Sunday, August 27, 2017

The Last Resort: Eagles Sue the Hotel California for Trademark Infringement

Hotel in Mexico Alleged to be Profiting from Rock Classic

Well, I heard some people talkin' just the other day about the recent Classic East concert by 1970s music acts at Citi Field headlined by the Eagles (Steely Dan and Fleetwood Mac were among the others), one of the most successful bands ever based on album sales and tour receipts. They have sold over 100 million units, and a Billboard article suggests that "it is safe to assume that the Eagles have grossed over $1 billion and been seen by 10 million fans worldwide." 

You could say life's been good to the band members, but they have worked to establish the Eagles as a major success in the music industry over the past several decades. They view their success as hard earned, so it is no surprise that the band filed a trademark infringement lawsuit against the owners of a Mexican hotel named Hotel California, which just happens to be the title of the band's classic hit album and song. Both have been a huge part of the band's success; the song won the Grammy for Record of the Year (the album lost out to Fleetwood Mac's Rumours), and the album is number 18 on the list of all-time best selling albums as certified by the Recording Industry Association of America. 

The lawsuit was filed in May and is currently pending in federal court in the city of Los Angeles. So what is it really all about? The heart of the matter is whether the hotel is infringing the trademark rights that the Eagles claim to have in the words "Hotel California" as they relate to the sale of merchandise using those words. What it all comes down to is the question of whether they have the sole, legally enforceable right to commercially exploit the value that the iconic, signature song Hotel California brings to merchandise that the band claims it has been selling for a long time.

Sunday, July 2, 2017

The New York Times Flunks American History

Historical Facts and Dates Matter

Declaration of Independence
The New York Times has included with today’s edition an annotated copy of the U.S. Constitution. I certainly applaud broad dissemination of the Constitution, but I find it quite odd that the Times has chosen July 2, and a day that is part of the July 4th holiday weekend, as the day to distribute a document that was signed on September 17. (Check out my earlier post on this topic: "The Constitution Was Established On This Day In 1788".

This is the time of year when we celebrate the Declaration of Independence. John Adams believed that we would celebrate our independence today because it was on July 2, 1776 that the Continental Congress actually declared independence from Great Britain. In a letter to Abigail Adams from Philadelphia on July 3, he wrote that “[t]he Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival.” (Check out my earlier post on this topic: "Independence Day".) 

While Adams was off in his prediction, at least he was extremely close. The New York Times, not so much.

Maybe The New York Times plans on distributing a copy of the Declaration on September 17. Or maybe its editors just don't care about historical facts. For those of you who would like to look at a copy now, here is a link to a transcript of the Declaration: Declaration of IndependenceAnd for those of you who do not subscribe to The New York Times, here is a link to a transcript of the Constitution: Constitution.

As for The New York Times, here is a link to the questions that are used to naturalize new citizens; note that suggested answers are included as well: Civics (History and Government) Questions for the Naturalization Test

Wednesday, June 7, 2017

Justices Clear "Travel Ban" for Possible Early Arrival at Supreme Court

Court Could Quickly Decide to Hear Case on the Merits

Great Hall Leading to the Courtroom
The next few weeks may lead to a dramatic ending to what has so far been a fairly mundane Supreme Court term. Last Friday, the Court responded in rare fashion to the Administration’s request late Thursday night that it review the May 25th decision of the Fourth Circuit Court of Appeals upholding a nationwide injunction against President Trump’s revised “Travel Ban," formally known as Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13780). 

Rather than follow its normal process, the Court ordered that a response to the petition for certiorari (the formal name for seeking review) be filed on or before June 12th, which is quite an accelerated schedule and departure from practice; indeed, a response to a petition is only required in cases involving death sentences unless, as here, one is ordered by the Court. In addition, the Court ordered that respondents file that same day a response to the Administration's request for a stay of the Fourth Circuit’s decision pending the disposition of the certiorari petition. 

The normal process for deciding whether to review cases under certiorari jurisdiction is much longer, especially for cases seeking review late in the Court's term. The expectation was that the Court – which has broad discretion over which cases to accept for review – would not decide until its next term starting in October whether to accept the case; if it did, then the case would be briefed, argued, and decided by June 2018. It is also interesting to note that this case is at the preliminary injunction stage, which is atypical for Supreme Court review.

Wednesday, May 3, 2017

Solving a Connecticut Murder One Step at a Time

Fitbit Helps State Police Build Their Case Bit by Bit

We live in a brave new world filled with constant tracking and surveillance by devices that silently record a virtual map of our daily lives. Discussions in this area typically focus on the ever-increasing loss of privacy brought about by the cell phones, apps, digital assistants (such as Amazon Echo and Siri), security cameras, and the like that create the map. But a recent murder charge in Connecticut highlights a positive aspect -- how law enforcement can now rely on this ever expanding virtual map (including in this case data from the victim's Fitbit) to help solve crimes and bring criminals to justice.

State Police arrived at the home of Connie and Richard Dabate on December 23, 2015, and found Connie dead, having been shot twice with a gun that her husband had purchased, with Richard tied to a chair with superficial wounds. He claimed that he had struggled with the intruder who shot Connie before scaring him off. (Sounds like the plot of the famous 1960s television show -- and hit movie in the 1990s -- called The Fugitive.) Police and the K-9 unit were not able to find evidence of an intruder.

After a lengthy investigation lasting almost a year and a half, police recently charged Richard with the murder of his wife. Reading the 48 page arrest warrant application is like reading a virtual reenactment of the lives of the husband and wife (and others) in the days leading up to and on the day of the killing. In addition to the Fitbit data, the investigators scoured alarm company records, video surveillance at the local YMCA where Connie exercised the morning of the murder, cell phone records, computers, Facebook postings, text messages and notes on Connie's cell phone, all in an exhaustive effort to reconstruct a timeline and understand what really happened that day. As you can imagine, all of this data revealed quite a bit, so to speak, including Richard's pregnant girlfriend and a troubled marriage. And it did not help that he contacted his wife's life insurer within days of her murder.

Tuesday, April 4, 2017

Judge Gorsuch Goes to Washington: Some Thoughts on Filibusters, Cloture, and the So-Called “Nuclear Option”

Republicans Plan to Follow What the Democrats Did in 2013

The Senate Judiciary Committee has cleared the nomination of Judge Gorsuch to the Supreme Court. Now the real maneuvering begins, because we learned that the Democrats have enough votes under the current rules to filibuster the nomination and block cloture. In a nutshell, this means that the Democrats can block the full Senate from voting to confirm, even though confirmation would require only a simple majority vote. I thought it might be useful to share some thoughts regarding this topic -- especially with all the jargon being bandied about -- as we head down the path to what most expect will be Judge Gorsuch’s eventual confirmation.

The Senate Confirmation Process Only Requires 51 Votes 

The word confirmation actually is not used in the Constitution to describe this process; in reality, the Senate is “consenting” to the nomination. Under the Appointments Clause in Article II, the President nominates Supreme Court Justices and then appoints them “with the Advice and Consent of the Senate.” All that is required for consent is a simple majority vote. The assertion that anything more is required is just wrong. 

Filibuster and Cloture

Neither term is mentioned in the Constitution. A filibuster refers to the ability to hold the floor and block a vote from taking place. The Senate does not have general rules limiting the time that Senators can debate issues, because the notion has been that Senators should be allowed to speak as long as they want. At President Wilson’s urging, the Senate in 1917 adopted cloture in Rule XXII as a device to end filibusters. Cloture starts the process of closing off further debate and allowing voting to proceed. In simple terms, think of cloture as closure of a delay tactic -- filibustering.

Monday, February 27, 2017

Judicial Review of Executive Action: Trump Card for Travel Ban

Federal Judges Decide Constitutionality 

Under the Constitution's separation of powers, with its built-in system of checks and balances, each branch has certain roles to play. The current controversy over the popularly described "Travel Ban" -- formally known as Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769) -- is a good reminder that federal judges exercising their power of judicial review ultimately decide whether executive action comports with the Constitution.

After a federal district court judge in Seattle temporarily restrained enforcement of EO 13769 based on his view that plaintiffs were likely to succeed on their constitutional claims, a three judge panel of the Court of Appeals for the Ninth Circuit agreed and denied the government's emergency motion for a stay of the temporary restraining order pending appeal. The government then advised the court of appeals that it did not want further review at this time and that it would issue a new executive order.

Although to date no new order has been issued, there is likely much more to come. And while preliminary, the rulings demonstrate that the judiciary intends to apply vigorously to EO 13769 (and any future versions) the constitutional doctrine of judicial review, which provides that the judiciary is the final arbiter of the constitutionality of legislative and executive action. 

I find it quite interesting that lost in all the turmoil over EO 13769 is the clear acceptance by the President of such review. Indeed, for all its zeal in trying to implement it -- and the President's extremely blunt criticism of the courts and their rulings to date -- the Administration has adhered to the court rulings and conformed its conduct without delay. Even in the heat of a bitterly disputed debate over the President's authority, he and his team appear to understand the importance of the rule of law and adhering to the long-established tradition that the federal courts have the last word on what does and does not pass constitutional muster.

Monday, January 23, 2017

Presidential Advisor Update: Kushner Appointment Cleared by Justice Department

Career DOJ Lawyer Agrees 1978 Statute Authorizes Appointment

A career Justice Department lawyer on Friday issued a 14 page memorandum opinion to the Counsel for the President reaching the same conclusion about the Kushner appointment that I did, which is that the 1978 statute grants the President unfettered ability to select advisors. The statute, he wrote, "exempts positions in the White House Office from the prohibition on nepotism in 5 U.S.C. § 3110.

While some will question this result and his impartiality, the author, Daniel L. Koffsky, is not a Trump appointee but rather Deputy Assistant Attorney General for the Office of Legal Counsel (OLC). He has had a distinguished career at the Justice Department, as exemplified by his receipt in 2013 of DOJ's Mary C. Lawton Lifetime Service Award. As the DOJ press release noted, this award
recognizes employees who have served at least 20 years in the Department and have demonstrated high standards of excellence and dedication throughout their careers. . . . Koffsky is honored for his exceptional contributions to OLC, the department, and the rest of the Executive Branch, including especially the sharing of his expertise across an extremely wide range of legal topics. A living repository of OLC’s precedents and practice, Koffsky has brilliantly served the department and his colleagues. He is a lawyer with the utmost integrity and judgment.
High praise for sure. The Attorney General who gave Koffsky the award? Eric Holder, President Obama's first Attorney General.

Amount Jared Kushner reportedly will be paid? $0. 
Value of a legal opinion about his appointment by a career DOJ lawyer heralded by Eric Holder? Priceless.

Friday, January 13, 2017

All in the Family, Meet The West Wing

As Bill Clinton Showed Us, Presidents Can Appoint Family Members as Advisors

A number of media reports -- as well as several members of the House Judiciary Committee in a letter to the Attorney General -- have claimed that the President-Elect's appointment of his son-in-law Jared Kushner as a senior advisor constitutes unlawful nepotism under federal law. It does not, just like Bill Clinton's 1993 appointment of Hillary Clinton to chair his Task Force on National Health Care Reform did not.

No one questions that the President has broad latitude to appoint staff to support him in his role. The Constitution reflects that understanding in Article II, which delineates the Executive Departments (such as the Departments of State, Treasury, and Defense -- what we call the cabinet posts) and the President's appointment power. As the federal government has grown so too has the President's need for support, and in 1939 the Executive Office of the President (EOP) was created. As stated on the White House website, "[t]he EOP has responsibility for tasks ranging from communicating the President’s message to the American people to promoting our trade interests abroad. Overseen by the White House Chief of Staff, the EOP has traditionally been home to many of the President’s closest advisors."