Monthly Archives: June 2017

Arbitrator overturns termination of Miami police officer for invocation of Fifth Amendment rights

Arbitrator Donald Spero has issued an award in a dispute between The city of Miami and the Miami Fraternal Order of Police Lodge #20.

Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.

In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.

On April 27, 2016 the City terminated grievant’s employment. The City  articulated two reasons for the termination. The first was grievant’s refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.

Arbitrator Spero described the first issue as :

 whether the grievant was protected by the Fifth Amendment and by “Garrity” rights from answering questions propounded to him during a police department inquiry on February 11, 2013.

Answering the question in the affirmative, Arbitrator Spero noted that grievant’s lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:

[Grievant] was entitled to decline to answer the City’s inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.

Arbitrator Spero rejected the City’s argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city’s position would mean that no officer had any Fifth Amendment rights.

On the issue of of grievant’s failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying “severe” discipline. Accordingly Arbitrator Spero ordered grievant’s reinstatement but denied him back pay for his time off.

According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.




Source: ADR

The Unreal Campaign Visit Peru for the Second Time

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On April 6 and 7, 2017, the Unreal Campaign was presented at Prescott Anglo American School and Max Uhle German Peruvian School in Arequipa, the second largest city in Peru. 




This was the second time that the Unreal Campaign presented its program in Peru. Both schools are private and were founded in 1965 and 1956, respectively. Currently, these two schools are among the only three institutions that offer the International Baccalaureate in Arequipa.




Mr. Jean-Carlo Costa and Ms. Luisa Alvarez (INTA members and associate lawyers at BARLAW-Barrera & Asociados in Lima, Peru) conducted the presentations for more than 400 students ranging in age from 14- to 17-years old. The audience also included ten teachers.




Each hour-long presentation included a display of the Unreal Campaign learning materials and three Unreal Campaign Spanish videos. 




Students showed their interest in trademark protection, enforcement, and the consequences of buying counterfeit goods, as counterfeits make up such a huge market in the country. They were particularly attentive when the presenters shared their own personal experiences as lawyers regarding counterfeit goods and the way these goods are spotted, attacked, and taken off the market. Students were particularly surprised to find out the amount of money that circulates within the counterfeiting market that could otherwise benefit the community in so many ways.




Both sessions were highly interactive, as students and teachers traded their ideas and opinions on the importance of trademarks and the drawbacks of manufacturing, selling, and buying counterfeit products.




On this second visit, we were pleased to find that students now had a preference for buying genuine products and had a good basis of understanding how to spot fake items. However, most students were not aware of the dangers of buying counterfeit products and did not understand the way that specific items may even harm their health or cause terrible accidents.




Students particularly enjoyed guessing which products in a display were counterfeit and which were authentic. Teachers thanked the presenters for their initiative and stressed the importance of such events, noting that schools are currently developing their own programs of “awareness on academic probity.”




Finally, the presenters invited students and teachers to join and follow Unreal Campaign on Facebook, Twitter, and YouTube.




We will continue to present the Unreal Campaign learning materials in other Peruvian schools throughout this year.

To learn more about hte Unreal Campaign, contact INTA’s Senior Communications Coordinator, Laura Heery at lheery@inta.org. 

Thank you to our 2017 Unreal Campaign sponsors: 

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Published: 6/9/2017 6:53 AM
BlogTag: Counterfeit; Unreal; Unreal Campaign; Anticounterfeiting

Source: TM NEWS

Counterfeit Raid in Brunei

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BruneiRaid1.jpgOn Tuesday, March 14, 2017, Brunei took its first tentative steps toward ridding itself of counterfeit products when three branches of a local department store were simultaneously raided in Bandar Seri Begawan for over 1,000 counterfeit razors and razor blades products.




The raid for the counterfeit consumer goods, believed to be the first anticounterfeiting action in the sultanate, was carried out by 26 Royal Brunei Police Force (RBPF) officers from the Commercial Crime Unit, including three Crime Scene Unit teams, in response to a complaint filed by the relevant trademark owner.




The targeted shops were alleged to be selling counterfeit disposable razors and razor blades bearing an international and well-known brand. If convicted, the alleged perpetrators would be facing up to five years’ imprisonment and a maximum BN $100,000 (US $72,000) fine under section 100 of the Trade Marks Act, Chapter 98.




During the raid, the police officers seized 1,106 of various imitation products, while representatives from the Brunei branch of Singapore-based law firm Harry Elias & Partnership LLP (HEP) observed and assisted in the operation.




The raid was also in line with the RBPF Commercial Crime Unit’s move to expand their operations in order to more aggressively crack down on traders peddling counterfeit products and enforce intellectual property laws in the country beginning this year.




At the same time, HEP had also been expanding its IP portfolio in recent months as it looks to increase its IP-related activities in the oil-rich country.




With the Bruneian government eager to woo foreign direct investment in recent years in an effort to diversify the economy away from its heavy dependence on the oil and gas sector, the move toward clearing out branded fakes currently perforating through the local market could be seen as a vital step in increasing the attractiveness of Brunei as a potential destination for foreign companies while also raising confidence among local consumers.




Category: Asia; Counterfeiting
Published: 6/8/2017 1:25 PM
BlogTag: Counterfeit; Counterfeiting; Asia

Source: TM NEWS

Transparency data: The business impact target

The business impact target (BIT) concerns the economic impact of regulation on business. Under the provisions of the Small Business and Enterprise Act 2015, government departments and regulators are required to publish a list of new or amended regulatory activities and the economic impact of those activities on business

Regulatory provisions are defined as qualifying regulatory provisions (QRPs) and non-qualifying regulatory provisions (NQRPs). QRPs are regulatory activities which are scored against the BIT. NQRPs are regulatory activities which are excluded from the BIT. Regulators are required to publish lists of both QRPs and NQRPs.

Source: UK IPO News

Law Enforcement: Untruthfulness, reinstatement and Brady issues

Post reinstatement Brady issues for law enforcement officers terminated for claimed dishonesty
Several recent cases involve this issue. A news report describes a lawsuit filed by Clay County MN Deputy Ryan Carey seeking to have his name removed from the County’s Brady list. Deputy who Clay County once tried to fire sues in hopes of returning to patrol. Deputy Carey had been dismissed by the Clay County Sheriffs Department in July 2012. The notice of termination listed a number of alleged offenses, including one of “Lying while under Garrity/Tennessen Warning.”
Arbitrator James A. Lundberg issued an award rejecting most of  the claimed violations. Concerning the charge that grievant had lied, the arbitrator concluded:
The statements made …  about text messages were inaccurate but there is no reason to believe that [the] Deputy … was lying to the investigators. … The evidence of dishonesty regarding the text message is insufficient. The evidence supporting the claim that grievant lied about whether he apologized to Lt. Morrow for himself or the group and whether he mentioned alcohol as a factoring the conduct on June 10, 2012 is also insufficient. … The employer did not have just cause to discipline the grievant for dishonesty.

Deputy Carey was reinstated but, according to the news report, he has been removed from patrol duty because his name remains on a Brady list, restricting his ability to testify in court. He has been assigned instead to a courthouse security position. Deputy Carey’s suit seeks to have the Brady designation dropped and to have the county barred from refusing to consider him for other positions.
A similar restriction has been imposed by the  San Antonio police department on an officer reinstated following a grievance.  The officer was placed on “indefinite suspension” (i.e. dismissed) after it was discovered that his report of a drug stop was not entirely accurate. The officer’s actions at the scene were captured on the Department’s COBAN system. While conducting drug interdiction, the officer stopped a vehicle. He had previously observed several suspicious packages being received by the driver. The officer observed two bags of marijuana between the driver seat and the door. During a conversation with the passenger of the vehicle, the passenger admitted that she also had a bag of marijuana, and removed it from her bra. The officer elected to not arrest the passenger, and his report of the incident claimed that he saw three bags between the driver seat and the door. The driver was arrested. Subsequent review of the COBAN video by the prosecutor’s office raised a question about the accuracy of the  report and the Department conducted an investigation. As a result of that investigation the officer was placed on indefinite suspension for being “untruthful in his written report concerning where the narcotics were discovered and who had possession of the narcotics.”
The case was presented to Arbitrator Don B. Hays who concluded that:

Although obligated by oath and professional position to tell the truth, on this occasion appellant acted and/or spoke untruthfully on many of the subjects that  he knew, or reasonably should have known were of material interest to both the district attorney, the city’s investigators and to us.

Nevertheless, Arbitrator Hays found sufficient mitigating factors, including an absence of any improper motive for grievant’s actions, to warrant reinstatement. Arbitrator Hays’ award can be found here.
According to news reports (SAPD officer accused of looking the other way on narcotics arrest gets termination overturned) the officer has been returned to the force but the District Attorney has placed the officer on a Brady disclosure list and the Department has indicated that his assignments going forward will be limited “to an administrative position that will not be affected by his past disciplinary record.”
A third situation also involves a Brady designation and a post reinstatement law suit but it is unclear how much the Brady issues relates to the lawsuit. A King County, WA Deputy was dismissed for alleged dishonesty in continuing to receive supplemental pay for a position she no longer held. The County maintained that the Deputy knew or should have known that receipt of the supplemental pay was improper and failed to take steps have it stopped. Because the Sheriff viewed this as a matter of honesty the office notified the prosecutors office that the Deputy was subject to Brady list disclosure.
Arbitrator David Stiteler sustained the grievance in part. His findings on the dishonesty issue are somewhat ambiguous but he did find that in light of evidence of disparity treatment and management failures in connection with its own handling if the overpayment issue, discharge was too severe a penalty. He found just cause for discipline but not for discharge and ordered the grievant’s reinstatement. His award can be found here. Subsequent to the award, grievant claimed that she was “shuffled” into several undesirable jobs before she retired prematurely. Ex-deputy sues, accuses King County sheriff of discriminating against female officers. She has sued the County alleging discrimination and retaliation.
Not waiting for reinstatement, the City of Pittsfield, MA has filed suit contesting the arbitrator ordered reinstatement of a police officer dismissed for, inter alia, untruthfulness and falsifying records in connection with a shoplifting arrest. Pittsfield fights arbiter’s decision to reinstate fired police officer. Arbitrator Michael Stutz concluded (here) that the officer’s “intentional inaccuracy violated [his] obligation to be absolutely truthful.” Finding that three words in the officer’s report were “untrue, intentionally misleading, and cause for discipline, but less than intentionally false” he concluded that there was just cause for discipline, but not for dismissal.  Arbitrator Stutz converted the termination to a three day suspension. The City’s suit contends that the reinstatement is contrary to public policy by allowing an untruthful officer to remain employed with the department.
Similar issues are discussed in earlier posts:

Source: ADR