CONSTITUTIONAL LAW 

Civil Rights Action Against State Bar and its officers
Canatella v. California State Bar
2007 WL 1296871 (9th Cir. 2007)
The Firm defended the California State Bar, its president and general counsel in a civil rights action filed by an attorney alleging that his state bar discipline had been misrepresented on the State Bar website, successfully obtaining dismissal of the case by way of summary judgment on statute of limitations grounds. The U.S. Ninth Circuit Court of Appeals affirmed the judgment, holding in a matter of first impression that the single publication rule applies to alleged defamatory statements contained on websites, even where the website has changed its URL.


EMPLOYMENT LAW  

Age and National Origin Discrimination and Retaliation.
Bolsega v. Marriott International
San Francisco Superior Court (2007)
The Firm defended Marriott International and two of its managers in a lawsuit brought by a former front desk agent employed at the Stanford Court Hotel in San Francisco, alleging claims for age and national origin discrimination and retaliation. The case settled at mediation following a favorable tentative ruling on the Firm’s motion for summary judgment.

Race Discrimination
Hardeman v. Amtrak
U.S. District Court, N. D. Cal. (2007)
The Firm defended Amtrak in a race discrimination action brought by a former Amtrak train engineer alleging disparate discipline in connection with his suspension and subsequent termination. The court granted the Firm’s motion for summary judgment directed to the termination claim, rejecting plaintiff’s assertion that he had been disciplined differently than similarly-situated engineers of other races. The remnant suspension claim settled shortly thereafter.
Download the Order re Motion for Reconsideration


Wage and Hour
Elizondo v. Digirad
U.S. District Court, N.D. Cal (2006)
The Firm represented several nuclear technologists and paramedics in a lawsuit against a mobile cardiac testing company, alleging numerous violations of California wage and hour laws, including failure to pay overtime and provide meal and rest breaks. The Firm prevailed on defendant’s motion to dismiss and the case settled shortly thereafter.

Sexual harassment lawsuit against Krueger International
U.S. District Court, N. D. Cal. (2006)
The Firm represented a former District Manager of a major national furniture manufacturer alleging that the CEO had subjected the client and other female employees to a several-year campaign of sexual harassment. The Firm successfully argued that it should be permitted to conduct depositions directed to the CEO’s alleged romantic relationships with and harassment of other female employees, and defeated defendants’ motion for summary judgment. The case settled shortly thereafter.

Disability Discrimination
Granda v. Law School Admissions Service
U.S. District Court, E.D. Cal. (2005)
The Firm filed an emergency lawsuit on behalf of a quadraplegic college student against Law School Admissions Service (“LSAC”), which administers the LSAT, seeking a temporary restraining order compelling LSAC to provide certain testing accommodations which had been denied to the client. The District Court granted in part the Firm’s application for a temporary restraining order, and the case settled shortly thereafter.
Download the order.

Race and Gender Discrimination
Holmes v. Amtrak
U.S. District Court, N. D. Cal. (2005)
The Firm defended Amtrak in a race and gender discrimination action brought by a former male train conductor who had been terminated for violating operating rules. The former conductor alleged that a female conductor of a different race had also violated the rules but had received lesser discipline. The court granted the Firm’s motion for summary judgment and dismissed the case, ruling that the termination was justified and not race based.
Download Holmes v. Amtrak order here.

Arbitration of Employment Claim
Williams v. Beehive
U.S. District Court, N. D. Cal. (2005)
The Firm represented Beehive Ventures, a venture capital concern, in an action brought by the CEO of an invested company alleging breach of his employment contract. The court concurred with the Firm that the arbitration clause in the employment contract was enforceable and obtained dismissal of the case on the ground that plaintiff had forfeited his right to arbitrate.

Stock Options, Fraud
Wright v. Gemplus
Arbitration (2004)
The Firm represented an accomplished inventor in a lawsuit against Gemplus, the world's largest smart card company (NASDAQ listed), seeking seven-figure damages for breach of a verbal agreement to grant client stock options and associated fraud. The Firm prevailed in arbitration on client’s contract claim, followed by a confidential settlement.

Defamation
Rivera v. Amtrak
U.S. District Court, N. D. Cal. (2004)
The Firm defended Amtrak and several individual Amtrak employees in a defamation action brought by a former Amtrak employee. The plaintiff accused his Amtrak co-workers of having made false statements to the authorities, which resulted in his arrest. The court granted the Firm’s motion for summary judgment and dismissed the action, holding that as a matter of law the alleged statements were privileged.
Download Rivera v. Amtrak order here.

Race Discrimination
Walker v. Amtrak
U.S. District Court, N. D. Cal. (2004)
The Firm defended Amtrak and an Amtrak employee in a race discrimination action brought by a former train conductor, obtaining terminating discovery sanctions and dismissal of the case.

Wrongful Termination, Misrepresentation and Interference.
Thomas v. Signatures Networks, Inc., CMGI
San Francisco Superior Court (2003)
The Firm defended Signatures Networks Inc., the nation's leading manufacturer of music industry merchandise, CMGI (Signatures' then majority owner and NASDAQ listed), CMGI's chairman and two Signatures officers in a lawsuit filed by a Signatures' former Executive Vice President for wrongful termination, misrepresentation and interference. The Firm successfully obtained summary judgment to defeat all claims against CMGI and its chairman and obtained dismissal of most other claims. The remaining claims settled at mediation.

Seuxal Harassment
Bartalini v. Winterland
San Francisco Superior Ct.
Clients Winterland, the nation’s then-leading manufacturer of music industry merchandise, a then-subsidiary of a Fortune 500 Company (MCA), and CEO, successfully defend same-sex sexual harassment action brought by male employee. The Firm successfully excludes a number of CEO’s allegedly offensive comments on grounds they are gender neutral and effectively uses video excerpts of plaintiff’s deposition testimony to rebut plaintiff’s emotional testimony at jury trial.


ENTERTAINMENT  

Copyright Infringement
Dunbar v. Gottwald
U.S. District Court, N.D. Cal. (2007)
The Firm represented clients Tommy Dunbar, co-founder and songwriter for the pop group The Rubinoos, and co-writer James Gangwer, in a lawsuit against pop superstar Avril Lavigne and her producer and co-writer Lukasz (“Dr. Luke”) Gottwald for copyright infringement, alleging that the Lavigne/Gottwald song “Girlfriend,” which was a No. 1 worldwide hit song for much of 2007, infringed on The Rubinoos’ 1979 hit song “I Wanna Be Your Boyfriend,” written by Dunbar and Gangwer. The controversy drew wide media attention, and is the first high profile song infringement case known to have been played out on the internet. The controversy engendered dozens of YouTube videos independently created by fans of both sides comparing the two songs, which became the most-viewed videos on YouTube for several weeks, and popular sites such as AOL and TMZ ran internet polls asking users whether they thought Lavigne and Gottwald had copied from the Rubinoos (the majority of both polls said “yes”). The case was settled in December 2007 on confidential terms.

Unpaid Record Producer Royalties
Guercio v. Chicago Records
Los Angeles Superior Court (2005)
The Firm represented James William Guercio, a Grammy Award winning producer of the band CHICAGO, in a lawsuit against the CHICAGO bandmembers and their record company. The action alleged breach of the parties’ agreement and also sought recovery of unpaid royalties and other monies. The band counterclaimed, alleging that client had improperly withheld consent to various licensing opportunities. Following a jury trial and an accounting, the Firm obtained a judgment for almost $1 Million in favor of the client and also prevailed on the counterclaim.

Band Partnership Dispute
Dead Kennedys v. Jello Biafra
San Francisco Superior Court (2003)
The Firm represented the legendary punk rock band DEAD KENNEDYS and achieved a victory on appeal brought by the band's former frontman Jello Biafra from a jury verdict in client's favor following a three-week trial. The appellate decision upheld over $200,000 in compensatory and punitive damages, together with the band's right to continue to control all of its creative works and musical properties. In related federal court proceedings, the Firm successfully argued to remand the action to state court, convincing the federal court to award the firm's clients attorneys’ fees and costs for having to fight off removal of their action from state court. The case was the subject of feature articles in the S.F. Weekly, S.F. Examiner, and Spin Magazine.
Download the District Court order
Download the Superior Court order
Download the Daily Journal Punk Bands Royalty Dispute Takes Center Stage
Download the Daily Journal Jello Biafra Loses Bid to Deny Royalties to Former Mates

Trademark Infringement.
Doobie Brothers v. Paul Curcio, et al.
U.S. District Court, D. Fl. (1999)
The Firm represented the renowned classic rock band DOOBIE BROTHERS in a suit against Florida-based promoter Paul Curcio and three former members of the band to prevent them from touring and promoting themselves as the "Original" DOOBIE BROTHERS in violation of federal trademark law. The Firm successfully obtained a Preliminary Injunction on short notice, following a hearing in which the court praised the firm's work and preparation. In further proceedings, the firm was successful in having the defendants held in contempt of the injunction and obtaining an award of attorney's fees. The Firm eventually obtained entry of a permanent injunction and a money judgment in excess of $1 Million, later upheld by the 11th Circuit Court of Appeals.
Download the complaint here
Download the Prelimimary Injunction here.
Download the order here
Download the per curiam here

Jerry Garcia Property Settlement
Carolyn Garcia v. Estate of Garcia
Marin Superior Court (1999)
In a case nationally televised on Court TV, the Firm successfully represented Carolyn Garcia, ex-wife of the late Jerry Garcia of Grateful Dead fame, in a lawsuit against Mr. Garcia’s estate to enforce a property settlement agreement entered into by the late musician and Ms. Garcia. Praising the quality of Ms. Garcia's representation by Phillips, Erlewine & Given LLP, the Court awarded Ms. Garcia attorney's fees and the right to the remainder of the dissolution agreement, totaling more than $4.5 million. The case was followed by local and national media, broadcast live on CourtTV, and covered by leading news outlets including The New York Times, CNN, The San Francisco Chronicle and The American Lawyer. The Recorder later published an update on the estate proceedings.
Download the Statement of Decision here.

Winterland v. Bolton
U.S. District Court, N.D. Cal. (1999)
Client, the nation’s then-largest music industry merchandiser, sued popular musical performer Michael Bolton to recover seven figures in unrecouped royalties under a merchandise contract when Bolton failed to release a “studio album” within a specified period and tour as required by the contract.” The case settled on terms favorable to the client.
Download the order here.

Unpaid Management Commissions.
Ahern v. Scholz
U.S. District Court, D. Massachusetts (1996)
The Firm represented Paul Ahern, former manager of the band BOSTON, in a lawsuit against the band's lead guitarist to enforce his contractual rights to royalties. After prevailing at trial and obtaining a monetary judgment in excess of $1 Million, the client's claims were upheld by the First Circuit Court of Appeals. The decision of the trial court was the subject of a feature article in the Entertainment Law Update section of California Law Business Magazine.
Download supporting Ahern v. Scholz article here.



“Big Soul” v. Tobin
California Labor Commissioner (1996)
The Firm successfully represents Client, the former manager of such acts as TIFFANY, in a proceeding against him before the California Labor Commission under the state’s Talent Agencies Act. The decision is considered so unusual that the leading commentator in the field reprints the decision in full in his monthly report, terming it “a rare victory for personal managers.” See 19 Entertainment L. Rptr. 8:11 (January 1998).


INTELLECTUAL PROPERTY LAW  

NIC v. Wren, et. al.
Trade Secret, Unfair Competition, Interference
U.S. District Court, N.D. Cal. (2007)
The Firm filed a lawsuit on behalf of a corporate client, alleging that the client’s former vice president, responsible for over $30 million in annual sales, had unlawfully taken active steps to compete while still in client’s employ, and upon being discovered and terminated, continued to unfairly compete. The lawsuit alleged claims for injunctive relief, unfair competition, misappropriation of trade secrets and interference. The court granted the Firm’s emergency application for the right to conduct expedited discovery and set an expedited hearing on a motion for preliminary injunction. The case settled prior to the hearing.

Copyright Infringement
Gilbert Properties Partnership v. Baerwald
U.S. District Court, C.D. Cal. (2003)
The firm successfully represented the heirs of the late singer/songwriter Kevin Gilbert in a lawsuit against David Baerwald alleging that Baerwald refused to give co-writing credit or royalties to Gilbert for the hit song "Come What May", which was featured as the sole original song in the film Moulin Rouge. Shortly before trial, Baerwald and other defendants agreed to settle, acknowledging Gilbert as co-author of the song and agreeing to pay Gilbert's heirs his share of the royalties.

Misappropriation of Trade Secrets
QuinStreet, Inc. v. Poynter
U.S. District Court, N.D. Cal. (2003)
Nick Carlin of the Firm defended Robert Poynter, an internet advertising and marketing executive, against a lawsuit brought by his former employer QuinStreet, Inc., an internet advertising and marketing company, alleging that Client had misappropriated trade secrets (which he denied). When Mr. Carlin successfully prevailed on a key pre-trial motion, the former employer agreed to a confidential settlement and dismissed the case.

Domain Name Partnership Dispute
Fashion On-Line v. Lipson
San Francisco Superior Court
The Firm represented the co-owner of various domain names, including fashion.com, in a lawsuit brought by the co-owners, which alleged that the Firm’s client had permitted a portion of the portfolio of names to lapse and otherwise acted improperly. The Firm filed a counterclaim alleging various breaches by the plaintiffs. The case settled at mediation.

Digital Copyright Infringement
Newton v. Diamond, et al.
Ninth Circuit Court of Appeal (2003)
Firm participates as counsel on amicus curie brief in ground-breaking case involving jazz musician James Newton’s claim of copyright infringement against the Beastie Boys and related parties. The Ninth Circuit Court of Appeals adopts many of the arguments firm makes on behalf of clients DJ Shadow, Om Records, legendary record producer Denzil Foster (En Vogue) and others in support of Beastie Boys’ position that digital sampling of three note music composition is not an infringement of Newton’s musical score, in the process establishing that sampling is not de facto infringement in all cases.
Download the order here.

Copyright Infringement
Mendler v. Winterland
U.S. District Court, ND Cal. (2001)
The Firm successfully defended at trial Winterland Productions, the world's then largest purveyor of music industry merchandise, in a copyright infringement action brought by a photographer. In a 2-1 decision, the Ninth Circuit Court of Appeals remanded the copyright infringement claim on a closely contested issue involving the use of digital photo technology. Back in the trial court, the Firm successfully defended the six-figure damages claim, convincing the trial court to reduce it to less than $10,000.
Download the Remand, Verdict, and Judgement.

Copyright Dispute
Watts v. Watts
U.S. District Court, ND Cal. (2000)
The Firm represented the daughters of famed Eastern philosopher Alan Watts in an action brought by a disinherited sibling involving rights to the deceased’s literary works. The Firm successfully defended the clients' position, resulting in a victory before an arbitrator and an award of costs and attorney's fees. Earlier, the firm had prevailed in court against separate claims made by other disinherited siblings involving so-called "renewal" copyrights.
Download the Transcript.
Download the Award.

Advertising “Sound Alike” Claims
Carlos Santana vs. Miller Brewing Company,
U.S. District Court, N.D. Cal (1996)
Miller Brewing Company employed a “sound alike” of Santana’s distinctive rendering of Black Magic Woman in a Miller Lite beer commercial. Miller did not request Santana’s permission, nor did they obtain Santana’s consent to employ the “sound alike” of the sound and style of his guitar playing in the commercial. The Firm filed this then first-ever complaint based on the Lanham Act in a claim for damages for the commercial use of a “sound alike” of an artist. The action was very quickly settled by Miller beer.

Right of Publicity
Winterland Concessions Co. v. Fenton
U.S. District Court, N.D. Cal. (1994)
Client, the holder of exclusive licenses to sell products exhibiting pictures of popular musical artists brought suit for damages under Lanham Act and California right to publicity law against unlicensed producers and distributors of poster books and calendars which contained photographs of the musicians. Trial was successfully concluded, with significant monetary award and permanent injunction granted.


COMMERCIAL LAW  

Breach of Contract
LucasFilm Ltd. v. Sport Fun
San Francisco Superior Court (2006)
The Firm represented LucasFilm in an action seeking to collect unpaid royalties from a company who had been granted the license to market products using Lucasfilms’ Star Wars trademark and other marks. The Firm successfully obtained a writ of attachment, and then prevailed on plaintiff’s claim that the monies which had been attached were exempt. The case settled shortly thereafter.

Unfair Competition
Sodexho v. Lohrey
San Francisco Superior Court (2006)
The Firm represented Sodexho in a lawsuit against a competitor to enforce a non-compete provision in connection with the sale of the business and equipment. Upon the firm’s emergency application, the court granted expedited discovery and entered a preliminary injunction to enforce the non-compete clause. The court accepted the Firm’s position that the non-compete clause was unenforceable under California law. The court then granted Sodexho its attorneys fees and costs.

Book Royalties
Black v. Lucasfilm Ltd.
Marin Superior Court (2005)
The Firm defended Lucasfilm Ltd. in an action filed by Campbell Black, author of the short story based upon the screenplay for the Academy award winning motion picture RAIDERS OF THE LOST ARK, claiming that he was owed over $4 million in unpaid royalties. The Firm successfully defended the case, reaching a settlement whereby the case was dismissed and no monies paid.

Breach of Contract
Smart-Online v. Staples, Inc.
Orange County Superior Court (2004)
The Firm defended Staples, Inc. in a lawsuit brought by a vendor alleging that Staples had breached an agreement to carry the vendor’s software product. The suit sought in excess of $800,000 in alleged damages. The Firm successfully obtained a jury verdict in favor of Staples.

Breach of Contract
Medical Self Care v. NBC
U.S. District Court, S.D. N.Y. (2003)
The Firm represented the receiver of a failed Bay Area dot-com company in a lawsuit filed in New York against NBC relating to NBC’s investment in client. On cross-motions for summary judgment, the Firm successfully convinced the court that NBC breached its agreement to allow client to assign almost $10 million in advertising time on the NBC television network to ConAgra, a Fortune 50 company. The case settled in mediation soon thereafter.

Bank Conspiracy Claims
Liew v. Moscow Narodny Bank
U.S. District Court, N.D. Cal.
The Firm defended the Moscow Narodny Bank in an action brought in the federal court in San Francisco alleging that the bank had conspired to harm the rights of a Singaporian in connection with the purchase of several independent banks in the State of California. The Moscow Narodny Bank was chartered in Great Britain and owned by the Russian government. Plaintiff alleged that the bank was conspiring to enter the U.S. banking system by stealth and interfered with plaintiff’s contractual rights. Mr. Phillips succeeded in obtaining dismissal of the bank on summary judgment. He represented in the litigation Victor Geraschenko, who went on to become chairman of Russia’s Central Bank.

Jin v. Lunchstop, et al.
San Mateo Superior Ct. (2002)
Client successfully defends action brought by franchisee alleging claims for unlawful detainer, interference, conversion and breach of franchise contract. The Firm successfully argues at trial that plaintiff failed to comply with franchise agreement and obtains substantial attorneys’ fee award for Client against plaintiff.

Commercial Lease Dispute
Lee v. Gateway Center
U.S. District Ct., N.D. Cal. (2001)
The Firm represented Sodexho, one of the nation’s leading food and facilities management companies, in successfully moving to intervene post-judgment in an existing commercial lease dispute for the purpose of applying for an award of its costs and attorney's fees. The court accepted Phillips, Erlewine & Given LLP’s novel intervention theory and granted the Firm’s motion. The Parties subsequently stipulated to an award of attorneys’ fees and costs in Sodexho’s favor.
Download the order.
Download Westlaw article.

Y2K Claims
Johnson vs. Staples
The Office Superstore
Contra Costa Superior Court (2000)
The Firm represented Staples in the first case to be decided under the Federal Y2K Act to limit litigation over computer glitches in year 2000. The Firm succeeded in defeating the plaintiff’s attempt to impose an injunction against Staples and other retailers that would have required the retailers to make a wide range of disclosures and take significant actions. The action was then settled for a nominal sum.

International Bank Fraud
Bangkok Bank of Commerce/Rakesh Saxena (1996)
The Firm was retained by the Bangkok Bank of Commerce of Thailand in 1996 to pursue recovery from one Rakesh Saxena, who had participated in diverting millions of dollars from the B.B.C. and fled to Vancouver, British Columbia, Canada with the loot. The theft caused a near-collapse of the banking system of Southeast Asia. Working with Canadian counsel, a proceeding to extradite Saxena to Thailand was undertaken as well as civil actions to recover funds.


TORT LAW  

Personal Injury
Leeson v. Steuart Street Ventures
San Francisco Superior Court (1997)
The Firm represented a doctor and his wife in winning a $2.2 million jury verdict for being assaulted by security personnel at Harry Denton's Bar & Grill, a popular San Francisco Financial District establishment, including both compensatory and punitive damages. Phillips, Erlewine & Given LLP successfully demonstrated that the doctor had suffered a substantial, debilitating back injury as a result of the assault. The case was followed by numerous media outlets including The Recorder and The San Francisco Chronicle.

Davis v. McLaney
Los Angeles Superior Court (1994)
Nick Carlin of the Firm obtained a jury award of almost $700,000 against a negligent building owner for a Hollywood actor/director who was injured when a defectively-maintained second story balcony railing gave way and he fell to the ground.


INSURANCE LAW  

Insurance Broker Malpractice
Insurance Coverage Dispute
Golden Gate Petroleum v. Thorson
Clarendon v. Golden Gate Petroleum
California Superior Court (2006)
The Firm represented a petroleum products distributor in two related insurance actions arising from a gasoline tanker rollover accident, causing substantial economic damages exceeding $600,000 and remediation costs exceeding $1.5 Million. The Firm asserted claims against the client’s insurer alleging that the policy limits fell below applicable statutory requirements, negotiating a settlement whereby the insurer agreed to pay $340,000 more than its stated policy limits. The Firm also filed a malpractice action against the client’s insurance broker for having failed to obtain requested umbrella coverage.

Insurance Bad Faith
Boles v. Travelers Ins. Co.
San Francisco Superior Court
The Firm represented a commercial fisherman in an action brought against two insurers, alleging bad faith refusal to pay for loss of the family fishing vessel after representing that the beached boat belonged to the insurers and could not be saved. After a two-week trial, the jury returned a $2.8 Million verdict, including $2.0 Million in punitive damages.

Insurance Bad Faith
North Pacific v. MOAC
San Francisco Superior Court
The Firm represented a Seattle tug boat owner in an action brought against 16 insurers alleging bad faith refusal to pay for the insured’s loss of its tug boat in the Aleutian Islands and resulting economic damages exceeding $5 Million. Phillips, Erlewine & Given LLP successfully prevailed in three motions filed by the insurers to transfer the action to the State of Washington (where the policy had been issued and the tug owner resided). Following rejection of those appeals, the case settled at mediation.

Insurance Bad Faith
Umann v. Excess Ins. Co.
Contra Costa Superior Court
The Firm represented a retail boat dealership in an action filed against an insurance company alleging bad faith refusal to pay for the theft of five speed boats. After a two-week trial, the jury returned a $1.8 Million verdict, including $1.0 million in punitive damages.