Filing 37

TRANSCRIPT of Preliminary Injunction Hearing held on 4/14/09, before Judge John P. Fullam. Court Reporter/Transcriber ESR. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/14/2009. Redacted Transcript Deadline set for 5/26/2009. Release of Transcript Restriction set for 7/22/2009. (ah)

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RUDOVSKY et al v. WEST PUBLISHING CORPORATION et al Doc. 37 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DAVID RUDOVSKY LEONARD SOSNOV : CIVIL ACTION : : v. : : WEST PUBLISHING CORPORATION : et al. : NO. 09-0727-JF ---------------Courtroom 15A Philadelphia, Pennsylvania April 14, 2009 ----BEFORE: HONORABLE JOHN P. FULLAM, Sr. J. ----EXCERPTS FROM PRELIMINARY INJUNCTION HEARING ----APPEARANCES: For the Plaintiffs: RICHARD L. BAZELON, ESQUIRE MATTHEW R. SKOLNIK, ESQUIRE NOAH H. CARLSON, ESQUIRE Bazelon, Less & Feldman, PC 1515 Market Street Suite 700 Philadelphia, PA 19102 JAMES F. RITTINGER, ESQUIRE AARON M. ZEISLER, ESQUIRE Satterlee Stephens Burke & Burke 230 Park Avenue New York, NY 10169 MATTHEW J. BORGER, ESQUIRE Klehr Harrison Harvey Branzberg & Ellers, L.L.P. 260 South Broad Street, 4th Floor Philadelphia, PA 19102 For the Defendant: Proceedings recorded by electronic sound recording, transcript produced by transcription service. 2 APPEARANCES (CONTINUED): Courtroom Deputy: ESR Operator: Transcribed by: Rosalind Burton-Hoop Dennis Taylor DRUMMOND TRANSCRIPTION SERVICE HADDON HEIGHTS, NEW JERSEY 08035 ----- Proceedings recorded by electronic sound recording, transcript produced by transcription service. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 session. (In open court - 1:42 p.m.) COURTROOM DEPUTY: All rise. Court is now in The Honorable John P. Fullam, presiding. THE COURT: Good afternoon. Good afternoon, your Honor. Be seated, please. ALL COUNSEL: THE COURT: This is the case of Rudovsky and others versus West Publishing Company, and others. Does somebody wish to start talking? MR. BAZELON: Your Honor, good afternoon, I'm Richard Bazelon, and I represent the plaintiffs in this case. I want to thank your Honor for hearing us this afternoon. I'm prepared to put on my case. I'm prepared to give you a summary, I'm prepared to do whatever it is your Honor would -- how ever you prefer to start. THE COURT: Well, I like to think that it's your case, so you do what you think is the right thing to do. MR. BAZELON: Call my first witness. Well, your Honor, may we be heard on MR. RITTINGER: some oral argument before the witness is called. THE COURT: What do you want to argue about? Well, your Honor, this is a motion MR. RITTINGER: for a preliminary injunction. THE COURT: I know. And it seems to me that, first of MR. RITTINGER: 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all, the order that was submitted, West has already voluntarily taken virtually all of the actions that are requested for on this preliminary injunction hearing. Your Honor, I could go through that but we have published a new supplement. Last evening I asked Mr. Bazelon to tell me what it is that he was still seeking in the preliminary injunction motion -THE COURT: That seems reasonable. Mr. Bazelon, why don't you tell us what you're still seeking. MR. BAZELON: Yes, your Honor, but just to finish He asked me, your Honor, what what Mr. Rittinger began. injunctive relief I was seeking and I wrote him back and spelled out the injunctive relief we were seeking. I got a response from Mr. Rittinger saying, he had no interest in discussing injunctive relief for settlement, he was only asking me so he could assess his plans to bring a Rule 11 motion. So that was the extent on my discussion with Mr. Rittinger. THE COURT: agreement? MR. BAZELON: Right, exactly. Well, your Honor, we tried a month I've Other than that, you're practically in MR. RITTINGER: ago to reach an agreement with Mr. Bazelon. unfortunately concluded that that is not possible because each time we get to something, something else comes up, but I do 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have before me his e-mail, in which he now tells me what he's going to ask this Court to do in a preliminary injunction motion. THE COURT: Is there some reason why you two are the Why doesn't somebody tell only two who know what you want? the Court what you want? MR. BAZELON: Your Honor, the relief that we are seeking, your Honor, at this point in time is that -- the treatise that was written by David Rudovsky and Leonard Sosnov appears both in hardbound form and on WESTLAW. Dealing with WESTLAW first, the problem is that the only statement that West is willing to make concerning our clients and their lack of involvement post the pocket part used in 2007-2008 is on a page known as the scope page. Honor, almost no one goes to the scope page, so that it's really a useless disclosure, and I have spelled out for Mr. Rittinger and for West what it is we want on WESTLAW; they have never responded, but I'm happy to tell your Honor what it is. On WESTLAW, as I understand it, at the beginning of each section there's a statement as to how current the treatise is on WESTLAW, and then there is an identification of the authors, namely, Mr. Rudovsky and Mr. Sosnov, and then there is at the beginning of each section an asterisk or other indication of a footnote, and the footnote is a footnote about Your 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 each author. What we have asked is to include in that footnote the statement as to essentially the period of time in which they authored the treatise and when they stopped authoring the treatise. We've never gotten a response other than, you know, the Rule 11 stuff that Mr. Rittinger enjoys talking about. So that's the first thing. The second, your Honor, is that there's been an interesting history here. Initially West would do nothing We filed a complaint when we brought this to their attention. and they sent a letter to subscribers in March of 2009, which for reasons we have pointed out was grossly inadequate. Then we brought a preliminary injunction motion; they decided to do a rush, rush, super rush job to get out a new supplement, and yesterday they told us that it was sent out Friday night. It's almost a 400-page document, your Honor, obviously -THE COURT: You have memorized it, I assume? Yes, I've memorized it, your Honor, MR. BAZELON: chapter and verse. As I understand their communication to us, they sent it out with a one-page document called "Shelving Instructions" or "Shelf Instructions." That document does not reflect the fact that Mr. Rudovsky and Mr. Sosnov had no role in this most recent update, and there's no indication in this cover letter 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or this shelving instruction that the subscriber can get a refund if he or she wishes; that is, the subscriber, your Honor, paid for the pocket part that he, or she, or it received in December of 2008. That, your Honor, was the pocket part which we call the sham pocket part for 2008-2009. THE COURT: How much did the subscriber pay? I think about $46.50. MR. BAZELON: So that was sold on the basis of Mr. Rudovsky and Mr. Sosnov's name, because their name appeared on the title page as the primary authors of the entire pocket part, which we believe was a false attribution, a misrepresentation. Now, that this new document has come out, we believe that the subscriber who already paid, based at least substantially on a false attribution of authorship, should have the opportunity of saying if the original authors, who are the reason that we have subscribed, are not doing the pocket part, thanks, but no thanks, we want to return this and we want a credit. But they're not advised in this document that has just been sent out -THE COURT: As I understand it, Mr. Berger's office is not involved with the class action on behalf of subscribers? MR. BAZELON: They are not, your Honor, but the Number one, that the problem here is we suggest twofold: document was sold on the basis of our clients' names, and, 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number two, that there is a public interest here with respect to not using our -- Mr. Rudovsky's and Mr. Sosnov's -- name falsely and not providing a remedy. sought. Now, your Honor, with respect to the new replacement pocket part, which we only received yesterday afternoon and we have not had a chance to make a detailed review, but in doing some spot-checking we have noticed what I would call some fairly remarkable omissions, which certainly raise a very substantial prospect that this was thrown together in a less than professional way. How less than professional, I don't So that is relief we have know without, you know, a review I can't do in less than 24 hours, but it certainly does not suggest that anyone would have any reason to have any confidence in this new replacement pocket part, but we will present that in testimony. THE COURT: latest edition? MR. BAZELON: He's not being -- in the latest Is Mr. Rudovsky being blamed for that edition, on the cover page, he is not being blamed, there is attribution. He and Mr. Sosnov are identified as the authors through, I think, the pocket part of 2007-2008, which is correct, and then the editorial staff after that -- that's the answer to your question. THE COURT: Right. So what's wrong with that? MR. BAZELON: What's wrong with it is that -- 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: gaps in it or not? MR. BAZELON: What is wrong with it, Judge, is that This Who cares whether it's got all kinds of the original pocket part has already been sold. replacement is giving to the subscribers a replacement for what they've already paid for, and what they paid for was the sham 2008-2009 pocket part based on, we believe, largely Mr. Rudovsky's and Mr. Sosnov's name, and, therefore, the subscribers having bought we believe largely on the basis of those names and that attribution, ought to be told expressly that they have the right to return and get a refund. We believe Mr. Rudovsky and Mr. Sosnov have standing because it was -- the 2008-2009 pocket part was attributed to them. THE COURT: Okay, that's your position. Your Honor, if I might? MR. RITTINGER: First of all, the customer letter that we sent out in March offers every person who got the first supplement an opportunity for a refund. We haven't had one request. We never had one complaint about this, either have the plaintiffs as far as I know, but it was offered to them before it even went out in a customer letter, which also, your Honor, covers everything that he asks for in the preliminary injunction motion as well. As a matter of fact, to show what we're dealing with here, he actually asks your Honor, as part of the order of the 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 letter, that we should require that the people send back the old supplement and we should pay for their postage and handling. The customer letter that we sent out a month earlier, they don't have to do that, just ask for it, and the shelving instructions are to throw it away. So he's asking for something that is more onerous really to the customers, who he doesn't represent, than what's asked for. There really is just no basis for a preliminary If there ever was, there isn't any injunction motion here. more, your Honor. And if I could just have a minute to give a little bit of a background. THE COURT: Go right ahead. Your Honor, putting aside what West MR. RITTINGER: did, and whether West did it unilaterally or it did it as a result of -- that really isn't anything for today. West is -- I hope your Honor would agree -- a reputable publisher, and I can't come to court before your Honor and say that we are proud of the supplement that we've replaced, that would be disingenuous. However, your Honor, at the appropriate time, if it is in this court or some other court, assuming we think at a minimum there has to be an amendment to the complaint to get there, we will show that this pocket part was not a sham. It didn't measure up to what our standards are, and we put something out that we do think now does measure up to our 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 standards. But let's look at what happened here, your Honor, and the record is filled with it, your Honor, there can't really be no legitimate dispute about it. all right? They complained, They complained in a letter in which they failed They then, to mention the existence of the 2000 agreement. almost immediately, served a complaint that followed the form of the letter and set forth the causes of action that are contained in the letter; those are all tort claims and they all have to do with the misuse of name or advertising, or using the names in a context where they didn't do the supplement themselves, your Honor. Now, the first discussions that I had about this was, what about the agreement? the agreement doesn't apply. The response that I got was Now, your Honor, at that time I was not aware, believe me, and I still don't know although I've asked the question, whether or not counsel and the plaintiffs were aware of the 2000 agreement; I thought they were because it now turns out, your Honor, though, if you look at what happened causes of actions were submitted that don't mention the 2000 agreement and talk about the unauthorized use of names. At a minimum in presenting this to the Court it seems to me that there's an obligation to advise that there's an agreement that calls for this. THE COURT: I wish, sir, I don't know, I'm perhaps 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 influenced by what you just filed, but in this motion that you just filed, relief to file a reply to plaintiffs' supplemental memorandum. I've read the reply that you propose to file and I'm disheartened by the tone of it, and you seem to be following in that same tone here today. I'm much less interested in whether you have a valid reason to be angry with your opposing counsel, and much more interested in the merits of the case. I don't take kindly to briefs which attack opposing counsel and make snide comments right and left, and yours do, and you're doing the same thing here today, you're more critical of your opponent than you are of the facts of the case. MR. RITTINGER: But your Honor, you have to look at the merits of this case -THE COURT: I'm trying to. -- in the context of the 2000 MR. RITTINGER: agreement. At some point in time -THE COURT: What does the 2000 agreement say that helps you? MR. RITTINGER: Well, the 2000 agreement, first of all, it says that we can use their name or likeness. THE COURT: It gives you license to falsely attribute something to them? MR. RITTINGER: No, it gives us the right to use their name on a supplement, even one that they don't prepare 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provide. MR. RITTINGER: at 3-2, right? Yes, your Honor, but then -- now I'm themselves, the actual supplement and I can read the language on that, your Honor. THE COURT: Well, you mean that it authorizes you to say that they prepared the supplement, when they didn't? MR. RITTINGER: Well, first of all, your Honor, you Remember the have to look at what the supplement is. supplement is -- they prepared the basic body of that supplement, and it's updated every year, and if they choose not to update it, we can continue to use their names. And, your Honor, I'll read from the -- it's paragraph three of (b), Upkeep, Supplements, Revisions and New Editions. "Authors will provide upkeep to the work on an annual basis or as otherwise agreed to by publishers and authors, including, but not limited to supplements, revisions or new editions of the work in order to keep it current and marketable. All references to the work in this Agreement also apply to such upkeep as well as to the original unless otherwise provided." THE COURT: Such upkeep being upkeep that they Yes, 3-2, Use of Author's Names. "Publisher will have the right to use author's names in connection with the work and upkeep of the 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work. If the work or upkeep is prepared by a person, other than authors, publishers may identify that person on the new material and any related advertising and give him or her authorship credit in addition to or in lieu of credit to the authors." And on that basis, your Honor, -- and it's a regular practice in the publishing industry -- if the original authors don't do an update and someone else does, they both get credit. THE COURT: Obviously. Your Honor, the problem with this, MR. RITTINGER: and what we were faced with when we saw this was, we couldn't understand why there was no mention of the 2000 agreement. So, when we presented the 2000 agreement, the first reaction we got was that it wasn't -- the part that we had was only signed by the plaintiffs, not by us, and the reaction we got was that it was a purported agreement. And, your Honor, if you look at the moving affidavit that was put in on this case, it was by Professor Rudovsky and it talks about the 1987 agreement being the agreement that governs all publications up to the 2000 supplemental agreement. Your Honor, that it seems to me makes it clear that they had forgotten about the existence of the 2000 agreement. I understand why the 2000 supplement doesn't apply, because it only relates to that supplement and nothing 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 more. But, your Honor, with all due respect it would seem to me that anybody reading the papers that were submitted to this Court would not understand that there was an agreement in place that gave us the right -- we certainly for purposes of an argument say -- "that to use their names on a supplement even though they didn't prepare the supplement." (sic) And I don't believe that the Court would ever get that notion out of anything that was presented to your Honor. And that's the point that I was trying to make, and I have gone back to counsel on several occasions, your Honor, and said, please tell me when did you find out about the 2000 agreement? I think that's a perfectly rational question to ask under the circumstances of what was presented to the Court, your Honor. THE COURT: that precise point. agreement? MR. BAZELON: Your Honor, what I have to say about Let's hear the other point of view on What have you got to say about this 2000 the 2000 agreement is that none of the causes of action that we are asserting are asserted under contract and we don't believe that contract is relevant to the plaintiffs. Beyond that, your Honor, -THE COURT: Well, he says that the 2000 agreement gives them the right to do what they're doing -- or what 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they've done. MR. BAZELON: Well, your Honor, you have said it better than I could, and that is, that the notion that this is a license to falsely attribute authorship is -- I don't know how to describe it, your Honor, I'll use words I should use because they'd be pejorative -- but it's nonsensical and the provision that Mr. Rittinger refers to which says that the publisher shall have the right to use the author's name in connection with the work and also says that they can give credit to another author, as well as to -- who performs work -- as well as to Mr. Rudovsky and Mr. Sosnov. I mean, all that provides, your Honor, is that people who do work -THE COURT: They may tell the truth? It's honest attribution, your Honor, MR. BAZELON: and we're not arguing to the contrary. What we are here, you know, objecting to is the false attribution of work, which happens also to be sham work, to the original authors. You know, Mr. Rittinger argues that because the 2008-2009 pocket part contains contents of prior pocket parts it is, you know, truthful to say that Mr. Rudovsky and Mr. Sosnov are the authors, but, your Honor, the reason you get -if you're a subscriber -- a 2008-2009 pocket part is to get an annual update. So, who has done that is the critical thing, And this that's what differentiates it from the past updates. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pocket part would lead any subscriber to believe that the primary responsibility for the current, that is 2008-2009 update, are Mr. Rudovsky and Mr. Sosnov and that is simply a false attribution. Now, they say in small print below, "and the publisher's staff," in small print but there's no differentiation -THE COURT: I understand, but we're getting to the ultimate merits here now. MR. BAZELON: THE COURT: I'm sorry. I'm much more interested in what preliminary relief you think you're entitled to right now. MR. BAZELON: The preliminary relief, your Honor, that I think I'm -- may I answer one other thing, your Honor, before I -- just very briefly. Mr. Rittinger referred to the March 2009 letter that was sent out and he said that the subscribers were given the opportunity to do exactly, you know, what we are now asking. I want to read you what it says because I want to suggest to you that it's highly ambiguous. The 2009 letter on this point says, and I'm quoting: "We are in the process a preparing a new 2009 pocket part which will be shipped to you free of charge. If you are not satisfied with the information provided, please contact Customer Service at," telephone number, 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "and reference this letter to receive a credit for the 2008-2009 pocket part", close quote. Now, your Honor, it says if you are not satisfied with the information provided. The previous sentence, which starts a new paragraph, refers to the 2009 pocket part which is going to be sent out. The most natural reading of this to a subscriber is you wait until you get the new supplement we're going to send out and then if you're not satisfied this is what you can do. But when they sent it out, they say Friday night, they don't reference this and any subscriber, I would respectfully submit, that subscribers are not sitting around having this March 2009 letter on their wall waiting for the new replacement part to come in, and then go back to the letter and see what they want to do. The way that West should have done this in fairness to the subscribers, and to Mr. Rudovsky and Mr. Sosnov, is to put a notice with this replacement pocket part that it's not done by the original authors and if you want a credit you can, you know, send it back at our expense and we'll give you a credit. So, we believe that that relief, and this answers partly the question you asked, your Honor, we do want that relief for the customers in terms of a very prompt notice that says expressly that Professors Sosnov and Rudovsky have -- 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WESTLAW? WESTLAW. MR. BAZELON: Your Honor, we have a witness who's although they were the original authors -- they have not participated in this update and that within 60 days if you want a refund, you return it at our expense and you'll get a refund or a credit. That's the first. The second thing, your Honor, just to finish, and I'm sorry to interrupt you, I apologize. But the other is the WESTLAW, because they've basically done nothing that has any effect to remedy the false attribution with respect to WESTLAW, and I think I've discussed that. THE COURT: Does the record contain what you get on In other words, I can't picture what you get on going to testify and he has the screen shots -THE COURT: Oh, okay. -- and we're going to present that. Now, before we get any further, I'm It MR. BAZELON: THE COURT: curious as to why this case has not been settled long ago? seems to me that proceeding further with litigation has the great potential for embarrassment on both sides. I would think that Professor Rudovsky and his companion, his fellow author, would not want it to be generally known how very little they get paid for this. It seems to me that's more of an adverse reflection on their scholarship than almost 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. anything else. MR. BAZELON: THE COURT: It's a public service, your Honor. And I just don't understand why there's a resistance to correcting the error, which seems to be fairly obvious here. MR. RITTINGER: I've tried. Well, your Honor, I've alluded to I mean, I'm happy to have a settlement conference with your Honor, but I've tried, it cannot be done because every time we got some place something more was put on the table and that's the bottom line. But, your Honor, I would like to first of all, in order to move this we'll do what they want on WESTLAW, we'll do it, we'll put the footnote on WESTLAW, it's not a big deal, but we're not going to -- we've already sent out a letter and we are not going to send out another letter. The treatise clearly indicates exactly what they say -- I'm talking about the treatise -- the new supplement clearly indicates what they want. Putting that footnote on the bottom of WESTLAW is not a big deal and we can do it, we can have it done in a day, so that's not a problem. But, your Honor, I do think it's worth noting that this is a preliminary injunction hearing. I don't have to tell your Honor, it's extraordinary relief, and what we're really asking for is a mandatory injunction without any showing of irreparable harm. Mr. Bazelon makes reference to 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respond? THE COURT: Go head. Your Honor, one of the -- your Honor, the fact that people don't have it on their wall. They can't introduce one single person who's complained about this; where is the damage? And yet we've gone through all of this. Your Honor, would you like me to MR. BAZELON: MR. BAZELON: I think well knows that in issues concerning reputation that damage is presumed with certain kinds of defamation, certain kinds of assertions, certain kinds of false attribution. People don't come up to you, if you are the subject of this and say, guess what, I think less of you. But the law is knowledgeable enough to know that that's what happens and also to know that the damage to reputation is irreparable harm. The other thing is, your Honor, that -THE COURT: Just as a matter of curiosity, how do you propose damage -- how do you propose to prove damage to reputation? MR. BAZELON: Well, we proposed, among other things, to show that this is the type of damage which gives rise to -the type of injury which gives rise to damages without a showing of special damages, and that we're going to show it by the extent of injury to reputation which flows from this kind of, you know, falsely attributing authorship of a sham product to two extremely reputable, highly thought of scholars in the 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legal field. THE COURT: So highly thought of that nobody would ever dream of thinking less of them because of a mistake of this kind? MR. BAZELON: Well, your Honor, one would hope that, but unfortunately if your name is, you know, associated with a sham product, a product where whoever authored it doesn't bother to give negative history, so you can mis-cite authority, doesn't cite the new Supreme Court opinions in the same cases cited earlier, doesn't reference the fact that review has been granted by the Supreme Court of Pennsylvania, that doesn't include new rules. I mean, that is such a, you know, a gross oversight, to attribute it to standing scholars is -- I suggest, does give rise to real damages. Beyond that, your Honor, one of the problems is, is the very fact that you don't know what the problem with this pocket part is if you're a reader. that all of these problems exist. You don't know necessarily So it's not as though somebody who picks it up immediately knows, but one of the reasons why this is so damaging is that when you do find out it's because somebody else recognizes that you've done something wrong, and somebody may be misled, including the court or a client -- I'm sorry. THE COURT: You would agree that this is an argument which would be particularly pertinent if you were representing 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time. MR. BAZELON: THE COURT: No, probably not, audacious. Well, what do you want to do? Do you a class of purchasers? MR. BAZELON: I would have standing if I were representing a class of purchasers, but I believe I also have standing -THE COURT: I'm not suggesting that you don't have standing, but I'm suggesting that it bears primarily upon the damage done to the class of purchasers rather than to your clients. MR. BAZELON: Your Honor, I hear what you're saying and I respectfully disagree with the Court. THE COURT: That seems reasonable, people do all the want to go ahead with evidence, is that what you want to do? MR. BAZELON: otherwise, I do. MR. RITTINGER: Your Honor, first of all, the pocket Your Honor, if we can't resolve it part that he's talking about doesn't exist any more, it's been replaced and this is a motion for a preliminary injunction. mean, it has been mailed out with the instructions to get rid of it. THE COURT: You're representing that ever subscriber I who subscribed to the challenged pocket part is also a subscriber to the new pocket part? Are there any subscribers 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 assume. MR. BAZELON: Yes, your Honor, I assume that if Mr. who only update it once every ten years or -MR. RITTINGER: Oh, no, anybody who got -- the intent was -- I mean, I assume, your Honor, I haven't looked at the two lists of subscribers, but anybody who was a subscriber to the first supplement got the new supplement. That was the mailing list, to my understanding, that was used. Your Honor, we're talking about irreparable harm and injunctive relief, for what at this point in time? THE COURT: That's what we're about to find out, I Rittinger is going to rely on what was sent out Friday night, he's going to have a witness here to tell the Court about that document and how it was prepared so we know what it is, and not just tell the Court something was sent out and because he says something was sent out, with no further description, that moots an issue. Beyond that, your Honor, I also want to point out that in this replacement pocket part that was sent out, on the third page there is -- it's entitled "Related Products from West," and it lists it looks like about ten publications. of them is the publication that we're talking about here today, Pennsylvania Criminal Procedure, Law Commentary and Forms, David Rudovsky and Leonard Sosnov. It doesn't say One anything about they're no longer providing pocket parts, 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they're no longer updating. They are advertising the work without any limitation on the basis of the names of Rudovsky and Sosnov. So, this is continuing, your Honor. And what is that document you're holding THE COURT: in your hand? MR. BAZELON: I am holding in my hand page three, it's actually three small (i) of the document that was e-mailed to us yesterday afternoon, described in the cover e-mail as the replacement pocket part consisting of, I think, close to 400 pages -- and this is on the third page. THE COURT: And that's a list of other publications? It's a list of about ten publications MR. BAZELON: involving Pennsylvania law topics. So not only was this -- in effect, the sale of this product took place in December 2008, when the sham pocket part was sent out, because that's when the customers paid for it. And now, in addition, even when this comes out there's a restatement, an advertising of the treatise, based solely on the names of Mr. Rudovsky and Mr. Sosnov. So, I suggest, you know, Mr. Rittinger -- I should say West -- want to come in here and tell the Court, oh, you know, nothing else is relevant. We say we threw something together and sent it out on Friday night, no other issues in the case, Judge; I respectfully suggest that that's not what the record shows. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out. night? MR. RITTINGER: That was the supplement that we sent MR. RITTINGER: THE COURT: Your Honor, this is the book. The midnight mailing on Friday night? I'm sorry? MR. RITTINGER: THE COURT: What is the midnight mailing on Friday I mean, it wasn't a midnight mailing on Friday night, it I found -- that happened to be Easter went out on a Friday. weekend, and I found out on Monday and I immediately sent it to Mr. Bazelon with the suggestion that maybe he ought to withdraw the preliminary injunction motion; he didn't. But, your Honor, this is a listing of ten or eleven West Pennsylvania publications, which they do every place. names the publication, which in this case is Pennsylvania Practice, it was authored by them, and it says that. It It doesn't say anything about the supplements at all, nor do any of the other ones say anything about the supplements, but when they buy this they're going to get this and they're also going to get this, the supplement, and the supplement is going to say exactly what they wanted it to say, that -- and I can read it, your Honor, but we know what it is. It's going to say that this supplement was prepared by the staff, everything else was prepared by the authors. THE COURT: Okay. Everybody has finished talking? If you want to present evidence, go ahead. 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BAZELON: Yes, your Honor, I'd like to call my first witness, Douglas Frenkel. (None of the witnesses' testimony was transcribed.) (Transcript picks up after all testimony at 4:03 p.m.) MR. BAZELON: THE COURT: Plaintiff rests, your Honor. It's your turn. Your Honor, we would move for MR. RITTINGER: judgment, denying the motion for a preliminary injunction on the grounds that a prima facie case has not been made. Your Honor, the requirements for a preliminary injunction are well known to this Court, and it is our position and I believe the evidence, that they have failed with respect to all of the requirements. A preliminary injunction is an extraordinary remedy. As I understand what is left, that they are asking for a letter to go out to subscribers that says virtually the same thing as a letter that's already gone out. showing of irreparable harm. We have a motion to dismiss pending. We don't There has been no believe that there's any showing of a likelihood of success on the merits, and certainly at this point, the balance of the equities favors the defendant where again we would be forced to go out to our customers in a situation where we've already gone out and taken unilateral corrective action. So, your Honor, we would move for denial of the 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 preliminary injunction. THE COURT: Part of the problem, of course, is that what you consider corrective action is extremely ambiguous and impossible to understand, as well as ungrammatical. This letter says, "Dear Criminal Procedure Law, Commentary and Forms, Pennsylvania Practice Subscriber," which seems like a strange salutation. Then it says, "In December, 2008, our records indicate," well, for heaven's sake, that's not what you meant to say, is it? Then it says, "The book and the prior pocket parts was authored by David Rudovsky and Leonard Susnov. following." And the fourth paragraph -- third paragraph, whatever it is, "After thorough review we've determined that the 2008-2009 pocket part does not reflect all changes in the law that have occurred since the prior year's update." an understatement. That's We wish to bring to your attention the "Due to this, all citations should be What the heck does that checked for later developments." mean? Just don't rely on what we said? And the final paragraph, "We are in the process of preparing a new 2009 pocket part which will be shipped to you free of charge. If you are not satisfied with the information provided, please contact Customer Service, and reference this letter to receive a credit for the 2008-2009 pocket part." What does that mean? It doesn't say anything about getting 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: Well, they have to be dissatisfied with your money back, does it? MR. RITTINGER: would read it that way. THE COURT: If they're not satisfied with the new Your Honor, I think most lawyers 2009 pocket part, they can write in and get a credit for the previous pocket part; what does that mean? MR. RITTINGER: I think it means what it says, your the 2009 pocket part before they get their money back? MR. RITTINGER: No, your Honor, I don't think that's what it says, but if your Honor reads it that way, I do not believe that that is what it says. THE COURT: What do you think it says? I think it offers a refund -- first MR. RITTINGER: of all, your Honor, I don't think there's any basis for granting an injunction, a mandatory injunction, for something like that which cannot be compensated for by money damages. The burden here is for the plaintiff to show irreparable harm, not irreparable harm to the subscribers. have every intention of fulfilling our obligations to our subscribers, your Honor. THE COURT: I'm suggesting that maybe this is an We opportunity to minimize your damages, but if you don't want to do it, that's your problem. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RITTINGER: If your Honor is suggesting that we should send a clarification saying that anybody who wants a refund for the 2008-2009 supplement, I think that's something that West would do voluntarily -- if your Honor reads that as being unclear, because it certainly was not intended that way. THE COURT: immediate harm? MR. BAZELON: The irreparable immediate harm, your Okay. Now where is the irreparable Honor, is that this pocket part has been sold substantially on the basis of Professor Rudovsky and Professor Sosnov's name. That there needs to be a clear statement separately received along with an offer of a refund in order to remedy that damage. You know, basically West has made this sale by a misrepresentation, a false attribution, and it needs to be corrected both from the point of view of the authors and the subscribers. And it's continued not only, you know, it even flows through into the new replacement on page three, where they are listed as the authors. And, your Honor, reputational interest has always been and is generally regarded as an interest which justifies injunctive relief to protect reputation. Having been associated with this sham product, and I believe we've demonstrated that it's a sham product, been accused essentially of being the authors of it, and basically West having sucked the subscribers into this and foisted what 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really amounts to a fraud on the subscribers, this relief is necessary and the damage is irreparable. Your Honor, I want to say one other thing and that is that we have a situation here where West's defense to what we are asking for is a new pocket part that they say they sent out. There is not a scintilla of evidence that that has happened, and that is not just a form complaint or objection on my part. If somebody were here to give testimony, I could I can't cross-examine that person about that pocket part. cross-examine somebody who's not here but West should not have the right to have this Court issue an order based on something that they say took place on Friday night, and have no witness here to give evidence as to what happened and what this alleged replacement part is. THE COURT: replacement part? MR. BAZELON: We received an e-mail on Friday from Have you been shown the alleged counsel with counsel's statement that this -- I'm sorry, we received an e-mail on Monday afternoon, yesterday afternoon, with counsel's statement that this was sent out on Friday night. That's not testimony, it's not evidence; we're here at a hearing to present evidence, West is presenting no evidence, they've called no witnesses, and I think we have proven our case. One more reason we've proven it is that there is no 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 session. THE COURT: concluded hearing. This is a resumption of the recently parts -MR. RITTINGER: Well, Your Honor, we put in an case on the other side. In fact, it really raises the question of whether we should still be pressing for the relief in the form of a sticker to be sent out. At least in the event that what counsel said is not true -- I'm not saying it's not true -- but if that's in fact the case, I don't want to give up my right to relief because there is no evidence in the case, West has presented no evidence. THE COURT: Perhaps there may be at some point? I'm sorry, your Honor? MR. RITTINGER: THE COURT: Do you have any evidence that the pocket affidavit that said that it was going to be sent out by April 15th. I would ask for a continuance to be able to bring a I did not think that that would be witness in tomorrow. legitimately disputed. THE COURT: Okay, let's recess till tomorrow. Ten o'clock tomorrow morning. MR. BAZELON: Thank you, your Honor. (Recess from 4:12 p.m. to 4:25 p.m.) (Back on the record.) COURTROOM DEPUTY: All rise. Court is now in 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 patience. MR. BAZELON: Your Honor, thank you for your I think Mr. Rittinger and I have come to an agreement which will avoid our having to impose on the Court tomorrow. THE COURT: What might that turn out to be? That is, your Honor, that Mr. MR. RITTINGER: Bazelon is accepting my representation that the 2008-2009 new supplement was mailed to subscribers on Friday evening with the shelving instructions that have been marked as an exhibit and that they were mailed to the same subscriber list that receive the March customer letter. I am going to go back and check because we did not -- I cannot represent with absolute certainty that the same people who got the customer letter were the exact same people who got the original supplement, but I'm going to check on that and I'm going to give him a list of the subscribers, which will be treated under an appropriate confidentiality order. MR. BAZELON: But, your Honor, with the understanding that I can supplement the record, under seal, with respect to that list and that I will get it in the next day or two. THE COURT: The problem that I see is that your stipulation does not include a representation that the thing was mailed out postage fully prepaid. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Rita A. Dougherty - 4/22/09 DRUMMOND TRANSCRIPTION SERVICE CERTIFICATION I certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the above-entitled matter. Honor. MR. BAZELON: And just to be absolutely clear, this MR. RITTINGER: THE COURT: postage prepaid. MR. RITTINGER: I can give that representation, your Well, I can get that -- You didn't say anything about the representation by counsel is a representation by West. MR. RITTINGER: THE COURT: Oh, yes. So that if it turns out Yes, yes, yes. to be untrue, you can sue West some more. Okay, I'll take it under advisement and dispose of this motion shortly -- not today, but very soon. MR. BAZELON: Thank you, your Honor. Thank you, Judge. MR. RITTINGER: (Hearing adjourned at 4:27 p.m.)

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