NICHOLAS A. CARLIN, Partner, specializes in complex litigation, including class actions, in the areas of intellectual property, technology, entertainment, employment, financial fraud, business disputes, health care, personal injury and product liability. He also consults and handles transactional matters in the areas of employment law, technology law, intellectual property, and internet marketing and advertising. Nick’s unique background as a technology entrepreneur and musician gives him a breadth of experience, perspective, judgment and common sense, which are useful for a litigator.
Class Action Litigation
Nick's current cases of national significance include the nationwide federal multidistrict litigation on behalf of consumers against most major US banks for manipulating the processing of customer debit card purchases to maximize overdraft fees. Instead of posting each transaction chronologically, the banks deducted the largest charges first, drawing down balances more rapidly and triggering overdraft fees. Nick initiated and helped lead the case against Bank of America, which settled for $410 million, and was also class counsel in the case against Bank of the West which settled for $35 million. He is currently class counsel in the case against M&T Bank. Nick was recently honored to be named a finalist for 2012 Consumer Attorney of the Year by the Consumer Attorneys of California (CAOC) for his work on the Bank of America case.
Nick is co-lead counsel in the nationwide class action brought by recording artists Rick James, Dave Mason, The Temptations and others against the world's largest record company, Universal Music Group (UMG), for failing to pay the proper royalty rate for sales of digital music through iTunes and other digital music providers. Instead of paying its artists at the 50% rate for such sales, UMG paid them at the much lower (usually 10-15%) rate on the pretext that its deals with the digital music providers were not licenses but rather sale-resale agreements. The 9th Circuit has held in a related case that such arrangements were in fact licenses and not resale agreements. Nick is also co-lead on similar cases against Warner Music and EMI.
Nick is also leading the effort to protect internet and iPhone user privacy rights. Despite public assurances from Apple, Inc. that it rigorously screens iPhone Apps available on the App Store to protect the privacy rights of iPhone users, various social networking iPhone Apps, including Path and Instagram, were surreptitiously uploading users’ iPhone address books without notice or consent. Nick is co-lead counsel for the plaintiffs in Opperman v. Path, Inc., a class action which seeks to end this practice and to recover damages from Apple and the App developers.
Nick handles all manner of entertainment and intellectual property matters, including copyright, patent and trademark infringement matters, domain name disputes, and trade secret misappropriation cases. Nationally prominent cases include (in addition to the recording artist digital download class action mentioned above) the song infringement case brought by the legendary power pop band The Rubinoos against pop superstar Avril Lavigne alleging that her megahit song "Girlfriend" was copied from The Rubinoos hit song "I Wanna Be Your Boyfriend," the case against pop superstar Selena Gomez and her songwriters alleging that her hit song "A Year Without Rain" infringed on the song "Buy a Dog" by San Francisco Bay Area band "Luce," and the authorship dispute over the six-time platinum hit song "Come What May" from the hit film Moulin Rouge. Nick has also obtained the largest settlement to date ($600,000) in a right of publicity case for non-celebrities.
Nick has extensive experience in employment law matters, including wage and hour and class actions. Nick also handles individual employment matters, with special expertise in trade secrets misappropriation cases (i.e., cases where an employee quits or is fired from a job and is then accused of misappropriating the former employer's trade secrets), where he has successfully obtained justice for both wronged employers and wrongfully accused employees.
Nick handles complex business litigation and financial fraud matters, including “bet your company” cases, such as the case on behalf of Pyramid Interactive, Inc. a San Francisco record company, against disgraced former hedge fund manager Lawrence "Larry" Goldfarb.
Nick further manages an active personal injury/product liability practice which includes catastrophic injury cases resulting from defective tires sold by tire manufacturers such as Cooper Tire & Rubber Co.
Nick is a registered US Patent Agent and worked in Silicon Valley for several years as an entrepreneur and CEO of a technology company. He has taught at Hastings College of the Law, the University of California at Berkeley Law School (Boalt Hall), and the University of San Francisco School of Law. He is also an accomplished cellist who has performed with the Berkeley Symphony, Symphony Parnassus, Mill Valley Philharmonic and with popular recording artists such as Jonathan Richman. He lives in Mill Valley with his wife and two daughters.
J.D., University of California Hastings College of the Law
CONSUMER CLASS ACTION
Checking Account Overdraft Litigation MDL: See discussion above.
Thompson v. San Bernardino County: (balance billing case- lead counsel).
Combrisson v. City and County of San Francisco (balance billing class action - lead counsel).
Richens v. Kennelly (product liability case against Cooper Tire for manufacturing defective tires).
Davis v. McClaney (Personal Injury) Obtained $700,000 jury verdict for actor/director injured in balcony fall.
Garfield v. Luxor (Personal Injury) Obtained $200,000 jury verdict for plaintiff rear ended by a taxi cab. The case is the first to establish that a person can suffer OCD (obsessive compulsive disorder) as a result of a traumatic physical injury.
Draper v. American Diagnostic Medicine (Federal wage and hour case on behalf of nuclear medicine technologists and paramedics - settled for a confidential amount)
Underwood v. Hughson Ambulance Service (Wage and hour case on behalf of paramedic against Ambulance company - obtained a $300,000 judgment)
Vinyl v. Education Dynamics: Leaving employee/trade secrets case on behalf of employer. Obtained Preliminary Injunction against defendants. Case settled shortly thereafter.
Potrero Media Corporation v. Jones: Leaving employee/trade secrets case on behalf of employer. Obtained TRO and Preliminary Injunction against defendants. Case currently in discovery.
Intellectual Property / Entertainment
Gonzales v. Countrywide Home Loans (right of publicity case - achieved largest recovery for non-celebrity plaintiffs in a right of publicity case in state history: $600,000).
Think Computer v. Facebook (Trademark cancellation proceeding on behalf of former Harvard classmate of Facebook founder Mark Zuckerberg to cancel the Facebook trademark).
Dunbar v. Gottwald (Song infringement case). Represented members of legendary power pop band The Rubinoos in Federal copyright infringement action against pop superstar Avril Lavigne alleging that her megahit song Girlfriend was copied from The Rubinoos hit song I Wanna Be Your Boyfriend.
GPP v. Baerwald: (Song authorship dispute). Represented estate of co-author of six time platinum hit song Come What May from hit film Moulin Rouge against co-author who falsely claimed sole authorship.
Potrero Media Corporation v. Adteractive (Breach of contract action). Obtained pre-judgment right to attach order for over $1 million. Case settled shortly thereafter.
In The News
PE&G Attorney's Article on Discovery of Surveillance Materials Published in California Lawyer
Nicholas Carlin Weighs In On Court Funding Crisis In Daily Journal
Luce Files $1 Million Plagiarism Lawsuit Against Selena Gomez
Class Arbitration of Employment Claims is Alive and Well
Firm Obtains Groundbreaking Ruling on Individual Liability for Wage and Hour Violations
Firm Achieves Major Victory for Clients In Balance Billing Case Against San Francisco General Hospital
Firm Clients Reach Tentative Settlement In Overdraft Fee Case Against Bank of The West
San Francisco Trial Lawyers Association
Consumer Attorneys of California
Nick is a ranked US National Chess Master and an avid cellist, playing with Symphony Parnassus, Berkeley Symphony and many other Bay Area groups. He has served as vice chair of the San Francisco PUC Citizens Advisory Committee, and chair of the Power Subcommittee, focusing on renewable power issues.