Known By The Company They Keep

So, without commenting on whether either of the parties are innocent or guilty, I was thinking about what these two guys are going through. Both face the destruction of their careers for allegedly committing illegal acts. One of them has been given up by his so-called friends. The other's is being protected by his.

Say what you want about Barry, but it looks like his friends have his back. Vick's on the other hand...

Funny, I Thought They Said Terrorist Trials Would Never Work..

And yet by my count, the Bush Administration has a winning record in prosecuting terrorists. The managed to get verdicts against Moussaui and Reid. And today Padilla was convicted in a trial held in the U.S. District Court.

For more than 2 years, the Bush Administration fought against the idea of according him his civil rights. They maintained that it would be too dangerous, that it he could be summarily designated an enemy combatant. That essentially, the President could determine which citizens of this country they thought should be tried and accorded their rights.

Whether or not he was innocent, the fact that he had a reasonably fair trial (since no trial is perfect) just goes to show what is right with the system. And what is wrong with Bush's perception of justice and the American system of justice.

Just When You Thought You Could Stop Mocking Him

Roy Pearson, Jr., steps back up to the plate to give lawyers more bad press. That's right, it appears as though he is appealing the decision.

Apparently, the soon to be former Administrative Law Judge in Washington D.C. has decided to appeal the decision in his case against the dry cleaners. This case, you might recall, began when the dry cleaners may or may not have shrunk his pants. An error so grievous that Pearson demanded $54 million (after dropping down from $67.3 million).

At trial, which was... interesting, he represented himself (see the live blog here in Washington Post's archives). And lost. Apparently, he is repeating the same strategy on appeal.

Now I could understand filing the appeal if there was as question of his having to pay the other side's legal fees and costs. Apparently, that is not the issue. The defendants in the case have already offered to not seek costs which they could have under the law in the hopes it would buy themselves some peace.

Ahh, thanks Mr. Pearson for being the one man campaign for litigation reform. In a few years, after they change the consumer protection laws again to favor businesses, you still won't have your pants, but many others will not have the protections and opportunities to be heard that they should have had.

Another Reason Why IP Law Is Ridiculous... from the makers of Johnson and Johnson

Alright, who out there knew that Johnson and Johnson held the trade mark on the red cross? If someone were to ask me what the Johnson and Johnson trademark is, I would answer that it is the script version of the company's name.



Apparently, I am mistaken. Apparently, in addition to the above type trademark, Johnson and Johnson also claims the exclusive use of the red cross.

The American Red Cross, with whom Johnson and Johnson has an agreement dating back more than a century, which gives the American Red Cross the ability to use the symbol for its non-profit work. However, now that, in trying to raise money for the non-profit work, the Red Cross sells things with the red cross on it. They also license the trademark to others to get royalties, money which goes to fund their disaster relief projects.

Since they have started using the symbol for "commercial" activities, apparently Johnson and Johnson is up in arms trying to protect "its" trademark. In their statement, the company states their justification by complaining,

Johnson & Johnson began using the Red Cross design and "Red Cross" word trademarks in 1887, predating the formation of the American Red Cross. The Company has had exclusive rights to use the Red Cross trademark on commercial products within its longstanding product categories for over 100 years. Since its creation, the American Red Cross has at all times possessed only the rights to use the Red Cross trademark in connection with its non-profit relief services.
After more than a century of strong cooperation in the use of the Red Cross trademark, with both organizations respecting the legal boundaries for each others' unique legal rights, we were very disappointed to find that the American Red Cross started a campaign to license the trademark to several businesses for commercial purposes on all types of products being sold in many different retail and other commercial outlets. These products include baby mitts, nail clippers, combs, toothbrushes and humidifiers. This action is in direct violation of a Federal statute protecting the mark as well as in violation of our longstanding trademark rights.

The American Red Cross on the other hand fired back with their press release. In it, they stated,

The Red Cross has been selling first aid kits commercially in the United States since 1903. Until now, J&J has never challenged this activity. In fact, for over 100 years, J&J and the Red Cross have enjoyed their concurrent right to use the Red Cross emblem.
By offering Red Cross first aid, health, safety and emergency preparedness products at retail locations, the Red Cross is reaching more families and making it easier for Americans to get prepared. The money the Red Cross receives in the sale of these products to consumers is reinvested in its humanitarian programs and services.
The Red Cross, a nonprofit, received only $2 million in revenue from the sale of its products in 2006. J&J, a corporation, received $53.3 billion in annual revenue in 2006.
“We hope that Johnson & Johnson will act as a good corporate citizen and recognize the right of the American Red Cross to our own emblem to carry out our mission—not stand in the way,” Everson said.
“Our legal argument is based on solid substantiated facts,” he continued. “J&J has taken a criminal statute intended by Congress to protect the American Red Cross and is now using it to distort history and the law.”

The rest of the response can be found here.

At first glance, and this is without going into the whole question of who used the symbol first, what the law actually says, or what agreements may not have existed, some jury may be asked to decide between a Pharmaceutical giant who makes $53 billion a year versus a non-profit who makes a couple of million a year and then uses the money to pay for programs which help save lives in the wake of tragedies.

Could Johnson and Johnson have found a more sympathetic defendant to go after?

And remember, that's before we get to the fun questions of who was using the mark first (ARC seems to make the case that they were), of what the agreement said or even if it existed, and what the law says.

Patent Baristas has a much better look at this.

Milberg Weiss Update

So even though it has been over a year since the indictments came down, very little has moved, it would seem, that is visible in the Federal case against Milberg Weiss. At least until recently.

A few days ago, it was announced that David J. Bershad, the former financial head of Milberg Weiss, has agreed to a plea deal where he will forfeit almost $ 8 million and pay a $250,000.00 fine. In return, he will become a government witness in the case against his former employers. This was followed on July 10, by the announcement that former client Steven Cooperman would be pleading guilty to receiving more than $6 million in kickbacks from the firm.

Now today, the government filed its response to the motion to dismiss the indictment filed by defendants Steven Schulman, named plaintiff Seymour M. Lazar and Lazar's former lawyer, Paul T. Selzer. Schulman, Lazar and Selzer argue that the "honest services fraud" alleged in the indictment against them should be dismissed because the government cannot show that the class members of any of the cases were harmed by their arrangement. The amended motion to dismiss contends that under the law, they did not violate it since their agreements with the named plaintiffs did not cause an actual divergence of interests.

The government's position is that harm to the class members is irrelevant, that there simply needs to be a showing that there was a "fraudulent concealment of material facts". Simply put, it seems to say, there just needs to be the secret agreement that is hidden by the alleged conspirators.

As this is going on, William Lerach and Melvyn Weiss have been in negotiations with the prosecution to get some sort of a plea deal. The sticking point seems to be jail time. Neither Lerach or Weiss wants to go to jail. Of course, if they were contributors to Bush's administration, maybe they could get the Scooter Special. Hell, if they were in Nebraska, ... let's not go there.

Doldrums

dol·drums (dōl'drəmz', dôl'-, dŏl'-) pl.n. (used with a sing. or pl. verb)

1. 1. A period of stagnation or slump.
   2. A period of depression or unhappy listlessness.
   3. A region of the ocean near the equator, characterized by calms, light winds, or squalls.
   4. The weather conditions characteristic of these regions of the ocean.
2. 1. A region of the ocean near the equator, characterized by calms, light winds, or squalls.
   2. The weather conditions characteristic of these regions of the ocean

(Courtesy of the American Heritage Dictionary, Dictionary of the English Language)


This last month, I slipped into the doldrums. Now I need to learn how to harness the little whisps of breeze around me to get me out of it when they come.

Sometimes Being Useful Means Just Standing There

Seriously.

This afternoon I volunteered with the S.F. Bar Association's Courthouse Project to try and help some people stay housed. For the most part, I did alright. Had three clients. Got three deals that the clients wanted and worked in their favor.

And then as I was dropping off my files with the coordinator, there was another case that was not moving towards settlement. Part of it was the landlord's belief that there was no way in hell that anyone would take the tenant's case to trial at the last minute. The pro tem, who has a mediation practice, was looking for a way to get the landlord convinced that doing a deal today would be better. When he saw me, since I've appeared before him before, he came up with an idea.

A statute of liberty play.

Basically, I sat on a bench in the hallway reading my treo (science fiction not law related) and looked over at the tenant next to me every so often.

Suddenly the landlord changed his tune and started dealing. Amazing what I can accomplish when I do nothing.