As featured in Marketwatch, a mutual fund is now changing its name from Live Strong, given the disgrace that Mr. Armstrong has brought on his brand. While the F. Scott Fitzgerald maxim (soon to be rekindled when the new version of Gatsby hits the screen) that there are no second acts in America has been disproven many times, there are certain trademarked brands that go away forever. When the scourge of AIDS hit in the ‘80s, the diet supplement AYDS just died.  Marks are meant to bring about positive associations and not derision.  


As featured on KPCC’s Take Two  the Justice Department is poised to sue Lance Armstrong for unjust enrichment, demanding that he return the reported $14 to $16 million that he pocketed as spokesperson for the U.S. Postal Service. The problem is, according to KPCC, the Postal Service realized roughly $140 million as a result of the campaign. Don’t ask me how they came up with that number.  The Service is obviously not going to return that money to consumers and is faced with larger problems than this (in eight figures or more). His argument will likely be that he delivered the sizzle, regardless of how he got there. To be continued…


By Jeffrey S. Kravitz, Esquire

Armstrong’s troubles continue. His book, titled It’s Not About the Bike, was a big seller. Now a class action has been filed by two who say they bought the book based on his claims that he had not doped. I handled a similar case that I won because the allegedly deceptive statement was in the packaged dvd and buyers had already made their purchase decision by the time that they were exposed to it. It is chronicled in a published opinion Rice v Fox and is (blush) oft cited.


Another interesting case was the old woman’s investment club book, that should have been housed in the fiction section of bookstores. The claim was that they consistently beat the market way up there in Marin, when in fact they had not. Cali court threw the case out on the grounds that the inside leaf of the book was not advertising. The New York courts went the other way on exactly the same facts!!!! Rare to see these cases, which are on the border between free speech and unfair advertising. Stay tuned on this one. 

By Jeffrey S. Kravitz, Esq. and Sekou Campbell, Esq.

I have been privileged in the past to represent the Trek Bicycle Company. Hugely energetic, straightforward and forward thinking people, making a superior product. Having said that, I was in their offices in Wisconsin when Lance Armstrong’s book came out, which he titled It’s Not About the Bike.  For what the were paying him, how could it not have been about the bike?  For years, Trek used Armstrong as their spokesperson and the identity of the two worked perfectly. Now we learn that if it was not about the bike, it clearly was about something else.  Armstrong never tested positive and yet there were apparently legions of witnesses willing to say that he had doped.

Now for a different view… do you judge someone who cheats death by testicular cancer?  For that matter, how do you judge a runner who has both legs amputated and runs with the aid of metal blades?  I have never been a fan of moral relativism, but I am reminded of the great line from the movie "Ray" where his wife confronts him with his unfaithfulness. His retort (paraphrased) is that when he walks out of the door of his home, each time he is alone, blind and black. Query: does Trek have a suit against Armstrong for violating a morals clause or for fraud or breach of contract? Second query: given the results in the Roger Clemens trial, what jury would find against him?


Whether it’s bikes, blades, blindness, or biotechnology, humankind will likely always struggle with its limitations and the moral implications of the inventions it comes up with to overcome them. Or, to put it more eloquently:

Yet nature is made better by no mean

But nature makes that mean: so, over that art

Which you say adds to nature, is an art

That nature makes…

The art itself is nature.

William Shakespeare, A Winter’s Tale.


A few years ago, Lance Armstrong wrote a bestseller titled “It’s Not About the Bike" to highlight his personal triumph, despite a sponsorship deal with Trek Bicycle Company.  In something of a reversal of that theme, on January 19, 2010, reported Stephon Marbury has agreed to join Shanxi of the Chinese Basketball Association in order to better promote his shoes.  

Would be most interested to see his shoe contract there in light of the varying standards for intellectual property and contract law in the former Peoples’ Republic.  Whatever leverage sports agents have in the ‘States in terms of choice of venue, forum, and remedies falls into terra incognita when doing business in China.  And the Chinese are not likely to bend on these issues despite any acting out by Herr Marbury.