Tiffany (NJ) Inc. et al v. eBay Inc.

Filing 29

ENDORSED LETTER addressed to Judge Karas from James B. Swire dated 3/15/06: the parties are directed to appear at a conference on 4/19/06 at 2:30 pm. The parties should be prepared to discuss the media issues, as well as the two outstanding motions. Thus, the parties are directed to advise counsel for Google to appear at the conference as well. (Signed by Judge Kenneth M. Karas on 3/20/06) (cd, )

Tiffany (NJ) Inc. et al v. eBay Inc.

Doc. 29

ARNOLD & PORTER LLP
212.715.1013 212.715.1399 Fax

March 15.2006 BY HAND The Honorable Kenneth M. Karas United States District Judge Daniel Patrick Moynihan United States Court House 500 Pearl Street, Room 920 New York, New York i0007 Re:
TijJany (0 Inc. and Tinany and Company v. eBay Inc. - 04 Civ. 4607 (KMK)

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Dear Judge Karas:

We represent plaintiffs Tiffany (NJ) Inc. and Tiffany and ompany (collectively, "Tiffany") in the above-captioned matter. We write in response R. Bruce Rich's letter to Your Honor, dated March 10,2006, which complained about iffany's statements in the press regarding the sale of counterfeit items on eBay and req ested a conference with the Court to provide an update of pre-trial proceedings and to dis uss scheduling. We join with defendant in seeking a conference at Your onor's earliest convenience. We note that there are two outstanding matters bef re Your Honor that had been filed before Judge Buchwald, namely defendant's contested motion to amend its answer to assert an additional affirmative defense and plaintiffs iscovery dispute with the non-party witness, Google, Inc. We take strong issue, however, with defendant's complai ts concerning Tiffany's interaction with the press. In the first instance, Tiffany's right to ornmunicate with the press is protected by the First Amendment. This case will be trie to the Court, not a jury (defendant's reference to it being a "potential jury case" notwiths anding). As to the two instances which defendant cites, the quoted statement from me to the press shortly after filing of the case in June 2004 is entirely accurate. We note Mr. ch never complained of this quote at any time in the preceding 18 months, despite amp e opportunity to do so. And, while defendant objects to the fact that Tiffany recently pub..icized police raids in the United Kingdom against individuals who were selling counterfeit Tiffany merchandise on eBay, Tiffany has a clear right to advise the public of newsworthy events and to warn it of the extent of counterfeit Tiffany merchandise be:ng offered for sale on eBay.

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Dockets.Justia.com

ARNOLD & PORTER LLP
The Honorable Kenneth M. Karas Page 2 March 15,2006 It is in the public's interest that this case be tried as forward to meeting with Your Honor to discuss a schedule possible and we look

Respectfully submi ed,

522-b!
cc: R. Bruce Rich, Esq.

WEIL,GOTSHAL MANGES & L
767 FIFTH AVENUE
N E W Y O R K . N Y 10 1 5 3 ( 2 12) 3 10-8000 FAX: ( 2 12) 3 10-8007 AUSTIN BOSTON BRUSSELS BUDAPEST DALLAS FRANKFURT HOUSTON LONDON MIAMI MUNICH PARIS PRAGUE SHANGHAI S I L I C O N VALLEY R. BRUCE RICH
DIRECT LINE [phone] E-MAIL: r.bruce.dch~weIl.corn

March 10,2006

SINGAPORE WARSAW W A S H I N G T O N . D.C

BY HAND
The Honorable Kenneth M. Karas United States District Judge Daniel Patrick Moynihan United States Court House 500 Pearl Street, Room 920 New York, New York 10007

Re:
Dear Judge Karas:

Tiffany (NJ) Inc. and Tiffany and Company v. eBay Inc., 04 Civ. 4607 (KMK)

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We represent defendant eBay Inc. ("eBay") in which was reassigned to Your Honor after Judge Buchwald action in October of last year. We are writing to request an with the Court to discuss two subjects: (i) the persistent Tiffany with the apparent purpose of trying this case in and (ii) a schedule for summary judgment briefing.

matter,

1. From the outset of this proceeding, Tiffany has taken its case - such as it is - to the press. Thus, on June 21,2004, just days after the fili g of this lawsuit, Tiffany's lead counsel, Mr. Swire, was quoted in the press to the ffect that "his attempts to settle this matter 'on a business-like basis without having to go to Court"' had gone "unanswered" - a claim that, like so many of Tiffany's succeedin statements to the press, simply does not comport with the facts. See Jennifer Wate s & Bambi Francisco, Tiffany Sues eBay in Trademark Spat, CBS Marketwatch, June 1,2004 (copy annexed).

In recent weeks, Tiffany and its counsel have
campaign with renewed energy, despite the fact that no litigation have transpired. By way of example, just this release (copy annexed) concerning a seizure of

Z:

Kenneth Karas United States District Judge March 10,2006 Page 2

Kingdom. Tiffany took the occasion to make a number of relating to the instant suit and the evidence that has been process.

s misrepresentations through the discovery

itted to principles of While both this law finn and eBay are firmly co case over "the free speech, we are at the same time concerned in this potential j possibility that media coverage will become so intense that [eBay s] right to have the issues adjudicated fairly will be threatened." Koster v. Chase Manhattan Bank, 93 F.R.D. 471,482 n.22 (S.D.N.Y. 1982); see also Doe v. Kohn Nast & Ga. . P.C., 866 F. Supp. r :? 190, 195 n. 1 (E.D. Pa. 1994) ("I find it a source of some regret tha.t in this day and age, the vogue appears to be that lawyers seem to be unable to resist corralling a press conference, inviting all the media, both paper and electronic, to pet the alleged virtues of their case before the jury has been impaneled. Too m y lawyers are trylng to try their cases in that arena rather than the proper forum for gettin to the truth, within the bounds of due process and fair play.").

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We accordingly would appreciate the opportunity to get some guidance on this important matter. 2. As the parties have not yet had the Honor, such a conference could also serve the about the case, bringing the Court up-to-date hopefully, proposing to the Court a briefing schedule for summ believes that the case is ripe for adjudication on that basis. We with Tiffany's counsel concerning such scheduling.

meet with the Court

as eBay

We will await word from your chambers concerni g this matter and would be pleased to provide the Court with further background should the Court so desire.

R. Bruce Rich
RBRImjt Encl. cc: James B. Swire, Esq.