Kenneth Rosenthal

General Civil and Criminal Litigation

• Bobby Johnson v. Commissioner – habeas corpus proceedings leading to nationally publicized exoneration of wrongfully convicted petitioner after serving nine years in prison for murder he did not commit. Rosenthal is presently pursuing civil rights claims on behalf of Mr. Johnson.
• Swinton v. State — Another recent exoneration with the cooperation of the State’s Attorney’s Office, pursuant to a Petition for New Trial commenced by Mr. Rosenthal and a team of lawyers from the New York Innocence Project and the New York offices of Skadden Arps, on behalf of a 59-year-old defendant serving a life sentence. As a result of extensive negotiations with the Hartford State’s Attorney, and the development and presentation of new forensic evidence, the client was released after serving more than18 years, and the charges ultimately dismissal of all charges.
• State v. Murray Colton — Highly publicized murder prosecution turning on testimony of single supposed eye-witness. Following multiple trials and two successful state supreme court appeals, Mr. Rosenthal interposed a double jeopardy defense to stave off a fourth trial, calling the trial prosecutor to the stand in an unprecedented pretrial hearing, and ultimately obtaining dismissal of all charges.
• State and federal criminal defense and post-conviction litigation in a variety of settings (see below).
• Interference with contract and unfair trade practices claim against multiple defendants. Opposed by three law firms, and following 15 pretrial depositions and several days of trial, Mr. Rosenthal obtained settlement payments exceeding in aggregate the amount calculated by his own forensic expert.
• Commercial arbitration challenging investment banker fees of prominent securities firm in multi-million-dollar merger. Facing one of New Jersey’s largest law firms, Mr. Rosenthal successfully demonstrated no fee should be awarded.
• Employment litigation in which large, publicly traded company, represented by one of Connecticut’s largest law firms, advanced trade secrets claims to seek an injunction that would have prevented Mr. Rosenthal’s clients from working for competitor, notwithstanding absence of non-compete. Following expedited discovery, the plaintiff withdrew its application for temporary injunction, and the case was thereafter amicably resolved.
• Probate and Superior Court litigation involving dispute over family trust, real property boundaries, closely held business, and the estate of deceased owner – successfully resolved in favor of Mr. Rosenthal’s clients notwithstanding allegations of business improprieties and bitter personal animosity.
• Superior court litigation involving $4 million defalcation by elderly decedent’s lawyer, related to underlying probate proceedings.
• Vexatious litigation action against international fence manufacturer and its law firm, following Mr. Rosenthal’s successful defense of his accounting clients in underlying federal litigation of unfounded claims of misrepresentation and civil conspiracy (see below, under “Accounting Cases”) – vexatious litigation case favorably resolved for Mr. Rosenthal’s clients following extensive pretrial proceedings and summary judgment filings.
• Brought in after $2,000,000 default judgment in Georgia, Mr. Rosenthal persuaded Connecticut judge to reverse a pre-existing collection order, and to enter summary judgment on defendant’s behalf – erasing a $2,000,000 liability.
• Numerous cases involving commercial real estate, including purchase options, boundary and ownership disputes, and bank foreclosures.
• Violations of percentage of rent retail lease obligations based on monthly gross sales. Rosenthal tried the case to a successful conclusion, obtaining judgment against all defendants.
• Bankruptcy litigation involving unsecured debts of insolvent auto dealership, rejection of contractual obligations, and terms of purchase and sale agreement
• United States v. Earth Technology, Inc. et al. (Federal court, Bridgeport). White collar prosecution on charges of conspiracy, mail fraud, wire fraud and money laundering arising from private construction project.  Following 3-week trial in which Mr. Rosenthal was lead trial counsel, the jury returned not guilty verdicts on 53 of 54 counts – the prosecutor’s first defeat in 14 years. See Conspiracy Case Ends in Acquittals, Conn. Law Trib., Nov. 14, 2011, p. 1.
• United States v. Dennis Hoskie (Federal court, New Haven). Prosecution under felon-in-possession-of-firearms statute.  Despite overwhelming odds, Mr. Rosenthal utilized recent case law to argue there was no interstate “nexus” where the admitted possession of the firearm occurred while defendant was riding a bicycle on local city streets. Facing a minimum mandatory sentence of 17 years, the defendant was acquitted by the jury on all charges.
• United States v. Weintraub (Federal court, New Haven). Environmental prosecution under Clean Air Act.  Following 2-week trial, the lead defendant was convicted, but sentenced to less time than offered in plea negotiations.

Accounting Cases

• Defense of numerous accounting and tax malpractice actions and alleged ethics violations in a variety of settings
• Malpractice action for accountants’ alleged failure to detect embezzlement by company controller. Following two-week trial, Mr. Rosenthal obtained post-trial resolution at a de minimis amount less than 1% of plaintiff’s original demand.
• Claims of fiduciary duty and negligence for accountants’ alleged endorsement of client’s investment – resolved at a small fraction of plaintiff’s demand, with minimal contribution by accounting defendants.
• Defended accounting firm of fence retailer against $3 million malpractice claim by trade creditor of retailer. Following 4 years of pretrial proceedings, and aggressive cross-examinations of plaintiff’s witnesses by Mr. Rosenthal at trial, plaintiff withdrew the case before it went to the jury.   Rosenthal then brought a vexatious litigation case against plaintiff and its law firm (see above, under “General Civil and Criminal Litigation”).
• Claim by Illinois company against St. Louis-based accountants, claiming negligent audit services. Mr. Rosenthal achieved cost-effective early settlement at a fraction of the original demand.
• Malpractice action by tax and accounting client convicted of tax fraud, seeking indemnification from accounting firm for losses and penalties incurred as a result of criminal tax conviction. Case was dismissed without any payment whatsoever on the part of accounting firm.
• Defense against claim of improper termination brought by one founding shareholder/”partner” of closely held accounting firm. Case settled for less than 15% of plaintiff’s demand.

Tax Cases:  Mr. Rosenthal has handled a broad range of federal, and state & local tax litigation, including:

• IRS foreclosure of tax lien in federal district court litigation involving innocent spouse relief, prior bankruptcy proceedings and over ten years of personal and business tax returns
• IRS audit (civil & criminal) of wholesaler’s business deductions — criminal case dropped; civil audit favorably settled.
• Criminal and civil tax investigation of tire dealer — resolved at 10% of state auditors’ original figures.
• Reasonable compensation assessment against closely held scrap metal business — settled on eve of Tax Court trial at fraction of original IRS demand.
• State income tax assessment on installment sale of business prior to owner’s retirement to Florida, involving hundreds of thousands of dollars of potential taxes — withdrawn by the State with no payment of additional tax.
• Litigation concerning out-of-state domicile for state income tax purposes
• Test case seeking sales tax for “management services” on inter-company payments — judgment in favor of taxpayer following trial (with significant favorable impact on taxability of transfers between parent & subsidiary companies)
• Successful attack on conveyance tax assessment for transfer of commercial property to closely held LLC entity.
• Supreme Court reversal of tax assessor and appellate court’s denial of open space tax classification for commercial airport.
• Successful resolutions through court appeals of sales tax assessments on escort services company, tire retailer, and bar/nightclub, among others, involving issues of cash receipts, record keeping, independent contractor status, and quantitative models for calculating (reducing) assessments.
• Coordination on forensic accounting analysis in federal criminal prosecution for income tax fraud.
• Commercial property tax appeals involving industrial and commercial establishments, apartment complexes, retail properties, and large condominium complexes, among others, and associated commercial appraisals and business valuations.

Criminal Defense:  Mr. Rosenthal has over twenty-five years of experience in defending criminal cases, including:

• Defense of federal prosecutions involving white collar, environmental, narcotics and other criminal charges, including federal jury acquittals on mail fraud, money laundering and firearms charges (see above, Earth Technology and Hoskie cases).
• Federal criminal tax investigations and prosecutions
• Post-conviction proceedings, including nationally reported September 2015 exoneration of Bobby Johnson (see “News” section of this website)
• Jury acquittals in murder, arson, assault and sexual assault cases
• Appellate reversals in a wide range of cases

Appellate Litigation:  Mr. Rosenthal has handled over 30 appeals, prevailing in more than 50% of them (with a success rate of nearly 60% for appeals in which he was the trial attorney), including: Bobby Johnson v. Commissioner, SC 19513 (Conn. Supreme Court 2015) (withdrawn following State’s agreement to vacate petitioner’s conviction and dismiss all charges); Goodspeed Airport, LLC v. Town of East Haddam, 302 Conn. 70, 24 A.3d 1205 (2011), reversing 115 Conn. App. 438, 973 A.2d 678 (2009); Mandell v. Gavin,  262 Conn. 659; 816 A.2d 619 (2003); State v. Colton, 234 Conn. 683; 663 A.2d 339 (1995), cert. den., 516 U.S. 1140 (1996); State v. Colton, 227 Conn. 231, 630 A.2d 577 (1993); Fortier v. Newington Group, Inc., 30 Conn. App. 505, 620 A.2d 1321, cert. den., 225 Conn. 922; 625 A.2d 823 (1993); Seery v. Yale-New Haven Hospital, 17 Conn. App. 532, 554 A.2d 757 (1989); State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Echols, 203 Conn. 385, 524 A.2d 1143 (1987); State v. Harris, 10 Conn. App. 217; 522 A.2d 323 (1987); State v. Fernandez, 5 Conn. App. 40; 496 A.2d 533 (1985); In re Juvenile Appeal, 1 Conn. App. 378, 472 A.2d 795 (1984); State v. Martinik, 1 Conn. App. 70, 467 A.2d 1247 (1983); New Haven Com. on Equal Opportunities ex rel. Washington v. Yale University, 183 Conn. 495, 439 A.2d 404 (1981).

• A Second Look: The Exoneration of Bobby Johnson, Conn. L. Trib., Oct. 5, 2015, p. 27
• Defending Accounting Malpractice Claims, NYSS-CPA, The CPA Journal, Oct. 2011, p. 10
• Vexatious Litigation in Connecticut: Malicious Prosecution of Civil Actions, Probable Cause and Lawyer Liability, 84 Conn. B. J. 255 (2010)
• Prosecutor Misconduct and Double Jeopardy, 71 Temple L. Rev. 887 (1998)
• Connecticut’s New Appellate Court System, 9 Conn. L. Trib. No. 37, Sept. 12, 1983, p. 1.