Mark Heller at a hearing in Los Angeles superior Court 2013. (Reed Saxon)
Mark Heller calls himself a pioneer in legal advertising, noting he was the first attorney in New York state to advertise in the Yellow Pages after the U.S. Supreme Court upheld the right of attorney advertising in 1977.
But nearly 40 years later, Heller is in bitter litigation with phone book company Yellowbook Inc. and faces a $319,000 judgment, plus interest, for failing to pay for his ads.
Heller’s odd position is not lost on him.
“I was the poster boy for Yellow Page advertising, so I’m usually not adversarial with a company like that. But what they did was reprehensible,” he said in an interview.
Yellowbook sued Heller in December 2011, claiming he signed six contracts for advertisements on behalf of himself and his law firm, Heller & Heller. Yellowbook said it published his ads, and he failed to pay.
Heller said he had good reasons for not paying: he claims the phone book was distributed to only half of Brooklyn, leaving out neighborhoods such as Bedford–Stuyvesant and East New York.
“I’ve been spending a lot of money and not getting what I paid for,” he said.
Heller brought counterclaims in 2012 for breach of contract, deceptive business practices, common law fraud, among others.
The litigation was fraught with delays. Manhattan Supreme Court Justice Ellen Coin (See Profile), in a decision this month, said Heller failed multiple times to meet deadlines: he didn’t answer the suit for five months, and he failed to timely serve his discovery requests or provide discovery responses to Yellowbook’s requests.
The court ordered his deposition on Dec. 3, 2013.
But a day before the deposition date, Heller’s attorney, Peter Toumbekis, notified Yellowbook that Heller could not make it. Heller had scheduled a last-minute vacation to Miami Beach, and his flight was departing the morning of his deposition, Coin said.
In a Dec. 2 conference call, the court denied Heller’s request to adjourn the deposition. The next day, Heller did not appear. And the following day, Toumbekis did not appear for Yellowbook’s deposition, the judge said.
Soon after, Yellowbook sought a judgment and sanctions against Heller.
Given his failure to provide discovery responses by the first court-ordered deadline, produce complete discovery responses by the second deadline, produce an affidavit about electronic discovery and to appear at a deposition despite the court’s express admonition, Coin said, “Heller has exceeded the ‘repeated and persistent’ threshold for willful and contumacious failure to comply with discovery obligations.”
Heller chose not to provide an excuse for his initial discovery violations, and his excuse for failing to appear at his deposition is not sufficient, the judge said.
“Heller could have rescheduled his leisure vacation or at least changed his flight departure to later in the day,” Coin said, noting that the opposing counsel was under no obligation to concede to Heller’s belated request to reschedule.
Coin also noted that Heller’s attorney was warned by phone that his client’s failure to appear at the deposition could result in default.
“As he knew the potential consequence of disobeying the court order, but nevertheless disobeyed it, his behavior was willful and contumacious and warrants striking his answer” Coin said. “No lesser sanction is appropriate here.”
The judge previously struck part of Heller’s answer containing a counterclaim for fraud, which “proved to be insufficient deterrence,” she said. “The only appropriate sanction in the circumstances is to strike the remainder of the answer.”
Coin declined to sanction Toumbekis,which Yellowbook requested after the attorney failed to show up at Yellowbook’s deposition. Coin noted that Toumbekis had stated he wanted Heller to be present for this deposition, which was no longer possible when Heller left suddenly for Miami Beach, and Toumbekis had advised Heller to appear at his deposition.
“Imposing a sanction on defense counsel here would not serve the ends of justice, as it would not target or address the cause of Heller’s intransigence,” the judge said.
Ultimately, Coin granted judgment for Yellowbook against Heller for $318,937, with a 9 percent annual interest rate from December 2011. Under the Yellowbook contracts, the company can recover legal fees of up to 25 percent of the unpaid balance in a collection effort, according to court documents. Coin ordered an inquest to determine the amount of fees.
Heller and his attorney said they will be moving for re-argument or will appeal. “It was not a decision on the merits,” Heller said. “There were reasonable grounds” for his deposition absence, he said.
Heller said his family gave him a pre-paid ticket to Florida as a Hanukkah gift.
Yellowbook’s attorney, Patrick Kenney, a partner at Shook Hardy & Bacon, declined to comment.
Heller was suspended from 1994 to 1999 after a disciplinary committee found he engaged in misconduct involving misrepresentations, deceit, fee gouging, neglect and failing to return unearned retainers to his clients.
Heller told the Law Journal that he had a large practice back then and is in a better position now. He said his firm was founded by his father, Harry Heller, and uncle, Louis B. Heller, a former congressman and Brooklyn Supreme Court justice.
His practice varies from criminal defense and matrimonial to personal injury and bankruptcy. Past clients include “Son of Sam” serial killer David Berkowitz; actress Lindsay Lohan; Jonathan Gosselin, of the reality show “Jon & Kate Plus 8″ and Jeb Corliss, TV daredevil who attempted to jump off the Empire State Building.
Heller said he still advertises with Verizon yellow pages and has held the first full-page ad for lawyers in several phone books. “I have literally spent many, many millions of dollars in all the books to maintain that first position,” he said.