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any more than the treble damages that I would have recovered under the actual damages scheme.
Mr. UMANS. Congressman Sawyer, I just want to address myself to that. The retailer is protected even more than that, because under the Lanham Act, treble damages and remedies under that are discretionary. If somebody is an innocent infringer, it is highly, highly unlikely-I have never heard of it-where a judge would grant any damages against that retailer. If you have a provision in this act where an innocent or not-knowing counterfeiter, namely a reputable retailer, was involved, there would be no in-lieu damages, there would be no damages whatsoever. The only damage he could possibly suffer is the taking away of the merchandise.
So a lot of the retail assertions—the retail's assertions about dangers under this act are overblown. As far as this problem about publicity is concerned, we routinely put in seal orders so that prior to a hearing for preliminary injunction, nobody knows the case has been brought, particularly the media.
Some people haven't done that and maybe they deserve what they get if they are wrong, but we routinely put in seal orders, and that could be put in the act and I could live with that, too. I think most of the concerns of the retailers are absolutely hysterical and overblown. It is just not practical and it doesn't happen.
Mr. WALLEN. Just to continue with a couple of other strengthening suggestions, one is the requirement in section 2320(f)(4)(A) that says you need an advance affidavit specifying where the goods are located. That, in fact, in the real world is much too onerous because you often do not know where they are located. People keep their warehouse secreted and you arrange for delivery of the merchandise to your investigator at some neutral locale and you may only know a day or so before where the goods will be located at the time of seizure at a place certain, but you don't know where they are at the time. So that should be modified.
I believe, as Mr. Umans suggested, that we should have some access to limited business records. In a seizure, I think we have got to give concern to certainly a protective order which would protect confidential business information on those business records, and second, I think there should be—and I don't have, unfortunately, any suggestion on this, but I do think large retail stores, to the extent they would be subjected to a seizure circumstance, should be protected from obvious harassment of a horde of marshals and plaintiffs coming in and, in effect, totally disrupting their operation by going through their voluminous business records.
In 99 percent of the instances, we are talking of business records comprised of a few scraps of paper with most of these people, but even that is better than nothing. I do think we have to give consideration to the major retailers. They shouldn't be hamstrung with an onerous searching for business records. But some searching and some business records would strengthen the legislation. Those are my ballpark thoughts, Congressman. Mr. SAWYER. Thank you.
I yield back. Mr. HUGHES. Thank you very much. You have been extremely helpful. Your insights as practitioners at the bar are going to be invaluable to us, so thank you again.
Mr. WALLEN. Thank you for the opportunity.
Mr. HUGHES. That concludes the testimony for today.
[Whereupon, at 12:40 p.m., the subcommittee was adjourned, to reconvene subject to the call of the Chair.)
This is with reference your colloquy with Associate Deputy Attorney General Tim Finn during the November 3. hearing on trademark counterfeiting legislation. You suggested a need for additional federal investigators and prosecutors.
While we are, of course, sympathetic with your goal of expanded federal law enforcement resources, I would respectfully suggest that the facts do not support an implication that this Administration has been insensitive to law enforcement needs. In this regard, you should be aware that largely due to the Organized Crime Drug Enforcement Task Force Program the number of FBI agents has increased by 496, the number of DEA agents has increased by 157 and the number of attorneys in U. S. Attorney's offices has increased by 218 as of September 30, 1983, compared with September 30, 1980, the end of the last fiscal year before this Administration took office. These figures are for attorneys and agents actually on board and represent an aggregate increase of more than 7.5 percent. Moreover these figures are for agents and prosecutors only and do not include increases in paralegal, clerical and other support personnel. */
*/ The numbers of agents and prosecutors actually on board were as follows:
September 30, 1983
Although we appreciate that some may feel that even larger increases should have been made, the level of growth which has occurred seems highly significant coming it did during a period of budget austerity when many departments and agencies were experiencing substantial resource reductions. I should also note that concerns to arise in professional law enforcement personnel when there is substantial increase in personnel during a short period of time. The concerns arise from bringing personnel on board at a rapid pace. It is possible that such action might result in sacrificing quality in the selection process. In this regard, DEA has raised its standards for Special Agents in an effort to recruit persons with college degrees and, to the extent possible, post-graduate degrees in fields such as accounting, law and pharmacy. As a result, DEA is now, like the FBI, drawing from a
limited pool of applicants. While we are very pleased with our hirings and the quality of training we are providing our new personnel, there are sound reasons for controlling carefully any major expansion in resources.
Finally, I would note, U. S. Attorney Stanley Marcus pointed out during his testimony before you in Ft. Lauderdale, that there is necessarily a correlation between the number of federal investigators and prosecutors and the number of federal judgeships. It would be exercise in futility to develop great numbers of additional federal criminal cases if there are not enough courts to hear them. In this area, the Administration has endorsed and the Senate has approved legislation authorizing the creation of 51 additional federal district court judgeships, three of which are for the Southern District of Florida, as well as 24 additional circuit judgeships. Unfortunately, the House has not acted. Needless to say, any assistance you can provide will be appreciated.
Again, I recognize that share a common goal of enhanced law enforcement. At the same time, I wanted you to be aware of the information set out above as I believe very sincerely that it establishes that the record of the last couple of years is a good one. I truly believe that it is inaccurate and unfair to suggest that the Department of Justice or the Administration is not fully committed to strengthened law enforcement.