Law Firms

Malpractice suit against Boies Schiller alleges overly aggressive litigation tactics

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A malpractice lawsuit filed against Boies Schiller Flexner alleges that the law firm gave bad advice and used overly aggressive litigation tactics that cost its former clients extra money in intellectual property litigation.

The suit was filed May 14 against Boies Schiller, name partner David Boies and former partner D. Michael Underhill, report and Law360.

The malpractice plaintiffs are the Telebrands Corp. and, companies that marketed water balloon products.

The malpractice plaintiffs were on the hook for $30 million by the time that the intellectual property litigation concluded, according to the lawsuit. The total included nearly $12.3 million in enhanced damages and $4.7 million in attorney fees and expenses.

“Defendants elected to litigate the IP litigation in an overly aggressive manner, taking positions and filing excessive and untimely motions and appeals, which was a substantial factor in plaintiffs being assessed with sanctions and enhanced damages, as well as inflating the fees and expenses that defendants billed to plaintiffs,” the suit says.

The litigation resulted in a settlement because the Telebrands Corp. and couldn’t afford to appeal, according to the malpractice suit.

Boies Schiller told Law360 in a statement Friday that the lawsuit allegations are baseless. “This lawsuit is nothing more than a cynical attempt by a former client to avoid its obligation to pay the firm’s legal fees,” the law firm said. The allegations “are baseless and will not deter the firm from continuing its efforts to collect its fees.”

The IP litigation involved a dispute between the malpractice plaintiffs and competitors that marketed a product called Bunch O Balloons. The dispute involved three products made by the Telebrands Corp. and The first product, Balloon Bonanza, quickly filled and tied 40 water balloons. The second and third products were Battle Balloons and Easy Einstein Balloons.

Boies Schiller entered the litigation after a judge enjoined the sale of Balloon Bonanza. The Telebrands Corp. and allege that Boies Schiller advised them that their redesigned product, Battle Balloons, would not infringe the patent for Bunch O Balloons. As a result of the law firm’s representations, the Telebrands Corp. and agreed to indemnify retailers in intellectual property litigation, the suit says.

New lawsuits followed, along with new losses. The suit cites “multiple occasions” where court rulings should have put Boies Schiller on notice that the risk of not prevailing in the IP litigation “was increasing significantly,” the suit says. That risk was not disclosed to the malpractice plaintiffs, the suit says.

Boies Schiller wrongly advised the malpractice plaintiffs on the likelihood that their water balloon products infringed the competitors’ trademarks, and the firm also failed to advise the malpractice plaintiffs on potential exposure, the suit alleges.

The suit alleges malpractice, breach of fiduciary duty, vicarious liability and unjust enrichment.

A spokesperson told that Underhill is no longer with Boies Schiller, but his departure is not related to the malpractice suit.

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