Barry Werbin, Counsel

Represented fantasy sports platform, Fulltime Fantasy Sports LLC, in a New York federal court action against a subsidiary of a large U.S. media conglomerate, which included claims of trademark infringement, false advertising, unfair competition and breach of an online publishing contract in a matter involving fantasy sports production and promotions. Counterclaims were also filed, but all claims were ultimately settled favorably for our client.

Represent owner and operator of a professional NBA basketball team in a licensing and production agreement with a wholly-owned media subsidiary to produce broadcast-ready video and multi-media content for its own and other basketball teams.

Represented Legends Hospitality Management, LLC in its equity interest acquisition in MainGate, Inc., a leading event retail and merchandise company. The acquisition will create a robust multi-channel retail and e-commerce platform to facilitate the connection between brands and fans.

Defended successful Turkish-American apparel company against federal court claims of trademark infringement and counterfeiting brought by a US hanger company involving garment hangers that the client’s factory had switched and imprinted with the plaintiff’s trademarks without the client’s knowledge. We were able to settle the claims confidentially at the pleading stage of the case, with a significant and creative part of the settlement tied to creating new business between our client and the plaintiff.

Representing New York Racing Association in a joint venture with Churchill Downs and Pinnacle.

Represented long-standing client Legends Hospitality in its entry into a share purchase agreement with the private equity firm Sixth Street. Under the share purchase agreement, Sixth Street acquired a controlling interest in Legends Hospitality. This investment will support Legends continued growth as a premium experiences company that specializes in delivering holistic solutions for sports, entertainment and attractions clients. 

In connection with the acquisition, Legends Hospitality (i) issued senior secured long-term notes and (ii) entered into a revolving credit facility and PIK facility. The net proceeds were used to redeem certain outstanding equity securities of Legends Hospitality and for working capital and general corporate purposes.

In order to preserve Legends Hospitality’s liquidity and support its continued investment in accretive, long-term capital projects, affiliates of Sixth Street and other third parties will provide Legends Hospitality with access to funding provided by an investment vehicle. The funding will be used for capital expenditures, pre-opening costs and other disbursements contemplated by contracts entered into by Legends Hospitality.

Represented Legends Hospitality Holding Company, LLC (“Legends Hospitality”) in majority investment by private equity firm Sixth Street in the global premium experiences company, co-founded by the New York Yankees and the Dallas Cowboys. As reported by Legends, “[t]he new investment from Sixth Street will support the long-term growth of the Company’s global client relationships and further enhancements to its innovative 360-degree platform of premium experience offerings for the most iconic global brands in sports, entertainment, and attractions.”

Herrick has represented Legends since its inception in 2008, when our Sports Law Group worked with the Cowboys and the Yankees, along with two private equity firms, to form this ground-breaking joint venture. Initially, Legends focused on delivering enhanced concessions and premium experiences. Since its formation, Legends’ range of services has grown to include six worldwide divisions and it has partnered with many iconic international sports, entertainment and attractions brands. 

Represented Legends in its acquisition of 4Front, a global data and analytics, innovation and digital media agency.  4FRONT will retain its company name and operate as part of Legends Global Technology Solutions division, building on Legends’ expertise in data consulting and digital activation.  Legends Global Technology Solutions is an industry leading sports and entertainment digital, technology and experiential advisory with the deepest experience in some of the largest, most complex projects in the world of sports and entertainment.

Represented owners of a high-end retail clothing company in the successful transfer of the assets and brand to a competitor. 

Represented Sun Mountain Sports, Inc. ("Sun Mountain"),  a leading producer of golf equipment and apparel, in a sale of business transaction to a private investment firm, Solace Capital Partners.  

Founded in 1981, Sun Mountain is a pioneer in the golf industry known for its best-in-class brand and many innovations in golf bags, push carts, and outerwear. Sun Mountain’s products are sold in national retail stores, specialty golf stores, and pro shops, as well as online and internationally. The sale did not include Sun Mountain Motor Sports, which produces motorized golf cars under the Finn Scooters brand.  

Three Ocean Partners served as financial advisor to Sun Mountain. 

Represented Google Inc. before the NJ Appellate Division, which affirmed summary judgment granted by the New Jersey Superior Court in favor of Google, dismissing claims by an online merchant for breach of contract and the covenant of good faith and fair dealing. The appellate court upheld the terms and enforceability of Google’s online merchant "click-wrap" agreement, including its liability limitations, while rejecting plaintiff’s claim that it was an unenforceable contract of adhesion. D’Agostino v. Appliances by Phone, Inc., et al., 2016 N.J. Super. Unpub. LEXIS 504 (Mar. 8, 2016).

Represented the New York Yankees in their lease agreements with wireless carriers in the new Yankee stadium.

Represented Legends Hospitality in the review, assessment and protection of intellectual property rights in various unique One World Observatory visitor installations, including the Sky Pod elevators, the See Forever Theater and the City Pulse interactive display.

Represented Doyle New York in its acquisition of selected assets of Summerfield's of Beverly Hills. We continue to advise Doyle in connection with local licensing and regulatory requirements.

Represented various non-U.S. businesses in protecting their IP rights in the U.S., including a well-known UK apparel designer, a famous British artist, French technology companies, a Scandinavian media company, a French filmmaker, and a public Canadian technology company.

Herrick successfully represented Buca, Inc., an affiliate of client Planet Hollywood, which operates the well-known "Buca di Beppo" chain of Italian restaurants and owns federal trademark registrations for BUCA, in compelling an Italian restaurant in Manhattan using the name "Buca Brick Oven" to change its name or face a trademark infringement action.

Herrick represented long-time client S. Rothschild & Co., a leading brand manufacturer of women's outerwear, in shutting down sales of counterfeit apparel being sold at various supermarkets under its LARRY LEVINE registered trademark.

Kelly v. Duprees MJA, LLC, 2012 U.S. Dist. LEXIS 40597 (D. N.J. March 23, 2012). Represented the Estate of Michael Arnone, a co-founder of the famous 1960's vocal harmony group The Duprees, and its assignee, Duprees MJA, in obtaining summary judgment dismissing all claims alleging fraud on the USPTO, common law trademark infringement and violation of the New Jersey "Truth in Music" Act. The case was brought by a former singer who had joined the Duprees group in 1964, two years after they already had their first major hits, and left the group in the late 1970s, never to perform again. The dismissal on the merits brings to a close a six-year battle over the rights to the DUPREES name and rejects the notion that early members of a performing group can claim rights in the group's name if they abandon the group without securing a partnership agreement to the contrary or a license.

Represented Maharam Fabric Corp. and two corporate affiliates of UK designer Paul Smith in a copyright infringement action against a major textiles manufacturer for having knowingly copied a proprietary fabric design called "Modulating Stripes" owned by Paul Smith that was exclusively developed for, and licensed globally to, Maharam. Soon after an answer was filed, we negotiated a favorable settlement, which included defendant's destruction of remaining inventory and an agreement to never again copy any original Maharam or Paul Smith designs.

Represented SFF Investments LLC, which is wholly owned by a current All-Pro NFL player, in a joint venture to create a Rolling Stone-branded restaurant and bar in Hollywood, CA.

Represented Fashionware Technologies Corp., a boutique technology solutions developer specializing in the fashion industry, in connection with intellectual property, marketing and corporate matters related to its proprietary Fashionware PLM software suite designed to manage the life cycle of products for apparel, footwear and soft goods companies.

Represented a new media company that provides dynamic digital content and advertising through kiosks in high traffic areas, such as the airports, that can also charge electronics and download digital content. We helped the company with its initial round of financing, its formation strategy and IP filings as well as its strategic alliance agreement with one of the largest airport retailers.

Represented the New York Yankees on their agreement with a technology developer that developed software to essentially run Yankee Stadium.

Representation of medical device companies and neutraceutical venture in negotiating sponsored research agreements with major research universities and hospitals in the US and Canada.