The American Lawyer’s 2007 survey of associates ranks Blawgletter’s firm in the top 100? Top 50? 10? Five?
Two.
We won’t stop of course until we win first place. But, on this day, the report raises the question of whether the happiness of associates mirrors client satisfaction. We vote yes.
Confuser — or deceiver?
The Lanham Act entitles a trademark owner to prevent others from causing "confusion" about the source of goods. Think of a fake Gucci handbag featuring an emblem right similar to the real thing. The Gucci people don’t like that.
Today, according to the Associated Press, U.S. Attorney Alberto Gonzales wrote a letter saying that he regretted causing confusion about which national security "program" he meant when he testified that nobody in the Department of Justice expressed reservations about it. And that worry about the "program" didn’t prompt his late-night visit to his predecessor’s hospital room.
Blawgletter takes no position on the difference in general between confusion and deception. But we do note that the former suggests the one who caused the confusion didn’t mean to and that the latter implies that he did. On which side does the AG fall? We compare. You decide.
Barry Barnett
The Tenth Circuit yesterday reversed a summary judgment in favor of defendant poultry producers under the Packers and Stockyards Act. The court held that Oklahoma and Arkansas chicken farmers raised a fact question on the issue of competitive injury. The record included enough evidence to suggest that the producers injured competition by paying the farmers too little for growing the chickens and consumers by charging them too much for chicken meat. Been v. O.K. Indus., Inc., No. 05-7079 (10th Cir. July 31, 2007).
Blawgletter recommends the opinion. Chief Judge Tacha lays out the issues and the facts clearly and compellingly. And we learn about the peculiar structure of the chicken-growing industry and the fowl treatment that the farmers get.
Barry Barnett
Today, the court in Behrend v. Comcast Corp., No. 03-6604 (E.D. Pa.), held that Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) (post), didn’t alter its conclusion that the cable-subscriber plaintiffs stated claims for monopolization and conspiracy under the Sherman Act.
Before Twombly came out on May 21, 2007, the court had denied motions to dismiss and for reconsideration and granted a motion for class certification.
The plaintiffs allege that Comcast acquired and reinforced a dominant position in Boston, Chicago, and Philadelphia. It did so by, among other ways, agreeing with competing cable providers to "swap" subscribers in other places for ones in those "clusters".
The court, in its 15-page Memorandum, applies Twombly to the class claims but concludes that "the decision — by its own terms — did not impose a heightened pleading standard." Memorandum at 10. The court concludes:
This allegation of an "agreed upon division of markets between competitors in order to suppress competition," makes the Class’ entitlement to relief under section 1 of the Sherman Act (and section 4 of the Massachusetts Antitrust Act in the Boston CACAC) clearly plausible. . . . This conduct, along with Comcast’s later acquisition of AT&T Broadband itself, also makes plausible the claims alleging violation of section 2 of the Sherman Act (and section 5 of the Massachusetts Act in the Boston CACAC), that Comcast monopolized the attempted to monopolize the Philadelphia, Chicago and Boston markets.
Memorandum at 12-13.
Blawgletter’s firm serves as co-lead counsel for the class plaintiffs in Behrend.
Barry Barnett
The Third Circuit today agreed with its Seventh sibling on an important ERISA issue. Both courts held that cashing out of an employer’s retirement plan doesn’t kill the right to sue under the Employee Retirement Income Security Act to recover benefits for the plan. The casher-outer still can bring action to get what he should have received at the time he cashed out. Graden v. Conexant Systems Inc., No. 06-2337 (3d Cir. July 31, 2007) (agreeing with Harzewski v. Guidant Corp., 2007 WL 1598097 (7th Cir. 2007)).
Blawgletter reckons that the decision may sound wee arcane. But it will likely mean money in the pockets of thousands, if not millions, of deserving retirees.
Many a corporation, like Conexant, sponsored ERISA plans that encouraged workers to bet their retirement accounts on the company’s stock. The practice flew in the face of diversification theory. Not only would an employee’s job (and income) depend on how well the company did; her nest egg would, too.
We have a case like that. Graden will help our dear clients get their due.
Barry Barnett
C. Montgomery Burns (Yale ’14).
Rupert Murdoch appears close to nabbing Dow Jones and, with it, The Wall Street Journal.
To celebrate, Blawgletter has totally made up a rumor that Mr. Murdoch will replace the current WSJ editor with nuclear power plant owner, C. Montgomery Burns, from The Simpsons.
If you don’t believe us, see "Fraudcast News".
Barry Barnett
Ruth Marcus, at The Washington Post, makes the case against charging U.S. Attorney General Gonzales with perjury.
Blawgletter thinks she has a point. Mr. Gonzales may not have exactly, literally, purposely lied.
Plus nobody believes him. So he has that going for him.
Barry Barnett
The WSJ’s Peter Lattman says that KSR v. Teleflex has already caused at least one judge to change his mind about whether a patent flunked the traditional "obviousness" test.
Barry Barnett
As the Bancroft family ponders a $5 billion bid by Rupert Murdoch’s News Corporation for control of Dow Jones and The Wall Street Journal, they may wish to consider what happened to another newspaper family — the McCartheys, who once controlled The Salt Lake Tribune.
Today, the Tenth Circuit held that the McCarthey kin couldn’t enforce an oral buy-back promise. Several of the family members testified, with little or no contradiction, that the buyers agreed to let them repurchase the Tribune after five years for fair market value. But the court went against them. A contrary decision, the court noted, "would surely trigger the unemployment of thousands of transactional attorneys, as no written agreement would be safe from attack." MediaNews Group, Inc. v. McCarthey, No. 06-4132 (10th Cir. July 30, 2007) (applying Utah law).
Barry Barnett
The Sixth Circuit today guessed what the Supreme Court of Kentucky would do. It concluded that the Court would recognize a claim by an excess insurance carrier against a primary insurance carrier for stupidly failing to settle a case within primary policy limits. Nat’l Surety Corp. v. Hartford Casu. Ins. Co., No. 06-6168 (6th Cir. July 30 2007).
Barry Barnett
