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<xTITLE>It is All a Matter of Perspective</xTITLE>

It is All a Matter of Perspective

by Phyllis Pollack
December 2019

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Christmas is not a time nor a season, but a state of mind. To cherish peace and goodwill, to be plenteous in mercy, is to have the real spirit of Christmas.” — Calvin Coolidge

I start this blog with this quote because the Christmas season tends to change our perspective on life. It is a season of goodwill towards our fellow persons  and of hope. It is a time for reflection and to realize once again that not everyone sees the world the same way as we do. And just because they do not, it does not mean that they are uninformed  or biased; they just see the world through a different lens, no less valid than our own.

The importance of perspective arises out of a case my husband just argued before the Federal Circuit Court of Appeals in Washington, D. C.  He is a Customs lawyer and so represents importers who have had their goods detained/seized et cetera by Customs and Border Protection (CBP or Customs).

The case involved the importation of disposable butane gas cannisters. As with most products, these gas cannisters displayed an Underwriters’ Laboratories (UL) certification. The manufacturer obtained this certification in 2001 and placed it on its products. Its previous shipments were labelled  differently although always containing the same code or control number indicating certification by UL.  On the shipment at issue, while each cannister was labelled “premium”,  each cannister  also had the same   control  number  indicating it was certified by UL as  on all previous shipments. Thus, the  product at issue was identical in every respect to all previous shipments except for the label “Premium”  appeared on each cannister.

While CBP has a list of products certified by UL, the list did not contain the word “Premium” in connection with these gas cannisters. So, it requested that the gas cannisters be returned to  Customs after they were released into the commerce of the United States.  However, Customs could impose a penalty if and when that redelivery did not occur.

CBP initially asked UL whether  its certification mark on these gas cannisters was genuine. Initially,  UL indicated that the certification mark was not genuine but, after further review, found that the  gas cannisters were indeed the same as what it had certified but with a different label. Yet, UL refused to give retroactive effect so that the  UL certification on that particular importation  was still “counterfeit” though if imported today, it would be genuine.

So- the issue before the appellate court was simple: is the word “premium” merely a label connoting a little bit of puffery and advertising or is it a new and different product or  model making  the UL certification counterfeit or  spurious and a false mark  on the gas cannisters?

During  oral argument, the court asked counsel whether CBP should have the burden of looking beyond its list of goods certified by UL to determine through its own comparison whether the model  is the same or different than what it on its list. The court asked, “Isn’t this placing an unreasonable burden on Customs?”

Another one of the judges queried shouldn’t UL be allowed to decide whether its own mark “UL” is real or counterfeit on any given product? Should the court usurp the province of UL on this matter and disagree with UL on the use of its own mark?

But, the court also queried that isn’t this just a label change: that is,  the same model as before but a new label placed on it?

No one knows how the appellate court will decide: whether “premium” is merely a label that is puffery and advertising or constitutes a whole new  and different model thereby causing the UL certification to be counterfeit as a false and spurious representation that the “model” has indeed been certified  by UL.

It is all a matter of  perspective. Neither side may be completely right and neither side may be completely wrong: Something that often occurs in mediation or even at trial. The same set of facts can be viewed in many ways leading to many different conclusions. No doubt, the  appellate court (like many juries) will attempt to weave a narrative that makes sense to it. To take a little bit from one side and a little bit from the other to come out with a third side of the “story.”

At this time of year, we must indeed, remember that it is all a matter of perspective; no one is completely right, no one is completely wrong.   It is simply a matter of the different way in which we view it.

…. Just something to think about.

 This is my wish for you: peace of mind, prosperity through the year, happiness that multiplies, health for you and yours, fun around every corner, energy to chase your dreams, joy to fill your holidays!” — D.M. Dellinger

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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