To threaten or not to threaten (Mollie)

I don’t know if you’ve ever been in a situation where you’re recieving threatening letters from lawyers but it’s most unpleasant. As any of you who have been following the latest with Issues, Etc. know, LCMS, Inc.’s lawyers sent a threatening letter to Pastor Todd Wilken and Jeff Schwarz.

Or did they?

Some of you have written to the LCMS Board of Directors and to LCMS CAO, Ron Schultz, inquiring about the LCMS BOD’s opposition to the “Issues, Etc.” trademark application AND their threat of legal action against Wilken and Schwarz.

Some of you may have also received a curious reply from Ron Schultz saying something like,

“The LCMS has not filed any legal action against Rev. Wilken or Mr. Schwarz. Further, contrary to what you may have heard, nor has the LCMS threatened to sue them. Apparently, Rev. Wilken has been telling people that the LCMS has threatened to sue him by referring to a letter our attorney wrote to his attorney encouraging them to negotiate in good faith. Rev. Wilken has taken part of the letter out of context and mischaracterized it as a threat by the LCMS.”

Has the LCMS threaten legal action against Pastor Wilken and Jeff Schwarz, or not? Is this a case of “he said, he said”? Has Pastor Wilken taken part of the letter out of context, or mischaracterized it?
Well, judge for yourself.

Here’s the section of the actual December 16 letter from the LCMS laywer that Pastor Wilken and Jeff Schwarz say threatens legal action against them. Judge for yourself:

“Unless your client is willing to negotiate in good faith to finalize a mutually acceptable agreement in the near future, along the lines that were discussed last summer, we will be left with no alternative but to recommend that The Lutheran Church-Missouri Synod prosecute the opposition against Madsen’s application and take action against your clients to enforce its rights to the trademark.”

Does that sound like a threat of legal action to you? I always think threats of legal action sound like threats of legal action and I’m unsure how Schultz & Co. could say otherwise.

Remember that the LCMS has already made good on the first threat to “prosecute the opposition against Madsen’s application.” The LCMS is, in fact, actively opposing Harry Madsen’s trademark application for the Issues, Etc. name.

So, what reason is there to believe that the LCMS won’t make good on the second part, “to… take action against your clients to enforce its rights to the trademark”?

If you received a letter like this from a corporate lawyer, would you consider it a threat?

Ron Schultz says it isn’t a threat, Pastor Wilken and Jeff Schwarz say it is.

Judge for yourself.


Comments

To threaten or not to threaten (Mollie) — 27 Comments

  1. “Unless your client is willing to . . . , we will be left with no alternative but to. . . .” If that isn’t threat language, I don’t know what is. Oh, BTW, Kieschnick/Schultz, you WILL have an alternative you will be left with, i.e.: Let it go.

  2. Quinn – I’ve asked the question as well.

    President Kieschnick,

    Not a threat?

    “Unless your client is willing to negotiate in good faith to finalize a mutually acceptable agreement in the near future, along the lines that were discussed last summer, we will be left with no alternative but to recommend that The Lutheran Church-Missouri Synod prosecute the opposition against Madsen’s application and take action against your clients to enforce its rights to the trademark.”

    Certainly sounds like one to me. You know all the rhetoric. Why not just let Issues Etc. be to sink or swim on their own merits. You didn’t want them anyway so you fired them and cancelled the show. You can’t seem to let it go though – can you? Why? I believe I know where you’re going and what you’ve got up your sleeve. I’ve already stopped my tithing to the LCMS and am encouraging everyone I know to do the same. It is apparent – not in your words but in your deeds – that funds and votes at convention are all that seem to matter.

    Maybe you should heed the words of Gamaliel in Acts 5 (especially 38 – 39), “38 So in the present case I tell you, keep away from these men and let them alone, for if this plan or this undertaking is of man, it will fail; 39 but if it is of God, you will not be able to overthrow them. You might even be found opposing God!”

    I continue to pray that you, President Mirly, and all in the LCMS who are straying from Scripture and the Confessions would recognize the path they are taking and return.

    In Christ,

    Paul

  3. It is a threat, albeit a legalese one. But as for negotiating in good faith, why should Todd & Jeff negotiate over rights to a name that the LCMS doesn’t own anymore?

    The LCMS had ten years to continue to file the proper paperwork & pay the fees to the trademark office to maintain the rights to the name “Issues Etc.” Yet, they didn’t. Then they canceled the show & made several statements to the effect that they had no intention of using the name again. They abandoned the name & yet continue to believe they own the rights to it. It’s absolutely insane, but apparently this is the way the current leadership works. They believe themselves to be above laws.

    This is all simply sophistry on the part of the LCMS, but it’s SOP for them.

  4. There is no conceivable way one could read that paragraph and come away with it meaning anything other than the obvious: it is a threat of legal action against Todd & Jeff. It’s right there in plain English.

    So in addition to legal intimidation and threats against a brother christian, LCMS, Inc. and its henchmen are, in my opinion, now engaging in willful deception. My brothers, it’s just my opinion, but I believe LCMS, Inc. is in the grasp of some truly sinister forces.

  5. These attorneys don’t think this is threat language?!?! What planet are they from?!

    It sounds like these people went to the Bill Clinton School of Spin and Obfuscation (BCSSO). Their motto is, “It all depends on what is is”.

    Maybe they think this is only “constructive coercion”, “friendly blackmail”, “loving strong-arm tactics”, or “Christian Orwellianism”.

  6. Hey Jeff and Pastor Wilken,

    How about sending an “I’ve got Issues” t-shirt to President Kieschnick? He certainly has issues – but not Issues Etc.! (exclamation added for the Right Reverend Wilken, Bishop of LPR)

    Paul in O’Fallon

  7. Negotiating in good faith apprently means coming to some agrement about not saying bad things about LCMS INC. Like, not calling it LCMS, Inc., I suppose.
    They don’t want the name; maybe they don’t even want to bankrupt Wilken and Shwarz (which sounds like a crack legal team, if you ask me). They just want some way of controlling what Wilken and Schwarz say, whether about the initial firings and cancellation, or the continued — and apace! — waywardism of those in power. Ablaze! is at stake, as are many apparently important restructuring plans. These things are that important; Wilken, Schwarz, and the gospel are not.

  8. Threats like this sound like the last whimper of a dying dog. I’m sure going to miss Old Lavender.

  9. Sounds to me like some clever attorneys decided to “upsell” their client on this matter. If LCMess,Inc., really wanted the trademark, they’d have paid a few hundred dollars to retain it, years ago.

    Now, they’re paying …. well, just look at the schedule that Mollie posted in the “Money, money” article and do the math.

    For starters, you can assume that none of the three or four attorneys on the case bills less than $100 per hour and that their incremental units are half-hours. Cha*ching*, you-all!

  10. It’s intimidation and it’s a threat towards faithful brothers.

    The scandal and legal bills grow.

  11. “Unless your client is willing to negotiate in good faith to finalize a mutually acceptable agreement in the near future, along the lines that were discussed last summer, we will be left with no alternative…”

    There are actually a number of possible interpretations here and the statement gives plenty of room for spin.

    (1) The assertion is made that an agreement was discussed last summer. However, there is no indication as to whether the discussion(s) of that agreement was unilateral or bilateral. Because the paragraph speaks of “finalizing” a “mutually acceptable agreement” there is an implication that it was bilateral, but the paragraph does not actually state that.

    (2) One of two possible assertions are made as to the earlier discussions. Either (a) Todd and Jeff are unwilling to negotiate period, or (b) Todd and Jeff not negotiating in good faith. The statement is unclear.

    A spin-master can have a field day with the ambiguities here. The easiest manner of attack is disparage Todd and Jeff and claim that they are “not negotiating in good faith”, but implying that they are actually in active negotiations. As “proof” that they are not negotiating “in good faith” the spin master will trot out as evidence that an agreement has already been discussed. Furthermore, the author of the letter is seeking a “mutually acceptable” agreement, implying that the previous “discussions” were bilateral.

    However, (and anyone here feel free to correct me) as I understand it, there have been no bilateral “discussions” on the matter. Todd and Jeff were originally presented with an offer to settle the dispute which they found entirely unacceptable because of (1) factual misrepresentations they would be required to affirm (like the assertion that LCMS, Inc. still possessed the trademark) and (2) the fact that they would be required to self-censor based upon an arbitrary standard with no clear guidelines that is left open to wild interpretation and application.

    The only “discussion” that I am aware of is the internal Board of Directors discussion that directed legal council to draft an agreement for acceptance by Todd and Jeff. The only “bilateral” aspect to the discussion I’ve heard referenced is Todd and Jeff’s answer of “No and here’s why…” with no response (other than a restatement of the original agreement, the threat of legal action, and the blockage of a 3rd party’s attempt to register the trademark).

    I realize I’m only hearing from one party in the dispute and there may be more than meets the eye, so I would recommend that LCMS, Inc. publicly present any evidence to refute Messrs Wilken and Schwarz’ statements or any other factual errors in the record that exists online if any such evidence exists. It’s clear Wilken/Schwarz have no problem trying the “Issues” issue in the court of “public opinion” and thus should have little problem with such disclosures.

    Relatedly, perhaps Todd and Jeff would consider making inter-party communications public (as full text as prudent/possible given the over-arching threats) in an effort to shed some more light on the … uh… issues.

    Anyway, my 2 cents.

    IANAL (I am not a lawyer) and standard disclaimers apply.

  12. This is no game. The incessant suing by the LCMS at the expense of seminary students, pastors, missionaries, widows, orphans, and all who need to hear the Gospel of Christ must stop. Countless souls are at stake.

  13. To Dr. Phillips, comment #13;

    Because at this point in time, any concession or any move of theirs that is “giving in” will, as I’ve said on other site, lend credibility to Dr. K, hand him a victory, and add strength to his tyranny.

    I do not want to see them initiate anything, but if the LCMS continues to needlessly and wastefully harrass them, Wilken and Schwarz need to defend themself.

  14. Wilken and Schwarz need to defend themself.”

    That’s number one! And they’ll need help.

    Later on the convention delegates will have the responsibility to revoke the synodical membership of the synodical president and the synodical members of the Board of Directors. If these people continue to remain unrepentant, the churches where they have congregational membership will have to consider excommunication.

    It will not be pleasant.

  15. To the LCMS: Let it go. The language is obviously threatening and for what reason I cannot imagine other than to draw a line in the sand. That can’t possibly end well.

  16. “I realize I’m only hearing from one party in the dispute and there may be more than meets the eye, so I would recommend that LCMS, Inc. publicly present any evidence to refute Messrs Wilken and Schwarz’ statements or any other factual errors in the record that exists online if any such evidence exists. It’s clear Wilken/Schwarz have no problem trying the “Issues” issue in the court of “public opinion” and thus should have little problem with such disclosures.”

    I agree, I think there should be more transparency of the whole debacle.

  17. That letter is a threat, I’ve sent many of those myself. The goal is to scare the recipient into settling.

    I don’t know about the legal merits, but even if LCMS has a legal right to the trademark “issues etc”, do they have any CHRISTIAN reason for seeking to intimidate Wilken into stopping his use of it? Is there a letter to LCMS leadership I can sign asking them to repent?

    Further, why does LCMS need outside counsel? Can it find no attorney to work in-house? I’d offer to work in-house for half of my current salary, so long as they don’t seek to use legal process to intimidate it’s ordained clergy for no Christian purpose.

  18. To “negotiate in good faith” requires that both sides have claims of some merit that they are able to substantiate. It is not possible to “negotiate in good faith” against a frivolous, fraudulent or unsubstantiated claim. To press a frivolous, fraudulent or unsubstantiated claim for something of value under threat of legal action is attempted extortion. It is a crime. Not easy to prosecute, but still criminal.

  19. That is definitely a letter threatening a lawsuit. I should know, I’ve written them myself.
    Beyond that, did not St. Paul address this specific issue regarding lawsuits between Christians? (unless of course,,,),
    Of course, while this is going on, we will hear the usual tale of woe from the Purple Palace bewailing our dire financial situation in the Synod, while at the same time engaging legal counsel to threaten litigation at a hefty hourly rate. Those letters are not written pro bono, I can assure you.
    Kyrie Eleison,
    Rev. Lee Wenskay
    [email protected]
    or [email protected]
    (recovering lawyer).

  20. It seems pretty clear to me. LCMS, Inc. wants Todd to stop saying bad things about LCMS, Inc. because LCMS, Inc. has little to no tolerance for criticism. Failing to curb Todd’s right to free speech with a gag order attached to his severance package, LCMS, Inc. is now attempting to accomplish the same by challenging their trademark application, which it certainly has a right to do as the former owner of the trademark. This is LCMS, Inc’s “last strand” so to speak, the last bit of control they have over Todd. Had LCMS, Inc. paid its trademark fees and kept its paperwork up to date, the ball would have been entirely in LCMS, Inc’s court. As it is, the last string it has is to attempt to defend its trademark.

    What’s interesting is to me is that the name Issues, Etc. is more closely associated with Todd Wilken than it is to LCMS, Inc. Clearly, LCMS, Inc. did not continue the show under that name with a new host, and has shown no intention of doing so. In challenging Wilken’s application, LCMS, Inc. is attempting to deprive Todd of a living in exchange for his silence, just as it deprived him of a severance package for the same reason.

    That, not the veiled legal threat, is what is immoral and unethical about this action on the part of LCMS, Inc.

  21. The Parser,

    They have made much of what has gone on quite public through their web-extras which you can listen to via their website. I would suggest that you do so.

  22. We need to parse that slippery language. It is NOT the case that the LCMS has threatened said legal action. Only that the LCMS’s *lawyer* says he will have to *recommend* legal action to the LCMS. That’s technically not yet a threat by the LCMS.

    (I’d sure take it as one, though, were I on the receiving end of it.)

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