......

\i:;

1
2 3
4

STATE OF WISCONSIN

CIRCUIT

COURT BRANCH 24

MILWAUKEE

COUNTY

---------------------------------------------------ROBERT L.
HABUSH,

et aI,
CASE

Plaintiffs,
vs.
WILLIAM M. CANNON,

NO.

09-CV-018149

5 6 7

et aI,

<c~[P>y

Defendants.

---------------------------------------------------9

MOTION

HEARING

10 11 12
13
14

-----------BEFORE

-------------------------------------JR.,

HONORABLE CHARLES F. KAHN, CIRCUIT COURT JUDGE PRESIDING MARCH 10, 2010

THE

15

PEA RAN

S:
Law,

16
17 18

JAMES

CLARK and ADAM CRAWFORD,

appeared on behalf of the Plaintiffs.

ROBERT

Attorneys at

L.

HABUSH,

Plaintiff,

appeared

in person.

RIC GASS,
19
20

Attorney at Law, Defendants.

M.
CANNON,

appeared on behalf of the

WILLIAM

Defendant,

appeared

in person.

21 22
23
24
BONNIE

Official

H.

DOMASK

Court Reporter

25

(
-\.

1 2

RAN

RIP

PRO

DIN

THE CLERK:
Habush

This is the case of Robert L.

3
4

and others versus William M. Cannon and others,

Case No.

09-CV-018149.
MR.
CLARK:

Appearances.
Good

5
6 7 8 9

afternoon, your Honor.

Adam

For

the
&

plaintiffs,
MR.

James

Clark and

Crawford of Foley

Lardner.
GASS:

For the defendants,

moving party

today, Ric Gass, Gass, Weber, Mullins.

THE COURT:
Good

10 11
12 13
14

afternoon,

Mr.

Gass.

Good

afternoon, Mr.
Good

Cannon.

Good

afternoon,
Good

Mr.

Clark.
Mr.

afternoon,

Mr.

Crawford.

afternoon,

Habush.

We're here as Mr. Gass pointed out,

for

15

decision and determination

on the issues

raised in the

16
17
18

defendant's motion to dismiss the single claim in this

lawsuit.

I'm going to begin by describing

and my

few

introductory matters
what

view or understanding
Then
I

of

19

it

is

we

are here

for.

have some questions

20
21 22 23 24

for each of the attorneys;

attorneys

and

after that, the

will
I

be

free to argue whatever you want in

light of the issues in this case.

Earlier,
and made
a

was here before

we

got on the record

comment

that

it's

nice to see my friends

a

25

here back in court.

As we

did discuss in

telephone

(
~

1
2 3
4

conference

on

the record earlier in this lawsuit,

now
I

have been practicing law

think

it's

34

years and
I

during

my

entire time

as an

attorney and judge,

have

had the pleasure

know Mr.

of really learning from and getting to

and Mr.

Habush

Cannon,

both of whom
I

have

6
7 8

great respect for;

gotten to
firms.
We,

and

in addition to that,

have

know

several of the other attorneys in their

as

matter of fact,

all
I

have had

trials

10

together

with the
a

fortunately

have never been on

11
12

the other side as

Mr.
I

defense attorney with either

Habush or Mr.

Cannon as the

plaintiff's

lawyer, but

13
14

had the pleasure

to be the judge in cases prosecuted

by Mr.

Habush and Mr. Cannon and by several of the

15

other lawyers in the firms.

So when

16
17 18

the attorneys and

agree that

would

stay

on

this case,

it

was

done

really with the

make

understanding
who
I

that I'm probably going to

a

someone

19 20

respect

little

unhappy

at the

end

of this

hearing today
as we go along

and

also perhaps

if

the case goes further

21
22

with the lawsuit.

a

This is different from

circumstance in which the

23
24

lawyer is someone known to the judge and someone that the judge has some kind of social relationship with.
Because

25

here

we

have the two parties as attorneys

who

(
~

have been

in practice all the time

Although,
as
I

have in the
we

2 3
4

community.

said before,
I

don't have
any

close social relationship with,

the lawyers or the other lawyers
Now,

don't, with

of

in the law firms.

5
6
7

of course,
I

that's all done with the

understanding that

really can't

do

anything here
but what
I

today.

say that

little bit

flippantly,
we

really

mean to say

is that although

have serious

work to do this afternoon on this matter, the end

10
11 12

result is going to

be

legal determination that will

and

be reviewed by the Wisconsin Court of Appeals

perhaps by the Wisconsin

So

Supreme Court.
you

13
14

if

you get

ruling that

don't like today,

I

just remember,
and

you know,

I'm just doing the best

can,

15 16 17 18

will certainly

expect that the matter is going to

by someone

be

totally
Now,

de novo reviewed
know

else.

Of
you

course, you
as

that.

don't have to

tell

that.
we

to the substance
The

of the matter that

19

have today.

first

thing that you should know is

I

20 21
22
23

that

have read

all

the briefs, and

case law

have read
you have

substantial portion of the

cited,
and
I

that

appreciate all the effort that the lawyers have put into this and probably the clients too to
provide
me

24

with

thorough 50-page analysis from each

25

side, plus the reply brief.

(
1 2

Now,

guess

should confirm that

a

initially.
from

What

had received is

motion to dismiss and the

then the response

3
4 5

brief supporting
Mr.
was

it

and

Clark and then the reply from Mr. Gass, and there some additional documents as well. Was there
I

6
7 8

anything else that

today?
Mr. Clark?
MR.

was supposed

to have read for

CLARK:

Yes, your Honor.

Mr.

think
Gass

subsequent to the

filing of briefs,
a

sent you

10
11
12

letter
you

sometime

in February that had

and then

some

material
I

attached to
a

it

few days

after that,
additional

sent

letter that
attached
THE

had some material,

13
14

materials

to that.
Very good.
I I

COURT:

do

recall reading

15 16
17 18

Mr.

Gass'

letter.
Perhaps

do

not recall reading Mr. Clark's

a

after that.

you can show me

copy.

Just hand

it

to our clerk.
(Tenders document.)
THE

19

COURT:

Thank you.
Your Honor,

20

MR.

CLARK:

it

looks

like

the last

21
22 23
24

couple

of pages

on our copy

fell off of
that should

what was
be the

attached to the
pages.

letter,

so

last

few

THE COURT:

Thank you.

This is very nice to

25

get

letter

on

the substantive matter, which is less

( \

than

page and

half.
and
I

Then

of course there are the

2 3
4 5

documents attached,

have now read the

letter

and

looked at the attached documents.

Actually,
now, Mr.
was

what

I'll

do

is

hand

this back to
our copy.

you
When

Clark,

and then we

will find
on

6
7

it

received?
MR.
CLARK:

Filed

February 19th, your

8
9

Honor.
THE COURT:

We'll find ours then

I

and put

10 11
12 13

it

in

our

file.

As

you see,

printed out the statute here

for everyone

because

wanted

initially to just
we have

make

sure we stay focused on what

here.
and

It

appears

to

me

these are

some

general impressions
and then again

14

introductory remarks,
whatever you want.
By

15

you'll get to

say

the way,

those of you

who have

16
17 18 19

been here before know

who

that I'm not really picky about

either of the clients want to

gets to speak.

If
me;

add something to what the lawyers are saying,

that's

not

big deal to

that's fine.
be

As
a

20
21

matter of fact

in any event, that's not going to

Mr.

problem or
and

Crawford wants to speak

if

up as

well

22 23
24

it's
that's

something

fine,

that the team agrees is appropriate, that is the plaintiff's team.

I

So as

have repeatedly

said, in

some

25

of the cases

that

you have been involved

with these parties

6

--

have

1
2

been involved

in,
I

can

benefit from whatever

a

you

offer

to me, that is
a

have got

lot to learn
I

3
4 5 6 7

and you've got

lot of the

knowledge that

need in order to decide

on the case,

in any case.
the single claim in the

What the issue here as

lawsuit filed by the plaintiff is one cause of action.

It's
We

state court

cause

of action based

on

8 9

state

statute.

In that respect,

it's really
I

quite simple.

have three

plaintiffs

and one cause

10
11

of action, and

the portions of the statute that

think, at least
here this

until

hear differently from

are the important

someone

12

afternoon,

relevant
I

13
14

helpful portions

of the statute are the ones that

There's
one

printed out.
I

other portion of the statute that

15

16
17

18 19 20

decided not to print out relating to the frivolous lawsuit that I know the defense is asserting; but frankly, if there is such a claim, that's for us to work on this afternoon. It's not that I didn't
recognize

that Mr.

Gass has been arguing

was

that the
and

lawsuit filed by the plaintiff

frivolous
on

21
22

there's
subject.

precise portion of that statute

that

23

Part of what I'm explaining here is

don't think
we

24

there's been any assertion by any party that

beyond

need go
a

25

the statute.

What

you have provided

is

lot of

(
1 2 3 4 5

case

law and argument to help

me

the statutes means in the context

determine what exactly

of the issues in this

any

case.

But what we do not have

is

assertion by the
law,
such as

that any concept of constitutional freedom of speech or preemption, such

as

parties

6
7

federal

trademark principles
us

might make us away from or require

means

8
9

to consider anything beyond what this statute applied to the facts as set forth in this lawsuit

in

this case in the State of Wisconsin.

10
11

It
helpful.

doesn't
There

mean

that

New

York cases aren't

New York as you

is

similar statute in

12 13
14

both pointed out,

but

it's
I

just that
can see.

we

are not dealing

with any issues as far as

you my

Again,

I'm giving
or

initial
to
I

impressions

and you can respond

11m

15

rather parameters
just
seems
me

is what

talking

now,

16 17
18

and so

it

that's what

we

are talking about and

that's

why

printed

it

out here

in the excerpted form

that relates to this.

Another point

19

that

we

all

recognize

20
21

is that the

22 23
24

language used in the statute and that's been used historically in the development of case law is that the claim by the plaintiff is a claim with respect to the

right of privacy, but

as the Wisconsin court pointed

25

out in the Crazy Legs Hersh case, and I believe it was 1979, this right of privacy is not the kind of privacy
8

(
1
2 3
4

that
to be

we

normally think of
alone or the

when we

think about the right

have no one know what

left

right to

we're doing.
Rather,

it's

an unusual view

5 6
7

of the term privacy,

which is also often referred to again as both of you

know as
a

right of pUblicity,

the right

to control

how

8 9

is used, the right to control the publicity attributed to or with the publicity
arising from the
person.
name

one's

own name

of

famous or accomplished

10

11 12

In the statute itself, there are three different torts alleged or rather allowed or described, and
of them relate to more of
privacy.
Those
a

two

13
14
15

traditional

view of

really

have no
you

--

my

initial

impression

that

you can dispute

if

want to

16 17
18

is that those other

two causes of action,

which

other two privacy type torts

alone,

relate more to the right to be left

that
to
do

they are entirely unrelated to the work

today.

we have

19

That again as the Hersh case points out,

a

the

20 21

right of publicity is
That

different

type of privacy

tort.

is again

why

excerpted the statute here for the

22

text that is displayed.

What
I

23
24
25

would prefer to do at this point is ask

couple of questions of each of the attorneys relating to some of the arguments you made before I hear your

general presentation.
Any problem
MR.

2 3
4 5 6 7

with what, Mr. Clark?

No,

CLARK:

your Honor.

THE COURT:

Mr. Gass?
The only

MR.

GASS:

thing
my

would offer,

your

Honor,

the

first

15 minutes

of

presentation are
the arguments.

going to dramatically
Your

short-circuit
but
we may be

8
9

call obviously,

getting into things

you hear the

that are no longer relevant

minutes.
THE COURT:

after

10
11
12 13
14

first

15

Any problem

with that, Mr. Clark?

your Honor.
Gass.
As

MR.
THE

CLARK:
COURT:

Whatever you prefer,

I

think that's fine, Mr.

don't you
go ahead?

the moving party,

MR.

why

15

GASS:

Thank you,

your Honor.

16
17

I've
of

been

doing this for 40-some

time
I

years.
a

This is about the

first
an

have ever made

request for somewhat

18

indulgence.
you what
I

The indulgence

is kind of
in the

why

19

just told
and

was going

to

do

first

15 minutes,

20
21 22

the indulgence is to suspend your thinking, general but about the briefs. When I

not in

finish with

everything

have to say,

have both hard and

23
24

electronic

copies

for you

and

for Mr. Clark of the

I

25

slides I'm going to use to walk you through this, and also have hard copies of the a

materials of

judicial

10

1 2

notice nature that I'm going to call to your attention.

So as
I

sat

down

and

3
4

this

tried to -- let

me

just drop

down

little bit.
COURT:
CLARK:
I

THE
MR.

Mr. Clark,
I

can you see that?

think so.

6
7 8

It

depends

on where

Mr.

Gass

stands

guess.
Anyone

THE COURT:

is free to

move around

you want.
MR.

if

GASS:
I

So as

tried to think

10
11

through this

whole thing,

found myself getting away from verbal

me

and

it

was

helping

to get
I

it

down

into

some

12 13
14

very

specific points

and where

started with is

some

very

basic propositions

that

don't think any of

us would

have any quarrel with.

The

15

first is

to fix what

it

is that the

16
17
18

plaintiffs

are suing over.

use

They're suing over what they call the

as search

of their surnames

words

in

any search

engine.

Just happens that they attached

19

to their brief

20
21

22
23
24

the Bing search with the surname habush, uncapitalized, the Google search, same thing, smaller letter 'H' and the Yahoo search. But they could have searched in any
search engine,
name

and

it's their
so

claim

if

you use

their
brings

as

triggering device

that that

surname

up search results that at the beginning

of

25

sponsored

link before their

web

site

shows

__

11

(
1 2 3 4 5

(
THE COURT:
MR.
THE

Mr. Gass.
Urn-hum.

GASS:
COURT:

You

look at the whole page that

screen

you have up there

MR.
GASS:

on the

Right.

6
7 8

THE COURT:

-From

where does

it

say sponsored

link?
MR.

GASS:

this result from

Google,

doesn't

it

say

it.
Yes,
Oh,

10
11 12

THE COURT:
MR.

it

does,

on the
I

right.

GASS:

I'm sorry.

thought you meant

right
right.

up

here,

but

it

does

call it

out over on the

13 14

THE

COURT:

Call

it

out

is

15

term of art

you're using here.

MR.

16
17 18

GASS:

Right.

THE COURT:

It's

actually

so

far over
use

on

the

page

that

you even cut

it

off for the

19 20

of the slide

when you created the

MR.

slide.
Perfectly legitimate
observation.
a

GASS:

21

It

doesn't

show up
a

22 23
24

well in the slide, but there is

coloration,

slight transparency of yellow that

way through
I

follows all the

THE

that.
that.
There's
a

COURT:

see

25

slight

highlighting that is

background color that's applied,

12

(
1 2

(
generally think of as
Although,
a

which

we

highlighter type of
So

color.

3
4 5

it's

in this case, it's very dull. not describable.

MR.

GASS:

Right, right.

So what

they

complain about is that search term habush and then the

6
7

result of

Cannon

&

Dunphy showing

up as

sponsored

link.
THE

8 9

COURT:

When you say habush,

you're

obviously

not saying the word the way Robert L. Habush

10
11
12
13
14

would pronounce

his

name

to

make

the point that

it's

just

word.
MR.
THE

GASS:
COURT:

I'm sorry, yes.

Okay.
So

MR.

GASS:

that's

what they complain

about,

15 16 17 18 19 20

but I'm going

to ask you to remember this slide because

a

this is only half of

about
So

slide you're going to

I

see in

five minutes that

sue

call 'the rest of the story'.

plaintiff

in equity only for equitable

relief.

That's what the suit has brought,

premise of the

and the fundamental

no one should

plaintiff's

case

is that

21 22

arrange to have ads or links triggered

when an

Internet

23
24 25

search is done on someone else's surname, and that's, they, the plaintiffs have never done

that.

THE

COURT:

Just

minute.

If

you

don't mind,
or links.

I'm going to

use my Bing

too.

You say ads

13

(
1 2 3 4 5 6 7 8

(
MR.
GASS:

Right, because the whole purpose of

go

the

link is to

get somebody to go to one link or

to

the other link and compare the two.

THE COURT:

I'm going to just take

minute

here and cover one other background aspect of

MR.
THE

this.

GASS:
COURT:

Okay.
As you may know
I

or

may have

heard

from

talking to others,

tend to

be

particularly
I

interested in technological
mentioned
been
a

issues.
on

may have
and
I

10
11
12 13
14

it

when

we spoke

the phone,

have
many

member

of the

CCAP

Steering Committee

for

years and was one of the designers

for the
a

web

site

that

CCAP

uses for court

data and

strong proponent of
on

this keeping

that data for free public access

also
I

the

15

Internet,

and

worked on redesigning

it

to make

16
17

it

workable

from time to time.

Despite that, once this lawsuit was

filed,

18

decided to avoid doing any independent Googling myself,

and
I

19 20

have not looked at how this works on the Internet

with Google, Bing or Yahoo or any other search engine.

I

21
22 23
24

just wanted to give

me,

you

that background that what

me

you're giving

what you're showing

and the

exhibits to the complaint are not at

because
searched
I

all unfamiliar
and
I

do Google

searches

everyday,

have not

25

for

Habush or for

Rottier or for

Cannon

or for

14

(
1 2 3
4

anyone else who could be related in this case because

of the
know

in general

it's

appropriate

for lawyers

to

what the judge

is doing

and how the jUdge

is

getting the information that the jUdge is going to make the decision on. So I have refrained from doing that,
Now,

6
7

that's sort of preliminary to

my

question to

you,

Mr.

Gass, when you referred to what you are

me

8
9

telling

are the plaintiff's position

GASS:
COURT:

here.

MR.
THE

Right.
That no one should arrange
when

10 11

to have

ads or

links triggered

an

Internet search is done

12 13 14

on someone

else's
is

surname,

that that's the issue here.

whether or not

The other part

more than argument,

Habush has ever done

that.

What

want to ask you

What lS

15

about is the difference between ads and links.

16
17

apparently from

my

understanding

at issue in this

case

is what

we

generally refer to

as the sponsored

links

18

arising from Google ad word programs or something

19

similar with

Bing and Yahoo.

There's
a

an

additional

20
21
22

opportunity for the advertisers on

web page

in terms

of

my

recollection of what these

Often on the right side,

pages look

like.

there are advertisements

23
24
25

that

pop up

that look like advertisements

a

that

do not

look like the actual Google response to

search.

It's

like advertisement theoretically for

15

dog food could

(
1

come up.

But more

likely, of

course

we

know,

mean

2 3
4 5 6 7

any sophisticated

user of the search engines

knows

that

the ads that pop up on the right are often going to be I related to the search. don't think that's an issue

in this case.
shows

think only the

sponsored

link that

up

is
a

an issue

in this case.
we may

As

matter of fact,

deal with the issue of

8 9

the sponsored link today or perhaps in the future and still leave unanswered the question of whether the
advertisement
on

10

the right side of the Google page that

use

11

looks to users to be an ad is an unreasonable

an unreasonable invasion of
a

12
13
14

-- is
as

live person's privacy

set forth in this statute.

MR.
GASS:

The

15

plaintiff's claim is that it is

a

the use of the surname triggering

competitor's

name

16
17 18 19 20

in what they have attached to the complaint are

sponsored

links, but
THE COURT:
MR.

it
So

could

trigger either.
could

Yes.

It

trigger either.

GASS:

generically
I

it's

the

same

thing.

THE

COURT:

You know,

don't think

if

21 22

Clark has to bite off more than what he has to in this lawsuit, I didn't see that in the complaint, and
Mr.

23
24

so my question

again is what I'm telling you is

don't

25

that the display ads that often show up on the right side of a search result screen are at issue here.
see

16

1 2

MR.

GASS:

Well,

if

you

give

me

just

few

minutes,

can complete

the circle.
When
I

3
4

THE COURT:

Right.

say

that's
I

what

I'm

telling

you,

what

I'm asking is

why should

think

5 6
7

differently?
MR.
GASS:

That's what I'm going to get to in

about two or three slides.

THE COURT:
MR.
GASS:

8 9

Okay.
And

Go

ahead.
I

the reason why

have made
a

put this last

10

part in that the plaintiffs

very big point

we

11

that they
equity.

have never done

this is
I

because

are in

12 13
14 15

Mr.

Habush

has

said and

have got the

judicial notice material for all of his statements that

they wouldn't have done
believe

it

to

someone

else.

They

it's

deceptive

and confusing.

They never

16
17

profited off of the

etcetera.
So

name

of the reputation of others,

18
19 20

what

I've

done to

this point is I've said what

do they sue

for and that the plaintiffs take the

position they have never done

it.

And

the principle

In

21

equity that

plaintiff

who

asks

for affirmative

relief

22 23
24
25

has to have clean hands before the Court

will entertain
and

the plea is both ancient and universally accepted,

I've pulled
rule,
before

out

couple of cases but we

all

know

that

the Court

will entertain his plea

17

and

(
\

(
where
we

1
2

that's

are right

now

is motion to dismiss.
you

The Clean Hands Doctrine,

can't

sue someone

3
4

for something you're already doing to them.

most

It's

the

basic
I

maximum

of equity, and here

The

it's

from the

5 6 7 8 9

case that

just cited before.

he who has been

general principle

simply is that
misconduct

guilty of substantial
so

in regards to the manner in litigation

that

it

has

in

some measure

affected

the equitable
and

relations subsisting between the two parties

arising out of the transaction
when he comes to
So

10 11

is not afforded relief

court.
who sue

12 13
14

plaintiffs
use

with unclean hands are

subject to dismissal.

These

plaintiffs

sue

in equity

for the

of their surnames in Internet search

the display in search results of
What

15

engines that trigger

the
name

16
17

of

competitor law firm.

I'm going to

show you

is

it

doesn't make any difference whether

it's

18

in ads or sponsored links.

THE COURT:

It's

the

same

thing.

19 20

Mr. Gass,
a

you're the one that's

one

arguing in order to have

cause of action here,

of

21
22

the elements of the cause of action is unreasonable

use,

right?
MR.

23
24

GASS:

Exactly.
Okay.
So you

THE

COURT:

don't think that

25

ultimately

fact determination

could be made that one

18

(
1

use is unreasonable
MR.

and another use

is not?

2 3
4

GASS:

Not in equity and

who

I'll

show

you
use

why.

If

these

plaintiffs

sue
&

in equity for the

of their surnames use the

Cannon

Dunphy surnames in

Internet search engines to trigger the display in the

search results of the
name,

6
7

Habush,

Habush

&

Rottier,
thing.

in either

ads

or sponsored

links, it's the

as
a

same

8
9

It

is the

use

of the
them

surname

triggering device
for this

that

has brought
THE

into this court.

So

10
11
12 13
14

COURT:

you're

now

argument

saying that unreasonable

MR.

isn't

an element here.

GASS:

No.
a

Reasonableness

or unreasonable

is always going to be
preface

factor because
What

it's

in the very

of the statute.

I'm going to demonstrate

hands

15

to you is that either their conduct is unclean

which throws them out of court or

16
17 18

it

demonstrates

reasonable use of surnames.

THE COURT:
MR.

Okay.

19

GASS:

If

these

plaintiffs

use the names

20
21

of other attorneys, including Cannon, Dunphy or Gass,

and I'm gong to show you that in
a

minute to trigger

22
23
24

advertising,
own

that would be unclean hands under their

theory and mandate dismissal.

and

If

plaintiffs

did

that

didn't reveal

it

to this Court when they

that

25

started this action or as this action progressed,

19

(
1 2 3 4

(
duty of candor.
you

would

violate the

It's

totally

different case
have

if

learn today that the plaintiffs

&

used the names Cannon

and searches.

Dunphy

to trigger Internet

advertising

5 6
7

THE COURT:

It

certainly

would be uncouth

if

they had not disclosed

and by the way
MR.

that even

if it's

in the ad form

--

Please

keep going.

8 9

GASS:

It

would mandate not

just dismissal

but

think sanctions.

If

plaintiffs

did what they

10
11 12

sued the defendants

for doing,

if

they did

that,

think the analysis starts there

dismissal.

and

it

ends

here with

13
14

If
allege
names,

plaintiffs

did exactly what they sued the

would be
and

defendants for,
an

it

either

as the

plaintiffs
upon

15

intentional

illegal effort to trade

and goodwill

16 17
18

personal

reputations

and

non-authorized commercial use of the names,

unclean hands but see the
use

thus

'or', or

it's

reasonable

19

of search terms of the defense position.

THE COURT:
I

20
21 22

mean,

know you have some value

out of the surprise here, but generally in the courts

of law

we

dispense with that as an appropriate means of

Why

23
24

advocacy.

wouldn't

you put

this argument in your

what you plan to do.

brief?

haven't
MR.

seen exactly

25

GASS:

Right.

20

(
1
2

(
THE

COURT:

But

certainly
You've

if

Mr.

Clark asks

for time to respond to

pages.
I

it.

used up your 50

3
4 5

don't

know

if

I'm going to give

you anymore

pages but
MR.

GASS:

Remember,

Judge,

we

are not talking

own

6
7

about

some

new evidence outside

of the plaintiff's

brain.
the two
about

This is knowledge

that resides uniquely with

and
I

8
9

plaintiffs in
just recently.
THE COURT:

the law firms,

learned

it

10 11
12

Just

minute.

I'm going to hear

from Mr.

Clark.
MR.
THE

GASS:
COURT:

Could

just finish the

13
14

Hold on
Okay.
But
I

just

second.

MR.
THE

GASS:
COURT:

15

certainly at the

end

of your

16
17

presentation,

which

intend to see, the

plaintiff will
a

have to be able to have time

mean,
you know,

to marshall

response.
any judge

18

it

just wouldn't be

fair for
totally

19

to

do

that to

any

party, to have

new argument
show

20

presented that is going to

somehow

at

21 22

least in the eyes of that

one

party totally
giving the other party
a a

short-circuit the

case without

23
24

reasonable opportunity to provide and coordinate

rational response.
MR.

25

GASS:

And

that's exactly what

was going

21

(
1 2

to say at the end of

THE COURT:

Just

minute.

Mr.

Clark,
now?

lS

3
4

there something
MR.

that

you want

to say right

CLARK:

Yes,

your Honor.
We

It

picks

up on

5 6 7

what you just mentioned.

dealt with all sorts of

things in their briefing that from our point of view

was

outside of the record.

we

Some

of

it

we
I

ignored and
have been

8 9

others

responded

to.

In all the time

practicing
Not only do
no

law,

have never seen anything like this.

10
11

they not put

it
me

in their brief,
none.

but

have

idea where he's going with this,

But he had

12

ample opportunity to

let

know

before this hearing

new issue that

13
14
15

that he
he

was going

to raise

an

entirely

thought

had some bearing on whether or not

this case

should be dismissed.
I

16
17

sent over to him over the

him

last four
I

days

two or

three emails telling

things
I

specifically

had additional
and
I

18

wanted to bring to the Court's attention

19

what those were and send him copies

no

of them, and

got

20
21 22

indication from Mr.

new

Gass

that he

was today going

to

spring an entirely
hearing.
I

issue and argument on us at this

23
24 25

think that is entirely unfair,

and beyond
The

entirely

inappropriate
the record.

that, your Honor,

it's

outside

record in this case is the complaint.

22

(
\,

(
a

1 2

This is

motion to dismiss.

The

question

is

when

there's

motion to dismiss,

does the complaint

state

3
4 5 6 7 8

cause of action.
THE COURT:

Hypothetically,

if

Mr.

Gass had

the information
as
a

and the evidence,

could he have

filed
could he

different

motion to dismiss,

not e-filed,

have

filed

motion to dismiss based on his assertion

has unclean hands

that the plaintiff

right at the
a

outset based on the argument

he made from

case that

10

says that the claim shall not be entertained?

MR.

11
12

CLARK:

Well, your Honor,

think

he could

have

filed

motion, sure.

That's what he should have

amend

13
14 15 16
17

done or asked the Court

we

to

the current motion so

and do

could address

it

and

brief

it

it

in the

way

lawyers usually do things with orderly due process so

we have

an

opportunity to

know

where he's going and to

respond

without getting

ambushed

with this at

hearing

18

that

we

waited quite awhile to get scheduled.

THE COURT:
MR.
CLARK:
I

19 20

Right.
And

the other thing is, your

21

Honor,
To

again,

don't

know where

he's going with this.

I

22

the extent he's going to argue and

suspect he

will

23
24 25

somehow because

he's going to argue from whatever he's

got that there's unclean hands, and therefore

should be no entitlement to an injunction.

there

23

(
1 2 3 4 5

In
we

my

view, that's an issue for

us

to address
the Court

when

get to the injunction stage.

we

And as

will

hear when

get to that stage, when you're dealing

with this statute and there's law to support this,

there

if
you

is

violation of

the statute,

the statute is

6
7

mandatory with regards to injunctive

have mandatory injunctive

relief.

Where

relief,

you

don't get into

8
9

issues like unclean hands and other things.

It's

question of whether the statute has been violated.

So even

10 11 12 13
14

hypothetically,
what
I

let
what

me

just

say

hypothetically
something and

they're going to say, they found

know

don't

it

is that they would

make any

say is agreeably

analogous.

It

wouldn't

difference, your Honor, because the question

is the practice of violation of the statute;

still
and

is,

15
16
17

if it

is, the plaintiffs are entitled to

an

injunctive

relief.
are,

If

they're doing something, the plaintiffs

18
19

that

would equally

fall

within the purview of the

statute,

then they can't do

it

either.
hands,

20

But the question of unclean

your Honor,

21
22

here under circumstance where the statute

is mandatory

with regards to the injunction,

cases

could provide the

23
24

to your Honor for support of this, doesn't get

into the normal case, the normal issues like

irreparable
harm and unclean

25

hands and those

sorts of

24

(
1 2

things.

If
our

the Court determines

violation of
issue an

statute,

legislature

has said you

3
4 5 6 7

injunction.
THE
COURT:

Okay.
I

Well,

I'll
I

get to that in
Gass

minute.
continue

In the meantime,

will

allow Mr.

to

with the presentation and

do agree with you,

Mr. Clark,

I've already said that if it turns out that

links in its advertising
and

8
9

the Habush Firm is either using the side-bar ads or the

sponsored

did not disclose

10
11
12 13
14

that to the Court in the course of this preparation for

this hearing,

well, that that

would be uncouth.

also

completely agree with you

MR.

--

Just
know

minute.

CLARK:
we

don't

what he's talking

So

about

until
THE

hear what Mr. Gass has to say.

we're

15

just speculating

here, your Honor.

I

16

COURT:

also completely agree with

to bring
a

you

17
18 19

that what Mr. Gass is doing here today,

whole new argument that wasn't planned,

that

was not
done

part of the motion and

ambush,

it's

an argument
I

that is
I

by

20 21
22

that that's also uncouth.

mean,

agree with

you on

that too.
Now,

as

far

as whether

either side is going to

be

23

entitled to

some

kind of sanctions, which you know

cases
But
I

24
25

really assertive powerful people seek in

this, well,

like

I'll

have to consider

that.

will

say

25

('

without talking
anyone

about

the legal aspects of

it,

whether

has

violated the duty under the rules of

a

3
4 5 6
7

professional responsibility or anyone has filed

frivolous claim which entitles the other party to

sanctions,
appears
I

will

say

in general lay terms that

it

that the defendant's argument presented here

on something

for the first time today

that the
now

8 9

plaintiff

has been undisclosed

I

until

that that is

uncouth as well and

So now,

agree.
please continue.

10 11

Mr. Gass,
GASS:

MR.

And

just

brief

statement
I

as

to

12
13
14
15

why
I

didn't

do

it

any

differently.
about
same

already told you

two,
I

just recently learned

this.

And number

thought about exactly the

spoken on.

things that you've

just

If it
I

was

new argument

with new authority,

16
17
18 19

etcetera,
there.

would have done something to put

it

out

But remember, this is an argument

only about

the unique knowledge that resides

own

in the plaintiff's

heads.

They did

this.

They knew about

it,

and

20
21

they were implicit in their claim because they sue

somebody who

is doing this
So

and they say,

knew

we

wouldn't
why

do

22 23
24 25

it

to anybody else.
but
I

they

it.

That's
and
I

it's

not new,

appreciate your
so
I

comments

appreciate your allowance

So

can go ahead.
unclean hands

it's

an

either or.

It's either
26

(
1 2 3 4 5

(
the reasonable
use

or

it

demonstrates

of surnames

in

search engines.

Mr.

Clark might be saying to himself

he

there are bits and buts or candy and nuts, does

really

have

it.
the

As

you might

have

started to suspect

it's
over,

not,

if

plaintiffs are
what the

doing what they sue

doing what they

6
7 8

if

that's
Not

plaintiffs are
I I

sue over.

if

they are doing exactly that.

can go
know

I've

got my computer set up so

live in the

courtroom on the screen.

you've got wireless

You'd be able to do

10
11 12

here.

You've got

computer here.

the

same

thing.
THE COURT:

Not without the

plaintiffs
how

having

13
14

the same opportunity.

MR.
GASS:

Okay.

So
a

here's

they've

been

15

doing

it.
that
And

Mr.

Habush

is

long-time advertiser in the

page right out of the phone

16
17

Yellow Pages,
book

and

here's

you can take

judicial notice of.

com,

18

if

we go

to Yellow Pages dot

a

they have
web

19

web

site.

This is

page right

off of their

site
how

20 21
22

and

it

says,

it tells

people

who

use Yellow Pages

they can target your customers and

your

how you can improve

listings on-line visibility in

The web

search

results.
So

23
24

site

shows

the copyright
been

date of 2007.

this is

program

that's
And

available for probably

Pages

25

three plus years.

there is the Yellow

search

27

('
1
2 3 4 5

engine,
Yahoo.
name,
a

search engine very similar to Google,

a

Bing,

You have

place where you

a

fill
The

in

first

last
a

name,

city,

state.

only one

that's
So

required field is the last name.

there is
a

companion

site to the Yellow Pages

name.

6
7

called

Anywho.

Same

thing, required last

and so

Put

that information in
Rottier,

if

you were searching and then

for
him

8 9

you could put

Rottier in
the
same

find

in

Anywho and you could do

thing in Yellow

Pages.

10

If

you put in Cannon

&

Dunphy, what Mr.

Habush and Mr.

do

11
12 13
14

Rottier

have arranged

for the Yellow Pages to

is to

kick out side by side an advertisement

when Cannon
THE
&

for their firm

Dunphy shows
COURT:

up

in the search results.

Okay.

And what

you're

now

15

highlighting

and

enlarging and using your power point

ad which

16
17

facility
caps

is

right-side

is under

bold,

all

heading called Category,

hyphen,

Related

18

Advertisers.
MR.
THE

19

GASS:
COURT:

Correct.
Then the

20 21
22 23
24

first

one

that

responds

apparently

from what you're presenting here is an ad

Habush
&

for

Habush,
&

Rottier, S.C., with the Habush,

and phone

Habush

Rottier

logo and the address

number,

and that is also

web

linked in

more information for

a

their

25

site

and

also the ad

itself is in
28

different

(
This one being
a

colored background.
sky blue background.
MR.

baby blue or dull

2 3
4 5

GASS:

Correct.

And what

know from the

and what you can determine by

judicial notice going

To get

to Yellow Pages dot

com

is this is paid for.

to pay for

6
7

that

number

one spot,

you have

it,

and

they

will

allow

four firms in order.

They charge more for

8 9

number
So

one than number two and on down the

line.

the people that said we have never profited on

and reputation of others,
I

10
11

the

name

would not do

it

to

somebody

else is doing and has been doing exactly the

12
13 14

same

thing.
THE

COURT:

And

you're quoting Mr.

Habush
a

when

he was being interviewed

or something or making

15

statement in response to your

time he

filing
I

of this,

at the

16
17

filed
MR.

lawsuit.
Yes,
and

GASS:

have

all
I

the copies of
So

18

his press release and the statements.

have
a

obviously

19 20
21

little
The

self-interest

in this.

want to see

if

my name

would trigger

it

as

well and sure enough,

there

it

is.

ad comes up when we put

What you

in

my name.

22

THE COURT:

are displaying here

--

23
24 25

don't

know

if

you're
GASS:
COURT:

live
No,

on the

Internet

now.

MR.
THE

I'm not.
On

Okay.

your power point

29

(
1 2 3
4

(
box

presentation under the find

com,

in Yellow Pages dot

power

you typed

in or you're representing in the

Ric,
which

point,
spelled,

the typed-in text, Attorney

is

R-I-C,

Gass

is G-A-S-S,

location, Milwaukee,
now

5 6 7

Wisconsin,

and one of the ads on the right side,

a

it's It's
bold,

not referred to as

Category Related Advertisers.

Again,

called

Among

Featured Businesses.

that's

8
9

all

caps,

titled,
&

Featured Businesses

is the link
name

for Habush,
address.
MR.

Habush

Rottier, S.C. with the

Right.

and

10
11 12

GASS:

And,

Judge,

have

CD
I

with all of these slides, including the animations.

have one
one
use

13
14 15

for the record that

I

can give to Sam.

have

for your personal use.

that
I

have one for Mr. Clark's

can hand out as soon as I'm done.

Anywho

16 17 18

Here's the other search site,

dot

com.

This time

put in lower case the surname Dunphy,

The same ad comes up for the

location Milwaukee.

19 20
21
22

plaintiffs

over in the right-hand

corner.

THE COURT:
MR.
THE

Category Related Advertisers.

GASS:
COURT:

Right.
Mr. Gass, are you making the

23
24

assertion that these were recent searches that resulted

in these ads?
MR.

25

GASS:

Yes.

I'm going to

go

live in

30

(
1 2 3
4 5

(,

minute,

and

can show you that the

I

same
I

exact thing
came to court.

will

come

up.

tested

an hour

before

THE COURT:
MR.

Okay.
And there

GASS:
I

are the quotations

from

the

plaintiffs.
a

would not do

it

with someone else.

Cannon

6
7 8 9

Here's
such

Cannon and why

this is interesting is

is

ubiquitous

name

for

number of

different things
&

besides Attorney Cannon,

but notice Cannon

Dunphy
one,

does not show up here in the search

two,

results until,
up

10

three,
&

four steps down, and yet higher

than

11
12

Cannon
by the

Dunphy

is the

number one

advertising placement

plaintiffs.
name or

When

they have arranged

name

if

13
14

Mr.
ad

Cannon's

the

Cannon

is put in, their

will

come

up.
Same

15

Did my name in Anywho?

comes up

result.

Their ad
name

16
17 18

there.
I

Virtually,
I

any

attorney's

in
known
name

Wisconsin.

mean,
I

even did attorneys

who

are

for expertise.
because
I

happen to use Barbara

a

Burbach's
Even

19

know she's

divorce specialist.
come

for

20

her name,

the ad

will

up.
do

also found that

it
Pages,

21
22 23
24

takes
and

separate charge to

this in the Yellow

this is right off their

I

web

site.

put in

my

firm

name as though

wanted to do

this kind of advertising

YP

and to get on what they

call the
something

click

search engine

25

solutions.

This

isn't

that is advertent.

31

(
1 2

You have to not only think about

it,

but you have to

pay

for

it.
I

3
4 5 6 7 8 9

Here's what they complain about where

you,

started
use of

here is 'the rest of the story'.

Same

surname
and the

search terms.

The

results,

sponsored

link

results when the plaintiffs

do

it,

actually
up more
who

something that is almost more

space,
sue
more

visible takes

color, more contrast by the plaintiffs,

use of

for the

their
same

names,

their

surnames but

10
11
12

they're doing the

Mr. Clark

thing.
you,
and

didn't

tell

It's it's

story that

story that the

plaintiffs
Now,

never told you.

I

13
14

can go live to the Internet.

I

Where you

see the

blinking cursor,
I

happen to be in Yellow Pages

Cannon
&

15 16 17

dot com.
Wisconsin.

can put

it

in

Dunphy, Milwaukee,

Bring

my

cursor up and

hit find.
There
comes

Let

me

refresh.
Searching
comes

Well,

for whatever reason

the firm
name

it

is.
the ad

18 19

for Dunphy,
Done

up and

up.

by the lawyers who

in their complaint,

20 21

in their complaint trumpet that they pioneered their

copyrighted
phrase
knowing

the law.

They have to be

22 23
24
25

held not only to

know

the law, but to follow the law as

well.
So
I

think

it's

dismissal either for reasonable

use or to take

their plea,

illegal
32

unclean hands.

(
1 2 3 4 5

(
I

Here's the conclusion

unreasonable use of
are doing

think

we

draw.

It

can't be
themselves

names

if

the

plaintiff

it.

It

can't be an unreasonable invasion of

the right of privacy and publicity they're doing.

It
a

can't be illegal.

They're doing

it.

It

can't be
name.

6
7

misuse or misappropriation

of another's

It
by

is

just plain flat

out part of the

Internet today
a

8
9

searching by words and names on

And

web

site.
articles, like

it

can't be

all

the things

that they accused

10
11

Bill

Cannon

and Pat Dunphy

in the

news

Bill
that

Cannon's
because

moral compass

needs repair.
same

It

can't be

12

they're doing exactly the

thing.

If

13
14

plaintiffs with the reputations

complaint
do

they claim in their

and

with their public claims of righteousness

15 16
17

this,

how can

that

same

conduct

by Cannon

&

Dunphy

be unreasonable or
engage

illegal?

It's

not

if.

They did

in that conduct
I

and they never

revealed

it

to
I

18 19

you,

and

only happened

to stumble on

it

because

was
we

using Anywho.

If
who

wouldn't have been doing that,

20

would argue this case without you having any idea that

21
22 23
24

the plaintiffs

sue

are doing exactly the same

thing.
Since they did exactly that, what they sue for?
I

think
or and

it
we

ends
know

here with dismissal.

Because

it's

either

25

it

can't be inadvertence because

it

cost

33

(1

(
,

like

600 bucks

month to get that through

Yellow

2 3
4 5 6 7

Pages.

Mr.

Clark surely had to have investigated

this

and asked his

So he

clients, are

you doing the same thing.

new

can't stand up and say this is surprise,

he had

material, because all

And

to do is ask the

CEO

of

the law firm, are you doing anything close to this.

all

they would have had to do is pull

their records

8
9

of what they're paying for.

Mr. Clark even went further.
December 3, 2009,
He

told

you on
a

10
11

in

letter

to you responding to

letter of mine,
bigger.
He

and I'm going

my comments

to bring

it

up

for

you

in

12
13
14

He
my

called

in

my

letter

outrageous.

said

letter that asserted selective

enforcement

was

not only immaterial but was supported by incomplete

15 16
17

facts.
names

Plaintiffs'

investigation
purposes

of the use of their

your

for advertising

and remember

questions

about ads versus sponsored links.

18

Here's Mr. Clark telling you,

plaintiffs'
for advertising

19 20

investigation
purposes

of use of their

names

on the various
one other

Internet search engine

21 22
23
24

uncovered

firm doing so other than the

defendant but doesn't

tell

you

that their

own

investigation would have revealed that they

were doing

it.
about

And

the implication

that our clients only care

use of

25

the defendant's

unauthorized

their

names

34

(
1 2

~.

to advance the defendant's

simply untrue.

commercial

interest is

3
4 5 6 7 8

Says there was no reason to

us before

sit

down

and

talk with

filing suit

because we've

continued to

practice of doing the

at the
same

Google searches

after filing suit

They

time that they're doing

it.

engaged
and

in that conduct.

It
I

violates
I

the duty of candor,

under the circumstances,

ask can the

plaintiffs
much to argue

really
about

proceed?

don't think there's

10

after this point.

I'm prepared to proceed

I

11

however the Court wishes.

suggested as

said

12

earlier, hear from

Mr.

Clark as to whether he's got any

Then proceed to sanctions.
I

13
14

defense to this issue.

can go to the arguments
on

that I'm prepared

to give based

15

briefs.
THE
COURT:

16
17

Well,

when you say hear

from

Mr. Clark, you mean give him time to respond,

to review

18

this, to analyze this

MR.
THE

and
I

write

brief?

19

GASS:
COURT:

No,

think right here today.

Gass,
I

20

Mr.
Go

have

couple

21 22

questions

for
MR.
THE

you.
GASS:
COURT:

on.

One,

take your time.

No.

23
24 25

Okay.

have no doubt when

up

Mr.

Clark wrote that letter and even

know

until

today he

did not

someone

at the Habush Firm had purchased

35

(
1

these ads, assuming that

it

was

someone from the Habush

com and

Firm that did that and on Yellow Pages dot

Anywho.

3
4 5

Of course,

he should
I

have time to be able to

respond

to the argument.
was

have no doubt that up until

as Mr.

today the position

just

Clark wrote in that

6
7

letter that

they were asserting that

a

it

was

inappropriate to use
person's

person's name,
business

some
web

other living

8 9

name to drive

to that

site by

advertising.
On

10 11
12
13
14

the other hand,

ultimately

what we have

is this

lawsuit which relates to the sponsored links,

question
might be
I

and the

have

for

you, Mr.
between

Gass,

the idea that there

difference

sponsored

links

and

side-bar ads that are clearly designated advertising

and look

15 16
17

like advertising
like

like

little bill
results,
I

boards

as

opposed to

search engine

never

suspected or thought that the Habush Firm might

18

possibly be using that functionality

any research
On

and

did not

do

19 20

myself as

told
my
I

you.

the other hand, in

preparation

for this

21
22

hearing this afternoon,

what

have been doing over the

last few
I'm sorry

weeks in addition to reading the ads and

--

23
24

--

reading

the briefs and in addition to

some

reading relevant portions of

you

of the case law that

25

cited is I've

been

trying to imagine various

36

(
1 2

effects or results or consequences to different

ways

that the lawsuit could proceed.

In other words,
would make
one way or
a

3
4 5

if

there would be

ruling,

if

ruling determining that the law applies

another in this case and

if

that ruling

6 7

becomes
Supreme

the ruling of the Court of Appeals or the

Court of the State of Wisconsin and

if

that

8 9

ruling then affects the behavior of lawyers

firms and others
decision,
commerce
who

and law

might be bound by

precedential
to

10
11
12 13
14

what would the results

be with respect

or with respect to the right of publicity?

Just as you argued in your

brief,
I

Mr.

Gass,

that

competition

is

an important

principle

that

we have

in

the State of Wisconsin,

and so

attempted in my
how

15

preparation to anticipate not only

here but what could happen,
what about Foley
&

the law applies

consider
same

16
17
18

and
Why

tried to

Lardner?
&

wouldn't the

principles

apply to Foley
&

Lardner even though

19

obviously Foley
Mr. Clark?
MR.

Lardner are not

living people, right,

20
21
22

CLARK: COURT:

Neither one are.

THE
I

It

would be
my
I

different

standard.

23
24

just tried to analyze in

One

mind

all

these different
and

factors.

of the things

actually considered
who

25

discussed with my law clerk, Ms. Jankowski,

helped

37

(
1

(
how

me

with the analysis of the issues in this case, is

would

it
the

be ad

different
that

if

the

search

results
a

came

from

3
4 5

-- if

popped up was not

a

sponsored link,
a

which appears to be

result of the search,

search

result from the search engine,

Google or Bing or Yahoo uses,

from the algorithms

in

6
7 8 9

but what
a

if it
how

was

side-bar ad that looks more or

little

bit like

build board that's obviously advertising,

be

would

it

different?
As

So

thought that through.

have not made any actual decisions

10 11
12
13
14 15 16 17 18

you

know,

on any

of the issues that are here today for resolution

I

because

wanted to hear from

all

of you

first.

But

without having any idea that perhaps

was

the Habush Firm

using this,

it

certainly
a

crossed my mind as to

whether one's use might be

reasonable use of
and the
why

living

person's name without their consent

be an unreasonable use.
And

other might
asked you

that's

I've

the question.
So my

19

question to you now, Mr. Gass, did that ever

Or when you prepared

20
21

cross your mind?

this,

were

you

thinking
about

all

the way along and I'm not going to ask you

conversations;

22 23
24

attorney/client
you

but after you

discovered this,
analyze
people

certainly had the ability to

it,

not just with your clients but with other

members

25

in your law firm or family

or whatever,

38

(
1 2 3
4

(
cross your mind that maybe

did

it

there's

difference

in terms of the legal effect with respect to the claims in this lawsuit that there
MR.

would be

difference?
The whole

GASS:

None, and here's why.

set of results that happened

ended by two things.
and
a

in search results are book

6
7

One

is the triggering search term

we end up

they're identical,
The

whether

with

an ad

or

8 9

sponsored link.

processing,

the triggering of

some

display is the
The

same whether

it

is

sponsored

link

10
11

or an ad.

only difference is the slight difference

on the screen.
Why

in the display
Now,

12

here's the back book end.

did they sue

13
14 15

is they say the sponsored link diverts potential

clients to your site to

firm.
whether

compare your

firm with our

same,

That end and book end

is exactly the

16
17

it

is the sponsored link or an ad on the

right-hand

side.

18

Remember,

that

was

exactly what

AT&T

in Yellow
to get you
So

19 20
21

Pages dot com

said, this is what

it's

for,

increased

visibility in
same.

the search results.

the end
The
was
a

is exactly the
processing

The beginning
and the only

is the

same.

22
23
24

is the

same,

difference

slight visual difference in the display

That's why
Sponsored
I

on the screen.

concluded

it's all

the

same

thing.
thing that
a

25

links are doing exactly the

39

same

(
1 2 3
4

(
is doing.
THE
COURT:

pop up ad

Okay.

Mr.

Clark.
your Honor,
some

MR.

CLARK:
I

First of all,

as

indicated before,
investigate
respond.

think I'm entitled at

point to

this

and find out what

the facts are and to

6
7 8

THE COURT:
MR.

Of course.

CLARK:

But in listening
I

to the way
a

Mr. Gass described this,

have to say there is

huge

10
11
12

difference

as

it

appears

he

described this.

I'm just
we

relying on what his description is and what

are

alleging in this case.

In this case,
went out and they
what the defendants

13
14

did is they

actually purchased, paid for

Rottier's
name

15

Mr.

Habush's

name, Mr.

in order to
on those

16
17

trigger
two

when anybody looked

for information

individuals in order to trigger that

sponsored

and put

in

18

their

link

on the search

results that one

Their

19 20

would get otherwise

sponsored

as

result of that search.

be on
names.

link wouldn't

that site but for the

21
22

fact they purchased the

They took advantage

of the goodwill and the

traded
a

23
24

reputations of these individuals,

on

it

and
use

tried to get
or purchase.

certain result
As
I

as

result of that

25

hear what Mr. Gass describes,

what

40

(
1 2

(
some

he

is describing to

extent

was

already briefed in
a

this case, and that is he's describing

where

situation
And

3
4 5

the Yellow Pages sells

category.
you want

the

category they're

selling is

if

to put an

advertisement in our Yellow Pages, you can put

the category of attorneys.
'X'
Then

it

in

6
7

we'll put, if
Gass

you pay

dollars,

we'll
sounds

put your advertisement

in the Yellow is

8
9

Pages.

It

to

me

what Mr.

is describing

the Internet

version

of that Yellow Pages ad by

10 11

category.
THE

COURT:

Well, that is something you'll

and see
&

12

have to

investigate

exactly.

Someone

at the

13
14 15 16
17

firm of Habush, Habush

even though

Rottier

knows what was done,

who

it

may be

surprise to the people

Robert

are
So

here in court today, including

you

L. Habush.
and determine

will
or

have time to

investigate
a

it

whether
corn
a

it

was

simply

purchase in Yellow Pages dot

anyone who types

18

side-bar ad for

in the

name

19

of any lawyer in the Milwaukee area or

if it's
I

20 21

specifically
MR.

related to J. Rick Gass.

CLARK:
I

can do that,
I

but

think that's

22
23
24

what Mr. Gass

know
I

is describing.

just

want your Honor to

object to his

arnbushness
a

with us today during

between

the hearing, but there's

those two.
I

huge difference

25

think that

he knows

that.

But

of course

41

(1 2

we

will

address

it

and would

like the opportunity to

what the

let

you know from our prospective

facts are

3
4 5

and give you our

MR.

position on.
I

GASS:

have no objection to Mr. Clark

being given time to gather the facts and do the

6
7

investigation
Judge,

and however

you then want to proceed,

with

some
I

short briefs, medium briefs, whatever.

8
9

After that,
MR.

have no objection.
CLARK:
I

would just simply

an

say, your
I

10
11
12
13
14 15 16 17

Honor,

think that's
move

entirely separate issue.

would
I

like to

forward with this motion to dismiss.

think what's been presented here are issues that are

entirely outside the record with regard to this

complaint and whether or not this complaint states
cause of action,
and
I
a

respectfully ask that

what
I

we move

forward on
submit

that, notwithstanding
a

respectfully

as

side-show here that was sprung on us with

18
19

no advance warning.
THE
COURT:

One

of the things that

we

my

court

20

reporter reminded
afternoon

me
a

of just before

came

out this

21 22

to start

little

bit early at 1:00 instead

of our normal start time of 1:30 in our courtroom for

several cases, which are broken
up one from
we

23
24

the other,
a

is that in the course of the afternoon

break, at least one break.
I

should take
would be
a

25

think this

42

(
1 2 3
4

(
a

good time for us to take

break, and then

I'll

figure

out whether

it

is appropriate

for

us
I

to continue with

the hearing this afternoon or not.

before
Mr.
we do
S

think

though

take the break,

I'm going to hear

Gass'

response to Mr. Clark's assertion

and

that
new

6
7

really despite the diversion

that
you have

despite the

issue

raised,

it

is not part of the motion

ahead with the remainder

8 9

hearing today and

the hearing,

we may go

of

subject to possibly

if

appropriate

10 11
12 13 14

consideration of this additional

lawsuit
Mr.

basis to dismiss the

that you're raising this afternoon.

Gass.
MR.

GASS:

Yes.
I

see

it

as

just absolutely
DNA

implicit.
lawsuit

guess

would say part of the

sue

in this

15

that

if

you

in equity

and ask

for equitable
you but

16
17

relief

and you sue

for defendants doing 'x' to

you're doing 'X',

and
I

that is square one in the lawsuit

was

18 19

don't think there

--

and given the

fact that

the knowledge that they were doing

possessed by them.
They

it

was

uniquely

20

started the lawsuit knowing

They

21 22

that they were doing

it.

continued the lawsuit

We

knowing that they were doing

it.

gave them the safe

23
24

harbor notice under the frivolous claims statute and

gave them an opportunity to dismiss.
THE

25

COURT:

Without telling

them what your

43

(
1
2 3
4

~ \

basis was for this assertion.

MR.

GASS:

Right, because they know.

I

They

know

that's

what

drives everything
I

have done

after

learning about this.

learned about something that

they concealed from us and from you.

THE COURT:
I

6
7 8 9

Now, Mr.

Gass,

here's what

think
us

hear you saying is,

it

would be more

efficient for

to resolve,
an immediate

to address the matter which could result in

total resolution of the claim rather than

which were scheduled

10 11
12

addressing the other issues today,

for today, that

and then address

it

would be more
new

efficient to

hold off

this

issue that's come up by

13
14

surprise this afternoon.

MR.
GASS:

Exactly.

If

would have known

we

15

about this instead of seven days ago or whatever,

would have never burdened you with

16
17

all

the briefs and

I

the cases.

This is so

dispositive, but

learned about

18 19

it after all
all
came

the briefing was done.

THE COURT:

Well,

we

don't really
the

know what

20

the facts are at this point because

plaintiff

21

to court apparently unaware.

Certainly, the

22 23
24

plaintiff's
Anywho

lawyer was unaware of the Yellow Pages or

results.

Is that right, Mr. Clark?

Is this the

first

time that you had any idea that

MR.

-firm, your
Honor,

25

CLARK:

was aware the

44

(
1 2

(
Pages

advertised in the Yellow

issue of
thought

because

they made an

3
4 5

it in their brief it was different.

THE COURT:
MR.

and we responded why we

Print Yellow

Pages?

CLARK:

Print Yellow
described is
but
I
a

Pages ad,

yes.

6
7

think that

what he

similar version of

the Internet

portion,

would need to investigate

I

8 9

this,

and

don't have the facts.

was never given

advance notice of

this.
In terms of what was purchased

10
11 12

THE COURT:

from Yellow Pages dot com or Anywho dot com,

it's

not

necessarily
Mr.
Gass,

quite as clear as what you're asserting,

13
14 15

because

it's

more

than,

think, I'm not

new

totally sure about this

as

because

this is all

to

me

well,

but

suspect that

it's

not merely what

Gass

16
17 18

happens when someone types

in J. Ric

in the

Milwaukee area but

it's

also what was the contract

between Anywho or Yellow Pages dot com and the firm of

Habush,

19

Habush

&

Rottier,

S.C.

20 21
on the

In other words,

if

they purchased the pop-up ad

when somebody

right side of the page

is seeking
be

22

an attorney

in the Milwaukee area, that

what the

might

23
24 25

entirely different from

which

statute refers to,

name.

is the use of
So

live

person's

the result might be very close, but the actual

45

(
1 2

(
of the party might not be close.
Different
enough

conduct

It

might
be

be

consequently.
consequences
MR.

that there would

3
4 5

to the distinction.
GASS:

Right.
was

And why

came here

with

the

belief that there

no

distinction, they paid

Pages

6
7

specifically

by the month

for the Yellow

clicks

search engine solutions.

THE

8 9

COURT:

Well, really they have to

have the

opportunity to

go back

in the records

and see what the

10 11

contracts are with those organizations.

MR.

GASS:

agree.
how

agree.

But at the end

12 13
14 15

of the day no matter

they get there,

surname.

they complain

about the typing in of their

THE COURT:
MR.

Yes.
But they want to not be burdened

GASS:

16
17

with the fact

if
up

somebody

else types in another name,

they're always
finger.
Same

there.

It's

the

same

process.

Same

18
19

screen.
I

THE COURT:
MR.

understand.

20

CLARK:

All facts outside of the

outside of the record,
no

21
22

complaint,

all facts

facts

that we've been able to verify or even have an

opportunity to know he
THE COURT:

23

was going

to raise today.
have any

24

Well, we're not going to

25

argument on

this today.

46

(
1 2 3
4

(
MR.

CLARK:

It's

an

entirely unfair

process,

your Honor.
Honor thinks
we

Again,

your Honor

will

do whatever

your
and

is appropriate under the circumstances

We

of course will respect that.

on

have had this

compliant

file for

some

time,

and they moved

to

6
7

dismiss.

The issue

really is

whether

or not on the

merits of what the allegations are in the complaint,

does

8
9

that state

cause of action and the question of

some

whether or not there is

activity
to

on

the part of

10 11 12

the

plaintiffs,

which needs

be investigated

further.
we

That somehow

they argue should affect whether

ultimately get injunctive relief.

That is an issue that with
Honor,

13
14 15

all

due

respect, your

should be taken up

if

and when

the request for

injunctive

relief is
a

made.

Not now when they're trying

16
17

to forestall
complaint

resolution of whether or not the

a

states

cause of action so we can move

we

18

forward with this case, which

to do.
MR.

very much would like

19 20

GASS:

It

goes

right to the guts of the

an unreasonable

21

case.

It

goes

to whether
they do

it's

22

invasion.
Mr.

If
MR.

it,

apparently

it's

okay,

but

if
mean

23
24

Cannon does

it
That's
a

CLARK:

question of fact.

25

he's laying out

all

sorts of facts that he believes to

47

(
1 2 3 4 5 6 7

(
I

be
we

true.

believe we're going to dispute those

That's
a

when

get to the bottom of this.

THE COURT:

factual issue.
a

We're going to take

I

break.

But

before
Mr.

we do

that,
I

have one more question of

Gass.

What

do not hear you saying

in addition to
you have
a

your

efficiency point that since

on

you
we

think

winning argument

this issue,

don't need to bother

Beyond

8 9

with taking the time on the other issues.

I

that,

do not hear you saying that were we

to address the

10 11 12

other issues today that you had failed to prepared for

them because
you were so sure we would be unable

to

handle those this afternoon

in light your

new

13
14 15 16 17

information.
MR.

GASS:

Oh,

no,

and

that's
I

why

had put on
have

the screen for you and I'm sorry that

just

to

flip

through

it

this way,
Okay.
Yeah.

am

prepared.

THE COURT:
MR.
GASS:

18

mean,

was

all
a

prepared

19
20

for

when we were ready

THE COURT:

to go.

We're going to take

break

now,

21 22 23
24

and

we'll

see everyone

in about

10 minutes.

Thank you.
(A recess
THE

is taken.)
The

COURT:

We

are back on the record.

25

new

information that

was

presented this afternoon is

48

(
1 2 3
4 5 6
7

(
\

certainly interesting

and may form the basis

a

of

additional motion to dismiss, that is

these
new grounds

motion based on

that only

came

to the attention of

the defendants

just days before the hearing.

Nevertheless, although

it's

always

nice to think
a

of the prospect of ending early and having

little
and

bit

of extra time to get things done, really the best

use

8 9

of our time is

if

we

continue on this afternoon

we

address the issues for which

So

are

all

prepared.
some questions

10
11
12

with that,

will
Mr.

ask Mr.

Clark

and then

after that,

Gass,

and then

I'll

be happy

to hear other things that each of you have to say

13
14 15

regarding the issues in the motion.

Mr.

Clark, you have filed the lawsuit

Two

on

behalf of
a

three plaintiffs.

are live people and one is

one whose

16
17 18

corporation.

The

statute says,

privacy is
The term

unreasonably invaded is entitled to

invasion

relief.

of privacy is also defined.

some

Are you taking

other party in

19

the position that there might be

20

addition

to one whose privacy is unreasonably

invaded

21 22
23
24

that

someone

else,

corporation would

be

entitled to

relief?
MR.

CLARK:

Yes,

your Honor.
I

Let

me

explain
comes

that
down

little

further,

because

think that

it

25

to something that is particularly unique about

49

(
1 2

(
call the 2b invasion of privacy aspect or

what

I'll

prong of our statute.

3
4

There's two aspects, your Honor,

to subsection

2b,

what's referred to as the derivative of the

5
6
7

appropriation

tort,
a

which is the appropriation or the

name

exploitation of

living person's
But

for advertising

or business purposes.

in order for people, your

value of their

8 9

Honor, to be able to use the commercial

name,

they have to be able to transfer

it

to others to

10

allow them to be able to exploit with their consent

11
12 13
14

this commercial value.

It's that
The

concept,

your Honor,
as
a

that public policy that led to what is referred to

the right of publicity.

right of publicity is

property right

and

it's

transferable.
One

15

There's two prongs to 2b.

is the right of

16
17

publicity,
trade
on

which

is the right to use the commercial or

value of somebody's
a

the commercial

name

with

18

their
right.

consent.
The

That's

transferable right, property

19

right of privacy aspect of 2b is the

20

personal right.
aspect,

It's

the personal

or the emotional
of

21

the personal
name.

aspect of the appropriation

22 23
24

somebody's

THE COURT:

Certainly, Robert L.
&

Habush

may

allow Habush,
does

Habush

Rottier to
Habush
&

use

his name.
the

But

25

that

make Habush,

Rottier like

50

(
1 2

(
all
the rights and authority of the

licensee with

living

person?
MR.

3
4 5 6 7

CLARK:

No.

Well, they don't have the

They

right to privacy aspect. right that

somebody
go

don't have the personal

name

with an invasion of one's

where

tries to exploit the commercial value; that

But to the extent

stays with the individual.

that the

8 9

individual
the
name
a

has given permission

to somebody else to use

and to get commercial

benefit from

it

because

10

it's

property right, that

can be

transferred

and by
a

11
12

virtue of the fact that

corporation or
some

someone,

whether they're
has

third person

that property

13
14

right, that right of publicity,

that gives them an

interest in the claim that is sufficient

least seek injunctive relief to prevent

for

them to

at

15

someone

else

16
17

from exploiting the commercial value of that name.

We,

your Honor,
I

in our materials that

we

18

submitted to you,

think the clearest expression of

19 20

this is in the restatement of the law of appropriation.

(Tenders document to the Court.)
THE
MR.

21
22

COURT:

Thanks.

CLARK:

I'd like

to direct your Honor's

4

23

attention to that.
THE COURT:

It's
a

on page

of that document.

24
25

Right.

You have

just

handed

me

what appears to be

printout from Westlaw titled,

51

(
1 2 3 4

Restatement,

parenthesis,

3rd of Unfair Competition

Current Through August 2009, and

it's

Chapter

4,

Appropriation

of Trade Values, Topic 3, Right of

Publicity.
Now,

5
6
7

before you continue, Mr. Clark,

a

just

want

you to know

question that I'm going to be interested

to is whether you are asserting
a

in

knowing the answer

8 9

that the corporation had

and

common

law cause of action;

if

so,

why you

wouldn't

file
on

that as an additional

10 11
12

claim instead
which refers

of relying only

this

one

statute,

to one whose privacy is unreasonably

invaded having entitled

MR.

to relief?

13
14 15 16
17

CLARK:

Because 2b of the

statute, your

Honor,

includes both the

traditional privacy act that's

and also the so-called
a

associated

with appropriation
The

right of publicity.

right of publicity is

species of the right of privacy insofar as the

18 19 20
21

appropriation

claim is concerned.

That is something

that's
review
explains

addressed,

your Honor, in the indigent law

we

article that

submitted to your Honor.

involved
One

It

that there is dual interest

in 2b

22

appropriation tort, two interests.

individual

is the

23
24 25

interest of someone, the personal emotional

aspect of having somebody else trade on your name

without your permission.

And

the second is the

52

1 2 3
4 5

commercial aspect

of what's called the right of

publicity,

which is having whose got the right to

name,

exploit the commercial value of your

which is

transferable right.
So

to the extent, your Honor,

some

that right is

6
7 8

transferred at least in part to

a

third party,

even

company, that

third party right to not have its right

of publicity invaded or its right to privacy invaded,

has been

violated,

and they are

entitled to equitable

10 11 12

relief

under the statute.

The

statute doesn't say, your Honor, like the

The New York

New
a

York statute does.

statute

says that

13
14

living

person whose
Our

right of privacy
a

has been

violated
whose

can sue.

statute says not

has been

living person
can sue.

15

right of privacy
one whose

violated

Ours says

16
17
18 19

privacy is unreasonably

invaded.

If

the
a

right of publicity is transferred to in this

firm to exploit whatever commercial

case

law

value there

may be

in that name, that is one whose privacy, namely the

20

right of privacy
based

has been

violated
name.

as long as

it's
on

21

on

living person's
a

It

can't be based
but

22 23
24

the name of
based on
a

person who

isn't living;
name,

if it's

living

person's

the right to sue

follows.
The other thing,

25

your Honor,

think helps

53

(
~

(
common

1 2

illustrates that point is contrary to the

Wisconsin

law

and contrary to the law of New York actually in

a

3
4

cause of action

for invasion of privacy

That's in

survives the death of the living person.

Chapter 895 of our statutes.

(Tenders document
THE

6
7

to Court.)

COURT:

You're not saying there's anything

may be

8 9

in 895 that

says

that this right

a

assigned by one
Just simply

person to another person or

corporation.
death.

10 11
12 13
14

that

it

survives
MR.

after

someone's

CLARK:

Right,
has

survives after someone's

death.
survive.

The

legislature
would be

declared that right to

It

in congress then to say that the

survivor whose got the right after the death of the

person doesn't have the right to bring
our
a

15

claim under

16
17 18 19 20

statute.

Because the

legislature

says the right to

privacy survives

for them to not have been as intended

a

that

someone
a

other than

living person
makes

has the

right

to bring

claim under the statute

COURT:

no sense.

THE

So

the estate
a

of

someone who

is

21
22

deceased could continue

lawsuit already in progress

which

or could

file
MR.

the lawsuit
CLARK:

23 24

As long as

it's

based on an
was

invasion

of privacy while the person

living.

In

25

other words,

it's

based on

living person's,

the value

54

c
1

of

living
THE

person's
COURT:

right.
Are you saying

2 3
4 5

that

because

the
has

estate

has

this right, that therefore the estate

the authority to assign the right to others, that

that's

principle of probate law or something or

sue

6
7

property law, that the estate having the right to

necessarily
MR.

could assign that

CLARK:

right to

someone

else?

8
9

It

depends

on which

of the prongs

of the right you're talking about. of privacy in the appropriated

That stays with the individual,

The personal

right

10
11

tort is
and

not assigned.
something

it's

that

12 13
14

is personal to that individual.

THE COURT:

Unless the person dies,

in which

case

it

goes
MR.

to the estate.
CLARK:

15

Right, by operation of law.

Okay.
But they couldn't
a

16
17
18
19

THE COURT:
MR.

CLARK:

assign that any

further

because

it's

personal right to the individual

has

that only the survivor of the person by the statute

the right to assert.
be assignable by the
But the

20

right of publicity

would

21 22

living person.

But once that

living

person dies,

any claims based on

right of

23
24

publicity by virtue of the survivorship statute could

be asserted by the
based on
a

third party, but they have to

be

25

violation of the right of publicity while

55

(
1 2

(
was

that person

living.
My

THE COURT:

general approach to reading

how

3
4 5

statutes

and

trying to figure out

when

they apply to
a

particular facts at issue

determination
words

there is

legal

that

has to be made
And
I

is

look at the

6
7

in the statute.

if

can make sense of

it

with that, well, then

don't try to imagine other

a

8
9

things
a

it
Here

could possibly mean that are

little

bit of

stretch.

10
11 12 13 14

it

says;

one whose privacy

is unreasonably

invaded is entitled to
invasion

relief.
I

Then

it

also describes

of privacy.
This is not

mean,

it

defines

invasion of
statute.
a

privacy.
There

terrible well-written

are some parts in here which could be

and we have to figure

little

15 16
17

bit

confusing

out what exactly

when

they mean,

but

it

seems

to

me

that

it

defines

invasion

of privacy in 995.50,

paragraph 2,
b

it

refers

18

to invasion of privacy and then sub

relates to the
of the
name

19

issues in this case.

It's
Now,

says:

The use

20
21

of any living person.

So

that's invasion of privacy.

then

we go back

to paragraph 1, where the

22
23
24

right of

relief is
invasion

established and

it

says:

One whose

privacy is unreasonably invaded is entitled

to that

relief
name

and

of privacy means the use of the

I

25

of any living person.

don't see

any room for

56

1
2 3 4 5

licensing or assignment in there.

guess my question
a

is

why should

look beyond that to

morphis or

esoteric, historic right of publicity

case law as to what the common law

may have meant under
a

different
legislature

time under different

circumstances

when the

6
7

just spelled
MR.

it

right out for us.

CLARK:

Well, legislature spelled

it

out

8
9

in terms of right of privacy,

within the appropriation

but the question is

what does the
when

tort,

right of
the

10

privacy mean.

The

right of privacy

it's

11 12
13
14

appropriation tort in

2b has been determined to mean

pursuant to restatement in the cases that that

restatement
conclusion

of the

law

relies

on to have

come

to that

in terms of what the appropriation right of

of.

15

privacy consists

16
17

It
consists

actually consists of two components.

It

of the personal right, which stays with the

the emotional and other aspects of having
and
a

18

individual,

19
20

that right violated

it

consists of the right of

That has
agree

publicity,

which is

transferable right.
We

21 22 23
24 25

developed as the law of appropriation.

not spelled out

it's

in the statute

what

right of privacy

under 2b means, but the case law and the restatement

and also the McCarthy

Treatise that develops

come

and

condenses the law

all

to the

same

conclusion, and

57

{
\

1 2

that is that there are two aspects to it, the private

right

and the

right of publicity

and they both make up

3
4

this right of privacy.

THE COURT:

At the outset,
a

said we're

5 6 7

dealing with 2b.

It's

different kind of privacy

tort,

and you have

described

it

correctly.
name

It's
So

misappropriation of the person's

for trade
I'm not

8
9

purposes as the particular tort involved.

frankly concerned with

with 2b.
MR.

2a or 2c.

I'm only concerned

10
11

CLARK:

Right, and 2b has those two

12
13
14

components to

it

in terms of the right of privacy under

established

laws.

That's what the restatement

says.

That's what McCarthy says, and the cases that they cite

15
16
17

is that in

2b

the right of privacy consists of the

right,

portion of the right effects your feelings,

which

the personal aspect of the misappropriation,

one

is

18

that rests with the individual, the living person,

19 20

and

it

carries with

it

right of publicity,
And

which is

property right that's transferable.

that's the

21

restatement of the law of right of privacy with respect

to an appropriation
THE COURT:

22 23

statute
As

like 2b.

to the claim of the corporation

which

24 25

for relief under this statute,

is

one cause of

action,

have repeatedly told both lawyers that

58

(
1 2 3 4 5 6 7 8

although

have some questions,

you want
I

you

will

be allowed to

say whatever

in addition to answering the

questions that

have.

Mr. Clark, with respect to the claim of the

corporation,
MR.

what else do you want to say?

CLARK:

Only to emphasize

on

this point,

your Honor,

that the corporation is joined in this suit

only because

given the nature of the relief requested

we

submit they have an interest in obtaining the

10
11

injunctive relief that's being sought.

The reason they have

that interest is

what

I've

12

just explained to

you in terms

of the fact that by

Habush and Mr.

13
14 15

virtue with the consent of

they are using their
names

Mr.
and

Rottier,

this is part of the

2b

right of publicity,

which

is part of the
them an

tort, which
seeking

16
17
18 19

is transferable, that
declaratory

gives

interest in

relief,

which is

all that's required in the

permissive joinder portion of our statute for them to

join in the prayer for relief.

for
damages.

There's no claim here

20

They're not seeking any

relief of that

21 22 23
24 25

type.

It's

simply they're joined in the case as an

who has an

additional party

interest in obtaining the

injunctive relief.
THE
COURT:

Okay.

Thank you.

Well,

then

think

can help us move this along at this point.

59

(
1 2 3
4

Just

minute.

have read

new

text that just

to court

arrived

on my computer.

It's relating
nothing to
do

administration
Okay.
As

and has

with this case.

Sorry about the interruption.

to the claim of the corporation,

there is no
There is

6
7

basis in the statute to support that claim.

the development

of the law, which the lawyers have

may be
a a

8
9

thoroughly briefed and there

right for relief,

that is the corporation

from the intrusion

may have

right for relief

10
11 12
13
14

asserted in the claim but not under

this statute.
The only cause of action
a

made

in this lawsuit
and

was

claim under Wisconsin statute section 995.50,

common

there has been no claim under any

law right of

15

publicity or right
person's
name

against

misappropriation

of

16
17

and no

claim under any unfair advertising

statutes
or principles
of

or unfair trade practices,

18

law and no claim under any tradename

or trademark

19

infringement

analysis.
the cause of action,
Habush,
Habush
&

20

Therefore,

the claim
a

made

by

21
22

the corporation,

Rottier, is

claim
the

for

which must be dismissed.

That is even

if

all

23
24

facts set forth in the complaint are accepted as being

true,
there

is

no

right to relief

under

the statute for

25

the corporation.

60

(
1 2 3 4 5 6 7

(
as
I

Now,

promised,

have also have questions

for Mr. Gass.

MR.

GASS:

The reason why

put my finger up,

Judge

-THE

COURT:
GASS:

Yes.

MR.

--

was and

just offer this

because
made.

it

supports

the decision that you have already

8 9

When Mr.

Clark provided us this Chapter 895,

what

action survived death statute,

it

caused

us

to

10 11
12 13 14

look at the cases that's

THE

COURT:

You know,

Mr.

Gass,

did you ever

hear the principle

MR.

of court strategy?
Yeah,

GASS:

right.
down

When

the judge has

decided

in your favor,

sit
I

or get out of the

15

courtroom.
THE COURT:

16
17 18

And

think

one
a

of your partners
model courtroom

actually teaches trial

something.

advocacy

in
but

or

I've
don't

never seen
know what he

it,

I've heard of it
I

19

there.
need

said, but

don't really

20
21
22

that help.
MR.

GASS:

I'll
Now,

just
you

tell

you

there are

two

cases

that support what

THE

just said in Wisconsin.

with respect to the

23
24

COURT:
I

Mr. Gass,
I

individual,

think

what

read in your briefs is that

L.
Habush

25

neither individual,

Robert

or Daniel

Rottier,

61

(
1 2 3
4

can bring

this cause of action because they have not

Only the corporation
GASS:

been harmed.
MR.

has been harmed.

Correct.
Okay.
But then you

THE COURT:

told

me

-I

the

5 6 7 8 9

thing that struck

lawyers spent
looked at
you
a

me

about that argument,

on,

which both

lot of time

and your cases

--

all substantial
and

portions

of those cases that

cited

every case that referred to the right of

to bring the claim,
who has

the individual

even though the

10

corporation is the party

been harmed, everyone

damages.
I

11
12

of them involved

claim for

monetary

don't

think you have anywhere the party is seeking only

13
14

equitable relief.
So my

question is since
your

you made

big point

15

earlier in
presentation

slide

show,

in your power point

a

16
17

about the

--

as

matter of fact

it

was

the entire basis of your assertion that the plaintiffs

have

18

unclean hands is that this is

matter in equity.

19

They're not seeking any damages.

So my

20
21 22 23
24

question is so what

if

they have been harmed

or not.

In other words,
Let

so what

if

they didn't suffer

What
I

monetary damages?

me be

precise.

understand your argument to be is that Robert L. Habush

has no
can be

claim under this statute because any

earned from his
name

money

that
be

25

or any money that might

62

(
1 2 3
4

(
Cannon

diverted to the
money

Firm by the sponsored links is

that

he wouldn't get anyway,

Habush,

only the corporation

a

would get,

Habush

&

Rottier, not even

party

to this lawsuit

anymore.

My

question to you is he's

not seeking money, so why does

MR.

it

even

matter?

6
7

GASS:

Well, he's seeking relief to stop

and the point

the searches
so much

that are occurring,

harm.

is not

8
9

individualized

It

is the

no shareholder
One

suit rule,

and there are three cases.

is the

one

10

that is very fact specific to lawyers.

case,
Saxy,
Bacon

It's

the Saxy
name

11
12

and

forget what the third

of

the lawyer is.

They

sued Martindale because Martindale

and the

13
14

didn't get their listing in the directory,

holding of the case is that what you have already

ruled,
no

15

corporate cause of action.

cause

And

there is

no

16
17

individual shareholder

of action because

of the

fact that the statute only applies to living persons,

and the shareholders
THE COURT:

18
19

don't have the derivative actions.

What

did they want from Martindale

20
21
22

Hubbell?
MR.

GASS:

They wanted damages and wanted to

be put

into the directory.

THE
COURT:

23
24

Okay.

MR.

GASS:

Of course,

then you've got Krier

say as

25

and

Vinich in Wisconsin that both clearly

63

("

(
there has been an assignment of
but

1 2

Mr. Clark has said,

this.

The

harm

is to all of the shareholders,

harm because

it
is

3
4 5 6 7 8

is not an actionable
to the corporation.

the principle

harm

It

is the corporation that

contracts with the client.

gets the fees.
And under

It

is the corporation that

those circumstances,
says

all
no

of

the cases,

think there is nine in total,

can sue

individual shareholder
THE

for that.
Gass

COURT:

Okay.

Mr.

-of

10 11

MR.

GASS:

And because of the uniqueness

these right of

publicity slash right of privacy

12

statutes,
once

that restrict them just to living persons,

that
you have

13

you make the decision

just

made

that

14

the corporation
gone.

is not

proper party, the case is

15

16
17

THE COURT:

Mr. Gass,

as

explained to
knows
I

Mr. Clark and as Mr. Cannon

certainly

from the

18

work we did together on the Sizzler

case,

just prefer

19

the simple approach

if

we can corne

to

reasonable,

20
21 22 23
24

acceptable and proper determination

approach

using the simple

without necessarily

complicating

it

into
And

corporate derivative rights of claims for damages.

in particular,

looking

at the statute again,

what we

have here is one whose privacy is unreasonable

invaded;

25

that's the party entitled to relief.

64

(
,

1 2

So

the question

is,

what does

privacy is

reasonably invaded,

what does

that mean.

Well,

we

know

3
4 5

what invasion of privacy means,

and you have argued

So
a

that unreasonableness is

an

additional element.
element

let's just
minute and

take that additional

out for

6
7

talk

about what does

it

mean

that the
2,
sub b,

person's privacy is invaded.

for purposes

Under paragraph
a

of this case, there is

definition of

invasion of privacy, the use for advertising purposes

10 11
12

of trade of the
having

name

of any living person without

consent of the person.
The use of the name
me

first

obtained
are we

So what

talking about?

13
14

of any living person.

and assume

Just bear with

for

minute

it's for

advertising purposes or purposes of

15

trade and of course

it's

without
a

the consent of Robert

16
17

L. Habush and assume for

unreasonable

minute that

it's

or eliminate those elements because those

we

18

aren't the ones

We

are talking about.

19

are talking about one whose privacy is invaded

invasion
person.

20

because
a

of privacy means by use of the

name

of

21 22 23 24 25

living

It

doesn't
name

say anything

there about

harm.

That person

whose

has been used

is entitled

to equitable relief,

is entitled

to an injunction and
harm

attorney fees without any assertion that

necessary

is

in that statute.

What

am

missing here?

65

(
1 2 3
4

(
MR.
GASS:

Well,

it

has to be

use under the

has

statute

and because

the preface says

it

to be an

unreasonable

invasion,

you have to carry

that over

here.
THE COURT:
MR.

Yes.

6
7

GASS:

It

has to be when

it

says

invasion

of privacy, this unreasonable

THE

follows with

it.

8
9

COURT:

Right.
And so the use has to be

MR.

GASS:

10
11
12

unreasonable.

The cases

say

if it's
why

just incidental,
I

it's
And
I

not actionable,

and

that is

have

whole

section under 995.50

on unreasonableness

to give you.

13
14

have another section on the word use versus

information
THE

dissemination.
COURT:

15

This is an additional power point

16
17 18

presentation?
MR.

GASS:
I

Yes, right.

This is what

prepared before

found out about the unclean hands.

As you know,

19 20

THE COURT:

you get to

tell

me

whatever you want as long as

it's

not redundant for

21 22

your 70 page of
MR.

briefs.
Absolutely,
So you

GASS:

absolutely.

23
24

THE COURT:

know what
I
I

I'm concerned

about,

and

let

me

go

further.

don't think
mean

it's
a

hard

25

to figure out what use means.

that's

common

66

(
1

English
my

term.

mean my
my

year old grandson

--

mean,

2
3
4

2-year-old,
My

no,

2-year-old-grandson
my

might not

know.

8-year-old-grandson,
know what

10-year-old-grandson,
what

they certainly

it

means,

the use of

something means.
MR.

6
7 8

GASS:

But remember,

the modifier is
use.

always

reasonable
use

use or unreasonable

Unreasonable
And

is actionable.
you
a

Reasonable use is not.

examples

I'm ready to give

of
a

series of

to

show

10

you use

name without being

COURT:

actionable.

11 12

THE

Just
Okay.
Mr.

minute.

MR.

GASS:

13
14

THE COURT:
MR.
THE

Clark.

CLARK:
COURT:

Yes, your Honor.

You

15

assert that unreasonable

is

16
17 18

not

particular
MR.

element of this cause of action.

Yes.

CLARK:

THE COURT:
MR.

Although
The word

it

says

it

right there.

19 20
21

CLARK:

isn't in the statute,

is that that is just
used in item
1
a

your Honor, but our position

catch

all that

the legislature

to refer
2

22

to the elements that

as

it

later lays outs in 1,

and

23
24
25

to what invasion of privacy is.

The basis

for our belief, your Honor,

as

as we

explained in the brief,

to

why unreasonable

can and

67

(
1

should not be engrafted over the top of those three

elements is that when you look at those elements,

the

3
4

legislature
used.

gave careful
1

attention to the words

3, they have the

it

In element

and element

reasonableness
unreasonableness

built right into the -- or

right into the prong.
So

6
7

THE COURT:

it

cannot

be double

8 9

unreasonableness.
MR.

CLARK:

Yeah.

What

sense does that make?

10
11

That

was

their

way

of saying

you cannot be unreasonably

invaded,

but they went on to describe what they

12
13 14

considered to be an invasion that would be actionable

under the statute.

If

you

engraft

on reasonableness

on

top of

their three

prongs,

you're putting an additional

15
16
17

standard on there that in our view is beyond what the

legislature

intended because they intended those three

was an

to be their impression of

actionable invasion of

18

privacy without laying on top of

reasonableness
THE

it

another

19

inquiry that goes beyond.

COURT:

20

Give
A

me

minute.
C

As

you know,

21 22 23
24
25

did print out paragraphs

got

and

of 995.2,

but

have
A

it

here on my screen and invasion

as

of privacy in

is defined

intrusion

upon
a

privacy of an another of

nature highly offensive to

reasonable person in place

a

that

reasonable person would consider private or in

68

(
1 2 3
4

(
for trespass.

manner which is actionable

I

guess

can't agree with you, Mr. Clark, that

invasion

under paragraph 1, requiring an unreasonable

of privacy that sub

already necessarily includes the

enough

5 6 7

analysis.
on

haven't really thought specifically

up

this to

come

with an example,

but there might be

which constitutes
a

minimal or incidental circumstances

8 9

an intrusion upon the privacy of another of

nature
place
a

highly offensive for

that
a

reasonable person in

10
11 12

reasonable person would consider private or in

manner which is actionable

for trespass.
for

Let's say
example.
An

it's

an

accidental intrusion,
be

13
14

incidental intrusion might

a

highly
be

offensive to
place where
or in
a a

reasonable person, and

it

might

in

15

reasonable person would consider private

16
17 18 19

manner which is actionable

for trespass;

and

nevertheless,
shown

it

might

not be an unreasonable

invasion

of privacy under paragraph 1.

In those

circumstances,
unreasonableness

that additional element of

20

is not redundant to paragraph 2A, is

21

it?
MR.

22 23 24 25

CLARK:

Except what you run into there,

an

your Honor,

is the case law that says intent in

invasion of privacy claim is whether

be an invasion

it

was

intended to

of privacy or not intended to be an

69

(
1 2

invasion of privacy doesn't

make

actionable.

It's

actionable

it actionable or even if the invasion

an

not

of

3
4 5

privacy wasn't intended

THE

if it's
A

invasion of privacy.

COURT:

Is there case law with respect to

on sub

our specific statute

unreasonableness
MR.

or sub

C,

which says that

6
7

is not

an element?

CLARK:

Not that I'm aware,

no.

There is

8
9

no case

I'm aware of that addresses

it
a

one way

or the

other.
THE COURT:

10
11
12

Let

me

just take

minute and look

at

C.

Publicity,

the

third possible type of invasion

of privacy, that is the third paragraph that describes

an

13
14

action which constitutes an invasion of privacy is

paragraph 2, sub
C:

995.50,

Publicity given to

15 16
17

manner concerning

the private
a

life

of another of

kind

highly offensive to

reasonable person

if

the

defendant has acted either unreasonably or recklessly

as to whether

18 19 20

there was

legitimate public interest in

that never

the matter involved or with actual knowledge

existed.
So

21 22 23
24 25

in that case,

it

does appears

to add

unreasonableness

onto the

definition of invasion of

privacy.

That would appear to be redundant.

you found

Mr. Clark,
MR.

something

else?

CLARK:

In response

to your last question,

70

(
1

(
me

your Honor, Mr. Crawford pointed out to

Muwong case,

in the
was

and

that's

one

of the cases that

cited

3
4 5 6 7 8

to you by the defendant in that letter they sent to you

after the briefing.

THE COURT:

It's

good idea for our court

reporter

if
MR.

you

spell that out for her.

M-U-W-O-N-G,
I

CLARK:

Muwong,
name

believe.

THE COURT:

think his
Also,

is

Muwong.

I've
why

met him

few times.

while you're at

it,

10 11
12

don't you spell out Saxy, Bacon and Vinich,

cases you cited?
MR.

those other

CLARK:

Saxy,

S-A-X-Y, Bacon, B-A-C-O-N,

name,

13
14
15

and

can't

remember

the third

Judge,

but

it's in

our

list

of cases in our brief.

THE

COURT: CLARK:

I'll

show

those to her.
your

16
17

MR.

This directly answers

question, your Honor, but in that case

and we submitted

18

in our letter,
you

we

submitted

copy of the complaint

to

19

in that case.
THE COURT:

20

Right.

saw

that.

21 22 23
24

MR.

CLARK:

There was no allegation of

The Court
So

unreasonableness

in that complaint.

nevertheless

denied

the motion to dismiss.

it's

not

directly

on

point.

It

at least indicates that the

25

Court did not feel that the allegations

of

71

(
1 2 3
4

unreasonableness
complaint

had to be made In order

for the

to
THE COURT:

That's

very good point.

One

We

have

two issues here,

Mr. Clark.

is whether

unreasonableness is an element which has to be proven

6
7

to sustain the cause of action, to prevail in the cause

of action.
An

entirely different

issue is whether your

8 9

complaint appropriately alleges that considering

course that
we

of

allow pleading by notice and

it

may be

10 11 12

that unreasonableness
complaint

is

an

element, but that your

you beyond the motion

is sufficient to get

to

dismiss.
Do

13
14 15

you

think that your

Muwong

case said anything

other than that?

MR.

CLARK:
I

No,
I

in terms of

it
you

didn't

address

16
17

the issue.
your Honor,

mean,

can't argue to
on

in

good

faith,
as

that the judge focused

was

that issue

to

18

whether or not reasonableness

or was not an element

19 20
21

under the statute because there was no indication

that

the Court did that.

MR.

GASS:

can.

Here's what the judge said:

22 23
24

An

individual is entitled to equitable relief,

damages

compensatory

and

attorney fees when his privacy

invaded,
end

is, quotes,
8

unreasonably

of quotes.

Page

25

of the opinion,

the judge did direct his attention to

72

(
1 2

it.
THE

CLARK:

Well, the judge,

your Honor,

3
4

though in that case was parodying the language

of the

statute,

and

that begs the question as to whether or

invaded means anything more than three
sets forth in the statute.

5 6 7

not unreasonably

prongs that the legislature

THE COURT:

Okay.

Well, Mr. Clark, why don't

8 9

you do your best

with that one too?

to
know
a

Tell

me

anything

else you want

me

as

to the question of whether

10
11

unreasonableness

is

separate element of the cause of

action.
Mr.

Just

minute.

Let's hear from Mr.

Habush,

if

12
13

Habush has said something to Mr.

Crawford who is

going to pass
MR.

it

on.

14

CLARK:

You're not asking

me

to

comment

on

15

the question whether the conduct is reasonable

or

16
17
18

unreasonable.

You're asking
I

me

to comment on the

question whether

have anything more to say about

whether unreasonableness is an element.

THE
COURT:

19
20

Correct,

whether

that's

an element

in the cause of action, whether ultimately in order to

21 22 23 24

prevail

on

cause of action under 995.50,

paragraph

-- I'm
making,

sorry

-- really under the claim that you're which falls under paragraph 1 and also 2b,
use

whether one of the elements that has to be established

25

is that the

for advertising

purposes

or purposes of

73

(
1 2

(
name

trade of the
use

of any living person is whether that

whether that is one of the

is unreasonable,

3
4 5

elements.
MR.

CLARK:

No.

think in our brief

and what

I've said to

your Honor is what we have to say on that,

6
7

namely that the three prongs

of the statute layout

That to impose an

standard of what is actionable.

unreasonableness

8
9

requirement

on top

of those three

prongs in the way the legislature

described those three

10
11

prongs would be to add something beyond what the

legislature
prong
1

intended,
3

because in our view at least sub

12 13
14
15

and prong

clearly indicates that the

words reasonable

legislature by using the

and

unreasonable made that balance.

And

in

B,

they made

determination that
or
a

when

16
17
18 19

you're talking about advertising

trade purpose
in connection

that

you

can't

use

someone

else's
So

name

with advertising

or trade.

our view is that

unreasonableness was not intended

element.
THE
COURT:
I

to be an extra

20

21 22
and
I

Okay.

Now,

here's

my

analysis,

don't think

need to hear more from Mr. Gass on

23
24

this limited issue.

The

statute
2

does two

things here.

It

defines in

25

paragraph

the term in quotes,

invasion of privacy.

74

(
1 2 3 4 5 6 7

(
in this section, quote, invasion of privacy,
Then

It

says;

closed quote, means.

it

gives

A,

Band
means

C.

So

the

statute tells
purposes

us what

that term of art

for the

of this statute itself.

Earlier in paragraph 1, the right to relief is

described;
and

of course,
to the

as we have

just repeated that

for one whose

is the entitlement

relief is
I

8 9

privacy is unreasonably

invaded.

think using again

simple reading of the statute,

means

invasion of privacy
2b,
a

10
11 12

what's described in paragraph

person's
2b;
and

privacy is invaded

if

there is

violation of

in paragraph

what is required

is that in order to

13
14

have the entitlement

of relief what's required is the

unreasonable

invasion of privacy.
my

15

Therefore,

legal determination is that in

the invasion of privacy under

16
17

addition to establishing

paragraph 2b, the party seeking the

relief
was

must also

18

establish that the invasion of privacy

unreasonable.

19

Getting back then to Mr.

Gass

on the

20
21 22

question of the parties,

if

the parties

are not seeking

-- if

the

plaintiff is

not seeking money damages

actually,

I'm going to say something else.

you

23
24

First,

can read the note from Mr.

made
I

Cannon.
now

I'm

really surprised you've

two and
a

it

this far and

a

it's

25

half

hours

and

haven't heard

word from

75

(
1 2

him out loud.

MR.

GASS:

And

his lips haven't moved at

all.

3
4

(Laughter.)
MR.

GASS:

And

it's

on

the question
me

of use.
and at

5 6 7

That's where you kind of started

some

into this

point

need to get back to your chart.

THE COURT:

Let

me

tell

you

what my concerns

8 9

are.

Then you can get to your power point or the

portions

of
MR.

it

that you think are necessary.

10

GASS:

Great.
Hold on.
I

11
12

THE COURT:

have to collect

my

thoughts again.
One

13
14
15

of the portions of the statutes that

did not
In

print
terms

out on the display boards

is -- it's there.

of the relief that

party is entitled to

if

16

their privacy is unreasonably invaded, of course

17 18

there's equitable relief, which is

have

what the

plaintiffs

requested and there is reasonable

attorney fees,

19
20

which is what the

plaintiffs
a

have

requested.

In addition

to that,

party could seek but the

damages.

21
22 23
24

plaintiff is
that event,

not here seeking compensatory

In

compensatory damages can be determined

loss

either by the plaintiffs

unjust enrichment.
not requiring,

or by the defendant's

Again, not only here is the statute

are not seeking

25

rather the plaintiffs

76

(
1 2

(
for the harm that has been

money as reimbursement

suffered but even

damages,

if

the

plaintiffs

were seeking money

3
4

it
a

could

be computed based on the unjust

enrichment

of the defendant.

It

doesn't

even have to

5 6
7

establish

monetary harm to the

plaintiff.
why

Therefore,

I'm asking again,

is

it

that you

think that Robert L.

make

Habush would not have

money

the right to

8 9

this claim without

MR.

harm?

GASS:

It's principally
a

because he has

10

chosen to do business under

was

corporate form.

If

he

11 12

not in

corporate form and having chosen that

and

corporate

form to gain the advantages of that form,

13
14

that's

what the case

is saying.
a

Once you make the

choice to do business as

corporation,

you

give

up

15

certain rights because you get other rights.

You

16
17
18 19

get protection by the corporate

form, but you

and

give

up

certain rights.

And under

Vinich
a

Krier and
one

Saxy, they

all

say shareholders

of

corporation,

of the rights they give up is this publicity right

because

20
21

they have chosen to have the money from fees

but to the corporation.
no
And

go

not to them personally,

22

implicit in that is that they

longer have the right

23
24
25

to sue for this kind of equitable

Now,

relief.
portrait or

if

on

the other hand,

which

they're faced with

their true identity,

is

name,

77

(
1 2 3 4 5

photograph, and we've been kind of skipping by that

Robert L. Habush's
name

has not been used

here.

Daniel

Rottier's

name

hasn't been
Which one

used here.

There are two

Habush names.

is being searched,

Jessie or

Robert, right?

It's

surname.

6
7 8

THE COURT:

Is your dad

still

alive,

Mr.

Habush?
MR.
HABUSH:

No,

your Honor.

Unfortunately,

he's been dead for

THE COURT:
MR.

25

years.
Okay.

10 11
12

GASS:

That's

what the case

is saying.

Surname alone

is not sufficient.

Living person which

13
14

you've already confronted

and decided but when you put

in that
doesn't
does

name

in

search engine, the search engine

person does that attach to.
words

15.
16
17 18

know what

All
of
a

it

is spit back
person.
I

to you, not the

name

living
So

got diverted
I

little

bit, but the

cases

all

19

of which

have down here in

and Saxy and
do business

this section all say

20
21 22
23
24

Krier, Vinich
you choose

six others,
as
a a

straight up.

If
one

to

corporation, this is

of the things you give up,

THE COURT:

right under 995.50.

I

Mr. Clark,

don't think that

Instead, what
Gass

you

have to respond to that

right

now.

I'd

25

like to hear is whatever else Mr.

thinks is

78

(
1 2

appropriate
presentation.
MR.

within your

power

point or any other

3
4 5

GASS:

Great.

Thanks,

Judge.

You're

familiar with
information

ad words,

and my

point is everything that

and

is in ad words is public
communication.

knowledge,
And

it's

6
7

at the end of the day

here,

the public interest in consumers of legal

I

8 9

services being able to get comparative information,

think trumps any individual rights of privacy.

as we were
sponsored

Because
ads and

10 11
12

talking about consumers looking at

links, what
we

didn't touch

on was

the next

step is the

click,

and nobody has been demeaned by

and

13
14

either of those things appearing,

consumers
THE

they're there for

of legal services to get information.

COURT:

15

Mr. Gass, do you know

any

if

Google

16
17

asserts

that there is

difference

in the likelihood

of

viewer clicking on the right column advertisements

18

as opposed

to the sponsored link?

GASS:
I

19

MR.

have seen nothing that indicates

20
21
22
23
24

there is

distinction
A

between those two.

No

research

that I'm aware of.

THE COURT:

greater likelihood.
some

In other

words,

they must have

advertising materials or
own

promotional

materials

of their

service saying pay

to that method.

25

more to choose

this method

as opposed

79

(
1 2

(
MR.

GASS:

Yellow Pages sure does.

somebody

They tout

this

as one

of the best things that

we

can do.

3
4

Of course,

don't have complaint with getting

a

comparative information in the hands of

consumer.
And

legal
ads on the
comes

the reach of the plaintiff's

a

6
7

Yellow Pages every time

referring attorney

up,

there is the ad.

with larger cases.
ad comes up on.

It's

not just two law firms that deal

every

8
9

It's

single lawyer that that

10
11
12 13
14

THE COURT:
MR.

Please continue.
Okay.
Then my

GASS:

point is

once

you

put your surname,

your name,

your business name,

your

persona on the web, parts of doing that is knowing that

your name can be searched.

THE COURT:

15 16
17

Just

minute.

If

there is

anybody

sitting

on the pews

there

who would

like to

see

this, you're

welcome

to sit there behind Mr. Habush or

18

anything place in front of the

rail if

you'd like.

19

Please

continue.
MR.

20

GASS:

On

your point,

Judge,

on the

right

21 22 23
24
25

side of the page versus the top of the search results,

the way Google refers to
show here.
I

it

by the generic,

your ads

call it
that firm

an organic

part of the web.

It's
up,

ads and sponsored

when you put

links.

It's

just they're as part of

put
a

name

up and

web

site

80

(
1 2 3 4 5

(
what you get.

that's part of
same

Google

again shows

it

the

way.
THE COURT:

But

just

minute.

What

if
come

Habush,

Habush

&

Rottier
name

had no web

site

and someone

searched on the

Habush?

They would

still

up

6
7

with

Cannon

&

Dunphy whether

or not they had decided to

on

play the

game

of putting themselves out there

the

8 9

Internet,

right?
MR.

GASS:

No, because there would be the

10 11
12

algorithm.

The

searching machine

wouldn't

come up

with

anything.
THE COURT:

Habush?

Sure.

They would come up

13
14

with Cannon
MR.

&

Dunphy.
CLARK:

That's not true at

I

all.
come

15

MR.

GASS:

agree they would

up with
a

16
17

news

articles,

but they would not come up with

web

site.
THE COURT:
MR.

18

Okay.

19 20

GASS:

Right.
Go

THE COURT:

ahead.

don't

want to slow

21
22

you down.
MR.

GASS:

And your

point is

good one, and

use the names
I

23
24

that's

point

we make

in our brief.
I

of lawyers every day

when

do

research.

put in

25

their

surname or

their full

name

to get articles they

81

(
1 2

have

written, to get articles that

have been

written

about them, to get court decisions

them.
I

that have mentioned

No way.

3
4

Is

my

use an invasion

of their privacy?

can put

plaintiff's
show
a

names

in Martindale Hubbell,
a

5
6
7

and as

I'm going to

you

in

minute, Martindale

Hubbell

will put
they

up

search result and at the bottom

of

it,

will
So

say you may also be

interested in the

8 9

following.
research
under
and

every lawyer whoever does any Internet

happens

just

to use the

plaintiff's

name

10

their theory is using their

name,

invading their

11 12

right of publicity and is subject to suit.

THE COURT:

Mr. Gass, Mr. Cannon wrote you

13
14 15

note.
MR.

GASS:

That's okay.

The point here

is

when you were

asking about right side versus over here,

Google

16
17

Google treats them the same way.

has

told the

whole world

this.

It
one

lays

it

out.

You can

either

be

18

here or here,

and they say people pay to be here and

19 20

here.

So

they're
They
No

in the same.

That's public

knowledge.

refer to the
distinction.

sponsored
From

links

as ads

in
own

21
22
23
24

both places.
web

the

plaintiff's
Internet

site,

we

know

that they

know about

marketing.
You can

take judicial notice of their

Down

web

site.

25

You can go

there.

at the bottom,

this isn't very

82

(
1 2

clear but
optimizers,

it

says

SEO

provided by search engine

optimization
to the
web

firm, the search engine guys.

3
4 5

When you go

site for the search engine guys,

in competition

they hold out that they've got expertise

in the on-line marketing,

on-line advertising market.

campaign management.
own

6
7 8

That you can do pay-per-click

This is right from the

plaintiff's

web

site, the

people who did

THE

it.
Well, Mr. Gass, actually
own web
I

COURT:

it

could

10 11

mean

that within your

what

site,

it

helps the user

find

they want.
SEO,

understand what you're saying

12

is this

company,
do

the search engine guys, are

13
14

offering to
MR.

competitive stuff.
Right.
But

GASS:

15

THE COURT:

It's

sort of interesting.

16
17
18 19

It's all
opposing

new

information that

has not been

provided to

counsel and also you're asserting

fact that

are certainly beyond what was in the complaint and also

what

is

new

today in terms of the assertions

that

20

you're making.

I'm not interfering with your

Mr.

21
22

presenting that material.

and allowing

Clark is being curteous

it
as

to continue. to one particular item that you're

SEO,

23
24

However,

bringing

up,

the

the search engine guys,

were used

25

for search engine optimization

83

by the Habush Firm.

(
1 2

Even what you've shown us here does not

indicate

they've been used for anything other than to optimize

the searchabi1ity
MR.

3
4

of the Habush web site itself.

Judge,
you can

GASS:

take judicial notice

5 6
7 8

of

it.

It's all public

THE COURT:
MR.

knowledge.

It's all

available.

Okay.
And

GASS:

the search engine guys have

actually posted

on the

Internet for

all of the

public
to

to see the marketing results for Habush dot

com due

10 11
12

their optimization
results using
from zero,

and how

they've achieved first place

all

sorts of target key words and went

page

first

results

on Google

to being

on the

13
14

first

page

at everyone of their various offices.

Okay.

THE COURT:

Well,

this is

more

15

information
MR.

then about that.

GASS:

So go ahead. So

16
17

Right.

then the second question

the

of whether this is in state or out of state,

processing
Washington

18

of
and

all

of the search words happens in

19

California.

That's where

all

the

20

searches happen.

Then those search

results are

21
22

delivered everywhere, not just to Wisconsin.

So
I

see the uncontested

facts that you're working

23
24 25

with as they are doing the

engines

same

thing.

All

search

allow bidding by
can do

anyone

for any word.

Everybody

it.

It

allows only

for adjacent

ad

84

(
1 2

space labeled as

sponsored link.

Google

says as

result, people
that they

see ads
a

that are

so

useful and relevant

3
4 5 6 7 8

become

valuable form of information

That is what is the overriding,

in
I

their

own

right.

think, driver here, the public interest.

public knowledge.
Words from the web

It's all

site

can become search terms

&

or

ad words,

either way.

This is all that Cannon

Dunphy

did.

They

utilized what's available to everybody in

equally available
and the

10
11

the public,

to the individual

plaintiffs
created.
ads

corporate

plaintiffs.

No

confusion

12

They never used any of the surnames

on

in any

13
14

that are

their

web

sites.

Processing was done

without being visible to the general public.

So

15

the essence of the case isn't the algorithms

or

16
17

the processing.
screen,
and

It's all

that

shows

on

the monitor
screen is the

all that

shows on the monitor

I

18

adjacent space advertising as

both basically

showed you

earlier

on,

19 20

the same.
boards

It

could have been

bill
&

boards,

two

bill

side by side,

and Cannon

21 22 23
24

Dunphy goes out and buys

Habush

the one next to where the

Firm is advertising.
able to see

Here's the Martindale.

a

You
I

will

it

in

bigger

way

in the

CD

that

give you.
You may

25

also be interested in when

was checking

85

(
1 2
a

firm called
was

Gooding
way

&

Gooding down in South Carolina,

this

the

Martindale uses and displays relative

3
4

to that firm.
In Mr. Habush's building,
and machines.

there

are elevators

5 6
7

Mr.

Cannon

could advertise on those

screens.

He

could go to that company and say whenever

anybody hits the

floor that

Habush,

Habush

&

Rottier

8 9

are on,
use?
a

want my ad to pop up.

down

Is that unreasonable

Somebody

the hall from Mr. Habush could put

going to see Habush or
how many

10 11

sign out,
same

if

you're
Gass,

if
too?

were

on

the

floor,

would see

me

12

You

could get an information bureau,

an

13
14 15

information
Wisconsin

kiosk

down

in the lobby of the First

guy when anybody

Building and ask this

ever
hey,
as

asks what

floor Robert

Habush is on to also say,

Cannon

16
17

you might be

interested in talking to Bill

Pages,

well, and in the Yellow

the placement of one of

18

their

ads
What

right next to

Mike End's ad.

19
20

I'm suggesting to you is

ways

all
a

of those
use of

different
name

that

you can say

it's

their
has

21
22 23
24

demonstrate the general

and here
&

principle that
one

it

to
I

be unreasonable,

is the better

of where

searched,

used Gooding
on

Gooding's name, and then

Martindale

its

own

said, you might also be

Johnson

25

interested in the McCarthy Firm, the

86

Firm,

the

(
1 2

(
the Austin Firm.
They're using the
name

Todd Firm,

as

well.

That's the real world that determines

3
4

reasonableness.
Now,
I

have been

talking about what are these

there's the privacy interest.
about
me

5 6
7

bigger interests?

Well,

That's what

call it's all

interest, but

there are public interests here that are involved.

There's
lawyer advertising.
The
a

8
9

amount

of lawyer

advertising

in the

SCRs

made

determination that

10

lawyers were going to be able to put information out

about themselves
so

11
12

they can be compared against

good

others,

and

that's

for the legal consumer.

13
14

Then we've

got the public interest in the Internet

as an information dissemination device.

Off to the
and as McCarthy

15 16
17

side are trademark and tradename cases;

says,

that's

totally different ballpark

So what

than right of

privacy cases.
adopted

did Wisconsin

court say when

it

18

lawyer advertising?
Public
and

Privilege of prima
in information
trumps

19 20
21

communication.

interest

private interests,

that

goes

to this threshold

element of reasonable or unreasonable and whether the

use is incidental
To

22 23
24

or reasonable.

assist the public in obtaining legal services,

should be allowed to make known

lawyers

their services
in expanding

25

through

all

of these things,

the interest

87

(~

(~
ought to

1 2

public information about legal services

prevail
media,

over consideration
such as the Internet

of tradition.

Electronic
source

3
4 5 6
7

can be an important

of information

about legal services,

and

allowing

lawyer

to pay for advertising,

that's exactly

what both

parties

have done here is to pay for advertising,

by

pay

for sponsorship fees, sponsored links allowed

SCR20,7.2.
Key word searching

8 9

certainly fits within

both the

spirit

and

letter

of that commentary.

10
11

The decision to allow lawyer advertising

inherently brought information which brings comparison,

which brings competition which ultimately
consumers of
comparison.

12 13
14

benefits

the

legal services.

think

we

should invite

The public interest

in freedom of
highway,
da

15

information,

all of the information

immediate.

ta

da

16
17
18 19 20

ta da,

it's

It's available
exposes
a

24/7.

It's

searchable.
A

It's

comparable.

decision that

lawyer for using the

searchability

of the Internet is going to constrain

that.

decision dismissing this lawsuit is going to

the information available to the public.
That

21

maximize

22
23
24 25

public interest in competition

trumps

in obtaining information
That's the
New

any loss of

potential relations.

Kids on the Block case.

So

all it

is,

is just comparative

marketing

88

r
1
2

(
space

technology, adjacent

advertising.

It's

monitor

screen equivalent of adjacent

bill
not

boards,
a

etcetera.

3 4
5

It's
name.

not

use of

name.
on

It's

misuse of the
name.

It's

not trading

another's

It's

making

information available to the public.

We've already looked at,
on

6
7

you've

caught the quote

competition

is

fundamental economic
New York

policy of the

8 9

state 995.50,
supposed

just like the

statute is
We've been on the

to be narrowly construed.

10 11

unreasonable
And you
was

action and incidental use and privilege.

I

already did what

was

prepared to
You

do and

that
on

12

pars out the parts of the statute.

and
I

did

it

13
14 15

foam boards,

had just done

it

electronically,

but

it's
to

got to be intentionable.

The

defendant's act has

and

be an

intentionable

and in unintentional

16
17 18

unreasonable misappropriation

of, and the only

criticism
name.
I

have of your foam boards you stopped with

when
a

think

statute puts three things like

something.
What

19
20

that together,

it
a

means

it

means

to

me
a

is identity

and

surname alone is not an

identity of

21 22 23
24

living
I

person.

Narrow construction,
was

all

of that is In the brief.

just pulling

up

the support

for

it.

So

the

essential elements are intent to misappropriate,

misappropriate
the identity,
not an intent to use to

25

89

(
,

1 2 3
4

come up

in

search engine.

Unreasonably invaded,
The use of the name,

you

have already answered that.

portrait or picture,
surname.

specific identity,

not just

Then with due regard for maintaining

the freedom

6
7

of private and public communication and excluding prior

restraint

of protected

private

and

public
along

8 9

communication,

those two things are as important

with interpreting
defenses

it

in accordance

with the privileged

So

10
11
12 13
14

and no presumption

of damages.

those are

the essential

elements.

You've already handled the living person.

That's

all

taken

care of.

You have

already handled that

Of course,
I

it

has to be an reasonable

invasion.

you're

15

getting that I'm telling you that

think this is just

16
17

incidental for the

Okay.
We

use of the

Internet.
I

Let

me

just

see where

am

for

minute.

18

have

all of

those.
So

We've gone over Martindale,

19 20

information

booth.

this

was my

little

test.

Was

there an intentional action to misappropriate the

names?
Was

21 22 23
24

Was

there

an

intentional unreasonable

invasion?

there

an

intentional unreasonable misappropriation?

a

Misuse of

name,

name

of

living
on

person,

name

for advertising purposes or trading

their

name

and

25

didn't

see anything in

this that would meet that test.

90

(
1

(
That was easy.
McCarthy

Trademark law does not apply.

2 3
4

laid

it

out.

Trademark rights and publicity

rights are

distinct rights that

standards.

are analyzed under different

There is no

right of privacy
for guidance

case that says

look

6
7 8

to trademark

cases

and 995 says,

explicitly interpreted

in accordance with the

developing law of privacy.

It

doesn't

say trademark.
We

Living person, we've already gone through.

can pass
no

10 11
12

that.

Now,

this

was the

set-up that there was

personal

loss to the individual

plaintiffs.

Then

Krier and Vinich saying that shareholders

maintain

may not

13
14

action individually to redirect injuries to

and

the corporation,
before
address

Vinich

came

after

our

brief

but

15

plaintiff's reply.

Plaintiffs failed to

even

16
17 18

it.
thing
from this
Rose

Same

Kentucky

case, Gregory vs.

I

Hunt.

Same

thing from

vs. Schantz.

also

19

referenced the Saxy case.

shareholders

The impact on the

20
21

is not
a

on us

to create

right to bring
I'm just

direct action in
following

right to publicity case.

22

-THE

23
24
25

COURT:

Mr. Gass,

which of the Wisconsin

cases

are you saying are right of publicity cases?

Is

Vinich?

91

(
1 2

(
MR.

GASS:

No.

THE COURT:
MR.
GASS:

Is Krier?
No,

3
4

neither
I

one

are.
so.

THE COURT:
MR.

Okay.

didn't think
So

5 6
7

GASS:

Right, right.

if

we

start with

the living persons,

and

you've already gotten

and

to this point

this point,

and then Vinich

have no

Krier provide the

sue

last step, that they

as

right to

individually

shareholders.
THE COURT:

10
11

Except

we

have the statute,

and

which

says

exactly what they

have to claim,

it's
I

entirely
did look

12

different
up when
I

from both Vinich and

Krier,
So

which

13
14

got your reply

MR.

brief.
I

please continue.
on

GASS:

What

was

just

before,

15 16
17 18

plaintiffs
but
as

say that those terms can only apply to them,

it

was

that that

surname can apply

to other people

well.
a

But the essence

of

publicity claim is the

point
name
I

use of

person's identity.
name,

The

had made

19
20

earlier, the full

their full

or their

portrait
in the
a

and we weren't

being cute with

it.

It's right

21 22 23
24

New

York cases that say

it's
fair

got to be more than

surname.
The restatement

third

on

competition

that

Mr. Clark handed out

earlier,

if

the alleged
name

25

appropriation consists of the use of the name, the

92

('
1

as used by the defendant

must be audienced by the

2 3
4

audiences referring

to the

plaintiff, requires

the

plaintiff
available,

keep

alive identification.
the

If

the use
no

doesn't clearly identify

and

plaintiff,

recourse

that

was my

point about Jesse Habush.

6
7

His was the

first

name

in the firm.

Later

it

became

various variations of that.

THE COURT:

But-minute.
Mr.
Habush,
was

8 9

Just

that Dominic Frenzi with your law firm or your dad's

law firm?
MR.

10
11 12

HABUSH:

Yes,

Dominic

Frinzi,

Larry
back

Gillick (phonetic)
in 1960.
THE COURT:
MR.

and my

father formed the firm

13
14
15

Okay.

Thank you.

GASS:

The firm has become

on the web as small

16
17

institutionalized
capital
Habush
H.
So

H,

dot

com,

not

all

of that,

the question is which

18

is it, the

first
a

one

or the second one,

or

19 20

others that are attorneys in the community?

Names

contain

first

name,

given name,

21 22 23
24 25

surname, the

last

name

and the

first letter
do what
I

of each is

capitalized.
Then Mr.

That never happens.

That never happens.

Clark tries to
meaning',

call

'but

my

name has secondary

two step.

Nothing

in 995

indicates that the trade law doctrine of

secondary

93

(
1

(~

meaning can transform

an unpredicted surname

into

2 3
4 5

protected

name

in

privacy case.
a

Nothing in the
Shows

state.
mind of

think that's

stretch.

the lack in

my

straight-up case under

for registration,

995 and

if it's
qualify for
they could

qualified

if

their

names

6
7

registration

because of secondary meaning,

They can

file

them.

try to

take trade names on

it,

but

8 9

they didn't.
Secondary meaning

attaches

when the name

and the

10

business have become synonymous

in the minds of the

11
12

public submerging

the primary identity of that term in

favor of its meaning as the word identifying

business.
These are from out of our
so
I

that
and you've

13
14 15

brief,

read that,

don't have to
meaning

go

through

it.
No

Secondary

is

trademark doctrine.
may be

16
17

trademarks by which goods of the applicant

distinguishable

from the goods of others shall be

18 19 20

refused registration

unless
a

it

consists
So

of

mark which

is primarily merely

surname.

all

of the briefing
They

about secondary meaning goes out the window.

21

couldn't take these

names

and

register

them with the

22

U.S. Trademark Office,

Sorry,
trademarks
I

the statutory prohibition.

The Lanham Act

23
24
25

forgot.

also prohibits
a

that consists of or comprises

a

name

for

trade or signature identifying

particular individual.

94

(
1 2

(
,

Done.

They

don't have any secondary

meaning then.

Use, we've already talked about use of identity as

opposed to just the surname.
I

3
4 5

don't think

have to

counter that any further.

Let

me go

beyond

that.

Here though when

we

talked

6
7 8

about lawyer advertisement,

Commercial speech

started with Bates.

serves to inform the public of the

and prices

availability, nature

of product and services

and must perform an indispensable

role in the
system.

10

allocation of resources in

free enterprise

11 12
13
14

It's

matter of public interest that economic

well-informed
and

decisions be intelligent,

this

end

the free flow of commercial

information is

indispensable where

matter of legitimate public

no

15

interest
privacy

is concerned,

action for invasion of

16
17

will lie.
27

Then SCR 20,

will assist

the public.

The

18 19

public needs to

know about

legal services,
The

the interest

in expanding public information.

Jeffries case.

20
21

What's being protected in publishing these cases is

commerce

or

traffic,
why
so

not dissemination

of information
up

22
23 24

and

that's

that last paragraph

that you put

there, No.3, is

important because that's the

privilege that's being protected here.

So

25

what's

my

conclusion?

Dismissal is required.

95

(
1 2

(
use.

It's

reasonable
use.
a

It's privileged
use only

use.

It's

incidental

It's

of
use

surname, not the

3
4 5 6
7

identity of

person, and

it's

that is invisible to

the public and

it

is use without endorsement, without

putting
without

it

on the web

site, without trading

on

it,

implying an endorsement at all.

take the whole package starting with

And when you

the overriding
way through,

public interest and you work

it all

the

you can

forget about the

15 or 20 or 30

10
11
12

minutes or whatever long we took about unclean hands,

but

will file

separate motion to make that

true

part of the record.

But I'm so glad that you went ahead this afternoon

13
14

to take arguments
the way around
my

on

the briefs because

you end up

when you go

all

15

circle,

with dismissal is
but

16
17
18

appropriate.
good

And

it's

not just appropriate,

and

it's

for the consumers of legal services,

the

that

trumps private interest,

THE
COURT:

all

about me claims.

19

Okay.

Thank you,

Mr. Gass.

Now,

20

Mr.

Clark,

would just
I

really love to
I

see your power

we can

21

point also, but

resolve
a

think before

hear from you,

22
23
24

few things and avoid some unnecessary

expenditure
Mr.

of time.

Habush.
MR.
HABUSH:

25

Before we're through, your Honor,

96

(
1 2 3 4 5

I'd like to
before
I

have

couple comments.
Oh,

THE COURT:

certainly.
I

So

initially
go back
a

hear from Mr. Clark,

aspects.

I'd like to again

think Mr.
we

to

couple overall

Gass made

couple of important points of something

all
are

know

but

6
7

hasn't been explicitly

stated this afternoon.

The key aspect of what the defendants

8 9

asserting is that

when somebody searches

name

for the

name

Rattier or searches for the

sponsored
up

Habush and the

Dunphy,

10 11
12 13 14

link of Cannon, hyphen,

Law Firm

dot com comes

for the

of Cannon,
none

Dunphy,

S.C., the

defendants

assert that

of that indicates that

&

there is any endorsement

Habush Firm,
and

of Cannon

Dunphy by the

also that the word Habush that the

15

search engine uses to return the sponsored

Cannon
&

link for

16
17

Dunphy, that that word is

invisible to the

user.

18
19

In other words, the user

Habush or keyed

has punched

in the

name

it
no

in or the

name

of Rattier, but in
&

20
21

the sponsored link that comes back, Cannon

Dunphy,
name
&

S.C., there is

record in that ad

itself

to the

22 23
24

Habush and no suggestion

that

Habush

endorses

Cannon

Dunphy, and

that's

one

of their arguments.

Of course,

the response to that that Mr. Clark has written,

the name Habush is

well,
of

25

allover

the

web page because

97

(
1 2

(
So

course the person searched for Habush.

other response

almost every

to the search engine that pops up has

3
4

the name Habush in

the sponsored

it.

The

only one that doesn't is

Cannon
&

link that

says

Dunphy.

5 6
7 8

Another key aspect, just to bring us back to what

we're doing here today

aware of

and
we

I'm sure Mr.

a

Gass

is well

this is that
That

are here on

motion to

dismiss.

is that taking
no

all

the facts as asserted

under

in the complaint, there is

the statute.

right of recovery

10
11 12

I've already
Habush,

determined
Habush
&

that with respect

to the
Mr.

plaintiff,

Rottier, S.C.,

Gass

also asserts that taking

all

the claims set

as being

13 14

forth, all the assertions in the complaint

true that Robert L.
Habush

and Daniel

Rottier that

15 16
17
18

neither of them would

have any
I

right of recovery at

all.
when

And,

Mr. Gass,

have to disagree.

You know,

it
all

was

interesting what
line items.
I

you did there

you gave

the

think

you were
make

19 20

setting forth

elements
a

of what's required to

this

claim and there was

whole series of elements that

The

21
22

just aren't in the statute.

simple.

statute here is quite

but

It's

not

terribly well written,

One whose

it's

not

23
24

terribly confusing either.

unreasonably
Unreasonable

privacy is

invaded is entitled

to

relief.

25

invasion

--

I'm sorry

--

invasion

of

98

('

(
purposes

privacy means the use for advertising

purposes of trade of the
name

or

2 3
4 5

of any living person

without consent.
So

what are the questions?

have the

Could Habush
enough

-to

I'm

sorry

plaintiffs set forth

name

6
7

establish that the lower case word, H-A-B-U-S-H,

means

is the use of the

question

of Robert L. Habush?
the

And the

8 9

isn't
a

whether

plaintiffs

have established
The

this

by

preponderance of the evidence.

a

question

10

is have they set forth

the lawsuit.
Another

claim that can be pursued in

11
12
13
14

thing that hadn't been pointed out that

whole

think is really significant here is the

the importance

genesis,

of this right; that is the right of

could be that someone became famous
and

15

publicity.

It

16
17

accidentally; but most often

complaint
name

in this case, the

to the

establishes

that the value attributed

18

Habush was

carefully established

and enhanced by

19

the lengthy and

difficult
and to

and

energetic efforts of
the complaint

20 21

Robert L. Habush;

Rottier,

alleges

the same thing.

Of course, the same applies to William Cannon,

22

23 24
25

that each individual

has worked

tirelessly

over decades

to build value in their names.

This right that's being

protected is significant

because they've

earned

it.

99

(
1 2 3 4 5

Mr. Cannon has earned

So

it.

Mr.

Habush has earned

it.

the legislature
has decided

in its wisdom and that's all that this right should be

I'll
a

say,

protected in the law, the right, that is the value that

person has created in their life's
own name.

work

in enhancing

6
7

their

The question here is whether the complaint

sets

itself
Let's

forth enough to proceed with the lawsuit.

say

hypothetically
we

it

does.

Then we have to decide

10

where

go from

here, and

I'll

actually

get to that,

11
12 13
14

when we get

to that,

assuming

that the case is going to

where we go

continue.

We'll cover that sequentially,

from here.
I

certainly appreciate

all

the help that both

15

parties have given in terms of case law from other

16
17

states, case law from other trial courts,

learned
of that,

treatises.
however,

They've

all

been

helpful.

None

18

without precedential decisions from Wisconsin

Courts allow
me

19 20
21 22 23

Appellant
words
I

to really change what's in

of the statute itself.

know

that there are judges

who

think differently

than

do, who have the capability

of reading beyond

what's in the words of the statute to find additional

meaning

24

in historic jurisprudence.

What

have been

25

taught about the law

for

my

entire career is that

it's

100

(
1
2 3
4

('

not really

good idea for

judge to do
a

it

when

it's
can

not necessary.
be understood,
So what

If
we

the words present

claim that

stick with the words.

does

it

say?
So

One

whose
means

privacy is
you need to

unreasonably

invaded.

that

6
7

establish unreasonableness,

and you need invasion

of

privacy to
is

be

entitled to relief.
and

Well, unreasonably
a

8 9

an element,
As

I'll

get to

that in

minute.

to invasion of privacy, what does

it

mean?
some

10 11
12

It's

not hard for me.

It

might

be hard

for

really
me

deep-thinking

legal scholars, but it's not hard for

The use

to see what this means.

for advertising

13
14

purposes or purposes of trade of the name of any

living

person.

Okay,

let's

see what we've got.

What's

15

alleged in the complaint

name,

is the

use

of Robert Habush's
What's the

16
17
18

the use of Daniel Rottier's

name.

basis for it?

words,

That the Cannon Firm bought

the ad

Habush and

Rottier.
to
me

19

It
really
word,
not
a

just

seems

it's

factual question
Habush,

20

whether the word,

the ad word, the search term,

Habush.

21
22

means Robert L.

Whether the search

Rottier, really

means Daniel

Rottier.
a

That

it's

23
24

question of law, but that is

determination that
and set

is

made

after the claims

have been established

25

forth in the complaint.

101

(
1

(
I

As to the use,

really

have

hard time with any

go beyond
I

2
3 4 5

effort that

both parties

have made

to

the

simple English language meaning of that term.

just

don't see that that makes any sense at

all

or that

there is any place in

Mr.
Gass,

it.
I

6
7

Mr.

Cannon,

don't
a

mean
I

to say that

it

wasn't
say

good idea to give

my

it

try.

just

mean

to

8 9

it's allover

head.

If

you're saying that the

use of the word Habush,

Habush,

if
it

Habush means

Robert L.

10

that the use of

or responding

is anything beyond calling

11
12 13
14

up Google

to their web site or however

Google does business and saying

I'd like

to buy the

word,

Habush,

H-A-B-U-S-H,

as an ad word.

Then of course even

By
I

the way, that's done

know where

15
16
17

presumably in Wisconsin.
done,

don't

it

was

but

it's
and

most
I

likely

having been done in

a

Wisconsin,

also have

hard time with the

has been done

18

jurisdictional claim that anything

outside of Wisconsin.
But even

19

20
21 22

if it's
So

outside

of Wisconsin,
a

think

Mr. Clark argued

that it's still

violation of
was done

Wisconsin's

law.
and

let's

say

everything

in

23
24

California,
Wisconsin,

that Habush didn't even practice

a

law

in

perhaps

cause of action

lies here
I

because

25

the elements of the statute have been met.

don't

102

(
1 2

('

know

that.

We

don't have to decide that.

I'm jumping from point to point here.
I

I'm sorry.
As

3
4 5 6 7

far

as the term use goes,

certainly respect the

deeper and
dot

legal agreement that use

more convoluted
com

means something

than what you find in dictionary

or any other means,

I

of course Black
any need

Law

Dictionary,

but

simply don't
some

see

to

go beyond

that to

8 9

find

hidden meaning or amorphous

legal meaning to

the term use.

Then

10
11
12

for advertising purposes or purposes of

Gass has
I

trade,

Mr.

repeatedly shown slides saying this

is advertising.
convince me
was

think that before having Mr.

was

Gass
I I

13
14

this afternoon that this

advertising,
I'm not sure
person

sort of

--

Let

me

say

it

this way.

15

know whether

to use the

name

of

living

for

16
17 18 19
20

advertising purposes at least until seeing the slide

show

today,

if

the use of the living person's name for

advertising purposes,

if

that required the appearance

of endorsement.
the ad.

It
&

required that the name show up in

Mr. Habush's name does not show up

Of course,
Cannon

21 22
23
24

in the

Dunphy ads.

But for purposes

of trade,

don't think that's

of trade.
&

difficult call.
Firm.
As

This is for purposes

It's

in order to drive business to the Cannon

Dunphy Law

25

far

as whether the simple word,

H-A-B-U-S-H,

103

(
1 2 3
4

is the

name
a

of any living person,

think that's

fact -no
So

question that has to

come

later,

and

there is

issue about consent.

what's
So

let's
a

go

back to the question of

One,

unreasonableness.

There are two questions here.

6
7

is unreasonableness

determination, that is the use

that's

been

alleged here per se reasonable as

assert?
a

8
9

defendants

Or on the

other hand, is

unreasonableness

question of fact which has to

10
11
12

survive the motion to dismiss and be determined later.

That's
one

issue.

The

other issue is
can be pled,
And

if it's
has

question of fact,

13

that

if it

it

been
me

pled in this
based on the

14

complaint.
arguments

it

does

appear to

15

that

have been

presented, including the

16
17 18 19

briefs that the question of whether something is

unreasonable

is

fact question that survives the

motion to dismiss.
se unreasonable;

It

may be
a

that the

conduct

is per

and

that in

motion for summary

on

20

judgment,
I

the plaintiffs would prevail

this issue.

21 22
23

don't

know.

It's
a

not been presented

in terms of
only

motion for summary judgment.

It's

been presented

in the form of
What
I

motion to dismiss by the defendants.

24

cannot determine

today,

even with the

25

impassioned

argument about the importance

of comparison

104

(
1 2

of services and the importance of the information

superhighway
and the importance

of competition
I

as

key

3
4

driving force in society in Wisconsin,

cannot say

that

it

is per

se reasonable

to pay, that is for one

5 6
7

law firm,

to pay to have the search engine return that

when

law
name

firm's link

an

individual searches for the

that is
a a

of another living person,

who

competitor,
I

8
9

that is the live person

is

competitor.
and

cannot

say that per se that is reasonable;

therefore,

10 11 12

there is an issue that survives the motion to dismiss

on

the question of unreasonableness.

The

final issue is
facts to

whether
a

the complaint has set

13
14 15
16 17

forth

enough

make

claim for

unreasonableness,
makes the claim,

and the answer

is the fact set forth

is

even though the word unreasonable

not in the complaint.

describes
a

The complaint

is thorough

and

course of conduct in addition to the

18

substantial value Mr. Habush has created through his

hard work and Mr. Rottier too in

19

their

names and the

20 21

other underlying facts set forth in the complaint

enough,

are

this being

notice pleading state and that not

be proven

22 23
24

every fact
be

that's going to

at

trial

needs

to

listed in the complaint to establish the

cause of

action,
I

to set forth the claim for the cause of action.

25

also note that we're

still

at the very beginning

105

(
1 2 3 4 5

('

of this lawsuit,

and
a

that

we

haven't

even developed
So
I

scheduling order at
not set
a

scheduling conference.

have

deadline for amending the pleadings

as is standard

or naming

additional parties

in our Standard Civil

So

Division Scheduling Order for Milwaukee County.

Mr.

if

6
7

Clark would want to

an

amend the complaint

and add

explicitly
I

assertion of unreasonableness,

that the

8 9

time to do so has not yet expired.

think I've covered the substantial set of

which are on the table for today, and
a

10 11

circumstances,

I'm ready to

make

determination
may

as to whether

Mr.

12 13
14

Habush and Mr.

Rottier

remain as parties

in this

claim in this lawsuit.

But Mr. Habush,
you had something you wanted

to

15

say.
MR.

16
17

HABUSH:

It
Go

pertains

to the other issue of

clean hands.
THE COURT:

18

ahead.

19 20
much

MR.

HABUSH:

Your Honor,
I

because

have so

respect

for this Court,

I

felt

compelled

to

21
22

respond to what

felt

was

cowardly ambush and

I
I

defamation of

me

and other people in my firm.

a

can
have

23

tell

the Court that this is

surprise to
Our

me.

24

never seen that Yellow

Page ad.

investigation that

25

is going

on

right

now has

indicated that

it

was

done

106

(
\

1 2

without our knowledge.

We

will

present

affidavits

to that effect,

but

3
4
5

just wanted

you not to leave

I

this courtroom today

to
do

thinking that

had anything

with this or

knew

what the hell is going on, because

I'm the least

my law

6 7

qualified
I

when

it

comes

to the Internet in

firm.
be

just wanted

you to know

that,
our

and the proof

will

8 9

in the pudding

when we

file

affidavits
Page people

from our
how

Internet experts
happened and how

and the Yellow

this

10 11

this

happened

without any intentional

act, had to

do

with us.
Okay.
Thank you.

12 13
14
15

THE COURT:
MR.

Mr. Gass.

GASS:

Yes.

Judge,

would
we

like to

if

could get leave to amend our motion so

can address

formerly on the record with time for the plaintiffs

respond to the issue that
unclean hands and get
THE COURT:
a

to
the

16
17

we

had at the beginning,

hearing date for that.

18 19

Right, or you can write

hear from Mr.

it

up as
Go

second motion.

I'll

Clark first.

20

ahead, Mr. Clark.

MR.

21
22 23
24

CLARK:

Your Honor,

just to say
I

object
should

to his request to
have
a

amend

the motion.

think

we

decision

on

this motion.
we'll

If

Mr.

Gass wants

to

file

another

motion,

respond

to

it.
we

In the

25

meantime,

the case

will

continue and

can move

107

forward.
THE COURT:
I

2
3
4

don't see any distinction other

than that in particular there is

--

don't
a

know

of any

principle of law which gives

party

right to file
So

only one motion to dismiss on the pleadings.

6
7

therefore,

will

take Mr. Clark's

suggestion,

and

will rule
do have
new

on

this motion today,

and then

certainly

you

8 9

leave to

file

an

additional motion
a

based on the

information which
MR.
THE

you discovered

week ago.

10

GASS:
COURT:

Great.

Thanks,

your Honor.
set forth in

11
12 13
14

Based on the words

the statute and the claims set forth in the

complaint,
Habush,

plaintiff's
&

first,
&

number one,

have already dismissed

Habush,

Habush

Rottier

because

Habush

15
16
17 18

Rottier, S.C.
Two,
I

has no cause

of action under the statute.

have ruled that in order to prove the case,

show

the plaintiff will be required to

that the

invasion of privacy under section 995.50, paragraph 2b,

was an

19

unreasonable invasion of privacy.

I

20

Three,

find that nothing in the statute requires

21 22
23
24

that

person whose privacy has been unreasonably

a

invaded must suffer monetary harm in order to pursue

cause of action.
And,

in fact,

say that for two

reasons.

One,

the statute

itself

allows

recovery of

25

compensatory damages based only on defendant's

unjust

108

(~
1 2 3 4 5

(/
\

enrichment even without proof of damages based

loss of the

on any

plaintiff.
for compensatory
There is only
a

And, two, there is no claim

damages here.

claim for equitable

relief

and reasonable amount

for attorney fees.

amount.

6
7

Mr. Clark,
Now,

that's reasonable

therefore, with respect to the two remaining

and Daniel

8 9

parties, Robert Habush

Rottier, the motion

to dismiss is denied, and the case will proceed.

10 11
12

Let's

move

right

on then
We

to

brief

discussion

of

where we go from here.

know we may have

another

motion depending

if

the lawyers have some discussion

and share documents.

13
14
15

amongst themselves

Perhaps there

will not

be

need for an additional motion.

a

There has been

discussion in the past about or

16
17
18 19

correspondence about whether the

seek temporary injunction.
has the

plaintiff is

going

Certainly, the plaintiff

and to make the
a

right to
but to

make

that claim

motion;

me,
a

frankly,

20

extra work for

proceeding to
which the
a

more

it seems like difficult task then

I

lot of

just

21
22

final

hearing

for the equitable relief,

guess what I'm doing is

plaintiff

seeks.

23

trying to protect myself against additional work that

may

24

not be necessary,

but

it's

entirely
such
a

up

to the

25

plaintiff if

you want to bring

motion.

109

(
1 2
I

(
also thinking that the proof for
a

temporary
because
a

injunction might in fact be more

difficult

3
4

there are more elements that would be required for

permanent one.
MR.

5
6
7

CLARK:

Your Honor,

you may remember one

of our earlier telephone

conversations

in the case.
preference

think

expressed

it

was

the

plaintiff's

in

8 9

the interest the

of efficiency and time to

the case

move

forward to

final resolution of

if
I
a

we

can do

it

in
extent

10

some type

of expedited fashion.
depend on what kind of
The Court

think to
schedule

some
we

11
12
13 14

it

would

could
us and
a

work out.

has

really

accommodated

the defendant's

willingness
schedule
end

to work with us on
and
I

reasonably advanced

don't

know whether

15

either of those at the

of the day will be possible.

issue and that is
we have

16
17
18
19

But we've got another

not been able to get any discovery

and so

from the defendants,

We

that's

an immediate concern to us.

we came

had
we

agreed with Mr. Gass when

to clearly

were

20

not going to be able to get that issue resolved prior

21
22

to

hearing

on

this motion to dismiss that

for discovery

we would

put off any requests

Court ruled,

until after the

23
24

and we now have

to address that issue with

some

the defendants again and work out

sort of schedule

25

in regards to that.

110

(
~

(
THE COURT:
I

1 2

will

make

some comments about

discovery in just

minute.

There are other aspects to

and

3
4

this

case we should also cover,

a

that is
a

how we can

get to

final result.

I've referred to

couple

5 6 7 8 9

questions here as fact questions.

Mr. Gass has

repeatedly said this is equitable

In the case involving Crazy
Johnson,

proceeding.
Legs Hersch
and s.C.

the parties had brought the case to the

Supreme Court

Wisconsin

after

jury trial,
a

and the

10

matter was returned to the court for

I

new

jury trial.

11

assume Hersch was seeking monetary

damages.

12
13
14 15

In addition to that, the Court repeatedly

and the

parties today repeatedly referred to this type of claim

as
a

tort,

tort of misappropriation of

the right of

publicity within the privacy statute,

special type of the right of privacy.
At
and the
some

an unusual

or

16
17

point,

someone has

to determine the facts,

18 19 20

facts

--

mean,

that is whether the word

whether the word
and whether
was

Habush

is the

name,

Robert L. Habush,

Rottier is the

name,

Daniel Rottier,

any

21
22 23
24

invasion of privacy under 995.50(2b)

There might be other fact questions
Perhaps

unreasonable.

as

well.
a

the parties

can

all

agree that

fact
a

determination must be done by the judge without

or perhaps the parties can

jury,

25

all
111

agree that the fact

(
"

(
is
one

1 2

determination

for which

jury should
I

be

impaneled and someone pays the jury fee.

would

like

3
4 5 6
7

for the lawyers to work

back to me on that.
But

on

this first

and perhaps get

it's definitely
I

something

need to know the answer to that.

mean, we

all

need

to

know the answer

to that.

Obviously,

as you know,

in

equitable proceedings,

normally

all of the matters are

a

determined by the judge without

The bad news

jury.
I

is

learned yesterday

will
me.

not be

10

rotated.
good news.

I'm sorry.
For anyone

It's
who

not bad news

for

It's
we

11
12 13

is in this case

now,

are

all in
have

it

together for the long haul, and you certainly

know

the right to
Okay.
We

that.

14

also have the brief discussion of the

Anything else we
I

15

question of discovery and what else?

should cover here, or any response

16
17
18

to something

described?
MR.

GASS:

No.

would just
on

alert

you to the

19

fact there are jury instructions

claim.
THE COURT:
MR.

this specific

20
21

Good.
So
I

22 23
24

GASS:

at least the thinking would be

as

purity issue.
I

haven't thought that through

to get the motion to dismiss

obviously.
out with
a

need, Judge,

25

brief.

Let's see.

It's

the 10th of March.

112

(
1 2
I I

(/

go

into
I

trial

on the 22nd

for

two weeks.

Let's see.

think

need three to four weeks to get that ready to

3
4 5 6 7

go.
THE COURT:
How

about

if

give you

date for

any and

all additional

motions?

We'll

even say

if

party is ready with the motion for

you decide

summary judgment,

if

that's appropriate.
us

Again,
we

that's something

8
9

that's right here for

We

that

can do

it all

then.

can also then have plenty of time

for briefing of

10

all

the motions.
MR.

11 12

GASS:
CLARK:

That's fine with

me,

Judge.
I

MR.

Your Honor, the only thing

would

13
14

just at least raise for the Court's consideration that

we

consider having

schedule conference,

say,

in

15

week or 10 days.

That

will

give us

chance to digest

16
17

what the Court has done today and to have some

conversations
to know,

among counsel, because

what

would like

18

your Honor,

from the defendants

a

their
and

19 20

willingness

to work towards

relatively expedited,
I

I'm putting the quotation around relatively

expedited
a

guess,
have
a

21 22 23
24

final hearing.
we

Because

that's going to
to move for

bearing on whether

feel

we want

temporary injunction or not,

if

part

of that is

how

cooperative are the defendants going to be with regards

25

to giving us responses to our discovery requests.

113

(
,

1 2 3 4 5

Until

know

that, it's

hard

for

me

to

gauge what our

next step would be.

THE COURT:

You know,

think that this is

really

good idea

is that our next step here will not be

have
a

to set dates or deadlines today but to

scheduling conference

6
7

as soon as reasonably

possible

within the next couple

saying that,
how

weeks.

But

rather than just

8 9

about

if

look at possible dates and

for our schedule,

branch,
now,

the schedule
means

that

we

have in this

10
11
12

it

certainly

more

than two weeks from

kinds of issues.
But

and then we can cover

you

all

in

the meantime,

will

have had the opportunity

to work

13

things out yourselves.

Mr.
22nd?
MR.
GASS:

14
15

Gass,

you're starting your

trial

on March

16
17
18 19

Right, in front of Judge DiMotto

and

it

will

go two weeks.

THE COURT:

That's very convenient

then.

I'm

looking at the week of April 12th, and

jammed

it

really looks

20
21 22
23 24

here.
MR.

HABUSH:
I

I'm starting

trial
your

that day,

your Honor,

don't

have to be here.

THE COURT:

Okay.

Where's

trial

going

to

be, Mr. Habush?

MR.
HABUSH:

25

Sosnay.

114

(
1 2 3 4 5

MR.
THE
MR.

GASS:

Well, I'm good, Judge, 12, 13, 14.

Okay.
Those days

COURT:
CLARK:

will

work

for

me

as

well, your Honor.

THE COURT:

What we can do

is

jam

this in

and

6
7

hopefully make
the morning.

it
We

work on Tuesday,

the 13th of April in

will

begin at 10:15 for scheduling

a

8
9

conference.
assume

do have

motion hearing

at 9:30.
a

it's

summary judgment.

That might be

10

problem, but
as

we'll

do the best we can and

start there

11
12

close to 10:15 as possible.

Whether we do

it

in

person or by telephone
want to
come
I

it

doesn't

matter to me.

If

you

13
14

by telephone or rather in person,

you

that's

fine.

think

will will

have
some

slightly -a

think

15

appearing in person adds

but hopefully there
Just
a

value to your advocacy,

16
17

not be

lot of

advocacy.

lot of cooperative effort

CLARK:

here to set our dates.

18

Mr. Clark.
MR.
I

19

think there's

some

advantage to

20

appearing

in person, your Honor.

We're certainly

21
22
23
24

prepared to appear personally at the conference.

MR.

GASS:

My

problem, Judge,
Bay

I'm

transitioning to
doing motions

Green

to start

trial
we

that
can

we

are

at the end of that week so

start

25

witnesses

the follwing week.

115

(
1 2

(
THE COURT:

It's

up

to the individual,

and

do

offer pretzels for

doesn't

anyone who shows up in person

if

3
4 5 6 7 8 9

it

have to be done out here

in the courtroom.

It's

going to be Tuesday morning,

April 13th at 10:15

in the morning.
Also, Mr. Habush,
the one who

in Mr.

Gass

no,

Mr.

Gass

is

will

not be
be

in person.
up

In

any event, you want

that's going to
to
come

entirely

to

you whether
And

in person or by telephone only.

then the
now

10
1.1

next question is what is going to happen between

and then.

12
13
14

Between now and then,

you

will

work cooperatively

together

on
And

all
I

the issues, including any discovery

issues.

don't

--

I'll

just simply say this.

aware

15
16 17

Mr. Gass and his

client are well

of party's right
both of them,
guess,

to discovery under Chapter 804.

have been involved in,
a

They,

this is just an educated

18

very strong hunch, they, both of them, the lawyer and

19

the client have been involved in the serious efforts to

deal with problems arising out of
a

20
21 22 23
24

reluctant party's

or

party's reluctance to provide,

full

thorough
They know how

discovery of

all

discoverable materials.
and

frustrating that is,

they know that they're subject

to sanctions for failure to comply.

Mr. Clark,
I

25

don't think that there will be

116

c
1
2

c
in this case

resistance or push-back by the defendants

to your substantial rights of discovery that every

party has according to Chapter 804 of the Wisconsin
statutes.
And of course,

3
4 5

if

necessary,

I'll

be

available to

remedy problems

that occur but only after

6
7

the parties work together to see

if

you

can resolve the

a

dispute yourselves.
to Mr. Gass.
Now,

So

the

first step is

phone

call

8 9

what else?
MR.

10

GASS:

Judge,

told

you
a

was going

to

11
12

give you

CD

of the slide slow

as
I

and

printed

copy of

it.
that

realized

was

putting them together for you,

So

13
14

my

secretary printed an earlier version.

tomorrow morning,

I'll

have

hand

delivered to

you one

15

for the record, one for your personal use and one for
Jim as well.
MR.

16
17
18

CLARK:
I

Unfortunately,
disadvantaged
by

didn't

prepare

slide

show.

feel

the defendant's

19

providing you with

materials.
and
I

all of their
offer
my

argumentative
argument,
a

20
21 22 23
24

would

outline of the

I'll

submit

that

if

that's in your view

reasonable approach they're giving you their argument.

THE

COURT:

Just

minute.

This is the slide

new

show on

the whole issue or only the

MR.

issue.

25

GASS:

Everything

told

you today.

117

(
1 2

Because we were working with the screen and

wanted to

complete the record as to what

THE COURT:

said.
That's fine.
I

3
4

Of course.
a

Just

make

sure Mr. Clark gets

MR.
MR.

copy the same time

do.

5 6
7

GASS:
CLARK:
my

Yes,

sir.
are you willing then

Your Honor,

to have

me

submit

outline to you similarly?

8
9

THE

COURT:

Certainly.

mean,

I've

made

my

decision

on

the motion

and so nothing

that

you submit

10
11
12 13
14

is going to be persuasive anymore, because

over.
a

it's all

But sure you can submit

that.

That wouldn't be

problem.
MR.

CLARK:

There's just one item of

At the time
we

unfinished business.

submitted our
a

15 16
17

brief,

we

also submitted an order to your Honor with

was agreeable
I

brief that
just

with Mr. Gass.

That order has

and
I

not been addressed

wondered

don't think
a

by the Court,

18

if

there was

reason for that or

if

that

19
20

just slipped
THE

through the cracks.

COURT:

Have you checked CCAP to see

was
I

if

we

21
22

received

it
MR.
a

and

if it
maybe

signed?

CLARK:

have not,
a

at least not recently.

I

23
24

did at

time,

couple weeks ago

resubmit

checked

it.

If

your Honor wishes,

THE

I'll
Let
me

it.
I

25

COURT:

glance at the pieces

118

1
2 3 4 5

have.

Here's

one.

Enclosed is original

motion,

motion

to compel.

That's different.

Order received on

December 23rd.
THE CLERK:

Is this the one that was submitted

by Attorney

Ric Gass on January 20th with joint

6
7 8

stipulation?
MR.

CLARK:
me

No.

This would have been

I

submitted by

with our response brief.

don't
I

know

what date our response

was

brief

was submitted.
I

think

it

10

sometime

in January.

January 15th,

believe, your

11 12
13
14

Honor, is when we

filed

the order.
I

THE COURT:

Right.

would say
must

--

would ask

you then

to resubmit that.
some

It
do

be some place

in

my

office under
MR.
THE THE

other papers.

15
16
17 18

CLARK: CLERK:
COURT:

We'll

that,

your Honor.

One was signed.

I

found one order that

we

signed,
I

but that was something

received in

December.

19

signed something the 23rd of December.

MR.

20

CLARK:

Judge,

21 22

your Honor.

It

may

well

be

it it

came

with the brief,

got misplaced.

I'd

be

happy to resubmit
THE

one.
I

23
24 25

COURT:
We

signed one the 14th of December.

Just to

minute.

found

show

this to

you.

it. This is it. It's two paragraphs,

119

We

are going

one about

(
,

(to
a

1 2

responding

motion to compel discovery,

no need

and the

other is about

to

file

motion for temporary

3
4

injunction; is that right?

MR.

CLARK:

Yes, that's the one.

THE COURT:

Right.
You can

I'll

sign

it

now.
a

Okay.

6
7

That is
copy

now

signed.

probably get

confirmed

of

it.
it's
been
a

8
9

Again,

pleasure seeing everyone this

coming,
and

afternoon.

Thank you

for

we'll

see

you

10 11

then at the hearing

at the time of the scheduling

conference.
MR. MR.

Thank you.
GASS:

12
13

Thank you.

CLARK:

Thank you.

Appreciate the time

14

today.
(Whereupon proceedings were concluded

15 16
17

at 4:55 p.m.)

18

19

20
21
22

23
24

25

120

(
\

1 2 3 4 5

STATE OF WISCONSIN

ss.
MILWAUKEE COUNTY

6
7

I,

BONNIE

H.

DOMASK,

Official

Court Reporter in and for the Circuit Court of

Milwaukee County, do hereby certify that the foregoing

8 9

is
had

true

and correct

transcript

of

all

the proceedings

10

in the above-entitled
my

matter as the same are

machine shorthand notes
on the

11
12

contained in
said

original

trial

or proceedings.

13
14
15

Dated

at Milwaukee, Wisconsin

on March

23, 2010.

16
17 18 19

~
~ONNIEH.
OFFICIAL

J.4
DOMASK

JJtrrvL~

COURT REPORTER

20

21 22 23
24

25

121