SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4909-15T2

RD LEGAL FUNDING PARTNERS, 

LP,

Plaintiff-Respondent,

v.

MEL POWELL, ESQ., and POWELL

LAW FIRM, PC,

Defendants,

and

JEFFREY C. BOGERT, ESQ., and LAW 

OFFICE OF JEFFREY C. BOGERT, 

Defendants/Third-Party

Plaintiffs-Appellants,

v.

DANIEL OSBORN, ESQ., BEATIE &

OSBORN, LLP, a New York Limited

Liability Partnership, OSBORN LAW,

PC, a New York Professional Corporation,

and OSBORN LAW GROUP,

Third-Party Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-4909-15T2

_____________________________________ 

Argued March 28, 2019 – Decided July 29, 2019

Before Judges Simonelli, Whipple and Firko. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. C000026-15.

Barry Joseph Muller argued the cause for appellants 

(Fox Rothschild LLP, attorneys; Barry Joseph Muller

and Jonathan D. Weiner, of counsel and on the briefs).

Kevin Joseph Musiakiewicz argued the cause for 

respondent RD Legal Funding Partners, LP (Calcagni 

& Kanefsky, attorneys; Eric Todd Kanefsky, of counsel 

and on the briefs; Kevin Joseph Musiakiewicz and 

Martin B. Gandelman, on the briefs).

Levi & Korsinsky LLP, attorneys for respondents 

Daniel Osborn, Beatie and Osborn LLP, Osborn Law, 

PC, and Osborn Law Group (Eduard Korsinsky, of 

counsel and on the brief).

PER CURIAM 

Defendants/third-party plaintiffs Jeffrey C. Bogert, Esq. and the Law 

Office of Jeffrey C. Bogert (collectively, Bogert) appeal from the March 10, 

2016 Chancery Division orders granting summary judgment to plaintiff RD 

Legal Funding Partners, LP (RD Legal) and third-party defendants Daniel 

Osborn, Beatie & Osborn, LLP (B&O), Osborn Law P.C. and Osborn Law 

Group (collectively, Osborn), and dismissing the third-party complaint with 
3

A-4909-15T2

prejudice. Bogert also appeals from the May 7, 2018 order denying his motion 

to vacate judgment.

1

 We affirm.

I.

We derive the following facts from the evidence submitted by the parties 

in support of, and in opposition to, the summary judgment motions, viewed in 

the light most favorable to Bogert, who opposed entry of summary judgment. 

Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017).

In 2005, Bogert, Osborn and defendants Mel Powell and Powell Law, LC

(collectively, Powell) began working as co-counsel in pursuing personal injury 

 

1

 Bogert's notice of appeal indicates he also appealed from the April 18, 2016 

order denying his motion for reconsideration; however, he did not address this 

issue in his merits brief. The issue, therefore, is deemed waived. See

Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & 

Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019). In addition, we 

consider the trial court's summary judgment decision based solely on the motion 

record and not based on evidence presented later. Ji v. Palmer, 333 N.J. Super. 

451, 463-64 (App. Div. 2000). Accordingly, we will not consider documents 

submitted or arguments made for the first time on Bogert's motion for 

reconsideration. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.

1996) (a party is not permitted to use a motion for reconsideration as a basis for 

presenting facts or arguments that could have been provided in opposition to the 

original motion). Even if we considered the issue, we discern no abuse of 

discretion in the trial court's denial of the motion, Pitney Bowes Bank, Inc. v. 

ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015), and would 

affirm substantially for the reasons the court expressed in its written opinion 

dated April 18, 2016. 
4

A-4909-15T2

claims involving a class of drugs manufactured and sold by Novartis, Merck, 

and Proctor & Gamble/Aventis. They pursued these claims in three separate 

multi-district actions, two in the United States District Court for the Southern 

District of New York and one in the United States District Court for the Middle 

District of Tennessee (the ONJ Litigations). 

Powell primarily collected the cases and referred them to Osborn and 

Bogert for handling. In December 2005, the parties executed two Fee 

Agreements, one between B&O and Powell and the other between B&O and 

Bogert. Under the agreements, Powell would receive forty percent of the 

attorney's fees derived from the ONJ Litigations and Osborn and Bogert would 

split the remaining sixty percent based on their relative contributions. At the 

time, Russell Beatie and Osborn were partners in B&O. 

B&O sought to obtain funding from RD Legal to finance the ONJ 

Litigations costs and expenses. On October 23, 2007, B&O and RD Legal 

executed a Master Assignment and Sale Agreement (the B&O Agreement). 

Under the B&O Agreement, RD Legal would provide funding to B&O on an asneeded basis in exchange for B&O's sale and assignment of attorney's fees it 

derived from the ONJ Litigations (Prospective Fees). Each sale and purchase of 
5

A-4909-15T2

Prospective Fees would be a separate transaction memorialized in a separately 

executed schedule. 

In December 2008, B&O was dissolved and Osborn formed Osborn Law, 

PC. Beatie and Osborn agreed that Osborn would continue to prosecute ninetyfive percent of the ONJ Litigations. On December 31, 2008, Osborn, Bogert

and Powell entered into a Fee Agreement, which provided for the same division 

of attorney's fee as the prior Fee Agreement. 

Bogert claimed that on January 6, 2009, he and Osborn met with Roni 

Dersovitz, the principal and general partner of RD Legal, to discuss RD Legal's 

continued purchase of Prospective Fees following B&O's dissolution. Bogert 

alleged the parties agreed that RD Legal would purchase Prospective Fees in an 

amount sufficient to provide Osborn with approximately $200,000 per month in 

gross sale proceeds and Osborn, in turn, would pay Bogert $10,000 per month

from those proceeds (the Alleged Oral Agreement). 

On January 24, 2009, Osborn and Bogert executed a Fee Sharing 

Agreement, whereby Bogert would continue to act as co-counsel with Osborn in 

prosecuting the ONJ Litigations, and Osborn would receive sixty-five percent 

of the attorneys' fees derived from the litigations and Bogert would receive 

thirty-five percent. 
6

A-4909-15T2

On January 29, 2009, RD Legal and Osborn executed a Master 

Assignment and Sale Agreement, which contained all of the same material and 

operative terms of the B&O Agreement (the Osborn Agreement). Osborn also 

executed an Assumption Agreement, whereby he assumed the obligations B&O 

incurred in a September 2007 loan and security agreement with RD Legal (the 

B&O Loan Agreement). Osborn thereafter assigned and sold his Prospective 

Fees to RD Legal, as required by the Assumption Agreement. 

In mid-2009, it became apparent that Osborn and Bogert needed 

substantial additional funding for the ONJ Litigations. By that time, the total 

obligations under the B&O and Osborn Agreements had accrued significantly

and RD Legal had extended the deadlines associated with each of the schedules 

issued under the agreements. Due to the significant outstanding balance and the 

absence of any imminent prospect of a payment, RD Legal agreed to provide 

continued funding so long as Bogert and Powell executed a Subordination 

Agreement. 

Prior to executing his Subordination Agreement, on September 1, 2009, 

Bogert obtained a loan in the amount of $63,000 from another litigation funding 

company, JD Capital LP I (JD Capital), and pledged to JD Capital an interest in 

the attorneys' fees he would derive from unrelated personal injury actions and 
7

A-4909-15T2

some of the ONJ Litigations. Bogert claimed he notified RD Legal in writing 

of this transaction, but RD Legal did not respond. 

Thereafter, on September 30, 2009, Bogert executed a Subordination 

Agreement, whereby he agreed to assign, transfer and convey to RD Legal the 

attorney's fees he derived from the ONJ Litigations in exchange for RD Legal's 

continued purchase of Prospective Fees from Osborn.

2

 Bogert acknowledged in 

the Subordination Agreement that he 

derives a benefit from the [B&O and Osborn]

Agreements and the B&O Loan Agreement and, in 

consideration thereof, desires to enter into this 

[Subordination] Agreement in order to further induce 

RD Legal to enter into and perform under [the B&O and 

Osborn] Agreements and the B&O Loan Agreement. 

Bogert also agreed to the following terms:

1. TERMS OF SUBORDINATION

1.1 In consideration and conditioned upon the 

covenants and promises set forth in this Agreement, and 

in order to induce RD Legal to provide financing to 

[Osborn] . . . pursuant to the terms of the [B&O and 

 

2

 Powell also executed a Subordination Agreement, which was almost identical 

to Bogert's agreement, except that Powell only assigned the first $1 million in 

attorney's fees derived from the ONJ litigations and retained the right to 

terminate his agreement as to RD Legal's future advances of funds to Osborn on 

or after May 1, 2010. 
8

A-4909-15T2

Osborn] Agreements and the B&O Loan Agreement, 

Bogert . . . hereby:

1.1.1 assigns, transfers and conveys to RD Legal

[Bogert's] portion of all Legal Fees that are at any time 

due and payable to Bogert . . . under any of the Fee 

Agreements, in each case as additional collateral 

securing [B&O's] present and future obligations to RD 

Legal . . . pursuant to the terms and conditions hereof 

and of the [B&O and Osborn] Agreements and the B&O 

Loan Agreement . . . and

1.1.2 subordinates in favor of RD Legal any right, title, 

interest or lien that Bogert . . . may have or hereafter 

acquire in [Bogert's] portion of the Legal Fees that are 

at any time due and payable to [Bogert] under any of 

the Fee Agreements . . . . Accordingly, such Legal Fees

shall be subject and subordinate to the payment in full 

of all [B&O's] and Osborn['s] Obligations.

. . . .

1.5. RD Legal may at any time, in its sole and 

absolute discretion . . . enter into such agreements with 

[B&O] and [Osborn] as RD Legal may deem desirable 

without notice to or further assent from [Bogert] and

without in any way affecting RD Legal's rights or 

[Bogert's] obligations hereunder. [Bogert] waives any 

rights [he] may have to claim that the enforceability of 

this Agreement may be affected by any subsequent 

modification, release, extension, or other change, 

material or otherwise, to any or all of the [B&O and 

Osborn] Agreements and the B&O Loan Agreement, or 

in respect of the Obligations.

1.6. This Agreement is and shall be deemed to 

be a continuing subordination and assignment, and 

shall be irrevocable and remain in effect until the 
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A-4909-15T2

Obligations have been indefeasibly paid in full. This is 

a continuing agreement of subordination and [Bogert]

acknowledges that RD Legal may continue, at any time 

and without notice to [Bogert] to extend financial 

accommodations for the benefit of [B&O] and [Osborn]

on the faith hereof, in such amounts and on such terms 

and conditions as RD Legal, [B&O] and [Osborn] may 

agree.

. . . . 

11. ASSIGNMENT; BINDING EFFECT

11.1 . . . RD Legal shall have the right to assign 

any portion or all of its rights, interests and obligations 

under this Agreement. RD Legal shall also have the 

right to pledge or grant a security interest in this 

Agreement relative to any Legal Fee or Legal Fees.

. . . . 

15. CONFLICTS WITH OTHER AGREEMENTS

15.1. Unless otherwise expressly stated in any 

other agreement between all or certain of the parties 

hereto, if a conflict exists between the provisions of this 

Agreement and the provisions of such other agreement, 

the provisions of this agreement shall control. . . .

16. ENTIRE AGREEMENT, AMENDMENT AND 

WAIVER

16.1 No promises of any kind have been made 

by RD Legal or any third party to induce [Bogert] to 

execute this Agreement. No course of dealing, course 

of performance or trade usage, and no parole evidence 

of any nature, shall be used to supplement or modify 

any terms of this Agreement. Only a writing signed by 
10 A-4909-15T2

all parties hereto may amend this Agreement. No 

failure or delay in exercising any rights hereunder shall 

impair any such right that RD Legal may have, nor shall 

any waiver by RD Legal hereunder be deemed a waiver 

of any default or breach subsequently occurring. RD 

Legal's rights and remedies herein are cumulative and 

not exclusive of each other or of any rights or remedies 

that RD Legal would otherwise have.

[(Emphasis added).]

Bogert alleged he and Osborn agreed that if, as a result of the 

Subordination Agreement, Bogert was required to repay RD Legal an amount 

greater than what he received from Osborn under the Alleged Oral Agreement, 

Osborn would reimburse him for the difference (the Alleged Reimbursement 

Agreement). 

RD Legal claimed that in November 2009, it discovered the transaction 

between Bogert and JD Capital and demanded that Bogert arrange for JD Capital 

to remove its lien on the attorney's fees Bogert would derive from the ONJ 

Litigations. The dispute was not resolved. Bogert claimed that in January 2010, 

RD Legal instructed Osborn to cease paying him any proceeds from the sale of 

Prospective Fees to RD Legal. 

By the end of 2014, all of the ONJ Litigations had settled, but the 

litigations did not yield attorney's fees sufficient to cover the funds RD Legal 

had provided to Osborn. Osborn thereafter transferred all of the attorney's fees 
11 A-4909-15T2

he derived from the ONJ Litigations to RD Legal, but Bogert and Powell did not 

do so and also did not establish a joint deposit account, as required by their 

Subordination Agreements. 

RD Legal filed a verified complaint against Bogert and Powell asserting 

claims for breach of contract; conversion; breach of the implied covenant of 

good faith and fair dealing; breach of fiduciary duty; unjust enrichment; an 

accounting; and injunctive relief.

3

 Bogert filed a counterclaim against RD Legal 

and third-party complaint against Osborn for declaratory judgment that the 

Subordination Agreement was void and for breach of the implied duty of good 

faith and fair dealing. Bogert also sought reimbursement from Osborn pursuant 

to the Alleged Reimbursement Agreement in the event he had to pay RD Legal 

an amount greater than the sale proceeds he received from Osborn under the 

Alleged Oral Agreement.

On February 4, 2016, after the close of discovery, the parties each filed 

motions for summary judgment. Bogert argued the Subordination Agreement 

was unenforceable because there was no meeting of the minds or mutual assent 

to form the Subordination Agreement, and there was a failure of consideration.

He maintained that his right to receive a portion of the sale proceeds under the 

 

3

 RD Legal later settled with Powell.
12 A-4909-15T2

Alleged Oral Agreement was the actual bargained-for consideration for the 

Subordination Agreement, and RD Legal and Osborn breached both agreements

by depriving him of that right. He also argued that RD Legal breached the 

implied covenant of good faith and fair dealing by directing Osborn to stop 

payment and providing funding to Osborn in an arbitrary and capricious manner.

In a March 10, 2016 written opinion, the court granted summary judgment 

to RD Legal and Osborn and dismissed the third-party complaint with prejudice. 

The court found that Bogert signed the Subordination Agreement and the clear 

language of the agreement established there was a meeting of the minds with 

respect to its terms. The court also found there was mutual assent because 

Bogert signed the Subordination Agreement with no changes and failed to 

submit evidence supporting his claim that he made changes to the agreement. 

Addressing consideration, the court noted that Bogert conceded the 

Subordination Agreement contained no provision regarding his right to receive 

monthly payments from the sale proceeds. The court reviewed the language of

the Subordination Agreement and found the consideration to Bogert was for RD 

Legal to continue providing funds to Osborn so that Bogert and Osborn could 

continue to prosecute the ONJ Litigations. The court emphasized:

Without funding provid[ed] by [RD Legal],

[Bogert] and [Osborn] would have been unable to 
13 A-4909-15T2

continue representing their clients in the [ONJ 

Litigations]. While the [ONJ Litigations] ultimately 

did not yield [Bogert] and [Osborn] fees sufficient to 

cover the funds provided by [RD Legal], [Bogert] and 

[Osborn] were provided the opportunity to prosecute 

the actions to win these awards and try to win much 

greater rewards, and that constitutes consideration.

Addressing the Alleged Oral Agreement, the court again noted that Bogert 

conceded there was no provision in the Subordination Agreement or any other 

written agreement between the parties regarding that Alleged Oral Agreement. 

The court reviewed the record and concluded there was no evidence of the 

Alleged Oral Agreement existed. 

The court determined neither RD Legal nor Osborn breached the implied 

covenant of good faith and fair dealing because there was no evidence the 

Alleged Oral Agreement and Section 1.6 of the Subordination Agreement 

expressly permitted the manner in which RD Legal provided funding to Osborn:

[Bogert] acknowledges that RD Legal may continue, at 

any time and without notice to [Bogert], to extend 

financial accommodations for the benefit of [B&O] and 

[Osborn] on the faith hereof, in such amounts and on 

such terms and conditions as RD Legal, [B&O] and 

[Osborn] may agree.

The court thus concluded the Subordination Agreement was enforceable.

As to Bogert's claim against Osborn for reimbursement, the court found

there was no evidence the Alleged Reimbursement Agreement existed. The 
14 A-4909-15T2

court also found no basis to compel Osborn to contribute to Bogert to what 

Bogert owed RD Legal. 

II.

Bogert first contends the court erred in granting summary judgment to RD 

Legal because there were genuine issues of material fact regarding the 

relationship of the parties, their intentions in entering into the various 

agreements, and the consideration to Bogert for entering into the Subordination 

Agreement. Bogert argues the court ignored the parties' course of dealing, failed 

to consider evidence of the Alleged Oral Agreement, disregarded the context in 

which the parties' entered into the Subordination Agreement, and ignored certain 

provisions of the Subordination Agreement that incorporated by reference his 

Fee Agreement.

Our review of a ruling on summary judgment is de novo, applying the 

same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 

(2017). Thus, we consider, as the trial judge did, "whether the evidence presents 

a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. 

v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. 

Guardian Life Ins. Co., 142 N.J. 520, 536 (1995)). Summary judgment must be 
15 A-4909-15T2

granted "if the pleadings, depositions, answers to interrogatories and admissions 

on file, together with the affidavits, if any, show that there is no genuine issue 

as to any material fact challenged and that the moving party is entitled to a 

judgment or order as a matter of law." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). 

"To defeat a motion for summary judgment, the opponent must 'come 

forward with evidence that creates a genuine issue of material fact.'" Cortez v. 

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue 

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). 

"[C]onclusory and self-serving assertions by one of the parties are insufficient 

to overcome the motion." Sullivan v. Port Auth. of N.Y. & N.J., 449 N.J. Super. 

276, 283 (App. Div. 2017) (alteration in original) (quoting Puder v. Buechel, 

183 N.J. 428, 440-41 (2005)). "Competent opposition requires 'competent 

evidential material' beyond mere 'speculation' and 'fanciful arguments.'" 

Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) 

(quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 

556, 563 (App. Div. 2005)).

If there is no genuine issue of material fact, we must then "decide whether 

the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. 
16 A-4909-15T2

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting 

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We 

review issues of law de novo and accord no deference to the trial judge's legal 

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). Applying the 

above standards, we discern no reason to reverse the grant of summary judgment 

to either RD Legal or Osborn.

Bogert concedes he agreed to the Subordination Agreement to induce RD 

Legal to continue purchasing Prospective Fees. However, he reiterates that the 

actual bargained-for consideration was his right to receive a portion of the sale 

proceeds under the Alleged Oral Agreement, and RD Legal deprived him of that 

consideration by instructing Osborn to stop payment. 

"In general, contracts are enforceable only if they are supported by 

consideration." Sipko v. Koger, Inc., 214 N.J. 364, 380 (2013). "If the 

consideration requirement is met, there is no additional requirement of gain or 

benefit to the promisor, loss or detriment to the promisee, equivalence in the 

values exchanged, or mutuality of obligation." Ibid. (quoting Martindale v. 

Sandvik, Inc., 173 N.J. 76, 87 (2002)). Furthermore, "[i]t has been long accepted 

that the value given or received as consideration need not be monetary or

substantial[.]" Oscar v. Simeonidis, 352 N.J. Super. 476, 485 (App. Div. 2002). 
17 A-4909-15T2

Thus, "[c]ourts . . . do not inquire into the adequacy of consideration in 

determining whether to enforce a contract." Seaview Orthopaedics v. Nat'l 

Healthcare Res., Inc., 366 N.J. Super. 501, 508-09 (App. Div. 2004). As we 

have held:

Any inquiry into the presence of consideration does not 

depend upon the comparative value of the "things"

exchanged. Instead, when we speak of the need for an 

exchange of valuable consideration what is meant is 

that the consideration "must merely be valuable in the 

sense that it is something that is bargained for in fact." 

[Id. at 509 (citation omitted) (quoting Borbely v. 

Nationwide Mut. Ins. Co., 547 F. Supp. 959, 980 

(D.N.J. 1981)).]

"When a trial court's decision turns on its construction of a contract, 

appellate review of that determination is de novo." Manahawkin Convalescent 

v. O'Neill, 217 N.J. 99, 115 (2014). "If the language of a contract 'is plain and 

capable of legal construction, the language alone must determine the 

agreement's force and effect.'" Id. at 118 (quoting Twp. of White v. Castle Ridge 

Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011)). Interpretation and 

construction of a contract may be decided on summary judgment "unless the 

meaning is both unclear and dependent on conflicting testimony." Celanese Ltd. 

v. Essex Cty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009) 
18 A-4909-15T2

(quoting Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. 

Div. 2001)). 

The language in the Subordination Agreement regarding consideration is 

clear and unambiguous. The Subordination Agreement expressly provides that 

Bogert assigned and subordinated to RD Legal all his attorney's fees derived 

from the ONJ Litigations "in consideration" for "induc[ing] RD Legal to provide 

financing to [B&O] and Osborn . . . pursuant to the terms of the [B&O and 

Osborn] Agreements and the B&O Loan Agreement[.]" This language leaves 

no doubt that Bogert agreed to the Subordination Agreement so that RD Legal 

would continue providing funds to Osborn that he and Bogert needed to continue 

prosecuting and financing the ONJ Litigations. RD Legal's continued purchase 

of Prospective Fees therefore constituted valuable consideration to Bogert for 

the Subordination Agreement. "The court will not make a different or better 

contract than the parties have seen fit to make for themselves." Great Atl. & 

Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 501 (App. Div. 2000) (quoting 

Schnakenberg v. Gibraltar Sav. & Loan Ass'n, 37 N.J. Super. 150, 155 (App. 

Div. 1955)).

4

 

4

 Bogert relies on an Iowa Supreme Court case, Hubbard Mill Co. v. Citizens 

State Bank, 385 N.W.2d 255 (Iowa 1986), to support his argument that a defense 
19 A-4909-15T2

We reject Bogert's claim that the actual bargained-for consideration for 

the Subordination Agreement was his right to a portion of the sale proceeds

under the Alleged Oral Agreement. The Subordination Agreement expressly 

provides that if there was a conflict between its provisions and the provisions of 

any other agreement, its provisions "shall control" and "[o]nly a writing signed 

by all parties hereto may amend this Agreement." The Subordination Agreement 

contains no language supporting or referring to Bogert's version of 

consideration, his version conflicts the Subordination Agreement, and he 

admitted his version was not memorialized. Thus, the consideration term in the 

Subordination Agreement controls. 

Second, there is no evidence that Bogert communicated to RD Legal that 

he intended his version of consideration be the actual bargained-for 

consideration for the Subordination Agreement. On the contrary, Bogert 

admitted he did not engage in negotiations over the terms of the Subordination 

Agreement and he executed the Subordination Agreement RD Legal presented 

to him with no changes.

 

of lack of consideration "is not precluded even when the parties recite some 

consideration in their argument." However, we are not bound by published outof-state opinions. Pressler & Verniero, Current N.J. Court Rules, cmt. 3.5 on R.

1:36-3 (2019).
20 A-4909-15T2

Further, Bogert claimed that, prior to executing the Subordination 

Agreement, he faxed an unsigned copy of it to RD Legal, advising of his 

transaction with JD Capital. However, he admitted he did not express his intent 

that his version of consideration be the actual bargained-for consideration and

did not ask anyone to put this version in the Subordination Agreement. 

It is well-established that "the secret, unexpressed intent of a party cannot 

be used to vary the terms of an agreement." Domanske v. Rapid-American 

Corp., 330 N.J. Super. 241, 246 (App. Div. 2000). "A contracting party is bound 

by the apparent intention he or she outwardly manifests to the other party. It is 

immaterial that he or she has a different, secret intention from that outwardly 

manifested." Cumberland Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J. 

Super. 423, 440 (App. Div. 2016) (quoting Hagrish v. Olson, 254 N.J. Super. 

133, 138 (App. Div. 1992)).

By executing the Subordination Agreement, and without engaging in 

negotiations, Bogert "outwardly manifest[ed] to the other party" an intention to 

accept the terms of the agreement and the consideration provided therein. See

ibid. (quoting Hagrish, 254 N.J. Super. at 138). Thus, to the extent Bogert 

claims he entered into the Subordination Agreement for reasons other than those 

provided by its express terms, such a "different, secret intention" cannot be used 
21 A-4909-15T2

to vary the consideration expressly provided in the agreement. Ibid. (quoting 

Hagrish, 254 N.J. Super. at 138). Accordingly, Bogert is bound by the terms of 

the Subordination Agreement and his private intent to condition his performance 

on his version of consideration "did not create a material question of fact for 

purposes of summary judgment analysis." Domanske, 330 N.J. Super. at 247-

48. 

We also reject Bogert's argument that the court erred by ignoring the 

parties' course of dealing prior to the Subordination Agreement. The 

Subordination Agreement clearly and unambiguously provides that "[n]o course 

of dealing, course of performance or trade usage, and no parole evidence of any 

nature, shall be used to supplement or modify any terms of this Agreement. Only 

a writing signed by all parties hereto may amend this Agreement." Thus, Bogert 

cannot rely on the parties' course of dealing to vary or alter the consideration 

expressed in the Subordination Agreement. 

Even accepting as true Bogert's claim that he was entitled to a portion of 

the sale proceeds, his right to those proceeds could not have constituted valid 

consideration for the Subordination Agreement. According to Bogert, the 

Alleged Oral Agreement, which obligated Osborn to pay him $10,000 per month 

from the sale proceeds, was made on January 6, 2009, eight months before 
22 A-4909-15T2

Bogert executed the Subordination Agreement on September 30, 2009. That 

obligation therefore was pre-existing and could not constitute valid 

consideration for the Subordination Agreement. See Segal v. Lynch, 211 N.J. 

230, 253 (2012) ("[C]onsideration cannot be a promise to perform a pre-existing 

duty."); Bernetich, Hatzell & Pascu, LLC v. Med. Records Online, Inc., 445 N.J. 

Super. 173, 183 (App. Div. 2016) ("[C]onsideration generally may not be 

furnished by fulfilling a pre-existing legal duty."). "The principle is firmly 

imbedded in our jurisprudence that a promise to do what the promisor is already 

legally bound to do is an unreal consideration." M. N. Axinn Co. v. Gibraltar 

Dev., Inc., 45 N.J. Super. 523, 533 (App. Div. 1957). 

In addition, even accepting the Alleged Oral Agreement existed, Bogert 

admitted he was only entitled to receive a portion of the sale proceeds for one 

year, until January 2010. He also admitted he received a portion of the sale 

proceeds until January 2010, when RD Legal allegedly instructed Osborn to stop 

payment. Thus, Bogert was not deprived of the benefit he claims he was entitled 

to under the Alleged Oral Agreement because he received a portion of the sale

proceeds for the entire term of the Alleged Oral Agreement. 

Nevertheless, Bogert argues he did not benefit from the funds provided to 

Osborn because Osborn only used a portion of the sale proceeds to fund the ONJ 
23 A-4909-15T2

Litigations. However, Bogert ignores the fact that there were no restrictions on

RD Legal's advancement or Osborn's use of the sale proceeds. The 

Subordination Agreement clearly and unambiguously provides "that RD Legal 

may continue, at any time and without notice to [Bogert] to extend financial 

accommodations for the benefit of [B&O] and [Osborn] in such amounts and on 

such terms and conditions as RD Legal, [B&O] and [Osborn] may agree." It is 

therefore clear that Osborn was not restricted in his use of the sale proceeds, and 

the fact that he may have used only a portion to fund the ONJ Litigations did 

not alter the consideration for Bogert's Subordination Agreement.

This argument also fails under the principle that "[a]ny inquiry into the 

presence of consideration does not depend upon the comparative value of the 

'things' exchanged." Seaview Orthopaedics, 366 N.J. Super. at 509. "A very 

slight advantage to one party, or a trifling inconvenience to the other, is a 

sufficient consideration to support a contract[.]" Oscar, 352 N.J. Super. at 485 

(quoting Joseph Lande & Son, Inc. v. Wellsco Realty, Inc., 131 N.J.L. 191, 198 

(E. & A. 1943)). Furthermore, "[i]f the consideration requirement is met, there 

is no additional requirement of gain or benefit to the promisor, loss or detriment 

to the promisee, equivalence in the values exchanged, or mutuality of 
24 A-4909-15T2

obligation." Ibid. (quoting Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 289 

(1988)). 

The consideration to Bogert for the Subordination Agreement was RD 

Legal's continued purchase of Prospective Fees. RD Legal provided this 

consideration by continuing to purchase Prospective Fees after the effective date

of the Subordination Agreement and Bogert benefitted from same through his 

ability to continue prosecuting and funding the ONJ Litigations. There is no 

additional requirement that Bogert gain a monetary benefit, or that there be an 

"equivalence in the values exchanged, or mutuality of obligation." See ibid.

(quoting Shebar, 111 N.J. at 289). 

Bogert also argues that if the consideration was RD Legal's continued 

purchase of Prospective Fees, RD Legal would have required him to enter into 

the Subordination Agreement sooner, when it initially began purchasing those 

fees. However, Bogert provides no basis for this claim and ignores that RD 

Legal was not obligated to purchase Prospective Fees under the B&O and 

Osborn Agreements. RD Legal was entitled to deny a request for additional 

funding at any time, or request additional security for that funding. In this 

instance, RD Legal required Bogert and Osborn to execute a Subordination 
25 A-4909-15T2

Agreement because it "was concerned about collateral and security and told 

[Osborn] that [it] might have to discontinue funding." 

Bogert further argues that RD Legal breached the implied covenant of 

good faith and fair dealing by instructing Osborn to stop payment and allowing 

Osborn to sell Bogert's interest under the Fee Agreement for no consideration to 

Bogert in breach of the Alleged Oral Agreement. We disagree.

"A covenant of good faith and fair dealing is implied in every contract in 

New Jersey." Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001). It has 

been formulated by our Supreme Court as follows: 

In every contract there is an implied covenant that 

neither party shall do anything which will have the 

effect of destroying or injuring the right of the other 

party to receive the fruits of the contract; which means 

that in every contract there exists an implied covenant 

of good faith and fair dealing.

[Id. at 245 (quoting Sons of Thunder, Inc. v. Borden, 

Inc., 148 N.J. 396, 421 (1997)).]

To establish a claim for a breach of that duty, the claimant must therefore allege 

conduct by the opposing party which "destroyed [the claimant]'s reasonable 

expectations and right to receive the fruits of the contract[.]" Sons of Thunder, 

148 N.J. at 425. 
26 A-4909-15T2

RD Legal did not breach the implied covenant of good faith and fair 

dealing, nor did Osborn. The Subordination Agreement expressly permitted RD 

Legal "to extend financial accommodations for the benefit of [B&O] and Osborn 

. . . on the faith hereof, in such amounts and on such terms and conditions as RD 

Legal, [B&O] and [Osborn] may agree." As our Supreme Court has consistently 

held, "the 'implied covenant of good faith and fair dealing cannot override an 

express term in a contract.'" Seidenberg v. Summit Bank, 348 N.J. Super. 243, 

258 (App. Div. 2002) (quoting Wilson, 168 N.J. at 244). 

Second, and perhaps most important, Bogert failed to substantiate the 

existence of the Alleged Oral Agreement. Thus, as the trial court found,

breaching the Alleged Oral Agreement cannot constitute a breach of the implied 

covenant of good faith and fair dealing. Even accepting as true that RD Legal 

instructed Osborn to stop payment, this is of no moment. Bogert had no 

entitlement to the sale proceeds under the B&O and Osborn Agreements, and 

his receipt of a portion of same from Osborn under the Alleged Oral Agreement 

was not a "fruit" of the Subordination Agreement. 

Further, Bogert misconstrues the factual record. He contends that RD 

Legal instructed Osborn to stop payment in January 2010. However, the record 

reveals that Bogert received $4000 from Osborn in February 2010, $3000 in 
27 A-4909-15T2

March 2010, $2,195.46 in June 2010, $4,832.80 in August 2010, and $1400 in 

September 2010, after the alleged stop payment. Osborn testified at his 

deposition that he stopped paying Bogert because he could no longer afford to 

do so. While Bogert disputes that explanation, the payments Osborn made to 

him after the alleged payment stoppage severely undercut his claim that RD 

Legal instructed Osborn to stop paying him in January 2010. 

Bogert insists the grant of summary judgment to RD Legal was improper 

because there is a genuine issue of material fact regarding whether or not the 

Alleged Oral Agreement existed and whether his rights thereunder constituted 

the bargained-for consideration for the Subordination Agreement. Bogert 

argues the court erred in finding there was no evidence that the Alleged Oral 

Agreement existed, citing to a list of facts he claims the court failed to view in 

the light most favorable to him. However, these "facts" do not support Bogert's 

claim that the Alleged Oral Agreement existed. Moreover, even if Bogert had 

provided sufficient evidence to show the Alleged Oral Agreement existed,

Osborn's obligations thereunder do not create a genuine issue of material fact 

sufficient to defeat RD Legal's summary judgment motion. 

"[T]he mere existence of some alleged factual dispute between the parties 

will not defeat an otherwise properly supported motion for summary judgment; 
28 A-4909-15T2

the requirement is that there be no genuine issue of material fact." Alfano v. 

Schaud, 429 N.J. Super. 469, 475 (App. Div. 2013) (alteration in original) 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). Thus, 

"[w]hile 'genuine' issues of material fact preclude the granting of summary 

judgment, those that are 'of an insubstantial nature' do not." Brill, 142 N.J. at 

530 (citation omitted) (quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 

75 (1954)). "In other words, where the party opposing summary judgment points 

only to disputed issues of fact that are 'of an insubstantial nature,' the proper 

disposition is summary judgment." Id. at 529 (quoting Judson, 17 N.J. at 75). 

Although the parties dispute whether the Alleged Oral Agreement actually 

existed, the existence of that agreement was not relevant to the issues raised in 

RD Legal's summary judgment motion unless Bogert's rights thereunder 

constituted valid consideration for the Subordination Agreement, which they did 

not. As previously noted, the clear and unambiguous terms of the Subordination 

Agreement and the principles of contract law contradict Bogert's version of 

consideration. The Subordination Agreement clearly sets forth the consideration 

for the agreement and mentions nothing about the Alleged Oral Agreement or 

Bogert's intent that his right to a portion of the sale proceeds was the bargainedfor consideration. It is therefore clear, as a matter of law, that even if it existed, 
29 A-4909-15T2

the Alleged Oral Agreement could not have constituted the consideration for the 

Subordination Agreement, and therefore the issue of whether or not the 

agreement existed was immaterial to RD Legal's motion for summary judgment. 

"To send a case to trial, knowing that a rational jury can reach but one 

conclusion, is indeed 'worthless' and will 'serve no useful purpose.'" Id. at 541. 

As the trial court found, the competent evidential materials presented leave no 

doubt about whether the Subordination Agreement was enforceable and entitled 

RD Legal to the attorney's fees Bogert derived from the ONJ Litigations. There 

is no evidence from which a jury could conclude that RD Legal deprived Bogert 

of his bargained-for consideration. Accordingly, summary judgment in favor of 

RD Legal was appropriate. 

III.

Bogert next contends the court erred in granting summary judgment to 

Osborn and dismissing Bogert's claim for reimbursement. He argues there was 

a material question of fact as to whether he and Osborn entered into the Alleged 

Reimbursement Agreement. He maintains that pursuant to the Alleged 

Reimbursement Agreement, he was entitled to reimbursement from Osborn in 

the event he had to pay RD Legal the attorney's fees he derived from the ONJ 
30 A-4909-15T2

Litigations in an amount greater than what he received from Osborn from the 

sale proceeds.

The court found that Bogert provided "no written evidence of [the Alleged 

Reimbursement Agreement], no evidence referring to the existence of any such 

agreement, no details on when it was entered or what its specific terms are." 

The court thus concluded there was no evidence the Alleged Reimbursement 

Agreement existed.

The court's conclusion is unassailable. There was no evidence beyond 

Bogert's naked assertions to substantiate the existence of the Alleged 

Reimbursement Agreement. "[C]onclusory and self-serving assertions by one 

of the parties are insufficient to overcome the motion." Sullivan, 449 N.J. Super. 

at 283 (alteration in original) (quoting Puder, 183 N.J. at 440-41). Accordingly, 

the grant of summary judgment to Osborn and dismissal of the third-party 

complaint was proper.

IV.

Bogert filed a notice of appeal on July 15, 2016. On September 13, 2017, 

he moved before this court to remand the matter to the trial court to enable him 
31 A-4909-15T2

to file a motion to vacate judgment pursuant to Rule 4:50-1(b) based on newly 

discovered evidence. We granted the motion, remanded the matter to the trial 

court, and retained jurisdiction.

On February 23, 2018, Bogert filed a motion to vacate judgment as to RD 

Legal based on newly discovered evidence consisting of evidence derived from 

a July 14, 2016 administrative action the Securities and Exchange Commission

(SEC) brought against Dersovitz and RD Legal Capital, a general partner of RD 

Legal. Bogert's motion concerned two areas of Dersovitz's testimony in the SEC

litigation, which, according to Bogert, contradicted material information RD 

Legal provided in this litigation. First, RD Legal represented in this litigation 

that it lost money on its purchase of Prospective Fees when it, in fact made a 

$500,000 profit by engaging in a side Participation Agreement with a third-party 

investor, Constant Cash Yield Ltd. (CCY). Second, RD Legal did not continue 

purchasing Prospective Fees for Bogert's benefit in reliance on the 

Subordination Agreement, but rather provided funding to Osborn to keep 

Osborn afloat as a "workout" situation to protect RD Legal's position and 

collateral and to ensure repayment of past-due funds. 

In a May 7, 2018 written opinion, the court determined the evidence was 

new. However, the court was not satisfied this new evidence was unavailable 
32 A-4909-15T2

in this litigation. In sum, the court held that Bogert failed to inquire as to 

whether RD Legal was engaged in a "workout" with Osborn, whether RD Legal 

considered that its advances to Osborn enhanced the protections to RD Legal's 

collateral and position, or whether RD Legal was involved in transactions with 

third-party investors. After reviewing the discovery demands and responses, the 

court concluded "there were [not] any false or misleading responses as to the 

matters under consideration[.]"5 

Addressing the merits, the court found that neither RD Legal's 

Participation Agreement with CCY, nor the alleged "true purpose" behind RD 

Legal's continued advancement of funding to Osborn, altered its initial 

decisions. The court held: 

[t]hat RD Legal entered into a side-agreement with a 

third-party investor — which RD Legal was 

specifically entitled to do under the Subordination

Agreement — does not in any way affect the rights or 

obligations of the parties under the Subordination

Agreement. This court's decision did not turn on 

whether there was any such third-party investor 

agreement — which it now appears there was — nor 

whether RD Legal earned income as a result of any such 

third-party investor agreement — which it appears RD 

Legal did. 

 

5

 This holding directly conflicts with Bogert's continued argument that RD 

Legal deliberately failed to disclose these matters in discovery. 
33 A-4909-15T2

We review the trial court's denial of a motion to vacate final judgment for

abuse of discretion. Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 

98 (App. Div. 2012). "'The trial court's determination under [Rule 4:50-1] 

warrants substantial deference,' and the abuse of discretion must be clear to 

warrant reversal." Ibid. (alteration in original) (quoting U.S. Bank Nat'l Ass'n 

v. Guillaume, 209 N.J. 449, 467 (2012)). "It is within the trial court's sound 

discretion, guided by equitable principles, to decide whether relief should be 

granted pursuant to Rule 4:50-1." In re Guardianship of J.N.H., 172 N.J. 440, 

473 (2002). 

"To obtain relief from a judgment based on newly discovered evidence 

[under Rule 4:50-1(b)], the party seeking relief must demonstrate 'that the 

evidence would probably have changed the result, that it was unobtainable by 

the exercise of due diligence for use at the trial, and that the evidence was not 

merely cumulative.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) 

(quoting Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445 

(1980)). 

Under the Subordination Agreement, RD Legal had "the right to assign 

any portion or all of its rights, interests and obligations under this Agreement." 

Given this right, even accepting as true that RD Legal (1) made a profit on its 
34 A-4909-15T2

investment by engaging in a side transaction with a third-party investor, and (2) 

advanced monies not for Bogert's benefit but to enhance and protect its own 

collateral, neither claim is relevant. 

The Subordination Agreement expressly permitted the Participation 

Agreement between RD Legal and CCY, and therefore that agreement has no 

impact on Bogert's obligations under the Subordination Agreement. Bogert is 

therefore not entitled to a credit against his obligations for the amounts RD Legal 

received from CCY. As the Subordination Agreement expressly provides, 

Bogert is obligated to "subordinate [his share of Prospective Fees] to the 

payment in full of all of [Osborn's] [o]bligations"; there is no "set off" for funds 

received by RD Legal by way of a third-party side-agreement. 

Bogert's argument also ignores the reality that the "profit" referenced in 

the SEC action was based on the aggregate figure RD Legal received from the 

return on its advancements to Osborn, and the advances RD Legal itself received 

from CCY, and did not account for RD Legal's obligations to CCY. 

Under the terms of the Participation Agreement between RD Legal and 

CCY:

(1) RD Legal agreed to sell to CCY . . . "undivided 

fractional interest[s]" in RD Legal's rights to legal fees 

from certain litigations, including the ONJ Litigations;
35 A-4909-15T2

(2) CCY would be entitled to share, or "participate," in 

the collections of those legal fees "pro rata" with RD 

Legal and all other participants; and

(3) RD Legal agreed to be responsible to CCY for 

deficiencies in the collection of the legal fees purchased 

by CCY. 

[(Citations omitted).]

Thus, the alleged "profit" of approximately $500,000 is no true profit at all. As 

stated by RD Legal in this appeal:

[A]s reflected in SEC Exhibit 3116 and explained by 

. . . Dersovitz, RD Legal (i) advanced a total of 

$13,442,143 for the benefit of Osborn and his cocounsel, and (ii) received a total of $13,951,073 from 

two separate sources -- $6,423,782 in Legal Fees from 

Osborn and Powell, and $7,527,291 in proceeds from 

the sale of [l]egal [f]ees to CCY. RD Legal, however, 

still has the obligation to pay to CCY the substantial 

portion of [l]egal [f]ees that it purchased in exchange 

for the payments totaling $7,527,291 regardless of 

whether that portion is ever collected from Osborn, 

Bogert and Powell.

[(Citations omitted).]

Clearly, under the terms of the Participation Agreement, RD Legal has not truly 

profited. As, or even if, fees are remitted from Osborn to RD Legal, RD Legal 

must repay CCY for its advances. Logic dictates that CCY did not "participate" 

for free, and RD Legal's obligation to CCY is significant.
36 A-4909-15T2

Finally, even if we ignored RD Legal's obligations to CCY and accepted

the total of $13,951,037 as the total collected such that RD Legal has "profited," 

that number is less than half of the $26 million RD Legal is owed from its 

advances to Osborn as of November 2014, "and an even smaller percentage of 

the total obligations once the per diem interest [that] has accrued over the last 

four years is added." Again, per the express terms of the Subordination 

Agreement, Bogert was obligated to subordinate his attorney's fees to the extent 

of any outstanding obligations, and not merely to the extent that RD Legal 

recovered its investment. 

Ultimately, the court held that this "new evidence" would not alter the 

grant of summary judgment to RD Legal because the Subordination Agreement 

expressly permitted the Participation Agreement with CCY. However, it is 

apparent that Bogert's argument that RD Legal has profited from its 

advancements to Osborn is itself without merit. 

Regarding Bogert's argument about the continued advancement of funding 

to Osborn to enhance and protect RD Legal's collateral, the court held:

the idea that RD Legal was concerned about Osborn's 

economic viability and that it infused him with cash to 

enhance its collateral and protect its collateral is 

likewise not a piece of information that would cause the 

court to undo any of the factual or legal predicates of 

its summary judgment decisions or its denial of 
37 A-4909-15T2

Bogert's motion for reconsideration. It does not relate 

to the parties' rights and remedies under the 

Subordination Agreement . . . .

Nevertheless, Bogert maintains, for the third time, that genuine issues 

clearly exist as to whether he received the consideration he bargained for in 

entering the Subordination Agreement. Bogert's argument is predicated on his 

purported right to share in the funds advanced by RD Legal to Osborn; this 

"consideration" for entering the Subordination Agreement was frustrated, says

Bogert, when RD Legal advanced monies to Osborn out of its own "selfish" 

motivation – the enhancement and protection of its collateral, including nonONJ Litigation collateral – while simultaneously denying Bogert the right to 

share in the advances to which he was allegedly entitled. 

The court rejected this argument each time Bogert raised it, and so do we. 

The Subordination Agreement, not any unsubstantiated oral agreements, dictates 

the consideration to Bogert. Further, the Subordination Agreement dictated that 

the continued advancement of funding to Osborn was at RD Legal's discretion, 

and the modification of the funding arrangements would not affect Bogert's 

obligations under the Subordination Agreement.

In addition, there was nothing new about the fact that RD Legal provided 

funding to Osborn to protect non-ONJ collateral after the execution of the 
38 A-4909-15T2

Subordination Agreements. To the contrary, the parties' deposition testimony,

along with the contemporaneous documents produced on summary judgment,

confirmed that Bogert knew during both the pursuit of the ONJ Litigations and 

discovery in this action that RD Legal was advancing funds to support non-ONJ 

cases in which Bogert had no interest or involvement. 

Because this information was known to Bogert prior to summary 

judgment, it cannot serve as "newly discovered evidence" for a Rule 4:50-1(b) 

motion. State v. Speare, 86 N.J. Super. 565, 582 (App. Div. 1965) (newly 

discovered evidence "must . . . have been discovered since the former trial and 

be such as could not have been discovered before such trial by the exercise of 

due diligence"). In line with the trial court's holding, while the evidence itself 

may be "new," the information contained therein surely was not. 

It is important to note that at the time of the Subordination Agreement, 

Osborn, Bogert, and Powell were in financial trouble. RD Legal was frustrated, 

and was going to turn off its spigot. As Powell testified at in his deposition,

the only viable option that we had that we knew of at 

the time to protect the interests of the clients was to 

keep [Osborn] alive, and the only way apparently to do 

that . . . was to agree to sign the [S]ubordination 

[A]greement so that RD Legal would continue to 

provide the funding to . . . keep [Osborn] in business. 
39 A-4909-15T2

Osborn also testified to the realities of their situation: "Dersovitz made it 

clear that . . . he was concerned about collateral and security and told me that he 

might have to discontinue funding." As a result, Bogert and Powell signed 

subordination agreements to keep the funding flowing. However, per the 

express terms of Bogert's Subordination Agreement, RD Legal was permitted to 

fund Osborn in its sole discretion, including funding of non-ONJ Litigation, and, 

while Bogert may now wish to undo his decision to enter into the Subordination 

Agreement, such funding does not provide grounds to invalidate it. 

Affirmed.