Case 2:23-cv-01997-MCA-JSA Document 126 Filed 06/10/24 Page 1 of 31 PageID: 3723
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`
`
`
`MONIB ZIRVI,
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`
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`
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`Case No. 2:23-cv-01997-MCA-JSA
`
`Honorable Madeline Cox Arleo
`United States District Court Judge
`
` Plaintiff,
`
`v.
`
`ILLUMINA, INC., THERMO FISHER
`SCIENTIFIC, AKIN GUMP STRAUSS
`HAUER & FELD LLP, LATHAM &
`WATKINS, RIP FINST, SEAN BOYLE,
`MATTHEW A. PEARSON, ANGELA
`VERRECCHIO, ROGER CHIN, and
`DOUGLAS LUMISH,
`
` Defendants.
` ______________________________________
`
`
`PLAINTIFF’S REPLY TO ALL DEFENDANTS’ RERSPONSE IN
`OPPOSITION TO MOTION FOR RECONSIDERATION
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`1
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`Case 2:23-cv-01997-MCA-JSA Document 126 Filed 06/10/24 Page 2 of 31 PageID: 3724
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`Table of Contents
`I.
`INTRODUCTION ............................................................................................... 4
`II. CORRECTING DEFENDANTS’ FLAWED TIMELINE ................................... 5
`III. RELEVANCE OF EVIDENCE OF POST-FILING CLAIM ............................. 6
`IV. LACK OF ROYALTY PAYMENTS AND FAILURE TO REPRESENT
`PLAINTIFF’S INTEREST IN THE SECOND SETTLEMENT AGREEMENT
`HAVE ALWAYS BEEN CLAIMED IN THIS CASE ............................................. 7
`V. CONTRADICTIONS IN DEFENDANTS’ ARGUMENTS ................................ 9
`1. Illumina’s Arguments ......................................................................................... 9
`2. Outside Attorney Defendants’ Arguments .......................................................10
`3. Thermo Fisher’s Arguments .............................................................................11
`VI. LEGAL MALPRACTICE .............................................................................11
`1. Standard At Pleading Stage In Malpractice Cases ...........................................11
`2. Breach Of Duty And Resulting Harm ..............................................................12
`3. Conflict Of Interest And Fraudulent Settlement ..............................................13
`4. Akin Gump Representation and Liability ......................................................15
`a. Continuing Duty and Malpractice: ................................................................18
`b. Specific Negligence: .....................................................................................19
`5. Rip Finst and Sean Boyle Representation and Liability. .................................20
`a. Attorney-Client Relationship and Duty of Care: ..........................................21
`VII. RECENT EMERGING PATTERNS OF CORPORATE MISCONDUCT ....22
`VIII. CONSPIRACY TO DEFRAUD PLAINTIFF ................................................24
`IX. RULE 11 AND SANCTIONS ...........................................................................25
`X. LEAVE TO AMEND ..........................................................................................27
`XI. CONCLUSION ..................................................................................................29
`CERTIFICATION OF SERVICE............................................................................31
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`Cases
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`Balducci v. Cige, 240 N.J. 574 (2020) .....................................................................14
`Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177, 876 A.2d 253 (2005) .............. 8
`Beasley v. Howard, 14 F.4th 226, 232 (3d Cir. 2021) ............................................16
`Biakanja v. Irving, (49 Cal.2d 647 (Cal. 1958) .......................................................19
`Budd v. Nixen, 6 Cal. 3d 195, 98 Cal. Rptr. 849, 491 P.2d 433 (1971)...................17
`Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) .......................................25
`Disciplinary Board v. Giese, 678 N.W.2d 69 (N.D. 2004) ......................................14
`Edelman v. Berman, 195 A.3d 561 (2018) ..............................................................14
`Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ...............10
`Grunwald v. Bronkesh (131 N.J. 483, 621 A.2d 459, 1993), ...................................10
`Grunwald v. Bronkesh, 131 N.J. 483, 494-95, 621 A.2d 459, 464 (1993) ..............16
`In re Corn Derivatives Antitrust Litigation, 748 F.2d 157 (3d Cir. 1984) ..............16
`Kaye v. Rosefielde, 432 N.J. Super. 421, 477 (App. Div. 2013) ..............................16
`Level 3 Comm’s, LLC v. Liebert Corp., 535 F.3d 1146 (10th Cir. 2008) ...............12
`McCann v. Welden, 153 Cal. App. 3d 814, 200 Cal. Rptr. 703 (1984) ...................17
`McKechnie v. Butterfield, 99 N.W.2d 689 (N.D. 1959) ...........................................14
`Moen v. Thomas, 419 N.W.2d 20 (N.D. 1988) .........................................................14
`Morgan v. Covington Twp., 648 F.3d 172 (3d Cir. 2011) ......................................... 5
`Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364, 633
`A.2d 985 (App. Div. 1993) ..................................................................................... 8
`P’r Invests. L.P. v. Theranos, Inc. (2017 WL 2303954, Del. Ch. May 25, 2017) ...21
`Rippon v. Smigel, 449 N.J. Super. 344, 368, 158 A.3d 23, 37-38 (Super. Ct. App.
`Div. 2017) ............................................................................................................... 5
`Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) .....23
`Trecartin v. Mahoney-Troast Constr. Co., 21 N.J. Super. 69, 90 A.2d 273 (App.
`Div. 1952) .............................................................................................................10
`Tropp v. Lumer, 23 A.D.3d 550 (N.Y. App. Div. 2005) ...........................................14
`Whole Woman's Health v. Hellerstedt, U.S. , 136 S. Ct. 2292, 2305, 195 L. Ed.
`2d 665, 680 (2016) .................................................................................................. 5
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`I.
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`INTRODUCTION
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`
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`This Reply addresses and corrects significant oversights and assertions,
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`corrects factual inaccuracies, and logical inconsistencies presented in the Response
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`Briefs filed in Opposition by Illumina, Inc., [ECF 123] Outside Attorney Defendants
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`[ECF 124], and Thermo Fisher Scientific Rip Finst and Sean Boyle [ECF 125]
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`(collectively, “Defendants’ Responses”). Generally, Defendants’ Responses overlap
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`with the same arguments used in the Motions to Dismiss, namely that res judicata
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`bars Plaintiff’s claims because facts overlap in time with the Southern District of
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`New York litigation (“SDNY Litigation”). Defendants purposely focus on facts prior
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`to Plaintiff’s SDNY Litigation and not the claims argued in this Motion for
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`Reconsideration. However, Plaintiff has argued in its Motion for Reconsideration
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`that he has claims that ripened after the filing of the SDNY Litigation, while the
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`Court’s ruling clearly relied on the SDNY Litigation as a bar date under res judicata.
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`Likewise, Defendants’ Responses attempt to divert all arguments away from
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`the main contentions in Plaintiff’s Motion for Reconsideration. First, Plaintiff
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`contends he was grossly underpaid under the Second Settlement Agreement. Second,
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`Plaintiff contends all Defendants orchestrated the terms of the Second Settlement
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`Agreement causing the gross underpayment to Plaintiff.
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`Instead, Defendants continue to argue that Plaintiff has no facts to support his
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`claims while at the same time making continued efforts to redact and hide critical
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`information regarding the allegation, including without limitation the Second
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`Settlement Agreement at the heart of Plaintiff’s claims. If the Defendants wanted to
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`prove Plaintiff’s claim were baseless the first step would be to produce the Second
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`Settlement Agreement that they claim caused no harm to Plaintiff. Yet at least one
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`Defendant, Illumina, has been found recently to redact critical information during
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`litigation. Plaintiff believes Illumina is doing the same in this case by redacting and
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`refusing to produce the Second Settlement Agreement to enable the argument
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`Plaintiff cannot support his claims.
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`Plaintiff respectfully requests the Court accept this Reply as addressing all
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`Defendants’ Responses and further requests that the Court grant Plaintiff’s Motion
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`for Reconsideration for the reasons stated in his Motion and contained in this Reply
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`herein below.
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`II. CORRECTING DEFENDANTS’ FLAWED TIMELINE
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` Defendants incorrectly assert that the royalty statement dated January 2019
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`is a significant date in terms of legal precedents. The royalty statement, although
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`dated January 2019, was not received and deposited by the Plaintiff until February
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`2019. This is the actual accrual date of harm from the underpayment of royalties due
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`to the Second Settlement Agreement for statute of limitations purposes. The date of
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`the execution of the Second Settlement Agreement, or the parties to the Second
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`Settlement Agreement, have been kept from the Plaintiff until this very day. Indeed,
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`the Defendants themselves had delayed the discovery of all the facts surrounding
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`royalty payments received by Dr. Zirvi and now they want to cry foul. As argued
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`below the critical date that should bar claims being made in this case under the
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`Court’s ruling Dismissing the Complaint with prejudice is August 3, 2018. However,
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`Plaintiff has pointed out that claims related to the Second Settlement Agreement did
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`not ripen until February 2019. Moreover, because the Defendants have done
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`everything to keep the Second Settlement Agreement from the Plaintiff the
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`discovery rule may still apply to unknown claims.
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`III. RELEVANCE OF EVIDENCE OF POST-FILING CLAIM
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`The underpayment issue from February 2019, which surfaced after the initial
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`filing, aligns with the principles set forth in the Morgan v. Covington Twp., 648 F.3d
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`172 (3d Cir. 2011). Indeed, a New Jersey court cited Morgan on facts like this case
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`holding:
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`As the United States Supreme Court has recently held, "res judicata
`does not bar claims that are predicated on events that postdate the
`filing of
`the
`initial
`complaint." Whole Woman's Health
`v.
`Hellerstedt, U.S. , 136 S. Ct. 2292, 2305, 195 L. Ed. 2d 665, 680
`(2016)
`(citing Morgan v. Covington, 648 F.3d 172, 178 (3d Cir.
`2011)). Thus, in accordance with the reasoning in Hellerstedt,
`plaintiff's claims concerning Smigel's September 19, 2013, letter did
`not arise out of the same transaction or occurrence involved in the
`Pennsylvania action, which pre-dated Smigel's letter. Therefore, the
`trial court mistakenly dismissed plaintiff's complaint against Smigel
`and his firm based on the doctrine of res judicata.
`
`Rippon v. Smigel, 449 N.J. Super. 344, 368, 158 A.3d 23, 37-38 (Super.
`Ct. App. Div. 2017)
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`In Rippon the Court explained, “Here, plaintiff filed suit against defendant for
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`tortious interference with contractual relations for a letter sent on September 19,
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`2013, which was one week after he filed his previous complaint for a breach of
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`fiduciary duty. Thus, this letter, which serves as the basis of plaintiff's second
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`complaint, did not even exist until after the first complaint was filed.” (emphasis
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`added) Id. Yet the Defendants in this case believe that a claim for damages based on
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`the underpayment of royalties several months after the filing of the NYSD Litigation
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`should be barred by this Court. Clearly, Plaintiff’s claims for the underpayment of
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`royalties should not be barred by res judicata1.
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`IV. LACK OF ROYALTY PAYMENTS AND FAILURE TO
`REPRESENT PLAINTIFF’S INTEREST IN THE SECOND
`SETTLEMENT AGREEMENT HAVE ALWAYS BEEN CLAIMED
`IN THIS CASE
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`The Defendants’ assertion that the Second Settlement Agreement was first
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`mentioned in the sur-reply is incorrect and misleading. First, the Complaint
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`1 Application of the Morgan Bright-Line Rule: The Third Circuit's bright-line rule in
`Morgan v. Covington Township establishes that res judicata does not apply to events
`occurring after the filing of the initial complaint. Defendant’s opposition
`misinterprets this precedent by attempting to apply the rule to the filing date of the
`second amended complaint in Zirvi v. Flatley, rather than the original filing date of
`August 2018. This mischaracterization misleads the court by incorrectly suggesting
`that claims arising from post-complaint events should have been included in earlier
`pleadings.
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`references the Plaintiff’s right to royalties and the underpayment of royalties because
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`of the Second Settlement Agreement in the following paragraphs:
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`13. Plaintiff’s intent was to incorporate the Zip Code Operating
`System (Zip Code Chemistry) into the manufacture of DNA
`microchips and receive royalties through the licensing of the
`invention.
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`47. But for the conspiring of all Defendants, Plaintiff Zirvi
`would have received the recognition and royalties on a series
`of patents (See: Czarnik v. Illumina, Case 1:05-cv-00400-JJF).
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`64. Defendant Attorneys were negligent in their representation
`of Plaintiff in the Cornell case and subsequent settlement
`thereof when they failed to represent Plaintiff during
`settlement negotiations or failed to inform Plaintiff during
`the Cornell case that they were not going to represent
`Plaintiff's interest.
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`65. The Defendant Attorneys’ failure to represent, or inform
`Plaintiff to retain his own representation, was the proximate
`cause of damages, including, failing to be compensated or
`recognized under the Cornell case settlement agreement, and
`causing Plaintiff to lose rights of enforcement against Illumina in
`an individual matter because of a delay him bringing such action
`against Illumina, based upon representations that those claims
`would be resolved on behalf of the Plaintiff in the Cornell
`case.
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`Moreover, the Second Settlement Agreement was explicitly mentioned in the
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`response to Illumina’s Motion to Dismiss as an overt action in the civil conspiracy
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`count against the Defendants [ECF # 78, Page 7]. Specifically, the Royalty Reports
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`from the Second Settlement Agreement received and paid in February 2019 provided
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`a detailed breakdown, which was referenced in Dr. Zirvi's affidavit [See Dr. Zirvi
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`Aff – 065]. The Royalty Distribution Summary Report for D1595 Distribution also
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`outlines these details. This directly contradicts the Defendants’ claim and highlights
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`their attempt to obfuscate the timeline and relevant disclosures made by Dr. Zirvi.
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`V. CONTRADICTIONS IN DEFENDANTS’ ARGUMENTS
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`1. Illumina’s Arguments
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`Illumina argues that Plaintiff’s claim about “receiving far less in royalties”
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`contradicts his earlier statement of “not receiving any royalties” (Compl. ¶ 38) is not
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`true. Paragraph 38 references operating software and products for which no royalties
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`were paid. Paragraph 38 of the Complaint does not refer to underpayment in the
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`Second Settlement Agreement, which is specifically referenced in other paragraphs
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`in the Complaint as argued in Section III above.
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`Illumina argues that it is not a party to the Second Settlement Agreement. The
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`Second Settlement Agreement has never been produced to the Plaintiff, this Court,
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`or the public. However, because of the Second Settlement Agreement, meager
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`royalties were received by the Plaintiff in February 2019. The only party known to
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`sublicense the technology at issue that gave rise to the payment under the Second
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`Settlement Agreement was Illumina. The Complaint alleges that a conspiracy
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`existed between the parties including Illumina to pay far less in royalties to Dr. Zirvi.
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`This damage would not ripen until such time as the Second Settlement Agreement
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`resulted in Plaintiff receiving far less than he was entitled to receive.
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`It would not matter if Illumina was a party, or not, to the Second Settlement
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`Agreement to be liable for a civil conspiracy claim. A civil conspiracy is "a
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`combination of two or more persons acting in concert to commit an unlawful act . .
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`., the principal element of which is an agreement between the parties to inflict a
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`wrong against or injury upon another, and an overt act that results in damage."
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`(emphasis added) Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177, 876 A.2d 253
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`(2005) (quoting Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super.
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`337, 364, 633 A.2d 985 (App. Div. 1993)). The Complaint alleges that the
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`Defendants acted in concert to inflict injury upon the Plaintiff. However, without
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`damages the claim would not be ripe. The damages occurred when Dr. Zirvi received
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`far less than he was entitled to receive in February 2019 as it relates to the Second
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`Settlement Agreement. This claim, related to the Second Settlement Agreement did
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`not exist at any time prior to the payment in February 2019. Indeed, the full extent
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`of the claim may still be pending discovery given the lengths that Defendants have
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`gone to conceal the Second Settlement Agreement.
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` 2. Outside Attorney Defendants’ Arguments
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` The Outside Attorney Defendants claim they were not involved post-
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`February 2017 and therefore should not be held accountable for any acts related to
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`the alleged Second Settlement Agreement. This argument overlooks the continuity
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`of legal responsibilities after April 2017 and the Plaintiff's allegations of ongoing
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`malpractice and conspiracy, which extend beyond mere involvement on specific
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`dates and into the broader consequences of their legal representation and advice and
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`undisclosed conflicts of interest.
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`3. Thermo Fisher’s Arguments
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`Thermo Fisher asserts that Plaintiff discovered the fraud in May 2017,
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`contradicting the claim that it was only in February 2019 that Plaintiff realized the
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`extent of the underpayment and conspiracy. However, Plaintiff's discovery of fraud
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`and conspiracy in May 2017 pertained to initial indications of collusion. The
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`damages were not actualized until the underpayment in February 2019. While the
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`Defendants were still secretly negotiating terms of the Second Settlement Agreement
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`the result could have been that Dr. Zirvi was fully compensated the royalties owed
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`to him in which case he would have no claim. However, he was not fully
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`compensated and so his damages accrued in February 2019 as it relates to the Second
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`Settlement Agreement.
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`VI. LEGAL MALPRACTICE
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`1. Standard At Pleading Stage In Malpractice Cases
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`At the pleading stage in malpractice cases, the standard articulated in
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`Trecartin v. Mahoney-Troast Constr. Co., 21 N.J. Super. 69, 90 A.2d 273 (App. Div.
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`1952), holds that the complaint should not be dismissed unless, accepting all well-
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`pleaded allegations as true, there is no possible set of facts on which relief can be
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`granted. Moreover, as stated in Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
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`L.Ed.2d 222 (1962), leave to amend a complaint should be freely given when justice
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`so requires, allowing for the correction of inadvertent errors in pleading.
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`Dr. Zirvi's claims of legal malpractice and damages are supported by multiple
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`precedents underscoring the duty of care owed by attorneys and the ramifications of
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`its breach. In Grunwald v. Bronkesh (131 N.J. 483, 621 A.2d 459, 1993), the court
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`emphasized the high standards expected of legal professionals and the severe
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`consequences for breaching their duty of care. Similarly, Korotki v. Levenson (182
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`N.J. Super. 592, 442 A.2d 684, App. Div. 1982) demonstrated the detrimental impact
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`of attorney negligence on a client’s interests.
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`2. Breach Of Duty And Resulting Harm
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` The malpractice claims are centered on the failure of the Defendant
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`Attorneys to adequately protect Plaintiff’s interests by failing to advise Plaintiff: to
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`seek his own counsel at the beginning of the Cornell litigation because of potential
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`conflicts; that settlement negotiations were ongoing that he was a known third party
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`beneficiary of; and that a Second Settlement Agreement had been reached wherein
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`he would receive far less in royalties than he was entitled to receive. Different
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`Defendant Attorneys had different parts in representation of the Plaintiff that would
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`culminate in the underpayment of royalties in the Second Settlement Agreement, a
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`copy of which has never been disclosed to the Plaintiff.
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` Throughout the Cornell litigation leading to the inadequate payment under
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`the Second Settlement Agreement all Defendant Attorneys owed Dr. Zirvi a duty of
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`care that he was denied. Each failure contributed to the ultimate underpayment of
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`royalties in February 2019, causing significant financial harm to Plaintiff. The
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`affidavit of merit, attached as Exhibit 14 to the Complaint, submitted by an
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`independent attorney supports these claims, highlighting specific acts that fell below
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`the standard of professional responsibility owed to Plaintiff.
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`3. Conflict Of Interest And Fraudulent Settlement
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` Rip Finst did not disclose conflicts of interest even though he filed papers
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`on behalf of Cornell and by proxy Dr. Zirvi in the Cornell litigation. At the time of
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`filing, Rip Finst knew Dr. Zirvi had a financial interest in the Cornell litigation.
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`However, he failed to protect Dr. Zirvi’s interest even though Rip Finst knew Dr.
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`Zirvi had been told his interest was to be protected in the Cornell litigation. Instead,
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`Rip Finst actively participated in securing the Second Settlement Agreement
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`between that underpaid Dr. Zirvi. Rip Finst, as well as all Defendant Attorneys,
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`failed to advised Dr. Zirvi of a NELA agreement containing an arbitration clause
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`(Clause 9.2(a)) that would lead to the Second Settlement Agreement further
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`highlight the conflict of interest and unethical behavior.
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`Given these undisclosed conflicts of interest, the question of whether a duty
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`to disclose exists will determine whether there is a valid claim for fraudulent
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`nondisclosure. Courts generally look to the Restatement (Second) of Torts, Section
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`551 to determine whether a party has a duty to disclose. See Level 3 Comm’s, LLC
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`v. Liebert Corp., 535 F.3d 1146 (10th Cir. 2008). Section 551 states:
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`(1) One who fails to disclose to another a fact that he knows may
`justifiably induce the other to act or refrain from acting in a business
`transaction is subject to the same liability to the other as though he had
`represented the nonexistence of the matter that he has failed to disclose,
`if, but only if, he is under a duty to the other to exercise reasonable care
`to disclose the matter in question.
`(2) One party to a business transaction is under a duty to exercise
`reasonable care to disclose to the other before the transaction is
`consummated,
`(a) matters known to him that the other is entitled to know because of a
`fiduciary or other similar relation of trust and confidence between them;
`and
`(b) matters known to him that he knows to be necessary to prevent his
`partial or ambiguous statement of the facts from being misleading; and
`(c) subsequently acquired information that he knows will make untrue
`or misleading a previous representation that when made was true or
`believed to be so; and
`(d) the falsity of a representation not made with the expectation that it
`would be acted upon, if he subsequently learns that the other is about
`to act in reliance upon it in a transaction with him; and
`(e) facts basic to the transaction, if he knows that the other is about to
`enter into it under a mistake as to them, and that the other, because of
`the relationship between them, the customs of the trade or other
`objective circumstances, would reasonably expect a disclosure of those
`facts.
`
`This fight over whether a duty existed to disclose the information in question is
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`normally the crux of the battle in a fraudulent nondisclosure claim – otherwise this
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`tort is essentially the same as fraud. Rip Finst and the other defendants who did not
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`disclose conflicts of interest should be held to this standard of care.
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`4.
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`Akin Gump Representation and Liability
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`Defendants falsely claimed that Dr. Zirvi did not have an attorney-client
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`relationship with Akin Gump. An email from Valerie Cross Dorn to Dr. Zirvi, copied
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`to Matthew Pearson, clearly indicates representation due to aligned interests in the
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`invention. This relationship is further supported by Dr. Zirvi’s involvement in
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`deposition preparations and litigation activities, which the motions to dismiss
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`inaccurately deny by omitting these details (Valerie Cross Dorn Email (Feb 21,
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`2017), ECF 1, ¶¶ 19-20, 52).
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`Communications
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`from Akin Gump suggest broader
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`legal advice,
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`contradicting Akin Gump’s Response claiming a narrow scope of representation.
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`The email and interactions described indicate specific instances of legal advice,
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`supporting more detailed fraud allegations (Valerie Cross Dorn Email (Feb 21,
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`2017), ECF 1, ¶¶ 16-32, 35, 37, 41-44, 46-49, 53-54). Not considering this an
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`attorney-client relationship is an error. In Disciplinary Board v. Giese and other
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`cases like Moen v. Thomas and McKechnie v. Butterfield, it was established that an
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`attorney-client relationship can be implied from the conduct of the parties, even
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`without an express contract or payment of fees (Disciplinary Board v. Giese, 678
`
`N.W.2d 69 (N.D. 2004); Moen v. Thomas, 419 N.W.2d 20 (N.D. 1988); McKechnie
`
`v. Butterfield, 99 N.W.2d 689 (N.D. 1959)).
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`The email from Valerie Cross Dorn clearly shows that Dr. Zirvi was entitled
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`to representation due to aligned interests with that of Cornell and Thermo Fisher.
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`Legal precedents underscore that an attorney-client relationship can exist without a
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`written retainer agreement based on parties’ interactions (Balducci v. Cige, 240 N.J.
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`574 (2020), Edelman v. Berman, 195 A.3d 561 (2018), Tropp v. Lumer, 23 A.D.3d
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`550 (N.Y. App. Div. 2005)). The concept of an implied attorney-client relationship is
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`crucial in situations where formal agreements or payments are absent, but the
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`conduct of the parties suggests such a relationship. The scope of the implied
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`attorney-client relationship included representation on matters related to litigation,
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`such as the two settlement agreements including the agreement that resulted in the
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`underpayment of royalties in February 2019. Dr. Zirvi also participated in deposition
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`preparations, provided testimony, and relied on legal advice from the attorneys,
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`indicating a broader engagement.
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`The duty of care extends to all areas where advice was provided. Defendants
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`failed to disclose critical conflicts of interest and withheld critical documents,
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`breaching the professional duty of care owed to Dr. Zirvi (Compl. ¶ 21, 27, Affidavit
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`of Merit ¶ 7e). This led to a secret arbitration process involving the parties in Cornell
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`Case 2:23-cv-01997-MCA-JSA Document 126 Filed 06/10/24 Page 17 of 31 PageID: 3739
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`v. Illumina who were bound by terms of the NELA and April 2017 settlement
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`agreement that Cornell was contesting as fraudulently induced.2
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`Due to the defendants’ failures, Dr. Zirvi received far less in royalties than he
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`was legally entitled to. The settlement of the Cornell v. Illumina case without proper
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`consideration of Dr. Zirvi’s interests resulted in financial losses and compromised
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`intellectual property rights (Compl. ¶ 24, 26, Affidavit of Merit ¶ 7h). The
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`defendants’ actions constitute a severe breach of the fiduciary duty owed to Dr. Zirvi,
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`as outlined in Beasley v. Howard, 14 F.4th 226, 232 (3d Cir. 2021). The conduct of
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`the parties establishes an implied attorney-client relationship as per Kaye v.
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`Rosefielde, 432 N.J. Super. 421, 477 (App. Div. 2013). Furthermore, the New Jersey
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`Supreme Court in Grunwald v. Bronkesh, 131 N.J. 483, 494-95, 621 A.2d 459, 464
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`(1993) affirmed that the discovery rule applies to legal-malpractice actions,
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`commencing the statute of limitations when the client discovers, or should discover,
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`the facts essential to the malpractice claim. In this case, the discovery and the
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`2 April 2017 Settlement Agreement and Arbitration Clause: The April 2017
`settlement agreement contains Clause 9.2(a), which mandates that any disputes
`arising from or relating to the agreement would be arbitrated between Cornell and
`Life Technologies on one side, and Illumina on the other. This secret arbitration
`process led to the underpayment of royalties in January 2019, which Dr. Zirvi
`received in February 2019. The concealment of this arbitration and its outcomes
`exemplifies Illumina’s opaque practices in managing royalty distributions. See
`Cornell’s Rule 60(b)(6) motion Cornell v. Illumina, document 676, p5.
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`Case 2:23-cv-01997-MCA-JSA Document 126 Filed 06/10/24 Page 18 of 31 PageID: 3740
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`damage related to the Second Settlement Agreement was in February 2019 when Dr.
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`Zirvi received far less than he was entitled to receive.
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`The fiduciary duty owed by attorneys to their clients is a fundamental
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`principle in legal practice. This duty encompasses loyalty, confidentiality, and the
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`obligation to act in the best interests of the client. In the context of this case, the
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`defendants’ failure to disclose critical conflicts of interest and their subsequent
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`actions that undermined Dr. Zirvi’s legal and financial interests constitute a severe
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`breach of this fiduciary duty. As noted in In re Corn Derivatives Antitrust Litigation,
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`748 F.2d 157 (3d Cir. 1984), the breach of fiduciary duty in legal malpractice cases
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`not only harms the immediate client but also undermines the integrity of the legal
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`profession. The court’s intervention is essential to uphold these standards and ensure
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`that the misconduct by the defendants does not set a precedent for future cases.
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`a. Continuing Duty and Malpractice:
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`According to Budd v. Nixen, 6 Cal. 3d 195, 98 Cal. Rptr. 849, 491 P.2d 433
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`(1971), an attorney’s failure to exercise the standard of care can constitute
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`malpractice even if the harm manifests later. McCann v. Welden, 153 Cal. App. 3d
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`814, 200 Cal. Rptr. 703 (1984) and further emphasize that attorneys can be held
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`liable for negligent actions that lead to unfavorable settlements. The same should be
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`true in the claim for malpractice before the Court as it relates to Akin Gump. The
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`Case 2:23-cv-01997-MCA-JSA Document 126 Filed 06/10/24 Page 19 of 31 PageID: 3741
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`failure of Akin Gump to advise of potential conflicts of interest ultimately damaged
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`Dr. Zirvi who relied on the advice of Akin Gump and did not retain his own counsel.
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`b. Specific Negligence:
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`Akin Gump and Latham & Watkins’ actions during the Cornell litigation,
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`including failing to disclose conflicts of interest and providing misleading advice,
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`contributed to the 2019 settlement's poor outcome. Their malpractice continued to
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`affect Plaintiff even after their formal withdrawal, demonstrating their liability for
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`the underpayment of royalties.
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`The Affidavit of Merit and complaint enumerated numerous instances of legal
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`malpractice and misconduct where key legal and corporate entities, including Roger
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`Chin,