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Litigation and War – Managing Expectations

business litigation war tank lawsuit fight

As a career business litigator, I have handled, literally, hundreds of commercial disputes for my clients.  Whether being involved in bet-the-company type litigation, where the stakes and the legal fees are high, or when appearing at Pretrial Conferences for clients in courts of limited jurisdiction, one thing is constant, the unknown.  You don’t know how long it is going to take to resolve the case, you don’t know how much it is going to cost, you don’t know how badly the other side wants to fight, and you don’t know what the Judge is going to think of the merits of your case or the other side’s position.

Litigation is like war on a smaller, more “civilized” scale.  America right now is passively watching in horror as bloody battles rage across the globe.  Fighting for autonomy from Russia is intensifying in southern Ukraine.  A costly civil war that started in Syria is now spilling into war torn Iraq.  Reports of hundreds of thousands of civilians, dying, being forced from their homes, and caught in the cross fire of these conflicts fill the press.

Thousands of Hamas rockets were launched from the Gaza strip into Israeli cities, which were intercepted by the American financed Iron Dome.   It appeared that Israel had their dispute under control. However, reports reveal that what the Israeli intelligence did not know was that its neighbor had dug several miles of interconnected underground tunnels deep into Israel in order to one day, by surprise, surface and inflict bloodshed and devastation on its civilian population.

Civilian casualties are mounting, in nations worldwide, as a result of these conflicts.  When will it end, how many more days, weeks, months, deaths, before it stops.  All . . . unknown.

In litigation, anyone that thinks they can go into battle with an adversary and know what will happen, should take lessons from these large scale military conflicts. Litigation, like war, is unpredictable. No litigant enters into a legal dispute with a guaranty of victory. Just like the conflicts described above, if you sue or are sued, it is unknown how long the fight will last, how much time it will take for your lawyer to prepare, research, study, and execute any strategy or properly respond to a lawsuit. Nor does any litigant know how long the other side is willing to fight for what they believe in.

Besides the adversary, the courts need to move their dockets forward.  There is no “ceasefire” in litigation.  You cannot put your case on hold.  If the parties can settle their dispute, then the case is over.  Otherwise, the battle goes on, and on, until one side or the other either wins, or runs out of money to finance the fight.  I cannot tell you how many times I have heard my clients say that they would rather pay me as their lawyer to fight with the other side than to give in and resolve this dispute with the adversary.  I always remind my client that a resolution of a dispute assures an end to the legal battle, which is never guarantied when the fight goes on.

A good lawyer tries to keep his client out of trouble.  Sometimes, it does not matter what the lawyer does, the client will find themselves in court and they have to deal with the conflict.

The next time a client tells me what they think is going to happen if they go to court, I will remind them of the tunnels that the Israelis, with all of their American technology, did not even know existed right below their feet.  If a country that spends literally billions of dollars a year on its national security and defense, has some of the most sophisticated counter-terrorism systems in the world, does not even know that its hostile neighbor is and has been lurking deep into its land and preparing for wholesale bloodshed, what can my client really know of the intentions and capabilities of another litigant.

The lifeblood of litigation, like war, is the unknown.

For more information about business litigation and strategies contact:

Telephone: 954-929-1899

With offices in Miami, Ft. Lauderdale, and Boca Raton



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Partner Peter Koziol has Russian Patent/Copyright Infringement Case Dismissed

Patent Software Copyright

Internal Circuitry

Assouline & Berlowe, P.A. Partner and Patent Attorney Peter Koziol was featured in an article on the front page of the Daily Business Review entitled “Justice Watch:  A New Frontier in IP Law.”  Mr. Koziol discussed a recent dismissal for his client, Passcovery Co. Ltd., regarding alleged patent infringement and copyright infringement.

In 2013, Elcomsoft sued: a programmer;  a rival Russian password security company; and, that rival company’s Director General in the United States for violating the copyright law (under provisions of the U.S. DMCA) and alleged violations of its 2010 and 2011 GPU password hacking patents.

According to pleadings in the case, one of the original programmers for Elcomsoft, Ivan Golubev, broke his ties with Elcomsoft around 2010 and began working with long time rival Russian password recovery company Passcovery Co. Ltd.  According to the record, Passcovery is owned by Denis Gladysh who had also been making competing password recovery software under the Accentsoft brand since at least as early as 1999.

In its Complaint, Elcomsoft claimed that Golubev violated an employment agreement with it in Russia, and stole its ideas and infringed its U.S. Patent when he began working with Passcovery.  However, in support of a motion to dismiss Golubev, Passcovery, Co. Ltd. and Passcovery owner Denis Gladysh denied any wrong doing, said the GPU password hacking was obvious, made it clear that they contended that Elcomsoft forged the employment agreement, and showed that they have no significant ties to the United States. Golubev did not deny that he authored Elcomsoft’s software, but stated in a sworn declaration that the Employment Agreement that Elcomsoft says transfers the rights to the software to  is a fraud.

After reviewing the pleadings and the argument presented by both sides the Federal Court Judge dismissed the case against Passcovery, Golubev and Gladysh on the federal common law doctrine of forum non conveniens.

In her 11 page opinion, the Judge said it was unnecessary to decide whether or not there was any violation of U.S. law or if the Court had jurisdiction over the parties, because all the parties reside in Russia and that there was no evidence that  there was not an adequate remedy to use the Russian Courts.  She found that to take jurisdiction of the case would be inconvenient for the parties, the court, and the U.S. jurors.  Consequently, she declined assuming jurisdiction, and judgment was entered to dismiss the case.

Although the case was filed in the “Rocket Docket” of the Eastern District of Virginia, Peter A. Koziol, Esq. of South Florida firm Assouline & Berlowe defended the case on behalf of the defendants. Mr. Koziol is an internationally recognized Boca Raton based patent attorney that has served as special trial counsel pro hac vice in many international matters and for cases filed in Virginia, Delaware, New Jersey, California and Kansas.  Ccontact Peter below for any Intellectual Property matters.

Partner Peter A. Koziol

Registered Patent Attorney

Intellectual Property Litigation


2700 N. Military Trail, Suite 150

Boca Raton, Florida  33431

Main: 561.361.6566

Fax: 561.3616466

Email: PAK@assoulineberlowe.com


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