Petition for Writ of Certiorari — Larry Klayman, Petitioner v. Judicial Watch, Inc., et al.

Supreme Court briefJan 7, 2022

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Supreme Court, U.S.

FILED

JAN 0 7 2022

No. 21-

UbH

OFFICE OF THE HI fpi/

3fa Cjje

Supreme Court of tfje QKntteb States!

LARRY KLAYMAN,

Petitioner,

JUDICIAL WATCH, INC., THOMAS J. FITTON,

PAUL ORFANEDES, AND CHRISTOPHER FARRELL,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Larry Klayman, Esq.

7050 W. Palmetto Park Rd.

Boca Raton, FL 33433

Tel: 561-558-5336

Email: leklayman@gmail.com

Petitioner Pro Se

RECEIVED

MAR 1 8 2022

QUESTIONS PRESENTED

1. Did the U.S. Court of Appeals for the District of

Columbia Circuit err by failing to apply the “apprecia

ble number of consumers” standard to the “likelihood

of confusion” test for a claim brought under the Lanham Act and how this bad and conflicting precedent

negatively impacts trademark law in general?

2. Did the U.S. Court of Appeals for the District of

Columbia Circuit err by failing to find truth to be an

absolute defense to a claim brought under a non-dis

paragement provision of a severance agreement and

how this bad and conflicting precedent negatively im

pacts business law in general?

STATEMENT OF RELATED CASES

Klayman v. Judicial Watch, Inc. et al., 06-cv-00670, U.S.

District Court for the District of Columbia. Judgment

entered March 15, 2018.

Klayman v. Judicial Watch, Inc. et al19-7105, U.S.

Court of Appeals for the District of Columbia Circuit.

Judgment entered on September 15, 2021.

Ill

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI...........

OPINIONS BELOW................................................

JURISDICTION.......................................................

STATUTORY PROVISIONS INVOLVED...........

STATEMENT OF THE CASE................................

I. FACTS REGARDING THE DISTRICT

COURT PROCEEDING............................... 6

II. FACTS REGARDING THE D.C. CIRCUIT

APPEAL......................................................... 11

REASONS FOR GRANTING THE WRIT............ 13

I. THE D.C. CIRCUIT ERRED ON THE

LANHAM ACT ISSUE, CREATING AT A

MINIMUM, A CIRCUIT SPLIT THAT

MUST BE ADDRESSED............................

A. The D.C. Circuit Erred By Failing to

Reverse the Jury Verdict With Regard

to Likelihood of Confusion Which Is

Necessary for Trademark Infringe

ment.........................................................

B. The D.C. Circuit Allowed Unauthenti

cated Hearsay Into Evidence to Prove

Likelihood of Confusion........................

II. THERE CAN BE NO DISPARAGEMENT

WHEN THE STATEMENTS AT ISSUE

ARE TRUE, PARTICULARLY GIVEN

THE ABILITY OF THE PARTIES TO

MAKE FAIR COMMENT...........................

TABLE OF CONTENTS—Continued

Page

III.

MR. KLAYMAN HAS MORE THAN MET

THE STANDARD FOR CERTIORARI..... 25

CONCLUSION

APPENDIX

United States Court of Appeals for the Dis

trict of Columbia Circuit, Order, September

15,2021 ............................................................. App. 1

United States Court of Appeals for the Dis

trict of Columbia Circuit, Judgment, July 30,

2021................................................................... App. 3

United States Court of Appeals for the Dis

trict of Columbia Circuit, Opinion, July 30,

2021................................................................... App. 5

United States District Court for the District

of Columbia, Jury Verdict Form, March 14,

App. 39

2018

United States District Court for the District of

Columbia, Judgment on the Verdict for Coun

terplaintiff Judicial Watch, Inc., March 15,

App. 47

2018

United States District Court for the District of

Columbia, Judgment on the Verdict for Coun

terplaintiff Thomas J. Fitton, March 15,

App. 49

2018

Petition for Rehearing En Banc, United States

Court of Appeals for the District of Columbia

Circuit, August 30, 2021

App. 51

TABLE OF CONTENTS—Continued

Page

United States District Court for the District of

Columbia, Memorandum Opinion, March 18,

2019

App. 110

Plaintiff-Appellant Larry Klayman’s Final

Brief, United States Court of Appeals for the

District of Columbia Circuit, September 26,

2020..................................................

App. 191

Transcript Excerpts...........................

App. 301

Confidential Severance Agreement,

App. 310

United States District Court for the Southern

District of Florida, Final Judgment, June 11,

2014

App. 340

United States District Court for the Southern

District of Florida, Verdict Form

App. 342

TABLE OF AUTHORITIES

Page

Cases

Am. Ass’n for the Advancement of Sci. v. Hearst

Corp., 498 F. Supp. 244 (D.D.C. 1980)...............

Armstrong v. Thompson, 80 A.3d 177 (D.C. 2013).

Aurora World, Inc. v. Ty Inc., 2011 U.S. Dist.

LEXIS 161683 (C.D. Cal. 2011)..........................

Cooper Tire & Rubber Co. v. Farese, Farese &

Farese Prof Ass’n, 423 F.3d 446 (5th Cir. 2005).

Duluth News-Tribune v. Mesabi Publ’g Co., 84

F.3d 1093 (8th Cir. 1996)...................................... 19, 20

Equal Employment Opportunity Comm’n v. Sev

ern Trent Servs., Inc., 358 F.3d 438 (7th Cir.

2004).........................................................................

4,5

Fla. Int’l Univ. Bd. ofTrs. v. Fla. Nat’l Univ. Inc.,

830 F.3d 1242 (11th Cir. 2016)............................

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...

Hansen Bev. Co. v. Nat’l Bev. Corp., 493 F.3d

1074 (9th Cir. 2007)...............................................

Pillsbury Co. v. Milky Way Prods., 1981 U.S. Dist.

LEXIS 17722 (N.D. Ga. Dec. 24,1981).............

Progressive Distribution Servs. v. United Parcel

Serv., 856 F.3d 416 (6th Cir. 2017).....................

Santi v. Hot In Here, Inc., 2019 U.S. Dist. LEXIS

202825 (S.D.N.Y. Nov. 21, 2019)..........................

United States v. Blackwell, 694 F.2d 1325 (D.C.

Cir. 1982).................................................................

Vll

TABLE OF AUTHORITIES—Continued

Page

Statutes

15 U.S.C.§ 1125(a)(1)

28U.S.C. §453...........

Secondary Sources

NOTE: When Telling the Ugly Truth Can Cost

Millions: Non-Disparagement Clauses in Em

ployment-Related Contracts, 37 Quinnipiac L.

Rev. 807..................................................................... 4,22

1 Executive Employment Law: Protecting Execu

tives §9.05 (2021)..................................................

Restatement [Third] of Unfair Competition § 23

(1995)........................................................................

Richard L. Kirkpatrick, Likelihood of Confusion

in Trademark Law § 1:8.2 (2nd)......................... 15, 20

PETITION FOR WRIT OF CERTIORARI

Petitioner Larry Klayman (“Mr. Klayman”) re

spectfully petitions this Court for a writ of certiorari to

review the orders of the U.S. Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”).

OPINIONS BELOW

On September 15, 2021 the D.C. Circuit issued a

per curiam order denying Mr. Klayman’s Petition for

Rehearing En Banc. App. 1-2. On July 30, 2021, the

D.C. Circuit issued a per curiam judgment affirming in

full the jury verdict and judgment from the U.S. Dis

trict Court for the District of Columbia. App. 2-38.

JURISDICTION

The D.C. Circuit issued a per curiam order deny

ing Mr. Klayman’s Petition for Rehearing En Banc on

September 15, 2021. App. 1-2. On December 6, 2022,

this Court granted an extension of time until and in

cluding January 7, 2022 for Mr. Klayman to file this

Petition. On January 14,2022, the clerk issued a letter

granting Mr. Klayman 60 days, until and including

March 15, 2022, to submit a corrected Petition for Writ

of Certiorari which does not join any other pleading.

STATUTORY PROVISIONS INVOLVED

Lanham Act—15 U.S.C. § 1125(a)(1):

(a) Civil action

(1) Any person who, on or in connection with

any goods or services, or any container for

goods, uses in commerce any word, term,

name, symbol, or device, or any combination

thereof, or any false designation of origin,

false or misleading description of fact, or false

or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause

mistake, or to deceive as to the affiliation, con

nection, or association of such person with an

other person, or as to the origin, sponsorship,

or approval of his or her goods, services, or

commercial activities by another person, or

(B) in commercial advertising or promotion,

misrepresents the nature, characteristics, qual

ities, or geographic origin of his or her or an

other person’s goods, services, or commercial

activities,

shall be liable in a civil action by any person

who believes that he or she is or is likely to be

damaged by such act.

STATEMENT OF THE CASE

This Petition stems from an appeal to the U.S.

Court of Appeals for the District of Columbia Circuit

(“D.C. Circuit”) from a jury verdict and judgment of the

U.S. District Court for the District of Columbia (“Dis

trict Court”) against Larry Klayman (“Mr. Klayman”),

the founder and former Chairman and General Coun

sel of Judicial Watch, Inc. (“JW”).

This Petition involves issues of monumental im

portance not only to Mr. Klayman, but to U.S. and in

ternational trade and commerce as a whole.

First, the D.C. Circuit has created a circuit split in

terms of interpreting the “likelihood of confusion”

standard for claims brought under the Lanham Act.

Without a uniform interpretation of what constitutes

“likelihood of confusion,” individuals and corporations

will have no way of knowing what language that they

can or cannot include in an advertisement. This is of

particular importance, given the fact that many ad

vertisements are now sent over the internet, which

therefore reaches every state, and spans every single

Circuit. For instance, an advertisement created in the

District of Columbia, and thus under the D.C. Circuit,

would very likely be viewed in California, under the

Ninth Circuit. The harmful precedent created by the

D.C. Circuit in this case conflicts with that of the Ninth

Circuit, so how is an advertiser supposed to know what

he or she can or cannot say to avoid liability under the

Lanham Act? Thus, it is untenable for Circuits to have

different interpretations of the “likelihood of confu

sion” standard under the Lanham Act, as what is ac

ceptable in one Circuit may be held improper in

another. This would clearly have a strong impact on

U.S. and international trade and commerce as a whole.

Second, this case involves a Severance Agreement

(“SA”) which contains a standard non-disparagement

clause. Mr. Klayman raised the argument, supported

by established case law, that there can be no dispar

agement when the statements at issue are true, partic

ularly when the parties contracted the ability to make

a fair comment. The D.C. Circuit completely fails to ad

dress this point, thereby adopting the harmful prece

dent set by the District Court in this regard.

This issue is vitally important to U.S. and interna

tional trade and commerce as a whole because there

are countless contracts being executed every day which

contain similar provisions to the SA, and inconsistent

interpretations of these provisions would create harm

ful if not disastrous precedent, as people would simply

not know what they are allowed to say and what they

are not allowed to say:

Both settlement and severance agree

ments have traditionally included non

disparagement clauses. Currently, they

are becoming more and more prevalent in

the initial employment contracts between

employees and employers. NOTE: When

Telling the Ugly Truth Can Cost Millions:

Non-Disparagement Clauses in EmploymentRelated Contracts, 37 Quinnipiac L. Rev. 807,

808 (emphasis added).

Furthermore, “[ijt goes without saying that non

disparagement clauses are common in situations where

two parties terminate their employment relationship by

contract. See Equal Employment Opportunity Comrn’n

v. Severn Trent Serus., Inc., 358 F.3d 438, 440 (7th Cir.

2004) (“Such private gag orders appear to be fairly

common.”). They are intended to prevent a disgruntled

former employee from disseminating sensitive or false

information in revenge for being terminated. Id. This

action demonstrates the valid legal purpose these

clauses serve. Cooper Tire & Rubber Co. v. Farese,

Farese & Farese Prof. Ass’n, 423 F.3d 446, 457-58 (5th

Cir. 2005). Employers as well can disparage a former

employee, so these clauses work both ways “Employers

frequently include a non-disparagement clause in their

separation agreements. Most employers will agree to

make the non-disparagement clause mutual if the ex

ecutive requests a two-way non-disparagement clause.”

1 Executive Employment Law: Protecting Executives

§ 9.05 (2021).

People entering into agreements containing non

disparagement clauses need to know whether truth is

an absolute defense. Furthermore, people need to know

that the terms of their agreements will be upheld by

the Court by virtue of the contract, or, as a matter of

public policy. Otherwise, employers and employees will

cease attempting to work out their issues through en

tering into severance agreement contracts, and instead

further burden an already strained legal system with

more litigation.

FACTS REGARDING

COURT PROCEEDING

THE

DISTRICT

In 2003, Mr. Klayman entered into the SA with JW

after he voluntarily left to run for the Senate. App. 310.

In his complaint filed in 2006, Klayman alleged that

Respondents JW, and JW’s officers, Thomas J. Fitton,

Paul Orfanedes and Christopher Farrell engaged in a

pattern of tortious activity designed to harm Klayman,

and that these actions breached the SA. Respondents

filed a counterclaim alleging that Klayman owed

money for unpaid expenses and falsely advertised and

violated their trademark. Importantly, none of the ad

vertisements Klayman ran to protect and alert donors

after he voluntarily left JW to run for the U.S. Senate

in Florida, were ever found to be untrue, concerning

the unethical if not illegal conduct of JW officers and

directors. Thus, the jury verdict makes no such find

ings. App. 39.

During contentious discovery, the District Court

overreached and sanctioned Klayman (who appeared

pro se) for failing to provide what it believed were

timely and proper responses and later sanctioned Mr.

Klayman for producing an incomplete pre-trial state

ment. App. 218. The overly broad and draconian sanc

tions precluded Mr. Klayman from calling witnesses or

introducing evidence at trial aside from the SA, which

essentially meant that Mr. Klayman’s case was decided

by the District Court before the trial began. App. 218.

To make matters worse, the District Court even re

fused to provide a jury instruction informing the jury

of this sanction, which undoubtedly caused the jury to

reach the incorrect conclusion that Mr. Klayman

simply had no witnesses or evidence to present and

thus had no defenses. App. 143. Thus, ultimately the

trial was then a mere formality, as a litigant who was

not allowed any witnesses or evidence has absolutely

no chance of victory. Unsurprisingly, the thirteen-day

jury trial in 2018 proved to be an exercise in futility for

Klayman and resulted in the dismissal of Klayman’s

claims, an award of $2,300,000 in favor of JW and an

award of $500,000 in favor of Fitton. App. 39.

This jury verdict was the direct result of a multi

tude of errors regrettably committed by the District

Court and rubber stamped with little to no review by

the appellate court in what had egregiously become a

sixteen (16) year old case, without any real bona fide

review of a very deep if not contorted sixteen (16) year

old record, in addition to the overly broad and draco

nian sanction order discussed above. These included

but are not limited to:

a. the introduction of evidence that contra

dicted the express language of the SA, namely

that Klayman had an inappropriate relation

ship and sexually harassed a JW employee;

App. 214.

b. the introduction of false and highly preju

dicial and false testimony from Klayman’s for

mer wife about alleged wrongs committed by

Klayman during divorce proceedings, includ

ing incendiary false allegations that he had

beat his wife, and evidence from an unrelated

case that were irrelevant; App. 242.

c. erroneous instructions given to the jury,

the failure to give the correct jury instructions

requested by Klayman, and, most importantly,

the failure to docket any written jury instruc

tions delivered to the jury (assuming that any

were delivered in the first place); App. 257.

d. the introduction of highly prejudicial evi

dence that was not properly authenticated on

the issue of likelihood of confusion; App. 263.

e. the failure to remit a damage award

against Klayman personally from those based

on alleged conduct of non-parties to this ac

tion; App. 267.

f. the misapplication of the law on confusion

as it relates to trademark infringement; App.

271.

g. the entry of judgment on the jury verdict

where JW failed to prove that Klayman took

and used information regarding its donor list;

App. 273.

All of these errors severely harmed and prejudiced

Mr. Klayman, but perhaps none more so than section

(b), where the District Court allowed highly prejudicial,

inflammatory, false, and—perhaps most importantly—

completely irrelevant testimony to be presented by Re

spondents, which undoubtedly poisoned the minds of

the jury, as well as the judges of the D.C. Circuit,

against Mr. Klayman, which led to the erroneous jury

verdict and judgment, App. 242, as well as the deci

sions on appeal. Ultimately the jurors at the District

Court, as well as the judges on the D.C. Circuit, are just

people, and people frequently are unable to entirely

separate their emotions from purely factual and logical

decision-making. Respondents knew this, and there

fore strategically sought to interject highly inflamma

tory, false, prejudicial, and irrelevant testimony into

the trial. The District Court egregiously erred by al

lowing this to occur. Once the District Court did this,

Mr. Klayman no longer stood any chance, either at

trial, or on appeal.

These false, inflammatory, prejudicial, and irrele

vant statements included (1) an alleged effort to pur

sue an improper relationship with a JW employee, (2)

claiming he effectively sexually harassed her, (3) Mr.

Klayman’s alleged admission that he was in love with

the employee, had purchased gifts for her and had

kissed her, and (4) Mr. Klayman’s alleged acknowledg

ment of an incident with his wife that provided the ba

sis for his wife’s allegation that he physically assaulted

her in front of their children, that is beat his wife. App.

244. This last point was the most harmful, as the en

tirely false and fabricated allegations and testimony

regarding what allegedly occurred in a church parking

lot, was Mr. Klayman’s estranged wife falsely claimed

that he “put his hands around [her] neck, and []

started to shake [her] and bang [her] head against the

car window,” App. 306—307, in other words, that Mr.

Klayman had beat his wife. Notwithstanding Mr. Klay

man’s vehement denial of these false and outrageous

allegations, and the fact that the subsequent divorce

decree which was on the record rescinded these bla

tantly false allegations, the jury should never have

heard such testimony because it was highly inflamma

tory and grossly prejudicial, even if it was relevant or

true, which it clearly was not.

Indeed, this highly prejudicial, inflammatory, and

false testimony was purportedly introduced by Re

spondents to perpetuate the falsity that Mr. Klayman

did not voluntarily leave to run for the U.S. Senate,

which he clearly did. Rather, Appellees falsely testified

that they forced him out due to this alleged miscon

duct. However, this ignores the plain fact that the SA,

which was undeniably signed and agreed to by all the

parties, unequivocally provided that Mr. Klayman left

JW voluntarily to pursue other endeavors and praised

him as well:

Judicial Watch announced today that Larry

Klayman has stepped down as Chairman and

General Counsel of Judicial Watch, [sic] to

pursue other endeavors. Tom Fitton, who is

the President of Judicial Watch, said: “Larry

conceived, founded and helped build Judicial

Watch into the organization it is today, as we

will miss his day to day involvement. Judicial

Watch now has a very strong presence and

has become the leading non-partisan, public

interest watchdog seeking to promote and en

sure ethics in government, and Larry leaves

us well positioned to continue our important

work.”App. 329.

Even more, the SA contained an integration

clause:

[t]his agreement constitutes the entire agree

ment and understanding between and among

the Parties with respect to the subject matter

hereof and supersedes all prior and contempo

raneous written or oral agreements and un

derstandings between the Parties with respect

to the subject matter of this Agreement. App.

334.

Thus, all of this highly prejudicial and inflamma

tory testimony, which purportedly went to show that

Mr. Klayman was removed from JW, was completely ir

relevant, as this “issue” should never have even been

at issue or up for debate before the jury, particularly

given the parole evidence rule, which Mr. Klayman had

invoked but which the District Court denied and the

appellate court never addressed. The sole purpose of

this testimony was to poison the minds of the jury

against Mr. Klayman, and regrettably it worked, caus

ing a highly flawed jury verdict and judgment against

Mr. Klayman.

II.

FACTS REGARDING THE D.C. CIRCUIT

APPEAL

Unfortunately, but unsurprisingly, the D.C. Circuit

was not immune to the highly prejudicial, inflamma

tory, false, and irrelevant testimony that was egregiously allowed into the case by the District Court, as

they affirmed the highly flawed jury verdict and judg

ment in a panel opinion penned by the Hon. Neomi

Rao, App. 3, and subsequently denied en banc review.

App. 1-2. It would also appear from the Panel Opinion

that the panel did not thoroughly review the volumi

nous record, as it contained numerous mistakes and

false statements, as well as incorrect legal reasoning.

This is further shown by the fact that the D.C. Circuit

did not even address Mr. Klayman’s arguments regard

ing authentication, truth being an absolute defense to

a non-disparagement provision, as well as other im

portant arguments like the parole evidence rule, which

barred the introduction of the false information about

Mr. Klayman’s having left JW to run for the U.S. Sen

ate in Florida. App. 301. The D.C. Circuit appears to

have simply glossed over these issues because the un

derlying District Court proceeding was so lengthy—

sixteen (16) years in toto—and the D.C. Circuit likely

did not want to reopen this case for whatever reason,

perhaps to spare their colleague on the District Court,

the Honorable Colleen Kollar-Kotelly having to retry it

after all of this time. However, this is not a valid reason

to adopt the flawed and erroneous jury verdict and

judgment at the District Court level without address

ing and correcting errors which create bad and harm

ful legal precedent.

Chief among the D.C. Circuit’s numerous errors

concerns the Lanham Act, as the D.C. Circuit ignored

precedent in the District Court that stated that there

must be an “appreciable number” of confused consum

ers to meet the standard for “likelihood of confusion.”

This, at a minimum, creates a circuit split, since other

circuits have also adopted this principle. Furthermore,

the D.C. Circuit ignored precedent which showed that

there can be no disparagement where the speaker

makes a true statement.

The D.C. Circuit’s error on these two issues im

pacts far more than just Mr. Klayman. It is crucial that

the Supreme Court address what the appropriate

standard is for “likelihood of confusion” under the Lanham Act, as this strongly impacts trade and commerce

in the United States as a whole. Furthermore, the dis

paragement issue also impacts trade and commerce as

a whole, as it is common practice for people to sign

“non-disparagement” clauses in severance agreements

and similar contracts, which should also be encouraged

as a matter of public policy. Guidance and clarity from

this Court is necessary so that people will understand

what conduct is permissible under these widely used

clauses by employers and employees and others, and

what conduct is not.

REASONS FOR GRANTING THE WRIT

THE D.C. CIRCUIT ERRED ON THE LANHAM ACT ISSUE, CREATING AT A MINI

MUM, A CIRCUIT SPLIT THAT MUST BE

ADDRESSED.

The D.C. Circuit fundamentally erred by ignoring

conflicting court legal precedent which clearly stated

that there needed to be an “appreciable number” of

consumers confused to meet the “likelihood of confu

sion” standard under the Lanham Act. As shown below,

courts in Ninth, Eleventh and Sixth Circuits have

adopted this standard, so the D.C. Circuit has created

a circuit split.

To make matters worse, the D.C. Circuit then ig

nored crucial authentication requirements under the

Federal Rules of Evidence to find “likelihood of confu

sion,” compounding the prejudice to Mr. Klayman. This

too is precedent setting.

A. The D.C. Circuit Erred by Failing to Re

verse the Jury Verdict with Regard to

Likelihood of Confusion Which Is Nec

essary for Trademark Infringement.

Of crucial importance is the fact that the Panel

concedes that there is, at a minimum, a split regarding

likelihood of confusion and trademark infringement:

Klayman also argues that the district

court failed to properly instruct the jury

on an element of trademark infringement.

Judicial Watch asserted that Klayman

infringed on its trademarks “Judicial

Watch” and “Because No One is Above

the Law.” To establish trademark in

fringement, Judicial Watch needed to

prove, among other elements, that Klayman’s use of its trademarks created a

“likelihood of confusion” among consum

ers. See Am. Soc’y for Testing and Materi

als v. Public.Resource.Org, Inc., 896 F.3d

437,456 (D.C. 2018). Klayman argues that

the court erred by failing to instruct the

jury that likelihood of confusion re

quires confusion by an “appreciable

number” of consumers. But his only sup

port for this proposition comes from two

unpublished decisions of our district

court, which are of course not preceden

tial. See In re Exec. Office of President,

215 F.3d 20, 24 (D.C. Cir. 2000).

This circuit “has yet to opine on the pre

cise factors courts should consider when

assessing likelihood of confusion....”

App. 34-35.

Thus, the D.C. Circuit admitted that (1) this it has

yet to opine on the precise factors . . . when assessing

likelihood of confusion, and (2) there are courts in this

Circuit who have held that likelihood of confusion re

quires an appreciable number of consumers. This has

therefore created a circuit split that must be addressed

by this Court.

It is well-settled that isolated or occasional in

stances of actual confusion are discounted as being “in

sufficient to support an inference that a significant

number of prospective purchasers are likely to be con

fused.” See Restatement [Third] of Unfair Competition

§ 23 cmt. c at 250 (1995). See also Richard L. Kirkpat

rick, Likelihood of Confusion in Trademark Law § 1:8.2

(2nd). (“The likelihood of confusion must affect rele

vant persons in numbers which are ‘appreciable’ under

the circumstances.” Many district courts in this Cir

cuit, as well as courts in other Circuits, have followed

this standard, as recognized by the Panel. “While

AAAS must show that an “appreciable” number of rea

sonable buyers is likely to be confused, this does not

necessarily mean a majority.” Hearst Corp., 498 F. Supp.

at 258. Courts all over the country have followed this

standard as well. See Hansen Bev. Co. v. Nat’l Bev.

Corp., 493 F.3d 1074,1080 (9th Cir. 2007) (holding that

a “handful of declarations” submitted as evidence do

not reliably indicate an appreciable number of people.);

see also Pillsbury Co. v. Milky Way Prods., 1981 U.S.

Dist. LEXIS 17722, at *36-37 (N.D. Ga. Dec. 24,1981)

“More important, evidence of occasional, isolated in

stances of confusion is insufficient to sustain a finding

of a likelihood of confusion when given the similarities

between the plaintiff’s mark and the alleged in

fringer’s mark, the duration of their concurrent use,

and the total volume of sales under both marks, it

would be reasonable to expect that if the plaintiff’s al

legations were true, more instances of confusion would

have been reported.” See also Progressive Distribution

Servs. v. United Parcel Sera, 856 F.3d 416,434 (6th Cir.

2017) (holding that an isolated instance was insuffi

cient to show likelihood of confusion); Fla. Int’l Univ.

Bd. ofTrs. v. Fla. Nat’l Univ. Inc., 830 F.3d 1242, 1265

(11th Cir. 2016) (holding that one instance was in

stance was insufficient to show likelihood of confusion).

Importantly, the U.S. District Court for the District of

Columbia has made this finding as well. See Am.

Ass’n for the Advancement ofSci. v. Hearst Corp., 498

F. Supp. 244 (D.D.C. 1980).

Indeed, the Panel’s opinion in this regard is actu

ally contradictory, as it states that “[t]o warrant provi

sion to the jury, an instruction must fairly state the law

as it is, not how the party wishes it to be.” App. 35. As

set forth above, the law dictates that there needs to be

an “appreciable number” of consumers confused to trig

ger liability under the Lanham Act. Thus, simply put,

all Mr. Klayman sought was a jury instruction that re

flected the “law as it is.”

Specifically, here, with regard to Respondents’

trademark infringement claim, there was simply noth

ing in the evidentiary record or testimony to support a

finding that there was any likelihood of confusion cre

ated by Klayman, which is a necessary precursor to

any award of damages on this claim.

Indeed, the only instance of conduct remotely at

tributable to Mr. Klayman personally in this regard is

the one time that Mr. Klayman’s direct mail provider,

Response Unlimited, made an honest mistake and

used JWs name on a reply envelope: Q: “Is that a copy

of what the envelope would look like for the return

envelope for donors?” A: “I should hope not because it

says ‘Judicial Watch.’” App. 305. Any confusion that

this alleged mistake caused would have undoubtedly

been de minimus, and far short of the “appreciable

number of consumers” standard adopted by sister cir

cuits.

Furthermore, the few letters among the millions

that were sent by both Mr. Klayman and Respondents

that Respondents entered into evidence that purported

to show that donors were “confused,” which were not

even authenticated, as set forth below, fall short of the

“appreciable” standard to demonstrate likelihood of

confusion. App. 84-109. To the contrary, most of the

exhibits actually demonstrate that the alleged donors

were not confused, and clearly understood that Mr.

Klayman was no longer affiliated with JW. For in

stance:

Mr. Thomas Fitton, I wish to be removed from

your office. I now support Larry Klayman. You

are a liar + a cheat. App. 84.

Take my name off your mailing list until

Larry Klayman is brought back as president

and founder. App. 85.

Thus, in sum, the D.C. Circuit’s opinion had devi

ated not only from the precedent of its sister circuits,

but also opinions rendered in its lower court as well.

This has created an untenable circuit split that must

be addressed by this Court, as people must be held to

a uniform standard under the Lanham Act. The “ap

preciable number” standard simply makes the most

sense, as there will always be people who are purport

edly “confused” by things which are objectively not con

fusing. The adoption of this standard would create a

reasonable safeguard for advertisers, while still ensur

ing that the purpose of the Lanham Act is still main

tained.

B. The D.C. Circuit Allowed Unauthenti

cated Hearsay into Evidence to Prove

Likelihood of Confusion.

In this same vein, the D.C. Circuit also fundamen

tally erred by not reversing the fact that the District

Court allowed into evidence letters allegedly written

by donors proffered by Respondents to show alleged

confusion without proper authentication. App. 84-109.

Crucially, the D.C. Circuit completely failed to even ad

dress this argument, even though it was clearly raised

by Mr. Klayman. App. 263.

Courts have routinely held that this type of hear

say “evidence” is inadmissible to show likelihood of

confusion. In Duluth News-Tribune v. Mesabi PubVg

Co., 84 F.3d 1093 (8th Cir. 1996), the Eighth Circuit ex

cluded alleged evidence of actual confusion in the form

of misdirected phone calls and mail as “hearsay of a

particularly unreliable nature given the lack of an op

portunity for cross-examination of the caller or sender

regarding the reason for the ‘confusion/’’ Id. at 1098.

This holding pertained to the summary judgment

stage, where some types of hearsay are allowed in the

form of affidavits. Here, even worse, impermissible

hearsay was allowed at trial. Thus, the facts here are

even more egregious, as JW had over a decade to au

thenticate the letters allegedly written by donors,

which they strategically chose not to do. For all we

know, these letters could have been fabricated by JW

and the other Appellees. They have been known to be

untruthful, as just one example, publicly denying that

Mr. Klayman was the founder of JW—a cold, hard fact

that is indisputable, as well as the false testimony over

his alleged sexual harassment of the office manager.

App. 244. Indeed, Mr. Klayman obtained a defamation

judgment against JW for making false statements in

the past, before in U.S. District Court for the Southern

District of Florida for $181,000, where the jury also

awarded punitive damages. See Klayman v. Judicial

Watch, Inc., 13-cv-20610 (S.D. FI.). App. 342-343.

Here, JW chose also to not present testimony from

these alleged “donors,” so therefore Mr. Klayman had

no opportunity to cross-examine or inquire as to the

reason for the alleged “confusion,” identical to the facts

of Duluth. This is a common issue in the trademark

context:

Evidence of actual confusion is entitled

to weight only if properly proved.... The

most common evidentiary problem with

anecdotal confusion evidence involves

testimony or documentary evidence pre

sented in court by a witness about the

confusion of a third party who is absent

from court. Richard L. Kirkpatrick, Likeli

hood of Confusion in Trademark Law § 7:6

(2nd).

This is why authentication is so important, and no

mere formality. “Authentication and identification are

specialized aspects of relevancy that are necessary

conditions precedent to admissibility.” United States v.

Blackwell, 694 F.2d 1325,1330 (D.C. Cir. 1982). It was

a glaring and clear error by the District Court to allow

this unauthenticated hearsay into evidence and put

forth before the jury. Likely recognizing this deficiency,

the District Court strained disingenuously to give a

confusing and improper instruction that the letters

could not be used to show the truth of the matter as

serted, but only to show potential or actual damage to

JW. The Court stated, “these documents go to the effect

of counter defendant’s—Klayman’s campaign—not po

tential donors, insofar as they clearly have not in

cluded any donation.” App. 302. This was done over Mr.

Klayman’s strong objection, App. 303, as informing the

jury that it could not view the letters for the truth of

the matter asserted, yet allowing the jury to consider

them with regard to trademark confusion and as a

measure of damages was, frankly, talking out of both

sides of the District Court’s mouth, and a fatal error.

II.

THERE CAN BE NO DISPARAGEMENT

WHEN THE STATEMENTS AT ISSUE ARE

TRUE, PARTICULARLY GIVEN THE ABIL

ITY OF THE PARTIES TO MAKE FAIR

COMMENT.

Another critically important matter, which the

D.C. Circuit completely failed to address, even though

it was clearly raised by Mr. Klayman, App. 259, con

cerns the fact that there can be no disparagement

when the statements at issue are true, particularly

when the parties contracted the ability to make a fair

comment. This is vitally important to trade and com

merce as a whole because there are countless contracts

being executed every day which contain similar provi

sions to the SA, and inconsistent interpretations of

these provisions would create harmful if not disastrous

precedent, as people would simply not know what they

are allowed to say and what they are not allowed to

say:

Both settlement and severance agreements

have traditionally included non-disparage

ment clauses. Currently, they are becoming

more and more prevalent in the initial em

ployment contracts between employees and

employers. NOTE: When Telling the Ugly

Truth Can Cost Millions: Non-Disparagement

Clauses in Employment-Related Contracts, 37

Quinnipiac L. Rev. 807, 808.

Specifically, here the SA contained a non-dispar

agement provision, with the addition of a fair comment

clause:

Klayman expressly agrees that he will not, di

rectly or indirectly, disseminate or publish, or

cause or encourage anyone else to dissemi

nate or publish, in any manner, disparaging,

defamatory or negative remarks or comments

about Judicial Watch or its present or past di

rectors, officers, or employees. Judicial Watch

expressly agrees that its present directors and

officers namely Paul Orfanedes and Thomas

Fitton, will not, directly or indirectly, dissem

inate or publish; or cause or encourage anyone

else to disseminate or publish, in any manner,

disparaging, defamatory or negative remarks

or comments about Klayman. Nothing in

this paragraph is intended to, nor shall

be deemed to, limit either party from

making fair commentary on the positions

or activities of the other following the

Separation Date. App. 328 (emphasis

added).

First and foremost, as a matter of law, disparage

ment cannot result if the fair comment is true. See

Armstrong v. Thompson, 80 A.3d 177, 183 (D.C. 2013).

“Substantial truth” also “constitutes a defense to

claims of [not just] defamation, [but also] trade libel/

commercial disparagement, and intentional inter

ference based on allegedly injurious falsehoods.” Au

rora World, Inc. u. Ty Inc., 2011 U.S. Dist. LEXIS

161683, *22 (C.D. Cal. 2011). Indeed, the U.S. District

Court for the Southern District of New York has held

that non-disparagements clauses are not allowed un

less they expressly include a “carve-out for truthful

statements....” Sand v. Hot In Here, Inc., 2019 U.S.

Dist. LEXIS 202825, at *7 (S.D.N.Y. Nov. 21, 2019).

The evidence, for example, adduced at trial did not

refute Mr. Klayman’s fair comments about Respond

ents having misappropriated about 1.5 million dollars

in donor funds and abandoning a client, Peter Paul,

who then did ten years in prison, as well as other mat

ters which donors and the public generally had a right

to know about as a matter of fair comment. App. 301.

Thus, the evidence showed that these statements were

true, and/or “substantially true,” and therefore could

not have served as the basis for an award of damages

against Mr. Klayman. Yet, despite this, the jury still is

sued erroneous liability and damage verdicts on the

disparagement claims, awarding $250,000 to JW and

$500,000 to Fitton. App. 39. This was compounded by

the jury having been poisoned and turned against Mr.

Klayman as a result of the inflammatory, prejudicial,

false, and irrelevant testimony allowed by the District

Court, but was also the result of the District Court’s

glaringly erroneous refusal to give a jury instruction

on “fair comment.” App. 259.

In view of Respondents’ counterclaims that al

leged disparagement, Mr. Klayman sought a jury in

struction on “fair comment” and repeated this request

during trial. As just one example, Klayman stated that

“fair comment [provision], even under your interpreta

tion, which comes from defamation, was incorporated

into the non-disparagement by agreement. So that’s

why it all has to be read together.” App. 303.

The District Court ultimately denied Klayman’s

request, which was in clear error, given the fact that

the parties had expressly contracted for this. Then in

denying Mr. Klayman’s post-trial motions, in contrived

reasoning the District Court doubled down on this er

ror:

Klayman improperly sought to import a de

fense from tort law into the specific contrac

tual provision at issue in this breach of

contract claim. That provision includes some

language about fair comment. CSA ^[17

(“Nothing in this paragraph is intended to,

nor shall be deemed to, limit either party from

making fair commentary on the positions or

activities of the other following the Separa

tion Date.”). But the jury, not the Court, was

responsible for applying that contractual

provision to the testimony and other ev

idence of Klayman’s statements. App. 136

(emphasis added).

This is an egregious error. The Court apparently

presumed that each member of the jury had at a mini

mum, gone to law school, and been taught and retained

the meaning of the legal principle of “fair comment” as

set forth by the Supreme Court under Gertz v. Robert

Welch, Inc., 418 U.S. 323 (1974). Otherwise, the only

other explanation is that the Court believed that a jury

of laymen would be able to apply a legal principle that

they likely had never heard of to the facts of the case.

Either assumption is clearly in gross error, and since

this was egregiously not addressed by the D.C. Circuit,

it must respectfully be remedied by this Court, as fail

ing to do so would have large-scale implications on con

tract law and severance agreements, and result in

confusion regarding non-disparagement clauses and

fair comment provisions in contracts, which are boiler

plate in many commercial contracts today. By failing to

address this point, the D.C. Circuit has essentially also

“doubled down” on and compounded the error of the

District Court.

III. MR. KLAYMAN HAS MORE THAN MET

THE STANDARD FOR CERTIORARI.

Under Supreme Court Rule 10, a writ of certiorari

will be granted for “compelling reasons.” There are

clearly “compelling” reasons set forth in this Petition,

as there are issues that significantly impact not only

Mr. Klayman, but trade and commerce as a whole, as

set forth in whole above.

Here, certiorari is warranted because (1) Mr. Klay

man clearly has no other adequate remedy at law and

(2) it is clear that the D.C. Circuit, regrettably, did not

thoroughly review the voluminous record in the under

lying case, as their Panel Opinion contained numerous

errors, omissions, and misstatements. App. 3-38. It ap

pears that, with the District Court proceeding being

sixteen (16) years old, the D.C. Circuit simply did not

want to open the case back up, whether to be kind to

Honorable Colleen Kollar-Kotelly, who would other

wise have to retry this interminable District Court

case, or for whatever other reason. However, this is a

not a valid reason for the D.C. Circuit to have given Mr.

Klayman’s appeal “short shrift” and not thoroughly re

viewing the record or even addressing Mr. Klayman’s

arguments.

Now, Mr. Klayman’s last resort is this Court, which

means that certiorari review given the circuit split is

clearly justified under the extraordinary circum

stances. This Court, to prevent a manifest injustice

and to reconcile conflicting law among the DC Circuit

and other circuits is respectfully requested to remand

this case back to the District Court for the new trial

before a fair minded jurist with instructions to (1) dis

allow the highly inflammatory, prejudicial, false, and

irrelevant testimony introduced by Respondents, (2)

disallow unauthenticated evidence introduced by Re

spondents, (3) give a jury instruction explaining to the

jury that Mr. Klayman had been sanctioned, instead of

creating the false impression that he had no evidence

or witnesses on this behalf, and (4) give jury instruc

tions that are in accordance with law on “likelihood of

confusion” under the Lanham Act as well as truth be

ing an absolute defense to a claim brought under a

non-disparagement clause. Of course, it is of crucial

importance that the law, so necessary to further U.S.

and international commerce for corporations, labor un

ions, public interest groups, and other persons, be clar

ified, far beyond the ramifications to Mr. Klayman, his

colleagues and his family of the 2.8 million dollar judg

ment wrongly entered against him.

CONCLUSION

In the words of John Adams, we are a nation of

laws and not men. It was grossly prejudicial for the

District Court to allow false, inflammatory, and irrele

vant testimony to be heard by the jury, which clearly

caused them to react negatively to Mr. Klayman, and

render a clearly erroneous jury verdict and judgment.

The D.C. Circuit was also clearly influenced in this

manner. However, the oath of office for federal judges

at provides:

I do solemnly swear that I will administer jus

tice without regard to persons, and do

equal right to the poor and to the rich, and

that I will impartially discharge and perform

all the duties incumbent upon me as judge un

der the Constitution and laws of the United

States. So help me God. 28 U.S.C. § 453 (em

phasis added).

Here, it more than appears that at every step of

this case, emotion prevailed over reason and logic, and

as such, the correct law was simply not applied to the

facts. The Court must respectfully step in and correct

these errors to prevent not only manifest injustice to

Mr. Klayman with regard to a $2.8 million judgment

which will bankrupt him and his family, but also to

avoid setting and allowing to stand conflicting harmful

and disastrous legal precedent which will govern, if left

unaddressed and corrected, U.S. and international

trade and commerce as a whole.

Originally filed: January 7, 2022

Re-filed: March 15, 2022

Respectfully submitted,

Larry Klayman, Esq.

7050 W. Palmetto Park Rd.

Boca Raton, FL 33433

Tel: 561-558-5336

Email: leklayman@gmail.com

Petitioner Pro Se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.