Super cy that?

Trademark law not for everyone, huh?  Not true!  Watch just how well a hammer works when everything in its world is a nail!

Okay, so Mark Herrmann and Jim Beck go to town in their Drug and Device Law blog (originators of Blogolation!) on a legal fiction not directly related to intellectual property — the cy pres principle as applied in modern class-action litigation.   Prompted by a law review article co-authored by my old civil procedure professor and Socratic banter rival, Marty Redish (originator of the Henway!), they hit on a couple of points that warmed the very cockles of my own heart because of just how familiar they sound to this blog’s number-one reader (me):

First of all, there’s probably quite a few of our readers still scratching their heads about what we’re talking about. A little primer: “Cy pres” is legal French (only a little more modern than legal Latin) standing for “as close as possible” (in full:  cy pres comme possible). . . .

[T]he modern meaning of cy pres: the defendant was (allegedly) a bad person in some way, but it’s too hard – that usually means “too expensive” – to figure out who if anyone was actually hurt by the defendant’s depredations, so let’s take the defendant’s money anyway, but instead of giving it to anyone actually hurt, let’s give it to some deserving charity. . . .

You know what I’m thinking right?  Of course!  “Too hard — that usually means ‘too expensive'” — that can only mean the outcome in the various lawsuits against eBay on secondary trademark liability!  It’s just too hard to to stop counterfeiting in my shop, says eBay, so why make me try harder than I already have?

So why don’t we like it? Let us count the ways. . .

1. Cy Pres Is An Admission That Causation/Damages Can’t Be Proven:  Any time that a court resorts to cy pres, it constitutes an admission that the suit – at least in class form – cannot be proven, and thus should be dismissed. Causation and damages are essential elements for every cause of action that we know of . . .

Well of course you know what he means right?  A tort with no damages, just indignation?  Right:  The tort of trademark infringement based on initial interest confusion and so-called “diversion“!  I love these guys!  Is there more?!

2.  Cy Pres is a Judicial Usurpation of Power:  Where is the law or regulation allowing, as a consequence of some legal violation, one private person’s money to be taken away and given to some other private person(s) whom the violator didn’t injure? There isn’t any. If there were, there’d be no need to resort to cy pres, because the statute or rule (assuming it were constitutional – which is a stretch) itself would provide the distribution scheme, not some vague notion of “equity.” The government can impose civil or criminal fines for conduct that’s illegal, without regard to causation or damages, but the money in those situations goes to the government as the sovereign enforcer of the laws.

Courts by themselves have no power to redistribute money between private persons in the absence of causation and damages . . .

They don’t  Uh oh… someone didn’t get the memo!

It only gets better.

My point?  When we’re not under the influence of drugs and devices and when we clear away all the confusion, we’re — smallish firm lawyers doing IP litigation and a guy at Jones Day (I don’t know Jim Beck), one of the biggest corporate law firms in creation — really all the same inside, aren’t we?

Okay, maybe not.

Well, cy pres comme possible, ya know?