More Propaganda from Professor Scafidi on the Destruction of Affordable Fashion Bill on Bloomberg Law
Just breath, I tell myself and try (very hard) not to get frustrated over this major fashion faux paux.
I REALLY wanted to post on LMAFO’s new song “Sexy and I Know It,” but, alas, I feel compelled to respond to Bloomberg Law’s interview of Professor Susan Scafidi on IDPPPA, or the Destruction of Affordable Fashion Bill.
By now, you all know my position on the Destruction of Affordable Fashion Bill:
- it is not needed;
- it will increase the costs of fashion;
- it will interrupt the business of fashion;
- it lacks notice and administrability;
- it only benefits big fashion houses; and
- will cause tons of needless litigation.
But, after watching ProfessorScafidi’s comments during the Bloomberlaw interview (posted below), I felt compelled to again reiterate what ever litigator knows as fact: a heighten pleading standard will not deter frivolous litigation. PLEADING, which you do in a complaint, and PROVING, which you do at trial, are two very different things.
In a complaint, you only need to write words down on a piece of paper that you believe to be true at the time they are written. Now, 99.9% of the designers I know think they create “new” and “unique” designs. You fashion history students know that all of these designers are wrong — give me two days and two interns and we can find the “inspiration” and references to trace the history of the garment.
So, under IDPPPA’s “heighten pleading standard” all a designer needs to do is write on paper that their design is original and the suit stays in court. Then, the improperly sued defendant must pay a lawyer to PROVE that the designer is wrong – i.e. the design is not “original.”
If the designer turns out to be wrong, which they likely will, there is no harm to them and they walk away. Why?
Because these suits, like the countless number of suits brought by serial fabric copyright suers like LA Printex, are brought by Plaintiff’s lawyers who work on a contingency fee basis. What does “contingency fee basis” mean?
Paying your lawyer on a contingency means that if you lose, you doesn’t owe your lawyer any money.
Under IDPPPA, a Defendant, on the other hand, will have to shell out anywhere from $25,000 to $200,000 just to get rid of a suit where the design is NOT unique or original with law and motion – note that these cost estimate do not include cost of trial.
So if what happens under the IDPPPA if the Plaintiff is wrong and the Defendant wins? They still have to pay. I guess the CFDA and ProfessorScafidi think that’s the fair way of doing business.
The solution? Do not enact this needless legislation.
But, if you really feel it’s needed, at least be equitable. Write the bill so that the loser pays the legal fees of the winner and make sure there is a mechanism to get rid of improperly filed suits early. We already have such systems in place – take a look at the SLAPP laws. I already proposed that solution, which has been ignored.
Maybe, that’s because this bill was written by the Council of Fashion Designers of American (CFDA) and law professors, and neither understanding the workings of our court system.
Sticking to my position on this bill, I repeat for the third time:
As a practicing fashion lawyer, litigator, former COO of apparel companies and the fourth generation of my family to work in fashion, law professors and politicians with no hands-on fashion industry experience should not be allowed to ”fix” something that they have no practical knowledge of.
In sum, “heighten pleading standard” is only a scam – a red herring we lawyers call it – to make you think this bill won’t clog up our courts with stupid litigation. So maybe I should just stop protesting — if this bill passes, it means full time employment for fashion litigators like me — and just write about fun stuff like Pitbull and Eminem.
Nah, I love and respect you guys too much to sit quietly in a corner and allow wrongdoing to continue. So I guess, I will keep having to post on all the above.
ps – I am also concerned that during the Bloomberlaw interview, Professor Scafidi states that “elements” of Diane Von Furstenberg’s wrap dress would get protection under IDPPPA, even though McCardell introduced the wrap dress in the 1940′s, well before DVF. But maybe she had to say that because DVF and CFDA underwrite Fordham’s Fashion Law Institute. While I may respectfully disagree withProfessorScafidi on most issues, she does seem to know who butters her bread.
In case you want to read more, here are my related posts: