news 2018

Firm secures $1.45 million recovery in brain injury case

December 20, 2018 – Firm partner Nicholas Carlin and associate Mike Levinson have completed their representation of Herman White, obtaining a $1,450,000 settlement for the client’s injuries.  Mr. White, a 57-year old financial services executive, was jogging along Five Canyons Road in Castro Valley when he came to a crosswalk.  A car stopped and waved to Mr. White that it was okay to cross. As Mr. White walked through the crosswalk, another car came from behind the first car, and slammed into that car, which in turn struck Mr. White.  The client suffered various physical injuries including a broken wrist, a broken toe and a large laceration on his forehead.  He also suffered a traumatic brain injury, with continuing symptoms, along with chronic pain from his physical injuries, all of which defendants disputed.  The case settled less than a month before trial was scheduled to start.

Firm defeats another attempt to force arbitration of employment claims

December 19, 2018 – Firm lawyers Nick Carlin and Brian Conlon succeeded today in convincing Alameda County Superior Court Judge Winifred Y. Smith to reject auto dealership Hanlees Auto Group’s attempt to compel arbitration of most of firm client Thomas Jarboe’s employment claims.  The employer based its motion to compel arbitration on an agreement the client allegedly entered into with only one of its conglomerate’s entities. In denying in substantial part Hanlees’ motion, the court agreed with the firm that the client could only be compelled to arbitrate his individual claims with the entity listed on the arbitration agreement, and not the other entities or individuals he worked for.  The court also agreed that the client’s Private Attorney General Act claims could not be arbitrated at all and that he was entitled to “seek and recover every remedy” otherwise available to the State of California in court, including lost wages payable to aggrieved employees under California Labor Code § 558.  The court also refused to stay, as Hanless requested it do, any part of the court case while the client’s individual claims are arbitrated.  Further proceedings before Judge Smith are pending, as the firm continues its efforts to vindicate the client’s rights and those of his fellow employees in court.

Firm closes “Spirit in the Sky” sale

December 11, 2018 -- Partner David Given and of counsel attorney Elliot Cahn have completed their representation of Trans/Tone Productions and Great Honesty Music in the sale of the master recording of and song copyright in the 1969 smash hit “Spirit in the Sky” to Concord Music. The song was written and originally recorded by Norman Greenbaum and produced by Erik Jacobsen (who also produced the Lovin' Spoonful’s biggest hits as well as Chris Isaak’s multi-platinum “Wicked Game"), and went on to sell two million copies in the U.S.  Greenbaum's version was the last single released in the 1960s to reach the top of the U.S. charts. It also reached #1 in the U.K., Germany, Australia, and Canada, and was later featured in innumerable films and advertising campaigns.  It is unique among hit songs: Three different recorded versions by three different artists in three different decades have reached #1 on the U.K. charts.  Says Cahn, “It was interesting how the deal ended up with Concord.  I was on the phone with their general counsel, whom I’ve known for nearly 40 years, talking about another matter. I asked almost in passing if Concord might be interested in “Spirit." I got a call with an enthusiastic yes later that afternoon, and there was a great offer on my desk within a few days.  Sometimes these long-standing relationships really do pay off.” Says Given, "It was an honor and a privilege to represent the rights-holders in this incredible song and recording. It doesn't get much better." Terms of the deal remain confidential.  

Firm victorious in case against NRA

December 6, 2018 – Firm partner Nicholas A. Carlin announced today the settlement of a lawsuit initiated earlier this year against the National Rifle Association. Sir Anish Kapoor, the world renowned London-based artist, sued the NRA for using, without his permission, an image of his sculpture “Cloud Gate” (also known colloquially as “The Bean”) located in Millennium Park in Chicago, in a notorious NRA recruiting and fundraising video narrated by Dana Loesch entitled “The Violence of Lies.” The video is a naked piece of propaganda that, according to the Washington Post, was “designed to provoke fear, if not incite violence,” and according to the New York Times became “one of the latest flash points for partisan anger.” Under the settlement, the NRA will remove the images of Cloud Gate from all copies of “The Violence of Lies” video in any distribution channels over which it has control, and agrees not to use it again in the future. For a copy of the firm’s press release announcing the end of the case, click here. For a copy of Mr. Kapoor’s press release, click here.

Firm pushes back in FEAR THE WALKING DEAD dispute

November 30, 2018 – Firm partner David Given and associate Jake Feaver today filed papers opposing defendants’ effort to convince federal district court judge Lucy H. Koh to dismiss client Mel Smith’s case against the creators of the hit AMC-TV series FEAR THE WALKING DEAD.  Mr. Smith’s complaint alleges that executive producers Robert Kirkman (the COO of his publisher, Image Comics) and David Alpert (his motion picture and television agent) had direct access to Smith’s three-part comic book series DEAD AHEAD and borrowed liberally from it in developing the spin-off to their smash television series THE WALKING DEAD.  In opposing defendants’ motion to dismiss, Mr. Smith argued that the two works bore many similarities sufficient to allow the case for infringement to proceed, and that defendants’ arguments to the contrary were factual, not legal, in nature.  Discovery in the case is underway.  Judge Koh has set a hearing on defendants’ motion for Jan. 17th.

Firm guides music publisher in sale of song rights

November 19, 2018 – Partner David Given and of counsel attorney Elliot Cahn have completed their representation of Elliot/Jacobsen Music Publishing in the sale of its song PAPA DON’T PREACH to Reservoir Media Group.  The transaction, which closed today, concludes a 30-year collaboration between songwriter Brian Elliot and music producer and personal manager Erik Jacobsen in the ownership and management of the rights to that song.  PAPA DON’T PREACH, written by Elliot, was originally recorded by Madonna.  That version of the song went on to become a smash hit, certified gold in both the U.S. and the U.K. and reaching the top of the charts in five countries.  The track was the first number one hit from Madonna’s 1986 studio album True Blue, and was later featured on the compilation albums The Immaculate Collection (1990) and Celebration (2009).  The song has also been recorded by Kelly Osbourne and the Cast of Glee. The firm has counseled several individual and corporate clients in similar transactions valued collectively at over $25 million.

Court rejects NRA's attempt to halt discovery in copyright dispute

November 14, 2018 – Federal magistrate judge Theresa Carroll Buchanan held a hearing today in firm client Anish Kapoor's copyright infringement case against the National Rifle Association.  Judge Buchanan scheduled the hearing to consider management of pre-trial matters relating to the case.  At that hearing, the NRA sought to prevent all discovery in the case and also wanted leave to file seriatim summary judgment motions.  The court agreed with the arguments of firm partner David Given that Kapoor should be permitted to launch his discovery on the NRA right away, and formally adopted Kapoor's position on that matter.  In her order issued later that day, Judge Buchanan set a series of deadlines and protocols for the management of the case before trial.  Kapoor has commenced his discovery against the NRA by demanding documents pertaining to its use of an image of Kapoor's "Cloud Gate" sculpture without his agreement in a fundraising video.

Firm fights off attempt to compel arbitration of client’s claims

November 1, 2018 – Los Angeles County Superior Court Judge Nancy Newman today denied the motion of Laseraway Medical Group to compel arbitration of firm client Miranda Swain’s claims against it arising from what she contends was a botched laser procedure and Laseraway’s misrepresentations regarding its services.  Laseraway relied upon an electronic “click-through” process that requires patients to navigate on an iPad immediately before their treatment.  That process, with pages of boilerplate language, includes the purported arbitration agreement.  Judge Newman found the process as well as three separate provisions of Laseraway’s agreement unfair – including one that exempted Laseraway from the obligation to arbitrate – and refused to enforce it.  Proceedings continue, with a Jan. 27, 2020 trial date set, in the matter.

Dates set in Anish Kapoor case against the NRA

October 24, 2018 – Federal district court judge Leonie Brinkma has set a series of deadlines in firm client Sir Anish Kapoor’s copyright infringement case against the National Rifle Association.  Judge Brinkma assumed jurisdiction of the case following its recent transfer from Chicago to Alexandria, Virginia.  Kapoor’s case arose from the NRA’s use without permission of an image of his iconic sculpture Cloud Gate (also known as The Bean) in a highly controversial fundraising video.  The parties are scheduled to appear in the Alexandria federal court on Nov. 14th.

Amended complaint sharpens focus in FEAR THE WALKING DEAD case

October 9, 2018 – Comic book writer Mel Smith today filed his second amended complaint in his case against the AMC network and others over what he says was the infringement of his comic book series DEAD AHEAD, published by Image Comics, in several episodes of the second season of FEAR THE WALKING DEAD.  Mr. Smith’s new pleading sought to answer defendants’ objections, made to federal district court judge Lucy Koh, that Mr. Smith had not identified any similarities in the two works and that he therefore had no claim for copyright infringement.  In his complaint, Mr. Smith named various business entities as well as executive producers Robert Kirkman (the COO of his publisher, Image Comics) and David Alpert (his motion picture and television agent) who, he says, had direct access to DEAD AHEAD and borrowed liberally from it in developing the spin-off to their smash television series THE WALKING DEAD.  In the meantime, Judge Koh has allowed (against defendants’ wishes) discovery in the case to proceed, and has ordered the defendants to respond to Mr. Smith’s new complaint on or before Nov. 2nd.

Firm partner honored for service at ABA event

October 5, 2018 – Firm partner David Given was honored by the American Bar Association’s Forum on the Entertainment and Sports Industries at an award luncheon held during the Forum’s annual meeting at the Cosmopolitan Hotel in Las Vegas, Nevada this year.  The Forum cited David for his years of service as Forum Chair; David also served as Music Division Chair as well as editor-in-chief of the Entertainment and Sports Lawyer, the Forum’s quarterly publication.  The Forum hosted the luncheon as part of its 40th Anniversary celebration.  Over the years, David has stayed active in the Forum, appearing on panels at its events and attending its Governing Committee meetings.

Firm opposes NRA’s efforts to move Cloud Gate case

September 13, 2018 – Firm partners Nick Carlin and David Given filed papers today opposing the effort of the National Rifle Association to move world-renowned artist Sir Anish Kapoor’s copyright infringement case against it to a jurisdiction closer to its headquarters.  The NRA used an image of his iconic sculpture Cloud Gate (also known as The Bean) in a highly controversial fundraising video without permission; when Sir Anish asked that the image be removed from the video, the NRA refused.  That led to his complaint for copyright infringement, filed in the federal court in Chicago, where Cloud Gate sits in Millennium Park.  In its opposition to the NRA’s motion to transfer to a federal court in Virginia, the firm pointed out the case’s obvious and important ties to the State of Illinois and the City of Chicago.  The dispute has received wide media coverage.  Federal district court judge John Z. Lee has scheduled a hearing on the NRA’s motion for Oct. 17th.

Firm's Lithia Motor deal named top 20 class action settlement for 2017

August 21, 2018 – recognized PEG&C on its 2017 Top 20 Class Action Settlements in California list for the firm's work in the case Dale et al. v. Lithia Motors, Inc. Firm partners Nicholas A. Carlin and Randy S. Erlewine, together with co-counsel, secured a settlement of over $4,000,000 approved in May of last year for certain auto dealership employees who had been subjected to various wage and hour violations at the hands of DCH Auto Group and Lithia Motors. With a class size of around 400, the settlement amounted to about $10,000 per class member. For a copy of the court’s order granting approval of this settlement, click here. Earlier this year, another court approved a settlement the firm concluded in related litigation on behalf of another group of Lithia employees for $6,500,000.  For a copy of the court’s order granting approval of that settlement, click here.

Partner to speak at Bar Association event

August 15, 2018 – Firm partner David Given will appear as a panelist discussing “Recent Developments in Music Copyright Law” at a brown bag luncheon co-sponsored by the Intellectual Property Section of the Bar Association of San Francisco and the Copyright Society of the U.S.  Topics to be covered include the Blurred Lines and Stairway to Heaven cases, the ongoing infringement litigation against Spotify and statutory copyright termination.  The panel is scheduled to begin at Noon on Wednesday, September 12th, in San Francisco. 

Firm scores $630,000 victory against Cheesecake Factory

June 29, 2018 – Two related corporate entities doing business as the well-known restaurant chain The Cheesecake Factory today agreed to have judgment entered against them for $630,000 in a brain injury case brought by the firm on behalf of a client who fell at one of their restaurants in the Bay Area.  Firm lawyers Nick Carlin and Mike Levinson litigated the case and stood ready for trial of the matter, which was set to begin Monday, July 2nd.  The Friday before the case’s trial date defendants accepted the client’s offer of compromise.  Entry of judgment in the case is pending.

Firm files copyright infringement case over FEAR THE WALKING DEAD

June 26, 2018 – Firm partner David Given today filed an action against the AMC network and various production companies and individuals on behalf of comic book writer Mel Smith.  The client’s complaint contends that elements of his comic book series DEAD AHEAD were copied and incorporated into several second season episodes of the hit television series FEAR THE WALKING DEAD, in violation of federal copyright law.  The complaint recounts that one of that television series’ producers was an executive at Mr. Smith’s comic book publisher, Image Comics of Berkeley, and another was his agent in developing and shopping DEAD AHEAD for film and television use.  Filed in the federal district court in San Francisco, the client’s lawsuit includes a state law claim for breach of fiduciary duty in addition to the claim under the federal Copyright Act.  Further proceedings in the matter are pending the court’s assignment of the case to a judge.

Firm battles Uber over employee arbitration agreement

June 25, 2018 – Firm lawyers Randy Erlewine and Brian Conlon filed papers today opposing the motion of Uber Technologies to compel individual arbitration of wage theft class action claims arising from Uber’s practices in its stock option grants to employees hired before late 2016.  Those claims, brought by a former software engineer for the company, arise from the contention that Uber misrepresented in its written employment contracts the nature of those option grants, leading to a significant devaluation of employee compensation from the promises made in those contracts once employees started work at the company.  In their papers, the firm’s lawyers argued that Uber’s arbitration agreement with its employees was unconscionable, pointing in part to a recent decision by an Administrative Law Judge that provisions of that agreement violated the federal National Labor Relations Act.  A decision by federal magistrate judge Jacqueline S. Corley is expected shortly in the matter.

Firm files copyright infringement case for renowned sculptor against NRA

June 19, 2018 – Firm partners Nick Carlin and David Given today filed a complaint against the National Rifle Association on behalf of renowned visionary artist Sir Anish Kapoor.  Late last year, the London-based artist discovered that the NRA had used an image of his sculpture “Cloud Gate” (also known colloquially as “The Bean”), located in Millennium Park in Chicago, without the artist’s permission in a recruiting video variously entitled “The Clenched Fist of Trust” or “The Violence of Lies.”  Appalled over the use of his work in that video, Sir Anish asked that the NRA remove it.  The NRA refused to do so, leading to a well-documented controversy earlier this year when the artist went public with his objection to and disgust over the use of his creative work in a video he felt played to the worst impulses of paranoia, conflict and violence.  Filed in the federal district court in Chicago, the client’s lawsuit alleges that the NRA has committed and continues to commit willful copyright infringement, and seeks to prevent the NRA from further exploiting Sir Anish’s work in its video.

Panel agrees with firm on location of Facebook/Cambridge Analytica action

June 6, 2018 – The U.S. Judicial Panel on Multidistrict Litigation agreed with the firm, issuing an order today directing that almost three dozen class actions against Facebook and Cambridge Analytica filed throughout the country should be centralized with the firm’s case in the federal district court in San Francisco.   The Panel, which is tasked with determining if and where a large number of cases involving common questions of fact should be centrally situated, also assigned the judge in the firm’s case to the matter. Federal district court judge Vince Chhabria has set a hearing in the matter for July 18.  To read the firm’s complaint, click here. If you believe you have been affected by the data breach or wish to learn more about the case, click here.

Firm guides long-time record label client in sale of assets

April 5, 2018 – Firm partner David Given completed his representation of long-time client Om Records in the sale of substantially all of its intellectual property assets.  The transaction, which included the sale of rights in both songs and recordings, closed today.  Founded in 1994, Om Records has enjoyed an almost 25-year run as one of the country’s leading EDM record labels and producers of live EDM events.  David has recently counseled several individual and corporate clients in similar transactions valued collectively at almost $25 million.

Federal court approves class settlement in data privacy case

March 27, 2018 – Federal district court judge Jon S. Tigar today granted final approval of the class action settlement reached in the firm’s breach of privacy case against a range of mobile application developers (including Twitter, Instagram and Yelp!) and Apple, Inc.  Following hotly-contested litigation, including a successful class certification effort led by firm partner David Given, Judge Tigar preliminarily approved the $5.3 million settlement in July 2017.  Today’s order marks the beginning of the end of the case, which began in March 2012 after reporting in the New York Times about private contact data being removed from iDevices without users’ knowledge or consent.  Approximately 60,000 class members who made claims will share in the common fund.  “As Judge Tigar’s order recognizes, this is an excellent result for the class,” Mr. Given said.  “Moreover, the case produced four published decisions,” Mr. Given continued, “clarifying consumers’ rights to control their personal data and establishing a basis to pursue legal claims classwide when technology companies take or misuse that data.”  A final judgment in the case is expected soon.

Firm files racketeering class complaint against Facebook and Cambridge Analytica

March 26, 2018 – Firm partner Nick Carlin today filed a class action complaint against Facebook and Cambridge Analytica on behalf of Facebook users affected by the data breach revealed by Cambridge Analytica co-founder Christopher Wylie on March 17th. Facebook has now admitted that Cambridge Analytica harvested and processed over 87 million American Facebook users’ private and sensitive information without user consent with the intent to use the data to manipulate the American public in elections. While this illegal behavior dates back to at least 2014, Facebook did nothing to remedy the breach until 2016 despite being aware of the problem of third-party apps obtaining information from users without authorization. Facebook furthermore has done nothing to date to notify users of the breach. The Complaint alleges among other things that Cambridge Analytica and related entities engaged in racketeering activities under the RICO statute for defrauding users into believing that the data would only be used for academic purposes. If you believe you have been affected by the data breach or wish to learn more about the investigation, click here

Firm opposes effort to force arbitration in employment dispute

March 5, 2018 – Firm lawyers Nick Carlin and Brian Conlon filed papers today opposing the petition of Hanlees Auto Group to compel individual arbitration of wage theft class action claims arising from Hanlees’ systematic failure to provide meal and rest breaks to its workers while falsifying time records to make it look like they were getting such breaks.  In those papers, the firm’s lawyers argued that the purported arbitration agreement is invalid and unenforceable and that it would essentially be a “get-out-of-jail free card” for Hanlees.  Hanlees owns and operates 16 car dealerships in California; hundreds of current and past employees have potentially been impacted by the practices alleged in the firm’s lawsuit.  A hearing on the matter in the Alameda County Superior Court is expected shortly.  For more information on the case, or if you have had similar employment experience with Hanlees, click here.

Firm launches wage and hour case against the Charlie Palmer Group

January 23, 2018 – Firm partners David Given and Nick Carlin filed a complaint today in San Francisco Superior Court on behalf of a former employee at Burritt Room + Tavern, a restaurant until recently operated by the Charlie Palmer Group.  The firm’s client seeks relief for California labor code violations by the collection of restaurants and hotels located in the State led by celebrity chef Charlie Palmer.  The client's complaint alleges that the restaurant group denied employees proper meal and rest breaks and failed to properly compensate for overtime worked.  Additionally, says the complaint, managers were instructed to falsify time records by marking employees as clocked out regardless of whether they had actually stopped working. The firm is investigating whether and how additional Charlie Palmer Group restaurants may have practiced similar labor violations. For a full list of locations under investigation, or if you believe you have been affected by any of these violations or wish to learn more about the investigation, click here.

March 26, 2018: Plaintiff filed a First Amended Complaint adding a representative PAGA claim on behalf of the State of California and fellow aggrieved employees for penalties based on the labor code violations. 

Firm adds two lawyers to its roster

January 2, 2018 – Firm managing partner David Given today announced the firm’s hiring of two new associate attorneys.  Michael Levinson comes to the firm with six-years’ experience practicing law at a large plaintiff’s personal injury firm in the Bay Area, and will continue to specialize in that area.  He graduated with honors from the University of Miami School of Law in 2010.  Jake Feaver graduated with honors last year from the University of California Hastings College of the Law, where he served on the editorial board of the Hastings Law Journal.  Jake served as a law clerk at the firm before law school, and rejoins the firm as an associate attorney after passing the California bar on his first try this past November.  Jake will focus on intellectual property, entertainment and commercial law matters.