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Back in 2010, we discussed that the at-the-time “spin class” craze in the fitness world was encountering the fact that one company, Mad Dogg Athletics, held a trademark on the term “spinning” for use in the fitness industry. Mad Dogg had taken to going around the world and threatening anyone else using the term with trademark infringement as a result. And, to be clear, they had a lot of targets for these threats, which factored into the argument that term was now generic and hadn’t been properly enforced as a trademark for years.

Since 2010, the spin class craze has morphed out of the brick and mortar gym and into home fitness, with the current fad being app-driven home stationary spin bikes. The leader in that field is, of course, Peloton. Mad Dogg sued Peloton for trademark infringement last year over patents it holds for core features of its bikes. In what may be something of a clap back in that dispute, however, Peloton has now petitioned to have Mad Dogg’s “spinning” trademark canceled entirely.

Peloton claimed that rival fitness company Mad Dogg Athletics is “abusively enforcing” its trademark rights of ‘Spinning’ and ‘Spin’ across the indoor biking industry in a petition filed to the US Patent and Trademark Office’s Trademark Trial and Appeal Board (USPTO) yesterday.

The petition argued that the terms are generic and that Mad Dogg’s lawyers have been ceaseless in their campaign to chase down infringers. It also cites John Baudhuin, co-founder of Mad Dogg, admitting to spending “hundreds of thousands of dollars a year” on litigation.

This is Peloton calling out the game, which is very useful. Rather than focusing primarily on the business of selling spin bikes, Mad Dogg instead seems to be focused on policing its trademark. The argument that the term “spinning” has become generic is only bolstered by the high volume of victims of Mad Dogg’s bullying. In addition, it would be interesting to see Mad Dogg attempt to come up with any evidence that the wider public currently associates the term with its products, because that feels like it would be a stretch to say the least.

Peloton’s petition calls out the extremes to which Mad Dogg has gone in its bullying.

“Enough is enough. It is time to put a stop to Mad Dogg’s tactic of profiting by threatening competitors, marketplaces and even journalists with enforcement of generic trademarks.”

Imagine the instant good the USPTO could do simply by invalidating a trademark for what has become a generic term in the fitness industry.

Peloton Seeks To Invalidate ‘Spinning’ Trademark Held By Trademark Bully

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Appeals Court Says Handing Out A Free Sample Of Drugs Isn’t A ‘Conspiracy’
Appeals Court Affirms $1.5 Million Restitution Judgment Against Paul Hansmeier

After three years of more or less doing nothing, Jay Clayton was unusually busy in his last few months as Securities and Exchange Commission chairman. A cynic might suggest that, having failed to get the promotion and transfer he sought within government, he ought to use his position to butter up potential future clients and employers with an orgy of ill-advised deregulation and slaps on the wrist. Well, Clayton has gone to his reward, and it’s this: Making sure there are no future headlines about anyone at Apollo Global Management relying too heavily on sex criminals for tax advice.

Gordon Caplan will, eventually, be allowed to practice law again. The onetime co-managing partner at Willkie Farr found himself caught in the “Varsity Blues” college admissions scandal, eventually pleading guilty to paying $75,000 to “college coaches” turned government cooperating witnesses in a scheme to have a professional alter his daughter’s answers on the ACT in order to get her a higher score. He was sentenced by U.S. District Judge Indira Talwani to one month of jail time. But he knew that, even after serving his time, there were still potential consequences for his blind ambition that had become focused on his daughter’s college admission. His license to practice law was suspended on an interim basis, and the fight to stop disbarment, the so-called death penalty of the legal profession, was on.

Yesterday, Caplan learned he’d avoided disbarment. As reported by Law.com, Caplan instead received a two-year suspension, retroactive to his November 2019 interim suspension:

On Thursday, the First Department released an extensive opinion laying out the history of Caplan’s wrongdoing along with numerous factors that “mitigated” in his favor. The court wrote that “a two-year suspension retroactive to [Caplan’s] 2019 [interim] suspension [from practicing law in New York] properly balances [Caplan’s] criminal conduct with the substantial evidence in mitigation, the protection of the public, maintaining the honor and integrity of the profession and as a deterrence to others from committing similar misconduct.”

In making this call, the opinion lasered in on Caplan’s remorse, charitable work, the high esteem his legal career was held in (before the scandal broke), and the unlikely chance of a repeat offense:

“The Referee noted that the record itself showed that respondent’s [Caplan’s] criminal actions were ‘out of character with his professional life and his desire to make amends,’” the First Department panel of justices wrote in their decision.

Caplan “presented his pre-sentencing memorandum with some 70 letters of support from, among others, family, friends, former colleagues and Greenwich[, Connecticut] policemen, all of which showed ‘the breadth and depth of Caplan’s extensive pro bono activities, his help to others in need, his millions of dollars in financial contributions and hours of personal service to Fordham Law School and Cornell University and his numerous acts of generosity and kindness throughout his career,’” the justices also wrote while in part quoting the referee.

“At the [referee’s] hearing, the former Chairman of [Willkie] where [Caplan] worked testified that, inter alia, he had worked with respondent for nearly 20 years and knew him quite well due to their management positions, and there was ‘universal respect and affection’ for him,” the justices further wrote.

The former Willkie chairman, who was not named in the opinion, “explained that anybody who knows [Caplan] saw his misconduct as ‘a real aberration, understood by everyone to be an act of zealousness and protectiveness for his daughter. But it doesn’t change anybody’s views who know him as to his reputation,’” they wrote.

Also of interest is a quote from Caplan, made during the criminal case, in the ethics opinion. While still taking responsibility for his actions, Caplan notes the role Biglaw may have played in his actions:

“This was hubris. It was arrogant. It was about me, not about my child. That took a lot of self-realization. It was deep insecurity, I think. I frankly think a lot of people in my former [legal] profession have this notion of having to prove yourself all the time. It overwhelmed me and it destroyed my life. I destroyed my life.”

So let that be a warning to others out there — don’t let the culture of the legal profession lead you down a path that could destroy your life.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

* Prosecutors are allegedly expected to file federal weapons and drug charges against a former member of the band Panic! At The Disco. Bet he’s hoping to be “victorious“… [Court TV]

* Court filings allege that Facebook knowingly provided less accurate data about the reach of potential advertisements on the platform. [NBC News]

* Former wrestlers are asking the Supreme Court to hear a case they filed against the WWE. Would be interesting if the justices ordered them to resolve their issues in the ring… [New York Post]

* A former Georgia attorney is facing felony charges for wiring money from a title company to his personal account. [CBS News]

* Michael Avenatti and Michael Cohen are apparently feuding. They should know how to settle their dispute in the yard… [Daily Beast]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected in Lex Machina’s Law Firms Activity Report, how many cases did the DOJ defend in federal court last year when excluding multidistrict litigation associated cases?

Hint: That’s in addition to the ~9,000 cases the DOJ filed on behalf of plaintiffs.

See the answer on the next page.

Some people thought that the pandemic would put the brakes on litigation, but that hasn’t really been the case. Even though most trials are in abeyance, filings continue, as do demand letters.

As I noted last week, several public interest law firms here in Los Angeles have sued the Los Angeles Superior Court for continuing with eviction hearings and traffic matters despite the pandemic. The lawsuit claims that the burden of these matters falls squarely on those already burdened with pandemic effects: those who are considered essential workers, those who live in close quarters with others, those who may not have computers or internet access, and those who have little time or money to respond to these filings. Will a judge of Los Angeles Superior Court preside over this lawsuit or will it be transferred to another county? To be determined.

The litigation machine keeps churning, as witness these recent demands and filings:

The State Bar of California, along with the Chair of the Committee of Bar Examiners, and the CEO of Exam Soft, recently received a demand letter from the Lawyers’ Committee for Civil Rights Under Law, objecting to the planned use of facial recognition technology in the February 2021 bar examination. The bar exam is next week. The letter, dated February 10, 2021, wanted a response from the recipients by February 16, 2021.

The Committee says it will be “forced to take legal action” if use of the facial recognition technology is not discontinued for the February bar.

The issue of facial recognition technology is a huge one that bar examiners have yet to come to grips with: how to fix the snafu so that women and people of color are not disadvantaged by the technology.

The State Bar timely responded to the letter, saying, in essence, “thank you for sharing,” but it’s not ditching the technology for the February exam because there’s insufficient proof of discrimination in its use. Next steps are anyone’s guess.

Here in Pasadena, the Tournament of Roses (Rose Parade, Rose Bowl Game) is suing the city of Pasadena over who owns the rights to use the terms Rose Parade and Rose Bowl Game and swag related to the events, among other things.

The “TofR,” as we Pasadenans call it, is alleging trademark infringement, breach of contract, and unfair competition. The city is hemorrhaging money because of the pandemic, ditto the TofR, so isn’t there any way to resolve this dispute or effect a compromise of some sorts without spending gazillions of dollars in legal fees?

And, of course, once in litigation, ESI (electronically stored information) can make or break the case. ESI, which didn’t even exist two decades ago, has evolved into a subset of litigation on its own, an industry of ballooning portions that can dwarf the litigation itself. Any opinion about ESI that has a table of contents (!) and runs 75 pages deserves to be read, despite its length, for its guidance not just on ESI but sanctions as well and witness credibility.

Part of the introduction from the Northern District of Illinois opinion is worth a read here:

“Snakebit”—That’s how a former defense counsel described this case. But “snakebit” connotes the unfortunate circumstances that befall unsuspecting victims. That didn’t happen here. Instead, through a series of missteps, misdeeds, and Case: 3:12-cv-50324 Document #: 439 Filed: 01/19/21 Page 4 of 75 PageID #: 5 misrepresentations, Defendants and the former defense counsel find themselves looking down the barrel of a sanctions motion Howitzer. If any entity has been snakebit, it’s this Court. This case has taught this Court that — like Boxer the Horse in Animal Farm — it cannot solve all problems by just working harder. No matter how hard this Court tried to move this case to a just, speedy, and inexpensive determination, it was thwarted.

Ouch. A foreshadowing of what’s to come in the opinion? You think?

The case was filed in 2012 when some newbies were not even in practice yet, let alone in law school. Think of all the events in your life (and the lives of others) that have taken place since the filing of this case.

Every litigator, whether new or seasoned (is that a code word for old?) needs to read this opinion. It’s a roadmap for what to do and what not to do. Fifteen years or so after ESI burst on the horizon, this court thinks that more than enough time has passed for lawyers to understand what ESI is and what they should be doing to comply. What about litigation holds? Finding out who is in possession of ESI responsive to the discovery requests and how to retrieve it? Who has what ESI? Email searches? Online searches? Voice mail records? Texts? Social media accounts? How to collect it? How to preserve it? How to produce it? Some firms have discovery attorneys, who manage the ESI discovery process.

ESI is a giant headache, comparable to those irritating and demanding clients that you wish would go elsewhere, but it’s something that we must know how to handle, and our rules require that we either understand it sufficiently ourselves or hire people to help us to avoid potential malpractice liability. Screwing up on ESI is nothing at all like the “dog ate my homework,” especially when it comes to sanctions, such as those ordered by the trial judge who has had this case since 2014. The opinion is one gigantic benchslap. We should all take heed.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

Quarantine hasn’t been the most productive time for a lot of us, so it’s okay if you read this story with a lot of green side eye. It seems Harvard Law School 2L Logan E. Brown wasn’t content with just plugging along at the ultra elite law school during COVID. In addition to, you know, just surviving during the pandemic (WHICH IS AN ACCOMPLISHMENT AND I’M PROUD OF YOU FOR DOING WHATEVER YOU NEED TO DO TO GET THROUGH THE DAY) and going to law school, Brown has also launched a clothing company.

Spencer Jane was born from Brown’s own frustrations trying to find the perfect interview-wear. She says, “I needed a suit for my law school’s career fair. After multiple Ubers across town and exasperated texts to my mother asking if it looked like something fit, I found nothing. I wanted something that made me feel confident, comfortable in my own skin, and ready to be myself in an interview.” Brown launched the brand after cross-enrolling in a Harvard Business School class and working with the Harvard Innovation Labs.

As reported by the Harvard Crimson:

Brown said she was inspired to create the company when she was a first-year student at the Law School and experienced the difficulty of finding comfortable professional clothing for interviews.

“I wanted something that would last me well into the beginning of my legal career and also made me feel good,” she said. “I was going to all sorts of malls all over Boston.”

When she texted her friends to ask where they all tended to purchase their professional attire, Brown said she identified a dearth of clothing options for women in their position.

“That’s when I realized that this was a common frustration,” Brown said. “There are plenty of places that sell pantsuits, but none that really made what I was looking for. And so that was the original idea — or where the original frustration for Spencer Jane came from.”

From there, Brown created a survey asking folks about pantsuit shopping essentials, with the goal of using the intel for her Business School course. And, well, Brown just decided she could fix the problem she and others had identified with the interview-wear market:

“As I was getting all of this information and talking to more and more people, I decided that I was going to actually just fix the problem,” she said. “That’s whenever I had the idea to create Spencer Jane, and create a pantsuit based off of all of the survey data that I had collected.”

And because she’s doing all this while living through the pandemic, Spencer Jane’s featured offering is the The Ultimate Work-From-Home Blazer. It combines wearability with professionalism and is designed to “seamlessly transition from a Zoom meeting to an in-person boardroom and whatever else you’re up to.” It is available for pre-order in sizes XS-4XL.

And because this pandemic just. won’t. quit., they’re also offering a Quarantine Capsule Collection, with their blazer, sweatpants, and a mask. How perfectly 2021.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

(Abigail Hall, a senior at Howard University, in a viral tweet about her acceptance to Harvard Law School. Hall is a first-generation American citizen and her tweet has been liked more than 968.3K times as of this writing. Hall was also accepted by the following law schools: Columbia Law School, University of Pennsylvania Carey Law School, Georgetown University Law Center, Cornell Law School, University of Chicago, Law School, University of Virginia School of Law, Vanderbilt Law School, Duke Law School, Notre Dame Law School, The George Washington University Law School, Emory Law School, Howard University School of Law, Temple University–James E. Beasley School of Law, University of Miami School of Law, Fordham University School of Law, and Tulane University Law School. Hall recently announced that she will be attending Harvard Law School.)

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

In his 2018 campaign, South Dakota Attorney General Jason Ravnsborg promised “TOUGH JUSTICE.” Apparently some terms and conditions apply in South Dakota as prosecutors pegged Ravnsborg with three misdemeanor charges for “using a mobile electronic device, illegal lane change and careless driving.”

Back in September, Ravnsborg attended an in-person event at Rooster’s Bar and Grill to raffle off an engraved Trump handgun. That an elected official from a state, second only to North Dakota in COVID cases per capita, would attend a superspreader event to pawn off Trump hand cannons raised a number of questions about his judgment in the first place, but leaving the event — where alcohol was definitely available — and then striking and killing a man in a hit and run that he later claimed he didn’t report because he thought it was a deer, should give everyone pause. Thankfully for Ravnsborg, South Dakota prosecutors uncharacteristically buried any hint of skepticism and apparently just took him at his word that he wasn’t lying to law enforcement, wasn’t drunk, and wasn’t deserving of an aggravated charge given his past driving infractions.

A reminder that Sandra Bland was killed over an illegal lane change and prosecutors decided that wasn’t worth charging her killer, but for Ravnsborg, the misdemeanor is unlikely to be a death penalty offense.

While many expected that prosecutors would retreat from their “law and order” rhetoric to give Ravnsborg a slap on the wrist as a political backpatting exercise, the decision to announce charges that Ravnsborg engaged in behavior that could form the basis of a vehicular manslaughter charge and just… left off the last part is insane. What’s the theory of the case? There were no witnesses, so the argument is that his careless lane change while distracted by an electronic device actually caused a man’s death. It’s hard to get to the predicate acts without at least taking the manslaughter charge to a jury.

The criminal justice system doesn’t make a lot of sense without consistency. And yet here we are.

BREAKING: South Dakota Attorney General Jason Ravnsborg facing three misdemeanors in connection with deadly crash [KELOLAND News]

Earlier: State Attorney General Told Officers He’d Hit A Deer… In Reality, A Man Is Now Dead

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.