Oral argument — Cochran Firm, P.C. v. Cochran Firm Los Angeles LLP

Good morning, Richard Wirtz for the Cochran Firm, P.C. This case has taken many rabbit trails from the very beginning. There's been RICO claims that have been dismissed, there was a recusal of the second judge, and then most recently this appeal was coupled with a motion by sanctions from defense. But I'm here to tell you that I think we can keep this matter simple, I hope. I believe the dispositive issue here is the bad intent element of the unclean hands defense. The reason that that is dispositive is because Mr. McMurray had the burden of proof for that element, and the trial court didn't consider it. You could not have found a bad... Can I ask you a question? Yes. Is Johnny Cochran's, or any of his survivors, do they benefit? Yes, Your Honor. Yes, they are actually the heirs to the name which has now been licensed, and the trademark has been re-registered to the Cochran Firm, P.C., and there are royalties paid back to the heirs of Johnny Cochran. And who are they? I believe it is his wife and his daughter. And their names? I don't have that at the tip of my tongue, sorry, Your Honor. But the reason they could, the trial court could not have found the bad intent element, which of course arises out of the the the Avcar leasing case, which says that's the second element, is because the Cochran Firm, P.C., has always held itself out as what it is. In fact, in 2005, a National Law Journal article, which is in the record at 2632 to 35, there's actually two articles there, they identify themselves as a regional firm or a legal enterprise, and that they're similar to a corporate firm in that they have these components of accounting and HR and marketing. And so under the Avcar case, even if we were grossly, we being the Cochran Firm, P.C., was grossly negligent in presenting itself out to the public, that's not enough. They have had to have intended to deceive the consumer. And what's missing here is evidence of the deception. Mr. McMurray had the burden to produce that evidence. That evidence could have been a survey. There was no survey performed. But you argue that... Johnny Cochran is gone. Yes, he is. So when you have his name there... Well, that's the trademark. When you have his name there, you're sort of telling the public that he's still around. It's no different that when a partner of a firm passes away, and the firm and the goodwill with that partner's name continues to go on. Okay, does the letterhead show that Johnny Cochran... I've seen those letterheads, that Johnny Cochran passed away. Does that show that? I believe that in the letterhead there's something that references Johnny Cochran, but I'm not certain of that. So you're the plaintiff and the counter-defendant there, too? I'm the plaintiff and the counter-defendant. We filed the case to enforce the trademark against a rogue partner, Mr. McMurray, who himself, and the irony here is he himself was trying to go out and market on the goodwill of the Cochran firm trademark. But now, I thought you argued... Well, that's what lawyers do today. You know, they advertise. Well, but they can't advertise using a brand name. They set up these lists of the most famous 100 lawyers in America. I understand, but we don't... They buy ads in these magazines. And we dealt with that on the first appeal, where you permitted Mr. McMurray to say in his resume that he belonged to the Cochran firm. We don't have an issue with that. Because the initial injunction that it was determined to be over-broad. But now, I just got confused on what you said about surveys, because I thought you argued that the district court erred by refusing to require McMurray to provide consumer survey evidence in order to prove consumer confusion regarding plaintiff's advertising. But the Seventh Circuit has held that a full-blown consumer surveys are not necessary to prove actual consumer confusion at the preliminary injunction stage. So, why should we hold otherwise here? Well, this is different, because this is the unclean hands defense. And since he has the burden, we suggest that in order to show how you are deceiving, perhaps a survey of consumers saying, what did you think was going on, what type of firm did you think this was, would have been some evidence. Well, okay. So, but in order to prevail on his unclean hands defense, McMurray must show that the plaintiff's marketing is inequitable and that the offense of marketing has an immediate and necessary relation to the equity that the plaintiff seeks. Have you conceded that plaintiff's marketing of itself as a, quote-unquote, national and a single law firm meets the immediate and necessary relation requirement? Well, there's a premise in your question that we're marketing as a single law firm. We are not marketing as a single law firm. Yes, we are marketing as a national firm. And, in fact, Mr. McMurray has, while he was an active participant in the firm, held himself out as part of a nationwide firm. The articles that I referenced, there's two of them from the National Law Journal, which are now being republished and reprinted, indicate that we are a collection of regional offices and that we are like a corporate firm. This is a new, this is sort of a new plaintiff's paradigm for a firm. And what we haven't done is we haven't talked about what the definition is of a national firm. There isn't one. The defendant's expert, Ms. Peck, on cross-examination at the evidentiary hearing, said, no, there is no such term as a national law firm. Nor is there a term as a single firm. There are definitions for law firms, and those definitions have been met, sharing of profits, expenses, and liabilities. That's what the evidentiary hearing was about. But instead, the trial court decided to move away from that and came up with seven elements of what a national firm is or a law firm is. And I don't see that anywhere in what was provided. It wasn't provided by us. It wasn't provided by defense counsel. It was made up. Had we known what those elements were, we could have refocused our direction at the evidentiary hearing or we could have had an additional evidentiary hearing where we could try to meet those standards if those, in fact, are the standards. Are you arguing for a remand, then? I don't think a remand is required. I think if you focus on the bad intent element, we can just reverse this on a de novo basis because there is no way to prove that there is a bad intent when we are marketing ourselves as a national firm. We're not intending to deceive anyone. We are intending to tell any customer that comes to the firm, we are the same firm with the same standards that Johnny Cochran had and that the partnerships that are existing throughout the country have all been vetted by Johnny Cochran. All those relationships are leftover relationships. So you're arguing for a reversal, which would then put the amended preliminary junction back in place. That's correct. But then you're also are, there's a sanctions situation here. And if you're asking us to deny sanctions, but I'm wondering why that shouldn't be done without prejudice to Mr. McMurray seeking sanctions in the district court for the conduct by plaintiff's attorney that led to Judge O'Connell's recusal. That still hasn't really been resolved. Okay. There's nothing that we did with regard to Judge O'Connell. What happened in that situation was we. Well, but that hasn't been determined yet, right? It hasn't been determined. So why doesn't the district court take the first stab at that? Well, that'd be fine. I mean, as long as we, if there's somebody ruling on that. But my understanding of the motions for sanctions is that this appeal is frivolous. And it's not frivolous. And I don't think we need to go back to the recusal. The recusal is one of those rabbit trails that has happened in this case. The defense counsel knew at the time we were at the evidentiary hearing. Well, I could imagine I wouldn't have been very happy to be put in that position that you put Judge O'Connell. I didn't. We didn't put her in any position. There was no. I mean, she's trapped up there, and then someone starts talking about the whole national firm thing, and they've got that case in front of her, right? No, that's not what happened. There was a two-day trial. The defense counsel put a cross-examination of our expert witness on, and then we put our rebuttal experts on for the next day and a half. No, but the recusal came about because of a separate event, did it not? No, the recusal came about because the Cochran firm apparently had some associate on a panel with Judge O'Connell, which nobody knew about. The defense counsel knew about it and had it in her pocket the whole time. She waited for the evidentiary hearing to go completely sideways for her, and then within a day or two after that, she files this motion for recusal. There was no reason to even have the evidentiary hearing if that was the case. We weren't aware of it. Nobody recalled it ever happening. Judge O'Connell didn't remember. It didn't come to mind for her. She sat through two days of testimony. I think this is a rabbit trail. This is a red herring. And to base a motion for sanctions on that, I think it's, you know, we didn't do a Rule 11, but we considered it because that's how frivolous we think this is. The fact that we are now on our third judge on this case in federal court, I've never heard of such a thing. And we keep trying to move forward, and we keep getting all these crazy motions. We got pleadings for RICO, but that's beside the point. Today we're here because on our appeal, the appeal is to decide whether or not, one, that bad intent was proven. If they didn't prove bad intent, which they didn't, then that requires a reversal. Also, we could go through the elements of defining what a national firm is because I don't think there's any case law on that. There's ABA rules. There's professional rules of conduct that talk about it. You can draw corollaries to whether it's a hindsight-looking type of definition where if two people, two lawyers are out there practicing together, but they're separate firms. But how could anything here, like, be binding on anywhere else? This is the Ninth Circuit, right? It is the Ninth Circuit. So then in some places you could, I mean, how could that be binding anywhere else? It wouldn't be. Technically, I think it's binding in California because it's a California dispute. It might be binding in the Ninth Circuit. It would be binding in the Ninth Circuit. But what if the California Supreme Court said we were all wrong and California law is the basis? They're not. It would be binding on this case and if you're in federal court. That is the conundrum created by what the district court did. But I think we avoid that conundrum by addressing the unclean hands defense and the elements of that. And those elements are that there was some type of bad act and that we intended to deceive. And then secondarily, in equity, you also have to measure whether or not the person claiming it did any bad acts. And in this case, we have Mr. McMurray holding himself out while an active participant as part of a national firm. And secondarily, he wants to go ahead and market to the goodwill of the Cochran firm name. So it's sort of ironic, and I think the equities here require that it's just a simple reversal. We end this and we get to trial in January. You might want to save time because you have that all. I'd like to ask one question. As I read the record, though the district court's order never explicitly states its specific finding on bad intent, I don't think it ignored it. The district court acknowledged that it needed to assess the factor of bad intent and later wrote that McMurray had satisfied his burden, thus implying that McMurray had indeed demonstrated that the firm acted with bad intent. Moreover, it seems unlikely to me that the district court would acknowledge and address the required element of bad intent only to completely ignore this factor in its complete analysis. I don't think he addressed the bad intent with regard to the intentional act of the Cochran firm. I think he looked at whether or not he looked at the mandate to see whether or not the Cochran firm was somehow deceiving the public, the consumers, into thinking they were a single or traditional law firm, national law firm, which definition didn't exist. I don't think the court's order, if you look at it precisely, says that with regard to the second element in the Avcar case, that I find specifically an intent by the Cochran firm to go out and deceive public to some benefit. There is no benefit. They're law firms producing services in a very narrow market of civil rights and employment law, just with Johnny Cochran and crimes, defense crimes. That's the element that they're out there, and they're doing a great job. I think the reputation of the Cochran firm precedes it. It is prestigious. It's probably the most recognized law firm name in the nation to a consumer. I don't think there's anything that's better than that, and that's why the defense wants it. And what did the district court judge say? It cited the fact that the firm will often present itself as a single national firm, but when the entire entity is facing liability, it will claim it is not a connected law firm. An excerpt of Record 42, 43, 49, citing the attempt of Betty Jackson in holding the separate action. Again, although it could have been much more explicit in its analysis, the district court did address the firm's deception of the public. Well, again, I don't think it did. I think in that reference what's happening is it's actually identifying examples of how the Cochran firm is identifying itself as a collection of law firms and how those cases are being defended or how they were presented in each of those individual cases in each of those states is not dependent on the Cochran firm. They have, and one of the reasons why I don't think there's deception here, is the national firm requires a certain level of malpractice insurance. And once those claims are being made, malpractice insurance defense are assigned and they make strategic decisions on who is the right entity to pay for distribution of liability under the appropriate malpractice policy. In the old days, malpractice used to be an umbrella that covered the whole firm. When that became unaffordable, they went to this model where they could have each of the local firms have the malpractice insurance to better protect the consumer. There is so much here that can be presented that we weren't aware of how we were supposed to present it. One, because we didn't know we had the burden, which seems to have shifted, and we don't have the burden. And two, we didn't know what these elements were for the single traditional national law firm that Judge Gutierrez imposed on us in the order. And if you're not going to reverse, it definitely needs to be remanded so that we could address these things and present all the evidence that's necessary to undo some of these generalizations that were made. It seems to me that since you didn't have the opportunity to address these things, that if anything, remand would be more appropriate. I leave that to your great discretion, Your Honor. With that... Let me ask you this. What if we had two law firms here? One would be called the Cochran-Cherry-Givens PC, and the other would be called the Cochran-McMurray-Kendricks LLP, and each would have on their letterhead, Johnny Cochran, deceased. Put that in there. Why can't you live with that? We can't live with that because in California, you can only use the Cochran name if you are a successor, and the Kendricks-McMurray firm is a new firm of which has no relationship with Johnny Cochran. So that's probably the California ethics rules why. The second reason is the Cochran firm is a registered trademark. Did McMurray have a relationship with Johnny? He was a partner in name at the end of his relationship with the law firm. He was never an equity partner like Mr. Cherry, Mr. Givens, Mr. Sistrunk, Mr. Smith. And so for those reasons, his new entity isn't a successor. Everything's got so complicated in the law business. It has, and I'm trying to keep it simple. We're trying to establish that it will... Now we've got these law firms that have got, I don't know, 3,000, 4,000 lawyers. They're all over the place. They become sovereign entities after a while. And in this instance, each of the local offices... Lawyers without borders. Each of the local offices complies with each of the state's ethical rules, and it's actually a better paradigm than one large law firm because you can address the specifics of each state's requirements. Well... You can tell me if you want to. You don't have to, but... These funds that are paid over to the widow and the daughter, are they large amounts of money? Well, I don't know the specifics, but I can tell you that they're tied to the revenues produced by the firm, and on an annual basis that's a fluid amount. It's a royalty, and I can't recall off the top of my head what the royalty is. I can generally give you a range. It's probably somewhere between 5% and 15%, something like that. So it's definitely a great valuable asset for the estate and the heirs of the estate of Johnny Cochran. And that's why we are duty-bound by contract to protect the trademark as the national firm, and that's why it's set up the way it is because there was a lawsuit or a dispute in the beginning as to who owned the trademark, whether it went to the firm that Johnny was a part of or whether it went to the estate, and that was resolved with the system that's set up. And that system requires us to go out and defend and protect that mark, which is why we had to file the lawsuit, plain and simple, for enforcement of the infringement of the trademark to protect the asset that Johnny Cochran left behind for his family. Thank you. Unless you have other questions. Thank you. I'm Jana Hendricks. I represent Randy McMurray, and he is here in the courtroom today. You have to keep your voice up. Is that better, Your Honor? Better. Okay. I'm Jana Hendricks. I represent Randy McMurray and his professional corporation. He's happily, and he's here in the courtroom today. I did file a motion for sanctions for a reason because we are going second round of these proceedings. I was before Judge Pregerson, Judge Berzon, and we went through this whole notion of there is no definition of the national law firm. So is your sanctions that it's frivolous? It is frivolous because it's a second bite of something that's already been decided by this court. Val, I'm just going to tell you from my perspective, this is pretty complicated. So when it gets complicated, frivolous does not come to mind. Okay. Well, there are several counterparts of my motion. First of all, we have to, again, follow the standard, and the standard is abuse of discretion. And there was no de novo issue in this appeal. There is none. The intent, it's well known by this district, may be inferred from the conduct. If the law firm says we're America's law firm, and this is their advertising that was before the court. Just one sample I'm going to read. 13 ER 2640 with 26 offices in 16 states were vetted, were handpicked by Johnny Cochran, and here's what they say. How were the lawyers for the firm selected? Johnny Cochran, Jr., personally selected lawyers who shared his vision and justice in America and were dedicated to hard work for his clients. This is a sample of their own advertising. They attach for a motion in support for preliminary injunction. Okay, so the effect of the advertising is whether the advertising is likely to deceive consumer. Consumer understood, and they presented themselves with each regional office. They didn't say that each regional office is independently owned. No, this is our local office. This is our attorney. This is our employee. What we find out after the case got remanded, we found out that not even on the same block they have any relationship. And here's the evidence. The court cited, and that's the declarations of DOTA, supposedly regional office people, attorneys, and that is in a transcript. The court cited that declarations of, the declaration is volume 5ER, page 758, 762, 766. Let me ask you something. Yes. Is Mr. McMurray currently using the Cochran firm trademark, or does he plan to use it again if we affirm the district court? No, Your Honor. Here's the thing. This has never been about the trademark. And this is, I'm going to get to the second step of what it is. Johnny Cochran had died in 2005. His office, his practice was in shambles. It was a debt over about $1,750,000. This all was presented to the court. McMurray was the only one who wanted to continue the legacy of Johnny Cochran. He put up his own residence, took a collateral $900,000 loan to continue that practice. These people in Alabama, they washed off their hands. They thought of the way of profiting of his name but not having the expense of having the offices. It's expensive to maintain the law firm, to pay for the employees, to pay for lease, to pay for malpractice insurance. But they're claiming, okay, but on a trademark, was the firm paying a royalty to the widow? No, no, no, no, no, no. This is the firm that there was no trademark. The issue that McMurray had no knowledge that there was no trademark. If you look at the LLP agreement that actually is attached to the Connor claim and is attached to McMurray's declaration, it's part of the record. Johnny Cochran specifically, specifically grant the exclusive name, to use his name, to the partnership. It's absurd to think that somebody's relative of the lawyer can get a trademark on a law firm because no lawyers can't practice law. They can't accept money from the cases because there would be illegal fee spreading. It's illegal everywhere. So the name under 1999 partnership agreement, which they acknowledge is the governing document, which is in the settlement agreement, it's 5ER-770. It says that even Cochran firm contended that it was a part of the asset of the partnership. So partners die, their successors continue. So what happened? Johnny had died. Randy McMurray, who has a letter saying he is a partner, signed by Johnny. And, Your Honor, you said to put it in the back of the bus. Last time I argued, but it wasn't in the mandate. So the point- What did I say? You said that Randy McMurray can put it in the back of the bus if he has a letter that he was a partner of Johnny Cochran. He actually has a- I didn't say back of the bus. Okay, well- Well, show me the quote. Okay, it was- I want to see it. Let me just continue with that. It was a joke, Your Honor. If I said something like that, you could put ads, you know? Okay. He was a bona fide partner. I want you to tell me, give me the exact language I used then. The issue was- Because I resent what you're saying. No, Your Honor, the question was whether if Randy McMurray was a partner of Johnny Cochran, why can't he say it on his letterhead? Why can't he put it on the back of the bus in advertising? Why can't it be that fair use that he was a partner of Johnny Cochran? Did I say back of the bus? Your Honor, since you're asking me directly, I believe you said the side of the bus, and you mentioned I could put it on my forehead. You didn't say the back of the bus. You said if I was Johnny's partner at the time, I could put it on the side of the bus, I could put it on my forehead, I could have those advertising that went around the bus, but you didn't mention the bus. What? Didn't I say back of the bus? No, you did not say back. I believe you said the side of the bus. But it was something about bus advertising. When you say back of the bus, you better explain to her what the implications are. I'm sorry, Your Honor. You're not too smart. I'm not born here. It's my fifth language. No, no, no. Then you better get educated, too. Sorry about that. The bottom line is there was a determination that he has... You've got to choose your words carefully. Sure. What I want to do from a perspective of this is there was no abuse of discretion by a district court. The district court had a mountain of evidence of actual deception. It doesn't have to have a bad intent because the court cited... Let me ask you this. Let me ask you this. Yes. All right. Let's dial it down. Let me ask you this. How can we affirm the district court when its decision does not include any finding that the plaintiff acted in bad faith? There's no finding. It does. It does in a Griffin matter. And it records before the court. Now, what matter? Griffin matter. And I will explain to you what's in a Griffin matter. Betty Jackson and Griffin. So here's what's in a Griffin matter. It's 5 ER 755. We start the transcript. So here what that damning evidence was before the court. And it's undisputed. That evidence was not even a subject of a dispute. The Cochran Firm's former client, Sandra Griffin, she was a brain damaged former client who was under conservatorship. Her conservator was Betty Jackson. So Betty Jackson, there was a dispute between Cochran Firm and a former client. The former client said that some money was not given as a part of her settlement. Since she is incapacitated, her conservator brought a case in a probate court. So they went in into mediation. In mediation, there was a settlement reached. The settlement was signed by Brian Dunn, their current attorney now. Not this gentleman, the other attorney. It's 5 ER 638. So he signed, he presents himself as a partner of the Cochran Firm on the website. So he signs the settlement agreement in his capacity of a partner of the Cochran Firm. The settlement agreement says that Cochran entities, or Brian Dunn and other defendants, agree that they have a fiduciary obligation to Sandra Griffin and that $250,000 is return of client funds, 5 ER 751. That's what the court had in front of them. Then that settlement was reached and the Cochran Firm was supposed to pay monthly payments. They didn't pay. So client goes and gets a judgment. So when they got the judgment, it lists Cochran Firm as a judgment debtors. Then nobody pays the judgment. Client goes, levies on an account that client believes it's their local office, Cochran Firm, California. Now, the entity that's using that name, which is a DBA, Dunn Law, APC, files a third-party claim, verified, sworn, stating that that entity has nothing to do, not a successor, not the agents, or has no relationship with judgment debtors. So that is actual public deception. How can they possibly – But where is the district court's finding? I don't see it. In the district court's order, where does the district court find that the plaintiff acted in bad faith? That's a requirement. That's a – the district court – Where are those words? Where are those words? I can get it. It's there. It's cited the case, Your Honor. The court examined. It examined the – Well, go get the case, then, if you got it. I want it in the district court's order. Direct me in the district court's order, where the district court says, I find that the plaintiff acted in bad faith. As I stated, Your Honor, that the bad faith or intent, it clearly can be inferred from a conduct – All right. I didn't ask where it could be inferred. I said, where is the finding? District courts regularly make findings. Where is the finding? It's in this section. Okay. It's on page 11. And the court says, plaintiff agrees with the defender that one would expect that the office or attorney of a national firm would be able to pay should malpractice occur and argues because it requires under operating agreement with the regional offices that they maintain a minimum amount of insurance. It meets its expectations. Plaintiff fails to address, however, what happens when its regional office insurance fails to provide adequate remuneration See reply. As example of Jackson's attempt. Jackson's attempt. And this wasn't even an insurance issue. It's basically simply misappropriating clients' funds. As example of Jackson's attempt to collect judgment from plaintiff, described above, plaintiff and its regional offices presented themselves as one firm during some instances but also made clear they are not connected when it comes to certain liability. See Hendrick's declaration. And those are sworn declarations, not by some rogue regional partner that somehow went bad and did some bad things. It is their own attorney that represents them today. I just don't see how that equates to a finding of bad faith, which is what I asked. The fact that, okay, well, if the law firm says, this is my regional office. I'm entering into the settlement agreement. Okay. Okay. Okay. If that's, I ask the question, if that's your answer, then that's your answer. My answer is the advertising is misleading. And the court had a declaration, the court had a testimony of Alan Peck, the court had testimony of controller that said they do not share any expenses, they do not share any liabilities. The definition of the national, I mean, the definition of a law firm itself is set and it's set by ABA rules that specifically says if one law firm licenses its name, they must operate as a single firm. They cannot operate as a network of partnership. And this mandate said they didn't agree with this mandate. They could have moved forward in consideration. They couldn't ask for a rehearing. But that didn't happen. So this is, there was a mountain of evidence about the fact that the court's decision was supported by evidence. The fact that the intent, there was actual example to the deception. And one more exemption. Jacqueline Williams, a client that sued one of the regional offices, and the conference response was we're not, it's not us, we're not, it's not the same entity. So if that's not a bad intent to shield themselves, to deceive the public because they don't want to accept a liability and they're not a law firm, how that does not support the intent factor. And the cases that mandate sites, all it is we need is the trademark hoarder who is engaged in advertising that tends to mislead the public, tends to mislead the public. Public is not sophisticated to go and check every DBA and see whether they're separate entities or not. Somebody says I'm a big national law firm with. Well, let me ask you this. If we were to affirm the district court, which you're asking us to do, wouldn't it follow that my law clerk could now go out and open a law firm called the Cochran firm? No, Your Honor. The issue is, the issue is that, well, the name of the law firm should not be misleading. What happened to McMurray, what happened to McMurray after his partner died and we have supporting declaration of ethics experts. She was a state bar court judge. She was the co-author of the Rudder Group. There was a California LLP where Randy McMurray was a partner. His only partner dies. He can't be partner with himself, so he creates a general partnership with Brian Dunn. That happens all the time if there is a succession. He was in the same place with the same phone number, took on liabilities, took on all the debts, took on all the obligations, and continue on. He was the only bona fide successor. And another issue why the district court was correct and balanced the hardship, during the pendency of this, it took another eight months that he was burdened with this overbroad injunction, they constantly were threatening him with a contempt even for truthfully saying he was a former partner of Johnny Cochran. He's not using the name in his trade name. But somehow this malicious attempt to disallow him to even say he was a partner when even they admit they presented him as a partner. So there was my argument is this. When the advertising is tend to mislead the public, it is on clean hands. It is on clean hands for a trademark holder to try to reinforce it. It's a court of equity. They are clearly misleading the public. Now counsel's argument about they have requirements for malpractice insurance, we had a bankruptcy petition filing which is under penalty of crime as a subject to judicial notice. In that bankruptcy petition, it's ADR 1460, ADR 1446. Jenkins, it was a client of Louisiana local office. That local office filed the bankruptcy after taking about $8 million line of credit from a bank with some $8 in their bank account. They leased no relationship with the Cochran firm, which purportedly is their local office. It says that it's only licensor. And they discharged client's claim in a bankruptcy. I mean, this is not a one example. This is not a two. Mary Neal. Mary Neal's case is in. I still don't understand why. If what you're arguing, then, and so if you prevail here, is Mr. McMurray going to call his firm the Cochran firm? No. Mr. McMurray is. This is not about. First of all, somebody's right not to be enjoined has nothing to do with whether he has an intention or not. His life has been upside down. They took his firm. He worked and built for so many years. They literally misappropriated his name, I mean, his firm. And to counter the argument that he was a participant, that's absolutely contrary to the record. He was a bona fide successor. He took over Johnny's firm after Johnny had died. They were negotiating later on to be one firm. It didn't happen. But then because his ethical concerns about misleading the public, he didn't want to advertise. He didn't want to. They removed him for that. He paid the price. That's why the court says they are more culpable. Because he lost his firm because he didn't want to go along with them. How can possibly somebody argue that he is equally at fault? This court's order was well. So, but what's he hoping to accomplish by dissolving the injunction? The injunction was dissolved because the record shows. And it's on appeal now. And the opposition to resign. And it's on appeal now. Judge Callahan, attorney's asset is his past. It's his past achievement. He could not even speak or say, despite this court overturning the injunction, he was not able to say. He was getting threats of contempt. We attached that to the paperwork. So, apparently, they're not satisfied with court finding that it's overbroad. They keep threatening him. So, it's not about that tomorrow he's going to go and become a Cochran firm. Plus, their reputation was already so smeared. So, anything Mr. McMurray built to continue his partner's legacy has been pretty much damaged. So, he has a counterclaim. And the trial is January 12th. All they want to do is they want to get rid of the language in the first mandate, which is there is no jurisdiction to overturn. We are, if the law firm says or presents itself to the public in a matter that public can reasonably believe, and public members are not experts, that it's one firm, one big firm. Obviously, they're doing it to get more business. And, in fact, their networks of partnership connected, disconnected. That is deceiving public. And I have actual deception. Are you saying that Mr. McMurray is no longer in the law practice? No, he's practicing. He's my partner. He's McMurray, Hendricks, LLP. He's my partner. He's in law practice. I'm just saying that they're— I thought you said that he's not practicing law anymore because they ran him into the ground. No, they took his law firm from him. The Cochran firm, Los Angeles, that general partnership, that was his law firm that he continued. He continued after Johnny had died. He was in the same office. He took over a lease. He took over obligation. He took over $900,000, put his house as a collateral to continue his deceased partner's practice, which is the experts even testified. That's a bona fide succession. And even my point, Your Honor, it's not about—it's somebody's right not to be enjoined, wrongfully enjoined. Really, whether he wants to practice under Cochran name or not, I think that it's probably not appropriate question because he does have a constitutional right not to be enjoined. He does. Not to get these contempt letters. That is nerve-wracking. I mean, I got the contempt letter. He's my partner. They're saying in your firm history page he said this. But he's truthfully describing his past. They don't even want him to do that. And the court had a— Can I ask you a question? What did you have for breakfast that gave you all this energy? It's—it's not what I had for breakfast. It's the truth, Your Honor. It's the truth. And the truth is there are a mountain of evidence, mountain of evidence that these people are deceiving the public, the fact that the public is being injured, the fact that they misused the trademark, and misuse of the trademark is a defense to the trademark infringement action. I have never—the cases they even cite are talking about— What's that—what's that got to do with this appeal? Because the abuse of discretion is a standard. The question here, there was no de novo issue. There was no issue of— So we got—we got the—we got the—so it's abuse of discretion. And—and the fact is, Your Honor, that, you know, it's going through these names. You know what this means. I know. I'm sorry, Your Honor. It's my only chance I got, so I don't get the rebuttal this time. Trusting is good for the soul. All right. Yeah. Thank you. I'll try to be as brief as possible. The first thing I'd like to address is a clarification of the story of when Johnny passed away and how the firm took over. The entity that was in charge was the National Organization Partnership involving Mr. Cherry, Mr. Givens, and Mr. Cistro. At the time that—at the time Johnny passed, the idea was that they were going to remove themselves because they didn't have anyone in L.A., but there was Mr. McMurray and Mr. Dunn. For the two years that they operated in that location, there were drafts going back and forth of trying to set up the local office, which included the rights on how to handle the trademark. So once Ms. Henrichs gave her opinion that they didn't have to buy or pay for the use of the name, things went south, and that's when things went aside. The second misconception. We never expected Mr. McMurray not to say where he had practiced law for his career. What we always wanted to stop him from doing was making commercial use of the trademark, which under the trademark law is not allowed. We didn't want him using a tagline that said, Mr. McMurray, and then the next line under his letterhead, a former partner of the Cochran firm, because that is the commercial use. But if he says— Well, what if he said former partner of Johnny Cochran? Would that be all right? You know, that was the last issue. I don't want to take us down that— Well, but that was—but they said that part was overbroad in the injunction before. You said that part was overbroad, and— So you've got to—that's the rule of law of the case. Well, we don't—absolutely. And so what we don't want right now, and we're sort of going far afield from the appeal, is they just can't use the Cochran firm as the brand to identify the firm. That's what a trademark does. It identifies the genus, the thing, the brand, which—who is the source of that thing. But he can say he's a former partner of Johnny Cochran. He certainly can. Absolutely. You can't be sending him notices about that. That's what the case before said. That's right, and we're not. Okay. Second of all, there was some talk—it was hard to keep up, but there was some talk about deception to the consumer for debts. Well, a lot of those debts weren't consumer debts. Those were law firm debts dealt with banks or things like that. So I just want the court to be aware that the consumers that need to be deceived are clients. And when the clients hire the firm, the Cochran firm, they get the local branch and they get the local branch's malpractice insurance. To the extent any particular trial court has the parties in front of them and they decide who's going to be liable and the defense counsel for the insurance company figures out who's liable and whether there's alter ego. There's all kinds of law available to decide who's going to be liable. We have the partnership agreements. If the partnership agreements establish liability, all that can go before. So what are the other damages that everyone is seeking here in terms of, okay, obviously he's saying, and I don't know whether I said, are you going by the Cochran firm? Do you want to go by the Cochran firm? They're saying no, but you don't want him to go by the Cochran firm. We took his deposition and he said that he's not using the Cochran firm and has no present intent to use the Cochran firm. I don't know what's going to happen when the case is over, but right now that seems to be we're getting progress. In terms of the damages during that period of time in which he was in the L.A. office with Mr. Dunn, there were fees that were supposed to be or there were profits that were supposed to be shared, and those weren't. There is a number associated with that. So what's he claiming against you guys? Because she seemed to be claiming that you ruined their practice. My understanding is he's claiming that he took out loans to help finance the operation of his law firm, and that he was licensed to use the Cochran firm at the address that Johnny used to be at. So the historic office of Johnny Cochran, he was at for a few years and was in a partnership with Brian Dunn, and that partnership didn't ultimately get formed with the licensing agreement from National, and he left. He was quote-unquote ousted because he wouldn't sign off. He was what? He was quote-unquote ousted. He was asked to leave because he wouldn't sign on the trademark agreement to establish use of the trademark. He could have stayed. So where is Dunn now? Brian Dunn is in the historic Johnny Cochran firm. He is the approved successor for the Los Angeles office of the Cochran firm, and he has formed his own entity, and he has an agreement, like every other local office with the National organization, in which he is permitted to use, under financial arrangements, the Cochran firm. That's the name, the Cochran firm. So that's what's happening. Okay. I asked counsel for, I guess, appellant and counter-defendant or all of those that were your appellant, but I asked her, could my law clerk, if we affirm the district court, could my law clerk go out and open a firm and call it the Cochran firm? Well, I don't want to say yes to that, but I am concerned that that would be the slope. That you would do nothing. That's the slippery slope that we're very concerned with, is that if you do not allow us to enforce the Cochran firm, it basically sets a precedent that anybody could. There's one caveat to that answer. The bar rules prevent people from using names that aren't theirs. So I couldn't, on Mr. Wertz, I couldn't go out and say, I am Joe Smith Law Firm, because I have no relationship with Joe Smith. Am I wrong about this? But can't you advertise yourself as the superb law firm? The Pacific Law Group or something like that. Pacific Law Group, yeah, and all that. What's that all about? Well, this is a little bit outside my area of expertise, but I believe that those entities are allowed to do so because they have registered, I think those are DBAs of another firm of, you know, Smith and Wesson or something like that. That's a bad example. I think when you advertise as the Pacific Law Group or, you know, California Lemon Law Group or something like that, you have to identify who the law firm is on the same advertisement. You have to have a little asterisk there that says the real name of the firm. That's my understanding. But this is something that I would leave to our expert, John Steele. I don't have the exact information on that. Thank you very much. I appreciate it. All right. I think we're all through. Is it tomorrow yet? All right. Everything's submitted as are all the other cases that were argued.