Do you think it's permissible for a lawyer to do any of the following in a negotiation:
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Not revealing the true name of the buyer (i.e., buying through an agent);
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Creating a dummy company to act as the buyer;
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Creating a dummy company with a convenient name to create a false narrative;
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Having an attorney use a fake name;
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Lying about the reason the buyer wants to acquire the property;
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Threatening to sue if the seller does not sell?
Remarkably, these are among the juicy allegations in Proview Electronics v. Apple, Inc., No. 112 CV 219219 (Santa Clara Cnt'y Sup. Ct.), in which Proview sued Apple for allegedly having duped it into selling the rights to the trademark iPad in China and other countries for the tiny sum of $55,000 by taking various steps to deceive the seller as to the ultimate buyer's true identity. After this purchase was determined by a Chinese tribunal not to encompass the rights to the iPad mark in China, Apple was forced to buy the mark without the benefit of hiding its identity for a reported $60 million.
We examine the allegations in the Proview v. Apple case in light of the legal ethics rules that apply to lawyer negotiators to determine if any of the conduct alleged would have been permissible under those rules. We also offer some lessons learned for all lawyer negotiators who may be tempted by circumstances and/or urged by their clients to engage in sharp practice. Both litigators and transactional lawyers will benefit from this program.
Speakers:
Zach McGee is Senior Vice President, Head of Business & Legal Affairs, for Miramax in Santa Monica where he oversees all licensing of Miramax's television and film content in digital and traditional media throughout the United States and the rest of the world. Before joining Miramax, Mr. McGee was a Vice President, Legal Affairs at NBCUniversal where he was responsible for license agreements and talent contracts for programs produced for NBCUniversal's broadcast and cable television networks. He also has extensive litigation experience, having practiced as an in-house litigator at NBCUniversal, and before that, as a securities and M&A litigator with Davis Polk & Wardwell in New York, and Menlo Park, California.
Mike Young is a full time neutral with Judicate West in Los Angeles, focusing on intellectual property and employment disputes, among other complex civil matters.
Mr. Young taught Negotiations and Mediation at USC Law School for close to a decade, and is a Distinguished Fellow with the International Academy of Mediators. Previously, he was an intellectual property and employment litigator with Alston & Bird. Mr. Young has written and spoken extensively on the Proview v. Apple case, including an article that appeared in the August 2012 edition of the Advocate entitled Where Deception is Still King.
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