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UNITED STATES TAX COURT - TRIAL

ESTATE (OF MICHAEL J. JACKSON DECEASED)

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EXECUTORS: JOHN G. BRANCA. AND JOHN MCCLAIN

COMMISSIONER OF INTERNAL REVENUE (IRS)

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February 8th 2017

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Presiding Judge Mark V. Holmes

Jacksons estate is represented by Avram Salkin, Charles Paul Rettig, Steven Richard Toscher, R
obert S. Horwitz, Edward M. Robbins Jr., Sharyn M. Fisk and Lacey E. Strachan of Hochman Sa

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lkin Rettig Toscher & Perez PC, Paul Gordon Hoffman, Jeryll S. Cohen and Loretta Siciliano of
Hoffman Sabban & Watenmaker and Howard L. Weitzman of Kinsella Weitzman Iser Kump &
Aldisert LLP. ae
The
IRS is represented by its attorneys Donna F. Herbert, Malone Camp, Sebastian Voth, Jordan Mus
en and Laura Mullin.
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--------------------------------------------

VINCENT H. CHIEFFO
shareholder in Greenberg Traurig?
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Lead attorney against HTWF http://www.teammichaeljackson.com/michael-jackson-estate-vs-

htwf
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Court Clerk: If you'll state your name and address for the record.

The Witness: Vincent H. Chieffo, Greenberg Traurig, 1840 Century Park East, Los Angeles,

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90067.

Court Clerk: And if you would spell your last name for the record.

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The Witness: C-H-I-E-F-F-O.

Court Clerk: Thank you.

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DIRECT EXAMINATION

Mr. Horwitz:
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Q. Okay. Mr. Chieffo, what is your occupation?

A. I'm an attorney.
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Q. And are you a shareholder in Greenberg Traurig?

A. Yes.
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Q. And what are your areas of practice?

A. I am co-national head of the media and entertainment litigation group, and primarily my
practice has been for many years, entertainment- related media, trademark, copyrights, breaches
of contract, related matters.

Q. Do you also do right of publicity litigation?

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A. Yes. Yes.
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Q. Okay. And could you tell us something about your background beginning with law school?

A. I graduated from Columbia Law, a long time ago in 1970. I then clerked for the Honorable
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Wilfred Feinberg, then on the 2nd Circuit. I then moved out there and worked for a couple of
years for a law firm downtown. Munger, Tolles and Richershaur was its name at the time. Then I
moved to work with a gentleman by the name of Mickey Rudin who was an entertainment
transactional and litigator with a small firm in Beverly Hills.
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Q. And ...

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A. I was with him for about 14 years and then I practiced at the firm of Gibson, Homman, and
Pancione, also doing entertainment litigation and for about a decade at that time, international
film finance. And then since 2000 I've been at Greenberg.

Q. Who is Mickey Rudin?

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A. Who was Mickey Rudin?

Q. Who was Mickey Rudin?

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A. Mickey Rudin is deceased. He was an attorney, and he started his practice at Loeb and Loeb
and then moved to be partners with Martin Gang - - Gang, Tyre and Rudin at the time. He
opened his own firm when I began to work with him in 1970 ... it was either '73 or '74. He was

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representing Frank Sinatra, who he had represented from the '50s, Lucille Ball, Liza Minnelli,
Cher, a number of TV producers in a fairly large entertainment practice. And when I joined, there
were three lawyers there, so I was the fourth.
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Q. Okay. And were you involved in the representation of any of the celebrities who Mr. Rudin
represented?

A. All of them.
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Q. Okay.

A. As I mentioned, there were only four lawyers there, so.

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Q. Hard not to. Okay. Now then, what were you retained to do for the Estate of Michael
Jackson?

A. Well, a shareholder at Greenberg had begun to represent Michael in early October of 2008 and
then after Michael's death and the expected appointment, which became true, of Mr. Branca and
Mr. McClain as the personal representatives, we were retained. And I personally was involved in
the trademark litigation and overseeing the trademark protection and some litigation, cease and
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desist letters and that. And other lawyers at Greenberg did other, more transactional work.
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Q. And before representing the Estate of Michael Jackson, had you been involved in any
significant cases dealing with the right of publicity in California?

A. Yes. Cher ... at the time the firm was called Ruden, Pearlstein and Chieffo ... I supervised her
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litigation against the Forum and Penthouse. I represented the plaintiff in what's known as the
Valentino case, and I represented the Winter brothers, Johnny and Edgar Winter, in a right of
publicity case they brought against DC Comics, owned by Warner Brothers.
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Q. And could you give us a thumbnail sketch of what the issues were in the case Cher brought
against Forum and Penthouse?

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A. Cher had originally granted an exclusive interview to ...

Ms Herbert: Objection on the grounds of relevance, Your Honor.

Judge Holmes: Overruled. I'll see where it goes.

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A. All right. Cher had granted an exclusive interview to one newspaper. That newspaper and
Cher would have disputed how ... what prominence it was going to be given, so she withdrew
her permission. The author then sold it to another newspaper ... to Penthouse, and it was then

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published in Penthouse. The claims asserted in the litigation were, one, based upon wrongful use
of her name and likeness because she hadn't consented to the story, and two, on a name and
likeness claim based upon an advertisement that had published, which basically said, join Cher
and thousands of other readers and buy Forum. So we won both claims in the District Court, but

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at the Court of Appeals level ... the Appellate Court level, excuse me ... the claim based upon
the publishing of the interview was reversed. But the damage award based upon the implied
endorsement in that advertisement was affirmed.
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Mr. Horwitz:
Q. And which Court of Appeals was it?
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A. This was ...

Q. The 9th Circuit?

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A. ... the 9th Circuit. Yes.

Q. Okay. And what was involved in the Valentino case, you called it?

A. Yeah. It's the Valentino case. The plaintiff's name was Guglielmi (ph) and don't ask me to
spell it. But ... and it ... it's actually ... the Decision is the companion case to the Bela Lugosi
case. The plaintiff we represented was the nephew of the silent film star Rudolph Valentino.
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Spelling- Goldberg, a production company, had produced a television movie that was the
fictional take on Rudolph Valentino's life. We sued on name and likeness theory that because it
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was fictionalized, the actual use and advertising of Rudolph Valentino's real name was ...

Ms Herbert: I object again, Your Honor. This seems to be not anything to do with this case, or
this litigation, or Michael Jackson.
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Judge Holmes: This is all background information?

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Mr. Horwitz: It basically goes to his background and experience.

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Judge Holmes: I'll let it go in. Overruled.

A. The claim that was used was violation of infringement of name and likeness. It was ultimately
decided at the California Supreme Court. We lost the case on the basis that there was no

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common-law descendible right of publicity in California, which was in spite of the holding, the
majority holding, in the Lugosi Decision, decided on the same day.

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Mr. Horwitz:
Q. Okay. And what about the Winter case?

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A. DC Comics had published a series of comics, sort of a multi-edition comic. I think it was five
editions. And it told a story about somebody called Jonas Hex. Johnny and Edgar Winter ... if
you don't know who they are, they were ... well, Johnny's now deceased, but they're noted artists
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and they both suffered from albinism, so they had a very particular look that is common with
someone who suffers from albinism. So ... and they're both ... were very successful musicians.
They were depicted in one of the editions of the comic book as Johnny and Edgar Autumn ... not
a very heavily disguised use of their name. They were ... their pictures ... they were imaged, at
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least in their facials, to look like Johnny and Edgar and to wear costumes, particularly with
Johnny, a large stovepipe hat, which he performed in. But they were portrayed as being half-
worm/half-human. I won't explain the story. So we sued on the basis that including an
advertisement that said we have Johnny and Edgar Winter in this comic book. So we sued for
violation of their right of publicity. I think we had two ... three decisions in the Court of Appeals,
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and two in the Supreme Court. The ultimate result was I lost again. So ... and that was the basis
of the Supreme Court's decision was that the images used in the comics were sufficiently
transformed ...

Ms Herbert: I object again, Your Honor. This goes way being and the background of this
witness, and seems to be delving into some sort of expert testimony, or else something that's not
relevant in any way to this case.
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Judge Holmes: I don't want to hear legal expert witness testimony.

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Mr. Horwitz: Okay. We're not asking him ...

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Judge Holmes: I understand.

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Mr. Horwitz: ... is legal expertise.

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Judge Holmes: But move on.

Mr. Horwitz: Okay.

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Mr. Horwitz:

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Q. With respect to Michael Jackson, focusing on Michael Jackson at the time of his death, did he
have any registered trademarks in the United States?

A. Either Michael Jackson or his company Triumph, my recollection is they had two. One was a

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word mark, Michael Jackson, and one a, call it a logo mark, sort of dancing feet.

Q. And were they registered for any specific type of, or category of goods and services?
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A. Yeah. When they were registered ... when you obtain a registered trademark or even apply for
one, you designate what category in the copyright. So in the trademark law, they were ... I can't
remember the numbers, but they were basically for music, music-related performance, recorded
music, audiovisual.
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Q. Any for general merchandise?

A. No. Not ... there were not any registered at the time of his death.
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Q. And were ... at the time of his death, had there ... he ... did he have any registered
trademarks that had lapsed?

A. Yes. I mean over time, Michael Jackson and his various businesses had registered trademarks,
but by the time of his death all but the two I mentioned had either been allowed to lapse or had
been abandoned, so there were no ... there weren't any other trademarks.
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Q. And what caused them to lapse?

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A. Well, I believe for some of them there was actually an abandonment, a formal notice in the
Trademark Office. But that ... and it would have been in the 1990s. And I think some lapsed
because they were not properly renewed. You have to ... if you have a trademark registration,
you have to renew it periodically. And I believe some of them just were not renewed timely, so
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they are canceled. If you search for them they show up as dead on the Trademark Office search
engine.
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Q. Okay. And did Mr. ... did Michael Jackson, at the time of his death, have any trademarks
registered outside the United States?

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A. There were some. I can't recall the specific number, but there were some registered. I mean,
I'm recalling Michael Jackson as being registered in ... you register these country by country.
Trademark law is territorial, so you have to register in whatever country you want to try to
preserve or create trademark interests.

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Q. And at ... after Michael Jackson's death, did the Estate register ... did you on behalf of the
Estate, or Greenberg Traurig on behalf of the Estate register additional trademarks in the United
States?

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A. Well, yes. The first step ... and this is done, you know, as part of the supervising team by our,
what are called our technical trademark lawyers in Atlanta who were handling the technical side
of actually obtaining. So after death, a number of applications, numerous applications, they then,
most of them, I believe now all of them, matured then into a registered trademark. There is a ...

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you file an Application for a Trademark. The Application is published so that people know about
it, people who might object to a trademark in that name or for that category, have a chance to file
objections. If they do, there's a 687 proceeding and then the Trademark Board will decide
whether they're going to register or not. And then after a certain period of time if they decide to
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register, you then have a registered copyright, which has certain procedural and other benefits.

Q. Do you mean trademark rather than copyright?

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A. Excuse me, trademarks. Thank you.

Q. Yeah. And what was the purpose for registering additional trademarks on behalf of the estate?

A. Well, to create new value

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Q. And how do ... does registering trademarks create new value?

A. Well, you don't just register an app ... a trademark or have an application. In order to be able
to obtain a trademark you have ... actually have to use it in business as such that it's a ... it
indicates the source of a particular service or product. So what we were doing was not just, you
know, filing pieces of paper in a bunch of offices in a bunch of countries. What we, meaning the
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estate, they were developing and expanding the business of the estate from what it was when
Michael died, so that they could create, this what's called a secondary meaning and then secure
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the protection of registered copyrights so that the Estate had that much more value in it.

Q. Okay. And did ... on behalf of the estate, besides registering trade ... you mean trademarks,
not copyrights?
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A. Trademarks.
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Q. On behalf of the estate, besides registering trademarks, did you send any cease and desist
letters?

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A. I did personally, I supervised some others, so yes.

Q. And what was the purpose of sending cease and desist letters?

A. Well, let me break it down. The purpose of the activity was what I like to say is pure name

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and likeness merchandise. Somebody is selling a t-shirt without the rights, and they have
Michael's name or his image or a phrase affiliated with Michael, the purpose of that was to try to
tell people to stop. And you know, if ... they would be concerned, that they would be subject to
lawsuits based upon the California Post Death Status statute. With respect to the trademarks, and

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as I mentioned earlier, one needs to continue to use a trademark in its trademark sense, as a
source identifier, thus ... that's its secondary meaning. Whatever Michael Jackson means, an
individual now deceased, Michael Jackson as a trademark matter has the secondary meaning as
the source of certain goods and services. So you are required ...

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Q. Do you mean that Michael Jackson or the estate is the source of the goods or service?

A. Well, yes, I mean, since his death. But what I'm saying ... I'm trying to make a distinction.
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You have a secondary meaning. The primary meaning is for an individual the name. The
secondary meaning, which you have to create ... it's not automatic. You have to create it under
the trademark law in order to be able to register as a trademark. So ... and in the end, if you've
gotten that far, you need to protect it. So you protect it in various ways, one of which is to object
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by cease and desist or other means to people who are using a trademark in a way that you believe
infringe upon your trademarks or by filing litigation or by opposing other people who have
applied for a trademark that you think infringe upon your rights. So cease and desist letters are a
very important part of the effort that any trademark owner must engage in in order to both protect
what they have and create new value.
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Q. If the owner of the trademark fails to send cease or desist letters to people who are using the
trademark without authorization, what are the potential consequences to the owner?

A. Well, potentially if you don't fulfill ... I can't say ... there's no bright line here. But if you
don't fulfill the obligations in the Lanham Act in trademark law to protect the uniqueness of your
trademark as a source identifier, you can lose your trademark rights. And all you have is a word,
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or two words, but they don't have ... they're not trademarks anymore, which means somebody
else can use them.
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Q. Okay. And did the ... sending the trademarks, to your knowledge ... I mean sending cease
and desist letters for violation ... did you also seek ... send cease and desist letters for violation
of postmortem right of publicity?
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A. Yes.
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Q. And did you ... did any of the cease and desist letters, to your knowledge, result in substantial
streams of income to the estate?

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A. As far as I know, there were at least two name and likeness infringers that were claiming they
had been granted name and likeness rights from other entities, who after we approached them,
and after they turned out, to the estate's view and Bravado's view, to be qualified licensees, they
then ... we converted their infringing license into an authorized license from Bravado. I ... given
the nature of those licenses I'm not sure whether there's a substantial material amount of revenues

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derived by the estate from those licenses. I ... my expectation was it would not be.

Q. You said that in these two instances the people who were allegedly infringing claimed to have
a license. Were there people from someone who they believed was authorized to allow them to

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use name and likeness? Or ...

A. Well, I don't know whether in these two circumstances the people we believe to be infringers
actually believed that they had an appropriate license. They certainly claimed they did and

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asserted they did. And without going into all of the detail, when you trace back the story of
where these people claim their chain of title came from for their merchandising name and
likeness rights, it sort of got back to some companies that had been previously established but
then had been shut down before Michael's death.
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Q. Were there persons or businesses that claim to have an ownership interest in Michael
Jackson's name and likeness at the time of death?
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A. Well, yeah. I mean, the entities that supposedly were the source of the licenses I was talking
about did. But, more importantly, there was a company called Heal the World Foundation, run by
a person by the name of Melissa Johnson, who claimed, among other things, to own the
trademark to the name Michael Jackson, who actually filed an objection or sent ... I would say, a
document. Her lawyer sent a document to the personal representatives asserting at or about the
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time that the Bravado agreement was being subject to review by the probate court a claim that
they owned Michael Jackson and related trademarks to Michael Jackson, that they had ... and
that they were asserting a rights to license. And actually, indeed, before we even heard from
them, the company that manufactures Beanie Babies, after the death of Michael Jackson,
contacted Ms. Johnson or her company, to negotiate a license agreement to use the name of
Michael Jackson and related Michael Jackson trademarks on toys, sort of memorial toys and
Beanie Baby type toys. And they didn't ... they didn't come to the estate. They came directly to
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Ms. Jackson ... to Ms. Melissa Johnson.

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Q. Okay. Could you ...

A. And she was claiming absolutely to own these. She had a registered copy in the name M ... in
the word MJ. Immediately after Michael's death she began a filing of application spree, all
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claiming that she had been previously authorized by Michael Jackson to do this.

Q. Okay. And did the estate institute ... file a lawsuit against Ms. Johnson and her company?
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A. Well, we named as ... well, yes. But the defendants named where the two companies who
claimed ... I think one was United Fleet and the other one was called Heal the World
Foundation.

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Q. Okay. Could ...

A. They were the ones who claimed to actually hold not only four registrations prior to Michael's
death, but a number of applications and registrations afterwards.

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Q. Okay. And do you recognize Exhibit 301?

A. I ... I'm going to apologize. Both of those are in between my eyesight, so I have to do this.

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Yes. That's the first page of the complaint we filed, September 29th ...

Q. And ...

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A. 2009.

Q. And it alleges seven causes of action. Is that correct?

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A. Correct.

Q. And does it allege a cause of action for violation of a common law posthumous right of
publicity?
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A. No.

Q. Did you consider adding one?

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A. Well, no. And it would have been a waste of time and it would have been dismissible. There is
no common law after death right of publicity under the Common Law of California. I mean, the
California Supreme Court has been pretty clear on that.

Q. And did you consider adding a cause of action to see if you could change the law in that
regard?
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A. No. I can't ... I personally couldn't imagine the California Supreme Court taking on a case to
spend time on whether or not they want to change and reverse a rule they already made when the
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Legislature, in the meantime, has created a postmortem right of publicity. It would be ... to me, it
would be a very big waste of judicial resources.

Q. And did you consider adding a cause of action for violation of a federal right of publicity?
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A. There is no federal right of publicity. The closest there is, is what's in this complaint alleged
in the second cause of action, false designation, and also the third cause of action for ... well,
trade ... that's a California State. But the second one is for deceptive advertising. And California
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and ... or the 9th Circuit and most circuits recognize that the unauthorized use of a, in essence,
celebrity's name in connection with a deceptive advertising that either implies that the celebrity
has something to do with what's being advertised or endorses it, is remediable under that section

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of the Lanham Act.

Q. What is ...

A. It's not the Trademarks Act. And it's not the trademark infringement section. It's the, you

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know, deceptive advertising section.

Q. What is deceptive advertising?

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A. Advertising that includes statements, implications, innuendos that would tend to confuse or
deceive the public about the source endorsement, involvement of, in our case, an individual or
his estate, in either services or products being advertised. It's, in part, meant to protect the
consumers.

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Q. And is right of publicity law meant to ... the right of publicity meant to protect consumers?

A. it protects not someone ...

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Ms Herbert: Objection. Objection, Your Honor, this witness is now ... appears to be testifying
as an expert.
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Judge Holmes: That one's sustained.

Mr. Horwitz: Okay.

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Mr. Horwitz:
Q. Is the trademark on unfair competition and false designation, is that a name and ... is that a
right of publicity cause of action?
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A. The second cause of action in this?

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Q. Yes.

Ms Herbert: Objection again, Your Honor. Same objection.

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Judge Holmes: Sustained.

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Mr. Horwitz: Okay.

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Mr. Horwitz:
Q. Could you explain what occurred during the Heal the World Foundation litigation?

A. I'll try to summarize it briefly.

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Q. Yes. Could you summarize it briefly?

A. Yeah. We ... shortly after we received this claim that Ms. Johnson's company has asserted

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they owned a registered trademark and Michael Jackson ... and claimed other trademark rights in
the name Michael Jackson and related phrases we filed this. We litigated ... I think this is two ...
probably two years. It was assigned to District Judge Dolly Gee. We were ... there was a
substantial amount of discovery. It was a very difficult case. At one point we found out through

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discovery that a gentleman by the name of Howard Mann, M-A-N-N, who claimed ... he also
claimed to own Michael Jackson right of publicity through ... briefly, just through a judgment
that was through a bankruptcy foreclosure that allowed someone ... somebody else to foreclose
on a warehouse that had certain Jackson family memorabilia. It was the bankruptcy of Michael
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Jackson's mom and dad. So he was asserting ... and we found out that not only was he asserting
that, but that the defendants in the lawsuit I was prosecuting and Mr. Mann, after the lawsuit
began entered into an agreement where they, in essence, supposedly cross- licensed their
individually claimed, but candidly nonexistent, rights to ownership of a name and likeness. And
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Mr. Mann agreed to finance the lawsuit.

Q. Were you an attorney of record in the Mann litigation?

A. No. No.
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Q. Okay.

A. Other attorneys were ...

Q. And what ...

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A. ... for the Estate.

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Q. Do you know a gentleman named Brian Oxman?

A. Yes. And just ...

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Q. Who ...

A. ... we were about to get there. About six months before trial, the defendants purported to
revive a, at that point, dormant California corporation that Michael Jackson had created, but
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which had been in active since 2001. The defendants claimed that they were in control of it. They
formed a merger. This is all pieces of paper. They did the merger agreement. They purported to
merge their Heal the World company, which was formed in 2008, into the Michael Jackson 2001

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Heal the World company with Michael Jackson's company being the survivor, such that the
records of the Secretary of State said that the defendants owned and controlled Michael Jackson's
company that had been dormant. We amended the pleadings, but also in that discovery and in
opposition to some motions, the defendants submitted a letter from an attorney by the name of
Brian Oxman who did represent Michael Jackson and did represent Michael Jackson at the time

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that Ms. Johnson claimed that she was dealing and meeting with Mr. Jackson and his family and
basically claimed that Mr. Jackson ... that Michael Jackson had authorized Ms. Johnson to do
what she had been doing, you know, from 2005 and 2008 and which we were suing her about. So
this was, from the estate's point of view rather a serious challenge to whatever name and likeness

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and trademark interests they might have. I mean, here you had, you know, a lawyer, a prior
lawyer, for Michael Jackson stating that the defendants correct. Now ultimately what happened is
we settled the lawsuit. The settlement is confidential. Through the settlement ... and this much I
can say because it's of public record in the Trademark Office ... the four registered trademarks

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that had been secured at the time of death by the defendants were transferred to the estate. And
the other applications that had been made by the defendants were either expressly abandoned or
assigned to the estate. So all of the trademarks ... and there was also an injunction which solved
our name and likeness issues, so all of that was obtained. As an aside, like, 30 days after the
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settlement was approved by Judge Gee, the defendants claimed that they were not bound by it, so
we had to go through further proceedings. Judge Gee enforced the settlement, refused to other
post motions, post trial motions, settlement motions, and ultimately the 9th Circuit affirmed the
order enforcing settlement.
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Q. Did the estate ...

A. That took, I'm going to say four years, but it could have been longer.
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Q. Did the estate ... did the lawsuit generate any substantial income for the estate from Heal the
World Foundation?

A. No. We were able to get an award of attorney's fees in connection with the ... enforce the
settlement, but I don't think personally, the estate is going to have any of that reimbursed. We
actually ... and this is the life of litigators ... we consciously chose to seek only injunctive relief
in the thought that it might make it more expeditious, that we would get this resolved sooner.
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But, you know ...

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Q. It took ...

A. And maybe we did. Maybe with damages it could have taken eight years. I don't know.
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Q. Okay. And at the end you were not an attorney of record in the Howard Mann litigation that's
... is that correct?
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A. No. But I mean, the various firms that have been representing the estate work very closely and
collegially and we did provide some information that we had gotten in the Heal the World case to
the lawyers who were handling the Mann case.

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Q. And do you recognize 287?

A. Yes.

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Q. And do you see at the bottom at Number 1, New Star Entertainment?

A. Correct.

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Q. And what was 287?

A. We ... among the other things that I did was supervise and work with a number of foreign law
firms. The Noerr Stiefenhofer Lutz firm at the time was primarily in Munich. I had worked with

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them for a long time. And we retained them in connection with some trademarks that were being
asserted by third parties and for a show that was being called King of Pop, which was a Michael
Jackson imitator show that was planning to be performed in Germany.
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Q. And ...

A. And this letter is a ... is in the beginning ... Germany is a civil law country, not like our
system, so it's a little different. So this was the initiation, what's known as a first proceeding
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seeking a ... it's a preliminary injunction, but it's a little bit closer to a temporary restraining
order, if you compare the two systems.

Q. And were you ... did you supervise this litigation?

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A. Yes.

Q. And what was the end result of the litigation?

A. And by ...

Q. Did you get the restraining order?

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A. Well, this litigation ... there were two first proceedings, preliminary injunctions: one in
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Mannheim and one in, I believe, Stuttgart. So I ... this is now so small I can't tell you which one
this is.

Q. Okay. This is, I believe ...

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A. This is Mannheim.

Q. Mannheim.
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A. Okay.

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Mr. Horwitz: And could you put up 288?

A. At the top, that means court. You know the Mannheim Court *03:29:29.

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Q. Okay, 288.

A. I think that would be Stuttgart. Yeah.

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Q. And what is 288?

A. That's the same thing. It's the commencement, and the Music Circus Concert Bureau is

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actually the venue where one of these King of Pops was going to be presented. The first
defendant was the ... actually the producer, the concert promoter. And this was ... if I recall
correctly, this is the venue owner. ae
Q. And you supervised this ... did you also supervise this litigation?

A. Yes.
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Q. And did the estate obtain the relief it sought in either of these cases?

A. No, the ... both preliminary injunctions were denied.

Q. Okay. And are you familiar ...

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A. And actually under the German system, we had to pay the legal fees of the other side.

Q. Okay. Now then, getting back a little bit in ... with respect to right of publicity and trademark
litigation, do celebrities ever institute legal actions against a party whose use of their name or
likeness does not cause them any great financial damage?
a

Ms Herbert: Objection. Calls for speculation.

Te

Mr. Horwitz: Based on his experience.

w.

Judge Holmes: Ask for ... there you go. And it's allowed.

The Witness: Your Honor, I'm sorry. I did not hear.

ww
 om
Judge Holmes: In your personal experience.

The Witness: Thank you.

n.c
Judge Holmes: Go ahead.

A. Yes. From my personal experience, that is a technique and the reason that I've used it for
celebrity clients is in effort to deal with the inevitable which is, there are always people out there

so
who will try to rip your client off, who will try to exploit without a license. And so if you
develop a reputation ... either it's the lawyer or your client develops a reputation that there is no
violation too small that you will ... you're willing to file a lawsuit even if it's clearly not because
you're looking for a lot of money, and then there is a belief that those who are in business of

ck
ripping people off ... celebrities off, will maybe pick on somebody else who is so aggressive in
defense of their rights.

lJa
Mr. Horwitz:
Q. Okay. Do you ... are you familiar with a company called EC Bizz?
ae
A. Yes.

Q. And what is ...

ich

A. It's a ... EC Bizz was ... I can't tell you if they're still in business. I'm not aware of any
activity. EC Bizz was a Japanese company that claimed to have substantial rights in Michael
Jackson's name and likeness at the time of his death.
mM

Q. And did the estate take any action against EC Bizz?

A. Yeah. We sent ... well we retained Japanese lawyers, TMI and Associates, if I recall it right, at
least in English. And we retained them both to prepare and send a demand letter and then to
prepare and file ... another civil law country ... so the injunction action, and not necessarily the
damage action. But to try to stop EC Bizz from both ... they were operating a website claiming
to be the only authorized distributor of Michael Jackson memorabilia and a licensor of his name
a

and likeness in Japan. They were not only doing that, they were selling memorabilia. They were
licensing third parties supposed rights in Michael Jackson's name and likeness and memorabilia.
Te

Q. So they were one of the companies that was claiming an ownership interest in Michael
Jackson's name and likeness?
w.

A. Well, yeah. They claimed ownership through the license that they claimed they had from a
Hong Kong company, and I'm thinking it was a Singapore company that supposedly granted
them ... I don't know, it was about a 10-page agreement in English claiming to have granted all
of these Michael Jackson exclusive rights for Japan.
ww
 om
Q. And ...

n.c
A. And actually, as an aside, I may have said this, the Hot Toys, they were originally ... thought
they had gotten a license from EC Bizz. So that was ... this was not helpful.

Q. Okay. Was Hot Toys one of the companies ... one of the two businesses that became a
licensed ... authorized licensee of Bravado?

so
A. Yes. After they were vetted by Bravado and the estate business advisors that they were
qualified and legitimate and just had been deceived by EC Bizz's fraudulent business and its
product was good, so the estate was willing to have Bravado license them.

ck
Q. And did the ... what was the result of the litigation? What was the outcome?

A. Well, ultimately, although it took ... again, dealing in other jurisdictions and translation and

lJa
all, it takes a little while, we ultimately got the injunction. The injunction was not honored by EC
Bizz initially. We then, our Japanese lawyers we were supervising, then moved for enforcement
proceedings and EC Bizz was shut down. The website was shut down, and as far as I know they
have either gone out of business or gone to rip off somebody else. But I'm not aware of them
ae
being involved in the bogus Michael Jackson business.

Q. Now, getting back to cease and desist letters that you sent ... did cease and ... did you usually
get a response to the cease and desist letter?
ich

A. Well, I mean, with exception to the term usually, we would sometimes get no response. And it
appeared that these people disappeared and were not doing what we were concerned about.
Sometimes we'd get a response such as, again, Hot Toys saying, I thought I was doing the right
thing. I'm convinced that weren't doing the wrong thing, and would you please reconsider and
mM

license me, that kind of response. Some people made legal arguments that we dealt with. I mean,
the types of responses ... I would say those ... A.... respond appeared to have stopped what we
were objecting to. I mean, I can't guarantee in every incident, but that's my recollection.
a

Mr. Horwitz: Okay. Can we have one second, Your Honor?

Te

Judge Holmes: Sure.

.
w.

Mr. Horwitz:
ww
 om
Q. Now then in some occasions, cease and desist letters, did they result in litigation being
brought by the estate?

n.c
A. Well, certainly, EC Bizz ... I confess I cannot recall whether we sent a cease and desist letter
to the Heal the World defendants. I tend to think we wouldn't because they had made a very
aggressive legal position to the personal representatives claiming to own a very significant asset.
I ...

so
Q. What ...

A. I'm not recalling, I'm sorry, the other ones we may have filed, but you know.

ck
Q. What factors did you take into consideration in deciding to institute litigation against, let's
say, EC Bizz?

A. Well, you're asking my personal?

lJa
Q. Yes, your personal.

A. Okay. So what I would evaluate would be the ... a ... the benefit of a lawsuit. And that could
ae
be either a potential recovery or what I was talking about before, the educational value that the
client you're representing will develop a reputation that people should not infringe their rights
because even a small suit they might file; obviously, the cost of a litigation and making any kind
of recommendation. And you also have to consider the potential of losing and, particularly, under
ich
the California ... well, both California right of publicity, an award of attorneys' fees and costs is
mandatory. The prevailing, by statute, is entitled to award his or her or its fees and costs from
the losing party, which is not common. It's not true under copyright. It's not true under
trademark. So there is ... needs to be evaluated, you know, the downside risk, which isn't just
your client will lose the attorney's fees and costs it spent, but will have to pay the winning party
mM

their attorney's fees, which, you know, conceivably could be considerable.

Q. Okay.

A. So you know, you have to put all of that into a balance.

Q. Okay.
a
Te

Mr. Horwitz: And could you put on the screen what's been marked as Exhibit 625-P?
w.

Mr. Horwitz:
Q. And this is one of the cease and desist letters we sent you.
ww
 om
Mr Camp: This hasn't been entered in ... or I don't believe this has been marked yet ...

n.c
Mr. Horwitz: No.

Mr Camp: ... Mr. Horwitz.

so
Mr. Horwitz: Could we mark ...

ck
Judge Holmes: You need a hard copy, and get it marked for identification.

Ms Herbert: I have hard copies, Robert. What's the date of the letter?

lJa
Mr. Horwitz: Oh, it's 8 ... August 18th, 2009. It's ...
ae
Ms Herbert: It just so happens, Your Honor, that I have four copies ready.

Mr Camp: Thank you, Ms. Herbert.

ich

Mr. Horwitz: Someone's more prepared than I am.

Ms Herbert: We will keep the respondent's copy.

mM

Mr Camp: Thank you.

Mr Toscher: Your Honor, can I approach the Clerk?

Judge Holmes: Of course. Go ahead. Mark it next in order, Ms. Wood.

a
Te

Mr. Horwitz: 625.

Court Clerk: Exhibit 625-P is marked for identification

w.

Mr. Horwitz:
ww
 om
Q. Okay. And do you recognize 625 ... what's been marked for identification as 625-P?

A. Yeah, it's on my screen. Can I identify it ...

n.c
Q. Yes.

A. ... in here? Yes, it's the letter I wrote.

so
Q. And ...

A. That was at about August 18. It was sent on August 18, 2009.

ck
Q. And it was a cease ... one of the cease and desist letters?

A. Yes.

lJa
Mr. Horwitz: And we'd like to offer it into evidence, Your Honor.
ae
Judge Holmes: Okay.

Ms Herbert: We have no objection to that.

ich
Judge Holmes: Then it certainly is admitted..

Mr. Horwitz:
mM

Q. Okay. And did you ... was this when ... did you receive a response, or did the estate receive a
response to this letter?

A. Yes, we did.

Q. And in what form was the response?

a

A. My recollection was an email.

Te

Q. Okay.
w.

Mr. Horwitz: And could you put on the screen what's been marked 620- ... Next in order. next in
order..
ww
 om
Mr. Horwitz:
Q. Oh. Before we put up 620 ... next in order, what was the purpose of the letter?

n.c
A. The purpose was to stop the sale of audio- visual work that Mr. Lawrence Nimmer had
prepared, at least in my understanding, from video he had taken while employed or engaged by
Michael Jackson's criminal attorney in the 2005 proceeding ... Mr. Mesereau or Ms. Yu.

so
Q. Okay.

A. And he ... I can't tell you exactly when I saw this. But this ... apparently, Mr. Nimmer was
purporting to sell these copies of the DVD put together with the material he had gathered while

ck
employed by Mesereau and Yu, the criminal defense lawyers for Mr. Jackson, and was offering it
for sale on the internet using Mr. Jackson's name and likeness to promote his commercial
activity.

lJa
Q. Okay.

ae
Mr. Horwitz: May I approach the Clerk, Your Honor?

Judge Holmes: You may.

ich
Court Clerk: Exhibit 626-P is marked for identification.

Mr. Horwitz: Could I approach the Clerk, Your Honor?

mM

Judge Holmes: Yes.

Mr. Horwitz: Thank you.

a
Te

Mr. Horwitz:
Q. Was the purpose of the letter you sent to Mr. Nimmer to protect the right of publicity?

A. In part. I also thought there were two other theories, one of which was because he had gained
w.

access to whatever it is he had shot while he was employed indirectly by Michael Jackson ... by
Michael Jackson's criminal attorneys. And because under those circumstances, I would consider
any of that footage, the copyright to that footage to be owned by the employer either by the
criminal defense firm or by Mr. Jackson. So part of the theory of this letter was I thought there
ww
 om
was a very high probability of breach of contract as well as copyright infringement. And my
thought, his use of name and likeness was arguably actionable as well. But

n.c
Ms Herbert: I object to the testimony and the document and ask that the testimony be stricken
because the witness is not a sender or a receiver of this document. It's hearsay. And we object to
both the document and the testimony.

Judge Holmes: Okay. Lay a foundation for this one, Mr. Horwitz ...

so
Mr. Horwitz: Okay.

ck
Judge Holmes: ... if you could.

lJa
Mr. Horwitz: Do you want to put on the screen next in order, the email?
ae
Mr. Horwitz:
Q. Okay. And do you recognize 62 ...
ich

Mr. Horwitz: What is this thing? side-by-side, 625 and 626.

mM

Mr. Horwitz:
Q. Okay. Do you recognize the email?

A. The email from Larry Nimmer?

a

Q. Yes.
Te

A. Yes.

Q. And did you receive a copy of it?

w.

Ms Herbert: I'm sorry, Robert. There is no email up on the screen.

ww
 om
Mr. Horwitz: This one .... It's on the right side.

n.c
Mr. Horwitz:
A. Yes. The email on the right side of the screen I was ... a copy was sent to me ...

Q. And ...

so
A. ... forwarded to me.

Q. ... who sent you the copy?

ck
A. Paul Gordon Hoffman, one of the lawyers for the estate.

Q. And do you see under To Paul Gordon Hoffman, cc David (ph) Nimmer?

lJa
A. Yes.

Q. And who is David Nimmer?

ae
A. Well, as I understand, David Nimmer is Larry Nimmer's brother. He's also a noted copyright
treatise author and ...
ich
Ms Herbert: Objection, Your Honor.

Judge Holmes: Is that David Nimmer, in other words.

The Witness: Yeah, it's that David Nimmer.

mM

Ms Herbert: Objection. Hearsay.

Mr. Horwitz: We're not offering it for the truth of the matter asserted ...
a

Ms Herbert: And what are they offering it for?

Te

Judge Holmes: What are you offering it for?

w.

Mr. Horwitz: Well, just a response that this ... that Mr. Nimmer made it to the demand letter ...
to the cease and desist letter ...

Ms Herbert: This ... he's not in the courtroom.

ww
 om
n.c
Mr. Horwitz: ... and what his basis of it - -

Ms Herbert: This Mr. Nimmer is not in the courtroom. We could call Mr. Hoffman as a witness,
but then he would have to withdraw.

so
Mr Weitzman: You mean from this proceeding he would have to withdraw?

Ms Herbert: It would be a conflict.

ck
Mr Weitzman: For this proceeding.

Ms Herbert: From this proceeding.

lJa
Mr Toscher: And we can call Ms. Herbert. She'd have to withdraw. Let's get on with it, please.

Judge Holmes: I'm with Mr. Toscher on this one.

ae
Mr Toscher: It's ridiculous. Don't be ... I ...

Judge Holmes: Hold on, Mr. Toscher.

ich
Mr Toscher: Your Honor, I object to this ...

Judge Holmes: Mr. Toscher, down.

Mr Toscher: Sorry.
mM

Judge Holmes: The email is excluded. Go on.

Mr. Horwitz: Okay. We have nothing further, Your Honor.

a

Judge Holmes: Okay. Cross, Ms. Herbert?

Te

Ms Herbert: Thank you.

w.

CROSS-EXAMINATION

Ms Herbert: Q. Good afternoon, Mr. Chieffo.

ww
 om
A. Thank you.

Q. So your ... you testified your firm was retained in the call of 2008 by Michael Jackson.

n.c
A. Yes. I think I said early October 2008.

Q. Okay. And was ... are you aware if Tohme Tohme was the one who hired your firm on behalf
of Mr. Michael Jackson?

so
A. My recollection is the engagement letter signed by Michael Jackson. I didn't participate in any
discussions that led to Joel being engaged. So I don't know who he talked with or what.

ck
Q. When ...

A. The engagement letter is signed by Michael.

lJa
Q. Okay. Were you involved ... did you know of Tohme Tohme?

A. Did I know him? I met him ... ae

Q. Okay. Do you know ...

A. ... several times.

ich
Q. Do you know what his role was?

Mr. Horwitz: Objection, Your Honor. Beyond the scope of direct.

mM

Judge Holmes: You talked about his being retained, so it isn't. Overruled.

A. Okay. It, candidly, was completely unclear to me what Tohme Tohme's role was. And so my
dealings with him were rather adversarial on behalf of the estate.
a

Ms Herbert:
Te

Q. But Michael Jackson signed the retainer agreement with your firm.

A. That's my definite recollection. We ... if we had it here, we could confirm it. But that's my
belief. I don't think that Joel Katz would have agreed to serve as Michael's attorney without
w.

Michael signing the engagement letter.

Q. Now, do you recall in December of 2009 filing a claim for legal fees with the probate court on
behalf of your firm?
ww
 om
A. I'm not sure if I filed it. I know there was a pre-death legal fee claim that Greenberg Traurig
asserted.

n.c
Q. Do you request ...

A. I think it was, like, $660,000.

so
Q. Do you recall filing a claim with the probate court for $1,000,547 , approximately, for
services rendered on behalf of the estate through October 31st, 2009, which would have been
after death?

ck
A. Yes ...

lJa
Mr. Horwitz: Objection, Your Honor, to relevance.

Judge Holmes: Is this about impeachment interests, something like that?

ae
Ms Herbert: Yes.

Judge Holmes: Overruled.

ich
Ms Herbert:
A. Yes. That ... what ... your question confused me. What you're describing is not a probate
claim. That ... I filed a declaration in support of the ... at that point, I think, administrators for
approval of payment on account of legal fees along with any number of other attorneys. And I
certainly know about the other attorneys who sought an ... under a probate law. That's a payment
mM

on account. So it means that when the estate is finally closed, that's when the probate judge
would determine whether the fee's awarded or too much or do a final accounting of it. But yes,
we ... I think the date of that declaration was January 8, 2010.

Q. Did you also sign a declaration on December 9th of ... December 15th, 2009? Do you recall
signing a declaration on that day?
a

A. Yeah. And I ... yes. Excuse me. And I believe that ...
Te

Mr. Horwitz: Your Honor. Oh, Mr. Chieffo, show him the document to see because she's asking
him when he signed a document on a specific date. He may have signed multiple documents in
w.

his capacity.

Judge Holmes: It's up to her. Overruled. Go ahead, Ms. Herbert.

ww
 om
Ms Herbert:
Q. So do you recall signing a declaration in December of 2009 as well?

n.c
A. Yes. That was the prior version of what ultimately was filed, if I recall correctly. Or it may
have been that the first declaration I filed didn't really meet the way the probate judge wanted the
fee ... the attorneys and the paralegals broken out. So my recollection was the difference ... was
that in one there was a long schedule at the end of my declaration. And on the second one, for
various groups of matters, we had specific charts showing who were which lawyers at what rate

so
had worked on each of the various matters. I think at that point we had, I don't know, 35 different
matters opened up for the Michael Jackson estate, I think, in the first filing.

Q. Okay.

ck
Ms Herbert: Then I think maybe for clarity we should have marked identification the ... I'd like
the ... this document marked for identification as Respondent's next in order.

lJa
Judge Holmes: You may approach and have it marked for

ae
Mr. Horwitz: Your Honor, can I just see that to see if it's something ...

Judge Holmes: Oh, of course.

ich

Mr. Horwitz: ... that's sealed or not?

Ms Herbert: May I approach?

mM

Judge Holmes: You may.

Mr. Horwitz: Your Honor, there's no filing stamp on here or indication that this was ever filed.
a

Judge Holmes: She hasn't offered it in evidence yet. Maybe she'll establish her basis for doing
so, or maybe not.
Te

Ms Herbert: Your Honor ...

Court Clerk: Sorry ... okay.

w.

Ms Herbert: Oh.

Court Clerk: Exhibit 627-R is marked for identification

ww
 om
Ms Herbert:
Q. All right. So do you ... I'd just like you to take a look at what's been marked as 627-R and go

n.c
to the signature page, which is ... first of all, do you recognize this document?

A. Yeah, I do. I mean ...

Q. And on Page 20, is that your signature?

so
A. Yes.

Q. Okay. So whether or not this document was filed with the court, this is your declaration,

ck
correct?

A. I'm not sure if I understand.

lJa
Q. Is this your declaration?

A. Not the one ... no, this is not what was filed by the ... with the court. So ...
ae
Q. Is this a declaration that you signed?

A. It's the declaration we submitted to the probate ...

ich
Judge Holmes: Wait, wait, wait. Answer the question. Is that your signature?

The Witness: Oh, yes. Sorry, Your Honor.

Judge Holmes: There you go.

mM

Ms Herbert:
Q. Okay. So let me just ask you a few questions there. Oh, if you could turn to the first
paragraph, do you see an amount for legal fees on there for your law firm?
a

Mr. Horwitz: Is ... which page is that paragraph ...

Te

Ms Herbert: Page 1, Paragraph 1.

w.

Mr. Horwitz: Okay.

A. Yeah, at the time ... I do see it.

ww
 om
Ms Herbert:

n.c
Q. Okay. So do you have any reason to believe that that number is not accurate? Or you signed
the declaration that this was the amount of legal fees as of that date. Is that correct?

A. No. I signed the declaration that says the reasonable value of the services rendered through
whatever the end of this date, October 31, was that amount.

so
Q. Okay. And could you state the amount for the record?

A. $1,547,064.50.

ck
Q. Okay. Now, would you agree with the statement that Michael Jackson was an international
superstar?

lJa
A. Yes.

Q. Okay. And part of your legal work was to protect Michael's intellectual property rights. Is that
correct?
ae
A. Protect and create, yes.

Q. That would include copyrights?

ich

A. It ... with copyright is, yes, intellectual property.

Q. And it includes trademarks.

mM

A. Yes.

Q. And it includes name and likeness licensing?

A. Yes, name and likeness is intellectual property.

Q. All right. And can you describe the types of licensing agreements that you worked on, on
a

behalf ... or that you or your firm on, on behalf of Michael Jackson?
Te

A. That's covered by this?

w.

Mr. Horwitz: Objection, Your Honor. It's beyond the scope. We asked him about cease and
desist letters and litigation, not about ...
ww
 om
Judge Holmes: She may be trying some sort of impeachment. Are you going somewhere with
this, Ms. Herbert?

n.c
Ms Herbert: Well, Your Honor, I think that in our pretrial memo we reserved the right to call
any witness that was listed or called by Petitioner as our witness. So I think that I ... with that
reservation in the pretrial memo, I could go beyond the scope of direct.

so
Mr. Horwitz: In which case ...

Judge Holmes: Only in your case-in-chief.

ck
Mr. Horwitz: ... she would have to ask him non-leading questions, Your Honor.

lJa
Ms Herbert: Well, we could call him back as part of our case-in-chief.

Judge Holmes: What's the point of this?

ae
Ms Herbert: Well, to show the different types of work that his firm did on behalf of the estate
to protect the name and likeness of Michael Jackson.
ich
Judge Holmes: You want to just ask him questions about that?

Ms Herbert: All right.

Ms Herbert:
mM

Q. What did your firm do to protect the name and license of ... name and likeness of Michael
Jackson?

A. In addition to my direct testimony?

Q. Yes.
a

A. We ... in addition to direct testimony, okay. There were ...

Te

Q. I'll give you an example. Would that help? Did ...

A. I'm sorry. I was trying to answer the question.

w.

Q. Go ahead.

A. For one thing, I know ... I don't think we touched upon was, in this period of time through
October 31st, I think there was some 23 trademark demand letters in, like, 28 different countries
ww
 om
that we did. There were oppositions filed against that I didn't personally do. But as I mentioned,
the Atlanta group with our supervision did objections to ... and challenges to third parties who
were trying to create new trademarks after Michael died. We were trying to prevent that so we

n.c
could bill that building ... that business for the estate and these third parties couldn't steal it.
You're talking now an enforcement?

Q. Or any other legal assistance that ...

so
A. That Greenberg Traurig?

Q. ... your firm did. Yes, as part of this ...

ck
A. Okay. Well, we ... the music transactional people ... let's say Joel Katz, Richard Leher ...
were involved with examining the AH ... the AEG contract and what did Michael's death do. I
guess the point of what you have shown me ... I can't remember the exhibit number ... is
actually to set forth for the probate judge a detailed ... not overly detailed, but an accurate and

lJa
detailed explanation. So I mean, I can read this, but this is based upon ... I prepared this based
upon our billing records that I've reviewed based upon conversations with the specific lawyers
who did it if they ... I were ... wasn't supervising them. And so I'm not sure what the difference,
as I said, between this and the document that actually was filed because the document I'm
ae
looking at was submitted to the estate attorneys for their review because it's the ... I don't apply
for fees. The estate asked for permission to pay the attorneys that the estate hired. So this is just
evidence that the estate personal representatives then go to Judge Becklof, who's supervising the
probate, to seek permission to make payments to the professional advisors. And as I said, the ...
ich
whatever has happened so far is merely on account. So I mean, I don't know if you want me to - -

Q. Okay. So do you know ...

A. ... go through this 20-page declaration to tell you if there's anything there I think is incorrect.
mM

Q. Well, you could do that, or I'll ask you a few questions. Was your firm involved in the
reviewing the licensing deals whether this is it ... movie or concert series or both?

A. Well, again, I'm not sure what you mean by licensing deals. There were employment
agreements that had to be entered into with the creative personnel that had been originally
a

engaged to create a live stage event. And those contracts did not grant any right to use those
people's name, likeness, or anything in any audio-visual ... a movie, a DVD, nothing. So we
Te

were, I believe, with some lawyers in the other ... law firms that represented the estate deeply
involved in trying to negotiate with the director and the choreographer and the designer of the
costumes to get the permission to be able to do a movie with that footage. Much ... and also, I
think the lawyers were involved ... not me personally ... but in obtaining the agreement in
w.

solving the dispute with AEG about could the footage be used and what terms and AEG's claim
to be owed. At the time I think originally, it was, like, $38 million. So yeah, there were a lot of
discussions. And if you were concluding that in licenses, yeah, those are licenses that Greenberg
Traurig attorneys worked on as well as other attorneys. There were negotiations with Sony. I
ww
 om
would have to go through this to refresh my recollection when the new deal with Sony was done.
But

n.c
Q. Okay. What ... was any action taken by you or your firm immediately after Michael Jackson
died to protect either his trademarks or his name and likeness?

A. Yeah, I was at the hospital. I was at UCLA about an hour and a half after he died. There was
Randy Phillips. There was Tohme Tohme. There was the ... Michael's family was in a separate

so
room, but we were in sort of a large kind of almost quasi- boardroom that I'm sure the hospital
uses for meetings; a then fellow shareholder, Richard Leher, who's run music companies. And an
expert music transactional attorney was there. Conrad Murray was there ... Dr. Murray. Jermaine
Jackson was there. I believe his brothers and maybe sisters were in another room with Ms.

ck
Jackson. And yeah, we immediately started, at the request of Joel Katz, who were ... was an
attorney for Michael at the time ... to see what we could do. Just go to the hospital immediately
and find out what we could about ... we didn't even know there was a will yet. So ...

lJa
Q. But what about name and likeness protection? What was that ... how soon after he died or ...
was that discussed ... protecting his trademarks ...

A. Well ...
ae
Q. ... protecting his name?

A. ... that's what I'm trying to explain to you. There was no one to discuss it with. Tohme Tohme
ich
made the statement in this meeting that he was in charge because he had what he called a power
of attorney. Now, to me, that meant there was no organization. Nobody can claim that they're
going to be in charge of some deceased estate because they have a power of attorney which I
never saw. I don't know if he ever had one. But obviously, it doesn't survive the death. So right
then and there, I knew this was going to be a problem. Let me tell you. The ... my first thought
mM

wasn't name and likeness. My first thought was to find out where would there might be a will.
And certainly, John had recently been ... not John ... Branca had been recently hired as well
while Michael, John, and Joel had worked over the years on various things. You know, we
quickly found out that the Branca firm did have the will and John and John McClain were
appointed as executives. So ...

Q. How soon after death do you ...

a

A. How soon?
Te

Q. ... did that ...

A. Days.
w.

Q. ... occur? Days?

A. Days. We then ...

ww
 om
Q. All right. And then how ...

n.c
A. ... if I recall ... you're asking me what we did right away, right?

Q. Okay. Right away.

A. Okay. So right away, there was an all- hands meeting. I believe that John Branca's firm ... I

so
think that's the first one. I think this was actually a meeting that occurred before the Hoffman
firm was retained as the probate attorneys because I thought ... my recollection is part of the
topic of that meeting was who would the firm ... who would the nominated executors seek to
have as the probate attorneys. My recollection that this meeting ... and it's maybe vague in my

ck
mind ... occurred right after John Branca and John McClain went out and had a reading of the
will with Ms. Jackson. I don't know if Mr. Jackson was there, but also ... meaning Michael's
father.

lJa
Q. Do you know if that was before or after the memorial service?

A. Before. ae
Q. Before.

A. Yeah, way before.

ich
Q. Okay. Way before.

A. Yeah.

Q. So within ...
mM

A. Well, way before ... everything is happening fast. And ...

Q. Within a few days of his death?

A. I believe the reading was within a few days as soon as it was confirmed ... John Branca
confirmed that he had the will and ...
a

Q. So how soon did your firm jump into action in terms of filing trademarks either in the U.S. or
Te

abroad?

A. I'd like ... have to look at our trademark list. But rather quickly, I would say I think in July.
w.

Q. In July?

A. Yeah.
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 om
Q. So he died on June 25th, 2009.

A. Right.

n.c
Q. So in July 2009, your firm was filing U.S. and international trademarks?

A. I believe it was in July, whether it's middle or so of July. I mean, one thing you have to
remember is until the probate court appoints somebody to act even as a partial or intermediate

so
personal representative, nobody can do anything because you don't have a client. So there was a
dispute early on about whether ... and Ms. Jackson, I believe, filed an ex parte application to be
appointed as the administratrix. And so there ... you know, for several weeks, it was unclear who
had authority to do anything. So to answer your question, we would not, could not file trademark

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applications or file oppositions on behalf of somebody we didn't represent. And there was
nobody representing in a legal sense, you know.

Q. Well, as soon as John Branca and John McClain were given some sort of special appointment,

lJa
then your firm took action.

A. Yes. ae
Mr. Horwitz: Objection, Your Honor. I'm unclear what she means by as soon as. The same
minute?
ich

A. day later?

Ms Herbert: I'll ask the witness.

mM

Ms Herbert:
Q. How soon ...

Judge Holmes: Okay.

Ms Herbert:
Q. ... after Mr. Branca and Mr. McClain were appointed as, say, special administrators did your
a

firm begin to take action to protect the name and trademarks and copyrights?
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A. To take action in the sense of doing something ...

Q. Registering ...
w.

A. ... outside ... registering trademarks?

Q. Yes, registering them.

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 om
A. Okay. I ... first of all, I would make a distinction, but I'll answer both sides. The trademarks, I
believe, as soon as the ... and I can't remember which order it is. But there was ultimately an
order that the foreign trademark offices and the U.S. trademark office would accept as authority

n.c
for the firm to file for new trademarks to try to create this new business and this new product.
We also at the time, to the extent we thought that there were ... you know, the existing two
trademarks were being infringed, we took action, you know, to try both in the trademark office
and, as we learned these things as quickly as possible, to protect the two trademarks that did exist
and to move as quickly as possible to do what was needed to try to start creating some new assets

so
and new value to the estate.

Q. Okay. Do you know how many trademarks were filed in the U.S. for Michael Jackson or his
related ...

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A. Okay.

Q. ... matters?

lJa
A. One files applications for trademarks ...

Q. Okay.
ae
A. ... until the trademark office accepts them as ... if there's an opposition or ... because the
trademark office without opposition will conclude its appropriate application, then you get a
registered ... your trademark will be registered. So if you can repeat your question because you
ich
... I'm kind of confused by it.

Q. How many applications did your firm file for U.S. trademark filings?

A. During what time period?

mM

Q. Within the month of July of 2009.

A. I don't have a schedule in front of me. I can't remember that. Some. I mean, I ...

Q. Okay. Did your firm in ... would it refresh your recollection to take a look at your declaration
on Page 10 that I ...
a

A. I don't ...
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Q. ... that was represented to you?

A. Yeah. I don't think my declaration says what we did in July as opposed to what we did from
w.

the date of being hired through October 31. But I believe there's a section explaining ...

Q. Well, if you look at ...

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 om
A. ... trademark activity.

Q. ... Page 10, Subparagraph A.... I think it's 17(a), what ...

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A. All right.

Q. Did your firm file ... attorneys in your firm file 36 federal trademark applications up until the
date of this declaration ... between the date of death and the date of this declaration?

so
A. Not the date of the declaration. The declaration information was through October 31 ...

Q. Or ...

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A. ... 2009.

Q. Okay. From the date of death ...

lJa
A. I signed this ...

Q. I stand corrected. From the date of death until October 31st.

ae
A. That's the ... to the best of my knowledge, upon supervising this and review of our records
and the filings.
ich
Q. And your firm coordinated the filing of an additional four new federal trademark applications
with the U.S. Patent and Trademark Office, right?

A. I don't have an independent recollection, but that's what my declaration says.

mM

Q. And your firm sent 13 demand letters to applicants of trademarks for Michael Jackson-related
U.S. trademark applications between the date of death and October 31st, 2009?

A. Yeah. I believe so, yes.

Q. Okay.
a

A. These are ...

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Q. Your firm also instructed ...

A. These are ... many of these were for third party applications that were being filed after Mr.
Jackson's death.
w.

Q. The demand letters?

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 om
A. No, no. The ... what we're objecting to. At ... it says 13 demand letters to applicants of
trademarks for Jackson-related U.S. trademark applications.

n.c
Q. So those demand letters ...

A. Some ...

Q. ... were objections to other people applying for trademarks.

so
A. Yes.

Q. Okay. And then additionally, your firm instructed and supervised foreign counsel to file four

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new trademark applications in the European Union and Japan, right?

A. Correct.

lJa
Q. And your attorneys conducted a worldwide trademark search to ascertain and confirm details
regarding 53 existing registrations by Triumph in 28 countries?

A. Correct.
ae
Q. All right. What is Triumph?

A. Triumph was wholly owned by Michael at his death. And it's a corporation, part of the estate
ich
assets, and was a company into which Michael intended to convey ... I think in some part
conveyed ... his various trademark registrations. I don't know for all of them. But it was ... it's a
Michael Jackson company.

Q. Okay. Thank you. And your firm also ... if you need to refresh your recollection on Page 11,
mM

your firm also coordinated with foreign counsel to send out 28 demand letters to infringers in 8
countries in the European Union?

A. Correct.

Q. And your firm obtained assignments of five marks to Triumph, and at least three more were in
process as of October 31st?
a

A. Right. These were trademarks held by third parties that were not part of the estate until we
Te

were able to obtain these assignments and put it in the estate.

Q. Why was it important to register these trademarks or to ... yeah, why was it important?
w.

Mr. Horwitz: Which trademarks is she talking about?

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 om
Ms Herbert: All of the ones we just discussed.

Judge Holmes: All of them.

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A. Okay. Well, for various reasons, when you're saying register, I mean, I am assuming you mean
...

so
Ms Herbert:
Q. Apply.

A. ... the applications to ... for registration of new trademarks. It was an effort to create new

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value for the estate before these third parties could get in and create trademarks usable in
businesses that the estate hadn't been doing and Michael hadn't been doing. The whole concept to
this was, one, to make sure other people wouldn't be able to use a new trademark in a new
business. And so the state was proactively moving to create this new trademark, this new IP, and

lJa
new and related deals in business because there was only those two trademarks in the U.S. and
whatever number this indicates here.

Q. Okay. You testified, though, that you can't register a trademark unless it's been in use for a
while, right?
ae
A. Yes, but you're asking me about applications.
ich
Q. Okay.

A. I'm telling you why we filed applications.

Q. Did you ...

mM

A. Am I not being clear?

Q. You've been very ... more or less clear.

A. Okay.
a

Q. But you earlier testified ...

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Mr. Horwitz: Your Honor ...

w.

Ms Herbert:
Q. ... that you can't just register ...

Judge Holmes: Hold on.

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 om
n.c
Mr. Horwitz: Okay.

Ms Herbert: You can't ...

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Mr. Horwitz: I'll ...

Judge Holmes: Is there an objection?

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Ms Herbert: Are you objecting?

lJa
Mr. Horwitz: No, no. I'll wait for you to finish your question.

Judge Holmes: Then go ahead, Mr. ...

ae
Ms Herbert: Okay.

Ms Herbert:
ich
Q. You can't just file an application for a trademark for something that's never been used in
commerce or business. Is that right?

A. In ... under the law of the United States, it's correct. Under the laws of other countries,
including European countries, it's not correct.
mM

Q. But in the United States ...

A. That's why you have to do this on a worldwide, country-by-country basis, which is

expensive.

Q. Okay.
a

A. And ...
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Q. But the ...

A. And ...
w.

Q. ... United States, though, let's say between ... I think you testified that between the date of
death and October 31st in the U.S., there were 36 applications, or something like that, right, for
trademarks.
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 om
A. Whatever the stats were ... you want me flip back and confirm this again?

n.c
Q. All right. Well, I think it said 36.

A. Okay.

Q. So were those brand new trademarks? Or were those trademarks that had been in use and had

so
just not been registered yet? Had they been used in commerce?

A. I don't have the list in front of me. I didn't ... I don't ... can't remember the identity of every
trademark that had been applied for in the first three months.

ck
Q. Okay. Could ...

A. So ...

lJa
Q. Could a trademark have arisen in July and then you could file an application to register it in
August? Or would it ... let's say it was the name ...
ae
A. Well, there's ...

Q. Let's say it was the signature of Michael Jackson.

ich
A. Okay. The risk ... there are two ways you register ... apply for a trademark. One is based
upon actual use in commerce for a certain class ... a classification of trademark. The other way
you can apply by trademark is to apply with a notice of intent to use. So before you actually use
it commerce, you can get priority by filing a notice based upon intent to use. Now, the trademark
office doesn't let you sit there forever and not use it. You have to ... and I can't off the top of my
mM

head give you the rules. You can extend that for a short period of time. But it's a very short
period of time. You've got to go. If you file for intent to use, you, ultimately, in a very short
period of time, have to use it in commerce. So I can't sit here and remember which number of
these may have been intent to use. Again, you know, trying to build new assets, new value, in
the estate and how many it might have been based upon, you know, prior use or an existing
copyright such as Michael Jackson where there might have been a prior use for t-shirts or things
like that and nobody had included that category in the prior registration, which, as I said, I ... my
a

... the existing registration, I believe, was only for music-related stuff. So some of these, I mean,
yeah, without looking. And obviously, there was a significant amount of work that was going
Te

here. I don't remember every application, but I recall that some were directed towards uses that
had existed ... again, like t-shirts or maybe clothing. Some were intent to use applications for
activities that hadn't yet happened.
w.

Q. Okay. Thank you. Now, you ... your firm was involved in resisting claims of two third parties
who had asserted rights to a future production of a live thriller play. What ... can you tell me
what that was about?
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 om
A. Can you give me the page line?

n.c
Mr. Horwitz: Your Honor, what's ... objection. Relevance.

Judge Holmes: I'm still confused by this. Ms. Herbert? Ms. Herbert? Ms. Herbert?

so
Ms Herbert: The government is trying to establish all the different actions that were taken by
his firm to protect Michael Jackson's intellectual property from the date of death until the date of
his declaration.

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Judge Holmes: Because?

Ms Herbert: Because it would be relevant to value as of the date of death.

lJa
Mr. Horwitz: How does it show relevancy? He's testified on direct that they bring legal actions
even where they don't expect to get any money out of it just to show they're there ...
ae
Judge Holmes: Yeah, to preserve and protect it. And I can understand he's filing intent to use.
So you know, Michael Jackson hotels does, you know, pop up. But is there something else going
on here?
ich

Ms Herbert: No, just that it's Government's position that the actions taken immediately after
Michael Jackson's death were reasonably foreseeable actions that were taken that could ... that a
rational investor would take and would consider in purchasing these intellectual property rights
as of the moment of death.
mM

Judge Holmes: Do you dispute that? I mean, we're here to dispute the value of these things
apart from what you've settled and what's represented in MIJAC and Sony ATV. But that they
were taken and that Michael Jackson himself didn't have all of them right at the moment of his
death is not an issue, is it?
a

Mr. Horwitz: I don't think so, Your Honor.

Te

Judge Holmes: Yeah. So yeah, I mean, he's not ... I'm not going to limit the value of his
trademarks to the two that Michael Jackson had before he died, precisely for what you've
elucidated her but which I don't think is contested.
w.

Ms Herbert: I ... Your Honor, I do believe it is contested.

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 om
Ms. Cohen: Well, the scope of the right of publicity is at issue and whether the trademarks were
...

n.c
Judge Holmes: Oh, clearly. They're ... yeah.

Ms. Cohen: Whether the ...

Judge Holmes: And the value of those rights as well.

so
Ms. Cohen: Correct.

Judge Holmes: Yeah.

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Ms. Cohen: And what the trade ... the relationship of the trademarks is at issue. And if the
trademarks ... the government has claimed that there was the possibility of all these trademarks
after death. First of all, we don't think they really contribute the value anyways. And second of

lJa
all, Mr. Chieffo is testifying that the trademarks had to be created after death. It had to be created
... a business had to be created.

Judge Holmes: Oh, well, now, let's figure that out. Could Michael Jackson himself have
applied for these before he died?
ae
The Witness: For applications for registrations for businesses, they said if he was engaged in
licensing business with merchandise using his name and likeness, he could have tried to apply
ich
for registration for a trademark in his name for merchandise.

Mr Weitzman: I don't think that was the question, was it?

The Witness: You know, but ...

mM

Judge Holmes: I'm sorry?

Mr Weitzman: Was that ... did he just respond to your question?

Judge Holmes: Right. Michael Jackson's under-exploiting Michael Jackson at the ... before he
died.
a

Ms Herbert: That's correct.

Te

Judge Holmes: I mean, you don't object to that. You object to how much was he not exploiting
Michael Jackson.
w.

Mr Weitzman: Got it.

Ms. Cohen: Well, we object to whether or not anything could be done or to what extent
anything could be done with it that was recently foreseeable at the moment of death.
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 om
Judge Holmes: Okay.

n.c
Ms. Cohen: And that's the issue.

Judge Holmes: I understand.

Ms. Cohen: It is relevant that there was the tremendous amount of legal fees incurred in order

so
to create this asset that was created after Mr. Jackson's death.

Judge Holmes: It might work and might not, as with most of these decisions. But I get that.
You can ask him a few more questions. But I get the point of it now, which is ...

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Ms Herbert: No, that's all I have, Your Honor. I just ... those are the points I wanted to make.

Judge Holmes: I just have one follow-up question. Have you done this for other dead

lJa
celebrities?

The Witness: I represent ... well, the answer is yes in that the ...
ae
Judge Holmes: It's probably something the equivalent of marshaling assets of the deceased in a
weird way. Any follow-up questions? Redirect? Technically, it's Mr. Horwitz's ...

Ms. Cohen: Can we take a little break?

ich

Judge Holmes: ... witness.Break.

Judge Holmes: Two parts.

mM

Mr. Horwitz: Ten parts, Your Honor.

Mr. Horwitz: That's a normal attorney ... 10 parts.

a
Te

REDIRECT EXAMINATION
w.

Mr. Horwitz: Q. Your ... Mr. Chieffo, you were asked about the actions that Greenberg Traurig
attorneys did on behalf of trademark name and likeness intellectual property. Did the executors
of the estate have an obligation under California law to take these actions as part of marshaling
the assets?
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 om
A. Well, that's my understanding. They, in essence, have a fiduciary obligation to marshal the
assets, protect the assets, to not allow the business to suffer and to enhance the value as best they

n.c
can on behalf of the beneficiaries or

Q. Okay.

so
Mr. Horwitz: Oh, Your Honor, we wanted to move into evidence Exhibits 287, 288, and 301.
Those were the ...

Mr Toscher: I think ...

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Mr. Horwitz: ... complaints.

lJa
Mr Toscher: They were not objected to in the stipulation?

Mr. Horwitz: They were ... the only objection was to the extent they were offered in for the
ae
truth of the matter as alleged since they were legal pleadings.

Judge Holmes: You don't want that, do you?

ich
Mr. Horwitz: It doesn't matter.

Ms. Cohen: No, we definitely don't.

Mr. Horwitz: No, we don't. So ...

mM

Mr. Horwitz: ... we'll move them into evidence, and we're withdrawing the objection.

Judge Holmes: Okay. You're withdrawing the objection.

Mr. Horwitz: Yeah, we had objected ...

a

Judge Holmes: Hey, they're your exhibits. Those are in, subject to that reservation that they're
not ...
Te

Mr. Horwitz: And ...

Judge Holmes: ... being admitted for the truth of the allegations in these pleadings. Exhibits
w.

287, 288, and 301 were received into evidence.

Mr. Horwitz: And then was it 625 ...

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 om
Mr. Horwitz: ... 625, the cease and desist letter?

Judge Holmes: I thought I had already let that one in. But if not, it's in. The email, however,

n.c
did not come in.

Mr. Horwitz: Correct.

Mr. Horwitz: Oh, yeah. And Your Honor, I'll be filing, and we'll probably be electronically filing

so
and providing to the Court and counsel tomorrow a list of those exhibits, the first stipulation that
we were objecting to on grounds of relevancy so that the Court and counsel have them.

Judge Holmes: Okay. So we can go through those at some point. All right then. You used your

ck
question, right?

Mr. Horwitz: That was it. I said I had one question.

lJa
Judge Holmes: Do you have any follow-ups?

Ms Herbert: I have nothing else. ae

Judge Holmes: Neither do I. Are we done with Mr. Chieffo?

Mr. Horwitz: Yes, Your Honor.

ich
Judge Holmes: You're welcome to go.

Mr. Chieffo: Thank you, Your Honor.

Judge Holmes: Is that it for the day? Or do you have someone else, Mr. Toscher?
mM

Mr Toscher: Yes, Your Honor. That's it for the day.

Judge Holmes: And what's tomorrow?

Mr Toscher: Tomorrow we will have, I believe, John Doelp from Sony.

a

Mr. Horwitz: We don't know yet, really.

Te

Mr Toscher: Well, did he ... I thought ...

Mr. Horwitz: I mean, we have a list with us. We don't know who ...
w.

Mr Toscher: Well, we don't know ... right.

Ms. Cohen: We don't know the order.

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 om
Mr Toscher: We don't know. And I'm not saying the order. I'm just telling who we have.

Judge Holmes: I'm just asking for a general idea.

n.c
Mr Toscher: Yes, of course.

Judge Holmes: This is Doelp, D-O-E-L-P?

so
Ms. Cohen: D-O-E-L-P.

Judge Holmes: Okay. I was wondering how to pronounce that one.

ck
Mr Toscher: Randy Phillips.

Judge Holmes: Oh, okay.

lJa
Mr Toscher: And we believe Owen Dahl. Some of our witnesses are ... Mr. Dahl's coming
from Washington, and there's been weather up there. And - - but I think ... so there may be some
others as well. ae
Judge Holmes: Okay.

Mr Weitzman: I just want ...

ich
Ms Herbert: Can I qualify whether they're calling Mr. Dahl as a fact witness tomorrow or an
expert? Because they listed him as both.

Mr Toscher: We'll decide tonight, but one or both. It depends on our other witnesses and their
timing and organization.
mM

Ms Herbert: It would be helpful to know.

Mr Toscher: Assume that we're going to be preparing him and he's going to testify as an expert.
How's that?

Ms Herbert: Okay.
a

Mr Weitzman: I just wanted to say that it's kind of a rotating list as they're all available. But it
Te

depends how long A goes to see if we call B or if B's over until Friday.

Judge Holmes: Just want to stay on track. Always stay on track.

w.

Mr Toscher: Your Honor, just to let you know, I think we are not only on track, but ahead of
schedule. And that's part of our scrambling around. We have ... we've already covered, I believe,
two or three of the government's witnesses. So I think we're accelerating this. And we're going to
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 om
meet with Mr. Musen tonight regarding another government witness where we've been asked to
see if we can come to some sort of agreement regarding what his testimony would be. 764

n.c
Judge Holmes: All of that would be wonderful. And it gives you more time.

Ms Herbert: Would it be possible, Your Honor, for them to give us an indication of who's going
to testify on Friday or what the current plan is?

so
Mr Toscher: Let's see what happens tomorrow.

Judge Holmes: I warned you day by day just ... and to stay on track generally. That'll be fine. I
understand that everybody has to go back and prepare for these things. You can do that now. I

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will see you tomorrow morning.

Mr Toscher: Thank you, Your Honor.

lJa
ae
ich
a mM
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w.
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