The Braille Monitor July 2005
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Two in Reporting the Maxi-Aids Contempt of Court Case
by Barbara Pierce
The Maxi-Aids logo
Two months ago, in the May issue of the Braille Monitor, we reported that Maxi-Aids, Elliot Zaretsky, and his son Harold had been held in contempt of court by the Honorable Arthur D. Spatt of the United States District Court for the Eastern District of New York. The contempt finding resulted from the fact that Maxi-Aids had plastered the Internet and also its own Web sites with listings that suggested that it was somehow related to or affiliated with Independent Living Aids, a competitor company. We return to the subject this month, partly to address inquiries from a number of readers, and also to report on a new development that should make skeptics and non-skeptics alike think long and hard about Maxi-Aids’ business ethics and practices.
With respect to the first issue, a number of readers have raised questions about a sentence in the third paragraph of the May article, in which we reported that a charge of witness tampering had been made by Marvin Sandler, the president of Independent Living Aids (ILA), against Elliot Zaretsky, the driving force behind Maxi-Aids. Some people have raised questions about the harshness of the accusation of witness tampering and wondered about its accuracy. So here are the facts; you can decide for yourself.
Sandler’s charge was a reaction to a dramatic change in testimony by Vladimir Ereshkin, Maxi-Aids’ computer expert, who prepared and maintained the Maxi-Aids’ Web sites and Internet advertising. One of the issues being argued in the contempt case involved whether or not Maxi-Aids was required to notify search engines such as Google, AltaVista, and Yahoo to remove the phrase “Independent Living Aids” from their listings in order to undo the damage they had done by posting listings with the names of the two companies linked together. ILA contended that the obligation existed, whereas Maxi-Aids claimed that it did not have to notify the search engines and that all it had to do was change the listings on its own Web sites (more or less letting nature take its course as the search engines periodically updated themselves).
Here is an excerpt from an affidavit submitted to the court on July 23, 2003, by Marvin Sandler in which he quotes from the transcript of a hearing held before Magistrate Judge Arlene Lindsay, who was conducting hearings on behalf of Judge Spatt:
The testimony given by Mr. Ereshkin at the hearing of November 18, 2002, also shows that his employer, Elliot Zaretsky, was again up to his old tricks and defying the orders of the court–except that this time it was Magistrate Judge Lindsay’s court. On page 84, beginning at line 5, Mr. Dweck asked, “Did Mr. Zaretsky tell you at any time to notify the search engines to discontinue the use of the name and phrase ‘Independent Living Aids’ in connection with any Maxi-Aids listing? Just yes or no, sir.”
On line 9 Mr. Ereshkin answered, “He asked me to. I didn’t know how to.”
This was followed on page 103, line 7:
MR. DWECK: Did Mr. Elliot Zaretsky tell you to notify or attempt to notify the search engines to remove the name and phrase ‘Independent Living Aids’ from their listing on the Internet?
MR. SOLOMON: Objection.
THE COURT: Asked and answered. Sustained.
MR. DWECK: Did anybody else from Maxi-Aids tell you to notify the search engine, besides Elliot Zaretsky, to remove the name ‘Independent Living Aids’ from any listing on that search engine about Maxi-Aids?
MR. SOLOMON: Objection.
THE COURT: Maybe I misheard the testimony, but I thought he was instructed to do this. Did Mr. Zaretsky tell you to check that out?
THE WITNESS: Well, he asked me if it’s possible to do it. As I said before, I didn’t know a reasonable way to do it.
[We interrupt to note that, since the defendants claimed that they were not required by the court to notify the search engines, Mr. Ereshkin’s testimony was harmful to the Maxi-Aids case because Elliot Zaretsky would not have instructed Ereshkin to notify the search engines if he had not believed he was required to do so. But back to Sandler’s affidavit.]
At this point a break for lunch was taken, and the defendants were instructed not to talk to Mr. Ereshkin, at the request of Mr. Dweck and under the order of Magistrate Judge Lindsay. After the lunch break questioning resumed, and on page 126, beginning at line 24, Mr. Dweck asked, “Did Elliot Zaretsky tell you to remove the name and phrase ‘Independent Living Aids’ from the search engines when he told you to remove it from the Web site of Maxi-Aids?”
Mr. Ereshkin replied, “No, he didn’t tell me.”
It is abundantly clear that someone spoke to Mr. Ereshkin during the lunch break in a blatant violation of Magistrate Judge Lindsay’s order. Your deponent believes that Mr. Solomon, whom I respect both as an accomplished lawyer and as a gentleman, would not have attempted to influence Mr. Ereshkin in an effort to have him change his testimony. Your deponent does believe that, given Mr. Zaretsky’s past history and testimony at trial in 1997, he would not, as Mr. Ereshkin’s employer, be above trying to influence Mr. Ereshkin to change his testimony to make it more advantageous to the defendant’s case. If my belief is correct, it shows once again the contempt and disregard that Mr. Zaretsky has for this court and the orders and directives given to him. Your deponent recognizes that this is a serious charge. However, there is a documented precedent that clearly shows that Elliot Zaretsky is not above witness tampering. During the discovery phase of the original lawsuit, a deposition was taken of Mr. Zaretsky’s daughter, Pamela Zaretsky Stein, who, it had been claimed, was the majority stockholder of Maxi-Aids at a time when bids were submitted to the Veterans Administration.
[We interrupt again to point out that later testimony disclosed that neither Mrs. Zaretsky Stein nor any other woman owned a single share of stock at the time the bids were submitted, even though the bids claimed that Maxi-Aids was a woman-owned company.]
Contrary to common procedure, Mr. Zaretsky insisted on being seated on the plaintiff’s side of the table, opposite Mrs. Stein, because he claimed that he “wanted to gaze on his daughter’s lovely face.” It became quickly noticeable to your deponent that Mr. Zaretsky was signaling answers to his daughter, using sign language. The Zaretskys are conversant with sign language because Harold Zaretsky is deaf and has been trained in this method of communication. When he was caught, Mr. Zaretsky vigorously denied that he had been signaling answers to his daughter. However, he faced a problem–your deponent has taken courses in sign language at the Helen Keller National Center and was able to verbally describe the answers that Mr. Zaretsky was signaling to his daughter. He was required to return to the defendant’s side of the table and to keep his hands out of sight, below the level of the table.
There you have Marvin Sandler’s charge of witness tampering against Elliot Zaretsky. In response, Michael Solomon, the attorney representing Maxi-Aids and the Zaretskys, submitted a reply stating that Sandler’s affidavit was part of a personal vendetta against his clients and asked that the court not read the affidavit. Since the issue of notifying the search engines became moot, because it was not specified in the written court order, we don’t know whether the court ever considered Sandler’s charge, and it is now nothing more than another episode in the history of the litigation that has gone on for the past ten years between ILA and Maxi-Aids. The editorial staff of the Braille Monitor makes no comment on Sandler’s charge, other than to say that it does seem clear that Elliot Zaretsky did try to influence the testimony of his daughter in 1997, since he was caught red-handed and witnesses were in the room. With regard to the change in Mr. Ereshkin’s testimony, we’ve responded to our readers’ requests, printed Sandler’s statement, and now leave readers to make up their own minds.
However, a new and clear-cut element has been injected into the saga that leaves no room for disagreement regarding Maxi-Aids’ behavior and ethics. A message with a subject title “we blind make Internet law” was recently posted on a chat room site called “firstname.lastname@example.org” by a lawyer whose email address indicates that he works in the office of the attorney general of the State of New York. In his message he mentioned and reprinted a decision of the Second Circuit Court of Appeals involving Maxi-Aids and ILA. For those who would like to go straight to the source, the Second Circuit has a Web site <www.ca2.uscourts.gov>. In the section labeled “Decisions” enter “Search All” and then enter “Docket Number 04-2252” to bring up the complete decision of the court.
The decision of the Second Circuit Court of Appeals came about because of an appeal filed by Maxi-Aids in order to avoid or lessen the impact of the contempt case. In the appeal Maxi-Aids claimed that the words “Independent Living Aids” constituted a generic phrase and that ILA could not and should not be afforded trademark protection. A panel of three judges heard the appeal and determined that ILA did indeed have a right to trademark protection, at least in the blind industry. However, in a footnote the court stated that everything that had been presented to them contained the words with initial capitalization, so their decision covered only “Independent Living Aids” but not “independent living aids.” The court also suggested that ILA had the right to go back to Judge Spatt to request that his injunction be amended to cover lower-case usage as well and even cited the section of the law under which the request could be made. Following the suggestion of the Second Circuit, ILA filed a motion with Judge Spatt, who did indeed expand the injunction. This resulted in a second appeal by Maxi-Aids, which was presented to a different panel of three judges from the Second Circuit, and their unanimous decision of April 4, 2005, was in effect a resounding condemnation of Maxi-Aids’ business practices. The decision specifically referred to Maxi-Aids’ “calculated” and “intentional” efforts to deceive the consuming public, and left no doubt as to the court’s opinion of Maxi-Aids’ business conduct. Part of the decision referred to “bad faith,” and this, as well as the use of the words “calculated” and “intentional” in describing Maxi-Aids’ behavior, left the door open for ILA to file for recovery of legal fees expended in defending against the Maxi-Aids appeal. ILA immediately filed a motion for reimbursement of legal fees, which is still pending. The motion was accompanied by an affidavit from ILA’s lawyer, Jack Dweck, from which we reprint two paragraphs containing a summary of the Second Circuit’s decision and ILA’s claim for reimbursement of legal fees that were expended:
The summary order of the Second Circuit Court of Appeals is a powerful document, not only because of the unanimity of the judges, but also because of its ringing indictment of Maxi-Aids and its conduct. The third paragraph of page three refers to Maxi-Aids’ “calculated efforts to exploit the limitations of Internet search engines in order to misdirect and mislead consumers who used these vehicles in attempts to reach ILA.” The first paragraph of page four refers to “consumers who seek to buy products from ILA through the World Wide Web being misdirected to Maxi-Aids.” The Second Circuit then talks of “causing confusion or mistake as to the affiliation, connection, or association of Maxi-Aids and its products with ILA and its products.” The second paragraph of page four again talks of Maxi-Aids’ willful actions, and in one sentence speaks of “Maxi-Aid’s [sic] calculated use in Internet commerce of ‘independent living aids’” and in the very next sentence refers to “evidence of Maxi-Aid’s intentional efforts to cause confusion.” The second paragraph on page five reiterates the findings of both this court and the Second Circuit “of evidence presented to the district court documenting Maxi-Aid’s intentional efforts to cause consumer confusion.” Thus, in a six-page document, of which the first page was a title page, the word “calculated” appears twice, “intentional” appears twice, and “consumer” and “confusion” each appear three times.
The summary order of the Second Circuit Court of Appeals mirrors the unanimous jury verdict at the trial of ILA and Marvin Sandler v. Maxi-Aids et. al., which held that on all six counts Maxi-Aids and its principals had acted willfully. The jury also determined that the prime victims of the defendants were the consuming public, who in our industry are blind, visually impaired, or elderly people and who constitute the most vulnerable members of society. Thus, while finding that barring Maxi-Aids from using the phrase [independent living aids] “presses trademark law to its outer limits,” the Second Circuit clearly concluded that this was a necessary step in order to protect the consuming public from Maxi-Aids’ predatory practices. Your deponent respectfully suggests that the unanimous, strong, and unequivocal decision by the Second Circuit Court of Appeals and its condemnation of Maxi-Aids’ “calculated” and “intentional” activities merits reimbursement to the plaintiffs of counsel fees and out-of-pocket costs incurred in defending against the defendants’ challenge to this court’s Memorandum and Decision and Order dated February 21, 2004.
Having quoted from Jack Dweck’s affidavit, we also note that we have not seen Michael Solomon’s response to the affidavit nor his comments on the unanimous decision of the Second Circuit Court of Appeals. However, we’re confident that he will not characterize either of them as part of a vendetta against his clients. The Second Circuit Court of Appeals is often regarded as the second highest ranking court in the country, second only to the United States Supreme Court, and is sometimes affectionately referred to as the “Mother Court.” Its judges are widely respected, and judges in other courts often rely heavily on decisions of the Second Circuit.
Again we reiterate our thoughts and reactions to Maxi-Aids’ conduct in our industry. We’ve consulted friends in the legal profession, and none recalls ever reading a decision expressing such powerful condemnation of a litigant’s behavior. We join in the condemnation. We condemn the counterfeiting of Say When liquid level indicators, which resulted in blind workers’ losing their jobs; we condemn the diversion of Perkins Braillers, which resulted in thousands of blind kids in developing countries losing the opportunity of Braille literacy and the economic opportunities that go with it; we condemn the appropriation of the Say When name by registering it as Maxi-Aids’ own; and we condemn the “calculated” and “intentional” efforts of Maxi-Aids to confuse and mislead the consuming public.
We now ask every person of conscience to decide where he or she stands on these issues. You have read Judge Spatt’s words in the May issue of the Braille Monitor, and now you have read the withering words of a distinguished panel of three judges from one of the highest courts in the land. For those who feel that these issues do not affect them, we remind you of the words of the judges of the Second Circuit that Maxi-Aids made “calculated” and “intentional” efforts to confuse and mislead the consuming public. In case you have forgotten who the consuming public is in the blindness field, wake up, readers-it’s us!
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