Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA805208
`
`Filing date:
`
`03/06/2017
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92064833
`
`Party
`
`Correspondence
`Address
`
`Defendant
`David M. Semas
`
`DAVID M SEMAS
`9900 WILBUR MAY PKWY UNITE 2406
`RENO, NV 89521
`UNITED STATES
`david@sierradorado.com
`
`Submission
`
`Filer's Name
`
`Filer's e-mail
`
`Signature
`
`Date
`
`Attachments
`
`Other Motions/Papers
`
`David M. Semas
`
`david@sierradorado.com
`
`/S/ David M. Semas
`
`03/06/2017
`
`Semas TTAB Replacement Exhibits Letter 030617.pdf(109308 bytes )
`Unredacted Replacement Exhibits 1-3 Filing of 022717.pdf(551834 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA805208
`
`Filing date:
`
`03/06/2017
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92064833
`
`Party
`
`Correspondence
`Address
`
`Defendant
`David M. Semas
`
`DAVID M SEMAS
`9900 WILBUR MAY PKWY UNITE 2406
`RENO, NV 89521
`UNITED STATES
`david@sierradorado.com
`
`Submission
`
`Filer's Name
`
`Filer's e-mail
`
`Signature
`
`Date
`
`Attachments
`
`Other Motions/Papers
`
`David M. Semas
`
`david@sierradorado.com
`
`/S/ David M. Semas
`
`03/06/2017
`
`Semas TTAB Replacement Exhibits Letter 030617.pdf(109308 bytes )
`Unredacted Replacement Exhibits 1-3 Filing of 022717.pdf(551834 bytes )
`
`
`
`
`Metalast, Inc.
`9900 Wilbur May Parkway
`Unit 2406
`Reno, Nevada 89521
`(775) 790-8324
`
`
`
`
`
`March 6, 2017
`
`
`
`TRADEMARK TRIAL AND APPEAL BOARD (TTAB)
`The Trademark Assistance Center
`Madison East, Concourse Level Room C55
`600 Dulany Street
`Alexandria, Virginia 22314
`
`Chemeon Surface Technology, LLC, Petitioner v. David M. Semas, Respondent
`Cancellation Number: 92064833
`Replacement Exhibits 1-3 For Opposition To Brief In Support of
`Petitioner’s Motion To Strike New Arguments – Filed 02/27/2017
`
`
`
`RE:
`
`
`
`
`
`
`Dear Victoria:
`
`In reviewing the online ESTTA filed with TTAB on 02/27/2017 the referenced
`sections of the exhibits relating to my opposition appear to be redacted instead of
`yellow highlighted. While the submitted exhibits were not redacted and only
`highlighted in the event this may create a problem you will find attached three clean
`exhibits without the yellow highlight:
`
`Exhibit
`1
`2
`3
`
`Description
`Date
`Judge Beesley Transcript Re-affirming Settlement Agreement
`12/03/2015
`02/19/2015 Unofficial Transcript of Judge Telephonic Conference
`10/20/2017
`Judge Du U.S. District Court Transcript of Motions Hearing
`
` apologize for any confusion this may have caused. Thank You.
`
` I
`
`
`
`Page 1 of 2
`
`
`
`
`
`Respectfully submitted,
`
`
`/s/ David M. Semas
`David M. Semas, in Pro Se
`An individual
`
`
`
`Replacement Exhibits For 02/27/2017 Filing
`DMS/ds 030617
`
`
`
`
`Metalast, Inc.
`9900 Wilbur May Parkway
`Unit 2406
`Reno, Nevada 89521
`(775) 790-8324
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that, on this 6th day of March 2017, a true and correct copy of the
`foregoing Replacement Exhibits 1-3 For Opposition To Brief In Support of
`Petitioner’s Motion To Strike New Arguments – Filed 02/27/2017 has been served
`by email on the Petitioner, by sending it to their email address as follows:
`RCRyan@hollandhart.com and TReid@hollandhart.com
`
`/s/ David M. Semas
`
`
`
`
`
`David M. Semas, in Pro Se
`
`
`
`Robert C. Ryan
`Christopher B. Hadley
`Tamara Reid
`Michelle N. Brooks
`HOLLAND & HART LLP
`5441 Kietzke Lane, 2nd Floor
`Reno, Nevada 89511
`
`
`
`
`
`
`
`
`Replacement Exhibits For 02/27/2017 Filing
`DMS/ds 030617
`
`Page 2 of 2
`
`
`
`Exhibit'1
`
`Cancellation No. 92064833
`
`
`
`UNITED STATES BANKRUPTCY COURT
`DISTRICT OF NEVADA (RENO)
`
`IN RE:
`
`DAVID M. SEMAS and
`SUSAN O. SEMAS,
`
`. Case No. 13-52337-BTB
`.
`. Chapter 11
`.
` . 300 Booth Street
`. Reno, NV 89509
`Debtors. .
` . Thursday, December 3,2015
`. . . . . . . . . . . . . . . 9:41 a.m.
`
`TRANSCRIPT OF JUDGE'S RULING RE: DOC #414 AMENDED MOTION TO
`RECONSIDER BY JUDGE BRUCE T. BEESLEY FILED BY STEPHEN R. HARRIS
`ON BEHALF OF DAVID M. SEMAS, SUSAN O. SEMAS
`BEFORE THE HONORABLE BRUCE T. BEESLEY
`
`UNITED STATES BANKRUPTCY COURT JUDGE
`
`APPEARANCES:
`
`For the Debtors:
`
`Harris Law Practice, LLC
`By: STEPHEN R. HARRIS, ESQ.
`6151 Lakeside Drive, Suite 2100
`Reno, NV 89511
`(775) 786-7600
`
`For Dean & Madylon Meiling
`and CHEMEON Surface
`Technology, LLC:
`
`Holland & Hart
`By: TIMOTHY A. LUKAS, ESQ.
`5441 Kietzke Lane, Second Floor
`Reno, NV 89511
`(775) 327-3000
`
`For David Semas:
`
`Hoy Chrissinger Kimmel Vallas PC
`By: MICHAEL D. HOY, ESQ
`50 W. Liberty Street, Suite 840
`Reno, NV 89501
`(775) 786-8000
`
`Audio Operator:
`
`Stacie C. Burney, ECR
`
`Transcription Company: Access Transcripts, LLC
`10110 Youngwood Lane
`Fishers, IN 46038
`(855) 873-2223
`www.accesstranscripts.com
`
`Proceedings recorded by electronic sound recording,
`transcript produced by transcription service.
`
`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 01
`
`
`
`2
`
`1
`
`2
`
`(Proceedings commence at 9:41 a.m.)
`
`THE COURT: -- in the case of David M. Semas and
`
`3 Susan Semas, Case Number 13-52337. Appearances, please.
`
`4
`
`MR. HARRIS: Your Honor, Steve Harris representing
`
`5 the debtors. And debtor David Semas is present.
`
`6
`
`MR. LUKAS: Good morning, Your Honor. Tim Lukas on
`
`7 behalf of CHEMEON and the Meilings.
`
`8
`
`THE COURT: Okay. Pursuant to a transcript that
`
`9 Judge Du -- of a proceeding Judge Du held some weeks ago, I've
`
`10 been asked by Judge Du to clarify the settlement in this case.
`
`11 And it's a little confusing to do that because as all -- well,
`
`12 as most of you or some of you know, there was a several-hour
`
`13 settlement conference.
`
`14
`
`The result of the settlement conference was that
`
`15 Judge Zive placed a settlement on the record. Subsequent to
`
`16 that there was a proposed written order and the Meiling Group,
`
`17 the Metalast people, the Meiling Group rejected that and Judge
`
`18 Zive determined that the transcript was, in fact, the
`
`19 settlement. And I'll go into that a little more deeper.
`
`20
`
`Thereafter there were actions by the Meilings and the
`
`21 Metalast group to use the name "Metalast" as I -- the only ones
`
`22 I've saw it is there products were labeled "formerly known as
`
`23 Metalast." That resulted in a motion asking me to enforce the
`
`24 terms of the settlement and also to ask Judge Zive to do that.
`
`25
`
`Judge Zive indicated that although he said in the
`
`ACCESS TRANSCRIPTS, LLC
`
`1-855-USE-ACCESS (873-2223)
`
`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 02
`
`
`
`3
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`1 documents that he would enforce a settlement, it was his
`
`2 understanding that he would enforce it up until it was approved
`
`3 by the Court. And when it was approved by the Court, both of
`
`4 us are of the opinion that it actually became a contract
`
`5 between the parties. It was not really something that was in
`
`6 the realm of the bankruptcy anymore.
`
`7
`
`Although I would have had jurisdiction, I declined to
`
`8 exercise supplemental jurisdiction. I'm not going to overturn
`
`9 that, but I am going to give my understanding of the settlement
`
`10 -- what I believe the settlement that I approved was. And I --
`
`11 which I think is -- satisfies Judge Du's request.
`
`12
`
`So, first off, there was a settlement conference,
`
`13 parties were both represented by capable counsel, and it lasted
`
`14 about six hours, at least according to the pleadings I've read.
`
`15
`
`There's -- one of the allegations was there was never
`
`16 actually a settlement that was placed on the record. But I --
`
`17 that's incorrect. There's just no merit to that contention.
`
`18 If you look at the transcript Page 4, starting on Line 23,
`
`19 Judge Zive says as follows:
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`"Following hours of good faith negotiation, the
`
`parties have entered into agreement. I've advised
`
`the parties that I will place the agreement on the
`
`record. Give counsel a chance to correct any errors
`
`I've made or notes -- or note any omissions that I
`
`have made, then I will ask the parties if they
`
`ACCESS TRANSCRIPTS, LLC
`
`1-855-USE-ACCESS (873-2223)
`
`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 03
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`
`
`1
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`2
`
`3
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`4
`
`5
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`6
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`7
`
`8
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`4
`
`understand the terms of the agreement and agree to be
`
`bound by the agreement. And of course, if they have
`
`any questions at that time, they should ask me. And
`
`I've also advised the parties that if the agreement
`
`is placed on the record, as I understand it, that
`
`they are bound immediately upon the completion of
`
`this hearing."
`
`And dropping down to Line 14 on -- or 13 or 14 on
`
`9 Page 5, it says:
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`"But as between the parties, there's an agreement
`
`now. It is fully enforceable and that I would
`
`enforce it if necessary by use of contempt or any
`
`other remedy available to me and if each said they
`
`understood that and agreed."
`
`So I'll get to this a little later, but later on in
`
`16 the -- near the end of the transcript, each of the Meiling
`
`17 parties was placed under oath. Each was asked if they
`
`18 understood the agreement. Each of them said yes. Mrs. -- I
`
`19 think it was Mrs. Meiling had a question about the name, which
`
`20 I'll get to in a little bit.
`
`21
`
`So one of the other content questions is does this
`
`22 apply to both trademarks and trade names. And I confess I am
`
`23 not an expert on the difference between trademarks and trade
`
`24 names, but it's my opinion that it does apply both to
`
`25 trademarks and trade names.
`
`ACCESS TRANSCRIPTS, LLC
`
`1-855-USE-ACCESS (873-2223)
`
`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 04
`
`
`
`5
`
`1
`
`The term "trademark" is used throughout the
`
`2 transcript. But there's also some question concerning naming
`
`3 of properties which I -- and I believe it was a -- it was my
`
`4 intention and my understanding when I entered the -- an order
`
`5 approving this settlement that this settlement restricted the
`
`6 use of both trademarks and trade names.
`
`7
`
`A couple reasons for that. First, at Page 5, Line 24
`
`8 Judge Zive says:
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
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`20
`
`21
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`22
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`23
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`24
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`25
`
`"There -- that there is a trademark regarding the
`
`name 'Metalast,' there is a dispute regarding
`
`ownership. That dispute has been resolved as
`
`follows:"
`
`I'm on Page 6.
`
`"Metalast Surface Technologies, through the Meilings,
`
`will continue to use the mark for 90 days following
`
`entry of the order approving the settlement agreement
`
`by Judge Beesley, if he does approve it. At the end
`
`of that 90-day period, Metalast Surface Technology,
`
`the Meilings, and any other entity in which the
`
`Meilings have an interest, will no longer be able to
`
`use the name 'Metalast' in any fashion or manner
`
`whatsoever following the 90 days. The mark will be
`
`owned by Mr. and Mrs. Semas or an entity to which
`
`they -- or any entity in which they choose to
`
`transfer that mark."
`
`ACCESS TRANSCRIPTS, LLC
`
`1-855-USE-ACCESS (873-2223)
`
`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 05
`
`
`
`6
`
`1
`
`So I read "no longer able to use the name Metalast in
`
`2 any fashion, in any manner whatsoever" following that 90-day
`
`3 period would include not only the trademark, but any use of the
`
`4 name "Metalast" for any purpose at all, which I believe would
`
`5 include the trade name.
`
`6
`
`But again, I am not an expert on trademarks and trade
`
`7 names, but I believe a fair reading of what Judge Zive said
`
`8 includes limits any use of the term "Metalast" at all. It can
`
`9 go on for 90 days. It cannot be used by any of the Meiling
`
`10 entities or the Meilings or anything they own thereafter. It's
`
`11 an absolute prohibition.
`
`12
`
`There was some additional comments made during the
`
`13 course of this that I don't -- I -- are not as clear. I mean,
`
`14 they're -- I think they're just instructive. But there was a
`
`15 question on -- there was a question by Mr. Harris about neutral
`
`16 releases on Page 8 of the transcript. And the Court said --
`
`17 Mr. Harris said they -- you have the mutual release language.
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`The judge said:
`
`"Oh, I'm sorry. As the underlying predicate for all
`
`of this there's a pending adversary seeking relief
`
`under various claims for relief including non-
`
`dischargeability under three separate subdivisions of
`
`Section 523. The Meilings agree to dismiss that
`
`adversary with prejudice and waive any and all claims
`
`they have from the beginning of time through the date
`
`ACCESS TRANSCRIPTS, LLC
`
`1-855-USE-ACCESS (873-2223)
`
`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 06
`
`
`
`7
`
`1
`
`2
`
`3
`
`4
`
`of entering the settlement agreement and that they
`
`may have known or unknown, anticipated or
`
`unanticipated against Mr. and Mrs. Semas."
`
`So I read that language to believe that any disputes,
`
`5 any claims, whether asserted in the complaint or not, that the
`
`6 Meilings or any of their entities may have against the Semases
`
`7 are resolved by this settlement. And the resolution of this
`
`8 settlement is set forth in this transcript. It involved a
`
`9 limited use of the Metalast name for a period of time. It
`
`10 allowed the exchange of some payments to be made, agreements
`
`11 not to object to the plan, but the key issue is the term
`
`12 "Metalast."
`
`13
`
`And Mr. and Mrs. Semas, on their part, agreed to
`
`14 release the Meilings and Metalast Surface Technologies from any
`
`15 claims they could have made, including the patent infringement
`
`16 case, but not limited to the patent infringement case. Any
`
`17 claims whatsoever from the beginning of time and until a
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`18 settlement agreement is approved, known or unknown, anticipated
`
`19 or unanticipated, foreseen or for unforeseen, it's a mutual
`
`20 release. So whatever disputes they had concerning anything,
`
`21 but particularly concerning the term "Metalast" was resolved by
`
`22 this agreement.
`
`23
`
`There's a question -- pardon me. There's a question
`
`24 by a Mr. -- excuse me. Just a moment. There's a question by
`
`25 Mr. Burns, who it's my understanding is a intellectual
`
`ACCESS TRANSCRIPTS, LLC
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`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 07
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`
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`1 properties lawyer for -- as for a general term, who was engaged
`
`2 by the Semases. He says:
`
`8
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`3
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`4
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`5
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`6
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`7
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`8
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`9
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`10
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`11
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`12
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`13
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`14
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`15
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`"I just want to clarify, Your Honor, it's agreed that
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`the parties that the trademark is currently owned by
`
`the Semases and that they are -- no assignment is
`
`necessary to transfer any trademark rights."
`
`And the Court says:
`
`"At the same -- at the same time that, for the
`
`purposes only, is that recognized and that Metalast
`
`Surface and the Meilings have the right to use the
`
`mark without compensation in the ordinary course of
`
`their business for a period not to exceed 90 days
`
`following the entry of an order approving the
`
`settlement by Judge Beesley, correct?"
`
`Mr. Burns says yes. The Court says, thank you, Your
`
`16 Honor. Ms. Chubb corrected the spelling or pronunciation of
`
`17 "Meilings." Okay. Ms. Chubb then says with respect to the
`
`18 trademark and so that that's blank, it was indiscernible
`
`19 apparently, Judge Zive responds. And this is on Page 9. I'm
`
`20 looking at Line 24:
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`21
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`22
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`23
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`24
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`25
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`"Whatever the -- whatever counsel for the parties
`
`believe is the most effective and efficient of
`
`accomplishing that clarification regarding ownership
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`so there's no further dispute, I have no deception."
`
`Ms. Chubb on Page 10, Line 3:
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`ACCESS TRANSCRIPTS, LLC
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`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 08
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`
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`1
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`2
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`3
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`4
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`5
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`6
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`9
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`"I will -- I will represent to the Court, the
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`Meilings and MST will make all efforts to get the
`
`Metalast name off everything. And I understand Mr.
`
`Semas has the need to fully cooperate with respect to
`
`anything that needs to be done in that regard."
`
`So that reaffirms my belief that this applies to
`
`7 trade names, trademarks, common law rights to use, whatever
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`8 they have, the counsel for this -- for the Meiling group said
`
`9 that they're going to use the efforts to get the name of
`
`10 Metalast off of everything. There's no qualification to that,
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`11 it's everything.
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`The Court then says on Page 10, Line 12, it says:
`
`"As part of the record there's a covenant of good
`
`faith with any contract."
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`And this is a contract.
`
`"And part of that covenant of good faith is to
`
`cooperate."
`
`And that's cooperate to get the main -- the -- get
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`19 the -- any issue regarding the transition of the creditor for
`
`20 Metalast Surface Technologies to another name accomplished
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`21 within 90 days. That would be Page 10, Lines 12 through 18.
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`22
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`And then the judge -- I'm just generally describing
`
`23 this. Starting at Page 12 the judge calls the parties forward
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`24 and has them sworn. And they are sworn. And starting with Ms.
`
`25 Susan Semas, the Court asks her were you -- and you were
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`ACCESS TRANSCRIPTS, LLC
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`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 09
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`10
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`1 president -- present, sorry, when I explained that I considered
`
`2 this agreement to be binding upon you at that time, correct?
`
`3
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`4
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`5
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`6
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`Ms. Semas -- Susan Semas says, "Yes."
`
`"You understand the terms of the settlement?"
`
`Mrs. -- Susan Semas says, "I do."
`
`"And you agree to be bound by the terms of the
`
`7 settlement?"
`
`8
`
`9
`
`Ms. Semas -- Susan Semas says, "Yes, I do."
`
`Next, the Court calls Mr. David Semas, who has been
`
`10 sworn, says, "You were present when I placed in your counsel
`
`11 and the opposing counsel placed the terms of the settlement on
`
`12 the record. Is that correct?"
`
`13
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`14
`
`And Mr. David Semas's answer is yes.
`
`Mr. David Semas was asked, "And did you understand
`
`15 those terms?"
`
`16
`
`17
`
`18
`
`19
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`Mr. David Semas answers, "Yes, I did."
`
`"And you agree to be bound by those terms?"
`
`"Yes, I do."
`
`"And as with your wife, you present -- I'm sorry.
`
`20 And as with your wife, you were present when I described both
`
`21 on the record and before we went on the record that I consider
`
`22 this agreement to be binding upon the parties at this time and
`
`23 I would enforce it if necessary?
`
`24
`
`25
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`And Mr. David Semas's answer is, "Yes, I do."
`
`The Court says then, "Do either of you have any
`
`ACCESS TRANSCRIPTS, LLC
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`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 10
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`
`
`11
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`1 questions."
`
`2
`
`3
`
`4
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`Ms. Semas says, "No".
`
`Mr. Semas says, "No."
`
`The Court then calls Madylon Meiling. I apologize if
`
`5 I mispronounced her first name. This is at Page 14 of the
`
`6 transcript. Ms. Meiling had been previously sworn.
`
`7
`
`The judge asked Ms. Meiling, "Yes, have you heard the
`
`8 terms of the settlement that was placed on the record by and
`
`9 counsel?"
`
`10
`
`11
`
`"Yes, Your Honor," is the answer.
`
`"Do you understand that terms of the settlement -- of
`
`12 the agreement?"
`
`13
`
`14
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`15
`
`16
`
`Ms. Meiling answers, "Yes, Your Honor.
`
`"Do you agree to be bound by those?"
`
`Ms. Meiling answers, "Yes.
`
`"And do you have authority to enter into this
`
`17 agreement on behalf of Metalast Surface Technology?"
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`18
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`19
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`20
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`Question: "Technology LLC?"
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`Answer: "Yes, I do.
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`"And do you agree that entity will be bound by the
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`21 terms of the settlement agreement?"
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`22
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`23
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`Ms. Meiling says, "Yes.
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`"And you were present both before and after we were
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`24 on the record when I explained that I would enforce the
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`25 agreement before I consider it binding as -- but because I
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`12
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`1 consider it binding, as of this time between the parties and
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`2 then subject to, of course, the approval of Judge Beesley. But
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`3 as between the parties it would be binding now and I would
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`4 enforce that if necessary."
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`5
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`6
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`7
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`And Ms. Meiling answers, "Yes.
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`"All right. Do you have any questions?
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`"Yes. When you related to the release -- yes -- I
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`8 would like the release to include whatever new name we may use.
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`9
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`10
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`11
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`12
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`"Any what?
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`"The new name for the company.
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`"Of course.
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`"Thank you. We want that -- this to be as broad as
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`13 possible. Thank you, Your Honor.
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`14
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`"That's what I said in the -- that's why I said 'any
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`15 entities.'
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`16
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`17
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`"Thank you."
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`Dean Meiling is then sworn -- or Dean Meiling is then
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`18 questioned. He has previously been sworn.
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`19
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`"Mr. Meiling, you heard the terms of the agreement
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`20 that were placed on the record.
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`21
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`22
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`23
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`24
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`25
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`"Yes.
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`"Did you understand those terms?
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`"I did.
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`"Do you agree to be bound by those terms?
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`"I do.
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`13
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`1
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`"Do you have -- you -- do you have also -- do you
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`2 also have the authority to act on behalf of Metalast Surface
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`3 Technologies, LLC?
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`4
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`5
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`"Yes, I do.
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`"And do you agree that Metalast Surface Technologies,
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`6 LLC will be bound by the terms of these agreement?
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`7
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`8
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`"Yes.
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`"And you also heard the Court, me, say that I would
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`9 enforce the terms of this agreement because I consider it to
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`10 binding as of this time?"
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`11
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`12
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`13
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`14
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`Mr. Meiling answers yes.
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`"Okay. Do you have any questions for me?"
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`Mr. Meiling says no.
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`Mr. Burns, who was one of the counsel for the Semas's
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`15 as I understand it:
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`"Our concern, Your Honor, as to Mrs. Meiling's
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`clarification, we want to make sure that there's no
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`confusion in the marketplace and that the new mark
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`that you adopt the new name is not confusingly
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`similar."
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`And the Court said:
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`"Well, yeah, we talked about that. The name cannot
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`be confusing in the marketplace. It has to be
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`totally separate."
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`But the question that she had had was to ensure that
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`14
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`1 the settlement and release also applied to the new entity as I
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`2 will -- as well as the old entity themselves personally,
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`3 correct. Do I understand the question correctly? Yes, Your
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`4 Honor. Okay. They'll come up with something that doesn't have
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`5 the word Metalast in it. Metalast, Mrs. Meiling -- Ms. Meiling
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`6 rather, correct.
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`7
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`8
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`9
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`10
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`11
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`Ms. Chubb:
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`"Well, Metalast includes the word metal. I don't
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`think they should be precluded from using metal
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`somehow."
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`The Court -- I'm not going to deal with that. So the
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`12 Court says:
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`13
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`14
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`15
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`16
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`17
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`"I think this is an appropriate settlement and I wish
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`you all the best of luck. I hope the sale closes, I
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`hope the plan gets confirmed, and I hope you all get
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`paid. Thank you very much."
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`So my interpretation based on the transcript from
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`18 Judge Zive, some of which the experts I -- excerpts I read is
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`19 as of the date that was placed on the record, there was a
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`20 settlement. Any efforts to change the settlement would be
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`21 inappropriate unless they are through agreement. If there's no
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`22 agreement, there's litigation.
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`23
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`The term Metalast is not to be -- I understand this
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`24 to mean that the term Metalast is not to be used by any Meiling
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`25 entity or Metalast Surface Technology to -- not -- I'm sorry,
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`15
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`1 Metalast Surface Technologies or any other Metalast entity.
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`2 Judge Zive was very clear. The parties acknowledged it. The
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`3 parties were represented by good counsel. They're stuck with
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`4 it, and it applies both to trademarks and trade names and any
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`5 other use of the term Metalast for any purpose whatsoever.
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`6 That's -- that is the agreement that I approved in court.
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`7
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`So that's the agreement Judge Zive placed on the
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`8 record. That's my clarification for Judge Du. I don't know if
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`9 it's -- if you want to do an order on that. I think it's
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`10 probably easier for you to just get a transcript of that, but I
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`11 don't know. Mr. Lukas?
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`12
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`MR. LUKAS: Well, that was going to be my very first
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`13 question, Your Honor. We're on a motion for reconsideration
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`14 and it's --
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`15
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`THE COURT: In front of me? Yeah, but that's not
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`16 what Judge Du directed me to do.
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`17
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`MR. LUKAS: Well, I understand, Your Honor. If
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`18 that's the case, then I get a due process right in terms of
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`19 what Judge Du's request is. So to -- and understand she asked
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`20 this Court to put on the record the understanding. And I think
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`21 a transcript, it's a procedure and process by which this Court,
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`22 I think it's clarified as a settlement as a specific time.
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`23
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`The Court's not revisiting, not setting aside its
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`24 prior order, but the transcript that is here can be utilized,
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`25 whatever Judge Du believes he needs to utilize it for.
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`16
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`1
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`2
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`THE COURT: That's what I would think.
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`MR. LUKAS: Okay. The other issue is that this Court
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`3 is not opining that the Ninth Circuit law as interpreted by
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`4 Steppenwolf is inapplicable to this settlement whatsoever.
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`5
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`6
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`THE COURT: I have no idea.
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`MR. LUKAS: I want to make that clear because we have
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`7 controlling precedent. The other issue is that this Court in
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`8 terms of the settlement in no way was setting aside any other
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`9 set of federal statutes that requires labeling or the way
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`10 things are done.
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`11
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`THE COURT: I'm not making any decisions with respect
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`12 to anything that is in the matter pending before Judge Du. All
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`13 I'm doing is telling Judge Du more specifically what -- the
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`14 settlement I approved and what I believed that settlement was.
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`15
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`MR. LUKAS: And as this Court would also I think be
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`16 of the opinion of these at least absurd results are also not an
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`17 intent of this settlement --
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`18
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`19
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`20
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`THE COURT: I'm making no --
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`MR. LUKAS: -- itself.
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`THE COURT: I'm making no decision on that. I would
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`21 make a decision, though, that the parties were represented by
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`22 capable counsel. The parties --
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`23
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`24
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`MR. LUKAS: Absolutely, Your Honor.
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`THE COURT: The parties absolutely agreed to this on
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`25 the record. The parties are educated -- I don't know about
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`17
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`1 they're educated, but they're sophisticated business people.
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`2
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`3
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`MR. LUKAS: Uh-huh.
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`THE COURT: That was quite clear. This was a lengthy
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`4 bankruptcy. It was hotly contested. It was well-represented,
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`5 but I'm not making any decisions that are pending in front of
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`6 Judge Du. I'm only --
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`7
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`8
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`MR. LUKAS: Well --
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`THE COURT: -- clarifying the order that came out of
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`9 this court.
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`10
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`MR. LUKAS: Right. And that's exactly right. And
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`11 the opinions and the settlements as another controlling
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`12 authority would not -- should not lead to absurd results.
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`13
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`14
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`THE COURT: I'm making no decision on that.
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`MR. LUKAS: Oh, and -- or any other, which should not
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`15 promote fraud --
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`16
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`THE COURT: I'm not making any decision on any of
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`17 those things. Those are all before Judge Du.
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`18
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`MR. LUKAS: And that's the clarification. I
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`19 understand how this Court views what it sees in the transcript,
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`20 and to the extent that we have particular rights since there's
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`21 no ruling, just kind of -- just --
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`22
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`23
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`24
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`THE COURT: I'm not --
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`MR. LUKAS: -- a transcript.
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`THE COURT: I'm not ruling on those. I specifically
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`25 decided not to exercise what jurisdiction I had. I think this
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`ACCESS TRANSCRIPTS, LLC
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`(Cancellation 92064833) EX 1, Transcript of Hearing on Clarification of Settlement Terms, Page 17
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`18
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`1 -- that those issues are properly before the U.S. District
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`2 Court or the State Court. I don't know. Probably either or
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`3 both have some jurisdiction, but I'm not deciding those. All
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`4 I'm deciding is what I believe the settlement was.
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`5
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`MR. LUKAS: And fair enough, Your Honor. So the
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`6 motion will -- or the order will stand; the motion for
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`7 reconsideration is denied.
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`8
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`9
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`10
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`11
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`12
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`THE COURT: Yes.
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`MR. HARRIS: Your Honor, Steve Harris.
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`THE COURT: I think what --
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`MR. HARRIS: I --
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`THE COURT: I think what I had was a motion to
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`13 enforce the settlement agreement.
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`14
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`MR. LUKAS: Which was originally not -- yeah, and
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`15 this is --
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`16
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`17
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`18
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`THE COURT: Right. And then there was a --
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`MR. LUKAS: -- a reconsideration now.
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`THE COURT: Then a motion to reconsider my decision
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`19 not to enforce the settlement agreement. That's not the reason
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`20 for this hearing. The reason for this hearing is Judge Du
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`21 requested that I clarify what the order that I approve --
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`22
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`23
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`24
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`25
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`MR. LUKAS: And that's why I --
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`THE COURT: Which is --
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`MR. LUKAS: -- just put the --
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`THE COURT: -- what I've done.
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`19
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`1
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`MR. LUKAS: -- the caveat. That's not what the
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`2 notice was on --
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`3
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`THE COURT: No, that's not what the notice was. This
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`4 -- my -- this -- I mean, this is in the context of that. But
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`5 what Du -- Judge Du requested after a hearing was she wanted
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`6 more clarity as to what this Court decided in terms of this
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`7 settlement. And I made it as clear as possible.
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`8
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`MR. LUKAS: Fair enough, you know, but we had briefed
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`9 to counsel's request, not to Judge Du's request. That's all I
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`10 just -- I don't know if it will mean anything, frankly, because
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`11 it could come back to this Court. I assume if it came back in
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`12 any procedural manner would have it -- the same clarification,
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`13 if you will, in the record. And I understand. I understand
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`14 the efficiency of that. I just need to -- well --
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`THE COURT: I'm not deciding --
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`MR. LUKAS: -- for the purposes of what --
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`THE COURT: -- anything --
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`MR. LUKAS: -- whatever --
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`THE COURT: -- that's in front of --
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`MR. LUKAS: -- purpose --
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`THE COURT: -- Judge Du.
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`MR. LUKAS: -- it may be, Your Honor. It's to make
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`23 my objection on the record.
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`24
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`THE COURT: I'm simply responding to the request I got
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`25 from the U.S. District Court.
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`20
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`1
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`2
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`MR. LUKAS: Fair enough.
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`MR. HARRIS: Your Honor, I would like an order of
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`3 clarification for Judge Du to --
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`4
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`5
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`6
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`7 Mr. Lukas.
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`THE COURT: Okay.
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`MR. HARRIS: -- refer to.
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`THE COURT: That's fine. You draft it, run it by
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`8
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`MR. LUKAS: I just have to object, Your Honor.
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`9 There's no proper motion or procedure that dictates that.
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`10
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`THE COURT: There's an order from the District Court
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`11 that asked me to do this, which I am doing. So you prepare an
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`12 order, you can sign off. You can fight about it, but you're
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`13 better off coming to me. And you will attach a copy of this
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`14 transcript to the order.
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`15
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`MR. LUKAS: In whatever particular order that's --
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`16 that dictated the clarification in this matter, just so I know,
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`17 so the record is clear. I'm not saying, Your Honor, I don't --
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`18 I don't know what my clients may want to do with it. I don't
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`19 know what we made with it. Because you're right, and
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`20 everything is in front of the District Court --
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`21
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`22
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`THE COURT: Right.
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`MR. LUKAS: -- it's just the manner to which they may
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`23 use it and the manner to which we were here today. This was a
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`24 continuation. And I understand from what the Court said before
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`25 that you were going to talk to Judge Du and --
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`21
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`1
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`2
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`3
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`THE COURT: And I did.
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`MR. LUKAS: -- Judge Zive.
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`THE COURT: And I told you what I was going to do was
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`4 I was not going to rule on the -- I was not going to reconsider
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`5 my motion -- my order, not -- I was not going to reconsider
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`6 the request that I enforce the settlement.
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`7
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`MR. LUKAS: Right. It's not exercising the
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`8 jurisdiction over the settlement.
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`9
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`THE COURT: I decided not to exercise jurisdiction
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`10 over the settlement. I was asked --
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`11
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`12
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`MR. LUKAS: Fair enough.
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`THE COURT: -- by Judge Du to clarify the settlement,
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`13 which I have now done. I want Mr. Harris to prepare an order
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`14 indicating what the clarified settlement was, and I would like
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`15 -- and so there's no confusion about this, I would like a copy
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`16 of the -- I would like the transcript of these proceedings
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`17 attached to it.
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`18
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`19
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`20
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`21
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`MR. HARRIS: I'll order
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