•  attending depositions in a t-shirt and shorts
• scheduling the deposition at a Dunkin’ Donuts restaurant
• playing Angry Birds during depositions (and bragging about winning)
• drawing pictures of male genitalia ostensibly belonging to defense counsel and showing them to his co-counsel, who laughed

Instead, in the class action case of Emigdio Bedoya et al. v. Aventura Limousine Transportation Service, Inc., et al. (S.D. Fla. 11-24432), the court ordered the disqualification of plaintiffs’ counsel on May 16, 2012, based upon, in part, multiple ex parte communications over a number of days with a represented party and others. 

 In one telling example, an officer of the defendants stated that plaintiff’s counsel told him that he “can afford better representation . . . and that he could never settle” with the company’s current lawyer.  Incredibly, the plaintiff’s counsel contended that he said “Dude, you are a big company.  You need to have outside counsel who specializes in this stuff.”  That was not the end of the ex parte communications, believe it or not.

 I guess the moral of the story is you can’t have your (Dunkin) donut and eat it too (and, yes, I recognize that was pretty bad).

In a 110 page opinion, the Delaware Supreme Court affirmed (among other things) an award for attorneys’ fees in excess of $304 million.  This apparently amounts to $35,000 per hour according to the Wall Street Journal Law Blog.  Good work if you can get it.  The ABA Journal further notes that the attorney requesting the payday noted the lower court’s ruminations that:

“There’s an idea that when a lawyer or law firms are going to get a big payment, that there’s something somehow wrong about that, just because it’s a lawyer. I’m sorry, but investment banks have hit it big, a lot of the bigger plaintiffs’ lawyer firms have hit it big. They’ve hit it big many times . . . . And to me, envy is not an appropriate motivation to take into account when you set an attorney fee. It’s not.”

Mind you, they won $2 billion—but does that mean the lawyer should get a piece of the action?  I think not.

Still, the supreme court undertook an exhaustive analysis, noted that the “extraordinary benefit that was achieved in this case merits a very substantial award of attorneys’ fees,” and concluded that a 15% recovery of fees was appropriate and not atypical. Indeed, they make it clear that a great deal of work was done to achieve the very favorable result. 

But I am stuck on the $35,000 per hour figure and the lone dissenting justice’s statement, who concluded that: “In sum, the trial court said that the fundamental test for reasonableness is whether the fee is setting a good incentive, and that the only basis for reducing the fee would be envy. That is not a decision based on” current law.

A judge noted after Armstrong sued that:

“USADA’s conduct raises serious questions about whether its real interest in charging Armstrong is to combat doping, or if it is acting according to less noble motives.”  The judge ended up dismissing the suit and Armstrong declined to pursue arbitration.  If they wanted to take down a top athlete and prove a point why not someone who is actually competing in the sport?  He retired years ago and was pursuing new athletic achievements, i.e. the Ironman.  I wanted to see him do so.  Don’t you?

When it is filed with the court, it is hard to argue that the brief is not a public record.  But because it is in the public sphere, does that make it free game?  Obviously, I cannot record a television show and sell it. But I can DVR it and watch it later.

Whether the use of the briefs constuitutes a fair use requires an examination of the following non-exclusive factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

To test the proposition, an intellectual property lawyer is suing Westlaw in a class action suit, claiming that the online research provider is unlawfully asserting rights over his content as reported by Above the Law. 

Here is an interesting corollary decision.  In a sick case coming out of Maryland, William Bond asserted copyright infringement over a manifesto he wrote describing how he killed his father to death with a hammer.  After murdering his father, he stuffed the body into the trunk of his father’s car, drove it to an isolated location, and left the car there.  Surprisingly, Bond objected to the use of “Self-Portrait of a Patricide: How I Got Away with Murder” during child custody proceedings and sued.  After he lost in the district court and the court of appeals affirmed (Bond v. Blum, 317 F.3d 385 (4th Cir. 2003)) and the supreme court did not take the case.  (As an aside, the court of appeals decision is well worth the read to see how crazy this matter was.)

In that case, the court concluded that the use was non-commercial and important in determining the merits of the child custody proceeding such that there was no copyright infringement.  Here, the use is clearly commercial.  Still, I welcome the ability to easily review briefs on matters I am researching.  Obviously, I could randomly search physically or electronically courthouses for cases that are helpful and review the files but that helps no one on efficiency grounds. 

It seems that a system is needed to acknowledge the work of the attorneys (who were ostensibly paid by their clients) and allow for general use.  What do you think?

Here are some off-the-cuff remarks:

1. When was the last time you used a payphone? Shoot, how often do you send an e-mail or text instead of picking up the phone and calling the person?

2. While traditional communications may have declined, I would suspect that our wired society results in more interaction whether by e-mail, social networking, texting, etc. When you think about AT&T’s 1979 “Reach out and Touch Someone” advertising campaign (this is worth a click for the clothes alone), it is now reality.

3. The generational difference leads to conflicts in how communications are made, received and perceived. Born in 1970, I played PacMan, never made long distance calls and had to write school reports by hand. My middle school daughter texts her friends, has access to the Internet and can view 300+ cable channels (assuming parental approval).

4. The codes and cues available in direct interaction are often missing, or at least different, in electronic media. While you can send an e-mail in “all caps,” it is hard to always pick up on what the person is attempting to convey—yet this was true with letters.

5. The immediacy of the communication is both good and bad. You can respond to an e-mail while sitting at a restaurant with your friends, but in doing so the efficiency may give way to a lack of attention to the message.

Yes, yes, I recognize that my comments are not novel. But I do suggest is that there continues to be a technological divide in the workplace and beyond as to how people listen, learn and respond. Please don’t ding me for stating the obvious but I welcome your comments.

While the cost (at least for Maker’s Mark) was likely well worth it, I turn evermore to Abraham Lincoln’s admonition to “discourage litigation.” It is with that in mind that I toast a “cease and desist” letter sent by an attorney for Jack Daniel’s as reported in The Atlantic by Megan Garber.

Apparently, a fan of the beverage used as the cover art for his novel a label that looks similar to the label on Jack Daniel’s. Rather, than instituting preemptive litigation or issuing over-the-top demands, the trademark attorney pulled back from nuclear Armageddon and, wait for it, sent a cheery letter asking only that the author not use the cover in any second printing of the book.  That’s it.

The bottom line: one-size-fits-all approaches work as well as Henry Ford‘s quip that “Any customer can have a car painted any colour that he wants so long as it is black.” You’ve got a big tool box—use it.

Between a muder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of “grace under pressure,” would choose the trial.  At his most robust, Hemingway exemplified the intrepid defense lawyer:

“He works like hell, and through it . . .He has the most profound bravery . . . He he has had pain[] and the kind of poverty you don’t believe[;] he has had about eight times the normal allotment of responsibilities.  And he has never once compromised.  He has never turned off on an easier path than the one he staked himself. It takes courage.”

Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor of solemn duty . . . . Best of luck to counsel in next year’s contest.  The motion is DENIED.

Kudos, Judge Merryday (and I suspect the defendant can say a farewell to arms….)!

 In honor of our People-obsessed culture, I offer the following top hits: 

1. Basketball star Anthony Davis (Kentucky) is seeking trademark protection ostensibly for his unibrow.  While most of us would suggest a good set of tweezers, he wants to monetize the monobrow.
2. Tim Tebow (along with many others) is seeking trademark protection for “Tebowing” and variants of the mark.   I am not sure if he has a prayer of success….
3. Infamous boxing legend Mike Tyson played a bit role in “Hangover” and “Hangover Part II“—the intellectual property angle?  His tattoo artist claimed that the film violated his copyright interests when it used tattoo art on actor Ed Helms “similar” to the facial tattoo he created for Tyson.  The “artiste” threatened to shut the movie down.  Cannes was a-flutter.  
4. Disney, in a public relations coup, sought trademark protection for the mark “Seal Team 6″ following the death of Osama bin Laden.  Scrooge McDuck had second thoughts and abandoned the application.

Did I miss any?

Within hours, the much anticipated soccer a/k/a football match begins between Germany and Greece in the UEFA Euro 2012 tournament.  The backdrop, of course, is one full of tension between the nations as to complaints over Germany’s insistence as to Greek austerity measures while it remains in the Eurozone.

So, speaking of austerity measures, I found it almost humorous that while in the throes of an economic recession, the Court of Justice of the European Union released yesterday its decision in a case arising out of Spain that a worker who becomes sick during his annual paid leave is entitled to an additional period of leave of the same duration as that of his sick leave.  Indeed, the court concluded it was a particularly important principle of the European Union’s social law and expressly enshrined in the Charter of Fundamental Rights.

 For those of you on vacation, are you starting to get a tickle in your throat?

I feel like I should go to the drive through and order some really, really hot coffee.

Here is a link to a recent update.

Fast forward thirty (or more) years. I read a story in the Wall Street Journal that reported a lawyer feud in a trademark case in which one side was complaining that the other side was using inappropriate line spacing so as to allow them to add more sentences to their brief. Apparently, the judge only allowed double spacing and, allegedly, one of the lawyers was using 1.75 spacing. Tricky, yes.  Childish, yes.  Professional?

Of course, courts routinely place limits on how long briefs and motions can be and for good reason. As one of my partners says jokingly, “I would have written a shorter brief, but I didn’t have time.” Legal writing—like any writing—is a craft. And the audience, in this case the other side and the court, is better served by well stated and supported arguments. More is not necessarily better.

The problem arises when the producers (or trademark holders) have a dispute concerning whether Company A or Company B is entitled to use a particular mark or brand to idenitfy its goods and services.  It is in that situation that reasonable minds can differ as to whether the marks are confusingly similar.  Eventually, if the businesses cannot work it out between themselves, the lawyers get invited to the party. 

For example, you started a pest control company a decade ago and use in your advertising the slogan “We will eat them up.”  A neighboring Mexican restaurant starts up a few years later and uses the tagline “You will eat us up.”  Problem?  I don’t think so (although there is hopefully no cross-distribution agreement between the pest company’s kills and the restaurant’s food products).  And why is that?  Because the companies are not in the same industry and there would be no customer confusion.

Still, in years past, he with the biggest stick (and the biggest checkbook) could force a competitor (or even a non-competitor) to stop using a name or mark or brand by threateneing what is typically very expensive, time-consuming or resource intensive litigation.  And part of why they do this is so they can avoid being genericized such that the mark is no longer deemed valid (think:  aspirin, thermos, yo-yo, escalator–all trademarks that later became unprotected because the public asociated with the marks as if they were mere generic products, such as soda).  The good news is that there is a growing (even if slight) ability of the proverbial little guy to fight back where the claim is meritorious (which is by no means the norm).  Over the past five years, I have seen trademark owners become more careful in who they seek to shut down.  While owners have to be zealous in protecting their marks, diligence has its boundaries. 

I have some techniques that I use in protecting trademark owners, both big and small, but I found it encouraging (and the reason for this posting) the recognition in this recent Wall Street Journal article as to efforts to combat predatory trademark practices by going “rogue” so to speak and taking the dispute to the online street.  Another good resource cataloguing  trademark cease and desist notices is sponsored by the Electronic Frontier Foundation and a number of univeristies.  

Clearly, our economy is based to a great deal on intellectual property but it is a fine line when one company says another company should not be using a certain brand name.  What we don’t want to happen is a stifling of innovation and the marketplace such that consumers are not able to choose between competing products.

The bottom line is that he apparently did not get a date with the defendant; but he did get a date with the judge to discuss Jock’s alleged contempt of court.

UPDATE:

The court did not take too kindly to the posts and placed Jock in jail.

Here’s my fundamental problem with the proposed legislation: is it even needed given the numerous laws and enforcement tools already on the books?  While there are doubtless tweaks that can be made, adding layer upon layer of new laws and regulations adds nothing more than complexity, uncertainty and steep legal fees.  Not to mention, it sends a signal to the world that it is okay to control further the Internet.  Take that, China!

 While the Senate version of the legislation is currently on hold, don’t be surprised when it gets raised again.  I recently had an opportunity to provide an ever so brief video and print commentary on the legislation for the Richmond Times-Dispatch and welcome your comments and thoughts as well.