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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
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Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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I was contacted by Johnson and Pham Regarding Selling Otterbox

Resolved Question:

I was contacted by Johnson and Pham Regarding Selling Otterbox Case, they say that I have sold over 700 Cases from Otterbox, they originally wanted $20K and are now down to $11K on a payment plan, I have purchased cases from many places and I know at least one of the places sells authentic cases for sure.

Additionally I have contacted Ebay and they have informed me that the only way for the exact number and records to be released is if the law firm has the records subpoenaed. When I asked the Law firm where their records are coming from they used a site called Terapeak (which is a marketing website that can be used to set prices competitively and indicates the number of individual items sold for selling purposes) they asked who my suppliers were, I have three and one I have verified is official, the other two are not getting back to me.

Should I pay them the 11k ....do they have anything real going for them..
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  montysimmons replied 1 year ago.

Please note this is public website and the associated communications will be public.


If you sold counterfeit Otterbox Cases and they can prove it then, yes, you have a problem.


Thus, the questions become:
(1) did you sell counterfeit Otterboxe Cases (OBC),

(2) can they prove it, and

(3) do they have a workable remedy.



(1) Did you sell counterfeit OBCs?
You need to do whatever is necessary to verify the OBCs you have sold are authentic. If you can, they cannot have valid evidence you sold counterfeit OBCs.


(2) Can They Prove you sold Counterfeit OBCs?
If you cannot verify the sources of all the OBCs you have sold and that such OBCs are authentic, then it is possible they have evidence proving you sold counterfeit OBCs.

Under this scenario, I would want to see all such evidence before negotiating a settlement/payment.

If you cannot afford an attorney, and are going to negotiate yourself, then make all communication in written form (letters, e-mails, etc.) and put a statement at the top of all such communications (all pages) that states something like this:

“This is an attempt to compromise a claim or an offer in compromise and subject to federal rule of evidence 408.”

http://www.law.cornell.edu/rules/fre/rule_408



(3) Do they have a workable remedy

If you cannot prove the source of all the OBCs you have sold, and they present evidence that they claim proves you sold counterfeit OBCs, you are in a difficult position. The question becomes then, do they have a workable remedy.


BOTXXXXX XXXXXNE


Unless one simply falls into their office with a fist full of 100 bills, they are going to have to prove their case in court. Expensive to do. If damages are too small the case become nonviable very quickly. Even where the damages are huge, if the Defendant has no assets or hard to reach assets the case becomes risky.



Further, some Defendants are “collection proof”. No one is judgment proof, but they can be collection proof. A collection proof Defendant does not have enough assets to cover the damages. If a Defendant lets it be known they have no income or assets the other side will be much more willing to settle for a lower amount and for payments.

The fact that they dropped from $20k to $11k is a good sign. I bet you can make them drop to Zero if you push your innocence and demand to see their evidence of your guilt and further let it be known you have little or no assets (assuming true).
Customer: replied 1 year ago.

I dont really have any Assets only 9k in the bank, the 11k was an option that I sent to them for consideration and the accepted it.


 


To be honest I have way more debt than I do cash.


 


Additionally, I know that there is cost associated for them to get the records from ebay, They are filing in California (this is what their letter and offer says), the time I was selling and all their mailings to me was sent to Kentucky, and I have recently relocated to another state. Im sure this could add to their costs, but I dont know if its enough to get them to drop the settlement amount.


 


I have disclosed to them three locations with one being verified by the company as legitimate. The other two, have appeared to disappear, the proof they are offering for the sell of counterfeit cases is an "investigation" where they purchased one of my cases from the site and test it and found it to be counterfeit.


 


I would believe they might have a case however, it seems that even if they sued there really isint much they could take, should I keep trying to get them lower or take the 11k and make the payments. Should I make an offer of a lower payment to them...The cost for me to hire a lawyer would eat away any money they might be able to get in a settlement, and thats my biggest concern.

Expert:  replied 1 year ago.

"I dont really have any Assets only 9k in the bank, the 11k was an option that I sent to them for consideration and the accepted it."

 

If 9k and lots of debt is truly all you have then it looks like you are collection proof.

 

Also consider the following:

 

How are they going to prove that ALL of your cases were counterfeit when they only purchased 1 or even 5 and you had 3 suppliers? You could have sold 1000 cases from 3 different suppliers and perhaps only 10 were "counterfeit".

 

They just happen to purchase 1 that was arguably "counterfeit" according to them; however, such does not prove all the cases you sold were counterfeit, especially where you had three suppliers.

 

 

So they have a proof problem.

 

 

Consider the following hypothetical path:

 

Tell them you are considering bankruptcy and have an appointment with a bankruptcy attorney (by the way, not such a bad idea as smart people plan for bankruptcy many months before filing) but wish to pay your debts if possible.

 

Which means you cannot pay them the 9k amount especially since they have a proof problem and you are confident the vast majority (if not all) of the OBCs you sold were authentic.

 

 

That you have no evidence that you ever sold a counterfeit OBC and that you have seen neither their report nor their evidence and they are asking you to simply take their work for it (that you sold counterfeit goods).

 

 

That you must therefor decline to settle this suit and defend your rights until your money runs out. (will be very quickly - they know this).

 

 

Or, in the alternative, you can offer them $100 to cover the cost for that 1 OBC they claim is counterfeit just to make the issue go away, for a full release to any further related legal claims.

 

 

Now you need to realize they might follow through with a suit but I submit the risk is low, but not zero.

 

 

Lawyers are profit driven and do not like working for free. If you have no assets, in the end, the best they will do is get a judgment that can be discharged in bankruptcy or simply goes away after 10 years. Why would they spend $50,000 just so you will have a judgment on your credit report for 10 years?

 

 

There is no profit in it for them.

montysimmons, Patent Prosecutor
Satisfied Customers: 244
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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