. Artz, the principal attorney for the '925 patent, which

was succeeded by its '216 reissue patent.

33. The Second Maintenance Fee was due in October 2004.

34. The Artz Firm and John S. Artz failed to pay the Second Maintenance Fee on the

'216 patent when due. The Artz Firm failed to confirm that a payment had been made, and

then failed to check that the payment had been received by the PTO during the period of time

when a missed maintenance fee could have been automatically accepted by the PTO.

35. As a direct and proximate result of the failure to pay the Second Maintenance

Fee, the '216 patent lapsed on October 29, 2004.

36. Warrior was unaware of the non-payment and consequent lapse until it was

brought to the attention of John S. Artz on January 12, 2007, by counsel for STX, LLC ( STX )


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with which Warrior was then in litigation in USDC Ed. Mi Case Nos. 04-71842 and 04-70363

(the "STX Litigation"). The STX Litigation involved charges by Warrior that the 216 Patent was

infringed by STX. Prior to that litigation, under advice by the Artz Firm, Warrior had asserted

the 216 patent against other lacrosse head product competitors.

37. Efforts by Defendants to have the '216 patent reinstated through petitions and

appeals to the PTO in 2007 and 2008 were unsuccessful.

E. Failure to Advise of the Consequences of the Lapse

38. In or about late January, 2007, Defendant John S. Artz telephoned the CEO of

Warrior and communicated that the 216 Patent had lapsed.

39. John S. Artz portrayed the lapse as a simple, administrative error and a routine

occurrence which could and would be easily rectified.

40. John S. Artz entirely failed to explain to Warrior the potential risks and

consequences of the lapse. Other than the brief phone call, the Artz Firm made no other

communication to Warrior about the lapse.

F. STX Litigation

41. On January 30, 2004, Warrior, on the recommendation of the Artz Firm, brought

suit against a competitor, in the lacrosse equipment market STX. Warrior claimed that STX

was infringing on the '216 patent.

42. The STX Litigation was intensively litigated in 2005 and 2006. During the course

of the STX Litigation, STX s attorney first advised the Artz Firm that the '216 patent had lapsed

due to the non-payment of the Second Maintenance Fee.


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43. STX also claimed in that case that the '216 Patent should be invalidated due to

the inequitable conduct on the part of John S. Artz, pertaining to alleged non-disclosure of

relevant earlier art allegedly known to John S. Artz.

44. STX also claimed John S. Artz willfully deceived the PTO in the application

process for issuance of the '216 patent. STX further claimed that the 216 patent was

improperly re-issued in light of the scope of the 925 patent, which, if true, would be attributable

to John S. Artz.

45. Due to the negligence of the Artz Firm and its members in failing to pay the

Second Maintenance Fee, and the lapse of the 216 patent in October, 2004, all but a small

fraction of the infringement alleged against STX from the invalidity claim was wiped out.

Because of the lapse, STX was able to bifurcate Warrior's infringement claim. That claim was

stayed while STX s inequitable conduct claim proceeded to trial in 2008.

46. DW, through Edward Pappas, John A. Artz and John S. Artz, represented

Warrior in the trial of the inequitable conduct aspect of the STX Litigation.

47. Even before the lapse of the 216 patent was known to Defendants, the District

Court in the STX Litigation expressed concern that the inequitable conduct defense asserted

by STX created a potential conflict of interest vis-à-vis at least John S. Artz, who was both the

prosecuting patent attorney and trial counsel for Warrior. Defendants did not advise or disclose

to Warrior the potential conflict inherent in such situation. Once the lapse of the patent became

known in 2007, these Defendants each had a conflict of interest in continuing to represent

Warrior in the STX Litigation, since a result adverse to Warrior on STX's inequitable conduct

claim had at least the potential of diminishing the claim for damages against Defendants in this

present legal malpractice action.


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48. In other words, it was clear to the Defendants that what was bad for the client,

Warrior, in the STX Litigation was potentially good for Defendants in this legal malpractice

case, thus representing an unwaivable conflict of interest, of which the Defendants were well

aware. See MRPC 1.7(b).

49. Additionally, in violation of their ethical and standard of care duties to keep

Warrior advised of the status and events of the STX Litigation, and to counsel Warrior as to

strategy and potential causes of action, Defendants completely and utterly failed to

communicate with Warrior in this regard, essentially abandoning Warrior in this aspect of the

representation. See MRPC 1.4.

G. Settlement of STX Litigation

50. Warrior became suspicious regarding the manner in which John S. Artz

minimized the lapse of the 216 Patent while the STX Litigation was ongoing. Accordingly,

Warrior sought second opinions about the potential of the 216 patent becoming reinstated.

51. As a result, in 2008 Warrior became concerned that John S. Artz had seriously

misrepresented the risks involved in getting the patent reinstated.

52. Warrior also became concerned about the near total lack of communication from

DW about the STX Litigation.

53. The inequitable conduct phase of the STX Litigation proceeded through hearing

before the Hon. Julian Abele Cook.

54. The sole communication from DW with respect to the hearing was to the effect

that the proofs had gone in well. Despite being Warrior s counsel of record, DW gave Warrior

no advice as to the overall resolution of the matter.


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55. By that time, DW had also undertaken, without any prior notice to or permission

from Warrior, to file an action in U.S. District Court seeking to force the PTO to reinstate the

lapsed 216 Patent

a drastic action which was a far cry from John S. Artz s initial

representation to Warrior that the lapse would be easily and readily cured. As a result of

independent investigation and without any advice from DW, Warrior concluded that the

likelihood of success of the Federal Action filed by DW was very slim.

56. STX sought to intervene in the District Court action, revealing alleged facts

about the Artz Firm not known to Warrior. STX s proposed intervention caused even more

concern that the District Court action would be unsuccessful. STX was potentially a more

dedicated adversary than the PTO.

57. Warrior felt its attorneys of record were not only non-communicative but, worse,

that they had actively misrepresented the situations involving the initial lapse, had failed to

communicate the denials by the PTO, were tainted by conflict and had seriously misjudged

STX s determination. It seemed to Warrior as if DW was just trying to cover itself. Warrior felt

it simply could not trust its attorneys of record, and had no reliable information from them upon

which to make informed decisions.

58. Under all these circumstances, Warrior had little or no recourse but to settle the

STX Litigation on the best terms possible.

59. Warrior did, in fact, as a proximate result of Defendants

malpractice and

breaches of their ethical duties, settle the STX Litigation on terms less favorable than if

Defendants had complied with their professional duties.


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H. Reinstatement of 216 Patent

60. Through the intervention of the U.S. District Court Judge, the PTO agreed to

accept the Second Maintenance Fee and reinstate the 216 Patent effective May 1, 2009.

61. However, as will be elaborated below, the reinstatement, after the extensive

lapse period has done and will do little, if anything, to ameliorate Warrior s damages resulting

from the lapse in 2004.

I. Warrior s Damages

62. As a direct and proximate result of Defendants malpractice, Warrior has suffered

damages in amounts currently estimated to exceed $33 million.

63. Those damages fall into the following general categories:

1. Diminution of STX Infringement Claim

64. Prior to the lapse of the 216 patent in 2004, STX was a primary competitor of

Warrior in the lacrosse head and convoyed product market. Defendants, as counsel for Warrior

asserting infringement of the 216 patent, consistently argued in the STX Litigation that Warrior

had suffered millions of dollars of damages based in large part on a theory of lost profits of

lacrosse head products and convoyed sales. Defendants retained a well-known patent

damages expert (billed to Warrior) to develop a lost profits theory in the STX Litigation. That

theory was based on Defendants analysis of the lacrosse head market and access to

Warrior s and STX s sales records. That theory was based on Defendants analysis that

beginning in 2003, the only competitors in the curved head lacrosse market were STX and

Warrior.

65. Never prior to learning of the 216 patent lapse, did Defendants inform Warrior

that the infringement claim asserted against STX suffered from any significant problems.


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Never did Defendants advise Warrior that the STX Litigation would likely result in anything

other than a multi-million dollar judgment in Warrior s favor. Never did Defendants explain to

Warrior why John S. Artz s alleged failure to disclose art to the PTO (the basis for STX s

allegations of inequitable conduct) during the re-issue proceedings could have invalidated the

216 patent.

66. Defendants malpractice in allowing the 216 Patent to lapse led to the 216

patent being void between 2004 and 2009 and a loss of rights to enforce the patent against

STX for infringement, and loss of ability to effectively enforce any future rights arising from the

216 patent (which had an expiration date of 2015) against STX. Were it not for Defendants

malpractice (i.e. allowing the 216 Patent to lapse, engaging in acts that gave rise to the

allegations of inequitable conduct, conflict of interest, and failure to communicate) Warrior

would not have been forced to settle the STX Litigation on unfavorable terms. Defendants

malpractice in allowing the lapse, the conflict of interest, and failure to communicate led to the

conclusion that the 216 patent could not prevent STX in the future from selling lacrosse head

products that otherwise infringed the 216 patent.

67. Using the same methodology employed by the expert hired by Defendants in the

STX Litigation, Warrior s expert in this case estimates Warrior should have recovered many

millions of dollars from STX and could have forced STX to cease making and selling

competing lacrosse head products versus the paltry settlement Warrior was forced to accept.

68. Defendants should be judicially estopped to claim otherwise.

2. Lost Royalties deBeers & Sons

69. With the 216 Patent in place Warrior had a virtual and legal monopoly on a

lacrosse head considered currently to be the state of the art in the industry.


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70. Warrior s patent allowed it to exclude its competitors from this lucrative market.

71. One such competitor is named deBeers & Sons ( deBeers ). Prior to the lapse,

recognizing the legitimacy and effect of Warrior s patent, deBeers agreed to and did pay

Warrior substantial royalties under a license agreement to be able to produce and market an

infringing product. The agreement is well-known to the Defendants, as it was drafted by John

S. Artz and John A. Artz.

72. The lapse of the 216 Patent very quickly became public knowledge in the

industry, and when deBeers found out that the 216 patent had lapsed, it promptly stopped

making royalty payments and sought refund of royalties previously paid under the license

agreement.

73. The recent reinstatement notwithstanding, deBeers has indicated that it does not

intend to pay under the agreement. It has pointed out other competitors entering the market

during the lapse period and to the potential for other competitors to try to invalidate the 216

based on the STX theory of inequitable conduct, STX s pleadings having become a public

roadmap for the prosecution of such a claim. Thus, Warrior has lost a substantial amount of

revenue from the deBeers license, and may well be forced to expend significant amounts of

money in potential litigation to enforce what rights remain under the license agreement.

3. Lost Profits due to Intervening Rights of Other Competitors

74. A doctrine exists in patent law known as intervening rights. It is an equitable

doctrine which, in essence, allows competitors with an otherwise infringing product to enter the

market during any lapse period of the infringed patent, to at least some degree.

75. Substantial new competitors of Warrior in the curved head and convoyed sales

markets entered the market during the lapse of the 216 Patent. They remain in the market


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vigorously competing against Warrior with products that emulate the patented design

otherwise protected by the 216 patent. As a direct and proximate result of the Defendants

malpractice, in the future Warrior will likely be forced to cede its market share and/or reduce

profit it otherwise would have enjoyed with an unencumbered 216 patent in place

76. While the presence of new competitors in the market will involve competing legal

arguments, enforcement of whatever rights now remain in the 216 patent to keep these

products out of the market, or minimize loss of market share, will entail significant expenses

separate and apart from damages set forth in Paragraph 75. The bottom line is these

competitors are now in the market and what was once a legal monopoly for Warrior is so no

more.

77. As a result of these competitors entering the market, which is a proximate result

of Defendants malpractice, Warrior has or will suffer damages in the millions of dollars.

4. Attorney Fees

78. Incredibly, the Artz Firm and DW billed Warrior for attempting to correct their own

malpractice.

79. Defendants have also billed Warrior several million dollars for representation in

the STX Litigation and related matters.

80. Warrior has paid significant fees and DW has threatened suit for the collection of

$1.4 million more.

81. These fees should never have been billed and Warrior is entitled to refunds as

damages and declaratory judgment that no further amounts are due.


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5. Additional Damages

82. As elaborated, infra, Defendants have committed other acts of malpractice

unrelated to the 216 Patent.

83. Warrior has been proximately damaged by those acts.

J. Successor Liability of DW

84. DW maintains it has no liability for acts and omissions attributable to the Artz

Firm prior to June 2007.

85. Warrior asserts that DW has successor liability for all acts/omissions attributable

to the Artz Firm.

86. DW characterizes the joining of the two firms as an acquisition of assets for

cash and hiring of individual employees.

87. Warrior asserts that the facts and circumstances establish either a merger or de

facto merger, making DW liable, as a matter of law. Even if the joinder is ultimately viewed as

a cash acquisition (which it is not) DW is still liable under Michigan law.

88. The Artz Firm and DW entered into what they called a Practice Combination

Agreement Between Dickinson Wright, PLLC and Artz & Artz, P.C. (the Combination

Agreement ), effective June 1, 2007. Pertinent terms include:

the respective law practices of DW and A&A shall be combined and shall continue

through DW (emphasis added [¶2(a)];

as of the Effective Date A&A shall cease to be engaged in the practice of law and shall retain its corporate existence for the sole purposes of collecting certain accounts receivable , paying its accrued liabilities, and otherwise winding up its business affairs in an orderly manner. Upon completion A&A shall be dissolved in accordance with applicable law. [¶2(b)];

D.W. assumed the Artz Firm office lease from 5/1/08 to its termination on 1/31/09, as well as leases on three copiers and a postage machine. [¶2(c);


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with these exceptions, DW assumes no existing, accrued or contingent

liabilities of A&A. [¶2(c)];

D.W. hired all the Artz Firm attorneys as well as staff. [¶¶2(d), 3 and 4];

John A. Artz and John S. Artz became Equity Members of D.W. [¶3];

D.W. purchased certain Artz Firm assets for $300,000. [¶2(e)];

The Artz Firm may continue such practice of using a home office. [¶5];

D.W. undertook all relocation costs. [¶5];

D.W. required the Artz Firm to indemnify D.W. for prior acts and to purchase tail insurance having terms and coverage amounts acceptable to D.W [¶8];

each party was permitted a period of due diligence. [¶11]; and

after the Effective Date the Artz Firm attorneys were covered by D.W. s malpractice insurance for services performed after the Effective Date. [¶10].

89. The label DW applies to the joining is not controlling if the joining is found to be a

merger, It is the law in Michigan that if two companies merge, the obligations of each become

obligations of the resulting corporation. Turner v Bituminous Casualty Co., 397 Mich 406, 426

(1976).

90. This is true if, regardless of what the parties call it, it is deemed a de facto

merger . Id. at 420. The Court listed four elements of de facto merger:

(1) Continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations

(2) Continuity of shareholders;

(3) The seller corporation ceases ordinary business; and

(4) The purchasing corporation assumes those liabilities and obligations of seller necessary for uninterrupted business operations of the seller.

Id. at 420.


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91. The natural purpose of the deal was to incorporate the old into the new with as

much the same structure and operation as possible. Id at 426. The very language of the

Combination Agreement satisfies all four elements:

(1) All the assets of the Artz Firm including physical, personnel, location (home office/lease) and general business were incorporated into DW;

(2) The principals of the Artz Firm became shareholders of DW;

(3) The Artz Firm was required to cease its ordinary business

the practice of law, which it in fact did;

(4) D.W. assumed the real property lease, copiers and postage machine leases, personnel expenses, attorney salaries, malpractice insurance

in short everything necessary for uninterrupted business operations of the Artz Firm.

92. As far as Warrior was concerned one month it was represented by the Artz Firm,

the next it was represented by the same lawyers at DW. Even the billing format was identical

with the exception of the name of the law firm on top. DW took over the appeal on the 216

Patent. Clearly, DW wanted Warrior as a client.

93. The parties own pre-joinder confidentiality agreement set forth that the parties

have agreed to commence preliminary discussions concerning a possible merger or similar

business transaction And in correspondence before and after between the Artz Firm and

DW, the parties referred to their joinder as a merger . One exchange of e-mails specifically

refuted that the deal was an acquisition . In sworn affidavits submitted to the PTO, DW

attorneys called the deal a merger . Defendants should be judicially estopped from denying,

for litigation purposes, that the joinder of the firms was anything but a merger.


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K. Additional Breaches of Standard of Care

1. Before the PTO

94. Both DW and the Artz Firm were negligent in their attempts to have the PTO

reinstate the 216 Patent. They were negligent in presenting a case to establish that the delay

in paying the Second Maintenance Fee was "unavoidable" pursuant to 35 USC § 41 (c) (1).

95. The August 6, 2008 decision by the PTO Office of Deputy Commissioner, which

denied Defendants' request for reconsideration of the original December 3, 2007 decision

denying reinstatement, lists several direct failures by Defendants to provide the facts and

documentation to prove the failure to pay the fee was "unavoidable." Numerous decisions from

the PTO refusing to accept a late-submitted maintenance fee under Section 41(c)(1) should

have made clear to Defendants that a substantially better-developed factual argument (such

as the one belatedly made to the U.S. District Court in 2009) should have been made to the

PTO during the first petition in 2007. Had that argument been better developed, the 216 patent

could have been reinstated in 2007 instead of 2009, resulting in a better bargaining position

vis-à-vis STX, deBeers, and new competitors.

96. Indeed, the Director of the Office of Petitions listed in his August 6, 2008

decision, several categories of evidence which Defendants could have submitted to establish

unavoidable delay but which Defendants failed to do.

97. Such failure constituted negligence and breach of the duty of care owed Warrior

and is separate and apart from the initial malpractice resulting from failure to pay the '216

Second Maintenance Fee.


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2. Non- 216 Related Matters

98. Defendants have variously been negligent and have breached their professional,

duties in the following additional regards.

99. Defendants failed to pay, after having undertaken to pay the maintenance fee for

the Warrior patent known as Cobra RE 38,216.

100. Defendants efforts to have this patent reinstated have failed.

101. In filing applications relating to a Warrior product known as Spyne (App. #

20081063848) Defendants improperly claimed priority in violation of Paris Convention Article

4C(4) resulting in loss of foreign filing rights.

102. Despite having undertaken to do so, Defendants failed to timely file application

for patent protection within one year from first public disclosure precluding Warrior from

obtaining patent protection for the following products:

a. King Gloves

Accents U.S.

Application 11/838,442

b. Rounded "DV8"

Knob cap U.S.

Application 11/839,016

c. Integral Rounded

Knobbed "DV8"

US Application 60/955,917

103. Despite having undertaken to do so, Defendants failed to timely prosecute the

following patent applications, which resulted in the applications going abandoned:


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a. US Application 11/129,677 for Nets for Lacrosse Heads

b. US Application 11/129,657 for Nets for Sporting Equipment

c. U.S. Application 29/280,384 for Sticker

d. U.S. Application 29/280,385 for Stickers

104. Despite having undertaken to do so, Defendants failed to timely pay maintenance

fees on the following patent, which potentially may result in intervening rights afforded to

competitors: US Patent 6,036,010 for Game Ball Box and Method for Assembling Same .

3. Representational Blackmail

105. In breach of its duty of zealous representation, DW impliedly threatened (by e-

mail and voice message) not to file an important post-trial brief in the inequitable conduct trial

phase of the STX Litigation unless Warrior immediately paid a $100,000 fee, which was clearly

not owed under the circumstances

an additional reason Warrior felt compelled to settle the

STX Litigation.

COUNT I LEGAL MALPRACTICE

106. An attorney client relationship existed or exists between Warrior and all

Defendants.

107. Defendants owed to Warrior the full complement of duties owed by every

attorney to every client heightened, in this case, in the speciality of patent law, in which

Defendants hold themselves out as experts.

108. These duties include by way of example, zealous representation, due care,

competency, compliance with the standards extant in the community in which Defendants

practice, honestly, loyalty, full and fair communication and observance of ethical standards.


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109. As set forth at length above, Defendants were negligent in the performance of

these duties, breached each of these duties, and failed to comport themselves ethically and in

conformance with standards of due care and competency.

110. The following chart broadly summarizes these categories of legal malpractice:

Category Statement of Liability

Failure to pay maintenance fee on 216

Artz Firm and individual Defendants liable for entirety of damages flowing from lapse of patent; DW liable for entirety of damages as successor by merger to Artz Firm

Breaches of duty forcing Warrior to settle the STX Litigation on unfavorable terms

DW independently liable for breaches of standards of care relating to candor to client, conflict of interest, and zealous representation. Artz Firm and individual Defendants liable for and same reasons as well as for

acts resulting in inequitable conduct allegations. Failure to effectuate timely reinstatement of 216

Artz firm and individual Defendants liable for failure of zealous representation in first petition to PTO. DW independently liable for failure of zealous representation in appeal to PTO.

Miscellaneous All Defendants directly liable for the matters addressed in ¶¶ 99-104.

111. As a direct and proximate result of these breaches and negligence, Warrior has

suffered damages as set forth above in amounts not yet fully determined but estimated to

exceed $33 million.

112. For legal malpractice, Defendants are liable to Warrior for these damages.

RELIEF SOUGHT

Warrior requests judgment against Defendants as follows:

1. Monetary damages in such amounts as may be proven by Warrior, and which

Warrior asserts are believed to be in excess of $33,000,000.00;

2. Costs and attorneys fees; and

3. Such other relief as is just.


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JURY DEMAND

Warrior demands trial by jury.

By: /s/ David M. Black

David M. Black (P25047) Andrew Kochanowski (P55117) Attorney for Plaintiff 2000 Town Center, Suite 900 Southfield, Michigan 48075-1100 (248) 355-0300

Dated: June 1, 2009


JOHN A. ARTZ and JOHN S. ARTZ, COMPLAINT...

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