Do you think it’s permissible for a lawyer to do any of the following in a negotiation:
• Not revealing the true name of the buyer (i.e., buying through an agent);
• Creating a dummy company to act as the buyer;
• Creating a dummy company with a convenient name to create a false narrative;
• Having an attorney use a fake name;
• Lying about the reason the buyer wants to acquire the property;
• Threatening to sue if the seller does not sell?
Remarkably, these are among the juicy allegations in Proview Electronics v. Apple, Inc., No. 112 CV 219219 (Santa Clara Cnt’y Sup. Ct.), in which Proview sued Apple for allegedly having duped it into selling the rights to the trademark “iPad” in China and other countries for the tiny sum of $55,000 by taking various steps to deceive the seller as to the ultimate buyer’s true identity. After this purchase was determined by a Chinese tribunal not to encompass the rights to the “iPad” mark in China, Apple was forced to buy the mark without the benefit of hiding its identity – for a reported $60 million.
We examine the allegations in the Proview v. Apple case in light of the legal ethics rules that apply to lawyer negotiators to determine if any of the conduct alleged would have been permissible under those rules. We also offer some lessons learned for all lawyer negotiators who may be tempted by circumstances and/or urged by their clients to engage in sharp practice. Both litigators and transactional lawyers will benefit from this program.
Zach McGee, Senior Vice President, Business Affairs, Sony Pictures Home Entertainment, Los Angeles, CA
Mike Young, Judicate West, Los Angeles, CA
Zach leads worldwide business affairs for Sony’s home entertainment division. Before moving to Sony, he was the Senior Vice President, Head of Business & Legal Affairs at Miramax, a leading independent film and television studio. Before joining Miramax, Zach was a Vice President, Legal Affairs, with NBC Universal, Inc. Prior to moving in-house, he was an associate with Davis Polk. Zach clerked for the Honorable Michael B. Mukasey, Chief Judge, United States District Court for the Southern District of New York. He is a magna cum laude graduate of Harvard College and Harvard Law School, and he received his Masters of Business Administration from the UCLA Anderson School of Management. Zach also has taught negotiation ethics for lawyers as an Adjunct Professor at the Straus Institute for Dispute Resolution at Pepperdine University
Mike, a former employment, intellectual property and business litigator and mediator with the national firm Alston & Bird, has been mediating cases since 1989. Building off of his extensive litigation experience, and his training through the nationally acclaimed Straus Institute of Dispute Resolution at the Pepperdine Law School, he assists parties resolve contentious and complex civil disputes, often in creative and innovative ways that the parties themselves had not previously considered. He has extensive experience both litigating and mediating all varieties of employment, intellectual property, and business disputes, including class actions and single-plaintiff matters. On the employment side, these have included wrongful termination, harassment, discrimination, disability, public policy, wage and hour, and misclassification disputes, among others. On the IP side, Mike had handled disputes over trade secrets, trademarks, copyrights, patents, and restrictive covenants. In addition, in his 25-plus year legal career, he has mediated, litigated, and tried hundreds of disputes involving unfair competition, antitrust, and environmental issues (including CERCLA and RCRA cases), among other complex business disputes. Mike is a long time Distinguished Fellow with the International Academy of Mediators and former President, and was an adjunct professor at the University of Southern California Gould School of Law for nearly a decade, and at the Straus Institute of Dispute Resolution at the Pepperdine Law School, teaching mediation and ADR.