# Amicus Curiae Brief — Universal Oil Products Co. v. William Whitman Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1939%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1949 - **Citation:** 335 U.S. 912 ## Text Page CS — aoe MSE ee eee 2 Questions presented ede ae IN sia praia lca cence = 3 IDR seers savy irstegsagenimneg isi amsenrpaecienneniteettsiptehcetonintinet 6 Rr ereenrenennen -GnNNbONGOS on on i i tee 7 ee a ee ann een oe! 9 i . cuit. When the case was lost, the firm of Levin- sohn, Neiner and Levinsohn, a New York patent firm, was also retained. After the main appellate brief was filed, the Frankel brothers, who had es- tablished American and owned its stock, were not satisfied. Louis Frankel, American’s president, determined to go to New York to confer with the well-known law firm of Otterbourg, Steindler, Houston and Rosen, which had guided the Frankel family in legal matters since 1920. Charles A. Houston of that firm was familiar with patent mat- ters and actually conducted the final proceedings for an accounting before the master ‘in this case. (Op. 47-48.) Thus, as the court commented (Op. 48), ‘‘Obviously American did not lack access to experienced men who could aid them in the selec- tion of an additional counsel for the appeal if any were necessary.”’ On his visit to New York, however, Louis Frankel did not visit either the Otterbourg or the Levinsohn firm. Instead, his brother David Frankel took him to see Murray Becker, the attorney for William Fox. In the course of the visit having to do with business transactions between the Frankels and Fox, the Frankels and Becker discussed this case, and Becker advised the Frankels to retain Kauf- man to handle the appeal for them (Op. 48).° Thus it was Murray Becker, Fox’s attorney, who recommended the retention of Kaufman. Becker 8 Kaufman was disbarred from practice in the court below on November 10, 1944 (Op. 53, fn. 9). _ 11 was well acquainted with the Circuit Court of Ap- peals for the Third Circuit, and especially the Court composed of Judges Buffington, Davis and Thompson. With Kaufman retained as local coun- sel he had appeared successfully (on a $10,000 plus contingent fee basis) before that court as counsel for Fox in Altoona Publix Theatres Inc. v. Ameri- can Tri-Ergon Corporation (opinion by Judge Buffington, dated August 6, 1934), 72 F. 2d 53, re- versed, 294 U. S. 477. Becker had also achieved remarkable success for the Fox interests in the ap- peals to that court in the Fox bankruptcy matters.” During the course of this bankruptcy litigation, which was still in active progress at the time Becker recommended Kaufman to the Frankels, Becker had ample opportunity to learn that Davis and Kaufman were on intimate terms and that Davis’ personal financial affairs had reached a crisis. Moreover, subsequently in 1940, when the relationship between Fox, Davis and Kaufman_was under investigation, it was Becker who called Kauf- man, to arrange a conference between Davis and Fox. (Op. 48-49.) When Kaufman was retained, the Frankels agreed to advance him $5,000 to pay the lawyer’s fees and costs of the appeal, and in addition, prom- ised him 25% of any money which American might ® In the Root cases, the court found that there had existed an illicit conspiracy to obstruct justice among Davis, Kaufman and Fox in regard to these appeals (Op. 39). 12 recover from Singer, against which percentage the $5,000 was to be credited. American did pay Kauf- man $5,000, and he retained Thomas Haight of Jer- sey City and Samuel Darby of New York, well qualified patent lawyers who prepared the reply brief with the aid of the Levinsohn firm and argued the case in the Court of Appeals. Kaufman paid Darby $1,750 and Haight $1,250 for these services, and kept $2,000 for himself. Subsequently, when certiorari was sought and denied, Kaufman re- ceived an additional $1,500 from American; he paid Darby $500 for preparing the brief in opposition and kept $1,000 himself. Thus, the lawyers who did all the actual work received $3,500 in the aggre- gate and Kaufman retained $3,000 himself. In ad- dition, of course, Kaufman had a 25% interest in American’s claim of $737,450.62, against Singer (Kaufman’s interest amounted to about $184,000) ; although the master initially awarded only $40,- 362.97, American excepted to the award as insuffi- cient on the ground that the master failed to take into account certain devices of Singer’s, which American claimed to be infringements of the pat- ent. The decision on that question has been held in abeyance pending this proceeding (Op. 50-51).” The court further found that despite the sums actually paid and the promise of large additional 10 The decision of the district court on the master’s award would, of course, have been appealable to the Third Circuit. — 13 payments in case of success, Kaufman was not com- petent to make any legitimate contributions to the ease, and that he in fact made no such contribu- tions (Op. 51). Although Frankel testified that Kaufman was retained as general counsel in this ease, so that he might in turn retain competent patent lawyers to prepare the reply brief and ar- gue the case in the appellate court, Kaufman him- self, though experienced in bankruptcy matters, was not competent to argue or brief a patent case. After his appointment as the receiver in bank- ruptey in 8. W. Strauss Company, his main occu- pation, apart from the receivership, had been the buying and selling of securities on the stock market; he practically gave up the practice of the law. Furthermore, he was not needed as local counsel; there is seldom need for local counsel in respect to a case in the Court of Appeals, and if such need had arisen, Kaufman, whose headquar- ters were in New York, was not conveniently avail- able, whereas Stoughton maintained his offices in Philadelphia where the court holds its regular ses- sions and the clerk’s offices are located. (Op. 50.) Moreover, the court found that Kaufman rendered no substantial legal services in the litigation. His file contained only copies of the opinion, briefs and other papers prepared by the patent lawyers. While it also contained 61 letters written by or to him about the case, they were routine in nature and showed merely that his interest in the progress of —— 14 the case, arranging conferences and conveying in- formation from the Frankels to Darby, were due, in large measure, to his substantial contingent share. ‘*Nothing in the file indicates that he made any in- tellectual contribution to the case or performed any routine service that would not have been per- formed as a matter of course by the active lawyers in the case if Kaufman had not been employed.” (Op. 51-52.) These findings, that Kaufman was recommended by Murray Becker, who was well acquainted with the conditions in the Third Circuit, particularly the relationship between Davis and Kaufman; that Kaufman was retained at a substantial fee; and that he was neither competent to, nor in fact did, perform any legitimate services in connection with the case, are ample, we submit, to support the court’s conclusion that Kaufman had only one asset to offer his employer, and that was his per- sonal intimacy and influence with Judge Davis. ‘*We cannot escape the conclusion that it was for this purpose, and this purpose only, that he was employed by American in this case.’’ (Op. 52.) _ 15 CONCLUSION The court below had jurisdiction to proceed as it did in this case and its findings are supported by ample evidence. The petition for a writ of certiorari should be denied. Respectfully submitted, J Pup B. PERLMAN, Solicitor General. d H. GrRaHAM Morison, wise Attorney General. ALFRED C. AURICH, Special Assistant to the Attorney General. ¢ Pau A. SWEENEY, MELVIN RIcHTER, Attorneys. January, 1949. W U.S. GOVERNMENT PRINTING OFFICE 1948—818646/P.0. 691 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1939%3A5. Public record. Not legal advice.