and Brief Excerpts from the Trial
by Barbara Pierce
Note: As background for this article, Monitor readers may wish to review the article entitled "Was it Swiss or Hong Kong: The Story of Maxi-Aids," which appeared in the December, 1994, issue of the Braille Monitor.
On November 5, 1997, a jury of four men and five women filed into a United States District courtroom to hear the case of Independent Living Aids (ILA) versus Maxi-Aids. Thirty-three days later, following two and a half days of deliberation, the jury returned to that courtroom to announce its verdict. It had found Maxi-Aids guilty of infringing on ILA's copyrighted catalogs over a ten-year period, infringing on the ILA trademark, and engaging in deceptive advertising and unfair business practices. The first two charges were federal, and the last two were New York state charges.
The jury awarded damages of $2,400,000.06. The judge will determine later whether and how much to assess Maxi-Aids to offset ILA's legal fees, but he indicated that he was inclined to make a sizable award; the attorney for Marvin Sandler, who is the owner and chief executive officer of ILA, has submitted a bill of $428,000 to the judge.
The trial was extraordinary in every way. The level of animosity between the plaintiff and the defendant in a small market like the blindness and disability field is perhaps not surprising. But, according to the court reporter in the case, who has worked in the Federal Circuit Court in the Eastern New York district for about twenty years, the size of the award is almost unprecedented. According to him, the huge awards that make the news periodically are made by juries in state courts in cases in which there are punitive damages due to personal injury.
Maxi-Aids will almost certainly appeal this decision, so the case is most probably far from over. But the seriousness of the charges, the unsavory behavior of Maxi-Aids as laid out in the testimony, the significance of the verdict, and the size of the jury's award make the case absolutely unique in the blindness field. For these reasons the case is worthy of careful examination. Unfortunately, when contacted, Mitchel Zaretsky refused to make any comment about the case or answer any questions because, he said, "The case is not over."
Though the charges go back to 1985, the first detailed public discussion of the Maxi-Aids problem took place in the December, 1994, issue of the Braille Monitor. (See the article, "Was it Swiss or Hong Kong: The Story of Maxi-Aids," which appeared in that issue.) In January, 1994, Marvin Sandler, co-owner with his wife Dr. Mimi Berman of ILA, wrote a letter to Dr. Jernigan detailing a number of allegations against Maxi-Aids and its owners: Elliot Zaretsky and his childrenMitchel, company president; Harold, who is deaf; and Pamela Stein. Stein is not now an owner, but exactly when she ceased her ownership became quite an interesting issue during the trial.
Throughout 1994 Dr. Jernigan gathered letters from vendors in the blindness field reporting on the Zaretskys' unsavory business practices as the writers had experienced them. We interviewed a number of people, including Elliot and Mitchel Zaretsky, in preparing the story. As soon as Dr. Jernigan had contacted the Zaretskys for comment in early December, according to Sandler's testimony, Elliot Zaretsky called and threatened him. On February 15, 1995, Marvin Sandler filed suit against Maxi-Aids and the Zaretskys. In April, 1995, Maxi-Aids counter-sued for libel and defamation of character because of Sandler's letter published in the Braille Monitor article.
At once both sides began taking depositions and preparing for trial, but it took them and the legal system two and a half years and one mistrial to get to the November, 1997, hearing. Both sides were represented by bright and competent legal counsel. The principal Zaretsky lawyer was Mark S. Mulholland, and Sandler's principal lawyer was Jack S. Dweck. The judge was Arthur D. Spatt, United States District Judge. To follow the portions of the trial transcript included in this article, it is important to recognize the names of the principal participants.
Unraveling the many strands of this case has been a formidable task. The trial transcript runs to over 3,400 pages. Through the years I have read my share of court decisions. I have even read and corrected my own several-hundred-page deposition. But never before have I read most of an entire trial transcript. Several points leapt out from the text. It was immediately clear that the judge was eminently fair and conducted the trial with humor and consideration.
The jury was extremely conscientious. From comments made by both lawyers and the judge, one gathers that this jury carefully followed the arguments and the testimony, using the copies of documents provided to them. In fact, Marvin Sandler told me that at the close of the trial the judge told them to clear all the material from his courtroom in a hurry because he was starting another trial. All the jurors' document boxes ended up in Sandler's possession. In looking through these he read the comments the jurors had made on their pads. He says it was clear that they were carefully following the arguments and intelligently assessing the evidence as they went along.
Throughout the trial both lawyers demonstrated the courtesy of gentlemen. They were respectful at all times and genuinely seemed to be trying to conform to the judge's rules. They were not pushing the limits of his rules as lawyers seem to do in novels and on television. In fact, they bent over backwards to be polite and patient. The entire proceeding was civilized to an almost startling degree. The only possible exception to the general civility was the occasional flashes of temper, sullenness, and ill-temper on the part of various members of the Zaretsky clan. The following is a brief excerpt from early in Elliot Zaretsky's testimony on November 24, 1997, that shows Mr. Zaretsky's unwillingness to answer questions simply and clearly and the humor and firmness of the judge: Jack Dweck is questioning Elliot Zaretsky about several answers he had given during his deposition.
Q: Mr. Zaretsky, you remember giving testimony before trial in this case?
A: Yes, I do.
Q: Do you remember, sir, Mr. Hubell [ILA's assistant counsel] was the one that questioned you on each of these dates, January 30, 1996--
THE COURT: You will not go through all of that, are you? He was questionedThere's a stack about a foot high, full of transcripts. You have to be an endurance runnerMr. Hubell is to be congratulated, and we'll award him a medal. MR. MULHOLLAND: What about me, Judge? I was there too. THE COURT: We'll give each of you a medal. We'll give you the Bronze Star, not great, but very good. Very good. Not giving you the Silver Star, Congressional Medal of Honor, orbecause you'll have to fill the room with transcripts [to deserve that medal]. THE WITNESS: Your Honor, may I say something?
THE COURT: No, you may say nothing.
THE WITNESS: Thank you.
BY MR. DWECK: [resuming his questions]
Q: You remember when you were questioned by Mr. Hubell on all of those dates for which he has just been given a medal, you were under oath, correct?
A: That's correct.
Q: Did you give this answer to this question, sir, on page 14, line 11?
Question: "How did you come to acquire ownership of the shares that were originally held by Pamela Stein?"
Answer: "She left the company."
Did you give that answer to that question, sir? Yes or no, sir?
A: She left the company for
MR. DWECK: Your Honor.
THE COURT: Listen to me, Mr. Zaretsky. Let's start off on the right track.
THE WITNESS: Yes, Your Honor.
THE COURT: You're an intelligent man. You understand what he's telling you, don't you
THE WITNESS: You know my problem is
THE COURT: No, don't give me your problem. Do you understand what he's saying?
THE WITNESS: Yes, Your Honor.
THE COURT: If you don't understand, say so. Were you asked that question and did you give that answer? That's all. THE WITNESS: I do not recall. . . .
Q: The next question. Did you give this answer to this question, sir?
Question: "When was that, sir?"
"Answer: "I'm not too sure of the date."
Did you give that answer to that question, sir?
Q: Mr. Zaretsky, at page 15, the very next page, did you give this answer to this question, sir, line 20?
Question: "Does she still own shares in the corporation?"
Answer: "Sort of, yes."
Did you give that answer, sir?
Q: Mr. Zaretsky, will you agree with me, sir, that from the time you took over Pamela's shares in 1988, Pamela has not been an owner of the company?
A: On paper, sir.
Q: On paper, agreed, yes?
A: On paper, yes.
Q: Mr. Zaretsky, that would mean on paper, as far as the federal government was concerned, Pamela did not have any ownership in the company from the time you got her stock on January 1, 1988; is that right, sir?
A: That's correct.
Q: And from 1988 right until now, as far as the federal government was concerned, whether it is for income tax purposes or any other purposes, Pamela was not an owner. Agreed? A: Agreed.