A third party blogger quite amazingly accused the nutrition website of copyright infringement and trademark violations for its reference to Dr. Reams and his theories.  As baseless as the claims were, they nevertheless illustrated basic principles of both of those areas of intellectual property law.  One cannot copyright that which is in the public domain nor does copyright protection purport to extend to the statement of an idea.  Instead, our copyright system is designed to protect expression.  The blogger had no standing to assert any violation and did not have—nor could he have ever obtained—any trademark in regard to the theories developed by Dr. Reams.  Reminded that federal copyright law allows a court to award attorney fees to the prevailing party in an infringement action, the blogger and his attorney retreated and faded away.

Mr. and Mrs. Smith were killed on August 25, 2011 when an Encana Oil and Gas (USA) service truck—weighing more than 16,000 pounds—crashed into the Smiths’ PT Cruiser as it was stopped at a highway construction project site.  The Encana truck was speeding at 67 miles per hour and did not slow down or brake prior to the collision. The explosive forces unleashed by the collision exceeded 2,460,000 foot pounds of energy—a massive and needless tragedy.  Mr. and Mrs. Smith died at the scene.

The Encana driver had a degenerative eye disease.  The company had known about it for more than four years prior to the collision.  The disease—Stargardt’s Disease—causes blindness in the central vision field, expanding outward and resulting in ultimate blindness.  The same employee had been involved with seven prior crashes (including collisions with a wild horse, a calf, a deer, an antelope, and another heavy duty service truck), been convicted to two speeding charges, received a warning charge for speeding, and had a medical certificate that had been expired for more than a year.  Yet Encana Oil & Gas (USA) permitted him to drive the service truck in spite of those blatant red flags.

The families—represented by Bob Schuster of Jackson, Wyoming—filed wrongful death cases against Encana Oil and Gas (USA) that were settled prior to trial for confidential amounts.

In writing to the presidents of Encana Oil and Gas (USA), Inc. and its parent corporation (Encana Corporation), the family members emphasized that—in addition to reaching a monetary settlement of the lawsuits—the more important task was to make certain that the safety issues were addressed so that the same tragedy would not be inflicted on other families.

The letter was sent to Randy Eresman, President of Encana Corporation, and Jeff Wojahn, President of Encana Oil & Gas (USA) Inc.  The family members explained their reasons for writing the companies:

We would ask that you candidly evaluate the circumstances of these deaths and then take those actions that may assure that other families will not experience similar losses.  In that manner, all of us would be able to say that the deaths of Tony and Deaun were not in vain—that they stood for something—and that the two of you did your part to make sure that appropriate safety policies and safety systems are adopted by your companies—parent and subsidiary alike.  That is the purpose of this letter—and that is why we, as the individual family members who have suffered this tragedy, write directly to you as the individual chief executives of each of the companies.

The families asked the companies to appoint a blue ribbon task force to make specific recommendations for a comprehensive safety program at Encana.  But other recommendations were also made: to establish a safety data system that would require systematic analysis; yearly gathering of driver information regarding criminal charges and vehicular incidents; a specific action program to research any medical conditions or disabilities of drivers; comprehensive written safety policies; the adoption of standards that would actually be enforced; the establishment of policies that would require accountability and responsibility for unsafe actions.

The presidents were asked to report back to the family within 120 days to inform them as to the specific actions undertaken by the companies in response to their letter.  They were also asked to provide a copy of the letter to each member of the companies’ Boards of Directors and to retain a copy of the letter in the corporate files so it would be available to future families in the event a similar tragedy were to occur.

The Encana driver had a degenerative eye disease of which the company was aware for more than four years prior to the collision.  The disease—Stargardt’s Disease—causes blindness in the central vision field, expanding outward and resulting in ultimate blindness.  The same employee had been involved with seven prior crashes (including collisions with a wild horse, a calf, a deer, an antelope, and another heavy duty service truck), been convicted to two speeding charges, received a warning charge for speeding, and had a medical certificate that had been expired for more than a year.  Yet Encana Oil & Gas (USA) permitted him to drive the service truck in spite of those blatant red flags.

The case was filed in the United States District Court for the District of Wyoming and was settled for a confidential amount prior to trial.  The settlements represented the largest wrongful death case settlements in Wyoming’s history.

The widow of Kyle L. Rooke filed a wrongful death case over an explosion at a gas drilling outside Pinedale.  Mr. Rooke was severely burned and was pronounced dead at the rig site by the EMT’s who responded to the explosion.  The suit was filed  in the United States District Court in Cheyenne by her attorney, Robert P. Schuster of Jackson.

Mr. Rooke was an employee of Unit Drilling Company, an Oklahoma-based corporation.  In addition to Unit Drilling, the suit named QEP Energy Company, the owner of the well, and Lyle Huff, Inc, a Montana consulting company.  The suit alleged that a threaded connection failed because the threads were worn and obliterated to the point they could not withstand the drilling pressure.  The connection exploded under  pressure and drilling mud jetted from the exposed opening.  The drilling mud was primarily composed of diesel, but the mud also contained volatile gases that had mixed with the mud as it circulated through the depths of the 12,000 foot well.  The gases and diesel ignited and Mr. Rooke was engulfed in the ensuing fire.  He had not been provided with flame retardant clothing, a safety measure  recommended the year before by the U.S. Department of Labor.

Wyoming’s workplace fatality rate has been a multiple of the national fatality rate and, for most of the past decade, Wyoming has been ranked as the least safe state for workers among all fifty (50) states in the nation.

Mr. Rooke was survived by his wife, Brenda, and  his son, James, of Drummond, Idaho, as well as  his mother, and four siblings.  He was 42 years old at the time of his death.  The case was settled prior to trial for a confidential amount following a mediation conducted by Joseph E. Vlastos.

The Honorable Kathy M. Flanagan, Cook County Circuit Court Judge, entered an order based on the defendants’ repeated discovery violations.  The Court found that the defendants had repeatedly and flagrantly violated the Court’s orders and failed to answer interrogatories and produce documents in spite of orders requiring full compliance.  It was demonstrated that—rather than producing documents—more than 27,000 pounds of documents were destroyed.  After revelation of the document destruction, the Court entered an order requiring full compliance with previous discovery orders and full production of all documents, and established a specific assessment schedule in the event the defendants did not comply.  It was then learned that—even after the entry of that order—an additional 167 boxes of documents were destroyed.

The Order was specific and direct in its criticism of the defendants: “The actions of the defendants, and each of them, have been intentional and egregious, deliberate contumacious, and have fully demonstrated an unwarranted disregard of the Court’s authority and the fundamental rights of the plaintiffs.”

The Court entered default judgment, stating “It is appropriate that default on all issues of liability be entered against each of the defendants for their violations of their discovery responsibilities, their violations of the multiple orders of this Court, and their violations of Rule 219(c).”

The Court also issued monetary sanctions against the defendants, jointly and severally, based on the assessment schedule it had previously ordered—a total of Five Million Eighty-Five Thousand Dollars ($5,085,000.00).  The Order stated:

It is appropriate that monetary sanctions be levied against the defendants, jointly and severally, in accordance with the assessment schedule specified in the Court’s order of December 7, 2011.  Those assessments are appropriately levied from December 20, 2011 through and including March 28, 2012, being the date this Court ruled on Plaintiffs’ Motion for Rule 219(c) Sanctions Against Defendants Figaro Engineering Company and Figaro USA.  Accordingly, the total monetary assessment against the defendants, jointly and severally, should be the sum of Five Million Eighty-Five Thousand Dollars ($5,085,000.00) to be paid to the Circuit Court of Cook County at the time judgment is ultimately rendered in this case or settlement otherwise achieved between plaintiffs and defendants.

View the complete Order. (PDF download, 419KB)

Robert P. Schuster is lead counsel for the plaintiffs in this Cook County case.  The defendants are represented by defense counsel, including Coronado Katz of Kansas City, Missouri.

Schuster was only the ninth attorney to be honored with this award since the founding of the organization in 1969.  He said of receiving the award, “It is a great honor to have received this award from the Wyoming Trial Lawyers Association.  I have been a member of WTLA my entire career and it has persistently fought to preserve the rights of our citizens and the integrity of our judicial system.  I have great respect for the Association so the award is all the more meaningful.”

Former recipients include Gerry Spence, Jim Fitzgerald, and Terry Mackey.

Issues of focus included response to search warrants and grand jury subpoenas, deferred and non-prosecution agreements, managing potential parallel proceedings, retention of expert witnesses, and effective use of demonstrative exhibits at trial.  The program was chaired by Ellen S. Podgor, the White-Collar Crime Research Professor at Stetson University College of Law and Chair of the White Collar Crime Advisory Board of the National Association of Criminal Defense Lawyers.

Schuster—who is also admitted to practice in the states of Wyoming and Utah—said that he was particularly honored to become a member of the New York Bar. “The New York Bar is one of the most respected bar associations in the United States.  Its members have included some of the finest lawyers and judges in the history of the nation.  I am also pleased to me a member because New York, specifically New York City, is at the very center of commercial and cultural innovation, both nationally and internationally.”

Schuster studied at New York University School of Law as an Urban Law Fellow of the Ford Foundation, a fellowship that also included his attendance at Harvard Law School from which he was awarded his LL.M degree.

Robert P. Schuster is also a member of the New York State Bar Association, a membership organization that is the oldest and largest voluntary state bar association in the United States.

The company was investigated by state and federal authorities, including the Antitrust Division of the Department of Justice, the Securities and Exchange Commission, and the Internal Revenue Service.  The investigated charges included claims that the conduct violated antitrust laws by destroying competition—and violated securities and tax laws.

Other companies have reached settlements with the government over similar allegations arising from bond market activities, according to the report, including UBS AG, JPMorgan Chase & Co., and Wachovia Bank NA.  Eighteen (18) individuals have been indicted or pled guilty in connection with the investigation, including three GE Funding traders.

Apple had filed the challenge with the International Trade Commission in October of 2010 against a number of Motorola’s smartphones, including the Droid, Backflip, and Cliq.  It claimed that the importation and sale of the phones with their underlying software would violate Section 337 of the Tariff Act of 1930—and sought an exclusion order preventing the importation of the phones.

The decision by the administrative law judge is subject to approval by the full six (6) member commission of the ITC.  The ITC action is just one part of the overall patent struggles between Apple and Motorola—and Apple and other companies.   Apple and Motorola are involved with the ITC complaint as well as actions in federal court and international arenas.  The U.S. International Trade Commission—a quasi-judicial federal agency—is located in Washington and is composed of six commissioners.  Its mission includes the fair administration of U.S. trade laws, and it retains the authority to ban the importation of goods manufactured outside the United States if the products violate intellectual property and other laws.  The ITC can be utilized strategically in intellectual property fights, where civil cases are filed but, in linked fashion, a complaint is also filed with the ITC seeking an embargo on the import of the product.  The threat of an embargo is considered by some to be an inducement to evaluate settlement prospects.