IP class 14

murphy bed. 
if your term becomes generic, you lose your TM rights.

why allow a benefit to be taken away?
policing the trademark is important: we may ask, what has the trademark holder done to protect their trademark, such as marketing, lawsuits,
but there are circumstances where we want for any manufacturer to be able to use the term because of the spectrum of distinctiveness. in terms of generic marks, we want all manufacturers to have access so that there is competition in the market.

in June 2006, OED added "Google" as a verb. in context of murphy bed, this is a problem because it is a threat to successful mark owners. the threat is that we think that the TM system must co-exist with competitive market, and we will outweigh the market's needs with

naked licensing and assignment in gross: dawn donut

allows the company to use the donut name but doesn't really look at what the company is doing with the name.
what's the TM problem? you're not policing your TM. TM is a signature of the quality of product. why do we regulate this?
TM is distinction between producer and product. allowing the licensing of a TM without quality control then

in what way could the licensor effect control over the product and business?
the licensor must have both the right and have done something that shows attempt to police the quality of the product. it can't be a sham.

if we don't want the court to force companies to follow judicially formed standards, then what do we want?
- the market to regulate

the problem of the TM owner exiting the marketplace:

functionality: trafFix devices.
question of whether a TM exists at all. TraFix is sued by marketing displays for misappropriating its trade dress. the springs created by marketing displays may not be necessary.
two issues:
1. back-door patent. we as the public would be getting cheated because you had a patent lasting 20 years, and now you want a TM, which would disserve the public because

if trafFix must use 4 springs for hwat can be accomplished with 2, then their product is more expensive and its an expense that has nothing to do with "good will" or anything "necessary for the market". this is a functional feature, regardless of whether there is secondary meaning. why? because TM would create a mucky infraction on the patent system here. we want to prevent TM law from being a means of restricting trade in a way that diminishes competition, and allows producers to compete for reputation. we don't want the competition over reputation to become a vehicle for monopolization.

mattel v. mca records
majority says that this is a ridiculous song and the doll, barbie the word, has TM. but
there can be social contests over the meaning of a term, even a TM. what would happen if there wasn't this type of defense, and mattel didn't like what you had said about their company? if you're using the TM just as another means to infringement, but you

nadel v. play by play.
nadel doesn't tell play by play that you can get the idea that they disclose anywhere. why should they be allowed to do that? because

desny v. wilder
case arises before 1976 copyright act. after the act, the copyright of a written work would be preemptive. transferrence of creative ideas is being driven into the copyright law area. desny made a pitch to billy wilder and then ace in the hole is made. his claim is a contract claim, that the secretary implied that the idea would only be used if desny was paid.

economy of getting information.

intellectual property law is in essence a chance to find and disseminate information in a way that is efficient and fair to extent possible. by keeping something secret, you may lose rights and be precluded from using the information in the future. there are tremendous pressures towards institutionalizing creative effort and information. and to an extent, fairness falls to the wayside.

we discussed fair use of intellectual property, personhood interests of investment, and moral interests.


source-identifiers: if you're the only person using a product for 20 years then we 


2.

what i

biz org class 28

Unical: whatever the takeover defense measure chosen, it has to proportionately mirror the takeover threat.

the court's judicial interpretation of takeovers in this section.

revlon: example of a poison pill

an investor that you look to to help out is a "white knight"

cancellation fee is an agreement between the "white knight" and the target company, such that the white knight still gets something out of the bargain, even if it loses the bidding war. the parties will negotiate the value of the cancellation fee.

how is this a takeover defense mechanism?

if the hostile acquirer outbids the white knight, then the target company must pay the cancellation fee, which is an acquired debt of the hostile company/majority shareholder. this is very unattractive, because no matter what happens the white knight will have a benefit.

"no-shop agreements": agreement between the target and white knight that the friendly merger agreement will not be used to shop around the target company to get a higher return for the shareholders.

"lock up agreement": the white knight is given an option to buy multiple, valuable divisions of the target company, or the "crown jewels" of the company, at a price significantly reduced from the appraised value.

it is the duty of the targeted board to maximize the value that the shareholders can get.
no shop, lockup and cancellation were employed to stop the bidding war and to stop the hostile acquirer, and that stoppage of the bidding war stopped shareholders from being able to get the highest price. this is a breach of fiduciary duty to the shareholders.

companies exist to maximize capital for share holders. boards can consider what will be good for consumers in the long run. but they cannot do what

time-warner.
powerful CEOs can get a friendly bidder to do what it wants.
when time and warner decided they wanted to expand via merger, the negotiations fell through because the ego of the warner CEO caused a failure of the deals. ross wanted to maintain control of the merged companies, and was concerned about the amount of power he would exert. once a deal was negotiated, ross wanted power over the combined time-warner. he let things drag on, and that allowed paramount, a hostile bidder to come along a few years into negotiations, and target time. 

in time-warner, the threat that time fended against was that a merger with paramount would change the culture of the company and way of doing business.  the time company said that it wanted to preserve the culture of the time-warner company, but the target incumbent said that a merger with paramount would destroy the time culture.

in unical, the target company said that the bid was too low and therefore coercive.

the court bought the argument of time company that retaining the time culture was what was best for the shareholers in the long run. short term interests were not triggered. particularly noteworthy is that the time-warner merger had been ongoing for a long time.


14(a)(11) is a finalized but not yet enacted rule (because of the business roundtable). it allows shareholders of at least 3% of the company to accelerate board members of the company. 14(a)(11) is different from the leven & rosenthal cases because those were instances where control was changed by incumbents (SH have the right to be reimbursed for expenses they have laid out for changing the entire slate of the directors). under this rule, control does not shift.

the exam.
flag the issue quickly.
articulate the rule (which will be an expansion on the issue likely, because it will be fairly narrow). **even though we all know what the rules are from class, you MUST spell it out in the answer**
then, identify the particulars of the rule that are most directly affecting the outcome of the circumstances
apply the rule to the facts in light of the stated rule.

biz org class 27

three cases in which plaintiffs charge that the merger statute was used unfairly: 

weinberger. 
minority shareholders may be frozen out but the process/ dealings has to be fair and the price (which is more subjective) has to be fair.

in weinberger, signal owns UOP and decides it wants to freeze out the UOP shareholders. to do so, it mergers UOP into signal and cashes out the minority. when this happens, the dealings has to be fair. and in this case, signal had people on the UOP board that were signal executives and reporters about the fair prices. the shareholders and independent board voted in favor of the merger because they were not aware of the information held by UOP. the dealings were therefore unfair.

in farris v. glen alden, the defendants did not use merger form and the plaintiffs claimed that the lack of merger form should be deemed irrelevant and a merger should be found de facto even though it was an "asset acquisition". the minority position that asset acquistions in reality are de facto mergers.

NYS and DE reject asset acquistion: in harriton, the majority of the courts said that the asset acquistion deserves "equal dignity" as the merger acquistion, and the court will observe the business' stated objective.

coggins.
coggins facts are very similar to weinberger, but the defendants used the merger provisions. the plaintiff's arguments were that the merger provisions were incorrectly used.

with respect to weinberger, the court introduced the concept of fair dealing and fair price. but the DE court rejected the legitamate business purpose requirement in this case: in all jurisdictions, previously, the defendant had to have a legit business purpose to freeze out shareholders. NYS courts follow this equal dignity rule as well.

there may be perfectly legit reasons to freeze out/ cash out minority shareholders. in the weinberger case, if signal freeze out the minority and becomes a 100% shareholder of UOP, signal no longer has to worry about fiduciary duties owed to minority shareholders.

in sinclair v. levine, the court announced that the duty of loyalty analysis applies to the relationship with minority shareholders. we ask if the majority receives something to the detriment of the minority. and if it does, the majority holds the burden of proving fairness in their dealings.

in weinberger, the context is narrower because it is a merger, but the duties owed are still relevant. the majority share holder may still want to get rid of the minority just to dislodge that duty.

coggins: the merger was held to be impermissible because the controlling shareholder had no business purpose for freezing out the minority shareholders. the defendant used the old company and surviving company for insurance on personal loans. a company may not be used as security for a loan if there are minority shareholders.

but it's easy to come up with a legitimate business interest.

rabkin v. philip. 
the controlling shareholder maneuvered things to make the timing such that minority shareholders got less than a fair price for their shares. the court obviously held this wasn't fair, because the minority expected a certain pay point as granted to other parties. the court said that if the minority is complaining only about unfair price, the remedy is appraisal. but if the minority is claiming unfair dealings such as nondisclosure, misrepresentation, or fraud, then plaintiff's are claiming a weinberger remedy in which plaintiff will allege unfair dealings/price and requires a different analysis. there's no possibility of class action for an appraisal but there is for unfair dealings.


rauch v. RCA
plaintiffs claim that it's a de facto non-merger (liquidation), and that if the court accepted the plaintiff's argument, the plaintiffs should have gotten much more for their shares. the case illustrates the idea of "form over substance" as we saw in harriton. the court applies an equal dignity approach, and dismisses the plaintiff's claim and applies the equal dignity approach. the court acknowledges the merger/ asset sale, and expresses that there is more than one way to combine companies.


all courts reject de facto non-merger, at this time.


VGS v. castiel
LLC. investors are called "members" or "managers". there is centralized organization sometimes. this company was manager managed by three people. two had a disagreement with the other manager, and joined forces against the one and adhered to the limited liability company act in dissolving the current LLC and beginning a new one (freeze the third manager out of the original business). the 3d manager had a controlling interest in the company. once the LLC was merged into the created corp, the one who held the original LLC lost control and the two minority had control. the court basically says that they understand that LLC act allows for managers to act pursuant to written consent without meeting or notice, but equitable principles will not allow for the actions taken in this circumstance, because clearly the 3d manager would have stopped and had the full authority to stop the merger if he had known about it.


takeovers.
acquiring companies and target companies.

dealing with both the entities and the personalities that control the entities.
acquiring companies that make a hostile bid for a target, the

the acquirer (or bidders) can be an individual or company.


think about how these cases compare to the previous ones: the previous cases demonstrate how business combination happen through the acquirers negotiating deals with the target companies. in the  current cases, the method of merger is a hostile one and the acquirer will go to other shareholders of the organization instaed of to the company's management.


tender offer: an offer to buy the company's shares but only if the acquisition happens by at least 51% of the minority shareholders tender. the acquirer generally offers a significant premium to get control.


what will the target companies do with respect to the deals? when an acquirer announces a tender offer and attempts to take control of the target company, what will the managers do?
like in pretty woman, they will try to get the acquiring company to deal with them and back off etc. they will spend corporate funds to thwart hostile bidders. but what's the problem? there might be a conflict of interests. the defense of the company will be that the acquirer is a threat to corporate existence and is a liquidator and will not manage the company in a way that is good for the company long-term, or that the acquirer will hurt the community by hurting employees, the environment and local economy.

what of the fact that this may be shareholders just entrenching themselves trying to keep their jobs? what if the directors
these cases are about the business judgment rule.

what specifically are incumbent managers of the target company doing to defend against hostile bidders and where are they getting the money? they are spending the target company's money: if the company wasn't earning anything, the acquirer wouldn't be attracted to it.

cases where the hostile bidder is trying to take the target company's executives jobs. courts therefore engage in a heightened level of scrutiny: courts first scrutinize the takeover defense mechanisms. the business judgment rule does not initially apply to the target company's business decisions. the target company's managers decisions to defend against the hostile bidders' bid do not get protected by biz judgment rule initially.

defense measures are
- greenmail (not something that acquirers try to get because have to pay 50% to IRS)
- stock repurchases or self-tenders
- poison pills
- lockups
- termination fees
- no-shop agreements


cheff v. mathes
holland was a company that was making money, but through fraudulent practices. mirmount, who wants to merge with the company holland, of which cheff is the CEO, proposes a merger. cheff rejects mirmount, who then goes to hollands shareholders and starts buying holland stock. inside directors have to show that they have a business reason for defending against the hostile bidder.

unocal corp v. mesa
the court's holding is that directors have to show that self-tender is a reasonable (proportionate) response to the hostile bidder's threat to the existence of the target company. unocal said that the threat of acquirers was coersive. this builds on the cheff analysis and adds the holding above.

revlon. poison pill.
there is another company that the target company would like to merge with. there are two personalities,
for each revlon share self-tendered to the board, the shareholder would get a payoff in a year of 12%. it was a shifting of the nature of the shareholder's investment to equity. it gave them a note, which made them creditors to be paid in the future with a stated return. much more attractive offer.

biz org class 26

insider trading.

1. model 14(a)(8)
2. GM IPO.

no insider trading unless there's a fiduciary duty (chiarella). but the basic insider trading rule is one that says that if there's a SH that owes FD, they have the duty to abstain.

tipper has to owe a FD.

there must be a FD owed to the source of the information.

wilkes duties: anytime a shareholder's conduct is challenged, they must show the legitimate business interest must be demonstrated and it must be shown that the minority shareholder's interests could not have been better protected.

controlling shareholders who freeze out minority shareholders.

smith v. atlantic properties.
wolfson, the founder of the business, was worried that the other investors would all gang up on him and form a group against him to freeeze him out. wolfson wants a provision that says "all important decisions require an 80% shareholder vote" which works out because all the shareholders own 25%. meaning that you need all the shareholders to agree, OR any one can veto a business decision. wolfson wouldn't agree to a property issue because he didn't like the other shareholders and made the firm liable for taxes.

it's a question of why the court picked on wolfson: the court blames him for wanting to have more tax liability.

jordan v. duff & phelps
larger company but still closely (not-publicly) held.
jordan had to argue that had he known of the merger, he would have stuck it out so that he could earn more money and maybe the familial dispute wouldn't have been so salient for jordan and his wife. he would have understood that duff&phelps was worth a lot more than the book value, and i wouldn't have quit. some people think that this is pretty implausible, but this is what the majority accepted.

"disdain or disclose rule" (see texas gulf-sulphur, where the company released a misleading information and insiders who traded on non-public, material information)

we have to accept jordan's claim that he would have stayed if he had known.
and so, the question for the court becomes -- if jordan had decided not to quit the firm, could duff&phelps have fired jordan before the merger occurred? this conflict of analysis is the conflict between the dissent and majority's opinions. the majority says that because jordan was at-will, duff&phelps could have said "so long sucker" even before he quit. easterbrooks says that duff&phelps could not have fired jordan just to keep him out of the benefits of the merger because of the duty of utmost good faith prevented them from doing an opportunistic firing. under s. 10(b)(5) -- is not applicable if the SH can't reply. but here, the shareholder could have responded by staying at the company and not quitting.

so this case combines wilkes duty and federal law under 10(b)(5).

mergers and acquisitions

farris v. glen -- de facto merger doctrine
mergers are the amalgamation of two companies under state statute, where one survives and the other disappears. typically, the larger company swallows the smaller and a merger agreement is written. shareholders of the company that gets eaten have to get something worth the equivalent of what they had that got sucked up.

tender offer:
in this case, list may buy control of GA by acquiring shares of GA from GA shareholders through a tender offer. list may pay cash OR use List shares as consideration
once list has control, it can use the state's short-form merger statute & GA disappears

in PA, dissenting shareholders have appraisal rights when the company merges with another AND when their company has sold its assets.

in DE, shareholders have appraisal rights only when their company merges, and have no rights in asset sales.

weinberger v. UPO Inc.
think of wilkes, where the minority shareholder was frozen out. the best way to eliminate liability to minority shareholders is to freeze them out during the merger. in this case, UPO, which became Signal, gave cash to the minority shareholders. this means that it needed to recommend the merger and the minority needed to vote. the problem for the companies is that the people on the UPO board were also Signal directors and officers.

utmost good faith: merger requires fair price and fair dealing. the officers should have shared what they knew with the independent board members, and they didn't. that's a fiduciary duty loyalty of breach. the directors have the burden of proving that this merger then was fair, since there were officers on both sides of the deal.

this is familiar to the analysis in sinclair, where the shareholder had to prove intrisic fairness. it also parallels the wheelabrator case which deals with disinterested shareholders -- with respect to controlling shareholders, the burden of proof may be shifted to the plaintiff to show unfairness

proro class 26

lawyer advertising. 
either to other lawyers or to non-lawyer professionals provided that the referral agreement is not exclusive and provided that the client is told that you have this reciprocal referral agreement.

comment 1: rule 7.1 very much intented to apply to lawyer advertising/ self-promotion of services.
comments 2&3: cover the situation of truthful but misleading advertising

see rule 7.3, comment 6:


"i'm back on my feet" problem.
is there a danger that potential clients would be mislead by this advertisement?
it's not per se unethical to have an ad and not include a disclaimer, but it is fine for a state to require a disclaimer and not run afowl of the first amendment.

rule 7.1 - 7.3
don't need anti-advertising rules to punish fraud. the ads contain information which is helpful for consumers, drives down legal services prices...

what explains the anti-advertising rules? because they are concerned with the "dignity of lawyers"

after SCOTUS struck down flat bans on advertisements so that competition on basics just as price and credentials improve, bar associations have been engaged in rear-guard action to protect/restrict against things that are/not permissible. what's annoying isn't the ads but the claims that these rules are for consumer protection.

pape&chandler pit bull case: "what these advertisements do is demean all lawyers and the public's trust in lawyers."

if a doggy ampersand can bring down the profession, then the profession has more problems than the rule itself can solve. lawyers nor the industry is not inerently dignified. should be based on
1. behavior of lawyers
2. how clients interpret behavior of the lawyers

clients are entitled to any information that helps to make this kind of info. the lawyers who would run these types of ads, are the lawyers who would let these types of ads run.

bates: "cynicism is bred by the fact that lawyers don't advertise aggressively enough."

the State can ban certain ads, can require disclaimers, can ban/regulate certain descriptions of services provided, but absolute bans to lawyer advertising are a no-no

this is not just about what single practitioner and small firms can do, but law firms as well. a large firm isn't going to take out time on TV or in the paper, but instead searches for more sophisticated marketing strategies.

orahlik 
the lawyer says that this is no different than bates.
the court says that it's not: "The solicitation of business by a lawyer through direct, in-person communication with the prospective client has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. . . . [T]he State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity."

commercial speech rights for lawyers do not extend to solitication of strangers (prospective clients) for profit. pro bono solitication however is not covered by this rule, and it is okay. it may be that we want to protect people's autonomy to create an attorney-client relationship. but these are still perception issues still involved as well, in terms of what's decorous or invasive.

fit: ohralik says that the State does not have to weigh less intrusive means of regulating the means of this solicitation, it can just bar it.

would expect that you could ban (something)
eden v. bane -- FL bans cold-calls to medium sized clients, and distinguishes ohralik to say that there's a difference between CPAs and lawyers

zauderer case:
advertisement asking if you need representation for IUD use, contact our firm. the ad successfully draws many clients.
the ad seems to give advice, it doesn't contain a disclaimer about costs, it has an illustration.
zauderer wins on every claim except the disclaimer language issue.

zauderer is also a "fit" case: the State has a legit interest in preventing deceptive ads

shapero:
the lawyer sends targeted letters to potential victims of foreclosure actions. the rule in KY at the time prohibits mail solicitation that is targeted at a person knwon to need legal services, if the significant motive for the lawyer doing so is pecuniary gain.

not ohralik because mail solicitation presents a lower risk of imposition, because the mail can be ignored unlike a face to face conversation.

N.B. -- the nature of a phone call is problematic


*** read Justic O'Connor's dissent**

"membership in the profession means you will temper your personal... to the aims of public service"
absent proof of a causal relationship between marketing and professionalism, to whom shoudl the court defer -- to the state's perception of a connection, to first amendment, shoudl it accept the state's claims at face value, rely on intuition... what should the court take as fundamental in deciding who wins these kinds of cases?

IP class 13

trademarks cont
doctrine.

have to then ask, is there a reason why we would want to take certain symbols out of the realm of trademark protection. this issue also comes up under distinctiveness. in the word marks context, we looked at highly/inherently distinctive marks, down to suggestive marks, then to non-discriptive/generic marks. descriptive marks can acquire distinction or secondary meaning, because consumers come to associate your mark with a certain source.

use. in order to be protectable the mark must be actually used, because otherwise that would be anti-competitive. registration is important because it provides nationwide notice, but you're not entitled to the registration unless you're actually using the mark in commerce.

infringment
elements:
- a valid and protectable mark
- likelihood of confusion
confusion analysis
- multifactor tests: sleekcraft
multiplying species of confusion

dilution elements
- a famous and distinctive mark (blurring would destroy the sole and unique meaning of its association with the good and manufacturer. tarnishment damages the mark's morally sensible association)

trademark analysis
1. subject matter
- llok at s.45
- word
- logo
- trade dress

2. distinctiveness
- word 
     - inherent (disputed/not disputed)
     - acquired
          - doesn't matter if generic

- logo
      - inherent
      - acquired (factual dispute)
      - trade dress
      - secondary meaning
         - acquired distinctiveness (factual dispute, length of use)

- registration that has been on books for five or more years is incontestible

- infringment 
     - protectable mark
     - likelihood of confusion (license, approval of the quality, etc)
          sleetcraft balancing test factors
          strength
            - inherent distinctiveness (not/strong)
            - acquired distinctiveness (not/strong)
            - proximity of the goods (where proximity is identity, services, market)
            - similarity of the marks (word logo and design:for cheesecake factory example, defendants should argue broad scope, plaintiff's should argue narrow scope)
            - actual confusion (a matter of fact)
            - marketing channels (advertising, distribution,
            - types of goods/ purchaser concern (are goods purchased in such as way as to displace confusion?)
            - defendant's intent (is the intent to confuse and draw away business, which is wrongful?)
            - likelihood of expansion of defendant's business

as to actual confusion, we would need survey evidence.
marketing channels

- dilution
             - famous mark
             - use commencing after the fame of the mark
             - blurring is considered just infringment, and the factors are not the same
             - similarity leading to an association
             - tarnishment

proro class 25

potential conflicts of interest between the clients' interests and the lay-manager/owner's interests for a lawyer working for an organization.

things can get complicated, because when we think of lawyers who work for corporations, they are taking orders from lay-management: in-house counsel is exactly this kind of framework. what's the difference between that and the

minor question/issue: can NAACP lay agents solicit individuals that lawyers of the organization will then represent?

major issue/question: the broader issue is that of the entity's goals and the client's goals, which may be conflicting.

1. constitutionally protected under 1st and 14th amendments.
2. if the state is to intervene, there must be a compelling state interest.
3. the common law offenses of barratry, maintenance and champerty -- ancient offenses that are almost nuisance offenses -- don't apply here because the litigants are seeking to enforce constitutional rights
4. the fear of a lay intermediary interfering with the rendering of legal services for pecuniary gain, whatever the validity when monetary stakes are concerned, has no application to this case. using the courts to fight segregation in this way is a different matter from the malicious, avericious use for purely private gain

dissent says that the doctrines of barratry protect the attorney-client relationship. harlan is anticipating and describing circumstances that may give rise to conflicts of interests where we're not even talking about pecuniary interests, that may

dissent uses different standard of proof: can't be said that state interest is incompatible with federal interest here -- because it is true that people are at least as willing to violate ethical rules for political motives as they are for financial motives.

barraters.

stirring up legal malcontent is an abuse of the public office of practicing law.
legal practice is about solving and vindicating actual harms by the clients desire to have their rights vindicated. harlan says you don't have to think about the selling of legal office purely monetarily -- in fact, it might be better to consider it by the selling of "cause litigation" to promote a political or social agenda.

cause litigation. many organizations created in 60s and 70s were leftist and focused on liberal and civil rights. conservative organizations were responsive and prominent in the 80s, with causes focused on economic/corporate/regulatory interests. these organizations sniffed out plaintiffs, pursuaded them to sign their names to complaints, directed legal strategies, and because courts in the early 60s/70s had relaxed standing for admirable cases, the courts had to give conservative organizations the same kind of loose standing!! so -- can it be said that the infusion into the litigation process of raw political fights fought by people with no real standing has corrupted litigation in just the way that laws against barratry sought to prevent?

money: the issue becomes more complicated when dealing with unions
is it permissible for unions to help their members through counsel to secure their rights, counsel that is part of the union?
1. public interest organization is looking to help outside clients but the union is looking to help it's own members
2. the public interest firm is looking to vindicate constitutional rights, but the unions are generally interested in more ordinary claims
3. public interest is usually to blaze a new legal trail, and the union interest is in saving a cost of getting outside counsel

justice black -- being able to obtain access to the court is fundamental sixth and 1st amendment right
union cases. once these came around, it became clear what is at stake: money

problem.
immigrants from former soviet union. can the lawyer bring in a language teacher?
5.4(b) - NO. this non lawyer may cause the lawyer to sacrifice the clients so that s/he may get rich.
is that a legitimate concern?
- reasons why someone would want to be a partner: control, direction, growth
- relationships

referrrals are OK so long as it's not an exclusive relationship (like, you can't tell a social worker that you'll refer all cases exclusively to that person)

litigation funding companies.
usery -- except in OH, there's going to be growth in the litigation funding industry.

rules 1.2 and 2.1
client determines ends, and the lawyer then finds the legal means.
it's 2002, the CIA has come to OLC seeking a legal opinion about enhanced interrogation techniques and if they're barred. imagine that the statute is drafted a little differently and the fairest reading of the statute is that waterboarding is actually lawful. it's not a slam dunk because the statute is vague, but on balance, the most lawyerly reading of the statute is that waterboarding is not prohibited. not-Yu says his conscience won't allow him to write an opinion that allows waterboarding because he thinks that that is torture. he writes a memo that the techniques are unlawful, and he has to get creative and aggressive in persuasiveness to reach the result. and with OLC's opinion issued, the CIA does not use waterboarding.

how similar is the not-Yu to the real Yu?