Judge Spatt's Ruling in the Maxi-Aids Case
From the Editor: The preceding article provides a summary of activity up to the first week of July in the lawsuit brought by Marvin Sandler and Independent Living Aids (ILA) against Elliot Zaretsky, his three children, and Maxi-Aids. Following the jury's decision resoundingly in favor of Independent Living Aids, the Zaretskys' attorney, Mark Mulholland, made several motions for reconsideration of various parts of the verdict. Jack Dweck and Richard Hubell, the ILA counsel, rebutted those motions with their own, and each side then got one last chance to respond to what the other had said. Then the Judge, the Hon. Arthur D. Spatt, went off to consider the arguments and render his decision, which he did orally in a hearing on July 17 and in writing on July 25, 1998.
During the opening minutes of the July 17 hearing, the parties discussed several legal points. Then Judge Spatt read his decision, without the citations of legal precedents that would ultimately be included in the final written document. Because this case affects every blind person and every agency that purchases blindness products in the United States, we reprint here the full text of Judge Spatt's ruling as he presented it on July 17.
Amicus file from 7/17/98. Motion before Judge Spatt.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
July 17, 1998
INDEPENDENT LIVING AIDS, INC., and MARVIN SANDLER, Plaintiffs, 95 CV 656 (ADS) U.S. Courthouse, Uniondale, New York vs.
MAXI-AIDS, INC., HAROLD ZARETSKY, MITCHEL ZARETSKY, ELLIOT ZARETSKY, and PAMELA ZARETSKY STEIN, Defendants.
CIVIL CAUSE FOR MOTION
TRANSCRIPT OF PROCEEDINGS
The Honorable Arthur D. Spatt, United States District Court Judge
THE COURT: This is the decision of the court: The facts underlying this case are set forth in the court's earlier decision and the trial transcript and will not be repeated here. In addition, I'm going to skim over this decision, and I will issue a written decision, but I will give you the highlights orally.
Briefly summarized, the plaintiff, Independent Living Aids (ILA), and the defendant, Maxi-Aids, Inc. (Maxi-Aids) are New York corporations engaged in the mail-order business, specializing in products for the blind, visually impaired, and physically disabled. This case arises from ILA's claim that from 1985 to 1995 Maxi-Aids engaged in state and federal copyright infringement, common-law trademark infringement, unfair competition, false advertising, and deceptive trade practices.
Following trial, the jury returned a verdict in favor of the plaintiffs on the following actions:
One, a federal copyright infringement claim based on Maxi-Aids infringing on ILA's copyrights in its 1985 through 1995 catalog by copying original product listing.
Two, a federal trademark/service-mark claim arising out of Maxi-Aids's use of the ILA logo in its advertising, catalog, and sales program in a manner likely to cause confusion as to the source.
Three, a claim arising under New York General Business Law, Section 349, for willful deceptive acts and practices with regard to the advertising and sale of its products.
And, four, willful false advertising in violation of GBL [General Business Law] Section 350.
The plaintiffs were not entirely victorious, however, and the jury rejected the following actions by finding a verdict in favor of the defendants:
One, a federal trade dress infringement claim regarding their "Slimline Lo-Vision watches."
Two, federal trademark/service-mark claims regarding the terms "Independent Living," "ILA," "Do More Products," "Maxi-Aids and Appliances for Independent Living," and "Maxi-Aids Products for Independent Living."
Three, a state law claim for intentional interference with economic benefits relating to bidding procedures.
Finally, the jury rejected the counterclaim brought by the defendants against the Plaintiff, Marvin Sandler, for libel, arising from a letter Sandler wrote to the Braille Monitor, which published the correspondence.
Presently before the court are the defendants' motions pursuant to Federal Rules 50 and 59 and the plaintiffs' cross-motion for attorneys' fees, a permanent injunction, and a final judgment embodying a provision requiring the confiscation and destruction of all infringing catalogues.
I'm not going to go through the standards of Rule 50 and 59; they will be in the written opinion. But a motion for judgment as a matter of law after a jury verdict will not be granted unless, one, there is such a complete absence of evidence supporting the verdict that the jury's findings can only have been the result of sheer surmise and conjecture. Or, two, there is such an overwhelming amount of evidence in favor of the movant, in this case, the defendants, that reasonable and fair-minded persons could not arrive at a verdict against themcitations omitted for all of this.
In order to grant a new trial pursuant to Rule 59, the court must find that the verdict is "seriously erroneous" or constitutes "a miscarriage of justice."
To grant a motion for a remittitur, namely to reduce the amount of the verdict, the court must find that the jury's award was so excessive as to "shock the judicial conscience and constitute a denial of justice."
Maxi-Aids asked for judgment as a matter of law on the copyright infringement count, contending that ILA does not hold a protected copyright interest in its catalogues published between 1985 and 1995, because these catalogues "were irrevocably placed in the public domain" in that the majority of the product listings appeared previously in identical form during the years 1980 through 1984 in non-copyrighted catalogues.
Thus, Maxi-Aids asserts, the 1985 to 1995 catalogues are nothing more than virtual duplicates of unprotected catalogues, which were selected and organized without originality and are therefore unprotected under the Copyright Act of 1976. The key case is Feist Publications against Rural Telephone 499 U.S. 340, cited by Judge Martin in his decision of May 19, 1997, handed up to the court this afternoon. The Supreme Court in Feist ruled that originality is essential to warrant copyright protection and that toil or sweat of brow expended in collecting information in the public domain does not justify conferring copyright protection on a compilation of facts. Rather protection attaches only if the selection, coordination, or arrangement exhibit originality.
Notwithstanding its conclusion, the court emphasized that "Original as the term is used in copyright means only that the work was independently created by the author and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low. Even a slight amount will suffice. The vast majority of works make the grade quite easily as they possess some creative spark...no matter how crude, humble, or obvious."
That is not the words of a district judge. That is the words of the Supreme Court of the United States. In Feist, "The court underscored that the required level of originality is minimal. And most compilations, merely by exercising some independent choice in the coordination, selection, or arrangement of data, will pass the test. The telephone directory involved in Feist failed because it was found to be completely devoid of originality." Also the words of the United States Supreme Court.
And the Second Circuit has said so as well in CCC Information Services and other cases which I will put in the written opinion. Bearing in mind the onerous burden facing a movant on a Rule 50 motion and, conversely, the low threshold for originality in copyright claims, the court rejects Maxi-Aids's contention that ILA did not present sufficient evidence that their 1985-1995 catalogues warranted copyright protection. There is ample proof in the record to support the jury's specific finding that "The Plaintiff ILA proved that it changed the product listings from its non-copyrighted catalogues so that the listings as changed in the copyrighted catalogues were removed from the public domain and were original and protected." (Question number one in the verdict sheet), and there is other evidence which I'm not going into in the testimony that supports that.
In the Judge Martin case, my distinguished colleague tried this as a bench trial. He decided as an issue of fact "if one looks at each opinion as a whole, then it seems clear that the changes made by West are trivial indeed." That was his finding of fact.
The jury in this case found otherwise, and in my view the evidence supports it, which will be in the written opinion. Accordingly, the defendants' motion for judgment as a matter of law with respect to the federal copyright infringement claim is denied.
As far as a defense on Laches is concerned, equitable Doctrine of Laches, to prove this defense, a party must show that, one, the plaintiff had knowledge of the infringing activity. Two, the plaintiff inexcusably delayed taking action. And, three, the defendant would be prejudiced if plaintiff belatedly asserted its rights. That is from the Tri-Star Pictures case.
And there is a presumption of Laches that applies in a trademark action if the plaintiff fails to bring suit within the six-years statute of limitations applicable to state law fraud. Once this presumption attaches, which it did here, the burden is on the plaintiff to show why the Laches defense ought not to be applied. So we look at each element.
First, delay. The court finds that the profit reasons, while they may not excuse the full extent of the delay, do excuse the greater portion sufficient to justify the company's conduct. Beginning in 1989, counsel for ILA began corresponding with Maxi-Aids in an effort to get the company to cease copying its catalogs. Sandler himself directly communicated with Elliot Zaretsky to try and resolve the matter. When Maxi-Aids continued copying ILA's catalogs, the plaintiffs complained about the defendants' conduct to various government agencies, including the Department of Veterans Affairs and two attorneys general. In the court's view this is not a case where the plaintiff simply sat on their hands for a nine-year period without making any effort to advise the defendants of their concerns or to assert their rights.
Although the plaintiff certainly could have been more aggressive, namely suing in advancing their claims of copyright and trademark infringement, they did everything else. The court views ILA's correspondence with Maxi-Aids and the various government entities as justifiable efforts to resolve this matter outside the context of litigation. Accordingly the court finds that the delay in bringing suit was not unjustified.
In any event delay will not itself bar the plaintiffs' suit. In order to prevail on a defense of Laches, the court must find that the defendants likely have been prejudiced by the plaintiffs' unreasonable delay in bringing the action. Because the presumption of prejudice is established by operation of time, it is the plaintiffs' burden to make a showing that no prejudice ensued.
One form of prejudice is the decreased ability of the defendants to vindicate themselves that results from the death of witnesses or on account of fading memories or stale evidence. The key crucial test of prejudice is that witnesses have died or disappeared because of the delay. And that hinders the defense. Here there is no claim that any key witnesses died or disappeared during the interim. Moreover, in the court's view the defendants do not appear to have suffered any decreased ability to vindicate themselves due to the delay. While the defendants baldly assert that they were "forced to try the case in the face of diminished memories, loss of evidence, et cetera," the sole examples offered by the defendants were Elliot Zaretsky's inability to recall his source of ILA watches in 1986 and the defendants' inability to produce some invoices from ten years ago and other unspecified records, from the mid 1980's.
In the context of a lengthy trial involving highly sophisticated issues, where a mountain of evidence was produced by both sides, the court finds that these isolated instances of memory loss and lost documents do not warrant a finding of prejudice. The crucial witnesses were alive, available, and able to testify about the pertinent events and did testify.
Maxi-Aids was able to produce the greater part of the significant documentary evidence. Notably, Maxi-Aids prevailed on the federal trade dress actions, the majority of the federal trademark/service-mark claims, and the state law claim for intentional interference with economic benefits.
In sum, the isolated examples emphasized by the defendants do not supply any basis for a finding of prejudice in the legal sense.
I'll discuss the other argument about prejudice, about the earnings mounting dramatically, in the written opinion. Suffice it to say the court declines to adopt this bizarre theory. Accordingly the court finds that the defendants were not prejudiced by the delay in bringing suit.
The next element is the public interest. Even if it were to find that the plaintiffs had delayed unreasonably in bringing suit and that the defendants were prejudiced by this, it nevertheless would decline to apply the Doctrine of Laches in view of the public's interest at stake in this lawsuit.
The products involved concern the health and safety of visually impaired and physically disabled individuals and their care-givers. It is difficult to conceive of a subject more worthy of public concern and attention. In sum, the court declines to apply the Doctrine of Laches.
With respect to the statute of limitations, the plaintiffs introduced evidence of at least five violations in each of the five consecutive Maxi-Aids catalogues from 1986 through 1989 by using ILA watches in its advertisements. Significantly, Defendant Elliot Zaretsky admitted that he advertised, marketed, and sold the watches bearing the ILA logo through 1990. Since there was evidence of trademark violations in 1989 and 1990, within the six-year period proceeding commencement of this lawsuit in 1995, the bar imposed by the statute of limitations is inapplicable.
I will get to the defendants' motions to dismiss the plaintiffs' claims arising under GBL 349 and 350 essentially in the written opinion. The defendants do not ask for the judgment as a matter of law, because as far as the court is able to discern, the defendants did not specifically move with respect to the GBL claims in their prior motion for judgment as a matter of law and may not renew such a motion now.
To grant a new trial pursuant to Rule 59, the court must find that the verdict with respect to the GBL claims is "seriously erroneous" or constitutes a "miscarriage of justice". Here neither justification for a new trial is present.
I go into at length why I believe that with regard to both GBL claims under 349 for deceptive acts or practices in the conduct of any business, and under 350, with regard to false advertising in the conduct of any business.
The defendants mount a two-pronged attack on the GBL claims. First, the plaintiffs did not offer any evidence that any customers were actually deceived. Second, the violations of GBL were not "against the public interest." The plaintiffs, who unfortunately do not offer a single case in support of their position, contend in conclusory fashion that there was adequate evidence on both fronts, since Maxi-Aids's descriptions of the products at issue were patently false and since the public interest was implicated in that the parties, consumers, are disabled disadvantaged individuals.
Contrary to the defendants' suggestion, the first element of a GBL 349 and 350 claim, "that the act or practice was misleading in a material respect," does not require proof in the form of survey evidence, admissible market research, or consumer testimony to demonstrate actual deception. As noted in the practice commentaries to the statutory provisions, "GBL sections 349 and 350 contain no requirement that an injured party show reasonable reliance on his erroneous statements otherwise prohibited by the sections in order to obtain relief."
In the court's view the evidence that was presented with respect to this element of the claims, namely that Maxi-Aids's advertisements of the watches and knives at issue were patently false and admittedly so, supports the jury's finding. It was enough that the plaintiffs' evidence demonstrated "that a reasonable person would be likely to be misled by the material rather than that the individual consumers actually were misled."
The court also finds without merit Maxi-Aids's contention that the GBL violations were not against the public interest. It is clear and unrefuted that the customers at issue are among the most vulnerable in our society: the blind, the elderly, the physically disabled, and the infirm. In the court's view Maxi-Aids's false, misleading advertisements of products directed at this population constitutes "public interest" of the highest order. Therefore, the defendants' motion for a new trial on the GBL claims is denied in all respects.
Next, the defendants move pursuant to Rule 59 for remittitur of the jury award of $2,400,000.06 on the grounds that it is excessive. Alternatively, they seek a new trial relevant to all issues or as to damages alone. Briefly reiterated, to grant the motion for a remittitur, the court must find that the damage award was so excessive as to "shock the judicial conscience and constitute a denial of justice." I am going to cite one case because it was mine: Walz against the Town of Smithtown, 46 F.3d 162 170 (2d Cir.) cert denied, 115 S. Ct. 2557, and other cases, including the most recent cases decided this year.
Affording due deference to the jury's determination, the court in its discretion declines to disturb the award since it neither shocks the judicial conscience nor constitutes a denial of justice.
The award covered myriad trademark and copyright infringements occurring over the span of many years, as well as the defendants' deceptive practices and false advertising. In this court's view there was ample evidence before the jury to support this award. While the defendants expend considerable effort urging this court to set aside this award and to undertake "a detailed appraisal of the evidence bearing on damages," in the court's view such arguments are misplaced. The award is entitled to great deference. It is not for this court to determine de novo what it would have awarded had it been the fact-finder. Since the monetary award is not conscience-shocking, it will not be disturbed.
The defendants seek a new trial on their counterclaim for libel stemming from Sandler's letter dated January 17, 1994, to Jernigan. In the letter which the Braille Monitor published, Sandler accused the defendants of unethical business practices, dishonesty, fraud, and related charges. Without speculating as to the basis for the verdict, a reasonable jury could conclude, based on the evidence presented and this court's charge, that Sandler's remarks were not "defamatory," which is the question they answered. The court instructed the jury as follows, in part:
"In order to recover on the libel counterclaim, the defendants must prove by a preponderance of the evidence that the statements in the letter by Plaintiff Sandler... were defamatory, meaning that the statements had a tendency to expose the defendants to public hatred, contempt, ridicule, or disgrace or discredit them in the conduct of their business or occupation... the question for you to decide is whether the statements in the published portions of the letter of the plaintiff, Sandler, were defamatory... not every unpleasant or uncomplimentary statement is defamatory." This is my charge to the jury.
"A statement that is merely unpleasant, offensive, or embarrassing or that hurts the defendants' feelings is not necessarily defamatory. Because language often has different meanings, the law imposes upon the defendants the burden of proving that the statements about which they complain would in fact be understood by the average person to be defamatory as I have defined that term for you".
Without invading the jury's deliberative process, in view of the court's instruction, a fair reading of the record supports the jury's finding that Sandler's remarks did not expose the defendants to public hatred, contempt, ridicule, or disgrace, or otherwise were defamatory because his letter could have been found to describe their conduct, or so the jury could have found.
In other words Sandler's letter couldthe jury could have decided that Sandler's letter would not "lead the average person in the community to form an evil or bad opinion of the defendants under the circumstances of this case."
The defendants' remaining contentionwell, I'm denying the motion for a new trial or in any respect to disturb the verdict on the counterclaim for libel. The defendants' remaining contentions are without merit. For all the foregoing reasons the defendants' motion for judgment as a matter of law, a new trial, and remittitur are all denied in their entirety.
The plaintiffs' motion for attorneys' fees and costs in the amount of the $431,881.40 plus statutory interest, as the prevailing party on their trademark claim, copyright claim, and GBL claims, as set forth more fully below, or in the written opinion, the court is unable to adequately determine the amount of attorneys' fees to be awarded at this time due to several deficiencies in the plaintiffs' fee request:
First, the attorneys' time sheets do not differentiate attorney hours devoted to their successful claims and those claims which the jury rejected. I don't have to go through them again.
The plaintiffs complain that they are unable to distinguish between attorney hours devoted to their successful and unsuccessful claims, mainly because their time sheets do not reflect the exact nature of the work performed.
However, central to an application for attorney's fees is the submission of time records reflecting the hours expended by counsel in pursuing the successful claims of their client. In order for a party to recover attorneys' fees, such time records must be made contemporaneously with the associated work. It is not necessary for the applicant to submit the actual diary entries made by the attorneys at the time they performed the work. Rather, reconstruction of such contemporaneous records on a computer and billing based on these records is adequate, and I'm leaving out the citations. Most of the cases were my cases, as a matter of fact.
What is important is that these records should identify for each attorney the dates, the hours expended, and the nature of the work done. The burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required. Where adequate contemporaneous records have not been kept, the court should not award the full amount requested.
In sum, it is the plaintiffs' burden of demonstrating that the fee request relates to work performed on their prevailing claims. The court declines to award plaintiffs' fees and costs associated with the claims on which they did not prevail. Nor will the court award attorneys' fees for defending the libel counterclaim. There is no right to attorneys' fees for that. For this reason the court will afford the plaintiffs' counsel another final opportunity to review their records and determine whether they adhere to their initial assessment that they are unable to distinguish between time spent on the successful claims and hours devoted to the unsuccessful ones. In the event they're unable to do so, the court intends to substantially reduce the total fee application by as much as one half, to reflect that the claims on which the plaintiffs' lost and defense of the libel count are claims which were a major part of their theory of this case.
In this regard the court observes that the plaintiffs seek $10,822 for work performed in connection with their unsuccessful motion for preliminary injunctive relief. The court will not award fees for unsuccessful applications. Accordingly such work must be deleted in the renewed application.
Second, the plaintiffs' counsel must recalculate their fee request, reducing their hourly rates for a partner and associate from $350 per hour for a partner and $175 dollars per hour for an associate, respectively, to $225 per hour for a partner and $135 per hour for an associate, and that is the top fee I'm paying ever. And that was in the Louis Yanno (ph) case only, not the four other cases that at the Second Circuit affirmed at $200 an hour. In the Louis Yanno case, where exceptional services were rendered in a very difficult case, and I consider this a very difficult caseit certainly was difficult for me, and I'm sure it was difficult for all counsel.
I address your attention to Louis Yanno against Olsten, 109 F.3d 111, where the Second Circuit affirmed the $225 an hour in a very complicated employmentand successfuldiscrimination case, where the plaintiffs' counsel, unhappy with my award of $225 an hour and $135 per associate, made a separate appeal from the liability part of the case and the award of damages, a separate appeal on attorney's fees, and brought in professors from law schools, and had amicus curiae, almost every bar association saying that "My office is in Manhattan, prices are high, the rents are high," and all these things, and "I should get Manhattan prices." And the Second Circuit says, the case was tried in the Eastern District of New York in Uniondale; we are not going to get into Manhattan prices. So that was that.
So for Mr. Dweck, $225 an hour; Mr. Hubell or an associate, $135 an hour.
Third, the plaintiffs' fee request includes hours devoted to subjects which on their face bear no relation to this case. Such extraneous matters include ILA's subsequently-filed RICO lawsuit against the defendants and, oddly, "estate planning" for Marvin Sandler. Of course the court is not going to award attorneys' fees for these items. Accordingly the plaintiffs are directed to resubmit their application deleting such items.
For the reasons stated the court is unable to determine the plaintiffs' motion for attorneys' fees. Accordingly the motion is denied without prejudice and with leave to renew within ten days of the date of this decision; no extension will be granted. This motionthese motions were made months and months, ten months, five months, six months, after the verdict. We are not going to waste any more time. Ten days. The court observes that the defendants offer numerous additional arguments against awarding attorneys' fees, which will be addressed when the clarified application is submitted.
Since the defendants already have advised the court of their objections to the fee request, they will not be required to file additional opposition papers. Although they are free to do so, if they do, it is ten days after they receive the plaintiffs' additional submission.
Finally, the plaintiffs' motion for a permanent injunction enjoining the defendants from committing any further violations and/or infringements of plaintiffs' trademarks or copyrights, tortious interference, or engaging in false or deceptive trade practices, and for the preparation of a final judgment providing for the "destruction and confiscation of all infringing catalogs on the part of the defendant," we did not find any objection to this aspect.
Did you object to this, Mr. Mulholland?
MR. MULHOLLAND: Absolutely.
THE COURT: You did? In what part of your opposition did you object?
MR. MULHOLLAND: May I just have a moment?
THE COURT: If you continue to object, I'm going to give you an opportunity to object if you want to. I don't really find any objection to that part of the...
MR. MULHOLLAND: Your Honor, without finding the specific point, I do recall in our papers we pointed out that the alleged copying of catalogs had all been an event that flowed from the original supposed copying of the 1985 catalog. We pointed out that subsequently, in 1995, Maxi-Aids by then had completely revamped its catalog. In fact, that revamping process started in 1993. At trial we were accused of copying the '95 catalog, and plaintiff had conceded the copying had stopped by the time this trial had started.
THE COURT: I'm going to give you an opportunity to file an opposition to this portion within ten days. Because I don't see any opposition.
MR. MULHOLLAND: We can do that more clearly then.
THE COURT: Yes, more clearly. What I'm going to have, is that you're going to file your opposition within ten days, Mr. Mulholland. And ten days after that you're to submit a proposed judgment, final judgment, a proposed injunctive order, for the court to review, good Mr. Dweck.
MR. DWECK: Is that an order or a judgment, your Honor?
THE COURT: I guess it is a judgment. I want it to be part of the other judgment. I want to see what it looks like first.
MR. DWECK: So you want that separate?
THE COURT: Just that separate section. In conclusion, having reviewed the parties' submissions and oral argument, and for the reasons stated orally and in the written opinion to be issued, it is ordered that the defendants' motions pursuant to Rules 50 and 59 are denied.
It is further ordered that the plaintiffs' motion for attorneys' fees is denied without prejudice and with leave to renew within ten days from today, in keeping with the declarations of the court. And as far as the plaintiffs' motion for a permanent injunction and preparation of a final judgment providing for this injunctive relief and for the destruction and confiscation of all infringing catalogs, I'm going to wait to receive the opposition from the defendant and then the proposed portion of the final judgment having to do with injunctive relief. We will issue a written opinion as soon as we can. Thank you very much.
There you have the transcript of Judge Spatt's July 17 ruling. He has three final matters to decide now that his written opinion has been circulated. At this writing (in mid-September) he has not yet announced these decisions. The first is the amount he will instruct Maxi-Aids to reimburse ILA for legal fees. Dweck's firm recalculated the amount in accordance with the judge's instructions but apparently still didn't get it right. So the discussions continue.
The second matter is the plaintiffs' motion for a permanent injunction prohibiting the defendants from committing further violations or infringements of ILA's trademarks or copyrights, tortious interference, or engaging in false or deceptive trade practices. The judge invited Mr. Dweck to write the language the plaintiffs would like to see and Mr. Mulholland to suggest modifications. Dweck's text listed officers and directors of Maxi-Aids as well as all four members of the Zaretsky family by name in the permanent injunction. Mulholland pointed out that Elliot Zaretsky's deaf son Harold had not been found guilty of a number of the charges by the jury, so he asked that Harold's actual name be dropped from the list. Sandler reports that, since Harold is both an officer and a director of Maxi-Aids, he continues to be covered by the proposed injunction, so ILA has no problem with Mulholland's suggested change. Judge Spatt, however, has not yet indicated his decision.
As for the confiscation and destruction of Maxi-Aids catalogues, Marvin Sandler reports that Mitchel told the judge that all the old catalogues had been destroyed and that Maxi-Aids staff were now using only the 1998 catalogues, which do not infringe. Mulholland, on the other hand, assured the judge that all but about ten of the old catalogues will be destroyed. The ten would be used for reference purposes when filling orders from people using old catalogues.
Sandler points out that, setting aside the difference in verb tense ("had been" versus "will be") between the two statements, the ten catalogues precisely demonstrate the problem. Unless Maxi-Aids sets out to notify its customers that their old catalogues must be returned, the infringing pictures and text will continue to do damage for years to come. This dispute is still to be resolved by the judge's order.
In the meantime Mulholland has definitely been fired by Zaretsky. At the July 17 hearing Mulholland was conducting matters for the defendants, but the new firm of Bauer and Schaffer was also represented. No announcement has yet been made about whether or not Zaretsky intends to appeal the jury's decision because all the loose ends must be tied up before an appeal can be filed. But the very fact that a new firm has been retained suggests that Elliot Zaretsky intends to appeal the verdict.
The Department of Veterans Affairs has not yet announced what it intends to do about continuing to accept bids from Maxi-Aids in the wake of this case. No one at the VA is prepared to make a public statement, but we understand that a decision is expected soon.
The mills of justice certainly do grind slowly. Ten months have passed since a jury found that Maxi-Aids engaged in a number of unfair and deceptive practices. Yet private and state agencies continue to give them business. Low price appears to be the explanation, but where and when will morality enter the equation? We will keep you posted.