Goldman Sachs Tries To Bully Blogger

 I've got news for you: the Supreme Court has roundly rejected prior restraint!<br>  So will remain up as this case slowly winds its way through the courts like the man in the black pajamas wound his way through the jungles of 'Nam.

I've got news for you: the Supreme Court has roundly rejected prior restraint!
So will remain up as this case slowly winds its way through the courts like the man in the black pajamas wound his way through the jungles of 'Nam.

Michael Morgan is a Florida blogger who is a little bit upset with Goldman Sachs and its business practices. To voice his displeasure, he registered the domain name and and forwarded them to his blog on the financial giant.

Naturally, Goldman Sachs doesn’t like to be criticized. Who does? Nevertheless, I fail to see how they could have perceived Morgan as a threat to their financial well being or anything else. The fact is, Mr. Morgan’s blog just isn’t that good. The layout is visually painful. The writing isn’t engaging. After muddling through it for about 15 minutes, I still don’t really get what all the fuss is about. In other words, Morgan’s blog was destined for the blogger derelict heap. Morgan has a full time job, had very few readers, and probably would have either gotten bored with his griping, or his blog would have been ignored to death.

With Morgan’s blog plodding along in obscurity, enter John A. Squires of Chadbourne and Parke, LLP. Now this guy has an impressive background: He was top of his class in law school, on his law school’s moot court team, on law review, and an Order of the Coif inductee. Sounds like a pretty smart guy, no? Smart enough to become co-chair of the intellectual property practice at a major law firm. Smart enough that he “is widely recognized in both the financial services and technology sectors as one of the country’s top experts on the issue of patent-eligible technologies.”

Goldman Sachs' demand letter <br>Click to enlarge

Goldman Sachs' demand letter
Click to enlarge

Nevertheless, he put his name to one of the dumbest trademark demand letters I have ever read. Go ahead, click it. If you practice trademark law, don’t drink any liquids while reading or you’ll shoot them out your nose as you’re laughing and then you might have to change your shirt.

This letter seems to anecdotally confirm two things I’ve preached for years:

1) Patent guys don’t necessarily know trademark law,

2) A lawyer who doesn’t understand public relations is only half a lawyer.

I’m just guessing here, but I’m reasonably certain that Mr. Squires did know better. This demand letter just screams “reluctantly written to shut a client up.” Patent lawyer or not, the guy had to know that his trademark claims were just plain stupid. If creates confusion in the marketplace, then I guess that I had better stop calling my balls my “nutsack,” because someone might come along and expect them to sweat stock options.

Personally, I would never have affixed my signature to this piece of dung. I’ve learned the art of “client control.” That’s when you tell someone “my credibility is worth more than what you want to pay me to write this unsupportable demand letter.” Sadly, many lawyers never learn this skill. I’m certain that some tool at Goldman Sachs told Squires “I don’t care if we can’t back the claims up, just send the letter to try and scare this little mouse of a blogger.” (Or maybe I’m just inclined to give the lawyer the benefit of the doubt).

Although I would love to say that I would continue to that same big shiny set of brass balls if my client were a gazillion dollar financial powerhouse that shits rubies, I won’t judge Mr. Squires until I walk a mile in his Bruno Maglis — especially since I’m 98% certain that somewhere, he has an email to his client telling them that the claims in the letter are just one molecule away from being pure pharmaceutical-grade fecal goodness.

At least I hope so… because the mouse, he bite.

Squires’ letter ends with a threat that if Morgan doesn’t confirm, in writing, that he will stop using the words “Goldman” and “Sachs,” they just might sue him. Well, April 18 is a Saturday, Walter Sobchak doesn’t roll on Shabbos, and Mike Morgan did respond in writing — with a lawsuit of his own.

Morgan probably figured that if Goldman Sachs wasn’t bluffing, they would file suit against him in New York. Morgan lives in Florida, and would likely rather just have it out in Florida than travel to New York. So, given that there was a bona fide legal question — created by Squires’ dumb letter, Morgan had the right to file suit to just get the whole thing over with. Naturally, Goldman Sachs probably isn’t too worried about the financial consequences of this suit. The most that Morgan will win is a piece of paper that says he has the right to use the words “Goldman” and “Sachs” to criticize Goldman Sachs. But what a piece of paper it will be.

More importantly, now that he has filed suit, a lot more people are going to take note of this dispute. I’ve been following it for a little while myself, and until I received a copy of Morgan’s complaint, I didn’t really find it interesting enough to write about. Guy gripes. Company whines. Dumb demand letter. Yawn. Happens every day.

What doesn’t happen every day is that the griper has the coglioni to tell one of the biggest financial institutions in the world “You wanna step outside? Fine, lets go.

So now what happens?

Hopefully, Mr. Squires tells his client “I told you so,” and keeps a copy of the memo he sent them telling them that this was all a really dumb idea and that they should have just ignored Mr. Morgan’s blog. If he didn’t tell them so, then someone at Goldman Sachs should re-think how they choose their attorneys.

Once that is all settled, Goldman Sachs should just gracefully back away from this — issue a statement that they reconsidered their position, and it all goes away. The first rule of getting out of a hole is to stop digging. However, I predict the opposite will happen: Goldman Sachs will dig in, the Spin Doctors song “Little Miss Can’t Be Wrong” will be played over the PA system at Chadbourne and Parke, and we will see both an answer and a counterclaim that will be just one hair shy of being frivolous enough to warrant sanctions because some nitwit will think that it will scare Morgan into submission… and the case will draw even more attention to this once-obscure blog.

And then we’ll see if Mr. Morgan’s reporting on Goldman Sachs’ misdeeds grows any legs. He already has a conference call scheduled to gather the volunteers who have rallied to his side.

15 Responses to Goldman Sachs Tries To Bully Blogger

  1. John Squire says:

    Didja notice that Mr. Squires last job “Chief Intellectual Property Counsel, Goldman, Sachs & Co., 2002-2008”?

    I bet this was a way to trump up some billables for his new masters at CP, not a shut-the-client-up move.

    (No relation, BTW – he’s plural, and I’m a singular pseudonym)

    • Meh, I did notice that, but I didn’t make much of it.

      I often see non-lawyers criticize lawyers as trying to “trump up billables,” but after a number of years in the profession, I’ll assure you that this happens FAR less than most people outside the profession think. Most lawyers with any rainmaking ability don’t need to fluff up billables.

      Despite my criticism of Mr. Squires’ style, I presume that he is busy enough that he doesn’t need to up his billables. Furthermore, I am not prepared to question his ethics in acting in his own best interest — not at the behest of his client.

      Of course, none of this is to say that he doesn’t need a few remedial lessons in style and judgment. Had he signed a pleading with these claims on it, I’d question his ethics. But lots of lawyers send dumb demand letters.

    • Elizabeth Pearce says:

      I think John Squires having been chief IP counsel at Goldman Sachs IS significant. It makes his poor judgment even more glaring. No one with any experience in internet policing would have sent such a ham-handed letter that flies in the face of first amendment rights.

      Of course, when you send in a patent lawyer to do a trademark lawyer’s job….

  2. Ron Coleman says:

    I just hope the wrong lesson wasn’t learned from the Jones Day fiasco…

  3. I agree, but in my view attorneys have a particular duty to not threaten a suit on such flimsy grounds when you are writing to someone who is not an attorney.

    We all have been there. You’ve got to convince the client “writing this letter is a bad idea” and there may be blowback that we can’t control or anticipate. If you do wind up writing the letter, you’ve got to tone it down and assume it will be plastered everywhere.

  4. Jay says:

    I work in IP (ask me anything! ha-ha!)for a very large global corporation. We, or our attorneys, send out almost identical cease and desist letters those unfortunate individuals or companies who register domain names that incorporate some part of our brand names or company name. It costs us almost nothing. Seventy-five percent of the time we get compliance, because most people have no clue about trademark laws and don’t want to be involved in any litigation. I doubt we even bother to follow up on the other 25% unless it’s clear that someone is trying to trade on our goodwill, which does happen from time to time. In summary, that’s definitely not the dumbest letter I’ve ever seen. That said, spend any amount of time in trademarks and you’d probably want to throw yourself off a tall building. Just my opinion, though. People’s experiences vary.

    • Perhaps I have been fortunate that I haven’t seen dumber. However, I do practice trademark law and teach trademark law — and I have not yet had any suicidal thoughts. I’ll look out for the warning signs though!

      • Jay says:

        Well, yeah, the profession doesn’t particularly suit me, I must admit. I was being somewhat facetious — hope you didn’t think I meant it literally. And I fell into this somewhat late in life. It is likely that if I had started out in IP as a young kid that I might have a different viewpoint about my current career. I am good at what I do, but I have no love for it. If I could find something to be passionate about — anything — I’m certain that those beautiful, tall buildings dotted about London wouldn’t capture my imagination so.

        To be fair, I started out in private practice and switched to industry, which is much better for me. I suppose the best part of my day is taking the time to sincerely thank our attorneys for jobs well done. Because when I worked in private practice, that rarely happened. I like to think they appreciate it. I would.

        But you know, I’ve digressed. What I wanted to say was that there is far more bullying within the legal profession than there is with firms and companies bullying hapless bloggers and the like. I think that’s what makes me unhappy with the profession. Not so much the work, but that people can be real assholes to their colleagues and support staff. I dunno … I suppose it’s a tradition or something, at least in England. I’ve never experienced anything like this in the States.

  5. Venkat says:

    awesome line:

    Personally, I would have never affixed my signature to this piece of dung.

    Such a great line.

  6. Christopher Harbin says:

    Smokey, this is not ‘Nam. This is bowling. There are rules.

  7. […] 15, 2009 by Nero This is the type of thing we taxpayers are supporting vis-a-vis the […]

  8. […] business practices. Media attorney Marc Randazza sums up the absurdity of the Goldman Sachs claims here; but a major point to be made is that the Florida blogger in this case is digging in his heels and […]

  9. […] Sachs Tries To Bully Blogger” [Marc Randazza, Cit Media Law and Legal Satyricon; Ron Coleman, Likelihood of Confusion; Brian Baxter, American Lawyer; Martin Schwimmer, Trademark […]

  10. khoustello says:

    This case has been avidly followed here in the U.K,and I see has won.However when Lehman Bros. went down the well deserved Swanee,this was to the advantage of Sacks of Money.Its heads they win and tails the same-we lose!

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