Who Dat? The NFL and Trademarks

Tue, 09 Feb 2010 05:13:15 GMT

Whether you were looking for false advertising claims on the Super Bowl commercials, roving the streets of Miami looking for counterfeit merchandise or just enjoying the game, the Super Bowl had a little something for everyone.

The NFL even threw those who have a special interest in trademarks a big meaty bone to chew on when the NFL claimed trademark rights in the chant: "Who Dat?"

The origins of "Who Dat" are not entirely clear, but it certainly has been used for many years and most recently by New Orleans Saints fans who chant: "Who dat? Who dat? Who dat say dey gunna beat them Saints?"

A furor immediately broke out when the NFL sent cease and desist letters to T-shirt shops in New Orleans selling merchandise with "Who Dat" on them. Days before the Super Bowl, the NFL appeared to change its position when it claimed that it would only pursue those who use "Who Dat" in connection with other Saints trademarks.

But, there are plenty of others besides the NFL who claim to own a trademark in "Who Dat". A search at the United States Trademark Office shows registrations for "Who Dat" for pretty much any kind of apparel that you can think of, action figures and variations of the mark including "Who Dat!!" for more apparel, "Who Dat? Blues Band" for entertainment and "Who Dat' Je Crois" for T-shirts. For a store owner such as Lauren Thom, the NFL's announcement that it is no longer laying claim on "Who Dat" only provides some relief given the myriad of claims on the phrase.

I thought it was interesting to see that the USPTO registered "Who Dat", "Who Dat?" and "Who Dat!!" for apparel. The only difference between the registrations, of course, being that one has no punctuation mark and the others have either a question mark or two exclamation marks. Likewise, it was apparently enough for the USPTO to simply add "Je Crois" to "Who Dat" for someone else to register its mark for apparel. While these registrations may be of limited use to one defending against claims of trademark infringement, they do give attorneys who are untangling this web a lot to talk about.

Regardless, the Saints and their fans had a lot to cheer about this weekend. In the space of a few days, they not only beat the Indianapolis Colts to win the Super Bowl, but they also beat the NFL itself. Who Dat!

CO2 Effects Not So Nice? Use it Twice, Says Carbon Sciences

elane@luce.com. (Eric Lane) — Tue, 09 Feb 2010 01:35:35 GMT

Carbon Sciences is a Santa Barbara, California company that has developed a proprietary process to recycle carbon dioxide emissions into gasoline and other liquid fuels. The company breaks down CO2 and extracts the carbon atoms to make new hydrocarbon chains. According to its web site, Carbon Sciences’ process requires less energy and is more scalable than previous [...]

Carbon Sciences is a Santa Barbara, California company that has developed a proprietary process to recycle carbon dioxide emissions into gasoline and other liquid fuels.

The company breaks down CO2 and extracts the carbon atoms to make new hydrocarbon chains. According to its web site, Carbon Sciences’ process requires less energy and is more scalable than previous known techniques, which used expensive inorganic catalysts.

The key to the process is a multi-step biocatalysis that uses organic biocatalysts. The company’s biocatalytic method uses inexpensive, renewable biomolecules to catalyze certain chemical reactions required to transform CO2 and water into fuel molecules.

Through nano-engineering of the biocatalysts and efficient process design, Carbon Sciences can operate these catalysis steps on a large industrial scale. In particular, the company’s smart particle technology provides improved encapsulation of the enzymes that prolongs their effective lives and allows them to perform many reaction cycles.

The major components of the process are a CO2 Flue Gas Processor, a a Biocatalyst Unit, a Biocatalytic Reactor Matrix, a Filtration system and a conversion and polishing unit.

The Biocatalytic Reactor Matrix is the heart of the process. It is here, in a matrix of liquid reaction chambers, that the large quantities of biocatalysts perform the multi-stage breakdown of CO2 and transformation to hydrocarbons.

The company’s CEO, Byron Elton, told me that Carbon Sciences has filed four as yet unpublished patent applications directed to its CO2 recycling process. Elton expects the company to file 4-6 more new patent applications this year.

Carbon Sciences owns U.S. Patent Application Publication No. 2008/0277319 (’319 Application), entitled “Fine particle carbon dioxide transformation and sequestration.” According to Elton, the ‘319 Application covers the company’s initial forays into carbon capture and sequestration.

The ‘319 Application is directed to methods and systems for breaking down carbon dioxide into micron- or sub-micron-sized particles, classifying or separating out the particles of a desired size and reacting those particles to form mineral carbonates.

Carbon Sciences’ technology extends into several aspects of CO2 capture, sequestration and recycling, including advanced chemical processes that can use flue gas and brackish water to capture CO2 emissions and scrub it to yield pure CO2.

Because the market for gasoline and liquid fuels is likely to remain quite large for some time, Carbon Sciences’ recycling process provides an interim carbon mitigation option: use the CO2 molecule twice.

Paul Karlsgodt

pkarlsgodt@bakerlaw.com (Paul Karlsgodt) — Mon, 08 Feb 2010 23:43:38 GMT

As reported by a variety of news outlets, including the New York Times and Wall Street Journal, on January 29, a federal jury found French conglomerate Vivendi liable for securities fraud, setting the stage for a potential multi-billion dollar damages award. In 2008, the United States District Court for the Southern District of New York had made headlines in the same case when it decided to allow French, Dutch, and British investors to be included in the class. (See this July 31, 2008 CAB Article for a link to that order).

The verdict marks the end of the latest chapter in a battle over the viability of ”foreign-cubed” or “f-cubed” class actions–or securities fraud class actions alleging fraud by a foreign corporation, on foreign investors, involving securities traded on a foreign exchange. The Supreme Court recently granted certiorari in the case of Morrison v. National Australia Bank, Ltd., Docket No. 08-1191, in which it will address whether and under what circumstances foreign-cubed class actions may be brought under U.S. securities laws. (See this December 1, 2009 CAB Article for a discussion of the decision to grant certiorari and for links to prior developments in the case).

Stay tuned to ClassActionBlawg for future developments in the Vivendi and Morrison cases as well as other f-cubed cases.

ALTA 21 Creditors Rights Endorsement: List Grows of Companies NOT Issuing It

Mon, 08 Feb 2010 21:32:08 GMT

As noted in my posting this morning [link], the ALTA Board of Governors voted to withdraw and de-certify the use of the ALT 21endorsement form. It removes creditors rights issues from certain title insurance policies.

So, what is the next step?

The title companies seize the opportunity, and stop issuing it. (You're not surprised.)

Here's the list of title companies (by my count) that have done so since the ALTA announcement:

Stewart Title
Chicago Title*
Fidelity National Title*
Ticor Title*
Lawyers Title*
Commonwealth Land Title*
Security Union Title*
Alamo *

*= all part of the Fidelity National Title Group underwriters

More title insurance companies will follow, lenders will accept the change, and this endorsement will be fondly remembered - as a unique attribute of the "old economy."

If you can add to this list, please add it by posting a comment below.

Reed Smith Named One of Six Best U.S. Employment Defense Firms

Mon, 08 Feb 2010 21:20:08 GMT

Reed Smith is proud to have been named one of the top six employment defense firms in the United States in 2009 by Law360, a premier national legal publication. Law360 cited in particular Reed Smith’s success as co-counsel for a major employer in persuading the U.S. Court of Appeals to reverse the certification of the largest class of employees ever recognized under the Americans with Disabilities Act, estimated at more than 36,000 persons. Reed Smith is delighted to be ranked among the top employment defense firms in the country.

To read Law360’s article, click on the following: “Employment Defense Firms of the Year”.

For more information, please contact Karl A. Fritton, Casey S. Ryan, or Linda S. Husar.

It's Official: SEC Adopts Interpretive Guidance About Climate Change for Public Companies

Mon, 08 Feb 2010 20:48:20 GMT

This post was written by David Mittelman, Eulalia Mack, Todd Maiden, Lou Naugle, Jennifer Smokelin and J. Todd Arkebauer.

A week after the Securities and Exchange Commission (the "SEC")voted to adopt interpretive guidance addressing public company disclosure standards in connection with climate change, they made it official. On February 2, 2010, the SEC issued the interpretive guidance. The guidance reflects an effort by the SEC to provide companies with greater clarity about existing obligations under the federal securities laws that relate to climate change and its consequences. Reed Smith updated its client bulletin to provide some more information on the key disclosure areas.

Jim Singer

singerj@pepperlaw.com (Jim Singer) — Mon, 08 Feb 2010 19:39:33 GMT

On February 23, 2010, my partners Josh Slavitt and Susan Krembs will host a webinar that focuses on IP issues and opportunities facing companies that do business in both the U.S. and Canada. The webinar will address similarities and differences between U.S. and Canadian patent laws. In addition, the webinar will review some of the most significant recent U.S. court decisions on patent law, with a focus on how those cases present new risks and opportunities for Canadian and U.S. companies, including new areas of inquiry for conducting due diligence in acquisition and financing transactions.

More details about the webinar are available via this link.

Click here to register for the webinar.

Filed under: Patents

The Secret To Launching A Successful Fashion Line: Recap

Mon, 08 Feb 2010 19:19:57 GMT

by ChristaChan-Pak, Esq., FGI Member and aspiring Fashion Lawyer

Last week emerging Los Angeles based designers gathered to gleam wisdom from established Fashion Business Consultant, Ralinda Harvey, during her presentation “Secrets to Launching a Successful Fashion Line” hosted by Macala Wright and FashionablyMarketing.Me.

Ralinda gave the attendees a step by step guide to launching their own successful fashion business that had three phases -- planning your business, creating a profitable collection and marketing and selling your line.

For those of you who could not be there, Ralinda outlined 16 steps to success as follows:

Start with a simple plan. Write down the following: a strategy for what you want to do, how to get it done, who will help you, how you will sell it and how much it will cost.
Work and learn at a small company. If possible, work at a small company. Ralinda started at Gap, Inc. but learned the most during her tenure at Michael Stars.
Start one business at a time. Wholesale, retail and e-commerce are all separate businesses. Ralinda recommends focusing on one at a time and expanding into others once the first is operational.
Cover your budget. This includes your startup budget, your operating budget to cover vendors, marketing and overhead, and your production finance budget to finance the period between when you receive orders and get paid.
Position yourself for investors. To strengthen your position when negotiating with investors get your line going and get sales.
Create a signature style. For example, when you think Calvin Klein, you think simplicity; when you think Missoni, you think of a harmony of colors
Focus your line. Think the Juicy Couture sweat suit, the Dianne von Furstenburg wrap dress. To build brand integrity, do one thing perfectly and build your collection using trimmings, colors, and details in fabric
Use keystone pricing. The wholesale price should equal cost multiplied by a factor of anywhere from 2.0 to 2.8. The retail price should equal the wholesale price multiplied by a factor of anywhere from 2.0 to 2.8.
Price at perceived value. If your product looks like $100 retail, divide that by 2.2, for example, to get the wholesale price of $45. When you divide the wholesale cost by actual cost, your result should be between 2.0 and 2.8. If it’s not, you need to tweak costs or adjust the product to stay at perceived value, i.e. the price of similar items.
Time your launch. Your launch should coincide with the trade shows, i.e. when buyers are buying. Check infomat.com for trade show dates. Don’t forget to make your launch an event.
Create a cost effective, goal oriented marketing plan. Think social media, a marketing kit, and/or a multi-purpose website. Social media is useful to get in contact with customers if you are doing retail. Your marketing kit includes flexible line sheets, press releases, order forms and your look book. Even if you’re not doing e-commerce, you should still have a website to showcase your current collection.
Know your sales options. While you could try to obtain a rep, Ralinda recommends selling yourself.
Selling yourself. Give your line momentum. Get your product in stores, especially brand building stores like Fred Segal, Kitson and Intermix. Work on getting press to position yourself for good representation.
Create a trade show marketing plan. Trade shows are great for exposure but are costly and unpredictable. If you are investing in going to a trade show, get the list of buyers who will be there and send them postcards and press kits via FedEx before the show. After the show, resend your materials to the buyers you connected with and provide them with order by and delivery cut off dates.
Deliver on time. Buyers can be unforgiving. Don’t take more orders than you can deliver
Make sure you get paid. Stick to cash on delivery or credit cards.

This sounds like a fantastic presentation and I would have been there, but was speaking in Philadelphia. Thank you Christa, for this fantastic summary. And in cased you missed these last two presentations, I am speaking at MAGIC on February 16, 2010 (blog post to come) so I can meet you there!

Becker Cloture Vote Delayed

Mon, 08 Feb 2010 18:26:00 GMT

Due to the massive snowstorm that hit the Washington, D.C. area over the weekend, the cloture vote on Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB) has been rescheduled to Tuesday at 5:00 pm. At least 60 votes are needed to lift the blanket hold Sen. Richard Shelby (R-Ala.) put on his nomination, among others, and effectively limit debate. Unless Becker can garner the requisite 60 votes – made more difficult now that Scott Brown has been sworn in as the Senate’s 41st Republican – it is expected that those opposed to Becker will filibuster to prevent a confirmation vote.

Michigan Announces $1.3M in Grants for Offshore Wind Research

Mon, 08 Feb 2010 17:56:27 GMT

On February 8, 2010, the Michigan Public Service Commission issued an order approving $1.6 million in Michigan Energy Efficiency grants, $1.3 million of which will go to Grand Valley State University, Michigan Alternative and Renewable Energy Center, in partnership with the University of Michigan Memorial Phoenix Energy Institute to conduct and/or perform studies to explore the feasibility of deployment of offshore wind technologies in Michigan.

The grants are part of the Low?Income and Energy Efficiency Fund, which provides energy bill assistance for low?income customers and promotes the efficient use of energy by all customer classes.

PARENTAL ALIENATION: PROGRAMS SEEK SOLUTIONS TO PARENT/CHILD DISCORD

Mon, 08 Feb 2010 17:39:04 GMT

Parental alienation is one of the most common, and most difficult to prove, complaints a family law attorney gets from a client.

Clients often, and not without justification, allege that the other party is actively trying to interfere and undermine their relationship with their child. The sad part is that while they are often right in their assessment of the other parent's action, proving alienation in court- usually in the context of contempt of a custody order- is difficult from the very basic standpoint of testimony. The parent alleging alienation will cite examples of behavior, comments, overt acts, subtle innuendo - all kinds of things that illustrate the purposeful action of the other parent to damage the parent/child relationship. The defense? "She's lying. I didn't do any of those things."

Generally, alienation cases are infrequently brought because of the difficulty in proving them. Practically speaking, what can a judge really do to punish the other party? Attorney's fees? A change in custody schedule? Jail? Unfortunately, even a well-crafted Court Order cannot prevent a stubborn parent from shooting off their mouth about the other parent in front of their child.

Recently, however, we have begun to notice some efforts to deal with parental alienation. Notably, the Overcoming Barriers Family Camp, operated by President Peggie Ward, PhD. Dr. Ward is a psychologist and Co-Founder of the Co-Parenting Assessment Center in Natick, Massachusetts and helped create Overcoming Barriers as a way to "help children and families where one or more children are in danger of losing a relationship (or have lost a relationship) with one of his/her parents." Initial reports have been positive and it will interesting to see whether this program spawns similar programs through out the country. You can find more information on Overcoming Barriers at http://www.overcomingbarriers.org/.

These programs are not without their detractors or controversy. The Leadership Council on Child Abuse and Interpersonal Violence has been critical of organizations such as the Rachel Foundation for Family Reintegration located in Kerrville, Texas. A February 2, 2009 news release on their position can be found at: http://www.leadershipcouncil.org/1/med/%20pr2_09.html. The Rachel Foundation strives to overcome, among other forms of abuse, the "abduction of the mind" which may occur in "high-conflict divorce." The Leadership Council, however, found that some of the "therapeutic" techniques skewed toward "brainwashing" and found them overly coercive.

Despite criticism, controversy, or praise, these programs attempt to address a need which is difficult to confront within the confines of the judicial process. I will be curious to see the data and information developed by Overcoming Barriers. If it can continue to replicate the initial success it has experienced thus far, I would not be surprised to see similar programs develop across the country and become instruments utilized by the Courts.

GAY EQUALITY IN CUSTODY CASES CONFIRMED AS PENNSYLVANIA LAW

Mon, 08 Feb 2010 17:03:18 GMT

Over the course of the past generation, our society has begun to recognize that sexual orientation has nothing to do with a person’s merit as a worker, a parent, or a human being, in general. It is an orientation rather than an aberration, yet our courts do not have the power to create cases or to promulgate laws based on their perception of need for change. Law is developed from the cases or controversies involving real people with existing legal issues.

So it is that as recently as 1985 the Superior Court ruled that a parent’s homosexual relationship reflected a “moral deficiency” that a Court must consider as an adverse factor in a custody case. That case, Constant A. v. Paul C.A., (496 A.2d 1 (Pa. Super. Ct. 1985) stood unchallenged for twenty-five years until a recent decision by the Superior Court. The facts of the case are as follows:

In 2006 a mother informed her husband that she was involved in a same sex relationship with another woman. The mother filed for divorce and shared custody in Dauphin County. Her husband replied by filing for primary custody of the child. A judge heard the case and ordered a shared custody arrangement for 18 months after which the child would live primarily in the custody of the father. The mother waited out the 18 month transition period and then filed for modification asking for preservation of the status quo. The mother also presented expert testimony that the shared physical arrangement was working. When the trial court rejected the modification request and relied upon the 1985 Constant A. v. Paul C.A. decision considering a same sex relationship as a “negative”, the Mother appealed.

In deciding this case, known as M.A.T. v. G.S.T, the Superior Court heard this case en banc. Ordinarily appeals are heard by panels of three appellate judges. Only in compelling cases (as decided by the Superior Court) are matters heard by panels of nine judges. The premise is that the Court wants the legal community and the public at large to understand that it is intent upon establishing lasting precedent.

The trial court’s opinion in M.A.T. v. G.S.T., it should be noted, found both parents to be fit and interested. It also noted, however, that the Mother did not overcome the principle that a same sex relationship must be harmful to the best interests of the child.

The Superior Court ruled that this doctrine no longer squared with Supreme Court rulings that each custody cases must be decided upon its facts and that each parent has the same burden of showing what is in a child’s best interest. Language that dismissed same sex relationships as “illicit” was dismissed as antiquated. The Court also recited language from its own 1982 decision in Custody of Temos where the Court noted that prejudice against interracial relationships had no place in a custody determination. There as here, the decision in a custody case must turn upon parenting quality in contrast to public perception of whether a particular environment was normal or accepted.

The decision in MAT v. GST was published on January 21. Any appeal to the Supreme Court must be filed within thirty days.

"Last Dollar" Endorsement Rescinded in Texas

Mon, 08 Feb 2010 16:56:57 GMT

In case you were not already aware of this, the T-15 (Last Dollar) endorsement to loan policies is no longer available in Texas, as of January 1, 2010, because it refers to a provision that is no longer contained in the T-2 form loan policy, so it's therefore no longer necessary.

Ohio WARN Legislation Proposed

Mon, 08 Feb 2010 16:45:04 GMT

Ohio employers will want to pay close attention to H.B. 434, which was proposed by House Representative Kenny Yuko, D-Richmond Heights, last week. The Bill is similar in nature to the Worker Adjustment and Retraining Notification Act ( “WARN”), but goes further than the federal law in several respects. For example, the Bill would require an employer in Ohio laying off 25 or more employees in any 30-day period to give at least 90-days’ advance written notice of the layoff to affected employees, local workforce policy boards, and certain state departments and local elected officials. The notice period would be expanded to 120 days for employers planning to lay off 250 or more employees. Also, the penalties for violations include double back pay for all affected employees, as well as the full value of their employee benefits.

The Bill does contain exceptions similar to those found in WARN, including exceptions for temporary facilities, layoffs arising from “circumstances that were not reasonably foreseeable,” caused by “physical calamity, natural disaster, or act of war,” or where the employer can show that "notice would have blocked incoming capital which might have prevented the layoff.”

H.B. 434 is still in the very early stages of the legislative process. However, because it would expand employer advance notice obligations in several respects beyond WARN’s requirements, it bears watching – and perhaps warrants a call to your State representative. You can stay updated on H.B. 434 by subscribing to www.employerlawreport.com, a blog on employment related matters from Porter Wright Morris & Arthur.

More on Service Animals...

Mon, 08 Feb 2010 15:56:23 GMT

A recent blog post on service animals has caused some readers to chastise your humble editor about the state of the law concerning service animals. To be sure, we here at the Fair Housing Defense blog want to get it right. Otherwise, what’s the point? That being said, I would probably vote against some of the colorful language in the comments as they are a little over the top and unnecessary. Like politics and religion, it seems service animal issues have touched a nerve. I guess that is good.

First, a little background. While reasonable accommodation requests seeking recognition for a service or companion animal are not rare, it is not a request that comes across my desk each week. What prompted the post was about 20 service animal requests submitted to a single community manager at one property – all about the same time. While I am certainly not implying that 20 residents at one community might not all make the same request for their respective legitimate disabilities all at the same time, I cannot rule out that at least some of these people wanted to avoid paying a pet deposit or monthly pet charge. Again, let me be clear that management should grant service animal reasonable accommodation requests when then arise in almost all circumstances.

To be sure, in the initial post I did not appropriately distinguish the difference between a service animal and a companion animal. And I should have. Again, that was not the purpose of the post, but some readers were correct to point out that formal training is not in the law, particularly for companion animals. Nevertheless, I do think it makes sense for service or companion animals to be well mannered in public.

Also, while I do think it makes good sense for a service or companion animal to be identified – so as to reduce the number of children who might reach out to pet the animal, there is no requirement that it be done. I appreciate that correction.

Hope that straightens it out. To paraphrase Tony Kornheiser, I will try to do better next time.

Just A Thought.

Do Not Open That Email Attachment

Mon, 08 Feb 2010 15:11:46 GMT

Everyone that has sensitive data (including, of course, ITAR-controlled data) on their computers networks should read this sobering article in Wired, which reveals, for the first time that I am aware, the methodology, extent and scope of Chinese cyber-attacks on U.S. computer networks. After you read this article, there will be no question in [...]

Cleaning Up Workplace Banter

Mon, 08 Feb 2010 14:22:18 GMT

In a decision issued last week, the U.S. Court of Appeals for the 11th Circuit held that gender-derogatory words and conduct that are either severe or pervasive may state a claim of a hostile work environment, even when the words at issue are not directed specifically at the plaintiff. Reeves v. C.H. Robinson Worldwide Inc., 11th Cir. (en banc), No. 07-10270, January 20, 2010.

The case involved a female employee working in a male dominated field. Her coworkers blasted offensive radio shows in shared workspaces. One coworker displayed an explicit picture of a naked woman on his computer screen. And the men in the workplace frequently used derogatory terms to refer to women generally. Even though her coworkers never directly insulted or threatened the Plaintiff, the Court held that the their actions created an objectively hostile work environment for any woman. With this decision, the 11th Circuit joins the majority of Circuits in holding that a hostile work environment may be created in violation of Title VII, even when the plaintiff is not individually targeted.

Courts have uniformly held that Title VII is not a general civility code. It does not protect against isolated sexually-tinged remarks. Nor does it protect against pervasive harassment that is non-discriminatory. But while the law tolerates general vulgarity, and even boorishness, liability arises when employers abide the frequent use of gender-derogatory language.

This holding bears special significance for work environments where curse words are part of the everyday vernacular of the employees. Employers wishing to avoid this kind of litigation should pay careful attention to address employee complaints. Training supervisors to reign in gender derogatory words and conduct could prevent a situation where an employee feels he or she has to complain in the first place.

Title Insurance Ticking Sound Blows UP: ALTA 21 Creditors' Rights Coverage Ends

Mon, 08 Feb 2010 12:01:01 GMT

Last Tuesday (Feb 2), the ALTA Board of Governors met to review and discuss the creditor rights issue in light of various recent court rulings.

The outcome is no surprise: they voted (unanimously) to withdraw and de-certify the ALTA 21 endorsement (commonly referred to as creditors' rights coverage). This change will be effective on March 8th.

Briefly, this endorsement removes creditors rights issues from coverage of the policy – such as fraudulent preferential transfers.

We've addressed the ALTA 21 as part of your file review process (link)

As you might suspect, money is the root of this decision. The title insurance industry has been experiencing significant losses through this endorsement (although it is not available in all states - for example, it is not available in Texas). Many underwriters had begun to decline to give this endorsement, or were imposing onerous conditions to issuing the endorsement. And it was beginning to increase premium rates.

I agree with ALTA's decision. The financial viability of the company covered by the endorsement is NOT a title record matter that the title insurer can protect itself against through examination. Indeed, it was a business decision or risk, and of a nature that the lender should independently assess and address. Why should a lender depend upon another party to assess the financial viability of a party to a transaction? Isn't the lender ultimately responsible for this underwriting risk? Do we really want lenders to lay-off that assessment to a title company? And if it is duplicate or "belts and suspenders" to the lender's process and assessment, it is an additional cost that we want to load up on to a transaction?

At least one very, very significant lending client of ours sees it the same way: one of the largest apartment lenders will NO longer require the ALTA 21.

are other lenders taking this same approach?

No doubt, this approach will be adopted by non-ALTA jurisdictions.

Please post your information, questions or comments below.

Measuring the effect of social media

blogs@foleyhoag.com (Foley Hoag) — Mon, 08 Feb 2010 12:00:00 GMT

I attended a presentation at the Mass Technology Leadership Council a while back on the subject of measuring the effects of social media. I have been thinking about it ever since. Mostly because I sometimes wonder why I am writing a legal related blog. After all, who wants to read legal stuff? (Lawyers? Foley’s marketing department? My daughter, Megan, who reads it religiously but admits she understands little of the legal stuff? The good folks at Lexblog who host this blog?)

The speaker was K. D. Paine, whose business is consulting in this area. Without question she made many many interesting points. But, and I suspect I will make a complete hash of this, her main point was that the effectiveness of social media (such as blogs) is in fact measureable and not by counting eyeballs. Here is a link to the slides from the speech.

Her point is that the effectiveness of social media revolves around engagement. So, it does not really matter how many people read your blog or follow you on Twitter. What matters is how many of them are "engaged" and how many act on this engagement. You can have a million people hitting your site, but if none comment and none forward a link to someone who they think might have an interest, then so what? A recommendation from trusted source is far better than a random hit from a Google search. If you have engagement, you are more likely to get referrals and valuable positive buzz with people who care about your product, service or message.

There are lots of ways to measure engagement. One might be how many times you are re-Tweeted or how many comments you get or how many times your blog is cited by others. If you are staying on message and readers are commenting, citing and retweeting, they you are likely to be impacting your market in a much more direct and powerful way than with mass spamming or just mountains of passive traffic.

So measuring effectiveness begins with measuring engagement and ends with calculating an ROI from the people who took action based on the engagement.

None of this, of course, tells you how to create engagement, and that is where the magic ultimately lies. Now I am on the trail looking for insights into how engagement is created (not just how it is measured). One site that seems to be focused on this aspect of web marketing is pistachioconsulting.com. A f riend at Valley View Ventures turned me on to this site. There is currently a guest post on "Presenting with Twitter" that has some strategies for creating engagement. I am sure there are others. I will try to note them as I find them.

Court Proposes Dismissing Declaratory Judgment Counterclaims as Duplicative of Plaintiff's Patent Claims

david.donoghue@hklaw.com (R. David Donoghue) — Mon, 08 Feb 2010 10:47:58 GMT

Continental Datalabel, Inc. v. Avery Dennison Corp., No. 09 C 5980, Slip. Op. (N.D. Ill. Dec. 9, 2009 (Shadur, Sen. J.).

Judge Shadur ordered the parties to be prepared to discuss at a status conference why defendants' respective noninfringement and invalidity declaratory judgment counterclaims should not be stricken as duplicative of plaintiff's patent infringement claims.

* Click here for more on this case in the Blog's archives.

Recent Articles in AmLaw 200 Blogs from LexMonitor