Posted in Legal

The “Hammer” Strikes Back: I hope Cendali is Ready

Yes it’s a clever variation on the title of the Fifth Star Wars movie. This poor man. I know he’s literally working around the clock to be cranking out these kind of well-written briefs. The brief is pretty self-explanatory in fact, I pretty much hit the hammer on the head with my last post. I just wanted to give you a little background on David S. Hammer, Esq. He is a trial attorney. Check out his resume:

2008
Law Practice of David S. Hammer, New York City 
My practice encompasses both civil and criminal litigation. Presently, I am serving as trial counsel in a copyright case, a murder case, and several state court damage actions.
 
2003 to 2008
Partner, Mysliwiec & Hammer, L.L.P., New York, N.Y. 
At Mysliwiec & Hammer, I tried a number of civil and criminal cases. My civil practice chiefly involved contract law, but also focused on accounting issues, as well as director liability under recently promulgated federal litigation. I conducted several arbitrations under the federal securities laws, and also became involved in partnership, copyright, antitrust and bankruptcy law. My criminal practice included the representation of witnesses in federal grand jury investigations, including antitrust investigations, and the representation of defendants in state and federal prosecutions and appeals. I also represented professionals in disciplinary proceedings.
 
1994 to 2003
Law Practice of David S. Hammer, New York City.
My criminal practice included the representation of defendants charged with every conceivable type of crime, from murder for hire to securities fraud to drug conspiracy to antitrust violations. In additional to trying criminal cases, I have represented witnesses in both state and federal grand jury investigations, and defendants in both state and federal appeals. My civil cases spanned a cross-section of commercial disputes, involving contract law, securities, partnership, intellectual property, antitrust, real property, bankruptcy law and matrimonial law. 
 
1992 to 1994
Senior Litigator, Mayer Brown & Platt, New York City
My case load included construction,white collar crime, products liability, real property and personal injury matters, as well as miscellaneous projects such as a litigation review of a merger target. While at Mayer, Brown I worked on several jury trials, a criminal forfeiture proceeding and argued appeals to the New York State Appellate Division and the Second Circuit.
 
1987 to 1992
Law Practice of David S. Hammer, New York City
My practice involved bankruptcy, securities, white-collar crime and antitrust cases, as well as general commercial litigation. 
 
1982 to 1986
Assistant United States Attorney, Southern District of New York
While an AUSA in the Southern District, I tried fourteen felony cases, several trials lasting more than a month, briefed and argued numerous motions to district courts, as well as ten appeals to the Second Circuit, directed lengthy and complex grand jury investigations, and supervised several new Assistants during their early trials. I served in General Crimes, Narcotics and Securities Frauds Units.
 
1980 to 1982
Special Assistant United States Attorney, Southern District of Florida (Miami)
During my two years as a Special Assistant, I tried fourteen felony cases, briefed and argued motions and appeals, supervised all prosecutions arising out of the 1980 Cuban “boat lift”, in the process overseeing several attorneys and a task force of agents. For this work, received the Justice Department’s Special Achievement Award. 
 
1979 to 1980
Attorney-Advisor, Policy Planning, Antitrust Division, Justice Dept., Washington, D.C.
At Policy Planning, I worked on anti-merger enforcement policy and legislation, helping to draft a statutory “pro-competition” defense to proposed conglomerate merger legislation. 
 
1975 to 1979
Litigation Associate, Davis Polk & Wardwell, New York City
While at Davis Polk, I was chiefly involved in antitrust and securities suits, including five contested tender offers.
Now check out the some of the cases he’s won on:
Trials & Appeals
Selected Trials
(Civil)
Warner Bros. Entertainment Inc and J.K.Rowling v. RDR Books, Federal Court in Manhattan
I presently am trial counsel for RDR Books, in an action by Warner Bros. and Ms. Rowling in the United States District Court for the Southern District of New York.
    
(Civil)
Callahan v. Emeritus Capital Parnters, LLC, AAA Arbitration 
Represented Respondents in Securities Fraud Arbitration. Defense completely successful: all claims were dismissed. 
 
(Criminal)
People v. Israel, New York State Supreme Court 
Defense counsel in murder case pending in Manhattan Supreme Court. 
 
(Criminal)
People v. Mayer, New York State Supreme Court 
Successful Defense of client accused of armed robbery.
 
(Civil)
Ehrlich v. UBS PaineWebber, Inc., NASD Dispute Resolution 
Pending arbitration brought by investor against brokerage firm for losses arising. 
 
(Criminal)
People v. Melvin Grant, New York State Supreme Court
Defense counsel in murder for hire case. Obtained an acquittal in spite of three alleged eye-witnesses, and an alleged confession.
 
(Civil)
Keystone Corporation v. AMNEX, Inc., American Arbitration Association
Defense counsel to telecommunications company in arbitration involving accounting issues, merger law and billing methods for long-distance telephone calls
 
(Criminal)
People v. Allen Wiggins, New York State Supreme Court
Defense counsel for accused in murder for hire case.
 
(Civil)
The SoftAd Group, Inc. v Lintas, Inc. , New York State Supreme Court
Plaintiff’s counsel in breach of contract action by software designer against major advertising agency. Verdict for plaintiff, jury granting more damages than requested.
 
(Criminal)
People v. Jun Hua Yang, New York State Supreme Court
Defense counsel for accused Asian gang-member. Even though defendant absconded in mid-trial, jury acquitted him of major charges.
 
(Criminal)
United States v. Dr. Irving Greenfarb, U.S. District Court, S.D.N.Y.
Prosecuted and convicted four doctors for distributing Quaaludes through “sleep clinics”.
 
(Criminal)
United States v. Leopold Frade, U.S. District Court S.D. Fla.
Prosecuted and convicted three of four defendants for Trading With The Enemy.
 
Selected Appeals
Rotterdam Ventures, Inc. v. Ernst & Young, LLP, New York State Supreme Court, Appellate Division, 3rd Department) (reported at 752 N.Y.S.2d 746). 
(Civil) Appeal for plaintiffs in accounting malpractice case, involving issues in the law of negligence and fraud.
 
Merzon v. Lefkowitz, (pending in the New York State Appellate Division, 1st Department)
Appeal for Plaintiffs in a real estate transaction, involving issues of breach of contract, fraud in the inducement and breach of fiduciary duty.
 
People v. Juan Garcia (pending in the United States Court of Appeals for the 2nd Circuit)
Defendant’s appeal from a conviction for illegal reentry to the United States following commission of an aggravated felony. Addresses the meaning of “aggravated felony” under the deportation laws.
 
People v. Rosario (pending in the New York State Appellate Division, 1st Department)
Appeal from two convictions for murder, the first involving issues of self-defense, the second, issues involving the government’s “Brady” obligations.
 
People v. Evans, New York State Supreme Court, Appellate Division, 1st Department (reported at 693 N.Y.S.2d 593).
Appeal from a conviction for drug dealing, involving issues of inconsistent verdicts, the meaning of probable cause.
 
United States v. Ventura, United States Court of Appeals for the Second Circuit (reported at 146 F.3d 91).
Appeal from a conviction for drug dealing, involving questions of a sentencing court’s discretion to depart from the United States Sentencing Guidelines.
 
United States v. Morelli, United States Court of Appeals for the Third Circuit (reported at 54 F.3d 770).
Appeal from a civil forfeiture order, involving questions including the right to a hearing before such an order is issued.
 
WOW!! This man knows how to try a case. According to his attorney profile he has tried over 60 cases. That’s phenomenal. What most people don’t realize is that 90% of cases settle. Depending upon the area of law, some attorneys rarely try cases. Mr. Hammer was a federal prosecutor. When I was in law school, my criminal law teacher was a federal prosecutor. All I can say is I’m glad I wasn’t the defendant she was prosecuting! Given his extensive background, I wouldn’t want to have to be cross examined by him. Former prosecutors don’t play around when it comes to trying cases! I didn’t realize RDR has such a heavy hitter on board! 
___________________________________________________

Ok to be fair here is the run down on Dale Cendali:
Dale’s practice focuses on copyright, trademark, patent, and trade secrets law, as well as defamation, the right of publicity, false advertising, privacy, and similar areas. From cases involving cutting-edge issues of new technology, to entertainment, to core branding and merchandising disputes, Dale has successfully represented domestic and foreign companies in litigation involving a wide range of intellectual property assets, products and services. Dale also counsels clients regarding the acquisition and retention of intellectual property rights (including Internet issues) and litigates disputes concerning such rights. 

Dale chairs and has chaired numerous bar committees and lectures and writes prolifically on intellectual property, media, and litigation topics. 
Illustrative Professional Experience
• Arguing before the U.S. Supreme Court on behalf of Twentieth Century Fox in Dastar v. Fox, a copyright and Lanham Act case involving General Dwight D. Eisenhower’s acclaimed memoirs, having won trials below on liability and damages
• Representing Victoria’s Secret in the U.S. Supreme Court with partner Walter Dellinger in a case of first impression interpreting the federal dilution statute, and leading to Dale’s appointment on the International Trademark Association Presidential Select Committee that helped rewrite the federal dilution statute and her key role in preparing for the Congressional hearings regarding the bill
• Winning summary judgment in a high-profile copyright and trademark action that accused J.K. Rowling, the author of the Harry Potter books, of plagiarism, as well as $50,000 in sanctions, and an award of attorneys’ fees because of claimants’ fabricated evidence
• Winning a landmark trial on behalf of the Martha Graham Dance Center, in a case that preserved Martha Graham’s dance legacy in a bitterly contested intellectual property battle against the heir to Martha Graham’s estate
• Representing MySpace.com in a high-profile copyright action involving the allegedly improper use of music on the widely popular MySpace social networking site, brought by the largest music company in the world, Universal Music Group Recording , Inc. (UMG)
• Representing Nuance Communications, a leading provider of speech and imaging solutions for businesses and consumers around the world, in several patent infringement, copyright, trademark, contract and trade secret misappropriation actions involving speech recognition and related technology, including cases in the Eastern District of Texas and in private arbitration
• Securing a favorable settlement for License Management Co. during the second week of an expected two and a half week bench trial in the District of Connecticut in a case involving breach of fiduciary duty and corporate opportunity claims, and license rights to the world-famous “Swiss Army” branded products and trademarks
• Leading an O’Melveny team in obtaining a unanimous federal jury verdict in favor of the American National Theatre, a nonprofit theatre organization in New York, in a trademark infringement case brought by ANTA, another nonprofit theater organization, over the right to the American National Theatre mark
• Successfully representing J.K. Rowling in numerous intellectual property disputes nationwide, including a recently filed lawsuit against RDR Publishing concerning the proposed publication of an unauthorized Harry Potter “lexicon” and a highly publicized copyright infringement action brought against the New York Daily News involving the premature release of excerpts of the fifth Harry Potter book
• Representing Honeywell in class actions premised on fraud on the trademark office involving the famous Honeywell Round trademark for thermostats
• Representing and advising Lionel LLC in all of its intellectual property litigation, and in developing, protecting and enforcing its intellectual property rights, including assisting to secure the reversal of a $40 million adverse judgment on trade secret claims that threatened the company with bankruptcy, and successfully resolving a high- profile trademark dispute against Union Pacific train line
• Successfully representing Twentieth Century Fox in a high-profile copyright, false advertising, and breach of contract lawsuit against Marvel Comics, Tribune, and Fireworks concerning the movie X-Men and television show Mutant X
• Winning summary judgment for Twentieth Century Fox in a copyright infringement matter brought by the purported owner of the photograph allegedly used to create the “I WANT TO BELIEVE” poster in Fox Mulder’s office on The X-Files
• Successfully representing Time Warner Entertainment and related companies, such as Time, Inc. and Home Box Office, in a variety of matter including a major fraud in the inducement case and the successful defeat of a preliminary injunction involving Time’s expansion of its “Real Simple” line of products
• Successfully defending the Gallo Winery from false advertising charges brought by Heublein in a case that involved the extensive use of survey experts
• Successfully representing various major companies in arbitrations involving numerous contractual issues involving hundreds of millions of dollars
• Obtaining transfers of domain names for numerous companies pursuant to both the ICANN dispute resolution procedures and the Anticybersquatting Consumer Protection Act and counseling on Internet issues in general
Defeating as a prior restraint O.J. Simpson’s attempt to enjoin broadcast of the Simpson/Brown wedding video and later obtaining a demurrer as failing to state a claim under privacy and unfair competition law.

Both attorneys are experienced. However when it comes to actual trial experience, Hammer has a lot more. Why is this important? Trying a case and representing a client are two separate things. I’ve represent over 50 clients in the last year. None of the matters has gone to trial. Some time being a good lawyer means merely negotiating a good outcome. Like I said most things settle before going to trial. Now from what I actually counted, Ms. Cendali has actually only won 3 cases. Please check my math. Look for works like verdict, won trial, acquittal, conviction (these indicate trial occurred and concluded) not summary judgement or settlement. FYI the terms “successfully representing or defending” doesn’t mean a trial actually occurred. For instance, the Rowling suit against Stouffer was dismissed prior to trial; but that is considered successful defense. Anyway, this will be very interesting. I’m sure nothing Cendali tries to pull at trial will phase Hammer. No doubt he’s seen it so many times it’s boring. 

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