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In the News: 2012 |
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Luce Files $1 Million Plagiarism Lawsuit April 25, 2012 -- PE&G attorneys Nick Carlin and David Given (along with co-counsel Elliot Cahn) have filed a federal court lawsuit (US District Court, Northern District of California) 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 for the entire year of 2005. The plaintiffs 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 UMG's Summary Judgment Motion 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. Federal Court Grants Firm's Motion March 30, 2012 -- In a hotly contested case alleging financial fraud, United States Magistrate Judge Laurel Beeler granted PE&G's motion for a prejudgment writ of attachment in the amount of over $6.1 million against several defendants, including Glenn Tobias, a self-styled motion picture producer operating from Los Angeles, and Jane Andreae, who claims to be an heiress to a billion-dollar fortune. The court's ten-page order followed a lengthy hearing in which Judge Beeler commended the "robust" showing the firm made in support of its motion. Judge Beeler made several specific findings relating to the motion, including that the firm had demonstrated the "probable validity" of its clients' claim via sworn declarations and extensive documentary evidence. The court's order allows the firm's clients to secure assets of the defendants up to the specified amount of the writ from which to satisfy an eventual judgment in the clients' favor. Class Arbitration of Employment Claims 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 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 Caifornia. Randy has previously received this award for each of the years 2005-2010. Firm Appointed to Lead Counsel Role 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 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, and dismissed 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 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 in 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 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.
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