Our immediate problem, was that we did not have access to any of our bank accounts and credit cards. So we had to borrow money from friends and family. There was also the fact that we had a mortgage payment due. Up until this time, we had never been late with a payment. There were also utility payments and other bills, checks that had been written and so on.
We were able to find an attorney who agreed to meet with us early the next week. A note about attorneys, and finding the right one for your particular legal situation. It's not easy especially if you've never needed an attorney, you know nothing about the relevant law and you've pressed for time. This was a civil trademark matter and so we needed one with a trademark background. The inherent problem with this is the fact that these attorneys are plaintiff oriented. They represent clients with their trademark issues. We had been sued by a trademark owner, the claims were pretty damning and so we were viewed or considered out of the gate as being in the wrong. He had some sympathy for us as we told him our circumstances and he agreed to represent us for the purposes of settlement. It was not until many months later that we learned that his representation of us had been decidedly less than zealous. He explained that the Plaintiff had made a demand of 100,000 to settle the matter and asked if we could pay it. We were shocked by the amount and he said that this was a serious matter and since they had added me to the lawsuit, we stood to lose our home and other assets and my salary could be garnished for the next 20 years or so. Another shock. Why had they added me to the lawsuit??? we asked. The plaintiff thinks that you were financing your wife's business he replied. He prepared a stipulated preliminary injunction which would free up my salary so that we could pay our bills, but all of our other accounts would remain frozen. He also explained that we would not have to go to the post-seizure hearing on the 22nd. At the time we felt some relief when we signed this stipulated agreement. Of course we should not have signed it and we should have gone to the post-seizure hearing.
Months later I called him to ask him some questions about his initial conversations/communications with the other side. He asked how things were going and among other things, I explained to him that there seemed to be some doubt as to whether of not I was a defendant; my name appearing and disappearing from documents filed with the court. I told him that following a hearing in court earlier in the week, I had followed the plaintiff's attorney into the hall and asked him if I was a defendant in the lawsuit. He seemed taken aback by the question. How did I become a defendant? I asked. You were home the day of the search and seizure he replied. I was home? Are you kidding? I was not named in the complaint, I was never served I replied.
This got a reaction out of him. 'No, no, no, no no. Remember we talked about this and agreed that rather than put them to the trouble of amending their complaint, you agreed to stipulate to being a defendant.' I agreed to become a defendant??? When did I do that? I asked. When you signed the stipulated preliminary injunction he replied. We never had that conversation; who in their right mind would volunteer to become a defendant in a lawsuit??? Plus only by adding me could they threaten us the loss of our home and my future earnings. Unbelievable.
As settlement negotiations dragged on into April, my wife and I discussed how to get out this lawsuit and on with our lives. On the one hand, we were only a few thousand off in terms of plaintiff's demand for compensation. But the plaintiff had also indicated that there would be no further negotiation on the amount to settle. As the months passed and as we learned more about the relevant law, considered some of the abuses we had suffered to date, contemplated the conduct of the plaintiffs attorneys in executing the search and seizure warrant, we found that we were less inclined to settle the matter for any amount of money. That being said, had the plaintiff offered to take a reasonable amount to settle, we quickly would have accepted the offer.
It can be fairly argued that we had no choice but to take our chances in court. We did not have the money to settle (we decided that we would not borrow from friends of family) nor as our assets were frozen, could we hire an attorney and the plaintiff would not budge on the amount to settle. So we began to think about how this lawsuit would be litigated. The plaintiff would have to prove that the dresses we had been selling (although I had never bought nor sold a dress nor at any time had I encouraged my wife or anyone else to do so) were counterfeit. They had not given us notice and the trademark on the dresses does not display the r in a circle. If they did not prove that the dresses they had seized were counterfeit, then the plaintiffs claims against us would become far less threatening, toothless even. An infringement case to defend against maybe. At worst, an injunction and perhaps a small damage award and it would be over. We were also a bit emboldened at this point by the fact that:
- the plaintiff seemed to want to settle this matter without litigation. Intractable about the amount but in no hurry to move forward. As January passed into February, March and then into April, we began to tire of this black cloud hanging over our heads and began to ignore this issue to some extent. Pay us money or we'll go forward! Alright, go forward already we thought. We never believed or thought for a minute that they wanted to settle out of some concern or interest for our well being.
- there was no proof that the dresses seized from our home were counterfeit. We both believed (still do) that the dresses were in fact genuine. The post-seizure declaration filed by the plaintiff states simply that 54 dresses 'bearing the DVF marks' had been seized from our home. Nothing about examining the dresses, not a word about counterfeit.
Over seven months after the search and seizure of our home, the plaintiff finally got around to deposing my wife and I. During my deposition, I was asked on at least five different occasions, about the 'counterfeit dresses'. Each time the answer was phrased a bit differently; "do you now admit ..." or "don't you think that ...", knowing what you know now ..." aren't the dresses counterfeit? I became a bit annoyed when the question came up yet again. "You keep asking me the same question and I keep responding, that no, I did not, I do not, I don't think or believe that the dresses were/are counterfeit." "Why do you care what I think anyway?" I asked. "Are the dresses counterfeit?" I asked. "Do you have something, somewhere written down on a piece of paper that states the dresses are counterfeit?" I asked, "because if you do, I have not seen it." Of course I did not receive a response to this.
Following our depositions, my wife related that she too had been asked the same question, regarding counterfeit, repeatedly. Why did they care what we thought or believed regarding the dresses? What mattered of course was that they prove the dresses were counterfeit at trial. What we believe or did not believe regarding this fact would hardly matter at that point if we had nothing to refute this fact with. When discovery closed, there was no evidence before the court that the dresses were counterfeit.
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