Happy First Birthday Drug and Device Law Blog
(no, the photo is neither Mark nor James, but some stock photo kid celebrating his first birthday, re-published here in full compliance with the terms of use, officer)
I, for one, wouldn't touch the name "Drug and Device" for anything in the world.
But maybe that's just the kind of place my mind goes to.
And here's what's truly great about Drug & Device's First Birthday Wish to Itself -- it says everything you need to know about how to blog and why to blog when just the other day you were using an ink-pot and quill pen.
Want to have reporters calling you for your learned opinion? Admittedly, Mark Herrman of Jones, Day was already as close to being a legal celebrity as you can get without wearing cowboy boots and a ten-gallon hat. He is, after all, the Curmudgeon whose advice riled up an entire generation of young associates on the Wall Street Journal law blog here, here, here, here, and here. But you can still take to heart his Happy Birthday post advice that law blogging can get you quoted in places like NPR, the New York Times and the like.
We "know" Mark -- not in the Biblical but in the blogger-sense, i.e., we've never actually met him or even talked to him but we like him a lot because we've gotten to know him in a writerly kind of way. Mark's the sort of guy whose mind won't go places where others might when confronted with the words "drug and device." And yet he's a funny, funny guy, at least to those in my generation from whose sensibility the Curmudgeon's Guide is written and to whose sensibilities it is directed.
When the kids now making a cool $200K in their first year of law practice (assuming those bonuses flow in) hit Mark's and my age, they'll be curmudgeons too and we'll be in the rest home. We figure that maybe you all will drop by once in awhile because we were not only early blog adopters, but we let you blog too.
I don't know Mark's blogger-in-crime James M. Beck, counsel in the Philadelphia office of Dechert LLP. But he's a published author and witty ranconteur as well (is that redundant?) and likely as learned and pleasurable a read as Mark is.
So just as soon as I start mediating cases involving either drugs or devices, I'll start reading their blog on a regular basis.
HAPPY BIRTHDAY GUYS!!!
MIGHTY GLAD TO HAVE YOUR COMPANY IN THE BLOGOSPHERE!!
On November 13, You Too Can Learn the Techniques that Settled Verizon v. Vonage
NEVER LEAVE VALUE ON THE BARGAINING TABLE AGAIN!
Head's up!! Vonage and Verizon settled their patent dispute using only two settlement techniques well-known to your transactional colleagues but rarely used by litigators. There are dozens more like this, many of which you may be familiar with but few of which you ever attempt to use.
Let some masterful settlement judges (Complex Court Assistant Supervising Judge Victoria Chaney and full-time Settlement Judge Alexander Williams, III) and highly respected mediators and arbitrators teach you how to use these techniques to get a settlement that's nearly as good as actually winning the case.
We've also added a negotiation and mediation ETHICS section to the course so that those of you who need those credits by year-end can get them.
If you read this blog, you are officially a "friend or colleague of the speakers" and are entitled to a 20% discount on our day-long Winning Settlement Techniques Seminar. In addition to Judges Chaney and Williams; former Federal Magistrate John Leo Wagner, Patent Arbitrator and Mediator Les Weinstein, and Arbitrator and Law School Professor Jay McCauley will bring you the techniques necessary to settle and make your clients very very happy at one and the same time.
Your blog-reader coupon code is S3SETL. Enter in the coupon code when you register on-line and receive 20% off the registration price.
Register here now.
The fomal course description below:
Settlement Techniques that Give You the Winning Edge
Novice and seasoned litigators will learn to maximize the value of their litigation positions by learning winning settlement techniques from a panel of seasoned ADR experts.
Experienced mediators and Judges teach the latest settlement techniques, such as distributive (splitting the settlement “pie”) and integrative or interest-based (expanding the settlement “pie”) bargaining. Topics also include the dynamics of conflict resolution, settlement best practices, negotiating techniques, settling complex and patent litigation cases, and international disputes. Don’t miss this chance to hear from those who truly know -- how you can best maximize your client’s settlement opportunities and outcomes.
What You Will Learn if You Attend This Seminar
• The ten social psychological insights that will minimize your own self- defeating negotiation behavior and maximize your opponents’ bargaining weaknesses (preview here)
• The ten basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations
• The ten ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions
• The ten ways to get your case settled to your clients’ best advantage at Mandatory Settlement Conferences for both routine and “bet the company” cases
• The Top Ten Errors Made by Parties When Attempting to Settle Disputes that their Contracts Require Them to Arbitrate
• The Ten Rules of Cross-cultural negotiation in International Arbitration
• The Ten Laws Critical to the Enforcement of Mediated Settlement Agreements
• The Ten Mediation/Settlement Conference Traps for the Unwary (preview here)
Instructors
Hon. Victoria Chaney--Assistant Supervising Judge, Complex Litigation, Los Angeles Superior Court
Hon. John Leo Wagner--ADR Neutral/Hearing Officer, Judicate West
Hon. Alexander Williams, III – Judge, Los Angeles Superior Court, presiding over the full-time Settlement Court
Les J. Weinstein--AAA Arbitrator and Mediator, Patent and Antitrust Attorney
Jay McCauley--Hearing Officer, Dispute Resolution Provider, Judicate West
Victoria Pynchon--Complex Commercial Mediator, Settle it Now
November 13, 2007 - Los Angeles
Check-in: 8:30 - 9:00 a.m.
Seminar: 9:00 a.m. - 4:30 p.m. (Lunch on your own)
Wilshire Grand Hotel
930 Wilshire Blvd.
Los Angeles , CA
Pincus Communications certifies that this seminar has been approved for 6.0 MCLE credits and ethics credits will be given.
Settlement of the Week: Verizon & Vonage Settle Using Contingent Agreements and Charitable Contributions
The Washington Post reports today that Patent Deal May be Charitable Agreement. Excerpt below:
Patent disputes rarely end up helping charities, but two local organizations could get sizable donations from the resolution of a year-long legal battle between Verizon and Vonage.
As part of the settlement reached last week between the two companies, a total of $2.5 million will be given to five educational nonprofit organizations, two of which are based in the District [of Columbia]. . . . .If Vonage loses its rehearing on either of the patents in question, it will pay $120 million, including $2.5 million for the charities. If it wins, it will pay Verizon $80 million, and nothing will go toward charities.
Both companies said the idea of giving money to charities came up during settlement negotiations.
This settlement takes advantage of two settlement tools that every lawyer, IP or not, should have in his/her negotiation tool box.
The first tool is the use of contingent agreements to hedge against gains or losses that can only flow from future events. Here the parties made both the charitable contributions and the higher Vonage pay-out contingent upon Verizon defeating Vonage's motion for rehearing on either of the two patents at issue.
As M.I.T. and Harvard Professor Lawrence Suskind has written in Why Technology Negotiations are Different:
One novel way to accept uncertainty is through contingent agreements—promises that negotiators add to a contract to reduce risk. An agreement might include a table that accounts for many future scenarios, including different prices, deadlines, and obligations to perform.
Contingencies add complexity and incur the wrath of general counsel; they also make it difficult to book the value of the deal (and allocate bonuses) when the agreement is signed. Nevertheless, when uncertainty is high, parties will be best served by spelling out "who gets what" under a variety of scenarios.
Contingent agreements in the litigation context are also used to control for uncertainty. Here the parties are wagering on the Court's decision on Vonage's upcoming motion for a rehearing on either of the two patents at issue. And you thought gambling was illegal in our nation's capital./*
This agreement also builds in whatever tax advantages and benefits to corporate good will that flow from making charitable contributions. These corporations likely have already planned their charitable giving for the year and may well have "re-purposed" those funds to help them settle the litigation.
I rely on any tax expert who drops by this post to answer the question about the tax benefits that would flow from this agreement.
There is one thing I can tell you as a full-time mediator.
The next time you're engaged in litigation with this much at stake, ask Vonage or Verizon who it is that brokered this deal. It's not rocket science, but it shows a level of creativity and ability to persuade that is frankly rare. I, for instance, have suggested charitable contributions and contingent agreements on many occasions. I have not, however, succeeded in convincing the parties that they make good sense.
So I defer to and tip my hat in praise of the mediator and negotiators who can later tell some great war stories about how this deal ended up on the pages of the Washington Post.
Good work!
___________________
/* Note: most states and the District of Columbia outlaw wagering on games of chance, not on games of skill.
When Your Clients Want to Win, How Do You Settle?
When Fulbright and Jaworski recently surveyed a broad range of senior corporate counsel on Litigation Trends, the vast majority responded that the "most impressive deed by outside counsel in the past 12 months" was "winning a case."
The "what have you done for me lately stats" in order of their impressiveness to Fortune 50 GC's and executives are as follows: :
WON A CASE: U.S. 32%; U.K. 50%
SETTLED A CASE: U.S. 15%; U.K. 25%
BUSINESS TRANSACTION: U.S. 12% (no U.K. figure available)
HAD CASE DISMISSED (the litigators' holy grail) U.S. 13% (no U.K. figure available)
GOOD SERVICE U.S. 13%; U.K. 25%
GOOD AVICE: U.S. 4% (no U.K. figure available)
OTHER: U.S. 11% (no U.K. figure available)
How to make settling as good (or better!) than winning in tomorrow's post.
"B" is for BATNA: At the End of the Day, It's All About a Jury Trial
(above, art imitating the truth -- Billy Flynn: Would you please tell the audience... err... the jury what happened? -- Razzle Dazzle from Chicago)
Why are we back to the "B's" and more particularly, why are we back to BATNA?
Because I've been mediating more "pure money" cases lately and recalling for my litigants the central fact of settlement life.
IF YOU'RE NEGOTIATING THE SETTLEMENT OF A LAWSUIT, YOUR "BETTER ALTERNATIVE TO A NEGOTIATED AGREEMENT IS A JURY VERDICT." PERIOD. END OF STORY.
This is why we're so happy to have found a new legal blog called Deliberations, which is all about the psychology of jurors; what they like; who they'll hate; what their predilictions and pre-dispositions are and how you and your clients might be able to influence them to decide the case in your favor.
As the Jury Research people teach us (here, by the way are two of the best jury consultants in Southern California, if not the nation, Chris St. Hilaire of M4 Strategies and Tom Bernthal of Jury Insight -- see the recent $15 million verdict largely credited to Bernthal's efforts) the jury is not comprised of your law school class, your university friends or even your high school classmates.
Who is it composed of and how do they think? That's the problem. You and I -- no matter how down to earth we believe ourselves to be -- have NO IDEA.
This week, however, Deliberations helps us out by telling us just how many jurors will likely be struggling with alcoholism and drug addiction in their families when we voir dire them and by pointing us to this great NPR (must read) quiz on the American Jury System.
The author of Deliberations, Anne Reed, a trial lawyer and jury consultant at Reinhard, Boerner & Deuren in Milwaukee, recently suggested to me that trial lawyers, jury consultants and mediators "might have something in common."
Oh yes. YOU -- trial lawyer, jury consultant, jury -- are the other side of my equation.
YOU ARE MY DISPUTANTS' BATNA.
"B" is for Bully (again): and this time it's IBM
(right, from car-toon-studio, just in time for halloween, a dementor)
Straight from Slashdot's mouth to IP ADR's ear we get the very truth from IBM about its plan to corner the market in marketplace bullying with its Patented Protection Racket.
It boggles the imagination.
So what is ADR about this?
ADR is soul, man. And IBM, for reasons known only to someone in legal, wins the monthly IP ADR anti-soul prize. I.B.Dementor.M.
Read on . . .
Wikipedia defines a protection racket as an extortion scheme whereby a powerful non-governmental organization coerces businesses to pay protection money which allegedly serves to purchase the organization's 'protection' services against various external threats. Compare this to IBM's just-published patent application for 'Extracting Value from a Portfolio of Assets', which describes a process by which 'very large corporations' impress upon smaller businesses that paying for 'the protection of a large defensive patent portfolio' would be 'a prudent business decision' for them to make, 'just like purchasing a fire insurance policy.' Sounds like Fat Tony's been to Law School, eh?
Suing Your Customers and Dismantling Your Marketing Network?
(right: Google CEO Eric Schmidt conjuring the 22nd Century)
Thanks to Ron Coleman of Likelihood of Confusion for passing along this gem from the The Trademark Troll on the S&L Vitamins case:
Almost every case involving the sale of unauthorized but genuine goods is a case where a brand owner is asking the courts to become an enforcer for the brand owner - against the brand owner’s own customers!!…
This brings to mind Jonathan Schwartz's brilliant post Free Advice to the Litigious which spawned our blog category Innovate, Don't Litigate. This short tale from Sun Microsystem's CEO can't be repeated often enough:
Years back," he writes, "Sun was under pressure in the market."
Although many users loved our core Solaris operating system, others thought it was built for high end computers, not grid systems. Our computer business had failed to keep pace with the rest of the industry . . . . [W]e gave customers one choice - leave Sun. Many did. Those were the dark days.
Where did they go? They went to GNU/Linux, a free and open source operating system built by a growing community, running on x86 systems. Why? Because the pair ("Linux on a whitebox") delivered, then, better grid performance, with more flexibility. We didn't erect barriers to exit, we promoted customer choice. Even when it cut the wrong way, as it did here. And yes, it hurt.
Was litigation a solution? It was suggested as one:
With business down and customers leaving, we had more than a few choices at our disposal. We were invited by one company to sue the beneficiaries of open source. We declined. We could join another and sue our customers. That seemed suicidal. . And we were encouraged to innovate by developers and customers who wanted Sun around, who saw the value we delivered through true systems engineering.
So we took that advice. . . . We redoubled our focus on innovation, in hardware and software, that would differentiate our offerings. Not just as good as the competition, but vastly better. . . .
In essence, we decided to innovate, not litigate.
If "Our business Models Are melting Down Around Us," Should We Be Attempting to Freeze Them at the Very Moment in History When They Are About to Revolutionize Our Lives?
Schwartz is not alone in singing the innovation song. Bruce Nussman advised CEO's this summer to Be Designers, Not Just Hire Them with this explanation.
There are moments in history when the pace of change is so fast and the shape of the future so fuzzy that we live in a constant state of beta.
I mean, let’s face it, our business models are melting down around us, our personal careers are morphing—or disappearing-- and there is less certainty about tomorrow than at any other time in our lives.
Innovation is no longer just about new technology per se. It is about new models of organization.
Design is no longer just about form anymore but is a method of thinking that can let you to see around corners. And the high tech breakthroughs that do count today are not about speed and performance but about collaboration, conversation and co-creation.
Could We Kill Internet 2 and 3.0?
All of this makes me wonder how misguided it might be to prevent the consumer-innovators of internet content sharing sites like YouTube from using, sharing, downloading, mixing, ripping, and burning the content that made YouTube what it is in the first place -- one of the most valuable internet sites on the planet in a mere eighteen months.
I am not the only one who has had this thought, of course. None of this wild proliferation of creativity could exist had it been planned and controlled by a single corporate or governmental entity. The internet -- and everything on it -- has arisen in relationship to and as a result of everything else. No one can truly claim authorship.
Will demanding our "rights" to control our creation kill the creator, i.e., the collective consciousness that built the internet?
Another innovator (brought to us by Coleman in Google Tumult via a Tech Crunch Post about Attributor) CEO Jim Brock, has an answer -- snippet below:
If you are playing whack-a-mole and remove something from one site, it will appear somewhere else. Web-wide visibility is what publishers want. . . Smart publishers recognize that the blogosphere is the greatest promotional medium ever created. . . A lot of publishers are holding back . . . they are fighting digitization. We’d like to see it set free.
While We're At It, A Little Propaganda About Net Neutrality Below
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Customers seeking new information and innovative solutions to business problems often meet their needs by internet downloading and online file sharing. Unfortunately, these activities attract viruses that can corrupt computer data. For this reason, every strong marketing network requires a comprehensive computer backup solution to recover misplaced or lost data. The data recovery group is a complete data recovery package that focuses on recovering data from computer hard disks. Of course, high-quality recovery hardware is useless without excellent data recovery software. With the help of disaster recovery application or windows backup software, a company can maximize its recovery hardware output to avoid market fallout caused by viruses.
IP ADR Dictionary: "F" is for Fundamental Attribution Error
First Let's Talk About Anger
Please raise your hand if your clients -- corporate clients -- are angry about the burdens of litigation. Irritated with the document "demands" and interrogatories. Frustrated about the e-discovery. Ticked off at the way opposing counsel asks them questions as if they're lying. Hot under the collar about the mounting attorneys' fees and the distance between the day suit was filed and the probable day on which a trial might eventually be scheduled. Simmering about the time the litigation consumes, time they'd prefer to be spending doing their actual jobs -- planning for and implementing business strategies for a profitable future instead of fighting about the unprofitable past.
And we're not even talking about your clients' anger at the defendant who has stolen their intellectual property or that of the company they work for. And if you believe that powerful people in highly sucessful and profitable businesses do not fear that litigation might hurt their careers, follow the Qualcomm/Broadcom e-discovery story and the fate of its general counsel for a little while, here, here and here.
Why I'm Talking About Anger
Dealing with anger is my job. As a negotiation coach, mentor, facilitator, and mediator, I need the parties to intellectual property litigation to be thinking as clearly as they possibly can when challenged to settle an important piece of litigation. Everyone arrives at the mediation in some degree of anger -- from mild irritation to controlled rage. Because anger tends to prevent the parties from thinking clearly and from sharing information that would dramatically increase their ability to achieve the best possible negotiated resolution, I'm usually called upon to help the parties move from hostility to collaboration.
So What's "Fundamental Attribution Error"?
Social scientists who study the reasons people act the way they do have discovered something fundamental about the way we explain to ourselves the behavior of others. What researchers have found is that whenever someone else's behavior causes us harm, we tend to assume that person intended to cause us the harm we experience or, at a minimum, caused us harm by virtue of their carelessness in regard to our well-being.
If our spouse arrives home late on the evening we've scheduled an outing with our friends, we'll reflexively blame their tardy arrival upon their desire to thwart our plans or their careless planning. Our spouse, on the other hand, will reflexively ascribe his late arrival to traffic conditions. Though both spouses might be at least partially right, the injured spouse will almost always ascribe her harm to her husband's intentional or careless conduct and the injury-causing spouse will almost always ascribe her harm to the traffic or the weather or an unexpected but necessary business obligation.
Why do we make this error in our dealings with others? Because we crave control. If we attribute the cause of our harm to the intentional or careless conduct of the person who harmed us, there is some chance that we can convince them -- by way of "punishment" for their misdeeds -- not to do it again. If it's really not their fault, there is no way we can prevent a similar occurrence from taking place in the future.
So What Does FAE Have to Do With Settling IP Litigation?
First, FAE makes us angry, preventing us from thinking as clearly as possible.
Secondly, FAE prevents us from seeing "our own part" in the conflict at hand. This latter effect has been found by researchers to prevent athletes, for instance, from finding and addressing the causes of their substandard performance. Why? Because in ascribing their substandard performance to the fault of others, they fail to search for and find those causes over which they have actual control, i.e., the errors they are making that cause them to fail.
When Everyone is Able to Give Everyone Else the Benefit of the Doubt, Tension Eases and the Parties Can Work on Their Mutual Problem Collaboratively and Effectively.
Now that you know about fundamental attribution error, you can never again be quite so perfectly certain that your righteous indignation is justified. You might just be able to give your opponent the benefit of the doubt. He is not the malicious, cheating liar you believe him to be. And you are not the saint upon whom harm has been imposed without any fault of your own.
Most people are so certain that the conflict to be resolved is the other guy's fault that they can't even begin to see that resolving the dispute is a mutual problem that is best resolved by way of collaboration rather than further posturing, hiding evidence and "spinning" one's tale of loss, injury and innocence.
Because I could write an entire book on this subject, I think I'll just stop there and let you and your clients ponder it for a little while. It may sound ridiculous, but learning about FAE made all of my relationships much better almost immediately. I think understanding it might help my readers out as well.
For other law- and business-related blogs addressing FAE, click here, here, here, here and here.
Invention of the Week from Blog Riot
This post is brought to you by the letter "I" for Innovation.
Thanks to BlogRiot for the post here with designer's statement and Stumble Upon for taking me places I've never been before! If you can avoid the StumbleUpon addiction, you may add "stumbling" to your list of "productive procrastination" techniques. It could be worse. You could be watching television or suing someone for patent infringement.
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Threats of Infringement Action During Settlement Negotiations Admissible to Prove "Case or Controversy" in Trademark Infringement DJ Action
(right: Avon Anew, the microdermabrasion product at issue)
Although there are many reasons to read the Ninth Circuit's recently reported opinion in Rhoades v. Avon Products, Inc. (full text here) we limit ourselves to the Court's discussion of the admissibility into evidence of statements made during settlement negotiations to prove facts necessary to demonstrate the existence of a federal "case or controversy."
Very briefly, the Circuit Court in Avon reversed the District Court's dismissal of its competitor's trademark infringement action based upon defense contentions that: (1) no constitutionally sufficient case or controversy arose from threats to bring an infringement action during four years of settlement negotiations; (2) existing TTAB proceedings justified dismissal of the action based upon the doctrine of primary jurisdiction; and, (3) the court properly exercised its discretion under 28 U.S.C. § 2201 in declining to assert jurisdiction.
Threats Made During Settlement Negotiations Are Admissible to Prove the Plaintiff's "Real and Reasonable Apprehension that It Will Be Subject to Liability if It Continues to Manufacture its Product."
As the Circuit Court explained, although “a simple opposition proceeding in the Patent and Trademark Office generally will not raise a real and reasonable apprehension of [an infringement] suit,” there are circumstances where notices of opposition can "create [such] apprehension . . . "
In this case, instead of relying upon TTAB proceedings, however, Plaintiff cited "three alleged threats of a trademark infringement action in federal court."
Because these threats were made during the course of settlement negotiations, the defendant claimed they were not admissible in evidence to prove the necessary prerequisite to jurisdiciton in the District Court.
The court disagreed, holding that Federal Rule 408 did not restrict the use of litigation threats made during (and pursuant to) ongoing settlement negotiations. We quote the Court at length here for the benefit of practitioners for whom the boundaries of the settlement negotiation confidentiality rules are critical.
The text of the rule is clear: evidence from settlement negotiations may not be considered in court “when offered to prove liability for, invalidity of, or amount of a claim that was disputed
as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.”Rule 408, however, does not bar such evidence when “offered for [other] purposes
. . . ” [citation omitted] . . . [S]tatements made in settlement negotiations are only excludable under the circumstances protected by the Rule.
Here, [defendant] does not rely on the threats in an attempt to prove whose trademark is valid, or to impeach Avon. Instead, it uses the threats to satisfy the jurisdictional requirements of an action for declaratory relief. This is perfectly acceptable under Rule 408. . . . .Avon makes much of the “policy behind” Rule 408, as if any recognition of statements made during settlement will ruin the “freedom of communication with respect to compromise” that the Rule protects. [citation omitted] Yet the Rule, by its own terms, is one of limited applicability. . . . Rule 408 is designed to ensure that parties may make offers during settlement negotiations without fear that those same offers will be used to establish liability should settlement efforts fail. When statements made during settlement are introduced for a purpose unrelated to liability, the policy underlying the Rule is not injured.
Id. (emphasis supplied).
The Result Would Be the Same if the Threats Had Been Made During a Confidential California Mediation Proceeding.
If the defendant's threats to bring an infringement action were made during a confidential California mediation proceeding, they would not be admissible in a California court for any purpose. Unlike rule 408 or its California counterpart, CCP section 1152, the provisions governing the confidentiality of mediation communications are not limited by their own terms.
Under several recent federal decisions, however, they would likely be admissible for the purpose of determining the existence of a "case or controversy" under federal law.
The District Court in ABM Indus., Inc. v. Zurich Am. Ins. Co. (N.D. Cal. 2006) 237 F.R.D. 225, for instance, permitted the plaintiff to amend its complaint to allege bad faith settlement practices based upon the insurance carrier's conduct in the course of a California-based mediation. Although the Court based its ruling on defendant's waiver of the issue, it suggested that it would not be required to apply the California mediation "privilege" /* in any event.
We thus need not consider whether a federal mediation privilege exists to bar use of the letter for purposes of demonstrating the removability of the case. Nor need we decide whether it may be appropriate in some cases concerning the amount in controversy for federal jurisdiction purposes, pursuant to Rule 501, to defer to state law evidentiary privileges out of comity and respect for state policies. See Conference Report on Rule 501 of the Federal Rules of Evidence, H.R. Rep. No. 93-1597, at 7-8 (1974) (Conf. Rep.), quoting D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 471 (1942) (Jackson, J., concurring) (“In some cases [federal courts] may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect . . . .”).
Thanks to Hamline University School of Law for this case from its Mediation Case Law Project here.
Subsequently, the Ninth Circuit explicitly held that the California mediation "privilege" /* did not apply where the question before the District Court was the amount in controversy necessary for a diversity action to proceed in federal court. See Babasa v. LensCrafters (thanks to California mediator Phyllis Pollack for the case summary and link here). As the Circuit Court explained:
Under Federal Rule of Evidence 501, privileges provided by state law apply in civil actions only “with respect to an element of a claim or defense as to which State law supplies
the rule of decision.” FED. R. EVID. 501; [remainder of citation omitted] State law does not supply the rule of decision here. Federal law governs the determination whether a case exceeds the amount in controversy necessary for a diversity action to proceed in federal court. [citation omitted]. Thus, even if the California mediation privilege applied to the Bruinsma letter, which we do not decide, it would not preclude a determination that the Bruinsma letter constituted § 1446(b) notice for purposes of removal to federal court.
/* The Court's use of the term "mediation privilege" is not simply a harmless misnomer. Because California mediation confidentiality provisions are not privileges under California law, they are not, for instance, subject to the same exceptions as California's evidentiary privileges such as those protecting attorney-client communications. Whether this would have (or could) make a difference in the federal court's analyses of the applicability of the confidentiality protections for mediation in California remains an open issue.
"B" is for Bully: Jean Valjean at the Music Store
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
Anatole France, The Red Lily, 1894, chapter 7
AP Minneapolis from the Los Angeles Times
A woman facing a $222,000 music-sharing verdict asked a judge Monday to overturn it.
Jurors in a case that six record companies brought against Jammie Thomas found that she violated the companies' copyrights by offering 24 songs over the Kazaa file-sharing network. They ordered Thomas, a mother of two who makes $36,000 a year, to pay the companies $222,000.
In a motion filed Monday, Thomas' attorney, Brian Toder, did not argue that she hadn't violated the copyrights. Instead, he said that because the songs could have been purchased online for about $24, the $222,000 verdict was disproportionate and amounted to punitive damages.
for remainder of article, click here.
Jury Instructions
Copyright law allows damages of $750 to $150,000 per song.
What the Jury Awarded
$9,250.00 per song.
The Music Companies' Actual Damages
The songs could have been purchased online for about $24.00. Without itemizing, defense counsel pegged the record companies' actual damages at "less than $151.20 in all."
Who Else the Major Record Companies are Pursuing
According to the Times, the Recording Industry Association of America has sued 26,000 of its individual consumers for damages. In September, it also sent "a new wave of 403 pre-litigation settlement letters to 22 universities nationwide" on behalf of the "major record companies." See RIAA News Release here.
Why the Jury Likely Made the Thomas Award So High
If you've been following this story, you don't have to do much guess work to believe the jury was likely punishing the defendant for lying to them on the witness stand. Although the defendant denied file-sharing on direct examination, documents produced at trial pretty well demonstrated that she was not telling the truth.
This always pisses the jury off.
What the Jury Didn't Know
-
Thomas. a single mother of two, makes $36,000 a year.
-
- Chairman and CEO Edgar Bronfman, Jr. -- $1 million salary; $6 million bonus
- Lyor Cohen, CEO U.S. Recorded Music $1.5 million salary: $4.5 million bonus
Michael Fleisher, Exec. VP $ 800,000 salary; $ 1.4 million bonus - Chief Financial Officer David H. Johnson $700,000 salary; $800,000 bonus
- Alex Zubillaga, Exec. VP, Digital Strategy $600,000 salary; $1 million bonus
- The U.S. Bureau of Labor Statistics estimates the average yearly earnings of salaried composers and music directors in 2006 at $53,320.
Even Primates Won't Tolerate Econimic Inequities on this Scale
Finally, though I've resisted seeing it for more than 25 years, the Les Misérables "power to the people" song . . . .
Little people know
When little people fight
We may look easy pickings
But we've got some bite
So never kick a dog
Because he's just a pup
We'll fight like twenty armies
And we won't give up
So you'd better run for cover
When the pup grows up!
Mediation Magic and the Law & Magic Blog
(right: Mica Has a Friend by Igor Maminta)
Because I was asked by the brilliantly magical mediator-attorney and USC Adjunct Professor Lisa Klerman to write an article on Mediation Magic for the SCMA Newsletter, and because I sought help from mediator Jerry Lazar, who is a genuine journalist and magician, I learned recently about the existence of this tremendous legal resource -- the Law and Magic Blog.
Now that's an alternative to litigation of a differnt color! Ridikulus you spell in response to the Bogart of Irrationality? Check out this post on Intellectual Property in Pre-Literate Societies from May '07 by Law and Magic blogger Christine Corcos, who is an Associate Professor of Law at Louisiana State University Law Center.
Here's an interesting analysis of the relationship between intellectual property rights and magic in preliterate societies, by Marc C. Suchman, now at the University of Wisconsin Law School. The cite is Marc C. Suchman, Invention and Ritual: Notes on the Interrelation of Magic and Intellectual Property in Pre-Literate Societies, 89 Colum. L. Rev. 1264 (1989). According to the Introduction, "[t]his Article examines one frequently ignored alternative to the Western model. In essence, the following analysis argues that, far from being nonexistent, intellectual property rights actually pervade preliterature societies and figure prominently in the complex of magical beliefs surrounding numerous aspects of daily life."
Think about how many people's creativity it took to bring you this post -- Lisa's suggestion, my first draft, Jerry Lazar's creative journalistic and magical skills, Christine Corcos' academic studies and Kevin O'Keefe's LexBlog blog platform and that's just for starters!
How about the men and women of the SCMA who formed the organization and decided it should have a newsletter and its president, Jan Schau, who I'm pretty certain is responsible for dragging Lisa Klerman in to serve as co-editor of the newsletter with me.
It's like the Net of Indra, where each jewel at every crossing of every string, reflects the light reflected by the other so that everything arises in response to everything else and no one and everyone is responsible for the whole.
Now, that Jeremy Phillips of IP Kat -- with whom I'd like to begin an open blog dialogue about mediating IP disputes -- is touchy-feely, but also the rock bottom truth of quantum physics, i.e., that all reality is co-created. Yes?
I Want to Settle an IP Action; What Do I Do If . . .
How do I initiate settlement negotiations without appearing weak to my opponent?
- allow a mediation service such as Southern California's Judicate West to act as the convener. This permits face-saving if the other side says no, and might even provide you with some clues as to why the case is dragging on for so long.
- encourage parties to the litigation to make a "pledge" to mediate after the first round of discovery as a matter of standard practice and procedure for all of your cases; make it known that this is one of the ways in which your litigation firm distinguishes itself from others -- good, bad or indifferent, you schedule an early mediation of all of your cases.
- call opposing counsel offering to mediate if it would "help you bring your client's expectations into line with her evaluation of the case.
How do I Maxmize the Value of My Case when My Bargaining Position is Weak?
- negotiate a contingency contract
- investigate and strategize the "set up"
- ensure that the right parties have been involved
- in the right sequence
- to deal with the right issues
- that engage the right set of interests
- at the right table or tables
- at the right time
- under the right expectations
- facing the right consequences of walking away if there is no deal
- explore and strategize your opponent's interests (desires and needs) instead of focusing on their legal positions
- map the desired "ideal agreement" backwards
- identify the tactical, design and set up barriers and solutions to achieving the ideal agreement.
- think in the long term
Should I Make the First Offer and How Agressive Should it Be?
More of these soon!
Our New Website IPADR.COM Goes Live!!
The IP ADR Bloggers have just gone "live" with our new web site: ipadr.com.
Come on by and check us out!
Are Your Negotiation Skills Equal to Your Trial Skills? We'll Help You Make Sure You're as Winning a Negotiator as You are a Litigator
Deal Yourself a Winning Hand
November 13
Los Angeles
(photo: Four Aces by Ian Grainger)
Novice and seasoned litigators will learn to maximize the value of their litigation positions by learning winning settlement techniques from a panel of seasoned ADR experts.
Experienced mediators and Judges teach the latest settlement techniques, such as distributive (splitting the settlement “pie”) and integrative or interest-based (expanding the settlement “pie”) bargaining.
Topics also include the dynamics of conflict resolution, settlement best practices, negotiating techniques, settling complex and patent litigation cases, and international disputes. Don’t miss this chance to hear from those who truly know -- how you can best maximize your client’s settlement opportunities and outcomes.
Speakers
Complex Court Assistant Supervising Judge Victoria Chaney
Full-time Settlement Court Judge and Adjunct Professor (Straus Institute) Alexander Williams, III
The Hon. John Leo Wagner, Federal Magistrate (Ret.) (Judicate West Panelist)
Judicate West Neutral and Adjunct Professor (Straus Institute) Jay McCauley
AAA Arbitrator, Mediator and Patent Attorney Les J. Weinstein
Judicate West Mediator and Adjunct Professor (Straus Institute) Victoria Pynchon
For more of what you'll learn, click here.
Fees Individual: $349 per person
Group: $324 per person for 2 or more from the same company pre-registering at the same time.
Government employee/Non-Profit* Rate: $299
Students: $199 (current students only)
