news 2014

Firm adds to attorney line-up

December 1, 2014 – PE&G has added Brian Conlon to its staff and named Paul Lukacs of counsel to the firm. Brian recently concluded a two-year stint at the U.S. Court of Appeals for the Eighth Circuit in St. Louis, Missouri.  He is a 2011 graduate of Harvard Law School. Brian is currently licensed to practice law in New York only. Paul became an associate of PE&G upon graduation from Berkeley Law (Boalt Hall). He subsequently joined the law firm of Lavely & Singer in Los Angeles, primarily representing talent in the entertainment industry. He is based in Los Angeles where he focuses on entertainment and intellectual property law matters for the firm.

PE&G inks deal for San Francisco Film Centre space

November 13, 2014 – PE&G today signed a five-year lease for space at the San Francisco Film Centre, set to begin on Jan. 1st of next year.  The Film Centre is located in the iconic Presidio of San Francisco, once the oldest continuously operated military post in the nation.  It is now part of the Golden Gate National Recreation Area and National Park Service, and serves as home to many creative, financial and other professionals.  Built in 1938, the Centre’s building (39 Mesa Street) once served as headquarters for the 6th Army.  In 1999, members of the San Francisco Film Society (including the legendary George Gund, Jr.) spearheaded a historic renovation of the building.  The firm’s new space, which has room for growth, originally housed the production company of renowned comic and Academy Award-winning actor Robin Williams.

Model seeks to squash grape growers using her image without permission

October 30, 2014 – Firm partners Nick Carlin and David Given have filed a complaint on behalf of firm client, Cyndra Busch, a model and actress, against grape producers Jakov Dulcich & Sons and Sunlight International Sales, for violation of her right of publicity. The complaint alleges that defendants have used (and continue to use) a photograph of Ms. Busch as the face of their "Pretty Lady" brand grapes without Ms. Busch's knowledge or consent. Her image has become so closely associated with the grapes that the company's website describes her as their "favorite lady," who has "become a recognized symbol of quality." The complaint seeks damages as well as an injunction. The firm has extensive experience in right of publicity cases.

$4 million bank overdraft fee settlement preliminarily approved

October 20, 2014 – In an order entered today, a federal district court in Miami granted preliminary approval to a $4 million dollar class-action settlement with M&T Bank. As part of the order, firm partner Nicholas Carlin was appointed class counsel, and the firm's client was appointed class representative. The order noted that class counsel had “vigorously and competently represented the Settlement Class Members’ interests in the Action.”  The case, originally filed in 2009, involved the bank's practice of posting debit card charges in high to low order, rather than chronologically, in order to maximize overdraft fees charged to customers, a practice one court has described as an "accounting scam." The firm has settled similar cases against Bank of the West and Bank of America. Notice to class members will be sent out in December, with the final approval hearing set for March 4, 2015.  

Firm revs up PAGA litigation against DCH Auto Group for wage and hour violations

October 14, 2014 – Firm partner Nicholas Carlin filed an amended complaint today in Los Angeles Superior Court on behalf of Candace Holzer, a former employee of DCH Auto Group (one of the largest auto dealerships in the nation  - recently acquired by Lithia Motors [NYSE:LAD]), seeking relief under the California Private Attorneys General Act of 2004 (“PAGA”) for wage and hour violations. The complaint alleges, among other things, that DCH failed to allow its employees to take meal and rest breaks, and falsified time records to show that employees clocked out for lunch when in fact they were still working. The complaint seeks recovery on behalf of Ms. Holzer and all other non-exempt employees of DCH in all of its auto dealerships in California. Any current or former employee with information about such potential labor code violations is encouraged to contact the firm. PE&G has launched a website as a part of its investigation of California car dealerships affiliated with DCH Auto Group for possible systematic labor code violations.   

Daydream Believer says EMI unfairly double dipping

September 29, 2014 – Firm partners Nicholas Carlin and David Given filed a lawsuit in Marin County Superior Court today on behalf of Buffy Stewart, the widow of songwriter and former Kingston Trio member John Stewart, against EMI Music Publishing, for breach of contract and breach of the covenant of good faith and fair dealing in connection with EMI’s royalty accounting for the mega-hit song Daydream Believer, made famous by The Monkees. The song was originally written about Ms. Stewart. The lawsuit alleges that EMI has engaged in unfair self-dealing in connection with the collection of royalties in foreign countries, in that EMI uses its own foreign subsidiaries to collect the royalties, and unfairly charges EMI songwriters such as Stewart 50% of such collections, instead of the usual market rate of 10%. 

Incredibeard sends a little chin music to right of publicity violator

September 5, 2014 – Partner Nick Carlin has concluded a settlement on behalf of firm client Isaiah Webb, better known as Incredibeard, with a college in Michigan over the unauthorized use of the client's image on billboards and the college's website. The college agreed to cease and desist from the unauthorized uses and to pay an undisclosed amount of money to the client. The firm continues to handle all manner of unauthorized use cases for its performer and talent agency clients; in December 2009, the firm obtained what is still considered the largest result for non-celebrities in California to date in a right of publicity case. 

Firm opposes claims in Brian Jonestown Massacre copyright dispute

August 18, 2014 – Partner David Given today prevailed on a motion to strike musician Jeffrey Davies’ answer and dismiss his counterclaims against firm client Anton Newcombe, a/k/a The Brian Jonestown Massacre. Through the lawsuit, Newcombe seeks a ruling that – contrary to Davies’ contention that he co-authored many of BJM’s musical works – Davies neither authored the works (with the exception of three songs) nor has any ownership interest in them. Davies attempted to assert counterclaims against Newcombe for, among other things, misappropriation, fraud, and copyright infringement. Just as he did during the previous round of motion practice, Magistrate Judge Nathaniel Cousins of the Northern District of California ruled in Newcombe’s favor on every issue, holding that many of Davies’ state-law claims are preempted by the Copyright Act and that he failed to properly plead other claims. The court granted Davies leave to attempt to cure the defects in his counterclaims but dismissed for good Davies’ requests for statutory damages, attorneys’ fees, and punitive damages arising out of Newcombe’s alleged copyright infringement.

Firm partner advocates for artists at Copyright Office policy reform panel

July 30, 2014 – Partner David Given participated in a roundtable discussion on remixes hosted by the Copyright Office and the Department of Commerce’s Internet Policy Task Force at the University of California Berkeley’s School of Law (Boalt Hall). The discussion was the final in a series of four roundtables (earlier roundtables were hosted at Vanderbilt, Harvard, and Loyola law schools) which emerged from a Green Paper designed to elicit discussion surrounding whether the current legal framework for the creation of remixes unacceptably impedes such remixing. Among the panelists offering their perspectives were lawyers, law professors, academics, artists, and industry and non-profit representatives. As a tireless advocate for nearly 25 years on behalf of creators, David discussed, among other issues, the need to preserve artists’ ability to say “no” to uses of their copyrighted works, the functionality of the current system for those artists and their representatives, and the imperative role that factual, academic research must play in determining what policy changes, if any, are necessary.

Firm represents key personnel and shareholders in acquisition by Fortune 500 Company

July 9, 2014 – Partner Randy Erlewine represented the high-level executives and minority shareholders of a San Francisco-based consulting company in connection with the company’s acquisition by a global commercial real estate services and investment firm. The PE&G attorney, among other things, protected his clients’ interests by negotiating the terms of their employment agreements and (for personnel located outside California) non-compete agreements. The firm’s work contributed to the successful and timely completion of the transaction.

Randy Erlewine again named Super Lawyer

July 7, 2014 – This marks the third consecutive year that firm partner Randy Erlewine has been selected as a Super Lawyer in the list of Northern California Super Lawyers. This honor is given to the top 5% of lawyers practicing in Northern California. Randy had also previously received this award in each of the years from 2005 through 2010.

Amended complaint sharpens focus in privacy case against Apple and app developers

June 27, 2014 – The firm today filed an amended complaint on behalf of plaintiffs in the class action case against Apple and a dozen of the App Store’s largest app developers (including, among others, Electronic Arts and Twitter) asserting breaches of privacy relating to the unauthorized uploading of address book data from consumers’ iDevices.  The amended complaint comes in response to the 55-page decision of Federal District Court Judge Jon S. Tigar on defendants’ various motions to dismiss plaintiffs’ claims in their entirety.  Issued in May, that decision granted in part and denied in part those motions.  The amended complaint serves to address concerns raised in Judge Tigar’s decision with plaintiffs’ prior pleadings, while keeping intact claims the court said could proceed, some subject to additional factual detail.  Judge Tigar appointed the firm interim co-lead counsel in the case last October.

Firm presses copyright ownership case for Anton Newcombe, a/k/a The Brian Jonestown Massacre

May 12, 2014 – Partner David Given overcame numerous procedural obstacles in his effort to protect singer-songwriter and recording artist Anton Newcombe’s rights to the body of work (compositions and sound recordings) created by him as the Brian Jonestown Massacre.  In response to musician Jeffrey Davies’ claims that he coauthored many of the BJM works, PE&G filed suit on behalf of Newcombe, seeking a ruling that (with the exception of three songs) Davies neither authored the works nor has any ownership interest in them.  Rather than respond to the merits of Newcombe’s complaint, Davies filed a series of motions seeking to dismiss the suit on a variety of grounds, to strike Newcombe’s allegations, and/or to transfer the case to Los Angeles.  In a carefully reasoned 13-page decision issued today, Magistrate Judge Nathaniel Cousins of the Northern District of California ruled in Newcombe's favor on every issue, and ordered Davies to answer Newcombe's allegations. The judge also set the matter for a case management conference next month.

$4 million settlement reached in bank overdraft fee case against M&T Bank

April 22, 2014 – PE&G partner Nicholas Carlin helped achieve a tentative settlement in a bank overdraft fee case on behalf of a class of M&T Bank customers. The named plaintiff is a Maryland resident who alleged that the bank unlawfully charged her and other bank customers excessive overdraft fees on their debit card transactions. The plaintiff alleged that the bank employed a bookkeeping device to multiply the number of overdraft occurrences its customers would incur, and thereby increase the number of overdraft fees charged to a customers' account. By re-ordering customers' daily debit transactions in a high-to-low order - instead of in the order in which they occurred - the bank depleted account balances as fast as mathematically possible, maximizing the possibility that insufficient funds would be left for the string of lower dollar transactions. Following several months of mediation, M&T Bank agreed to pay $4 million to settle the case. The settlement will be presented for preliminary approval to the federal judge presiding over the case in the near future.

Firm stakes out trademark claim for client in band name dispute

March 31, 2014 – Partner David Given today submitted his main (trial) brief in the case of Wonderbread 5 v. Gilles, a matter pending before the Trademark Trial and Appeal Board. The case concerns a dispute over the band name "Wonderbread 5" and the filing of a trademark registration for that name by a disgruntled former band member following his exit from the band in 2009. The band (a popular San Francisco-based party band) is seeking to cancel that registration on grounds of prior use and fraud on the Trademark Office. The former band member's brief is due shortly, after which the TTAB will take additional argument and issue a decision in the matter.

Firm partner speaks at South by Southwest Music Conference on industry class actions

March 14, 2014 – Firm partner David Given appeared at the South by Southwest Music Conference, participating on a panel entitled "Actions, Reactions and Class Actions: Music Business Litigation." He gave an update on the recently-concluded settlement with Warner Music Group on the accounting to artists and other royalty participants for income derived from internet music providers, as well as on other pending class cases over the same subject against UMG Recordings and EMI Music/Capitol Records. The panel also reviewed recent developments in music industry litigation and the suitability of class actions in the entertainment industry.

Court grants final approval of wage and hour class action settlement

February 19, 2014 – The San Francisco Superior Court today approved the settlement of a class action on behalf of hundreds of minimum wage workers, who alleged they had been unlawfully denied meal and rest breaks. Under the settlement, each of 525 class members, represented by partner Nicholas Carlin, will receive payments averaging over $1,650, and in many cases exceeding $5,000. In addition, defendants will pay a record $45,000 in penalties to the California Labor & Workforce Development Agency.

Firm client wins commercial lease dispute with landlord

February 11, 2014 – In a Final Arbitration Award issued today by the Hon. V. Gene McDonald (Ret.), partner Nicholas Carlin obtained total victory for the firm's client, a local independent record label. The client's lease gave it the right to sublet the premises subject only to the landlord's consent, not to be unreasonably withheld, and to split with the landlord any excess rent that the sublessee might pay over and above the original rent. The client wanted to move out and sought to sublet the premises. Rents had gone up dramatically and the landlord, not wanting to share the excess rent, engaged in bad faith tactics to delay and ultimately deny consent. After the client moved out, the landlord immediately turned around and rented the space directly to the proposed subtenant on terms identical to the proposed sublease. After a three day trial, Judge McDonald found that the landlord unreasonably withheld consent and acted in bad faith. He awarded the firm's client damages on every element claimed as well as the right to share the future excess rent, a total value of approximately $250,000. Judge McDonald also ruled almost entirely in the client's favor on the landlord's $300,000 cross-complaint, finding in the landlord's favor on one item of damage for less than $900. The case settled shortly after the firm filed its motion for attorneys' fees and costs.

Federal Court gives preliminary approval to settlement with Warner Music in digital download case

January 23, 2014 – Federal District Court Judge Richard Seeborg today granted preliminary approval to a deal struck between a group of recording artists and Warner Music Group over the treatment of monies derived from digital downloads and ringtones. The settlement was concluded following a year of intense negotiations between a team of lawyers representing the record label and PE&G and the other lead law firms representing the artists. The deal provides an $11.5 million fund for pre-digital age artists to make a claim for past amounts based on their download activity together with an uplift in the royalty rate paid to artists by WMG on download income. Notice to the class and the period to make claims by class members has commenced. A final approval hearing is scheduled for October. For more information about the settlement, and what an artist may need to make a claim, click here.