archive

2010

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 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; argument is here and here.

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.


2009

Firm obtains highest settlement in state history for a non-celebrity right of publicity case

In December 2009, PE&G obtained a $600,000 settlement on behalf of three actors whose images were used without authorization in advertising by the now defunct Countrywide Home Loans and its successor, Bank of America. Sergio Gonzalez, Rachel Jacobsen and Jake DeAnda performed in a television commercial for Countrywide in 2004. Countrywide took still photos of the actors at the shoot without their knowledge or consent, and proceeded to use them in direct mail and online advertising for several years. The defendants' conduct was particularly egregious since they had been caught several times and had promised repeatedly to stop using the images. To the firm's knowledge, this is the highest settlement or verdict in state history for a pure right of publicity case for non-celebrity plaintiffs. The case is Gonzalez v. Countrywide Home Loans, Inc. - San Francisco Superior Court Case Number: CGC-09-485949.

Firm at forefront of fight against banking industry over debit card overdraft fees

September 2009 --PE&G is involved as counsel to consumers in three federal court class action cases against the banking industry's practice of using so-called "overdraft protection programs" as major profit centers -- alleging these programs are employed without adequate disclosures to bank customers and in a manner that maximizes a customer's overdraft charges. According to one report, banks earned billions of dollars in fees derived from these programs, mostly on the backs of working poor and middle class families. The New York Times recently editorialized against the practice, calling it the "debit card trap," because it often results in a "domino effect" of cascading fees charged to an account holder. According to an F.D.I.C. report in 2008, bank debit cards "can carry an annualized interest rate that exceeds 3,500 percent." The Times later ran a lead article on overdraft fees, and the NBC Nightly News also ran a piece about the practice, featuring an Army private's fight against fees charged to him for transactions of less than five dollars a piece. The firm is partnered with one of the country's top class action law firms and two public interest groups in taking on this pernicious practice. For more information about these lawsuits, please contact Nick Carlin or David Given at the firm.

Randy Erlewine named Northern California Super Lawyer for 5th consecutive year

Randy Erlewine has been selected as a Super Lawyer in the 2009 list of Northern California Super Lawyers, an honor given to the top 5% of attorneys practicing in Northern California. This is the fifth consecutive year Randy has been named a Super Lawyer.

Firm obtains Preliminary Injunction in trade secrets case

June 2009 -- PE&G successfully obtained a preliminary injunction in federal court for client Vinyl Interactive, LLC, an online lead generation company, preventing a former employee and his new employer from using Vinyl's trade secrets. Vinyl, a San Francisco company, operates a website called Free College Scholarships, which connects potential students with schools and offers users a chance to win a college scholarship. In its Complaint, Vinyl alleged that a former employee misappropriated Vinyl's trade secrets, and went to work for a competitor, which shortly thereafter launched a similar website. On May 1, 2009, U.S. District Court Judge Claudia Wilken granted Vinyl's motion for a preliminary injunction, finding that Vinyl had shown a likelihood of success on the merits of its trade secrets misappropriation claims. Click here for the opinion. The matter settled soon thereafter.

Lawsuit seeks to protect emergency room patients from unlawful balance billing by SF General Hospital

In June of 2009, PE&G filed a class action lawsuit in San Francisco Superior Court against the City and County of San Francisco challenging the practice by San Francisco General Hospital of "balance billing" emergency room patients, i.e. billing a patient directly for an amount over and above the amount the patient's health insurer has deemed to be the "allowed amount" for such services. The California Supreme Court has confirmed that the practice is illegal, and that any disputes over the bills should be resolved between the hospital and the insurer, but San Francisco General continues to do it. The complaint seeks restitution for those patients who have been overcharged and an injunction to prevent San Francisco General from continuing to balance bill patients. The case is Combrisson v. City and County of San Francisco. For an article about the case from the Daily Journal, click here.

Security guard licensing: firm achieves significant public benefit

In February of 2009, PE&G settled a bouncer violence case against the owner and operator of a number of popular San Francisco nightclubs and the security guard company that employed the bouncer. The firm's client, a prominent San Francisco attorney and teacher at Hastings College of the Law, was brutally assaulted by a security guard and busboy at the club. The security guard was unlicensed, in violation of state licensing laws, which require, among other things, a criminal background check. The firm's investigation revealed that the guard had a long record of convictions for violent crimes. The complaint alleged assault and battery and violation of the state security guard licensing statutes and unfair competition laws. The case settled before trial for a confidential amount and an agreement by the club owners only to use licensed security guards at all of their clubs.

Who was responsible for "Facebook"?: firm helps resolve dispute with leading social network

PE&G represented Think Computer Corporation in its trademark dispute with Facebook, Inc., which the parties recently settled. For a copy of the parties' joint press release regarding their settlement, click here. For a copy of an article about the settlement from the San Jose Mercury News, click here.

Firm sought out for music industry expertise

PE&G represented Dave Buckner in his case against the popular thrash rock band PAPA ROACH. Buckner's complaint, filed in the Sacramento County Superior Court, sought damages and an accounting for royalties and other entitlements in connection with his 15-year involvement as a founding member of the band. David Given has previously been involved in leaving member cases for such platinum and multi-platinum acts as 4 NON-BLONDES, CAKE, MARILYN MANSON, SOCIAL DISTORTION and RED JUMPSUIT APPARATUS. He has also been consulted as a music industry expert in several high profile rock-and-roll divorces, including those of Jerry Garcia (GRATEFUL DEAD, JERRY GARCIA BAND), Tre Cool (GREEN DAY) and Lars Ulrich (METALLICA). For a copy of the complaint in Buckner v. Papa Roach, click here. For a copy of an article about the case that appeared in the Sacramento Bee, click here. The Buckner matter settled on confidential terms.

Firm hired in dispute over major art collection

PE&G was recently retained to represent an interested party in a high profile dispute over the world's largest private collection of Papua New Guinea tribal art. Part of the collection is on exhibit at the de Young Museum in San Francisco. The case has received wide media attention, including feature articles in the San Francisco Chronicle and The New York Times.

Smart Money interviews David Given

Smart Money magazine recently interviewed David Given for his thoughts on practical ways for small business owners to protect their intellectual property. For a copy of the article entitled "Quick Tips: Six Ways to Fend Off Copycats," click here.


2008

Guitar amp makers make up in trademark dispute

In December 2008, PE&G negotiated a settlement of a trademark dispute between the firm's client, boutique guitar amp maker Steven Fryette Design, Inc., and musical equipment manufacturer AXL Music. At issue in the case was ownership of the "VHT Amplification" trademark and whether a purported assignment of the mark to AXL as security for a loan was invalid as an assignment "in gross". The firm sought an immediate temporary restraining order (TRO) to prevent AXL from using the VHT trademark on its amps. Just before the hearing, the parties agreed to a confidential settlement.

Licensing IP rights in the digital space considered in recent article

David Given published an article in the Fall 2008 issue of the Entertainment & Sports Lawyer "A Modern Pandora's Box: Music, the Internet and the Dilemma of Clearing Public Performance Rights." For a copy of the article, click here.

Digital copyright law program held in San Francisco

David Given recently organized and moderated a program sponsored by the Bar Association of San Francisco entitled "Recent Developments in Digital Copyright Litigation" featuring attorneys from YouTube/Google, the Electronic Frontier Foundation and Microsoft.

Nicholas A. Carlin joins firm, bolsters technology and entertainment law practice

Effective January 1, 2008, Nicholas Carlin joined Phillips, Erlewine & Given LLP as a partner. Nick was a featured speaker at the 2007 Entertainment Technology Law Summit in Seattle on recent developments in entertainment and technology law. For Nick's bio, click here.