In the news

Daily Journal article by Justin P. Karczag and Aaron L. Arndt discussing the disadvantages of successfully preventing class certification for your clients.  Click here to read the entire article

Daily Journal article by Justin P. Karczag and Aaron L. Arndt on the retroactive application of federal court jurisdictional rulings.  Click here to read the full article

Daily Journal article about the highly successful banking fraud civil litigation firm of Foley Bezek Behle & Curtis, LLP Click here to read the article

Article by Roger N. Behle, Esq. in the Recorder about the U.S. Supreme Court hearing oral arguments in the B&B Hardware v. Hargis Industries, a highly anticipated trademark case that could have wide-reaching effects for trademark owners and practitioners alike.

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PHOENIX — It is the game that must not be named — at least not without permission.

For most people, the game Sunday between the New England Patriots and Seattle Seahawks is the Super Bowl. But for many business owners, it’s simply the “big game” or “game day.”

Radio hosts are tripping over their tongues and airport signs are carefully worded to keep from referring to it as the Super Bowl, a trademarked name the NFL strictly polices. Mom-and-pop shops and large companies hoping to cash in on the game — but also don’t want to run afoul of league lawyers — have found ways to color inside the lines.

Tyler Ellis, whose Coney Island Grill is located within the downtown Super Bowl Central village, is selling souvenir tie-dye shirts. The garments say “Coney Island 2015” as well as “the big game.” The $15 shirts come in pink, red, blue and green.

Fortunately, the restaurant owner was fully aware of the league’s reputation for coming down on trademark infringers.

“I’m just an NFL follower. You can’t even YouTube their videos. They’re just strict with their licensing,” Ellis said.

Grocery chain Whole Foods has avoided using “Super Bowl” on in-store signs and social media. The Facebook page for the central Phoenix location offers recipe ideas for “your Big Game party.”

Signs at American Airlines ticket counters in Phoenix Sky Harbor International Airport greet travelers with “Welcome to the big game.” American Airlines spokesman Casey Norton said though it is the official airline for the Arizona Super Bowl Host Committee, the company isn’t an NFL partner.

“Like any brand, we work to protect our valuable intellectual property and the rights we extend to our partners,” NFL spokesman Brian McCarthy said.

What constitutes a violation is determined on a case-by case basis, McCarthy said. For example, a restaurant writing up a Super Bowl menu on a chalkboard wouldn’t be an issue. And according to trademark law, a fair use exception allows for news organizations to use the Super Bowl moniker.

McCarthy said if a potential infringement is discovered, the league will notify the party involved. If nothing changes, then a cease-and-desist letter follows. McCarthy declined to discuss how many companies have received letters in recent months.

One of the participants in the Super Bowl is not a stranger to trademark disputes. Texas A&M University has long held the trademark for the term “12th Man,” the nickname for the Seahawks’ large and vocal fan base. The Seahawks and university reached a settlement in 2006 that allows the team to use some versions of the phrase.

And the NFL is not the only sports organization to be vigilant about its brand. Congress has created protections for the U.S. Olympic Committee so it has exclusive rights to use “Olympics” and the interlocking rings logo. International soccer governing body FIFA is requiring countries that host the World Cup to create special rights in their constitutions to protect advertisers, said Jeff Greenbaum, a New York-based advertising lawyer with the firm Frankfurt Kurnit.

Roger N. Behle Jr., an intellectual property lawyer with the firm Foley Bezek Behle & Curtis, said the NFL’s monitoring is about maximizing revenue.

“They do have a right to police it. They spent a lot of money to build the brand up, make it profitable and not have any Tom, Dick and Harry use the marks,” said Behle, who has worked on licensing deals with the NFL and other major sports leagues.

Greenbaum said the NFL’s enforcement is also about protecting its sponsors. The league creates “official” beers, chips, sodas and other items, which can give a business a distinct advantage over its competitors.

“The strategy that they’re employing is to create enough concern among marketers that they’re afraid to even get close to the line,” Greenbaum said.


Associated Press writer Anthony McCartney contributed to this report from Los Angeles.

Full Text:
National Law Journal

September 11, 2014

Large Punitives Award Against Bank in Loan Foreclosure

Amanda Bronstad

A jury has awarded nearly $39 million, mostly in punitive damages, to a Cambodian immigrant couple who sued East West Bank for forcing the foreclosure of their commercial loan.

F&F LLC, a business owned by Choung Fann Yik and Ying Faung Ley, sued East West Bank, which had approved a $34.8 million loan for construction of a shopping center in Rancho Cucamonga, Calif. After the Pasadena, Calif., bank sold their loan for $22 million, the new investor foreclosed on the couple.

On Monday, a jury in Los Angeles found East West 70 percent liable for the couple’s losses and awarded $16.9 million in compensatory damages plus punitive damages of $22 million—the amount East West received for the loan.

“We know as lawyers punitive damages are often sought, rarely received,” said the couple’s attorney, Justin Karczag, a partner at Foley Bezek Behle & Curtis in Costa Mesa, Calif. “It was really gratifying but also surprising to the extent that it shows they understood our case.”

An East West Bank spokeswoman did not return a call for comment, and John Hosack, a shareholder at Los Angeles-based Buchalter Nemer who represented the bank, did not respond to a request for comment.

East West’s parent corporation, East West Bancorp Inc., disclosed the verdict in a filing Tuesday with the U.S. Securities and Exchange Commission. “The jury’s verdict is subject to further legal proceedings and an appeal will be considered,” the company wrote.

East West added that the final payment would be reduced by $5 million due to a previous ruling in a related case. Although East West didn’t name the case, court records filed by the bank indicate F&F in 2011 obtained a $9.7 million judgment in a malpractice case against its former attorneys at Atkinson, Andelson, Loya, Ruud & Romo in Cerritos, Calif.

In 2007, F&F took out the original loan for what was supposed to be a “legacy project” for the family, said another attorney for the couple, Robert Curtis, a partner at Foley Bezek, who works in Santa Barbara, Calif.

“It was going to be a large minimall with a gas station, convenience store, food court and a Four Points by Sheraton hotel,” he said. “They set out by buying the land … getting the project designed and then seeking out a lender to give them a construction loan.”

But problems surfaced with the project’s general contractor, involving hundreds of overruns and change orders. When the loan came due two years later, East West demanded that the couple pay the costs out of pocket despite earlier promises that it would extend the loan, according to the couple’s attorneys.

F&F, which invested $13.9 million of its own money into the failed project, sued for at least $15 million in out-of-pocket expenses, lost profits and the depreciated value of the land.

East West Bank, in court records, blamed the couple’s problems on a “dysfunctional team of construction professionals” and the 2008 economic recession.

The jury sided with F&F on claims of breach of contract, breach of fiduciary duty, false promises, concealment, intentional misrepresentation and negligence.

“It was very clear they felt the bank’s conduct was despicable,” Curtis said.


In a hotly contested oil and gas rights case, in which FBBC was engaged after the litigation began, FBBC filed a Second Amended Complaint alleging among nine causes of action that Defendants, including the original sellers of the property, had wrongfully recorded oil and gas leases on property owned by FBBC’s client. Defendants filed a Cross-complaint against Plaintiffs, alleging that Plaintiffs’ claimed interest in the property was legally improper based on the language of a deed from the original seller of the property. Defendants filed a motion for summary judgment/adjudication (“MSJ”) and FBBC filed a cross-motion for summary adjudication of certain claims (“MSA”). If FBBC’s motion were successful, it would deliver all the oil & gas rights to its clients, but leave open further action against the Defendants for damages and punitive damages in the same case. After voluminous legal briefing (with Plaintiffs’ exceeding 70 pages), the Court today entered its final order granting all relief requested by FBBC in its MSA. The Court denied, in its entirety, Defendants’ MSJ. This moves the case to trial, primarily on the issue of damages and punitive damages, against Defendants. The oil and gas rights at issue have been valued by experts at over $1,000,000,000. Defendants and FBBC, on behalf of its clients, are now engaged in discussions that it is hoped will result in an appropriate business resolution before trial. Partners Peter J. Bezek and Justin P. Karczag handled the litigation for the client and the firm.

Article in the Daily Journal, where a federal jury awards $7.4 million in damages, saying a Robin Thicke pop hit infringed a 1977 song with commentary from Roger Behle of FBBC.

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