Ruling in Maxi-Aids Case

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

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

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

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

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.

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Ruling in Maxi-Aids Case

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