December 9, 2015 – PEG&C partner Randy Erlewine today defeated the motion of defendant Jeff Burgess & Associates, Inc., which sought dismissal of the claims of the firm’s client under California’s wage and hour laws for overtime and premium pay. Marin County Superior Court Judge Roy O. Chernus agreed with the firm that material issues of fact over the client’s duties and responsibilities as the CEO’s executive assistant precluded summary judgment on those claims. Judge Chernus’ ruling opens the door to the same or similar claims on behalf of other employees of the defendant under California’s so-called PAGA statute; among other things, evidence adduced thus far in the case indicates that the defendant employer treated all of its employees as exempt from the California state statutory law’s wage and hour protections. In addition to her discrimination and retaliation claims, the firm’s client has alleged a wide-spread pattern and practice of wage theft by her former employer, potentially implicating years of wages of numerous current and former employees. The case is Bronson v. Jeff Burgess & Associates, Inc., et al., Case No. CV1404660.
December 4, 2015 – Firm lawyers David Given and Brian Conlon today filed a case in Los Angeles County Superior Court for client, and the three-time Grammy nominated cult rock band, Faith No More. Faith No More alleges that its former lead singer breached a 25-year old settlement agreement he made with the band by assigning his “rights” to Faith No More’s first album We Care A Lot and the use of Faith No More’s name in connection therewith to Manifesto Records. The complaint further alleges that Manifesto Records, and its president, who represented the lead singer in negotiating the very settlement agreement the lead singer is alleged to have breached, intentionally interfered with Faith No More’s contractual relations by inducing the lead singer to breach the contract and distributing We Care A Lot without the band’s consent.
December 2, 2015 – The firm today added Anna G. Wald to its staff of associate attorneys. Anna is a recent graduate of the Master of Laws Program at Berkeley Law. Anna obtained her Bachelor of Laws degree from the University of Athens School of Law, by reputation the finest law school in the country, where she received the Greek State Foundation (IKY) Scholarship for outstanding academic performance. Her academic interests included research into the legal issues surrounding Bitcoin as a digital currency, including issues pertaining to privacy, and she has published legal papers on several different subjects. Anna has been in private law practice in the Bay Area since her admission to the California bar.
November 12, 2015 – Plaintiffs Jason Green, Stephanie Cooley and Lauren Carter today moved on their own and on behalf of a group of iDevice users for certification of a class of approximately 480,000 users on their claim against app developer Path for invasion of privacy and against Apple for aiding and abetting same. Plaintiffs’ claims arise from technology built into several versions of the iOS mobile Path app which, upon activation, uploaded users’ address book data without notice. Today’s motion follows a Oct. 8th court order directing Path to produce both its CEO, Dave Morin, and its CTO, Nathan Folkman, for a sworn deposition. Those depositions are pending. The court has set the hearing on plaintiffs’ class certification motion for Dec. 17th.
October 28, 2015 – Marin County Superior Court Judge Roy O. Chernus today ruled in favor of the motion of firm's client to compel her former employer to produce documents and answer written questions under oath relating to her wage theft case. The firm's client brought a so-called PAGA case on her own behalf and on behalf of all other employees of Jeff Burgess & Associates, Inc., claiming that the company engaged in systematic and persistent wage and hour violations under California law. In addition to ordering wide-ranging discovery into its digital files, Judge Chernus ordered the employer to turn over information about other employees and to give those employees notice of the client's pending claims, in which they may have an interest. Judge Chernus directed the employer to comply within 30 days of the court’s order.
October 8, 2015 – Partner Randy Erlewine today filed a case in Los Angeles County Superior Court for firm client Suzanne Schwartzman in connection with losses sustained in her investment portfolio at Merrill Lynch. The client hails from the Central Valley, and is an 86-year old widow and 40-plus year customer of Merrill. She says that despite her conservative investment history and direction, a Merrill broker newly-assigned to her account funneled a significant portion of that portfolio into risky and volatile investments to generate commissions and fees, leading to several hundred thousand dollars in losses. Ms. Schwartzman has sued Merrill and its broker for elder abuse and related financial improprieties, seeking recovery of those losses as well as for her emotional distress as a result thereof. A response from the defendants to Ms. Schwartzman’s complaint is due next month.
September 3, 2015 – Firm partner Nick Carlin today filed a class action complaint against The Honest Company, Inc. on behalf of plaintiff Jonathan D. Rubin and a putative class of consumers. The lawsuit contends that The Honest Company marketed a host of products (including hand and dish soap, diapers and sunscreen) as both natural and effective when, in fact, they were not. The Honest Company, backed by a group of influential venture capital investors as well as television and film star Jessica Alba, who serves as its “Chief Creative Officer” and celebrity spokesperson, was recently in the news when consumers took to the internet to complain that the company’s sunscreen (one of the subjects of Mr. Rubin’s action) was ineffective, leading several to experience severe sunburn and blistering. The complaint asks for a minimum of $5 million in damages and restitution as well as declaratory and injunctive relief on behalf of a nationwide class of purchasers of these products.
August 19, 2015 – Federal district court judge Lucy D. Koh has set an August 2016 trial date in a copyright infringement action brought by firm client Andrew Paley, a GRAMMY and EMMY award-winning musician and composer, against the producers of a popular online animated children's television series called TUTITU. Exclusively aired via YouTube, with its own YouTube channel, over 1.5 million YouTube subscribers and reported views in excess of one billion, the series featured (until recently) theme music Paley says was based on his song "Breakfast at Stubbs," a version of which was itself featured in Paul Bartel's motion picture "Shelf Life," released in 1993. The firm has subpoenaed YouTube for financial and other data expected to reveal the inner workings of YouTube's compensation to content creators like TUTITU's producers. Judge Koh also set a November deadline for the parties to conduct a private mediation. A date for that event is pending.
August 11, 2015 – Partner Randy Erlewine has been named a Northern California Super Lawyer for 2015, a recognition bestowed annually on the top 5% of practicing lawyers in the region. Randy has received recognition for his extraordinary work in each of the years 2005 through 2010, as well as in each of the years 2012 through 2014. Randy’s practice includes commercial and employment and labor law matters.
August 7, 2015 – In a Memorandum Order issued today, Federal District Court Judge Aleta A. Trauger in Nashville sided with the firm’s client, Believe Digital (a digital music aggregator based in France), and its codefendant, SAAR (a music licensor based in Italy), granting dual motions to dismiss the copyright infringement complaint of plaintiff One Media IP (a U.K. entity) against them for lack of personal jurisdiction. Finding that One Media had “not demonstrated that Believe purposefully availed itself of the privilege of transacting business in Tennessee,” the court concluded that One Media “has not shown that it would be reasonable for the court to exercise personal jurisdiction over Believe.” In contrast to the firm’s briefing, the court characterized One Media’s submissions and factual contentions variously as “disingenuous,” “misleading,” “difficult to follow,” “vague,” "evasive" and “exaggerate[d]." The court pointed to “many instances” in which One Media “fudged the distinction” between entities formed in Tennessee and elsewhere to bolster its position that the case was rightfully before the Nashville court, and agreed with the firm's suggestion that One Media manufactured "an illusory present financial interest in this lawsuit" in a defunct Tennessee entity. Further proceedings in the action are pending.
August 6, 2015 – Los Angeles Superior Court Judge Emilie Elias today considered the petition for coordination filed by the firm on behalf of client Candace Holzer in her case against auto dealership giant DCH/Lithia Motors for wage theft under California statutory law. Currently pending are seven separate court cases filed by different employees against one or another of the various DCH entities and dealerships, in addition to a growing number of private individual arbitrations, for similar wage and hour violations. In a proceeding that lasted most of the morning, Judge Elias agreed with the firm that its follow-on case for employee Ryan Dale (who says DCH/Lithia coerced him and others into signing “settlement” agreements over these claims without the benefit of counsel and in violation of law) should be deemed an “included action” in any coordination. She retained jurisdiction over all such cases, stayed proceedings in them, and allowed the parties to commence a mediation of all claims before one mediator. Judge Elias set a deadline of March of next year to conclude that mediation. A court order is pending.
July 17, 2015 – In a case of first impression under California’s Talent Scam Prevention Act, Los Angeles Superior Court Judge John P. Farrell overruled the demurrer of defendants to the complaint of the firm’s clients for violation of the Act, rejecting in their entirety defendants’ untimeliness arguments. The firm’s clients are a young aspiring singer-songwriter and her supportive father. They say that over a two-and-a-half year period they paid over $1.7 million to an alleged former “Backstreet Boy,” Sam Licata (a/k/a Phoenix Stone), and his wife, Sybil Hall, together with their related business entities, some or all of which consisted of supposed “advance fees” for their representation of the young woman in her music career. (Such fees are unlawful under the Act, giving rise to damages starting at three times the amount of the fees.) In their demurrer, defendants contended that a one-year statute of limitations applied to the claim. Drawing on its research of the Act’s legislative history, the firm made the case that a three-year limitations period should apply. Judge Farrell agreed with the firm, overruling the demurrer and ordering defendants to answer the complaint. The Court also set a jury trial date of next May in the case.
June 30, 2015 – The firm has filed a second lawsuit against DCH Auto Group (now owned by Lithia Motors, one of the largest chains of car dealerships in the nation) for claims arising from DCH’s labor practices in the State of California, where it owns and operates over a dozen car dealerships. In a complaint filed today in Los Angeles County Superior Court, auto mechanic Ryan Dale accuses DCH of fraud and unfair competition, among other things, in connection with DCH’s practice of calling employees into “settlement” meetings with management and coercing those employees to sign away their wage claims for pennies on the dollar, in violation of law. These “settlement” meetings were apparently in response to allegations which continue to accumulate and are now pending in six separate lawsuits in three different California Superior Courts against DCH alleging systemic and persistent wage and hour law violations. Employees’ claims include failure to provide statutorily-mandated breaks (and falsifying time records to cover them up), failure to pay minimum wages, and failure to pay all earned wages. The firm recently sought to have those lawsuits coordinated by one judge; the California Judicial Council will hear the firm’s application to do so in early August.
June 30, 2015 – The firm prevailed today in the case of Wonderbread 5 v. Gilles, a matter pending before the Trademark Trial and Appeal Board, concerning 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. The band (a popular San Francisco-based party band) sought to cancel that registration on grounds of prior use and fraud on the Trademark Office. In its 26-page decision, the TTAB vindicated the band's position in the matter, finding unequivocally that the band partnership owned the name and that the former band member's trademark registration was invalid and must be cancelled.
June 18, 2015 – A Florida state court has granted the firm permission to file an amended complaint in a legal action brought by the firm’s clients against the proprietors of the popular Endless Jewelry line of products. The amended complaint filed today adds defendants, including the parent entity as well as that entity’s founder and CEO, and asserts additional claims for fraud, breach of fiduciary duty and conversion of ownership interests, among others. At its core, the current complaint alleges that plaintiffs conceived of, developed and launched the Endless Jewelry business in North and South America based on representations and agreements that they would receive a substantial ownership interest plus other compensation, but were later shut out of involvement in and denied a portion of the ongoing business. Defendants’ response to the amended complaint is expected next month.
June 17, 2015 – Partners Nick Carlin and David Given prevailed upon federal district court judge Lucy H. Koh today to return to state court model/actress Cyndra Busch’s case against grape grower Jakov Dulcich and Sons and its distributor for claims arising from the unauthorized use of her likeness in their “Pretty Lady” brand of grapes. Defendants contended that Ms. Busch’s claims belonged in federal court under the federal Copyright Act. Judge Koh easily dispatched those and other contentions in her 12-page decision, agreeing with the firm that removing the case from state court was untimely and therefore improper. The firm has since moved for an award of costs and fees for defendants’ improper removal of the action; Judge Koh will hear that motion in October. Meanwhile, the state court judge originally assigned the case in Marin County Superior Court has set a hearing in the action for next month.
June 12, 2015 – The firm applied today to the State of California's Judicial Council to coordinate several PAGA complaints against DCH Auto Group (USA) in the Los Angeles Superior Court. Six suits are pending in Southern California by current and former employees against the auto sales giant and its affiliated dealerships alleging numerous and persistent violations of the California labor code, including denying employees meal and rest breaks, failing to pay for overtime work, failing to pay minimum wages, failing to reimburse employees for out-of-pocket costs, and falsifying employees’ time records to cover it up. Coordination of the cases expands and consolidates the potential number of dealerships included in issue as well as expands and consolidates the categories of employees covered by the claims to include clerical and office workers, service writers, auto mechanics and technicians, and sales people.
June 5, 2015 – Federal district court judge William H. Alsup has set a July 2016 trial date in a class action brought by the firm on behalf of a former employee of famed Spenger’s Fresh Fish Grotto in Berkeley for wage theft. A recently-filed amended complaint amplified claims previously made against owner and operator McCormick & Schmick and its corporate parent, Landry’s (until 2010, a publicly traded company), for persistent and systematic wage and hour violations under California law. Hundreds of current and former restaurant employees may have been damaged by these alleged violations; lost wages and penalties may run into the millions of dollars. Judge Alsup also ordered a settlement conference to be conducted by U.S. Magistrate Judge Joseph C. Spero; a date for that event is pending. A motion for class certification is expected before the end of the year.
Following breakthrough victory for songwriters, EMI Music Publishing agrees to settle "Daydream Believer" case
May 29, 2015 – In the wake of an early defeat, EMI Music Publishing has agreed to settle firm client Stephanie Ford Stewart’s case against it for unfair business practices in connection with its policy and practice on the payment of foreign royalties. The client, widow of John Stewart – former Kingston Trio member and composer of The Monkees’ hit song “Daydream Believer” – contended that EMI was unfairly paying its own wholly-owned foreign affiliates (in other words, itself) half of the royalties they collected abroad for “Daydream Believer.” EMI previously won similar cases against the heirs of Duke Ellington and Bert Berns (“Twist and Shout”), and was confident those precedents would control here; however, firm lawyers Nick Carlin and David Given persuaded the Court that Stewart sufficiently alleged that EMI’s conduct was actionable and that the case should go forward on the merits of the client’s claims. Rather than risk letting a jury evaluate the unfairness of its conduct, EMI quickly agreed to settle the case. The terms of the settlement are confidential. Any composers or songwriters who suspect they are victims of similar misconduct by their music publishers are invited to contact the firm.
May 12, 2015 – Defendants today answered the allegations of an amended complaint filed in San Francisco federal court in a class action brought by the firm on behalf of a former employee of the famed Spenger’s Fresh Fish Grotto. The restaurant, currently owned and operated by restaurant chain McCormick & Schmick, in turn a wholly owned subsidiary of Landry’s (until 2010, a publicly traded company), has been an East Bay fixture on Fourth Street in Berkeley since the 1930s. The amended complaint amplifies claims previously made against these two entities for persistent and systematic wage and hour violations under California law. Hundreds of current and former restaurant employees may have been damaged by these alleged violations. A recent court order has set a case management conference in the matter for June 4th.
April 29, 2015 – Firm partners Nick Carlin and David Given filed a complaint for copyright infringement on behalf of Emmy and Grammy award-winning musician and composer Andrew Paley against Twist Animation, Ltd., the producer of the wildly popular online animated children’s series TUTITU TV, for using as its theme music a composition that Paley contends infringes his original song “Breakfast at Stubbs.” Paley’s song was first used in the film Shelf Life, directed by Paul Bartel (Eating Raoul), which hit theatres in 1993 and went on to become a cult classic. Twist began using its theme music for the TUTITU TV programming in 2013, releasing over 850 videos mostly through YouTube; those videos have since been seen a “staggering one billion” times, according to Twist, and the TUTITU TV channel on YouTube has garnered over 1.5 million subscribers. Assignment of the case to a federal district court judge is pending.
April 14, 2015 – Firm partners David Given and Nick Carlin joined other court-appointed lead counsel today in their motion for preliminary approval of an $11.5 million settlement reached on behalf of a group of recording artists and others in a class action case against UMG Recordings and Capitol Records over their treatment of income derived from digital downloads and ringtones. The settlement, which followed more than two years of negotiations and four years of hard-fought litigation, includes a fund for claims by class members for past due amounts as well as an increase of 10% in download and ringtone royalty rates. The firm’s clients include the Rick James Estate, David Coverdale (Deep Purple, Whitesnake, Coverdale/Page) and Rock and Roll Hall of Fame member Dave Mason (Traffic, Dave Mason Band), who served as class plaintiffs in the case. The court has set a hearing on the motion for April 28th.
UPDATE – April 28, 2015 – The court heard and granted plaintiffs’ motion for preliminary approval today. At the hearing of the matter, Federal District Court Judge Susan Illston voiced praise for the “wonderful job” the firm and its co-lead counsel did in the case. In her order entered later in the day, Judge Illston appointed the firm (together with others) class counsel with respect to all further proceedings and scheduled a final approval hearing for April of next year. Notice to the class is expected to commence shortly.
April 13, 2015 – The firm filed a complaint today on behalf of Shaun Anderson, the son of a Martinez Jail detainee, Robert Anderson, whose death allegedly resulted from civil rights violations and negligence on the part of jail employees. The late Mr. Anderson initially visited the hospital with symptoms of pneumonia, among other diagnoses, for which he was prescribed medication and care instructions that were largely disregarded upon his return to jail. Mr. Anderson spent the next several weeks in and (mostly) out of the hospital without access to proper medical care which, the lawsuit contends, ultimately led to his demise. Service of the complaint on the County of Contra Costa, its Sheriff and several other allegedly responsible party defendants is pending.
Firm partner to speak at international law symposium on developments in entertainment industry litigation
April 13, 2015 – Firm partner David Given has been invited to speak at the 6th Annual International Law Symposium on the World of Music, Film, Television, and Sports to be held at the Palms Hotel in Miami Beach, Florida. David will appear on a panel discussing issues and case law updates in entertainment industry litigation, with a special emphasis on the proceedings and outcome in the recent "Blurred Lines" song copyright infringement case. (The firm has prosecuted several such cases over the years, and has considerable expertise in this area.) The event, which runs for two days April 23rd and 24th, is sponsored by the American Bar Association Forum on the Entertainment and Sports Industries, which David chaired in the early 2000s.
March 31, 2015 – Partner Randy Erlewine appeared today as counsel of record for plaintiffs in legal action against the proprietors of the popular Endless Jewelry line of products. The case involves the circumstances of the 2014 start-up of a new line of jewelry that, according to public reports, has already become a $25 million a year business and has attracted the interest of investors as well as a "long term partnership" with Jennifer Lopez for a specialty line of branded product. Plaintiffs say they conceived of the concept for the new jewelry line, developed and implemented the business plan to launch it and organized logistics and personnel, after which they were shut out of any further involvement and denied a portion of the ongoing business. In addition to the firm, plaintiffs' legal team includes renowned South Florida litigator Bruce Rogow as well as the prominent Ft. Lauderdale plaintiff law firm of Conrad & Scherer LLP. An amended complaint amplifying plaintiffs' claims is expected shortly.
March 23, 2015 – Federal District Court Judge Jon S. Tigar today issued a 34-page decision upholding claims against Apple and a dozen of the country’s largest application developers for violations of law in connection with the practice of uploading address book data from users’ iDevices without the users’ authorization or consent. Today’s order is the third in which Judge Tigar has upheld plaintiffs’ class claims in the case (in which the court appointed the firm lead counsel in Oct. 2013) against defendants’ almost three-year long legal assault. In today’s order, the court found that plaintiffs adequately stated an “extensive” and, allegedly, false and misleading advertising campaign aimed at convincing the public that Apple’s personal computer devices were (and are) “secure and include comprehensive consumer-privacy protections.” The court also sustained, as it did before, plaintiffs’ invasion of privacy claims against both the app developers and Apple despite several lines of legal attack, including that the federal Copyright Act preempted those claims in their entirety. Defendants now have 14 days to answer plaintiffs’ consolidated complaint, after which the case will proceed to the pre-trial discovery stage.
March 12, 2015 – Firm partner Nick Carlin succeeded today in overcoming multiple objections to moving forward with client Candace Holzer’s wage theft case against DCH Auto Group, one of the largest auto dealerships in the nation, a case brought under California’s Private Attorneys General Act and seeking broad compensatory relief. Siding with Ms. Holzer, Los Angeles County Superior Court Judge Michael Johnson rejected DCH’s attempt to compel arbitration of Ms. Holzer’s wage and hour claims on behalf of herself and all other non-exempt employees throughout the State of California; Judge Johnson also refused to grant a stay of Ms. Holzer’s case, as requested by DCH on multiple grounds, including the existence of pending arbitration proceedings by others on their own individual wage theft claims. The court’s order is pending.
March 4, 2015 – At a hearing conducted this morning, a federal district court in Miami granted final approval to a $4 million class-action settlement with M&T Bank. Firm partner Nick Carlin appeared as class counsel on behalf of the bank’s customers. 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." An order confirming the court’s approval is pending. Beginning in 2009, the firm was instrumental in commencing and prosecuting cases resulting in over $430 million in settlement proceeds for bank customers who were the victims of overdraft fee abuse, work cited by the Consumer Attorneys of California when it named Nick Carlin and David Given “Consumer Attorneys of the Year” finalists in 2012.
UPDATE – March 13, 2015 – The court entered its order and judgment today giving final approval to the settlement of this class action. In his order of final approval, the judge complimented the firm, finding that it “undertook a risky and undesirable case and, through diligence, perseverance, and skill, obtained an outstanding result. [It is] to be commended.”
March 2, 2015 – In a carefully reasoned and groundbreaking 36-page decision issued today, U.S. Magistrate Judge Jacqueline Scott Corley agreed with the arguments made by firm partners Nicholas Carlin and David Given and gave the go-ahead to a lawsuit filed by firm client Stephanie Ford Stewart against EMI Music Publishing, the world’s largest music publisher, challenging EMI’s practice of paying its own foreign affiliates 50% of foreign royalties before remitting the balance to itself, to split 50/50 with its legacy songwriters. Stewart, the widow of John Stewart, former member of the Kingston Trio and composer of hit tunes such as The Monkees’ classic "Daydream Believer," alleges that EMI's self-dealing results in a drastic reduction in her (and others') share of such royalties. Judge Corley ruled that Stewart adequately alleged that EMI engaged in unfair business practices and breached the covenant of good faith and fair dealing, stating “the implied covenant claim asserts that Screen-Gems EMI has wronged Plaintiff by paying fees to foreign sub-publishers that are grossly above market rate, thereby depriving Plaintiff of the full benefit of the 50% net receipts royalty.” Judge Corley also ruled that Stewart adequately alleged that Screen-Gems EMI, the U.S. EMI entity that Stewart’s publishing contract was with, and the EMI foreign affiliates currently retaining 50% of the foreign royalties, are in reality a single enterprise and that money earned by one is money earned by all. Stewart's case is the first in the U.S. to successfully challenge the practice of music publishers double dipping in the collection of foreign royalties for legacy songwriters with so-called "net receipts" language in their publishing agreements. In a U.K. case from the 1980s, Elton John prevailed against his music publisher on similar claims; however, in this country, songwriters have struggled. In denying EMI’s motion to dismiss Stewart’s case, Judge Corley noted that none of the U.S. cases alleged, as Stewart does here, that the EMI entities were a single enterprise, or that EMI breached the covenant of good faith and fair dealing.
February 23, 2015 – The firm today filed a 23-page federal court complaint against the owner and operator (together with the corporate parent) of Spenger’s Fresh Fish Grotto, the popular seafood restaurant located in Berkeley, on behalf of a putative class of the restaurant's workers. The class action complaint alleges a pattern and practice of unlawful conduct, including forcing employees to work off-the-clock and without compensation, failing to provide statutorily required breaks, failing to provide accurate and complete wage statements and engaging in fraudulent recordkeeping. The court has set the first hearing in the case for May.
January 8, 2015 – Partner David Given appeared today before Federal District Judge Richard Seeborg in support of the settlement made between a group of recording artists and Warner Music Group in a class case initiated over the treatment of monies derived from digital downloads and ringtones. The settlement, concluded following intense negotiations between a team of lawyers representing the record label and PEG&C and the other lead law firms representing the artists, provided 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. At the conclusion of the hearing, Judge Seeborg said he found the settlement fair, adequate and reasonable and indicated that he would approve it; an order is pending.
UPDATE – January 12, 2015 – Judge Seeborg entered his order today giving final approval to the settlement of this class action. In a related order entered the same day, Judge Seeborg approved the request for reimbursement of costs and payment of attorneys' fees to class counsel, complimenting the firm's "skillful handling of the difficult factual and legal issues presented...and the quality of the result achieved," in the case.
January 2, 2015 – Effective today, the firm will be known as Phillips, Erlewine, Given & Carlin LLP. The firm's offices are now located in the Presidio of San Francisco at 39 Mesa Street, Suite 201. The firm will feature freshly-ground and brewed Fike Farms (Kona) coffee at its new location.
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 preliminary 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.
Court preliminarily approves $1.9 million settlement of wage and hour class action
November 18, 2013 – The San Francisco Superior Court granted preliminary approval of the settlement of a class action on behalf of approximately 700 minimum wage workers, represented by Nick Carlin, who alleged the workers had been unlawfully denied meal and rest breaks. Under the settlement, class members are expected to receive roughly one hour of pay for each shift worked during the time period covered by the lawsuit or an average of over $1,500 each. Defendants will also pay PE&G's fees and costs, as well as $45,000 in penalties to the California Labor & Workforce Development Agency. The court will hold a final approval hearing on February 19, 2014.
Court appoints firm lead counsel in privacy case against Apple and others
October 22, 2013 – In an order issued today, Federal District Judge Jon Tigar has appointed PE&G (along with its co-counsel) lead attorneys in a class action involving Apple and many of the tech industry's largest application developers over the wide-spread practice of uploading consumers' address book data from iDevices without consumers' authorization or consent. The practice came to light following reporting in the New York Times and other major news publications in February of last year, and led to one app developer's civil prosecution by the Federal Trade Commission. The case has survived multiple attacks by Apple and the other defendants; those defendants' third round of motions to dismiss the class plaintiffs' consolidated amended complaint are set to be heard by Judge Tigar in January.
Firm defends against multi-million dollar damages claim for alleged misappropriation of intellectual property
October 11, 2013 – PE&G attorney Randy Erlewine recently helped conclude a settlement of claims against firm clients Development Specialists, Inc., and California Assignments. The latter entity became the Assignee for Benefit of Creditors of a Silicon Valley semiconductor fabrication plant. Before shutting down, the plant refused to release certain physical and intellectual property belonging to one of its customers, until that entity paid a disputed invoice. Following the assignment, the customer filed suit, claiming millions of dollars in damages for alleged conversion and misappropriation of its trade secrets and intellectual property used in the fabrication of semiconductor wafers. The firm vigorously defended against these highly complex and hotly litigated claims. The customer filed a notice of settlement today.
Firm launches trademark infringement case for celebrated Bay Area gentlemen's club
September 18, 2013 – Partner David Given was recently retained by the Gold Club of San Francisco in a case pitting it against a new gentlemen’s club opened last month in San Jose using the client’s same name and similar marks and logos. The firm commenced the client’s case against the new club in federal court, followed by an expedited motion for preliminary injunction. Following an hour-long hearing before Federal District Judge William H. Orrick, III, the court issued a carefully-reasoned 19-page decision, denying the request for a preliminary injunction but finding that the firm had raised “serious questions” about the nature of the new club’s various defenses to infringement. Acknowledging the urgency of the matter, the court ordered the parties to submit an “expedited schedule” for trial of the matter. The parties will be back in court on October 15th to discuss that subject and, most likely, to set the case for trial.
Court allows privacy case to proceed against Apple, sets date for consolidated complaint
August 5, 2013 – Federal District Judge Jon Tigar has ruled against Apple Inc. in a case regarding the uploading of private address book data from iDevice users’ phones and tablets without their knowledge or consent. In his 17-page order issued today, Judge Tigar sustained all but one of the claims made against Apple from legal attack, allowing the case to proceed to the discovery stage, where information will be sought about Apple’s policies and practices. In earlier related proceedings, Judge Tigar allowed a consolidated amended complaint to be filed in four cases brought over the same issues and asserting substantially the same claims against Apple and 14 of the largest application developers, including Facebook, Path and Foursquare. PE&G is helping to lead the plaintiffs’ effort against Apple and these app developers in the case. Judge Tigar has ordered the consolidated amended complaint to be filed on or before Sept. 3rd.
Firm vindicates client's rights in Court of Appeal
August 1, 2013 – PE&G persuaded the California Court of Appeal to reverse a trial court decision allowing a trade organization to use the California Public Records Act to obtain a client’s private records. The client, San Francisco Bar Pilots (“SFBP”), is a private association of licensed pilots who maneuver ships through the San Francisco Bay and related waterways. The state imposes certain duties on SFBP, and in particular on the pilot who serves as “Port Agent.” Pacific Merchant Shipping Association, a trade organization representing the shippers required to pay SFBP fees for pilotage, attempted to use the Public Records Act to obtain extensive records created and used by SFBP – but not by any public officer or agency. In a published opinion, the Court of Appeal rejected PMSA’s assertion that SFBP’s records are public and agreed with the firm’s arguments that the evidence presented to the trial court unequivocally demonstrated that the records PMSA sought are private and not subject to the Public Records Act.
Randy Erlewine selected as Super Lawyer
July 9, 2013 – Partner Randy Erlewine has been selected again as a Super Lawyer in the 2013 list of Northern California Super Lawyers, an honor given to the top 5% of lawyers practicing in Northern California. Randy has previously received this award in each of the years from 2005 through 2010, as well as in 2012.
Court orders restaurant chain to turn over evidence, pay monetary sanction for obstruction
April 26, 2013 – Defendant restaurant chain and its owners stonewalled the firm's attempts to obtain material evidence, on behalf of its restaurant worker clients including records of time worked and wages earned by employees, and evidence of defendants' financial dealings. Paul A. Renne, Esq., acting as Pro Tem Judge of the San Francisco Superior Court, had "little sympathy" for defendants and flatly rejected their contentions -- including their argument that Judicial Council form interrogatories were vague and sought irrelevant information -- and he held that defendants had failed entirely to engage in a good faith effort to respond to plaintiffs' legitimate discovery requests. Judge Renne ordered the defendants to provide virtually all of the information plaintiffs requested, and also ordered defendants and their lawyers to pay $5,000 in monetary sanctions for their willful obstruction of discovery. The case is Sayre v. SFS 39, Inc., San Francisco Superior Court Case No. CGC-12-523838.
Class case clears important hurdle
April 16, 2013 – PE&G attorney Nick Carlin thwarted an attempt by defendant restaurant chain to stall – potentially for years – the firm's clients' class action claims for wage theft and other violations of the California Labor Code. The restaurant chain recently began requiring its employees to sign arbitration agreements, and Mr. Carlin represents a separate group of employees in arbitration who were similarly deprived of their rights. The restaurant chain argued that all proceedings in the class action (involving plaintiffs who did not sign the arbitration agreement) should halt until after the arbitration is concluded. The firm's attorneys successfully argued to San Francisco Superior Court judge Marla Miller that this was an improper effort to hold the class action hostage and deny the firm's clients access to the justice system. The judge agreed, and permitted the class action to move forward.
Firm joins class action over data privacy against Apple, app developers
March 22, 2013 – PE&G attorneys David Given and Nick Carlin have joined a team of lawyers who have brought a class case against Apple and certain developers of consumer applications made available on the App Store over users' privacy rights in their digital data. The core allegation of the complaint is that the apps in question pirated private user information, including address book data, from the user's iDevice by surreptitiously uploading that information without notice to the user and without the user's consent. The federal government recently prosecuted its own case against one such developer, Path, also named in the class action, over the same conduct. That case resulted in a consent order which included a permanent injunction together with civil penalties of $800,000. The class case was recently transferred to the San Francisco federal court, where one judge in another similar case has already sustained most of the claims against Path. The case is set for its first hearing before Federal District Judge Jon Tigar on April 4th.
Firm defends future baseball hall-of-famer in dispute over recording artist’s services
March 1, 2013 – PE&G partner David Given concluded his defense of future Hall-of-Fame baseball player Frank Thomas and his record label, W2W Records, in a lawsuit brought in California Superior Court. The lawsuit alleged that Frank and W2W Records “interfered” with a recording contract ostensibly covering the services of a young singer who recorded for W2W Records as part of a trio, Belle Voxx; that group’s release in 2011 received a fair amount of press and critical attention. Following that publicity, plaintiff record label appeared making various claims under a five-year-old contract between the singer and another, predecessor record label and, in October 2012, sued Frank and W2W Records. The firm, together with Chicago counsel, vigorously defended the clients against these claims (among other things, no one had performed under the previous recording contract for over three years), while guiding the case into an early resolution. Plaintiff filed a dismissal with prejudice of its case against the firm’s clients today.
State Court grants final approval to balance billing class action settlement
February 28, 2013 – The San Francisco Superior Court today granted final approval to the class settlement in Combrisson v. City and County of San Francisco. PE&G represents the class, patients of San Francisco General Hospital, who alleged that they were illegally balance billed by the hospital. Under the terms of the settlement, the class members will receive a 100% recovery of the amount they were overcharged. Attorneys' fees and costs of administration will be paid separately and did not reduce the class members' recovery. Firm attorney Nick Carlin led the effort. For more information about the case, see here.
David Given moderates panel at digital music seminar
January 26, 2013 – PE&G partner David Given helped organize and moderate a panel for the California Lawyers for the Arts during its 30th annual Music Business Seminar entitled "Fast Forward -- Protecting and Selling Music in the Digital Age" at the Berkeley Law campus. David's panel focused on the streaming music business, and featured speakers from Pandora, Stereotypes and the Electronic Frontier Foundation, as well as East Bay Ray, famed lead guitarist from punk-rock band (and firm client) Dead Kennedys.
Federal Court approves class settlement with Bank of the West in overdraft fee case
December 18, 2012 – A federal district court in Miami entered an order of final approval of an $18 million settlement with Bank of the West that the firm helped conclude in mediation on behalf of customers charged by the bank with overdraft fees as the result of the bank's reordering of its customers' debit card transactions. The settlement results in return of a substantial portion of those fees to bank customers. The court's order noted, among other things, the "very high level of skill" of class counsel in the prosecution of the case, and that class counsel "achieved a superb result" in the case. The firm remains counsel for a putative class of bank customers in a similar case against M&T Bank. Last year, the same court approved the settlement of the firm's case against Bank of America for $410 million, an amount generally credited as one of the largest settlements ever for a consumer class action.
San Francisco Board of Supervisors approves balance billing class action settlement
December 5, 2012 – The San Francisco Board of Supervisors yesterday approved the class action settlement in Combrisson v. City and County of San Francisco. PE&G represents the plaintiff class, patients of San Francisco General Hospital, who alleged that they had been illegally balance billed by the hospital. Under the settlement the class members will receive a 100% recovery of the amount they were overcharged. Attorneys fees and costs and costs of administration will be paid separately by the defendant City, and will not reduce the class members' recovery. The next step in the approval process is signature by the Mayor, expected to take place on December 14, 2012. PE&G attorney Nick Carlin led the effort. For more information about the case, see here.
San Francisco Superior Court grants preliminary approval to balance billing class action settlement
November 21, 2012 – The San Francisco Superior Court today granted preliminary approval to the class settlement in Combrisson v. City and County of San Francisco. PE&G represents the plaintiff class, patients of San Francisco General Hospital, who alleged that they had been illegally balance billed by the hospital. Under the settlement the class members will receive a 100% recovery of the amount they were overcharged. Attorneys fees and costs and costs of administration will be paid separately by the defendant City, and will not reduce the class members' recovery. The next step in the approval process is final approval by the San Francisco Board of Supervisors and the Mayor, expected to take place on December 14, 2012. PE&G attorney Nick Carlin led the effort. For more information about the case, see here.
Federal Court approves record label settlement with former hedge fund manager
November 7, 2012 – PE&G attorneys David Given and Nick Carlin helped to successfully conclude a favorable settlement on behalf of its long-standing client OM Records in litigation pitting it against former hedge fund manager Lawrence R. ("Larry") Goldfarb and his solely owned entity, LRG Capital Group, over various improprieties committed by Goldfarb in connection with supposed "investments" made by him through LRG Capital in OM Records. United States District Judge William H. Alsup, who is presiding over parallel civil and criminal proceedings against Goldfarb initiated by the Securities and Exchange Commission and the U.S. Department of Justice respectively, approved the settlement made by OM Records with the receiver appointed by the court to oversee Goldfarb's business and financial affairs. As previously reported here, that appointment followed Goldfarb's default in his deferred prosecution agreement with the federal government; Goldfarb now faces the possibility of a felony conviction on pending wire fraud charges and a sentence of jail time if convicted. In the OM Records litigation, Goldfarb faced terminating sanctions for violating court orders to appear for his deposition and to produce documents (and to pay a monetary penalty for his previous failures). The settlement with Goldfarb's receiver allows OM Records to conclude all litigation on the subject as well as to separate itself completely from any business relationship with Goldfarb (who sat on its board) and LRG Capital (with whom it had entered into various financing agreements), all for a small fraction of the over $2 million Goldfarb and LRG Capital tried to extract from it.
Press seeks comment from firm on settlement of digital download case
October 30, 2012 – Both Variety Magazine and the New York Times recently featured prominent articles covering Universal Music Group's settlement of its long-running battle with the producers of Eminem over the treatment of digital download income in its royalty accounting to recording artists and others. Firm partner David Given, who is one of the attorneys leading wide-ranging class action litigation against UMG on the same issue, provided his views on the meaning of the settlement for that litigation as well as on its expected impact on the music industry. NPR later interviewed Mr. Given for a piece featured on its "Market Place" program on the same subject.
Nick Carlin and David Given named as finalists for CAOC Consumer Attorneys of the Year
October 23, 2012 – The Consumer Attorneys of California (CAOC) has named Nick Carlin and David Given finalists for the "Consumer Attorney of the Year" award for their work in obtaining a $410 million settlement from Bank of America on behalf of customers who were overcharged for overdraft fees, one of the largest settlements in a consumer class action ever. Bank of America and other banks had engaged for years in a scheme to systematically process debit card transactions not in the order they occurred but from highest to lowest, for the sole purpose of maximizing overdraft fees. Carlin and Given originated the case, which was eventually consolidated with other lawsuits against the nations' leading banks in multi-district litigation. The federal judge who approved the settlement wrote: "This is a marvelous result for the members of the class ... but for the high level of dedication, ability and massive and incredible hard work by [their] attorneys ... I do not believe the Class would have ever seen a penny." For an article from the Business Wire about the award nomination, click here.
Variety Magazine reports on new complaint in Rick James case
October 11, 2012 – Variety Magazine featured an article on its website and daily edition by veteran music industry reporter Chris Morris describing recent developments in the firm's case against Universal Music Group in the case over UMG's treatment of digital download income in its royalty reporting to recording artists and others. The filing of a new complaint (which Morris characterized as "a scathing indictment of UMG's business practices in the digital era") adds two new plaintiffs to the case as well as additional claims, all of which have now been consolidated in one pleading, and expands upon previous factual allegations made by the plaintiffs based upon evidence adduced by the firm thus far in discovery in the case. The filing follows the court's order rejecting UMG's attempt to block the plaintiffs from amending their complaint.
Luce song infringement case settles
October 5, 2012 – PE&G attorneys Nick Carlin and David Given, along with co-counsel Elliot Cahn, on behalf of their clients, the Bay Area band Luce (Tom Luce, Matt Blackett, Brian Kroll and Lawrence Riggs), have settled the band's copyright infringement lawsuit against Selena Gomez and the writers of Gomez's 2010 hit song "A Year Without Rain." Luce had contended that "A Year Without Rain" infringed on their song "Buy a Dog." The defendants denied the allegations. The terms of the settlement are confidential.
Individual employee can assert representative claim in arbitration for Labor Code Private Attorneys General penalties
September 19, 2012 – In an arbitration proceeding in which class actions are barred, PE&G attorney Nick Carlin persuaded the arbitrator, in an apparent case of first impression, that an individual employee may pursue Private Attorney General Act ("PAGA") penalties for Labor Code violations committed against all other similarly situated employees. The arbitrator rejected the employer's contention that representative actions under PAGA are akin to class actions such that the class action bar should also apply to representative PAGA actions.
New pleading seeks to sharpen focus in class action over download royalties
September 7, 2012 – Plaintiffs in the class action case against Universal Music Group moved today for permission from U.S. District Judge Susan Illston to file an amended complaint. The proposed amended complaint serves to consolidate the party plaintiffs (including two new ones - Bo Donaldson ["Billy Don't Be A Hero"] and The Black Sheep ["Strobelite Honey"]) and their various prior pleadings into one operative complaint and to conform the allegations of the complaint to the evidence adduced thus far in the case. That evidence includes, among other things, discovery of an internal memorandum authored by a highly-placed UMG executive in late 2002 setting the stage for treatment of UMG's licenses with its digital download providers as "resale" agreements, and apparently reversing UMG's prior course of conduct and course of performance in the customary accounting for licensing income, to the detriment of recording artists and producers. UMG has opposed plaintiffs' motion for leave to file this complaint on various grounds. The court has set a hearing for the motion on October 12th.
Firm appointed to lead counsel role in class action against Warner Music Group
June 1, 2012 – United States District Judge Richard Seeborg has chosen PE&G to help lead the class action brought on behalf of recording artists and others against Warner Music Group relating to that label's receipt and accounting of digital download income. This is the second case brought by the firm as a class action against a major record label over the issue of how income from the online distribution of digital music is accounted to and paid to recording artists and other royalty participants. The first, against Universal Music Group, has survived UMG's attempts to dismiss the case and various of its claims, and is currently set for class certification proceedings beginning later this year. With Judge Seeborg's order appointing lead counsel, the case against WMG can now get underway in earnest. The case's first case management conference is expected to be set soon, after which discovery will commence.
Nicholas Carlin weighs in on court funding crisis in Daily Journal
May 14, 2012 – Click here for the Daily Journal article on cuts to courts funding.
Firm stands by local record company OM Records in legal battle with former hedge fund manager
May 8, 2012 – The Daily Journal featured an article on PE&G's representation of long-time client OM Records in litigation with former hedge fund manager Lawrence R. "Larry" Goldfarb and his wholly-owned business entity, LRG Capital Group. Goldfarb, arraigned in federal court last month on one count of wire fraud, has been accused by the federal government of "secretly diverting" approximately $12 million from a hedge fund he managed – part of which allegedly ended up as an "investment" by LRG Capital in OM Records. In a judgment entered against him and one of his related business entities, Goldfarb was ordered to pay the amount of the allegedly "diverted" money together with interest and penalties into a court-established fund. (In a related administrative proceeding, Goldfarb was barred from the investment advisory business.) To date, he has failed to do that, and now faces the possibility of contempt of court, following a hearing at which United States District Judge William H. Alsup repeatedly referred to Goldfarb as a "fraudster." OM Records has been engaged in litigation with Goldfarb and LRG Capital related to this history and those parties' efforts to extract consideration from OM Records, including membership on its board of directors. In that action, San Francisco Superior Court Judge Loretta M. Giorgi entered an order last year finding that OM Records had "raised sufficient concerns on the current record as to how... Goldfarb acquired his directorship, i.e., by fraud." Goldfarb was also the subject of a recent sanction for failing to appear for his deposition in the case. The court has set a November trial date in the matter.
UPDATE – June 26, 2012 – In a blistering order, Judge Alsup found Goldfarb in civil contempt and imposed several remedial sanctions, including the appointment of a receiver to take control of his business and financial affairs. The order appointing the receiver stays all further proceedings in the Om Records case. The client is currently engaged in negotiations with the receiver in the hope of resolving this litigation.
Luce files $1 million plagiarism lawsuit against Selena Gomez
April 25, 2012 – PE&G attorneys Nick Carlin and David Given (along with co-counsel) recently filed a lawsuit in the San Francisco federal court on behalf of Bay Area band Luce (Tom Luce, Matt Blackett, Brian Kroll and Lawrence Riggs), who contend that pop sensation Selena Gomez's 2010 hit song "A Year Without Rain" infringes on their song "Buy a Dog." Buy a Dog was released by Luce in 2005 and was a #1 hit record on several radio stations around the United States, including WRLT in Nashville and KFOG in San Francisco, at both of which it was among the ten most played records in 2005. The firm's clients allege that the melodies in the choruses of the two songs (A Year Without Rain at 0:50, Buy a Dog at 1:00) are virtually identical. The complaint names Gomez and her band, The Scene, as defendants, as well as Gomez's writers and producers, Lindy Robbins and Toby Gad, her record label, Hollywood Records, and distributors, including Apple iTunes. The lawsuit seeks damages in excess of $1 million.
Court denies defendant's summary judgment motion in Rick James digital download class action
April 19, 2012 – PE&G partner David Given (together with attorneys from two allied law firms) helped defeat Universal Music Group's motion for summary judgment in the ongoing class action on behalf of recording artists and other royalty participants concerning UMG's treatment of income derived from its licenses with download music providers. In her seven-page order dispensing of the matter without oral argument, Federal District Court Judge Susan Illston concluded that the class claims for violation of California's Unfair Competition Law and related open book account were still viable, allowing discovery to continue into UMG's policies and practices. Among other things, Judge Illston rejected UMG's arguments that the claims were either time-barred or otherwise legally unsound on various technical grounds. The decision sets the stage for plaintiffs' effort to certify a class of recording artists, producers and others entitled to an enhanced royalty from UMG's receipt of digital download income; the Court set a hearing on class certification in the case for early January of next year. The firm recently commenced another class action on the same subject against Warner Music Group; that case is just now underway in the same San Francisco court before a different judge.
Class arbitration of employment claims is alive and well
March 29, 2012 – PE&G attorney Nick Carlin overcame a challenge to a class-wide arbitration of wage and hour claims - despite two recent decisions of the United States Supreme Court sharply limiting the circumstances under which arbitration of class claims is permitted. The firm's clients brought an arbitration proceeding on behalf of themselves and all other current and former employees unlawfully denied meal and rest breaks and overtime (among other things) by their employer. The employer filed a motion seeking a ruling that the parties' employment agreement did not allow class proceedings, thereby forcing each employee to arbitrate his or her claims individually. Former Utah Supreme Court Justice Michael D. Zimmerman, acting as arbitrator in the matter, rejected this position, accepting the firm's argument that the terms of the agreement evidenced the parties' intent to resolve all disputes - including those involving representative and class claims – through arbitration, thus allowing the class claims to proceed.
Firm obtains groundbreaking ruling on individual liability for wage and hour violations
March 26, 2012 – PE&G attorney Nick Carlin secured a groundbreaking ruling that corporate officers can be personally liable for penalties arising from wage and hour violations. In an ongoing class arbitration over those issues, the arbitrator accepted the firm's theory that, notwithstanding California law holding that corporate officers are not "employers" and therefore cannot be held personally liable for the corporation's failure to provide meal and rest breaks or to pay overtime (or for related violations of the Labor Code), the Labor Code allowed aggrieved employees to recover civil penalties from officers who cause wage and hour violations. The firm argued that the Labor Code imposes penalties against any "person" who causes a wage and hour violation, and that related provisions of the Code create a private right of action allowing the employees themselves (rather than a state agency) to enforce the statute and collect the penalties. Although no California appellate court has ruled on this theory of recovery, the arbitrator held that the claims were viable, and denied the individual defendants' motion to dismiss the claims against them.
Randy Erlewine again named Super Lawyer
March 9, 2012 – Partner Randy Erlewine has been selected as a Super Lawyer in the 2012 list of Northern California Super Lawyers, an honor given to the top 5% of lawyers practicing in Northern California. Randy has previously received this award for each of the years 2005-2010.
Firm appointed to lead counsel role in class action against Universal Music Group
March 7, 2012 – Federal District Court Judge Susan Illston has appointed PE&G to serve as co-lead counsel in a class action on behalf of artists, producers and other royalty participants against the world's largest recorded music company, Universal Music Group, concerning UMG's treatment of income derived from its licenses with download music providers. The firm filed the first of several class cases against UMG on this issue following the decision of the Ninth Circuit Court of Appeals in F.B.T. Productions v. Aftermath Records. That case – involving the Eminem catalog – established the right of recording artists, music producers and other royalty participants of legacy music catalog to receive up to half (instead of a much reduced "record" royalty) of the income UMG and its affiliated record labels receive from their licenses with download music providers. In its role as co-lead counsel, the firm will be responsible for overseeing the conduct of the litigation, including directing discovery and motion practice in the matter, as well as supervising any settlement efforts on behalf of the class. Earlier, Judge Illston ordered UMG to produce all of its producer and artist agreements to plaintiffs' counsel by the end of this month. That production of documents continues. The court has set the next case management conference in the case for April 6th.
Firm achieves major victory for clients in balance billing case against San Francisco General Hospital
January 24, 2012 – PE&G attorney Nick Carlin achieved a major victory for the victims of balance billing by San Francisco General Hospital, when Superior Court Judge James J. McBride ruled that plaintiff Gilles Combrisson and the class of patients covered by heath insurers regulated by the California Department of Insurance ("DOI") could continue to pursue their claims in state court. At a previous hearing, Judge McBride ruled that a 2009 California Supreme Court decision (Prospect Medical Group v. Northridge Emergency Medical Group), holding that balance billing of insured emergency patients was illegal, did not apply to patients such as Combrisson whose insurers (in his case, Anthem Blue Cross Life & Health Ins. Co.) are regulated by the DOI, therefore dismissing Combrisson's claims. (The rest of the case - on behalf of patients covered by insurers regulated by the California Department of Managed Health Care - was unaffected.) But Combrisson amended his Complaint to add a claim seeking a declaration of rights from the Court that if San Francisco recovers the balance billed amounts paid by Combrisson (and other class members covered by insurers regulated by the DOI) from Anthem (or the other insurers), the City would have to reimburse that amount to its patients. The City sought to dismiss this claim as well, but at the hearing, the Court agreed with the firm and allowed that claim to stay in the case.
Firm clients reach tentative settlement in overdraft fee case against Bank Of The West
January 20, 2012 – PE&G attorneys Nick Carlin and David Given (along with lawyers from several other firms) helped reach a tentative settlement in a bank overdraft fee case on behalf of a group of Bank of the West customers. The firm's client, Michele Draper, one of three named plaintiffs, is a Bay Area resident who alleged that the bank unlawfully charged her and other bank customers excessive overdraft fees on their debit card transactions. The plaintiffs 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. The parties expect to submit their proposed settlement (currently embodied in a Memorandum of Understanding) for preliminary approval by the federal judge presiding over the case within the next 45 days. This development follows several other such settlements, including in the firm's case against Bank of America, in which the bank agreed to pay $410 million. That deal was finally approved last November.
Firm beats back summary judgment motion in wage and hour case for database administrator
January 9, 2012 – PE&G helped defeat a motion for summary judgment filed in a hotly contested wage and hour case. The firm's client, a database administrator, sought to recover wages and penalties in excess of $450,000 for alleged unpaid overtime and missed meal and rest breaks owed by his former employer. The company argued that it properly classified the firm's client as exempt from overtime laws and related employee protections under the federal computer professional exemption, as well as the state and federal exemption for administrative employees. The court rejected the company's effort to dismiss the case and avoid a trial, agreeing with the firm that the evidence submitted by the firm concerning its client's job duties created an issue of fact as to whether client was an exempt administrative employee or an exempt computer professional. Shortly following this ruling, the case settled in mediation.
Firm retained by jazz great's heirs in dispute over legendary catalog of recordings
December 23, 2011 – PE&G has filed a multi-million dollar lawsuit against record label Concord Music Group on behalf of the children of Bay Area recording artist and jazz legend Vince Guaraldi. The clients' Alameda County Superior Court complaint alleges, among other misconduct, a deliberate pattern and practice of misreporting in the sales of Guaraldi's works. It also seeks to right various other discrepancies in Concord Music's royalty accounting, including in the treatment of income derived from Concord Music's licenses with digital music providers. Guaraldi's body of recorded musical work, made over a period stretching from the mid-1950s (as a member of the Cal Tjader Quartet) to the time of his untimely death in 1976 (at the age of 47), includes scores to a dozen animated Charlie Brown television specials as well as the jazz standard "Cast Your Fate to the Wind," which won the 1963 GRAMMY for Best Original Jazz Composition. To this day, his Charlie Brown Christmas album – which includes the iconic "Christmastime is Coming" and the "Peanuts Theme (Linus & Lucy)" – remains one of the best-selling (and most beloved) holiday albums of all time.
Firm concludes song royalty deal for FILTER hit "Hey Man Nice Shot"
December 7, 2011 – PE&G attorney David Given recently helped to resolve a long-simmering dispute between Richard Patrick, front-man of the multi-platinum selling band FILTER, and client Nils Teig, relating to royalties derived from the band's hit song "Hey Man, Nice Shot." The matter arose in connection with Patrick's obligation to account to and pay Teig a portion of those royalties, an obligation founded in an agreement the parties made shortly after the release of the song in 1995. The firm first commenced an action on Teig's behalf in the Alameda County Superior Court, succeeding in obtaining an order for prejudgment writ of attachment for almost $300,000, and subsequently fought off an attempt to avoid the obligation to pay in Patrick's ensuing bankruptcy proceeding. Following mediation, the parties entered into a stipulation intended as a "complete and final settlement" of the dispute. Among other things, the stipulation calls for payment of the client's monetary claim in the amount of $400,000, as well as acknowledgment of the client's ongoing entitlement to song royalties on "Hey Man, Nice Shot" and four other FILTER songs, to be paid directly from the sources of those royalties. A motion to confirm the parties' settlement is pending in the bankruptcy court in Los Angeles.
Firm launches case against Sony Music Entertainment on behalf of folk-rock legends The Lovin' Spoonful
November 14, 2011 – PE&G was recently retained to bring an action on behalf of Rock 'n Roll Hall of Fame inductees The Lovin' Spoonful and its record producer, Erik Jacobsen, against Sony Music Entertainment, relating to the label's royalty accounting practices. In a period of less than three years during the mid-1960's, the band, with Jacobsen at the producing helm (he is often credited as the "Fifth Spoonful"), recorded and released one classic single after another, including "Do You Believe in Magic?," "You Didn't Have to Be So Nice," and the band's biggest hit, "Summer in the City." Taken together, the band's output during this period constituted a run of ten Top 40 hits, including seven consecutive singles that placed inside Billboard's Top 10. A royalty examination conducted on behalf of the band and Jacobsen recently revealed several irregularities in the label's accounting practices; many of those irregularities relate to the treatment of digital music.
Court approves $410 million settlement in firm's case challenging bank's debit card overdraft fee charges
November 7, 2011 – Following a full-day hearing in which he cited the "high-level of dedication, ability, talent and hard work" of the lawyers involved in the case, federal district court judge James Lawrence King, Jr. granted the parties' joint request for final approval of the $410 million proposed class settlement of claims by Bank of America customers over the bank's debit card overdraft fee practices. The settlement followed over two years of active class action litigation in the matter, multiple depositions of bank personnel, and the production by the bank and review by the firm (and other lawyers involved in the case) of millions of pages of documents and transaction data. In addition to payment directly to aggrieved customers' accounts – without those customers' having to do anything to receive any money – the bank ceased the practice of charging overdraft fees on debit card accounts for certain transactions, including point-of-sale purchases. Judge King's order and final judgment in the matter is pending, but is expected soon.
Firm scores series of victories in Rick James digital download case
November 1, 2011 – In a case likely to help determine the future of the digital music business, United States District Court Judge Susan Illston has sided with PE&G clients Rick James, Rob Zombie, Dave Mason and others and denied Universal Music Group's motions to dismiss or transfer the clients' action over UMG's treatment of income derived from its licensing to download music providers in its accounting to artists, producers and other royalty participants. In her nine-page order, Judge Illston ruled that the firm's clients properly stated a claim under California state statutory law arising from their allegations of a "broad scheme to underpay numerous royalty participants" in UMG's accounting for the licensing income it receives from digital music providers, and otherwise permitted the case to continue in San Francisco as a putative class action on behalf of the named plaintiffs and all other royalty participants similarly situated. The decision has prompted at least one other case brought by legendary Public Enemy front man, Chuck D, and well as a spate of publicity on this development as well as another on the subject of damages in a case involving Eminem's catalog of recorded music. Earlier, the judge allowed discovery to commence in the case, against the wishes of UMG. That discovery is now underway. For more information about the Rick James case, click here.
Firm helps long-time client John Gray complete deal to bring one-man show to U.S.
October 31, 2011 – PE&G recently completed its representation of self-help author John Gray to bring the hit one-man show based upon his best-selling book "Men Are from Mars, Woman Are from Venus" to the United States. To be produced by Emery Entertainment (best known for its work with the Blue Man Group), the play has been a huge success in several European countries, including France, where it has run for more than four consecutive years before sold-out audiences. Emery intends to stage test performances of an English-language version of the play in three cities beginning this Fall, in anticipation of a full production of the show slated for the Spring of next year. Earlier this year, the firm helped secure a similar deal granting rights to the show for Mexico, to be produced by famed Mexican producer Ruben Lara.
Firm obtains million-dollar judgment in trade secrets case
September 9, 2011 – Judge Ellen Chaitin of the San Francisco Superior Court entered judgment in the amount of $1,106,654.86 against defendant Matthew Jones in favor of PE&G's client, Potrero Media Corporation (PMC), a leading performance-based marketing agency specializing in search marketing, lead generation and online publishing services. PMC contended that Jones, a former employee, had misappropriated trade secrets to start a competing business. PMC previously settled with co-defendants Lead Consortium and Ryan Ousdahl. After repeated discovery violations by Jones, the court found him in contempt and issued terminating sanctions, finding him liable on all counts. A court trial was subsequently held on damages and the court awarded the above amount. The court also made its previously issued Preliminary Injunction permanent.
Firm helps client complete license deal for legendary Beach Boys SMiLE release
August 30, 2011 – PE&G recently completed its representation of Beat-Pop artist Frank Holmes in a deal with Capitol/EMI Records for the right to use the client's original artwork in connection with a special-edition of the Beach Boys legendary SMiLE album, scheduled for release this Fall. Following the band's 1966 masterpiece, Pet Sounds, the Beach Boys recorded songs intended for the band's next album. Inspired by the music he heard at various studio sessions (to which he was invited by friend Van Dyke Parks, a collaborator on the SMiLE project), Frank created a series of whimsical images illustrating aspects of the album's songs. He later showed his illustrations to Brian Wilson, who was so taken with Frank's art that he insisted it become the visual centerpiece for the intended album. Called by Rolling Stone "the most famous unfinished rock and roll album in history," the master tapes for the unreleased SMiLE album were recovered, remixed and remastered with the Beach Boys' active participation and approval, with Frank's artwork taking the central role Brian Wilson and the band intended for it, over 40 years later.
Huffington Post covers Rick James case in major article on digital download royalties
July 7, 2011 – The Huffington Post recently reported on the ongoing controversy over the major record labels' accounting practices for income they receive from their dealings with download music providers like Apple/iTunes. In an article entitled "Detroit Shakes Up the Music Industry," writer Jason Schmitt predicted an "avalanche" of potentially "billions of dollars" in claims against the major labels on this subject following the U.S. Supreme Court's decision to let stand the opinion of a federal appellate court in F.B.T. Productions v. Aftermath Records, 621 F.3d 958 (9th Cir. Sept. 3, 2010). That case established the right of recording artists, music producers and other royalty participants of legacy music catalog to receive up to half (instead of a much reduced "record" royalty) of the income Universal Music Group and its affiliated record labels receive from their licenses with download music providers. Schmitt identified PE&G's recently-filed Rick James case as an example of the "larger-scale implications" for the music industry (and in particular, Universal Music Group) of the F.B.T. case. The firm is now representing several well-known recording artists in a class action against Universal Music over its policies and practices in accounting for the digital download income it receives on its recorded music catalog. As of the time of this writing, the case is in its initial stages; discovery into these policies and practices is expected to begin soon.
Legal journal features front page coverage of firm's case for artist's royalties on digital music
May 31, 2011 – California's leading daily legal newspaper featured a prominent article on PE&G's recent court filings challenging the accounting practices of the world's largest recorded music company, Universal Music Group, in its treatment of artist royalties payable from the label's licenses with third party digital music providers. The Daily Journal's front page article, entitled "Artists Claim Record Labels Owe Them More for Digital Music," reported on two cases brought by the firm in the federal district court in San Francisco. The first case, brought on behalf of the Rick James estate, was followed soon after by a case on behalf of several rock acts, including Rob Zombie, Whitesnake and Dave Mason, whose recording careers collectively span over 30 years. All of the firm's clients (who are each platinum or multi-platinum acts) contend that UMG has systematically underpaid them and others for their share of this income, and that UMG intends to continue to underpay them in the future. Both cases seek class action status to redress the injury from what the complaints allege are the pernicious and unfair policies and practices of UMG, as well as compensation for potentially thousands of royalty participants for past and future monies. For a copy of the article, click here.
Court grants preliminary approval of $410 million payment in firm's case challenging bank's debit card overdraft fee charges
May 16, 2011 – In a case in which PE&G serves as co-team leader, the parties recently applied to a federal judge in Miami for preliminary approval of a $410 million settlement payment by Bank of America on claims made on behalf of that bank's customers regarding the bank's debit card overdraft fee practices. The settlement followed over two years of active class action litigation in the matter, multiple depositions of bank personnel (some taken by firm lawyers), and the production by the bank and review by the firm (and other lawyers involved in the case) of millions of pages of documents and transaction data. The application for preliminary approval is pending; should the court grant approval, the process will begin to notify the class and assemble the data to distribute settlement proceeds to the class members, which could number in the millions. In March 2010, following the firm's filing of its suit, Bank of America announced that it was ceasing the practice of charging overdraft fees on debit card accounts for certain transactions, including point-of-sale purchases.
– UPDATE – May 24, 2011 –
Following a hearing in which he characterized the case as "historic" and the settlement the largest he had ever presided over in his 41 years on the bench, federal district court judge James Lawrence King, Jr. granted the parties' joint request for preliminary approval of the proposed class settlement. The order entered by Judge King set the process in motion for notice to the class and public comment, and scheduled a hearing on final approval of the proposed settlement on November 7th in Miami.
National Public Radio features program on firm's digital download case for Rick James Estate
May 10, 2011 – National Public Radio featured a news segment on its May 4th broadcast devoted to the controversy over record company accountings to legacy recording artists and others for digital download income. Entitled "Download Sales: Will Money Stay with Labels or Go to Musicians," it included a reporter's interview with the manager of the Rick James Estate, Jeff Jampol, who discussed the issue as well as the case PE&G recently brought against Universal Music Group on the Estate's behalf. To read the related news article posted to the NPR website, click here. For more information about the Rick James case, click here.
Federal Court awards costs and fees in Roky Erickson copyright infringement case
April 4, 2011 – United States Magistrate Judge Howard R. Lloyd issued an order on March 30, 2011, granting PE&G's motion and awarding costs and fees for the firm's collection efforts following entry of judgment in a case brought on behalf of legendary recording artist Roky Erickson and related entities. The firm's motion tested, successfully as it turned out, the proposition that a plaintiff in a copyright infringement case was entitled to an award of post-judgment costs and fees under the federal Copyright Act and California state law. For a copy of Judge Lloyd's order, click here. Roky Erickson just finished several highly anticipated and capacity shows at this year's South by Southwest Music Conference in Austin, Texas, including an appearance with cult-favorite, the Meat Puppets.
Firm obtains key ruling in unsettled area of California evidence law: surveillance
April 4, 2011 – PE&G's client was severely injured when she was ejected from a car driven by defendant. Hoping to disprove her claims of injury, defendant hired an investigator to conduct surveillance of plaintiff. The firm sought to obtain all surveillance footage, as well as the investigator's reports. Defendant refused to turn over the materials. In what appears to be a case of first impression in the State, Los Angeles Superior Court Judge Anthony J. Mohr agreed with the firm - and with the courts of other states which have addressed this issue - that the materials were not protected from disclosure and must be produced. In particular, Judge Mohr rejected defendant's contention that the materials were protected as "work product." He also found that requiring defendant to turn over the materials would serve the important goals of fairness and avoiding undue surprise at trial. On March 16, 2011, the California Court of Appeal summarily denied defendant's request for appellate review of the order. For a copy of Judge Mohr's well reasoned opinion, click here. The case is now in mediation.
Firm partner presents panel at SXSW Music Conference
April 2, 2011 – David Given recently moderated a panel of legal experts at the 2011 SXSW Music Conference in Austin, Texas. Entitled "The Impact of Recent Big Music Cases," the panelists reviewed a clutch of recent cases involving the music industry, including the Kristin Hall/Sugarland leaving member dispute, the FBT/Eminem case involving the royalty treatment of income derived from digital downloads, and the Bob Marley case involving recovery of the copyrights in his invaluable sound recordings by his estate. To listen to the panel's discussion, click here.
Firm helps to vindicate clients in dispute over vintage songs and sound recordings
March 24, 2011 – PE&G recently achieved total victory in a case brought against its clients by the estate of Sky Saxon, leader of the 1960's era band THE SEEDS, over the rights to that band's songs and sound recordings. On March 9, 2011, Los Angeles County Superior Court Judge Mel Red Recana granted the firm's motion for summary judgment, dismissing the case against the firm's clients in its entirety. According to Judge Recana, the estate administrator, Saxon's widow (his wife of less than two years), failed to show that her late husband's "buyout" agreements – in which he received a series of lump sums in return for any future right to song and record royalties – were unconscionable or otherwise unenforceable, and that the balance of her claims were stale and therefore time-barred. The evidence was uncontested that, for the over 35 years between those agreements and his death in 2009, Saxon lived with the deal he made with Gene Norman, a respected music business professional, who owned and operated the independent record label GNP-Crescendo. (Mr. Norman, one of the great jazz impresarios of his time, also owned and operated the Crescendo nightclub on the Sunset Strip, and later served as one of the first trustees of the Recording Industry Association of America.) Moreover, the estate's attorney conceded at oral argument that Saxon "wanted to do" the deal with Norman. Notwithstanding these facts, Saxon's widow sued GNP-Crescendo and its related music publishing company to undo those agreements and gain for Saxon's estate (in which she is in line to be a major beneficiary) all of the rights to the catalog of songs and recordings Norman's companies have for over 45 years owned and controlled. Judgment in the clients' favor is currently pending; upon its entry by the court, the clients expect to assert claims for recovery of costs, fees and other damages against the estate and its attorney.
Firm participates in Copyright Society panel on copyright law and the music industry
February 21, 2011 – David Given participated on a recent panel featuring several digital music business experts organized by the Northern California Chapter of the Copyright Society of the U.S.A. Entitled "Is Copyright Law Harming or Helping the Music Industry," the panel covered such topics as the workings of the Digital Millenium Copyright Act, the decisions in the Io v. Veoh Networks and Viacom v. YouTube cases, and the future of collective licensing regimes here and abroad.
Court sanctions Anthem Blue Cross for refusing to produce plaintiff's own claim file and other discovery abuse in balance billing case
February 10, 2011 – Following a half-day hearing, San Francisco Superior Court Judge James McBride sanctioned Anthem Blue Cross Life & Health Insurance Co. for its unjustified refusal to produce certain documents in discovery, including plaintiff's own claim file. Plaintiff Gilles Combrisson, who is suing the City and County of San Francisco in a class action for "balance billing" ER patients at San Francisco General Hospital, had asked Anthem to produce documents relating to his treatment at SFGH, including his own claim file. Anthem refused to produce anything for over six months, offering various excuses such as that the information was a trade secret and that it contained private medical information, even though it was plaintiff's own information. Judge McBride would have none of it and ordered Anthem to turn the documents over and to pay monetary sanctions for its abuse of discovery. Anthem is a wholly owned subsidiary of Wellpoint, one of the largest health insurers in the country. After announcing a 39% rate increase in 2010, Anthem recently announced yet another 15% percent rate increase in California.
Magazine seeks commentary from firm on controversial copyright legislation
February 9, 2011 – David Given recently gave his views on the Combating Online Infringement and Counterfeits Act in an article appearing in the February 2011 issue of Inside Counsel. The Act (also known as "COICA") seeks to attack the growing menace of rogue websites, essentially digital stores (many operating outside the U.S.) dedicated to selling illegal and counterfeit products. The Senate Judiciary Committee unanimously approved COICA during the lame-duck session of the last Congress. The Act contains many controversial provisions, including granting the federal government the ability to seize domain names and to block websites. Some commentators have suggested that COICA could eviscerate the protections afforded internet service providers under the safe harbor provisions of the Digital Millennium Copyright Act, which Mr. Given judges a serious risk. The legislation should be of interest to anyone operating in the online space as a content provider.
Firm retained by famed Hollywood-based record label to defend against attack on rights to recordings
January 29, 2011 – PE&G was recently retained by GNP-Crescendo Records, a small independent record label established in the mid-1950's by nightclub owner and broadcast media personality Gene Norman, to defend it against a lawsuit brought by the widow of Sky Saxon, the leader of the 1960's band THE SEEDS. Gene Norman was a patron of the jazz scene for many years; he featured all of the great acts of the day at his nightclub, the Crescendo on the Sunset Strip: Duke Ellington, Louis Armstrong, Count Basie, Ella Fitzgerald, the Dave Brubeck Quartet, June Christy and the Stan Kenton Band, all of whom he counted as friends. During this entire time, Gene was producing jazz albums, both in his club and in the studio, later starting his record label (and becoming one of the first trustees of the Recording Industry Association of America), and later still discovering, recording and promoting Saxon and THE SEEDS. By her lawsuit, Saxon's widow (acting as administrator of his estate) seeks to terminate a 40-year relationship between the label and the band. The firm has filed motions to dismiss the lawsuit; those motions are currently pending in the Los Angeles County Superior Court.
Court issues stinging rebuke to banks' attempt at harassment through intrusive discovery in consolidated overdraft fee cases
December 16, 2010 – The federal judge presiding over the nationwide multi-district litigation on the legality of the banks' debit card overdraft fee practices granted total victory to PE&G's clients, denying the banks' motion to compel the firm's clients to provide the banks' lawyers with sensitive and private information and documents. The firm objected that the information sought by the banks was either not relevant, was already in the banks' possession, or invaded the clients' right to privacy, and that it was all done purely for the purpose of harassment. The judge agreed, calling the banks' actions "duplicitous" and rejecting the banks' motion in its entirety. For a copy of the court's order, click here.
Firm's balance billing case against city of San Francisco allowed to proceed
December 3, 2010 – In a major victory for PE&G and for victims of balance billing, the San Francisco Superior Court, on November 30, 2010, denied the City and County of San Francisco's attempt to dismiss a class action brought by the firm against the City for balance billing practices at San Francisco General Hospital. The City had argued that the prohibition against balance billing did not apply to patients who are covered by health insurance plans regulated by the California Department of Insurance (as opposed to those regulated by the California Department of Managed Health Care). The Court rejected this argument and allowed the case to continue. The Court had previously denied the City's attempt to block plaintiff's discovery efforts and the case is now proceeding into discovery phase. The case is Combrisson v. City and County of San Francisco.
Firm's overdraft fee litigation against Bank of America ordered to proceed to discovery
November 18, 2010 – The federal district court judge overseeing the vast multi-district litigation ("MDL") against the country's largest commercial banks over their multi-billion dollar overdraft fee practices has ordered PE&G's case against the largest such bank, Bank of America, to proceed to discovery. As a "First Tranche" case in the MDL, the firm's case against Bank of America will advance before the cases against many other banks. Sixteen bank customers from seven different states have brought suit against the bank alleging that the bank's overdraft fee practices are deliberately designed to increase the frequency of such charges and to foster multiple charges in the event of a single overdraft from a customer's account. The firm is also participating in cases against BB&T and M&T Bank. Those cases are currently on appeal to the 11th Circuit Court of Appeals as those banks attempt to enforce what the firm contends are unfair arbitration clauses.
Firm vindicates patient's balance billing rights in case against San Bernardino County
October 21, 2010 – In the first of multiple cases filed by PE&G challenging the practice of "balance billing" by hospitals and other health care providers (i.e., charging a patients for the balance of its bill over and above the amount the patient's health insurer deems reasonable), San Bernardino County has settled with the firm's client, agreeing to drop its $50,000 lawsuit against the client for a balance bill from Arrowhead Regional Medical Group (a County Hospital), and to pay the client's attorneys' fees.
Firm obtains TRO and preliminary injunction for Internet marketing client
October 19, 2010 – Extending its winning streak in trade secrets cases, PE&G successfully obtained a Temporary Restraining Order for client Potrero Media Corporation ("PMC") in San Francisco Superior Court. The order enjoins a former PMC employee and his alleged conspirators from using PMC's trade secrets and from doing business with PMC's clients. PMC, one of the nation's top online lead generation companies, alleges in the lawsuit that a former PMC employee conspired with a PMC client to steal PMC's customers and to use PMC's trade secrets to unfairly compete with PMC. The TRO was obtained only days after PMC realized what its former employee was doing and referred the matter to the firm. On August 24, 2010, Superior Court Judge Charlotte Woolard made a finding that PMC was likely to succeed on the merits and issued a Preliminary Injunction extending the injunction throughout the duration of the case. The litigation is now in the discovery phase.
Firm continues to protect performing artists from unauthorized use of their images
October 19, 2010 – Building on its record-shattering settlement in Gonzalez v. Countrywide Home Loans, PE&G achieved another substantial settlement in a right of publicity/unauthorized use case. In 2006, Jodi Fung, a Los Angeles based television and internet personality, did a photo shoot for AT&T, for which she was paid $750 for a time limited license. After the license expired, AT&T continued to use the photos in advertising, in particular in large posters in its Cingular stores. Despite numerous requests from Ms. Fung and her talent agent, JE Talent, to AT&T and its ad agency to remove the ads or negotiate a new license, nothing was done. Within weeks of the case being referred to legal counsel, the firm negotiated a $65,000 settlement for the client.
Firm champions rights of visual artists: forces Christie's to pay resale royalties to prominent California artist Roland Petersen
October 19, 2010 – While most other countries protect the rights of visual artists (such as painters and sculptors) by providing for a royalty to be paid to them every time their works are resold (generally known as the “droit de suite”), in the U.S., only the State of California provides such a right – known as the “resale royalty.” Under that law, the artist is generally entitled to a percentage of the resale price. The purpose of the law is to give artists – who tend to become well known only later in life – an opportunity to share in the appreciation in value of works which they may have sold for a pittance when they were young. (See article on the subject by firm partner Nick Carlin.) Unfortunately, many dealers, collectors and auction houses ignore this law, and many artists are unaware of their rights or don’t assert them for fear of retaliation. PE&G recently vindicated the resale royalty rights for prominent California painter Roland Petersen. In 2007, Christie’s auction house sold three of Petersen’s paintings, one showing here, for almost $300,000 but failed to notify him. Even after Petersen found out about the sales and demanded the royalty, Christie’s refused to pay. After the matter was referred to legal counsel, the firm quickly settled the case for the full amount of the resale royalty owed, plus interest, plus attorneys' fees. (If you are an artist and believe that you are entitled to resale royalties which have not been paid, feel free to contact us for a consultation.)
Firm opens Santa Monica office to better serve its clients in LA area
August 30, 2010 – Effective Sept. 1, PE&G has established an office in Southern California, located on Second Street in downtown Santa Monica.
David Given leads panel at ABA annual meeting
August 16, 2010 – David Given moderated a panel discussion on the recent summary judgment decision in the Viacom/YouTube litigation at the American Bar Association's 2010 Annual Meeting, held in San Francisco. The panel was sponsored by the ABA's Forum on the Entertainment and Sports Industries. The panel explored how Viacom and YouTube framed the issues on summary judgment as well as how the rules adopted in the court's decision apply across internet service providers in the online distribution of entertainment-related content. For a copy of the panel materials, which include the court's decision in the case, click here.
Firm appointed to leadership position in bank overdraft fee litigation
July 16, 2010 – PE&G was recently appointed co-team leader in the multi-district litigation initiated by bank customers of the nation's largest commercial bank, Bank of America, over that bank's overdraft fee practices. The firm will oversee the case against Bank of America, direct and participate in all discovery in the case, and help prepare the case for an eventual trial or other resolution. In March 2010, the judge presiding over this and a series of other similar cases against six of the nation's largest banks sustained the firm's position in the face of multiple legal objections raised by the banks. For a copy of the court's 50-page decision, click here. The firm is also participating in cases against BB&T and M&T Bank.
Firm successfully defends First Amendment rights of client
May 18, 2010 – A federal judge has decided in favor of PE&G's client in a case testing the limits of free speech on the internet. Teaming with lawyers from the Electronic Frontier Foundation, the firm successfully defended the First Amendment rights of an anonymous online speaker against a subpoena served on Yahoo! seeking his/her identity. Together with lawyers from the EFF, the firm filed a motion to quash the subpoena in the U.S. District Court for the Northern District of California, which federal district court judge Susan Illston granted. For a copy of Judge Illston's decision, click here. The matter settled shortly thereafter; the case against the client was dismissed, and a confidential amount was paid to the client and the client's attorneys.
Firm represents cult-rock hero Roky Erickson in copyright law dispute
May 6, 2010 – PE&G recently obtained judgment in the San Francisco federal court in favor of Roky Erickson (of The 13th Floor Elevators fame) and related publishing and production companies on claims arising from the unauthorized sale and distribution of "Roky Erickson & The Aliens -- The Evil One." On its release, the album received four stars in Rolling Stone magazine (and later a 8.0 rating from pitchfork.com), and has since become an underground favorite. Roky's turbulent life in and out of the music business (he has been called "the great lost pioneer of rock and roll") was chronicled in the documentary film entitled "You're Gonna Miss Me" released by Palm Pictures in 2005. The judgment allows the clients to reclaim their rights to the songs and masters on this classic album.
Firm in rights deal for Men Are From Mars, Women Are From Venus
April 19, 2010 – PE&G recently represented the rights-holders in negotiations with Los Angeles-based production company BermanBraun and studio Summit Entertainment over the acquisition of film and television rights to the phenomenally successful book series "Men Are From Mars, Woman Are From Venus." The "Mars/Venus" titles, authored by world-renowned self-help guru John Gray, have sold more than 50 million copies worldwide, and the first book of the series (released in 1992 by HarperCollins) was on the New York Times best-seller list for nearly seven years. For a copy of an article from The Hollywood Reporter about the deal, click here.
Firm helps settle multi-jurisdictional dispute over world-class collection of tribal art
April 14, 2010 – PE&G recently participated in protracted, multi-party negotiations concerning legal proceedings in three different jurisdictions, which have led to the settlement of a dispute over the world's largest (and possibly, most important) private collection of New Guinea tribal art. A report on the settlement, which preserves the vast majority of the collection for exhibition at San Francisco's deYoung Museum, appeared on the front page of the San Francisco Chronicle. For a copy of that article, click here.
Daily Journal features article by David Given on Viacom/Youtube litigation
January 26, 2010 – California's leading legal newspaper, the Daily Journal, featured a guest column on the front page of its Jan. 25, 2010 issue by David Given, in which he gave his perspective on the ongoing copyright infringement battle between Viacom and YouTube/Google. For a copy of the article, entitled "Viacom v. YouTube: Clash of the Titans," click here.