Thursday, September 30, 2010

Walter Kiernan on "Federal Judges Put Citizens in Jeopardy"

Federal Judges Put Citizens in Jeopardy of Unjust Search and Seizure with New York Verdict Citing an abuse of trademark enforcement and Constitutional search and seizure rights, New York land developer Walter Kiernan seeks to stop intimidating and threatening intellectual property lawyers and the judges who support them.

A lawsuit filed this spring by Walter Kiernan, a Long Island, New York, businessman, alleges well known luxury brand Hermes International of Paris initiated a lawsuit which led to malicious prosecution, abuse of process and several constitutionally-based claims relating to the execution of an ex-parte search and seizure warrant in Kiernan s home in July 2006.

TheWalter Kiernan suit was filed in the United States District Court for The Eastern District of New York (ED NY) and stems from a lawsuit filed by Hermes against Kiernan and his wife in ED NY in July 2006 alleging trademark infringement and related claims.

The Walter Kiernan complaint names as defendants the law firm Greenberg Traurig (GT), several Greenberg Traurig attorneys, the Village of Freeport, New York, Village police officers, the George Arnold Investigating firm and two private investigators.

The ex-parte raid of Kiernan's vacant home was carried out while he was on vacation with his family. The Greenberg Traurig attorneys gained entry while the town police waited outside and spent several hours in his home, grossly exceeding the scope of the court's order. Additionally, Mr. Kiernan, who is the owner of a construction business, was named in the lawsuit despite the fact he had no involvement with his wife's business. Mr. Kiernan was later dropped from Hermes's lawsuit.

Kiernan's suit is in response to the overly aggressive and bullying tactics of Greenberg Traurig intellectual property attorneys on behalf oGreenberg Traurig's f their clients. In 2006, Harley I. Lewin, a well-known trademark attorney, was the chair of Trademarks and Global Brand Strategies Practice.

The methods and tactics that Lewin employed while enforcing GT's clients trademark rights are colorfully chronicled in the March 2007 New Yorker magazine feature appropriately titled Bag Man, which begins with a quote from Lewin that says, what we do has been well-honed over the years. The article goes on to outline Lewin's familiarity with tactics that are intended to threaten and intimidate.

Don't tell anyone we've been here. If you do, if you keep lying to me, I 'll come back and I ll be your worst nightmare come true, Lewin is quoted as saying to a business owner during a raid in Georgia. This will stay between you and me if you behave yourself, and you better start putting together some money because I 'm gonna want some money from you!

The New Yorker feature also outlines Lewin s practice of picking out his targets based on their net worth; the trick was to figure out who had assets worth going after. Harley had his investigators tracking down addresses and looking at zip codes.

Kiernan says he believes Lewin's targeting strategy is precisely why he was named in the lawsuit in the first place.

I've been running a construction business for twenty-five years and had no involvement with my wife's business, says Kiernan. Yet somehow, I'm named in the lawsuit against my wife. I was kept in it because I was the one with the deep pockets.

The abusive conduct of Greenberg Traurig intellectual property (IP) attorneys against Kiernan and others coincides with an aggressive push by Greenberg Traurig to move to the top of the trademark litigation rankings.

A September 2006 IP Law 360 Survey states, "Greenberg Traurig LLP blew away the competition this past year as the most frequently hired firm when it came to trademark litigation. Our survey showed that Greenberg Traurig's 1,500 attorneys handled 149 new trademark cases over that time period; more than twice as many as its closest competitor."

Kiernan contends that the no-notice, ex-parte lawsuit filed against him violates not only the spirit of the law, but the equitable principles of justice and fairness as well.

"An ex-parte proceeding under the Lanham Act was clearly not enacted to be applied against housewives, homeowners and legitimate businesses, says Kiernan. It was enacted to pin down fly-by-night vendors and operations with no fixed address. It is an extraordinary thing for a court to set aside one's right to due process, particularly in a civil matter.

Kiernan decided to fight back against what he calls 'abusive trademark enforcement so others may not have to experience what he has over the last several years. If ex-parte communications between judges, individuals, attorneys, etc., is illegal, but raids on vacant homes aren't, then he wonders if anyone in America is safe.

I think this kind of conduct has a lot more to do with filing lawsuits to rack up funds and to highlight Greenberg Traurig intellectual property practice than it does with looking out for their client's best interest, says Kiernan.

Walter Kiernan
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