Ex Parte Seizure Orders: Don't Kill the Goose That Laid This Golden Egg
![handle is hein.journals/cjla23 and id is 189 raw text is: Ex Parte Seizure Orders:
Don't Kill The Goose That Laid This Golden Egg!
by Jules D. Zalon*
Prior to 1980, the idea of granting an ex parte temporary restraining order [TRO]
was usually met with great skepticism - and very quick rejection. This was so despite
the fact that Federal Rule of Civil Procedure 65 provides that, in certain circum-
stances, [a] temporary restraining order may be granted without written or oral notice
to the adverse party .. . .' Today, ex parte TROs - often with broad seizure
provisions - litter the courts' dockets. In many cases, the orders are granted quickly
and quite casually. Those of us who regularly obtain them may be in and out of court
in less than an hour.
The willingness of judges to grant these orders so easily is a double-edged sword.
This article will describe the development of ex parte seizure orders and will raise a
warning flag to litigators who believe that such orders will be automatically granted.
Such an attitude, should it become pervasive, could well create hostility among
judges, a hostility which might presage a stricter scrutiny of TROs.
I. BACKGROUND
A. THE VurrroN CASES
During the late 1970's, the upscale luggage producer Louis Vuitton mounted a
serious litigation campaign against a veritable subculture of counterfeiters producing
and selling low-priced (and low-grade) knock-offs of Vuitton's expensive handbags.
In support of this effort, Vuitton's company commissioned hundreds of investiga-
tions, all seeking to discover the sources for these bootleg handbags.
A typical example of the problems they faced is seen in Vuiton et Fils, S.A. v.
Crown Handbags, decided in the Southern District of New York by Judge Charles
Brieant.2 In that case, the plaintiffs investigator testified that he visited the
defendant's store and saw two counterfeit Vuitton handbags for sale at $35.00
each. The defendant allegedly refused to sell him these bags in fewer than lots of six,
claiming to be a wholesaler. However, the defendant also allegedly indicated that he
had many more bags like them in inventory.3 After suit was filed, the defendant
testified that he never offered or sold such bags, and produced no records in response
* L.L.B. 1963, New York University Law School. Member of the bar in New York and New
Jersey. Mr. Zalon is a solo practitioner specializing in copyright, trademark and right of publicity litigation.
In 1980, while representing the rock group Styx, Mr. Zalon created the federal John Doe ex parte seizure
procedure. Since then he has handled commercial and anti-piracy litigation in more than 30 states,
representing scores of entertainers and sports personalities.
o 1999 by Jules D. Zalon.
I. FED. R. Ov. P. 65(b).
2. 492 F. Supp. 1071 (S.D.N.Y. 1979).
3. Id. at 1074.](ViewImageLocal?handle=hein.journals/cjla23&div=15&collection=journals&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Ex Parte Seizure Orders: Don't Kill the Goose That Laid This Golden Egg
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most