CORPORATE CRIME REPORTER
Sideman
& Bancroft Partner Nelson on Criminal Enforcement of Intellectual Property
Rights
21 Corporate Crime Reporter 38, September 28, 2007
Most white collar defense lawyers represent corporations as targets or defendants
in criminal actions.
Richard Nelson, a partner at Sideman & Bancroft, does that too.
But much of his time now is spent representing corporations that are victims of crimes – intellectual property crimes like trademark and copyright violations or theft of trade secrets.
He takes his cases to the FBI and the Justice Department, seeking to persuade the government to bring a criminal action against those who are stealing from his corporate clients.
It’s a growing field and next month, Nelson will be co-chairing the inaugural National Institute on Criminal Enforcement of Intellectual Property Rights.
The conference will be held October 12, 2007 at the U.S. Chamber of Commerce Building in Washington, D.C.
It is being sponsored by the American Bar Association White Collar Crime Committee and the U.S. Chamber of Commerce.
Nelson says that the field is booming, with hundreds of criminal IP cases being brought a year.
The Justice Department’s criminal IP caseload doubled from 2004 to 2006.
And Nelson sees greater value in criminal prosecution over civil enforcement of IP cases.
“The bang for the buck that a company can receive for a criminal referral is greater than it can get from a civil case,” Nelson told Corporate Crime Reporter in an interview earlier this week. “It’s the deterrent value. If there is a civil case brought against the violator of a copyright, for example, that case winds its way through years of discovery at great cost to the company. If it ultimately ends in the company’s favor, the company then has a money judgment to try and collect from the defendant and hopefully in the process some sort of injunctive relief from the defendant so that they are no longer violating the copyright or trademark. But that takes time.”
“In the criminal arena, the deterrent value is much greater. If an individual is violating someone’s copyright or trademark, and a search warrant is executed and the records are taken, generally that means that the illegal business is shut down. Ultimately, when the defendant either agrees to a plea agreement or is convicted and then sentenced, the sentencing guidelines in this area are very serious. The sentencing guidelines are predicated on the loss amount. The loss amount for trademarks is the amount that the infringed product is worth. In some cases, you might have 1,000 products that retail for a total of $1 million.”
“And you have individuals who were not expecting to go to prison. They are thinking this is a fairly easy crime to commit and there is little chance of getting caught. But there are some harsh sentences that get imposed. That deterrent message – the message that you are out of business and that the individuals are going to prison for 30 months or five years is a much stronger deterrent message than the fact that a civil case was filed and ultimately resulted in a monetary judgment and injunction.”
[For a complete transcript of the Interview with Richard Nelson, see 21 Corporate Crime Reporter 38(11), October 1, 2007, print edition only.]
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