Archive for December 2006

Universal Advertising, Inc. – Project Fal$e Hope$

December 27, 2006

The Federal Trade Commission and the U.S. Department of Justice have filed suit against a Centerville, Utah company (Universal Advertising, Inc.) accusing the company of making false claims to entice franchisees to buy into the business.

The company has apparently used language such as: “Immediate Cash Flow! Incredible Return on Investment! The Perfect Home Based Business!” in its marketing to convince others to buy in.

The suit alleges Universal has violated the Franchise Rule that requires franchisers to have a reasonable basis for earnings claims, to provide complete and accurate financial information to potential buyers and to disclose the number of prior purchasers who achieved the same or better results as touted in promotional material.

The franchise (Universal) provides, for a minimum of $3,995, a display rack to the franchisee, which holds business cards and pamphlets.  The franchisee then finds suitable areas (such as restaurants, hair salons, etc.) to place the display racks. The franchisee then charges rent to businesses to display the business cards and brochures within the display rack.

Unclear in this article is why people actually believed they needed to pay Universal $3,995 for a display rack they certainly could have found at Wal-Mart for $100.

The FTC has labled this crackdown on home-based businesses “Project Fal$e Hope$.”

http://www.sltrib.com/ci_4898082

Magistrate Judge David Nuffer – Motion to Amend granted; Motion to Implead granted

December 27, 2006

PHILLIP M. ADAMS & ASSOCIATES, L.L.C., a Utah Limited Liability Company, Plaintiff, v. DELL, INC., FUJITSU LIMITED, FUJITSU COMPUTER SYSTEMS CORP., MPC COMPUTERS, LLC, AND SONY ELECTRONICS INC., Defendants.

Civil No. 1:05-CV-64 TS

United States District Court for the District of Utah, Northern Division

2006 U.S. Dist. LEXIS 92658

December 21, 2006

Magistrate Judge David Nuffer

Plaintiff Phillip M. Adams & Associates, L.L.C. alleges the Defendants have infringed on three of its patents related to errors in floppy disk controllers. Plaintiff alleges the infringement occurs in several specified models of Defendants’ computers. Defendants deny the allegations and claim the patents are invalid.

 

Plaintiff seeks to amend its amended complaint, charging defendants with infringement of two additional patents, and states: “the proposed addition of two patents that cover the same subject matter as the patents-in-suit would simply not expand this litigation to any significant degree.”  Further, Sony seeks to implead six third-party defendants; and one of those prospective third-party defendants seeks to intervene.

 

Magistrate Judge Nuffer granted the Plaintiff’s Motion to Amend and granted Sony’s Motion to Implead Third Parties (for all six of the third-parties).  The Motion to Intervene filed by the prospective third-party was held moot (since they were brought in through the Motion to Implead).

 

There will soon be a hundred lawyers working on this case. 

Judge J. Thomas Greene – United States v. Steven C. Ward

December 21, 2006

United States v. Steven C. Ward

Judge J. Thomas Greene 

December 20, 2006

A former West Valley City detective who faced up to five years in prison for importing small amounts of anabolic steroids was sentenced Wednesday to 12 months probation. 

Judge Greene could have sentenced Ward to up to five years in prison and ordered fines totaling $5,000. He ordered neither, opting to put Ward on probation for 12 months. Ward will be required to report to a probation officer once a month but will not be required to take random drug tests.

http://www.sltrib.com/news/ci_4877697

Judge Ted Stewart – Motion for Summary Judgment granted in part, denied in part

December 19, 2006

JEWELERS MUTUAL INSURANCE, Plaintiff, vs. MILNE JEWELRY COMPANY and IRVIN W. MILNE, Defendants.

Case No. 2:06-CV-243 TS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2006 U.S. Dist. LEXIS 90551

December 14, 2006

Judge Ted Stewart

In an underlying action, Defendants are being sued under the Indian Arts and Crafts Enforcement Acts of 1990 and 2000 (I didn’t realize there were such Acts). 

In the underlying action, it is alleged that Defendants advertised, displayed, and sold crafts and jewelry, through their website, falsely claiming the items to be of Native American origin. Defendants now move for summary judgment on the issue of Plaintiff’s duties to defend and indemnify.  Plaintiff opposes Defendants’ motion and also moves for summary judgement, asserting that the claims in the underlying action do not fall within its policy’s coverage.

Defendants’ Motion for Summary Judgment was granted on the issue of Plaintiff’s duty to defend in the underlying action but denied as to claims which seek injunctive relief and punitive damages.

Plaintiff’s Cross Motion for Summary Judgment was granted in that Plaintiff has no duty to defend claims in the underlying action which seek injunctive relief or punitive damages. Plaintiff’s Cross Motion was denied as to all other grounds.

Judge Paul G. Cassell – Navajo Nation v. LDS Family Services – Motion to Dismiss Granted

December 18, 2006

NAVAJO NATION, Plaintiff, vs. LDS FAMILY SERVICES, Defendant.

Case No. 2:06cv00909

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2006 U.S. Dist. LEXIS 89913

December 12, 2006

During her pregnancy, Sarah Ashley Ziska contacted LDS Family Services about possibly placing her unborn child for adoption. Ms. Ziska eventually informed Family Services the probable father of her unborn child was of Navajo ancestry. Because no one had registered with the Utah Putative Father Registry with regard to Ms. Ziska’s unborn child, Family Services proceeded with the adoption process.

On February 14, 2005, Ms. Ziska gave birth to a baby girl. On February 25, 2005, Ms. Ziska voluntarily relinquished her parental rights to the child in front of a Utah state court judge. The Utah state courts have continued to preside over the adoption proceedings.  

In this case, the Navajo Nation challenges the adoption procedures used by LDS Family Services. Specifically, the Navajo Nation requested the court to determine if the federal Indian Child and Welfare Act applies when a natural Native American father is unable to establish his paternity under state law, and if it creates a private right of action for the Navajo Nation.

The Court ruled that the Navajo Nation did not demonstrate the state court proceeding provided an inadequate forum to hear the claims raised in its petition. The court, therefore, held that it is necessary to abstain from this matter.

LDS Family Services’ Motion to Dismiss granted.

United States v. John and Susan Ross

December 13, 2006

As previously reported, the Rosses are charged with 47 counts of fraud, theft, money laundering and copyright infringement.

Magistrate Brooke Wells disqualified the Rosses’ attorney (Paul Gotay) for conflicts of interest.  Judge Wells named three conflicts that she said called for disqualification:
   * The Rosses need separate attorneys to represent their individual interests.
   * Gotay gave advice to witnesses who testified before a grand jury that indicted the couple.
   * Gotay himself could be called as a witness because he was involved in a financial transaction with the Rosses.

Gotay has 10 days to appeal the ruling to U.S. District Judge Dee Benson, who is assigned to the fraud case. 

A previously-threatened Motion to Recuse (Magistrate Judge Wells) has not been filed. 

The E-Wave

December 13, 2006

The November/December E-Newsletter for Efilers has just been posted.  This is a publication put together by the Clerk’s Office at the District of Utah to assist practitioners use the now required electronic filing system.