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 attorneys Nick Carlin and Cari Cohorn 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 attorneys Nick Carlin and Cari Cohorn 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 attorneys Nick Carlin and Cari Cohorn 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.
PE&G attorney's article on discovery of surveillance materials published in California Lawyer
August 2012 -- California Lawyer, a magazine published by the California Bar Association and distributed to all of its members, has published an article by Cari Cohorn entitled "Using Surveillance Material in Discovery." The article grew out of Ms. Cohorn's and firm partner Nicholas Carlin's successful efforts to compel disclosure of such materials, overcoming defendant's objection that the materials were privileged attorney work product.
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 attorneys Nick Carlin and Cari Cohorn 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 attorneys Nick Carlin and Cari Cohorn 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 attorneys Nick Carlin and Cari Cohorn 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 attorney Cari Cohorn 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 listen to the radio broadcast, click here. 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. To view a webcast of the panel's discussion, click here.
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. For a copy of the article, click here.
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; more 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.
Firm obtains highest settlement in state history for a non-celebrity right of publicity case
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. The matter settled soon thereafter.
Lawsuit seeks to protect emergency room patients from unlawful balance billing by SF General Hospital
June 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, yet 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.
Security guard licensing: firm achieves significant public benefit
February 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). 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.
Guitar amp makers make up in trademark dispute
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."
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.