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Steven M. Kaufmann
Morrison & Foerster, LLP, in Denver

Steven M. Kaufmann, of Morrison & Foerster LLP in Denver, www.mofo.com, represented Major League Baseball Properties when we sued them (Civil Action No. 03-WM-0571 (PAC), Dudnikov v. Major League Baseball Properties) in 2003.

In MLBP's Opposition To Plaintiffs' Motion For Summary Judgment, Kaufmann presented the following pleading statement:

Purchasers Likely Degree of Care.

"The final factor is the degree of care likely to be exercised by potential purchasers. The Tabberone tissue box covers are inexpensive, apparently less than $10. People do not spend a lot of time or consideration purchasing inexpensive items and are more likely to be confused as to their origin. Sally Beauty Co. v. Beautyco, Inc. v. Marianna Im., 304 F.3d 964, 975 (10th Cir. 2002) ("[B}uyers typically exercise little care in the selection of inexpensive items.") "

The full statement by the Court in Sally Beauty is as follows:

5. Degree of Care Exercised by Consumers

A consumer exercising a high degree of care in selecting a product reduces the likelihood of confusion. Heartsprings, 143 F.3d at 557. This court has explained that "buyers typically exercise little care in the selection of inexpensive items that may be purchased on impulse." Beer Nuts II, 805 F.2d at 926 (quotation omitted). Accordingly, items purchased on impulse are more likely to be confused than expensive items, which are typically chosen carefully. See id. The relevant inquiry focuses on the consumer's degree of care exercised at the time of purchase. See Universal Money Ctrs., 22 F.3d at 1533.

Emphasis added in red.

So, what do we have here?

"[B}uyers typically exercise little care in the selection of inexpensive items."
"[B]uyers typically exercise little care in the selection of inexpensive items that may be purchased on impulse."

The manner of the first quote is to give the impression that is is complete and in context. WRONG! Leaving off the last part was deliberate and misleading. They lifted that part of the Court's statement that fit their needs, omitting the parts that would have undermined their argument. Official citation rules require the party quoting from another source show any omitted portions with appriopriate indicators.

Making a statement of fact, or telling the truth, in such a way that it creates a false impression, is a lie. We consider this to be a deliberate lie in a pleading to the court. If, Steven M. Kaufmann, of Morrison & Foerster LLP in Denver, lifted the quote from another pleading without confirming it, it doesn't matter. It is his responsibility to affirm the accuracy and completeness of any arguments to which he affixes his signature. Ignorance of the "misquote", if there was one, is no excuse.

In our opinion, this is a deliberate lie.

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