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STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JERMAINE BRYANT, DEFENDANT-APPELLANT.
Before Judges MICHELS, BAIME, and KIMMELMAN.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Susan L. Reisner, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).
Barbara A. Rosenkrans, Assistant Essex County Prosecutor, argued the cause for respondent (Clifford J. Minor, Prosecutor, attorney; Ms. Rosenkrans, of counsel and on the brief).
The opinion of the court was delivered by BAIME, J.A.D.
Following a protracted jury trial, defendant was found guilty of murder (N.J.S.A. 2C:11-3a(1) and (2)), aggravated assault (N.J.S.A. 2C:12-1b(1)), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), and possession of a rifle without a permit (N.J.S.A. 2C:39-5c(1)). The trial court sentenced defendant to life imprisonment with a thirty year parole disqualifier on the conviction for murder, to a consecutive ten year term with a five year parole disqualifier on the conviction for aggravated assault, and to a concurrent five year term on the conviction for possession of a rifle without a permit. The trial court merged the conviction for possession of a firearm for an unlawful purpose with the murder conviction. Defendant was assessed the applicable penalties.
On appeal, defendant contends (1) the trial court committed plain error in its instructions regarding self-defense, (2) the judge’s charge on possession of a firearm for an unlawful purpose failed to apprise the jury of the right to carry a weapon for self-protection, and (3) the sentences imposed were manifestly excessive. We find no sound basis to disturb defendant’s convictions or the sentences imposed.
The facts were hotly contested at trial. On November 11, 1992, Michael and Mitchell Saunders visited their uncle, Charles, at his Newark apartment. In the course of their conversation, Charles, who was superintendent of the apartment building, mentioned that he had been having problems with defendant. Defendant, who was then sixteen years old, resided in the building with his mother, Mary Manigo.
Following their visit, the Saunders brothers confronted defendant, who was standing in the front of the building. Defendant responded that he had no difficulty with Charles. He then left the two men, entered his apartment, and returned with his mother, who stopped a passing police car. The police officer told Charles to direct his nephews to leave. Believing that the argument had been defused, the officer then departed.
Shortly after the police officer left the scene, a fistfight erupted between Clarence Roundtree, a friend of defendant, and the Saunders brothers. It was undisputed that the fight ended quickly and inconclusively.
During the altercation, defendant entered his apartment and emerged with a rifle. From the landing in front of the apartment building, defendant fired at least one shot in the air, at which point the gun jammed. While defendant attempted to engage the trigger mechanism, Roundtree took the rifle from him and pointed it at the Saunders brothers. Roundtree unsuccessfully attempted to fire the weapon. Defendant then grabbed the rifle from Roundtree’s hands and fired at least one more shot in the air.
The State’s witnesses gave sharply differing accounts concerning what happened next. Michael Saunders testified that he and his brother ran to their car and attempted to enter it. While running to the car, Mitchell reached his hands into his pants pockets to remove his car keys. As Mitchell was opening the driver’s door, defendant shot him in the chest. The bullet pierced his heart and aorta and caused his chest cavity to fill with blood, ultimately killing him. Upon seeing his brother fall, Michael ran around the car in an effort to reach his uncle’s apartment. As Michael passed the car door, defendant shot him once in the shoulder, the bullet piercing his lung. Defendant then fled from the scene. The police were immediately summoned, and both victims were transported to the hospital. In a statement given in the emergency room, Michael recounted that his brother had been running toward the defendant when he was shot and that the two had been involved in an ongoing dispute.
Diamond Burchett, who lived next door, largely corroborated Michael’s account of the shooting, although he never saw Roundtree with the weapon. He did state, however, that when the gun jammed, one of the Saunders brothers remarked to defendant that he was not “shooting nothing but blanks.” Burchett also testified that one of the Saunders brothers was moving toward defendant when he was shot.
Mary Manigo testified that after defendant had retrieved the gun, he fired several warning shots in the air. She claimed that, notwithstanding these shots, the victims continued to approach defendant while reaching into their pants pockets. In the witness’s words, the Saunders brothers “kept walking like zombies[,] like they couldn’t be touched” by bullets. According to Manigo, defendant shot Michael first in the shoulder, and then Roundtree grabbed the gun and killed Mitchell.
We first consider defendant’s argument that the trial court committed plain error in its instructions on the justification of self-defense. Defendant contends that the trial court’s instructions (1) misinformed the jury respecting the right to use deadly force for self-protection, (2) failed to apprise the jury of the relationship between the justifications of self-defense and defense of others, and (3) foreclosed the jury from considering self-defense in the course of determining defendant’s guilt or innocence of the substantive charges. Our examination of the trial court’s instructions discloses no error capable of producing an unjust result. R. 2:10-2.
Because defendant’s contentions are somewhat prolix, we begin our analysis with a brief description of our statutes and cases dealing with the justifications of self-defense and defense of others.
The use of force against a person in self-defense is justifiable “when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force” by that person. N.J.S.A. 2C:3-4a. The defendant must harbor an actual, reasonable belief that the use of force on his own part is necessary to prevent the imminent application of unlawful force by the assailant. State v. Kelly,97 N.J. 178, 199-200, 478 A.2d 364 (1984). The doctrine of self-defense exonerates a person from criminal liability even though his belief in the need to use force to repel an attack is later proven mistaken. Id. at 198, 478 A.2d 364. “Detached reflection cannot be demanded in the presence of an uplifted knife,” Brown v. United States,256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921), and the law thus recognizes the frailties of human perception, requiring only a reasonable, and not necessarily correct, judgment. See State v. Hipplewith,33 N.J. 300, 316-17, 164 A.2d 481 (1960); State v. Mount, 73 N.J.L. 582, 585-86, 64 A. 124 (E. & A. 1906). While it is not requisite that actual necessity exist, the justification of self-defense requires an honest belief on the part of the defendant in the need to use force. State v. Kelly, 97 N.J. at 198, 478 A.2d 364. Honesty, alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that his belief in the need to use force was reasonable. Id. at 199, 478 A.2d 364. The reasonableness of the defendant’s belief is to be determined by the jury using an objective standard of what a reasonable person would have done in defendant’s position in light of the circumstances known to defendant at the time the force was used. Id. at 199-200, 478 A.2d 364.
Further, the defendant may use deadly force in self-defense only if he “reasonably believes that such force is necessary to protect himself against death or serious bodily harm.” N.J.S.A. 2C:3-4b(2). Two additional limitations on the use of deadly force exist. First, the defendant may not use deadly force if he, “with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter.” N.J.S.A. 2C:3-4b(2)(a). Second, the defendant may not use such force if he “knows that he can avoid the necessity of using such force with complete safety by retreating….” N.J.S.A. 2C:3-4b(2)(b). Deadly force is defined as “force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.” N.J.S.A. 2C:3-11b. This definition encompasses the act of “[p]urposely firing a firearm in the direction of another person.” Ibid.
(3) The [defendant] reasonably believes that his intervention is necessary for the protection of such other person.
[N.J.S.A. 2C:3-5a]. Whether the person the defendant seeks to protect was actually the aggressor in the situation is irrelevant if unknown to the defendant. The defense is valid if the defendant reasonably believed both that the person he sought to aid was unlawfully attacked and that the force used was necessary to protect that person from the attack. State v. Martinez,229 N.J.Super. 593, 600, 552 A.2d 232 (App.Div. 1989); see also State v. Fair,45 N.J. 77, 92-93, 211 A.2d 359 (1965). Again, the reasonableness of the defendant’s belief is judged from the perspective of a reasonable person in defendant’s position under the circumstances existing at the time he intervened. See State v. Holmes,208 N.J.Super. 480, 486-88, 506 A.2d 366 (App.Div. 1986).
The trial court must charge the jury on self-defense and defense of another if there exists evidence in either the State’s or the defendant’s case sufficient to provide a “rational basis” for their applicability. State v. Martinez, 229 N.J. Super. at 600, 552 A.2d 232; see also State v. Kelly, 97 N.J. at 200, 478 A.2d 364. If such a rational basis exists, then the State is required to prove that the defendant did not act in either self-defense or defense of another beyond a reasonable doubt. State v. Kelly, 97 N.J. at 200, 478 A.2d 364; State v. Martinez, 229 N.J. Super. at 600, 552 A.2d 232.
The trial court’s instructions in the present case fully comported with these principles, as defendant fairly concedes. Indeed, the instructions as given tracked the model charge. Defendant argues, however, that an instruction that is appropriate in one case may not be sufficient for another, and that the trial court’s charge here was not molded in such a way as to properly explain the law to the jury in the context of the material facts of the case. State v. Concepcion,111 N.J. 373, 379, 545 A.2d 119 (1988).
It is first argued that the trial court erred by telling the jury that “[t]he force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against [him],” and that the justification of self-defense would not lie if the force used by the defendant was “disproportionate in its intensity.” Pointing to N.J.S.A. 2C:3-4b(2), defendant contends that a person may use deadly force if he “reasonably believes that such force is necessary to protect himself against death or serious bodily harm” even if his use of deadly force is disproportionate to the threat leveled against him. As we understand defendant’s contention, he asserts that a person who perceives himself threatened with death or serious bodily harm may use deadly force even though other means are readily available to repel the attack upon him. He thus claims that the trial court erred by introducing the concept of “proportionality” in the context of the use of deadly force.
We question the thesis that a person may use deadly force whenever he perceives himself threatened with death or serious bodily harm where means short of the use of such force are readily at hand to repel such a threat. “Self-defense is measured against necessity.” State v. Abbott,36 N.J. 63, 69, 174 A.2d 881 (1961). A cogent argument can be made that deadly force may not be used where there is no need for its use. Moreover, defendant’s argument suffers from some degree of circularity. As we have stressed, the right to use deadly force rests on the defendant’s reasonable belief in the need to use such force. Where a lesser degree of force would have sufficed to repel an attack, it seems incongruous to suggest that the actor reasonably believed he was threatened with death or serious bodily harm. In other words, if the circumstances of the attack indicate that the defendant could not reasonably have believed that he needed to employ the amount of force used, then he cannot invoke the defense. See Cannel, New Jersey Criminal Code Annotated, comment 9 on N.J.S.A. 2C:3-4 (1995).
But even if one could conjure up facts where the deadly force legitimately used by a defendant threatened with death or serious bodily harm might be considered “disproportionate” in its intensity, we would not reverse defendant’s conviction. The instructions, read in their entirety, fairly conveyed the principle that the defendant was to be acquitted if the jury determined he used deadly force in the reasonable belief that such force was necessary to protect himself against death or serious bodily harm at the hands of the Saunders brothers. Defendant neither submitted a request to charge nor interposed an objection to the court’s instructions. We are entirely satisfied that defendant was not prejudiced by the instructions given.
Defendant also attacks the portion of the trial court’s charge dealing with provocation. In accord with the principles of the model charge, the trial court explained to the jury that “[i]f you find that the defendant, with the purpose of causing death or serious bodily harm to another, provoked or incited the use of force against himself in the same encounter, then the defense [of self-defense] is not available to him.” As this court has noted consistently, “self-defense is only available to one who is without fault,” and a person “who provokes or initiates an assault cannot escape criminal liability by invoking self-defense as a defense to a prosecution arising from the injury done to another.” State v. Rivers,252 N.J.Super. 142, 149, 599 A.2d 558 (App.Div. 1991). While conceding that the trial court’s instruction was a correct statement of the law, defendant claims that it was prejudicial in the context of the facts presented. Specifically, he asserts that his initial use of the rifle was justified by the need to protect Roundtree, but that the jury, under the instructions as given, could have considered his firing warning shots as “provocation,” thus disqualifying him from asserting the justification of self-defense.
Although in retrospect perhaps it would have been preferable had the trial court explicitly told the jury that conduct found to be reasonably necessary to protect a third person could not be considered provocation precluding the actor from relying on the justification of self-defense, we are satisfied that defendant was not prejudiced. Defense counsel’s failure to submit a request to charge or to interpose an objection signifies that he was satisfied with the instructions as given. We are convinced that the jury was not misled.
Citing State v. Coyle,119 N.J. 194, 574 A.2d 951 (1990), defendant claims that the trial court committed plain error by failing to refer to the justifications of self-defense and defense of others in its instructions on the elements of murder. Defendant’s reliance on Coyle is clearly misplaced. In Coyle, our Supreme Court found defective an instruction that foreclosed the jury from considering passion/provocation manslaughter “unless it determined that the State had failed to prove beyond a reasonable doubt the offense of murder.” Id. at 222, 574 A.2d 951. The jury here was not told to disregard evidence of justification if it found the State had proven the statutory elements of murder. To the contrary, the trial court’s charge clearly indicated to the jury that it was to acquit defendant if it harbored a reasonable doubt that the killing was justified by self-defense or defense of others. We perceive no error — far less plain error. Cf. State v. Harris,141 N.J. 525, 556, 662 A.2d 333 (1995).
Defendant’s remaining arguments do not require extended discussion. We need not address defendant’s attack upon the trial court’s charge on possession of a firearm for an unlawful purpose. Although defendant was found guilty on that count, the conviction was merged. No prejudice resulted.
We find no basis to disturb defendant’s sentences. The sentencing court’s articulation of reasons satisfied the three-pronged test adopted in State v. Roth,95 N.J. 334, 363-64, 471 A.2d 370 (1984). See also State v. Jarbath,114 N.J. 394, 401, 555 A.2d 559 (1989). The cumulative nature of the sentence comports with the guidelines established in State v. Yarbough,100 N.J. 627, 643-44, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986).
1. Legal commentators have suggested that the standard spelled out in N.J.S.A. 2C:3-4b(2)(a), which provides that the use of deadly force is not justifiable if the defendant, “with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter,” differs from the “without fault” standard described in several of our decisions. State v. Rivers, 252 N.J. Super. at 149, 599 A.2d 558. The legislative history reveals an intent on the part of the Criminal Code’s drafters to adopt a rule that involves a “narrower forfeiture of the privilege” than the “without fault” standard. See Cannel, New Jersey Criminal Code Annotated, comment 11 on N.J.S.A. 2C:3-4 (1995) (quoting 1971 Commentary, par. 10); but see State v. Bowens,108 N.J. 622, 628, 532 A.2d 215 (1987) (“An aggressor faced even with the reasonable belief in the necessity to kill `cannot have the defense of self-defense, for that requires both freedom from fault in the inception of the difficulty and the entertainment of beliefs which are reasonable.'”) (quoting W. LaFave and A. Scott, Jr., Handbook on Criminal Law 583 (1972)); State v. Rivers, 252 N.J. Super. at 149-50, 599 A.2d 558 (citing the statutory language quoted above). The Code Commentary indicates that a defendant is not necessarily disqualified from advancing the justification of self-defense merely because he provoked the attack. Cannel, New Jersey Criminal Code Annotated, comment 11 on N.J.S.A. 2C:3-4 (1995) (quoting 1971 Commentary, par 10). The defendant is disqualified from raising self defense only if he went “into the fight with a positive purpose to seriously injure or kill the victim,” thus provoking the attack upon him. Ibid. In light of the fact that the court below instructed the jury in accordance with the more restrictive statutory language, there is no need for an extended discussion of the differing implications of the two rules or for a determination of which one correctly expresses the state of the law. We merely note that the shorthand references to the “without fault” standard that appear in our earlier decisions must be considered within the context of the statutory language of N.J.S.A. 2C:3-4b(2)(a).

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Tan, J., Kifle, M., Mbarika, V., & Okoli, C. (2005). Diffusion Of E-Medicine. E-Health Care Information Systems, 231.
Pal, A., Mbarika, V. W. A., Cobb-Payton, F., Datta, P., & McCoy, S. (2005). Telemedicine diffusion in a developing country: the case of India (March 2004). IEEE Transactions on Information Technology in Biomedicine, 9(1), 59-65.
Mbarika, V. (2004). Is TeleMedicine the panacea for Sub-Saharan Africa’s medical nightmare? Communications of the ACM, 47(7), 21–24.
Mbarika, V. W., Meso, P. N., & Musa, P. F. (2004). A disconnect in stakeholders’ perceptions from emerging realities of teledensity growth in Africa’s least developed countries. Journal of Global Information Management, 12(3), 1.
Technology in Boimedicine. Vol. 9(1), p59-65.
Mbarika, V. (2002). Re-thinking information and communications technology policy focus on Internet versus Teledensity diffusion for Africa’s least developed countries. Electronic Journal on Information Systems in Developing Countries, 9(1), 1-13.
Mbarika, V. W. (2002). TeleEducation in Africa: A Possible Panacea for Sub-Saharan Africa’s Educational Dilemma.
Mbarika, V., Byrd, T. A., McMullen, P., & Musa, P. (2002). Teledensity growth constraints and strategies for Africa’s LDCs: ‘Viagra’ prescriptions or sustainable development strategy. Journal of Global Information Technology Management, 5(1), 25-42.
Mbarika, V. W., Byrd, T. A., Raymond, J. E., & McMullen, P. (2000). Investments in telecommunications infrastructure are not the panacea for least developed countries leapfrogging growth of teledensity. International Journal on Media Management, 2(3-4), 133-142.
Mbarika, V., Sankar, C.S., Raju, P.K., & Raymond, J. (2000). Importance of learning-driven constructs on perceived skill development when using multimedia instructional materials. Journal of Educational Technology Systems, 29(1), 67-87.
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Professionals’ Adoption of Telemedicine in Sub-Saharan Africa.

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In regard to your letters to Larry E. Bergmann dated: September 10, 2003, September 30, 2003, November 11, 2003, and December 18, 2003, and your letter to Ms. Susan A. Mathews, dated November 25, 2003, and as supplemented by conversations with the staff, this letter responds to your requests for interpretive guidance on behalf of the Settling Firms with respect to issues regarding Addendum A to the Global Research Analyst Settlement.1 The views contained herein represent the views of the staff of the Division of Market Regulation ("Staff"). The Staff consulted with the staff of the Division of Enforcement, as well as with the staff of the other regulators that are parties to the Global Settlement (the "other Regulators").2 These responses are not orders, or holdings of the court overseeing the Global Settlement, nor are they rules, regulations, or statements of the Securities and Exchange Commission ("Commission") or of the other Regulators. Further, neither the Commission nor the other Regulators have approved or disapproved these interpretive answers.
Section II.7 of the Addendum provides that Commission staff may provide interpretive guidance with respect to the terms of the Addendum. These responses do not supersede the terms of the Addendum. We note in particular that Section I.10 of the Addendum prohibits all communications between Research and Investment Banking, except for a few expressly permitted communications. These responses also do not relieve any Settling Firm of any applicable legal obligation or of the requirements of the federal securities laws or self-regulatory organization rules.
The below responses are based on the facts and circumstances as you have presented them to us. We reserve the right to change these responses if, inter alia, (i) the facts or circumstances as we understand them change; (ii) the facts and circumstances were inaccurately described to us; or (iii) we determine that such action is necessary or appropriate in furtherance of the objectives of the Addendum.
Question 1:	Can non-equity capital markets (non-"ECM") Investment Banking personnel and Research personnel communicate directly with each other with regard to the preparation of internal-use memoranda and other efforts to educate the sales force?
Answer: No. Non-ECM Investment Banking personnel and Research personnel may not communicate with each other regarding the preparation of internal-use memoranda and other efforts to educate the sales force.
Question 2: Can non-ECM Investment Banking personnel listen to (in "listen-only" mode) Research personnel efforts to educate the sales force?
Answer: Section I.10 of Addendum A prohibits non-ECM Investment Banking personnel and Research personnel from engaging in any communication unless expressly permitted. Section I.10.d. permits only ECM personnel (i.e. the group within Investment Banking whose principal job responsibility is the pricing and structuring of transactions) to participate with Research in efforts to educate the sales force once the firm has received an investment banking mandate. While non-ECM Investment Banking personnel may not participate with Research in efforts to educate the sales force, we believe that it is not inconsistent with the Addendum to permit non-ECM Investment Banking personnel to listen in ("listen-only" mode, not identified as being present), from a remote location.
Question 3: Research personnel often have daily calls with the sales force (often called "morning calls", but which can occur at other periods during the trading day), provide to the sales force their daily notes, send "blast" voicemails to the sales force, and/or provide other information regarding particular companies or general industry or market conditions or developments. Such morning calls and other activities may occur both in the context of a particular transaction (i.e., in the context of a publicly announced deal) or in a non-deal context. Can Investment Banking personnel listen (in "listen-only" mode) to these calls and have access to such daily notes and blast voicemails and other information provided to the sales force? Is Investment Banking access to these calls that is not from a remote location still permissible so long as a chaperone is also present?
Answer: Section I.10 generally prohibits all communications between Research and Investment Banking unless expressly permitted. Certain of the permitted communications allow Investment Banking to obtain Research views on a variety of matters. For example, Section I.10.a. permits Investment Banking to seek the views of Research regarding, among other things, market or industry trends, conditions or developments. Therefore, we believe that it is not inconsistent with the objectives of Section I.10 to permit Investment Banking personnel to listen in ("listen-only" mode, not identified as being present) on widely disseminated communications to the sales force, such as morning calls, daily notes, and blast voicemails that are in a non-deal context or that relate to a publicly announced deal. Investment Banking may have access to these communications only from a remote location.
Question 4:	Are company-specific discussions between analysts and investment bankers permissible even if such discussions are not within an overall industry discussion or part of vetting a specific transaction? For example, can a banker call an analyst regarding a company not currently contemplating a transaction in order to get better educated about the company?
Answer: Section I.10 of the Addendum does not permit company-specific discussions between analysts and investment bankers if such discussions are not in connection with Investment Banking seeking Research's views on the merits of a proposed transaction, a potential candidate for a transaction, or market or industry trends, conditions or developments. Section I.10 of the Addendum permits Research personnel to respond to inquiries from Investment Banking on these subjects only through Research Management or in the presence of legal or compliance staff. In addition, Section I.10 of Addendum A permits Research personnel, through Research Management or in the presence of legal or compliance staff, to initiate communications with Investment Banking personnel relating to market or industry trends, conditions or developments, provided that such communications are consistent in nature with the types of communications that an analyst might have with investing customers.
We note that Section I.10 of the Addendum also provides that any communications between Research and Investment Banking personnel cannot be made for the purpose of having Research personnel identify specific potential investment banking transactions.
Question 5:	Can ECM and non-ECM Investment Banking personnel listen (in "listen-only" mode, not identified as being present) to Research calls with a group of investors? In a non-deal context, can ECM and non-ECM Investment Banking personnel also access Research calls with investors, so long as, if access is not from a remote location, a chaperone is present?
Answer: Neither ECM nor non-ECM Investment Banking personnel may listen in on, or otherwise access, any Research call with any individual investor or group of investors.
Question 6: Can Research personnel listen (in "listen-only" mode) to, or view a live Webcast of, an Investment Banking or company-sponsored roadshow or other presentation to investors or the sales force?
Answer: Section I.11.a. of the Addendum prohibits Research from participating in company-sponsored or Investment Banking-sponsored road shows relating to a public offering or other investment banking transaction. After the firm has received an investment banking mandate, we believe that it would not be inconsistent with the prohibition of Section I.11.a. to permit Research personnel to listen to ("listen-only" mode, not identified as being present), or view a live Webcast of, a roadshow or other widely attended presentation to investors or the sales force, so long as access is from a remote location (i.e. not at the same address as Investment Banking, investors, or the sales force). If the road show or other widely attended presentation to investors or the sales force is conducted at the firm's offices, Research personnel may listen-in from the same address as Investment Banking, investors, or the sales force, but may not be in the same room as Investment Banking, investors, or the sales force.
Question 7: Addendum A permits Investment Banking input in Research decisions regarding coverage of categories, but does not explicitly provide for a means of communication between Investment Banking and Research with regard to such matters.
Can Investment Banking management and Research Management communicate with each other regarding these category-by-category decisions?
Do these communications need to be chaperoned?
Answer: (a) Section I.7 permits Investment Banking input into category-by-category coverage decisions. Thus, Investment Banking management and Research Management may communicate with each other regarding category-by-category coverage decisions contemplated in Section I.7 of Addendum A. These communications regarding category-by-category coverage decisions may involve discussions of individual companies to the extent necessary to have a discussion about a category. We note that Section I.7 prohibits Research Management and Investment Banking management from communicating with each other regarding company-specific coverage decisions.
(b) Such communications between Investment Banking management and Research Management do not need to be chaperoned. As the term is used in Section I.10.a. of the Addendum and throughout this document, we would expect that "Research Management" would not include Research personnel who cover the particular company, industry, or sector that is the subject of the communication, or who review or edit research reports on the particular company that is the subject of the communication.
Question 8:	After Research Management has made a decision regarding initiations and terminations of research coverage, can Research Management communicate its coverage plans, as well as the names of analysts assigned to cover particular companies or sectors, to Investment Banking?
Answer: Section I.7 of Addendum A prohibits Investment Banking from having input into company-specific coverage decisions. The Staff believes that, once Research has made a final, independent decision regarding its coverage plan, concerns no longer exist regarding Investment Banking influencing Research's coverage decision.
Therefore, if Research Management has made a final decision regarding its coverage plan, Research Management may inform Investment Banking (in writing) of its coverage plan (including a list of initiations, terminations, and the names of analysts assigned to cover particular companies). In addition to including information on initiations and terminations, the plan may include information on any final determination not to pick up coverage on a company. Research Management may provide this information to Investment Banking whether or not an inquiry was initiated by Investment Banking.
Question 9: (a) Can Investment Banking personnel ask Research Management whether it has made a decision to provide or decline to provide coverage of a particular company and can Research Management respond to such a question? Can Research Management inform Investment Banking personnel of its decision to provide or decline to provide coverage on its own initiative? (b) If the answer to any of these questions is "yes", can Investment Banking inform the company of Research's decision and, if applicable, the name and telephone number of the coverage analyst?
Answer: (a) Section I.7 of the Addendum provides that Investment Banking may not have input into company-specific coverage decisions. Permitting Investment Banking to contact Research in order to inquire about company-specific coverage decisions may give rise to Investment Banking communicating its views about the company to Research. Accordingly, Investment Banking may not contact Research Management to ask whether a decision has been made to provide coverage of a particular company. However, Investment Banking may ask Research Management for Research's written coverage plan, including information on initiations, terminations, and any final determination not to pick up coverage on a company and, as discussed above, Research Management may provide it to Investment Banking.
(b) The Addendum does not address communications between Investment Banking and companies. Firms should consider the facts and circumstances of a particular situation in determining whether a specific communication is consistent with the terms of the Addendum. Firms must also bear in mind that, under Section II.4.a. of the Addendum, a firm "may not knowingly do indirectly that which it cannot do directly under [the] Addendum."
Question 10:	Can the pitch book or other presentation materials for an offering or other investment banking transaction (including, e.g., in connection with an M&A pitch) include the name, biography, and industry ranking of, and a list of the companies covered by, the analyst that will be assigned to cover the company? In a non-IPO context, can the pitch book or other presentation materials include quotes or summaries of various analysts' views (and/or graphs, charts, and other data compiled by such analysts), including those of an analyst employed by the firm, on the company or the industry?
Answer: No. Section I.9 of Addendum A prohibits Research involvement in efforts to solicit investment banking business (i.e. "pitches"). In the context of a solicitation of investment banking business, we believe it would be inconsistent with the objectives of Section I.9 of the Addendum to include any information regarding any research analyst employed by the firm or their views in a pitch book or other presentation materials.
Question 11:	Section I.10 of Addendum A requires that certain communications between Research personnel and Investment Banking personnel be chaperoned by internal legal/compliance staff. Section I.2 of Addendum A requires that Research have its own dedicated legal and compliance staff. May communications requiring chaperoning be chaperoned by legal or compliance staff not dedicated to Research?
Answer: Addendum A permits certain communications to occur between Research and Investment Banking so long as they are effected through Research Management or are made in the presence of internal legal or compliance staff (a "chaperone"). Trained internal legal or compliance personnel that are dedicated to the Research department may perform chaperoning. We believe that it would not be inconsistent with the Addendum if legal or compliance personnel within the firm (such as control room personnel), properly trained specifically regarding Research and Investment Banking conflicts and the terms of the Addendum, act as chaperones. However, legal or compliance personnel that are primarily engaged in supporting the firm's investment banking department may not perform chaperoning.
Question 12: May Investment Banking personnel and Research personnel participate in un-chaperoned communications directly with each other solely for the purpose of scheduling a call for which chaperoning is required?
Answer: The Staff would not recommend that the Commission take enforcement action if: (i) Research administrative or clerical personnel and Investment Banking administrative or clerical personnel engage in un-chaperoned communications directly with each other in which the only information exchanged is that necessary in order to schedule a call for which chaperoning is required; or (ii) if professional Research personnel communicate directly with Investment Banking administrative or clerical personnel, or professional Investment Banking personnel communicate directly with Research administrative or clerical personnel, without a chaperone, in order to schedule a call for which chaperoning is required in which the only information exchanged is that necessary to schedule a call for which chaperoning is required.
Question 13: After the vetting process has been initiated by Investment Banking, may Research communicate to Investment Banking their views regarding the merits of a proposed transaction or candidate for a transaction as such views continue to evolve or develop over time and without specific additional prompting by Investment Banking?
not made for the purpose of having the analyst identify a specific potential transaction.
Question 14:	Addendum A permits Investment Banking to seek, through Research Management or in the presence of internal legal or compliance staff, the views of Research personnel regarding industry trends. In this context, may individual companies be included in the context of an industry discussion?
consistent with the types of communications that an analyst may have with investing customers.
Question 15:	Can Investment Banking and Research personnel communicate with each other with regard to a published research report or the impact of a company event on a company covered by Research (such as, for example, an earnings release)?
be consistent with the types of communications that an analyst may have with investing customers.
Section I.10 of the Addendum permits Research personnel to respond to inquiries from Investment Banking on these subjects only through Research management or in the presence of legal or compliance staff. In addition, Section I.10 of Addendum A permits Research personnel, through Research Management or in the presence of legal or compliance staff, to initiate communications with Investment Banking personnel relating to market or industry trends, conditions or developments, provided that such communications are consistent in nature with the types of communications that an analyst might have with investing customers and not made for the purpose of having the analyst identify a specific potential transaction.
Question 16:	Analysts often make their detailed models on covered companies available to investing customers or the sales force (e.g., through general mailing lists or website postings). Can Investment Banking request and obtain this information from the analyst through Research Management or in a chaperoned communication with the analyst?
Answer: We believe that it is not inconsistent with the Addendum for Investment Banking to have access to information that has been widely disseminated by Research to investing customers or the sales force. Therefore, so long as the models have been widely disseminated (including, e.g., via website posting) to investing customers or the sales force, Investment Banking can independently obtain such models, so long as Investment Banking does not communicate with Research in obtaining the models or in any other way not permitted by the Addendum. Settling Firms must maintain records sufficient to show that such models have been widely disseminated to investing customers or the sales force.
Question 17:	An Investment Banking client, or potential Investment Banking client, may request to see (or to get access via the internet to) previously published reports of the firm on the company or on other companies within the same sector or industry. Since the company can get the published reports from other sources (though it may be more inconvenient for them to do so), can Investment Banking provide or arrange for Research (or another department in the firm) to provide such previously published reports to the company?
Answer: At the request of a company, Investment Banking can provide, or arrange for the firm's operations department (or other department outside of Research) to provide, such previously published research reports on the requesting company or other companies.
Question 18:	If a company asks Investment Banking to arrange a meeting between the company and the analyst who will be assigned to cover the company, and Investment Banking tells the company that the company must call Research Management or the analyst directly to arrange such a meeting, can Investment Banking give the analyst a "heads up" and tell the analyst that the company may call?
Answer: Permitting Investment Banking to contact an analyst to give notice of a potential call from an issuer may give rise to Investment Banking communicating its views about the company to the analyst. Investment Banking may not contact an analyst to give notice of a potential call from an issuer.
Question 19: If a company requests a meeting with an analyst, can the analyst attend the meeting and respond to questions posed by the company, including, for example, questions regarding the analyst's views as to pricing and valuation?
Answer: The Addendum does not generally address Research communications with issuers. However, Section I.9 of the Addendum prohibits Research from having any communication with companies for the purpose of soliciting investment banking business. Investment Banking personnel must not be present during, or participate in, any communications between Research and an issuer.
Question 20:	Must a Settling Firm that acted as the "prime broker" for a customer comply with the periodic account statement disclosure requirements if it did not act as the sole executing broker for all transactions reflected on an account statement?
Answer: Prime brokerage is a service developed by full-service broker-dealers to facilitate the clearance and settlement of securities trades for substantial retail and institutional investors who are active market participants. See Letter re: Prime Broker Committee Request (Jan. 25, 1994). Prime brokerage involves three distinct parties: the prime broker, the executing broker, and the customer. The prime broker is a registered broker-dealer that clears and finances the customer trades executed by one or more other registered broker-dealers ("executing broker") at the request of the customer. Each of the executing brokers receives a letter from the prime broker agreeing to clear and carry each trade placed by the customer with the executing broker where the customer directs delivery of money or securities to be made to or by the prime broker. Section III.1.i. of the Addendum requires that Settling Firms disclose in periodic account statements the ratings, if any, contained in the firm's own research reports and in the Independent Research made available by the firm on the Common Stock of Covered Companies. It is our view that, given the characteristics of prime brokerage customers (i.e. active market participants with substantial account holdings using multiple executing brokers), if a Settling Firm is a prime broker as contemplated by the above referenced letter, the Settling Firm need not comply with the periodic account statement disclosure requirement with respect to such transactions.
Question 21:	If a firm engages in communications only with an investment adviser regarding orders submitted on behalf of a discretionary account client of the adviser, but the firm sends the related confirmations and account statements directly to the beneficial owner of the account, who is considered the firm's "customer" for purposes of the notice, confirmation, and account statement disclosure requirements?
Answer: As discussed above, Section III.1. of Addendum A requires that Settling Firms provide notice of the availability of Independent Research in connection with certain solicited orders, and requires that Settling Firms disclose in confirmations and periodic account statements the ratings contained in the firm's own research reports and in Independent Research. Since the adviser, and not the beneficial owner, exercised the discretion with respect to the solicited transaction, the investment adviser is the Settling Firm's customer for purposes of the notice, confirmation, and account statement disclosure requirements.
Question 22:	Are indications of interest submitted electronically via Autex, Bloomberg, FIX, or similar third party or proprietary electronic protocols, subject to the notice requirement, trade confirmation ratings disclosure, and periodic account statement disclosure requirements?
Answer: Section III.1. of Addendum A requires that Settling Firms provide notice of the availability of Independent Research in connection with certain solicited orders, and requires that Settling Firms disclose in confirmations and periodic account statements the ratings contained in the firm's own research reports and in Independent Research. The Staff notes that institutional market participants are the primarily users of such third party electronic systems. Indications of interest are not orders and therefore would not in themselves trigger the disclosure requirements. Indications of interest transmitted by third party or proprietary electronic systems may result in orders from customers. However, in light of the logistics of the operation of these systems and the difficulty of identifying orders that result from electronically transmitted indications of interest, indications of interest transmitted electronically through a third party or proprietary electronic system are not subject to the Notice Requirement. Positions in the Common Stock of Covered Companies reflected on periodic account statements, including positions resulting from electronically transmitted indications of interest, are subject to the periodic account statement disclosure requirements of Section III.1.i. and k. of the Addendum.
Question 23: Since trade confirmations may, at the customer's direction, be sent to the prime broker instead of the customer, may firms acting as executing brokers, instead of including ratings on the confirmation, provide an annual notice to the customer stating that the customer can receive current ratings information by visiting the website location(s) specified in the notice?
Question 24: Are ratings disclosures required on periodic account statements provided to customers who trade on a DVP basis with respect to any "open fail" or "yet to settle" transactions shown on such statements?
Answer: We understand "open fails" to refer to trades for which the scheduled settlement date has passed, but for which settlement has not occurred (i.e., "failed trades'"). We also understand "yet to settle" trades to refer to trades that have been executed, but for which the scheduled settlement date has not arrived (i.e., "pending trades"). Unless an exemption from the Notice Requirement of Section III.1.c. applies, these customers would receive disclosure of ratings as required by Sections III.1.d through i, either on the trade confirmation, or on a website (provided that doing so would not violate Section 5 of the Securities Act of 1933 or the other provisions of the federal securities laws or the rules and regulations thereunder4). Therefore, we believe that it is not inconsistent with the Addendum not to include ratings disclosures on periodic account statements that are provided to customers who trade on a DVP basis with respect to "failed trades" or "pending trades."
Question 25:	Section I.1.a. of the Addendum defines the term "firm" to include affiliates. Does this require that all affiliates of the Settling Firms (other than exempt investment adviser affiliates) post on their websites analyst performance data (see Section II.2 of the Addendum) and a notice of the availability of Independent Research (see Section III.1.k. of the Addendum)?
Answer: The analyst performance data disclosure requirements of Section II.2 of the Addendum and the notice of the availability of Independent Research disclosure requirements of Section III.1.k. of the Addendum must be posted on a Settling Firm's affiliate's website (provided that doing so would not violate Section 5 of the Securities Act of 1933 or the other provisions of the federal securities laws or the rules and regulations thereunder5) only if such affiliate prepares, distributes, or makes available its own research to customers in the United States, or the affiliate distributes or makes available a Settling Firm's research to customers in the United States.
Question 26:	Can both Research and Investment Banking personnel participate (i.e., attend, appear on panels, or ask questions during general or "break-out" sessions) in widely-attended conferences without a chaperone also being present?
Answer: Section I.10.e. of the Addendum permits Research to attend or participate in a "widely-attended conference" attended by Investment Banking personnel or in which Investment Banking personnel participate, provided that Research personnel do not participate in activities otherwise prohibited therein. Research and Investment Banking personnel may also attend or participate in "widely-attended" portions of such conferences. Although no chaperone is necessary, we note that these conferences should not be used as a means for Research to market Investment Banking services.
We also note that Section I.10.g of the Addendum provides that communications between Research and Investment Banking personnel that are not related to Investment Banking or Research activities may take place without restriction. Under no circumstances may Research and Investment Banking engage in communications prohibited under Section I.10 of Addendum A.
Question 27:	In connection with a firm-sponsored conference, can Research and Investment Banking communicate with each other regarding the selection of speakers, the attendee invitation list, general conference logistics, and arranging for Investment Banking personnel to appear on a panel at a Research conference and vice-versa?
occur solely between Investment Banking management and Research Management, or, if between Investment Banking and Research personnel other than Research Management, are chaperoned by legal or compliance personnel.
Question 28: Can both Research and Investment Banking personnel participate in social and athletic events organized in connection with a conference?
Answer: Section I.10.e. of Addendum A permits Research to attend or participate in a "widely-attended conference" attended by Investment Banking personnel or in which Investment Banking personnel participate, provided that Research personnel do not participate in activities otherwise prohibited in Addendum A. Research and Investment Banking may participate in social or athletic events open to large groups of conference participants, but Research and Investment Banking personnel may not arrange or influence seating (or athletic pairings, foursomes, or similar arrangements) in order to place particular corporate clients and bankers or analysts together, and Research and Investment Banking may not participate together in groupings where corporate clients or potential corporate clients also participate. Research and Investment Banking also may not participate jointly in limited invitation small group socials or athletic events organized with corporate clients (or prospective clients) in connection with a conference.
Question 29:	Once a foreign company is determined to have a "principal equity trading market" in the United States, do the provisions of Sections I and II of Addendum A continue to apply to research reports prepared in respect of such company even if it is subsequently determined that the company no longer has a principal trading market in the United States?
Answer: Section II.3 of Addendum A applies the restrictions and requirements set forth in Sections I and II to research reports prepared by the firm that relate to non-U.S. companies for which a U.S. market is the "principal equity trading market," as defined in Section II.3.c. If a non-U.S. company ceases to have a principal trading market in the United States for at least one full calendar quarter, the provisions of Sections I and II of Addendum A would cease to apply in respect of research reports regarding such company until such time as the United States was re-established as the principal trading market (in which event, such provisions of Addendum A would apply from the second calendar quarter following such event).
Subject to all the conditions and restrictions set forth in Addendum A, analysts may be compensated for vetting Investment Banking transactions. As you pointed out in your February 10, 2004 memorandum to SEC Staff, Section I.5 of the Addendum does not prohibit firms from taking vetting into account in determining analyst compensation, provided that, among other things, (i) a research analyst's compensation may not be based directly or indirectly on Investment Banking revenues or results; (ii) Investment Banking has no input into professional Research personnel compensation decisions; (iii) a significant portion of the lead analyst's compensation must be based on quantifiable measures of quality and accuracy of research and analysis; (iv) the criteria to be used for compensation decisions will be determined by Research management and the firm's senior management (not including Investment Banking) and set forth in writing in advance; and (v) Research management must document the basis for each compensation decision as described in Section I.5.f. Thus, we would not expect that the number of favorable opinions an analyst issues would affect his or her compensation.
We note that Section I.10.a. of the Addendum permits Research personnel to provide Investment Banking personnel, through Research Management or in the presence of internal legal or compliance staff, with views about the merits of a proposed transaction or a potential candidate for a transaction, if such dialogue is initially prompted by Investment Banking personnel through Research Management or in the presence of internal legal or compliance staff. Sections I.10.b. and c. also permit Research personnel to engage in certain additional activities with respect to transactions. Therefore, consistent with the conditions and restrictions of the Addendum, we believe that Research personnel may be compensated for such permissible professional activities.
In addition, you asked that the Staff clarify that a firm need only look to the immediately preceding calendar quarter in initially determining whether a non-U.S. issuer is a "Covered Company" in cases where coverage of the company is initiated after July 27, 2004.
Section III 1.a (ii) of the Addendum sets forth the requirements for determining whether a non-U.S. company for which a U.S. market is not the principal equity trading market falls under the Addendum's definition of "Covered Company." The Addendum states that a non-U.S. company for which a U.S. market is not the principal equity trading market shall only be considered a Covered Company if: (a) in the calendar quarter ended March 31, 2004, or in any subsequent calendar quarter during the period that the firm's obligations to procure and make available Independent Research under Section III are effective, the publicly reported, average daily dollar volume of U.S. trading in such company's Common Stock (measured by multiplying the publicly reported, average daily share volume of U.S. trading during the quarter by the closing price per share of the Common Stock on the last day of the quarter), exceeded $2.5 million, and (b) the outstanding total public float of the Common Stock as of the last day of such calendar quarter exceeded $150 million, or, if the data necessary to calculate the outstanding total public float is not readily available, the market capitalization of the Common Stock as of the last day of such calendar quarter exceeded $150 million.
With respect to a company on which coverage is initiated after the firm's obligations to procure and make available Independent Research under Section III are effective, the firm must look to the immediately preceding calendar quarter prior to such initiation in determining whether, as of the time of initiation, the company falls under the Addendum's definition of "Covered Company." From that point onward, the firm must determine whether the non-U.S. company falls under the Addendum's definition of "Covered Company" on a quarterly basis.
Ratings Disclosure on a "Qualifying Website"
You requested clarification regarding the twelve months of Independent Research ratings and Settling Firms' ratings disclosures that would be required on a "Qualifying Website." The Addendum permits that, in certain contexts, the disclosure of ratings information may be made on a Qualifying Website instead of on a confirmation or periodic account statement. Such website must, among other things, display the ratings contained in each research report over the past twelve months. This twelve-month history will build-up over the course of the initial twelve months after the firm's obligations to procure and make available Independent Research under Section III are effective, and adjust on a rolling basis thereafter. Therefore, we would expect that on December 31, 2004, the ratings information displayed on the Qualifying Website must cover the period from July 27, 2004 through December 31, 2004.
Should you have any additional questions regarding this matter, please do not hesitate to contact the undersigned, Racquel Russell, or Brad Owens at (202) 942-0772.
1 The terms of the Global Settlement that relate to research are available on the SEC website at http://www.sec.gov/spotlight/globalsettlement.htm ("Addendum A" or the "Addendum"). Only the firms that were defendants in the enforcement actions that relate to the Addendum are bound by the restrictions and requirements of the settlement (the "Settling Firms"). See SEC v. Bear, Stearns & Co. Inc., No. 03 Civ. 2937 (WHP); SEC v. Citigroup Global Markets Inc., No. 03 Civ. 2945 (WHP); SEC v. Credit Suisse First Boston LLC, No. 03 Civ. 2946 (WHP); SEC v. Deutsche Bank Securities Inc., No. 04 Civ. 6909 (WHP); SEC v. Goldman, Sachs & Co., No. 03 Civ. 2944 (WHP); SEC v. J.P. Morgan Securities Inc., No. 03 Civ. 2939 (WHP); SEC v. Lehman Brothers, Inc., No. 03 Civ. 2940 (WHP); SEC v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 03 Civ. 2941 (WHP); SEC v. Morgan Stanley & Co. Incorporated, No. 03 Civ. 2948 (WHP); SEC v. Thomas Weisel Partners LLC, No. 04 Civ. 6910 (WHP); SEC v. UBS Securities LLC, No. 03 Civ. 2943 (WHP); and SEC v. U.S. Bancorp Piper Jaffray Inc., No. 03 Civ. 2942 (WHP).
2 The Global Settlement followed joint investigations by regulators of allegations of undue influence of investment banking interests on research.
3 See Section III.1.l. of Addendum A.

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Jeanette Bayoumi is an associate at Hausfeld’s New York office. As part of the dynamic litigation team at Hausfeld, Jeanette’s work spans a wide array of practice areas, including Hausfeld’s Antitrust, Financial Services and Securities, Environmental, and Human Rights practice areas.
Jeanette is currently working on a variety of cases including In re American Express Anti-Steering Rules Antitrust Litigation, a multidistrict litigation class action lawsuit consolidated in the Eastern District of New York. In that case, Hausfeld represents a class of merchant plaintiffs alleging that American Express’ Anti-Steering Rules, which prohibit merchants from steering consumers towards using other credit and charge cards to pay for purchases, unreasonably restrain interbrand price competition among credit and charge card networks thereby affecting the two-sided market. Jeanette is also involved in cases such as In re Chicago Board Options Exchange Volatility Index Manipulation Antitrust Litigation, MDL No. 2842 (N.D. Ill.), a multidistrict litigation class action lawsuit consolidated in the Northern District of Illinois alleging manipulation of the CBOE Volatility Index (“VIX”), known as the U.S. stock market’s “fear gauge,” and In re Mexican Government Bonds Antitrust Litigation, a multidistrict litigation class action lawsuit alleging manipulation of the Mexican Government Bonds market.
In addition, Jeanette is a member of the Suffolk County Water Authority v. The Dow Chemical Company et al., 17-6980 (E.D.N.Y.) and Suffolk County Water Authority v. The 3M Company et al., 17-6982 (E.D.N.Y.) case teams. Filed against the manufacturers of toxic chemicals that have polluted the Authority’s public supply wells, these water contamination cases allege that the defendants, who knew or should have known of the environmental risks of their defectively-designed products, must bear responsibility for the costs of treating the contaminated water and protecting the public from harm.
Jeanette is also an active participant in the firm’s pro-bono work. Notably, she is part of the Hausfeld team which, in early 2018, filed four separate lawsuits in federal courts located in California, Massachusetts, South Carolina, and Texas, each alleging that the winner-take-all system of the electoral college violates the U.S. Constitution and distorts presidential campaigns. The multiple plaintiffs in these four cases, including the largest Latino membership organization in the U.S., LULAC, seek to establish a more democratic system of voting for the President. See Rodriguez, et al. v. Brown, et al., No. 18-cv-01422 (C.D. Cal.); Lyman, et al. v. Baker, et al., No. 18-cv-10327 (D. Ma.); Baten, et al. v. McMaster, No. 18-cv-00510 (D.S.C.); and League of United Latin American Citizens, et al. v. Abbott, et al., No. 18-cv-00175 (D. Tex.).
Prior to joining Hausfeld, Jeanette worked at the Financial Industry Regulatory Authority, where she strove to protect investors trading on the Nasdaq Stock Market and the New York Stock Exchange. During this time, she gained extensive experience in the fields of securities law and securities regulation. Preceding this work, Jeanette was part of the U.S. Securities and Exchange Commission Honor’s Program, where she worked with the Office of International Affairs, aiding attorneys on international and securities related issues.
Jeanette attended law school at the Washington College of Law at American University, where she was a member of the American University International Law Review. During law school Jeanette worked as a summer associate with a Turkish law firm, based in Istanbul, Turkey, where she was engaged in resolving European Union competition law challenges. Prior to American University, she graduated from Georgetown University’s School of Foreign Service with a B.A. in International Politics. She remains actively involved in Georgetown University’s alumni community, serving as part of the school’s admissions interviewing program.
In her free time, Jeanette enjoys painting, and she has exhibited her work at multiple exhibitions. Coming from an international background, and being fluent in Arabic and proficient in French, Jeanette loves to travel and explore new cultures and languages.
Are Nationwide Classes at Risk for Overturned Settlements following the Ninth Circuit’s Ruling in Hyundai?

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Private conversation with Graham Wood of Oracle Corporation's Server Technologies group.

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A flurry of citable decisions in the last few months of 2005 brought the final total of TTAB citable decisions for the year to 18. The 2004 tally of 13 pales in comparison.
The issue that caught the particular attention of the Board in 2005 was the genericness of Internet domain names. In three cases it deemed a domain name to be generic: BLINDSANDDRAPERY.COM, SPORTSBETTING.COM, and LAWYERS.COM. Perhaps this TTAB focus was a response to the CAFC’s rulings on the same or related issues in its STEELBUILDING.COM (In re Steelbuilding.com, 75 USPQ2d 1420 (Fed. Cir. 2005)), and PATENTS.COM (In re Oppedahl & Larson LLP, 71 USPQ2d 1370 (Fed. Cir. 2004)) decisions. In the three TTAB decisions, the Board distinguished one or both of the CAFC cases, noting that in Steelbuilding the word “steelbuilding” is a double entendre, and in Oppedahl that only in exceptional cases will a top-level domain name (TLD) have trademark significance.
Decisions of particular note include three Section 2(d) cases: Knight Textile, in which third-party registration evidence led the Board to dismiss an opposition involving the addition of Applicant’s house mark NAUGHTON McNAUGHTON to the Opposer’s registered mark ESSENTIALS; Blue Man Productions, wherein the Board set a high standard for proof of fame in a Section 2(d) context; and Carefirst of Maryland, in which the Board found the marks CAREFIRST and FIRSTCAROLINACARE not to be “identical or very or substantially similar,” as required for a dilution claim.
Two other decisions, however, were of questionable merit: Isabella Fiore, in which the Board applied the doctrine of foreign equivalents in a Section 2(e)(4) context without any analysis of the purpose of the surname refusal; and Vignette, wherein the Board seemed to encourage discovery gamesmanship by allowing a party to delay the revelation of information until disclosure was convenient.
Set out below is a list of the citable decisions, arranged by category and accompanied by a comment or two regarding each. Of course, these brief summaries are no substitute for the full reading that each decision deserves.
Krause v. Krause Publications, Inc., 76 USPQ2d 1904 (TTAB 2005). In a rare Section 2(c) decision, the Board granted a petition for cancellation of a registration as to 3 of 4 classes, finding that Petitioner would be connected with some of the goods and services in those 3 classes by persons with interest in the field of coin collecting and antique autos, but denying cancellation as to the fourth class because the general public would not connect Petitioner with certain class 41 entertainment services. The Board also found that Petitioner, although he participated in the founding and financing of Respondent, had not consented to registration of his surname. (TTABlogged here).
Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313 (TTAB 2005). Third-party registration evidence played a crucial role in the Board’s dismissal of this Section 2(d) opposition to registration of the mark NORTON MCNAUGHTON ESSENTIALS for women’s clothing. In light of the appearance of the word ESSENTIALS in 23 third-party registrations in the clothing field, the Board concluded that "applicant’s addition of its house mark [to Opposer's ESSENTIALS mark] ... suffices to distinguish the two marks." (TTABlog discussion here).
DC Comics v. Pan American Grain Mfg. Co., 77 USPQ2d 1220 (TTAB 2005). Applicant's bad faith in choosing its mark was an important factor in the Board's decision sustaining this opposition to registration of KRIPTONITA for "prepared alcoholic fruit cocktail." The Board found the mark likely to cause confusion with the mark KRYPTONITE, used as a merchandising mark for a variety of goods, including several food items. (TTABlogged here).
Blue Man Productions, Inc. v. Tarmann, 75 USPQ2d 1811 (TTAB 2005). The Board found Opposer’s evidence inadequate to support its fame claim, ruling that "in view of the extreme deference that is accorded to a famous mark in terms of the wide latitude of protection that it receives, and the dominant role that fame plays in the likelihood of confusion analysis, ... it is the duty of a plaintiff asserting that its mark is famous to clearly prove it." As to Opposer’s dilution claim, the Board held that, since Opposer failed to prove the mark famous for Section 2(d) purposes, it could not possibly meet the “stricter standard" for dilution. (TTABlogged here).
Carefirst of Maryland, Inc. v. FirstHealth of the Carolinas, Inc., 77 USPQ2d 1492 (TTAB 2005). The Board chastised counsel for their disruptive and contentious behavior and then dismissed these oppositions based on Section 2(d) and dilution allegations. A thorough du Pont analysis led the Board to conclude that, in light of significant third-party use of "care" and "first" and the caution with which the services would be purchased, confusion is not likely between CAREFIRST and FIRSTCAROLINACARE for health care services. In dismissing the dilution claim, the Board found the marks not "identical or very or substantially similar," as required. (TTABlog discussion here). [This case is now on appeal to the CAFC].
In re The Place, Inc., 76 USPQ2d 1467 (TTAB 2005). Finding the mark THE GREATEST BAR to be merely descriptive of restaurant and bar services, the Board rejected Applicant's double entendre argument because the second meaning of a mark must be apparent from the mark itself, without reference to the applicant's trade dress, advertising materials, or other matter. (TTABlog discussion here).
In re Isabella Fiore, LLC, 75 USPQ2d 1564 (TTAB 2005). In this questionable decision, the Board applied the doctrine of foreign equivalents in reversing a Section 2(e)(4) refusal of the mark FIORE for sports bags, purses, and other goods in class 18. Despite the PTO's strong evidence, the Board concluded that FIORE, an Italian word meaning "flower," is "the type of term that potential customers would stop and translate," and therefore FIORE is not "primarily merely a surname." Completely lacking in the opinion is any consideration or analysis of the purpose of Section 2(e)(4), or the propriety of applying the doctrine of foreign equivalents in that context. (TTABlog discussion here).
In re Eddie Z's Blinds and Drapery, Inc., 74 USPQ2d 1037 (TTAB 2005). The Board ruled that BLINDSANDRAPERY.COM is generic for various services relating to the distribution and sale of blinds and drapery, including retail sales via the Internet. The Board took the opportunity to comment on the CAFC's Oppedahl decision by noting that, although it is possible that a TLD may have trademark significance, that will be the case only in "exceptional circumstances." (TTABlog discussion here).
In re KRB Seed Co., LLC, 76 USPQ2d 1156 (TTAB 2005). In what cannot really be dubbed a "seminal" case, the TTAB again laid down the lawn [another pun!] by reiterating that "varietal names are generic designations and cannot be registered as trademarks." Consequently it affirmed a refusal to register the term varietal name REBEL as a trademark for "grass seed." (TTABlog discussion here). [Now on appeal to the CAFC].
In re DNI Holdings Ltd., 77 USPQ2d 1435 (TTAB 2005). The Board found SPORTSBETTING.COM to be generic for various Internet gaming services (which services excluded "actual money wagers"). It wrestled with how to define the genus of the services, but concluded that the term is generic regardless of whether actual betting is included in the genus. (TTABlogged here).
In re Reed Elsevier Properties Inc., 77 USPQ2d 1649 (TTAB 2005). The Board affirmed a genericness refusal of the term LAWYERS.COM for "providing an online interactive database featuring information exchange in the fields of law, legal news and legal services." Applicant argued that its deletion of the word "lawyers" from its original recitation of services "limited its covered services," but the Board found the genus to include the provision of "information about lawyers and information from lawyers." (TTABlog discussion here).
First Niagara Ins. Brokers Inc. v. First Niagara Financial Group, Inc., 77 USPQ2d 1334 (TTAB 2005). The Board dismissed a Section 2(d) opposition because the Canadian Opposer failed to establish "use of its pleaded marks on insurance brokerage services regulable by Congress." Finding Opposer's activities in the U.S. to be "minimal and incidental," the Board ruled that Opposer "cannot establish priority and cannot prevail on its claim of likelihood of confusion." (TTABlogged here).
Pioneer Kabushiki Kaisha v. Hitachi High Technologies America, Inc., 74 USPQ2d 1672 (TTAB 2005). The Board exercised its power to control discovery under FRCP Rule 26 in granting a protective order prohibiting three depositions and limiting three others as to duration and scope, and also by ordering Applicant to request certain documents from its survey expert and produce them, or file a declaration explaining why it could not. (TTABlog discussion here).
Vignette Corp. v. Marino, 77 USPQ2d 1408 (TTAB 2005). In a decision that seems to encourage discovery gamesmanship, the Board denied Opposer's summary judgment motion on the ground that Applicant's declaration submitted in opposition to the motion raised a genuine issue of material fact, even though Applicant had failed to provide the same information in response to earlier discovery requests. The Board did not require Applicant to provide "substantial justification" for his withholding or show that no harm was done, as required by FRCP 37(c)(1). (TTABlogged here).
PPG Indus., Inc. v. Guardian Indus. Corp., 73 USPQ2d 1926 (TTAB 2005). The Board accepted an unsigned Notice of Opposition attached to an ESTTA filing that included an electronic signature, ruling that the electronic signature on the ESTTA form "pertains to any attachments." (TTABlog discussion here).
In re Börlind Gesellschaft für kosmetische Erzeugnisse mbH, 73 USPQ2d 2019 (TTAB 2005). In a decision that merely reiterates what Trademark Rule 2.102(a)(2) says, the Board issued a "wake-up" call to the TTAB bar, highlighting the Madrid Protocol-related rule change that requires an opposition against a Section 66(a) application to be filed electronically, not on paper. (TTABlogged here).
Turbo Sportswear, Inc. v. Marmot Mountain Ltd., 77 USPQ2d 1152 (TTAB 2005). Although the case was already in Opposer's testimony period, the Board granted an Applicant's motion to add counterclaims seeking cancellation of five asserted registrations, on the ground of fraud. The Board found the motion timely because it was based on evidence of non-use of the pleaded marks that was not previously available to Applicant. (TTABlogged here).
Text and Photographs Copyright John L. Welch 2005-2006.

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