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Firm to Open Santa Monica Office Effective Sept. 1, the firm has established an office in Southern California. Located on Second Street in the heart of downtown Santa Monica, the firm's Los Angeles area office will be staffed by attorney Kara Wolke, who became of counsel to the firm last month. Ms. Wolke's focus is on commercial and class action litigation, as well as on entertainment law and intellectual property matters. David Given Leads Panel 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 The firm was recently appointed co-lead counsel 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 A federal judge has decided in favor of the firm'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. In August 2009, Pennsylvania-based company USA Technologies filed a federal lawsuit in Philadelphia against two Yahoo! message board posters who roundly criticized what they claim was the consistently poor performance of USA Technologies' management. Following the filing of the lawsuit, USA Technologies issued a subpoena to Yahoo! demanding that the identity of its critics be disclosed. 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 recently granted. For a copy of that decision, click here. The matter eventually settled; the case against the client was dismissed, and USA Technologies paid a confidential amount to the client and the client's attorneys. Firm Represents Cult-Rock Hero Roky Erickson The firm 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. Roky has just released a new album entitled "True Love Cast Out All Evil" on Anti-Records. He is currently performing with Okkervil River. Firm in Rights Deal for Men Are From Mars David Given 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 The firm recently participated in protracted, multi-party negotiations concerning legal proceedings in three different jurisdictions, which have lead 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. firm obtains highest settlement in state history In December 2009, Nick Carlin and David Given 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 hadbeen 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. Daily Journal features article 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 at forefront of fight against banking industry The firm 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 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 Nick Carlin 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, US 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, Nick Carlin 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: In February of 2009, Nick Carlin 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": Nick Carlin and David Given 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 The firm 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 The firm 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 In December 2008, Nick Carlin 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 David Given published an article in the Fall 2008 issue of the Entertainment & Sports Lawyer entitled "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. nick carlin joins firm bolstering 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.
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