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July 1, 2008 9:31 AM

THE AM LAW LITIGATION DAILY: July 1, 2008

Posted by Jonathan Thrope

Edited by Andrew Longstreth

INTERNATIONAL
French Court Orders eBay To Pay $63 Million In Case Over Fakes: Is a U.S. Ruling on the Way?
Should eBay be expected to ferret out fakes sold on its site? Yesterday a Paris commercial court judge answered the question with a resounding yes. The online auction company was ordered to pay Louis Vuitton and other swanky brands $63.1 million in damages for its role in selling allegedly counterfeit goods. The money will go to LVMH Mo√ęt Hennessy Louis Vuitton and its partial owner Christian Dior Couture SA, which claimed that eBay did not do enough to ensure that the products sold on its site were the real deal. eBay says it plans to appeal.

EBay's obligation to curtail counterfeits is a hot issue in American courts as well. Last November Manhattan federal district court judge Richard Sullivan held a week-long trial in a case brought by Tiffany & Co., which claimed that eBay pocketed hundreds of thousands of dollars in fees from the sale of fake Tiffany silverware. eBay was represented by Bruce Rich at Weil, Gotshal; Tiffany had James Swire of Arnold & Porter. A decision in the case is expected soon. Rich got a good result for Ebay in a 2006 injunction hearing that raised some of the same issues. A company called Robespierre, which makes the fashion design line of Nanette Lepore, wanted a preliminary injunction to stop vendors from selling any Lepore merchandise through Ebay. Judge George Daniels said no to Nanette.

INTERNATIONAL
RICO Goes To Russia
Yesterday we previewed the dispute in Moscow over whether the Racketeering and Influenced Corruption Act applied in a $22.5 billion money laundering case Russia brought against the Bank of New York Mellon. After Monday's hearing in a Moscow courtroom, both sides issued press releases. You will probably not be shocked to learn that BONY highlighted the testimony of U.S. legal experts who said RICO wasn't intended to be used abroad, while Russia's lawyer, Steven Marks of Podhurst Orseck said he was confident the Russian court would agree to apply the American statute. The court is expected to decide the RICO question at a second hearing scheduled for July 3.

The case raises all sorts of interesting questions. Did Congress intend for RICO to apply overseas? Does Russia even have a RICO claim against the Bank of New York based on the allegations? And if Russia does win a judgment against the bank, how enforceable is it likely to be? Here at the Litigation Daily, we're not just asking. We're answering, courtesy of American Lawyer senior international writer Michael Goldhaber.

APPELLATE
D.C. Circuit Rules For Bingham Client in Detainee Case
In a post-Boumediene world, the government needs to make sure it has its facts straight. Just weeks after the Supreme Court ruled in Boumediene v. Bush that detainees at Guantanamo Bay have a right to challenge their detention in American courts, the Court of Appeals for the D.C. Circuit issued an opinion that lays out guidelines for what kind of evidence the government needs to show in order to keep detainees imprisoned as enemy combatants. In doing so, the court ruled that the U.S. had insufficient evidence to hold Huzaifa Parhat, an ethnic Uighur who fled his homeland in China. Specifically the three-judge appellate panel said that repeating assertions in intelligence reports does not make the allegations true.

To make the point, the judges referenced a Lewis Carroll poem, The Hunting of the Snark: "I have said it thrice: What I tell you three times is true." (For a more contemporary reference, they could have cited Stephen Colbert's definition of truthiness.) The court ruled that Parhat be released or given another trial.

P. Sabin Willett of Bingham McCutchen--who has made a personal mission of representing Uighur detainees--argued the case for Parhat. Other Bingham attorneys who worked on the appeal include Susan Baker Manning, Rheba Rutkowski, Neil McGaraghan, and Jason Pinney.

New York AG Won't Retry Tankleff
After spending nearly 20 years in prison, 36-year old Martin Tankleff learned yesterday that the state will not retry him on charges that he brutally bludgeoned his parents to death. Police claimed that Tankleff confessed to the murder the day it occurred, in an account they called "a temper tantrum that turned into violence." But a team of lawyers that included high-powered pro bono counsel from Clifford Chance, Wilmer Hale, Kelley Drye, and Baker Botts got the conviction overturned last year, arguing that the confession was coerced and that Tankleff's alleged story did not match the physical evidence. "The issue in this case is not whether there is evidence...but whether there is sufficient evidence," Benjamin Rosenberg, lead counsel for the attorney general, told Newsday. "The people move to dismiss the indictment."

IP
Rambus Seeks Injunction Against Hynix
The chip licenser Rambus pretty much defines the word "litigious," with a docket that stretches on and on. Now it's kicking Hynix Semiconductor when Hynix is already down. In 2000, Hynix sued Rambus in the Northern District of California for fraud, antitrust violations, and deceptive practices in its interaction with a standards-setting body. But Rambus turned around and won $307 million in patent infringement counterclaims. Hynix agreed to settle for $134 million after the court granted its motion for a new trial, but earlier this month Rambus renewed the fight. It has asked Judge Ron Whyte for an injunction against Hynix's sale of the infringing chips. The Recorder handicaps the request, noting that Rambus has the litigation momentum, but the courts frown on granting injunctions to companies that derive most of their revenue from licensing.

The case between the two companies was tried in three different phases. In each phase, Gregory Stone of Munger, Tolles & Olson represented Rambus. Kenneth Nissly of Thelen Reid, solo practitioner Allen Ruby, Patrick Lynch, now retired from O'Melveny, represented Hynix.

SPORTS
Court of Arbitration for Sport Denies Cyclist Floyd Landis's Appeal
Maurice Suh's challenge in representing Floyd Landis was always as steep as the highest peak in the French Alps. And yesterday, the altitude finally got to the Gibson, Dunn partner when Landis's request to be reinstated as the 2006 Tour de France champion was turned down by the Court of Arbitration for Sport. To mix sports metaphors, Suh is in a bit of a slump. As the Am Law Daily reports, the same court denied an appeal by another Suh client, sprinter Justin Gatlin, who was seeking an opportunity to defend his gold medal in the 100-meter.

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