Summary Block 61-90

Olivia de Havilland's 'Feud' Trial Expedited, Set for November

By Nardine Saad

Los Angeles Times, Los Angeles (September 13, 2017, 11:31 AM)

Two-time Oscar winner Olivia de Havilland will be getting her day in court this fall.

The 101-year-old Hollywood icon, who sued FX and Ryan Murphy over her depiction in the Emmy-nominated docuseries "Feud: Bette and Joan," has been granted the speedy trial she was seeking due to her advanced age.

De Havilland's jury trial will begin on Nov. 27 and is expected to last five to seven days, Los Angeles Superior Court Judge Holly Kendig ruled Wednesday at a hearing for the actress' motion to fast-track the lawsuit.

"I can't imagine not granting the motion based on the plaintiff being 101," Kendig said (via Deadline).

Though de Havilland, who lives in Paris, did not appear in court, her daughter Gisele Galante Chulack, an L.A. resident, attended the hearing instead, Deadline reported. It is unclear if the veteran actress will appear for later court dates.

The "Gone With the Wind" star sued FX and Murphy in June claiming that her depiction in "Feud" was unauthorized. De Havilland, who was played by Catherine Zeta-Jones in the miniseries about rival actresses Bette Davis and Joan Crawford, makes four major legal claims about violations of her common law and statutory rights of publicity, her right to privacy and unjust enrichment.

Catherine Zeta-Jones as Olivia de Havilland in "Feud." (Kurt Iswarienko / FX)

Catherine Zeta-Jones as Olivia de Havilland in "Feud." (Kurt Iswarienko / FX)

Catherine Zeta-Jones as Olivia de Havilland in "Feud." (Kurt Iswarienko / FX)Her attorney Suzelle M. Smith said de Havilland is "absolutely thrilled" that the trial has been expedited.

"Having this case resolved quickly is particularly meaningful to the plaintiff, who is defending the reputation of grace and integrity that she has built over the course of her 80-year career," Smith said in a statement following the hearing.

A rep for FX had no further statement regarding Wednesday's hearing.

In the lawsuit, de Havilland alleges that neither FX, Murphy nor producers at 20th Century Fox TV sought or obtained her permission to include her in the eight-episode anthology. De Havilland also took issue with her portrayal during an episode about the 1963 Oscars during which Zeta-Jones had ample screen time and relayed gossipy commentary about the players of the night. The veteran actress believes the episode cast her in a "false, hurtful and damaging light."

Olivia de Havilland will have her day in court in November. (Genaro Molina / Los Angeles Times)

Olivia de Havilland will have her day in court in November. (Genaro Molina / Los Angeles Times)

On Wednesday, FX's attorney sought more trial time to track down third parties and experts because the issue "goes back decades." FX and Murphy's attorneys have argued that de Havilland's lawsuit impinges on the defendants' First Amendment right to "create expressive works about matters of public interest" and filed an anti-SLAPP motion to strike the lawsuit in its entirety last month.

They said that de Havilland's consent was not needed to include her in the series, nor did her inclusion violate her right of publicity. They argued that de Havilland "cannot carry her burden of showing a probability of prevailing on any of her four causes of action" under the state's anti-SLAPP statutes protecting petition and free-speech rights.

That motion further complicates the situation because, if granted, the defendants would be awarded an automatic pre-trial appeal, which could push the trial date back further, the Hollywood Reporter said.

A hearing on the anti-SLAPP motion has been set for Sept. 29.

Olivia De Havilland Scores Win In ‘Feud’ Lawsuit; Trial To Start In November

By Dominic Patten
(Deadline, Los Angeles)

As FX and the producers of Feud: Bette and Joan learned today in court, time waits for no one, especially if 101-year old Olivia de Havilland wants a speedy trial for her lawsuit over how she was depicted in the Emmy nominated series.

Just days before the Ryan Murphy co-created Feud could see big wins at the 69th annual Primetime Emmy Awards on September 17 for stars Susan Sarandon and Jessica Lange, LA Superior Court Judge Holly Kendig unsurprisingly ruled Wednesday in the two time Oscar winner’s favor. An approximately five to seven-day trial has been set to start on November 27.

While the Paris-based de Havilland was not at the well-attended hearing today with her attorneys, her daughter and LA resident Gisele Galante Chulak was there. There was no real opposition from FX and the other defendants in the matter, though the parties differed over how long the trial should take. “Because this goes back decades, there are third parties we have to locate,” said FX attorney Robert Rotstein this morning seeking more trial time, looking at experts in genre and the like.

“I can’t image how one could not do that when the plaintiff is 101 years old,” said the Judge in court, though she expressed concerns about having a trial so close to the holidays. Judge Kendig set November 13 as the date of final exchange of documents between the parties, including jury instructions.

Seeking wide-ranging damages and a move to essentially shut down the FX anthology show with an injunction, de Havilland insisted in her initial June 30 lawsuit that her portrayal by Catherine Zeta-Jones in Feud damaged her “professional reputation for integrity, honesty, generosity, self-sacrifice and dignity.”

Having won twice at the Creative Emmys this past weekend, Feud is up for 10 nominations on September 17 out of its total of 18. With a trial now set, de Havilland’s legal team of Don Howarth, Suzelle Smith and Zoe Tremaye of L.A.’s Howarth & Smith will surely depose Murphy, FX execs, Oscar winner Zeta-Jones and others connected to the case. Undoubtedly, de Havilland herself will also sit for a deposition and come to town for the trial from her home in France.

First proposed back in late July, the motion to fast track the proceedings is based on the reality of de Havilland’s “unusually advanced age,” to quote the paperwork from her lawyers. Simply put, without being too indelicate and aware of how long such suits can grind away in the courts, the July 1, 1916-born icon wanted everything expedited so she would be alive to see Lady Justice in action. A statute in the state of California provides for parties in a legal matter to petition for a faster trial, for the obvious reasons.

In her jury seeking complaint of late June, the Hold Back the Dawn and The Heiress actress asserts that FX, Murphy and producers 20th Century Fox TV never even sought nor obtained her permission to depict her or use her name in their eight-episode series about Joan Crawford and Bette Davis. Among other issues, de Havilland’s lawsuit specifically targets the alleged backstage drama depicted in Feud‘s “And the Winner Is” fifth episode at the 1963 Oscars.

“At the 1963 Academy Awards, Zeta-Jones’ de Havilland comments to Bette Davis, portrayed by Susan Sarandon, that Oscar host Frank Sinatra must have drunk all the alcohol in the backstage lounge, because they cannot find any,” says the June 30 compliant. “All of this is untrue and casts Olivia de Havilland in false, hurtful and damaging light.”

Of course, FX and the other defendants repudiate de Havilland’s claims – respectfully.

“By alleging that Feud casts her in a false light and violates her right of publicity, Olivia de Havilland’s meritless lawsuit seeks to impinge on Defendants’ First Amendment right to create expressive works about matters of public interest,” asserts an extensive August 29 anti-SLAPP motion to strike from FX’s Mitchell Silberberg & Knupp LLP lawyers. “The Court should grant Defendants’ motion to strike in its entirety and award fees.”

A hearing on the anti-SLAPP motion is scheduled for September 29, also in Judge Kendig’s courtroom. If FX take a hit on that one, the defendant is expected to appeal quickly and seek an extended stay. To counter that, de Havilland’s side look sure to also seek an expedited treatment in the appellate court, as California law provides. The two sides could also mediate that part of the case, Howarth told the court Wednesday.

So, the Feud feud continues. See ya at the Emmys on Sunday.

Olivia de Havilland, at 101, Gears Up for a Fight In 'Feud' Court Battle

By Nardine Saad
(Los Angeles Times)

Two-time Oscar winner Olivia de Havilland. (Genaro Molina / Los Angeles Times)

Two-time Oscar winner Olivia de Havilland. (Genaro Molina / Los Angeles Times)

Hollywood legend Olivia de Havilland has strengthened her resolve in her court battle with FX and "Feud" showrunner Ryan Murphy.

The 101-year-old, two-time Oscar winner regarded the network's "weak" move on Tuesday to dismiss her latest complaint as a sign of "their continuing disrespect for her and for California law," her attorney, Suzelle M. Smith, said in a statement to The Times on Wednesday.

It’s the latest move in the "Gone With the Wind" star’s lawsuit against FX and Murphy, which she filed in June over her depiction in “Feud: Bette and Joan,” the miniseries about rival actresses Bette Davis and Joan Crawford. The Paris-based De Havilland, who was played by Catherine Zeta-Jones in the docudrama, makes four major legal claims about violations of her common law and statutory rights of publicity, her right to privacy and unjust enrichment.

Her latest amended complaint was meant to establish the legal elements of falsity, reckless disregard for the truth and a conscious decision by FX and Murphy not to obtain her consent to use her name or character, Smith said in her statement.

Dishy details about the main characters and other Hollywood power players, as well as whether De Havilland described her sister and storied rival Joan Fontaine as a "bitch" in the series, are among the items discussed in De Havilland's amended complaint and FX's motion to strike it.

"In an effort to discredit her, they attempt to throw mud on a great lady," Smith said. The complaint also explained that De Havilland, an English dame, "built a public image of being a lady" who did "not speak in crude and vulgar terms about others, including her sister."

FX and Murphy's motion "strengthened Miss de Havilland’s resolve to stand up to big Hollywood and fight for her rights, and the rights of all others in such circumstances," Smith wrote. "If Defendants' view of the law were to prevail, then the California statute giving a celebrity the exclusive right to control and profit from her name and identity, and protect her reputation, would be meaningless."

Smith said the actress would be filing an opposition to the motion on Sept. 15, just days before the Primetime Emmy Awards, where "Feud" is expected to be a big winner, with18 nominations.

Catherine Zeta-Jones as Olivia de Havilland in "Feud." (Kurt Iswarienko / FX)

Catherine Zeta-Jones as Olivia de Havilland in "Feud." (Kurt Iswarienko / FX)

The defendants' Tuesday motion cited the U.S. and California Constitutions' rights to free speech in connection with a public issue and petitioned the court to strike De Havilland's latest complaint. It also asked for an order awarding them attorney's fees and costs, according to court documents obtained by Deadline.

"Feud: Bette and Joan," they argued, "is a prime example of an important expressive work."

"In dramatizing the infamous rivalry between iconic actors Bette Davis and Joan Crawford and how that rivalry played out during the shooting of their 1962 film What Ever Happened to Baby Jane?, Feud is a social commentary on Hollywood's history of sexism, misogyny, and media manipulation, issues that still plague Hollywood today," the motion said.

FX and Murphy's attorneys argued that De Havilland's consent was not needed to include her in the show, nor did her inclusion violate her right of publicity. They argued that De Havilland "cannot carry her burden of showing a probability of prevailing on any of her four causes of action" under the state's anti-SLAPP statutes protecting petition and free speech rights.

The 25-page motion went to great lengths to explain how "Feud" is "an expressive television show and concerns matters of public interest."

"Feud's depiction of Plaintiff is transformative and constitutionally protected for that separate reason,” the motion said. “Moreover, a public figure like [de Havilland] cannot hold the creators of an expressive work liable in tort absent falsity and actual malice, neither of which is present here."

"Finally,” the motion said, “[De Havilland's] fourth cause of action for unjust enrichment claim fails because it is derivative of her other claims and is not a separate claim under California law."

A hearing in the case is set for Sept. 29 in Los Angeles Superior Court with Judge Holly E. Kendig presiding. Earlier this month, De Havilland's legal team filed a motion to expedite the lawsuit due to her advanced age.

Screen Icon, 101, Urges Speedy Trial of Lawsuit Over TV Series

By Lila Seidman
(Los Angeles Daily Journal)

Weeks after filing a lawsuit against showrunner Ryan Murphy and FX Networks over her depiction in the Emmy- nominated series, "Feud: Bette and Joan," Golden Age screen icon Olivia de Havilland has asked the court to expedite the trial, citing her advanced age. De Havilland celebrated her 101st birthday on July 1.

In its first public statement on thecase, Fox 21 defended the show on Wednesday, calling it "meticulously researched."

"By the logic of Ms. de Havilland's attorneys, no producer would be able to tell any stories about famous people, living or dead, without their consent," the statement said.

De Havilland's attorneys filed a request with Los Angeles County Superior Court Judge Holly Kendig on Tuesday, asking that the trial be set in November or no later than 120 days after her motion is granted. The motion is set for a hearing on Sept. 13, days before the Prirnetime Emmy Awards, where the anthology series about the behind-the-scenes rivalry between Joan Crawford and Bette Davis is nominated for 18 awards.

The motion relies on a statute that allows people over 70 to fast-track the litigation process.

"[It's] a matter of common sense. When you reach 90, much less 100- plus, you're approaching the area where your longevity cannot be counted on," said de Havilland's attorney Suzelle Smith of Los Angeles- based Howarth & Smith. "I think this will be a pretty straightforward case for the judge." Don Howarth and Zoe Tremayne of the same firm are also on the plaintiff's team.

In the suit filed June 30, the "Gone with the Wind" star alleges unauthorized commercial use of her name and identity in the show, which details of a feud between Crawford and Davis. De Havilland v. FX Networks LLC, BC667011 (L.A. Super Ct., filed June 30, 2017).

According to two-time Oscar winner de Havilland, her character in the show, played by Catherine Zeta-Jones, is portrayed as gossiping about the title characters and disparaging her sister, actress Joan Fontaine.

The complaint alleges that statements attributed to de Havilland are false and "have caused her economic, reputatioμal, and emotional damages, including distress, anxiety and humiliation." She is seeking unspecified damages and an injunction against FX to prevent it from using her name and likeness. Smith said de Havilland was not consulted for the project, despite being the only living person prominently depicted.

Olivia de Havilland Wants to Take FX to Trial Before Her 102nd Birthday

By Ashley Cullins
(The Hollywood Reporter, Los Angeles)

This feud could reach trial in the next four months.

FX's biggest event this fall may not be the debut of American Horror Story: Cult — as Olivia de Havilland is asking the court to expedite her lawsuit against the network over her portrayal in Feud: Bette and Joan.

The 101-year-old actress says Ryan Murphy's series makes her look like a gossip who exploited the personal lives of others to further her own career. She's the only living person portrayed in the show, yet she wasn't consulted, and she's suing for infringement of common law right of publicity, invasion of privacy and unjust enrichment.

In a Tuesday filing, she asks L.A. Superior Court judge Holly Kendig to set a trial for November, relying on a California statute that essentially allows parties who are 70 or older to speed up litigation.

"This is the kind of case for which the statute was passed," said de Havilland's attorney Suzelle Smith in a statement. "There is a substantial risk that without a trial preference, Miss de Havilland will be prejudiced in not obtaining the benefits of the litigation. She is eager to have this case fully resolved well in advance of her 102nd birthday.”

Even considering de Havilland's three-digit age, this motion is unusually quick. Attorneys for FX haven't even filed an appearance in the matter. Also worth noting, the case was originally before judge Robert Hess, but Smith filed a peremptory challenge and it was reassigned last week. The exact nature of that conflict is unclear.

July 26, 9:40 a.m. Updated with a statement from Feud producers.

Olivia de Havilland Sues FX Over Feud: Bette and Joan

(BBC)

Olivia de Havilland filed papers on Friday, two days before her 101st birthday

Olivia de Havilland filed papers on Friday, two days before her 101st birthday

Oscar-winning actress Olivia de Havilland is suing the makers of a television show which she says portrayed her as a "petty gossip".

De Havilland, who turns 101 on Saturday, filed a lawsuit against FX Networks and producer Ryan Murphy over the miniseries Feud: Bette and Joan.

The drama explored the bad blood between the Hollywood screen legends Joan Crawford and Bette Davis.

The actress, who appeared in 50 films, was played by Catherine Zeta-Jones.

In papers filed at the Los Angeles Superior Court, de Havilland - who was made a dame in the Queen's birthday honours in June - said the show's characterisation of her damaged her "professional reputation for integrity, honesty, generosity, self-sacrifice and dignity".

The Gone With The Wind star is asking a jury to consider the emotional distress caused by the show, as well as potential financial losses and the profits made from using her identity.

She last appeared on the big screen in 1979's The Fifth Musketeer.

De Havilland says the show caused her emotional distress

De Havilland says the show caused her emotional distress

The Paris-based actress' lawyers told The Los Angeles Times: "The FX series puts words in the mouth of Miss de Havilland which are inaccurate and contrary to the reputation she has built over an 80-year professional life, specifically refusing to engage in gossip mongering about other actors in order to generate media attention for herself."

De Havilland - the only person depicted in the series who is still alive - also said she was not consulted.

But in an interview with the Hollywood Reporter earlier this year, Mr Murphy said he did not contact de Havilland because he "didn't want to be disrespectful and ask her, 'Did this happen? Did that happen? What was your take on that?'"

The eight-part series, which is a contender for an Emmy nomination next month, is due to air in the UK on BBC Two later this year.

Famed Hollywood Actress Sues Over ‘Feud’ Depiction

By Lynn Elber
(AP News, Los Angeles)

Hollywood great Olivia de Havilland has launched her own sequel to the TV series “Feud” — a lawsuit.

The double Oscar-winning actress filed suit Friday against FX Networks and producer Ryan Murphy’s company, alleging the drama inaccurately depicts her as a gossipmonger and is an invasion of privacy.

The suit was filed in Los Angeles on Friday — one day before de Havilland turns 101. The actress, whose credits include the role of Melanie Hamilton in “Gone with the Wind,” lives in Paris.

De Havilland’s suit alleges that “Feud: Bette and Joan,” about the testy relationship of Bette Davis and Joan Crawford, used her name and identity without permission or compensation.

FX Networks declined comment Friday. Representatives for Murphy, who co-created the hit series “American Horror Story” and “Glee,” didn’t immediately respond to a request for comment.

Catherine Zeta-Jones played De Havilland in the series, which aired earlier this year. The anthology series’ next announced chapter is about the ill-fated marriage of Britain’s Prince Charles and Princess Diana.

While De Havilland is “beloved and respected by her peers” and has a reputation for integrity and honesty, the series depicts her as “a hypocrite, selling gossip in order to promote herself” at the Academy Awards, the suit says.

This is false, the suit against FX and Ryan Murphy Productions contends.

“She has refused to use what she knew about the private or public lives of other actors (which was a considerable amount) to promote her own press attention and celebrity status,” a valuable aspect of her character, the suit says.

It argues that putting “false statements into a living person’s mouth and damaging their reputation is not protected by the First Amendment because the work is cloaked as fiction.

Suzelle Smith, an attorney for de Havilland, said in a statement that FX was “wrong to ignore Miss de Havilland and proceed without her permission for its own profit.”

The actress believes FX’s actions raise important principles that affect other celebrities, Smith’s statement said.

The suit seeks unspecified compensatory and punitive damages for emotional distress, damage to her reputation and past and future economic losses, as well as an injunction barring the defendants from using her name or image in the series or otherwise.

De Havilland won Oscars for 1946′s “To Each His Own” and 1949′s “The Heiress,” and was nominated for three other films, including “Gone with the Wind.” Her later projects included TV’s “Roots: The Next Generations” and “North and South, Book II.”

The statement from her lawyers, Smith and Don Howarth, said de Havilland is “no stranger to controversy with the powerful Hollywood production industry.”

In 1943, she sued Warner Bros. over her contract.

The “landmark decision” in her legal victory set the outside limit of a studio-player contract at seven years, including suspensions, according to Ephraim Katz’s “The Film Encyclopedia.”

Olivia de Havilland Sues FX Over Unauthorized Use of Her Identity In 'Feud: Bette and Joan'

By Nardine Saad (Los Angeles Times)

la-et-entertainment-news-updates-june-olivia-de-havilland-sues-fx-over-1498845076.jpg

It's "Feud: Olivia and FX."

On the eve of her 101st birthday, two-time Oscar winner Olivia de Havilland has announced she is suing FX and producer Ryan Murphy over the unauthorized use of her identity in "Feud: Bette and Joan," according to a statement released Friday morning.

The miniseries about the longtime rivalry between actresses Bette Davis and Joan Crawford featured Catherine Zeta-Jones as de Havilland — the "Gone With the Wind" star who was a confidant of Davis' and a commentator throughout the eight-episode show.

De Havilland, who resides in France and turns 101 on Saturday, filed the lawsuit in Los Angeles Superior Court against FX Networks, LLC and Ryan Murphy Productions "based on the unauthorized commercial use of Dame Olivia's name and identity in the FX hit series," according to her attorneys, Suzelle M. Smith and Don Howarth of Howarth & Smith, noting that all the other real-life players who are featured in the series are dead.

Catherine Zeta-Jones as actress Olivia de Havilland in FX's "Feud: Bette and Joan." (Kurt Iswarienko / FX)

Catherine Zeta-Jones as actress Olivia de Havilland in FX's "Feud: Bette and Joan." (Kurt Iswarienko / FX)

Speaking on a panel at the Television Critics Assn.'s winter press tour, Zeta-Jones was asked whether she had ever met de Havilland.

"No, I didn't, unfortunately. I was going to try and get to see her. I was in the south of France this last summer. Then, unfortunately, there was the horrible tragedy that happened there in Nice, so I didn't get the chance to," Zeta-Jones said in January.

"Miss de Havilland was not asked by FX for permission to use her name and identity and was not compensated for such use," her attorneys said in a statement to The Times. "Further, the FX series puts words in the mouth of Miss de Havilland which are inaccurate and contrary to the reputation she has built over an 80-year professional life, specifically refusing to engage in gossip mongering about other actors in order to generate media attention for herself."

The suit accuses FX and its partners of appropriating de Havilland's name and identity and placing her in "a false light to sensationalize the series and to promote their own businesses" while ignoring her interests entirely.

(Damon Winter / Los Angeles Times)

(Damon Winter / Los Angeles Times)

"A living celebrity has the right to protect her name and identity from unauthorized, false, commercial exploitation under both common law and the specific 'right to publicity' statute in California," Smith said, asserting that, "FX was wrong to ignore Miss de Havilland and proceed without her permission for its own profit."

Her team plans to file a motion seeking an expedited trial date because of de Havilland's age.

De Havilland is no stranger to legal proceedings. In 1943, she filed a landmark lawsuit against Warner Bros. that resulted in the collapse of the binding long-term contract system and put the de Havilland Law on the books.

FX declined to comment on the lawsuit and Murphy's team did not immediately respond to The Times' request for comment Friday.

Update, 11:45 a.m.: This story has been updated to include FX's response.

The Real Olivia de Havilland Sues FX Over Her Depiction In Feud

By Sam Barsanti
(A.V. Club)

One of the biggest dangers in making a TV show about actual Hollywood drama is that the people involved in Hollywood drama are often very concerned with how they are perceived, as Feud creator Ryan Murphy is now learning. According to The Hollywood Reporter, actress Olivia De Havilland is suing FX and Murphy’s Ryan Murphy Productions over the way she was depicted on the show, explaining that it put “false words” into her mouth as part of a “fake interview that did not occur and would not have occurred.”

Catherine Zeta-Jones played De Havilland on Feud, and the lawsuit says that she was depicted as “a hypocrite who sold gossip to promote herself.” This is apparently very upsetting for the real De Havilland, who has prided herself on the “reputation for integrity and dignity” that she built by “refraining from gossip and other unkind, ill-mannered behavior.” She’s also upset about a line from the show where Zeta-Jones’ De Havilland referred to her sister as a “bitch,” which “stands in stark contrast with Olivia de Havilland’s reputation for good manners, class, and kindness.”

De Havilland is the only person who experienced the events from the show and is still alive, but THR says Murphy purposefully chose not to contact her about the series because he didn’t want to “intrude.” Earlier this year, though, THR contacted De Havilland about the show, and she basically responded by saying that she hadn’t seen Feud and that she didn’t care about the Bette Davis/Joan Crawford thing anymore after all these years anyway. She has presumably seen the show since then, and it’s starting to look like Murphy probably should’ve tried reaching out to her.

The lawsuit accuses FX of “infringement of common law right of publicity, invasion of privacy, and unjust enrichment,” and De Havilland is asking for damages, profits from the series, and an injunction to prevent FX from using her name and likeness in the future.

Kiini, Victoria's Secret Settle Swimsuit Infringement Lawsuit

By Ariel Givner
(The Fashion Law)


Kiini and Victoria’s Secret have recently settled a lawsuit that Kiini filed in U.S. District Court for the Central District of California back in October 2015. New York-based Kiini, which has gained a “cult-like following and is known for the original, distinct, copyright-protected swimwear designs,” initiated the action against the lingerie giant for copyright infringement, trade dress infringement, and unfair competition.

According to Kiini’s complaint, Victoria’s Secret produced a bathing suit that looked “virtually indistinguishable” to its original bikini design. Though the terms of the settlement are confidential, the suit is worth reflecting on.

As Kiini set forth in its complaint, Victoria’s Secret allegedly marketed and sold an infringing copy of Kiini’s well-known bikini design “in the pursuit of its own self promotion and profit, and to Kiini’s unfair harm and detriment.” The Kiini swimsuit in question – which is stocked by high end retailers, such as Barneys, Bergdorf Goodman, and Net-A-Porter and retails for $165 for a top and $120 for a bottom – has “become a much sought after bikini.” In addition to being featured in an array of editorials, it has been worn by numerous celebrities, “including Heidi Klum, Ellie Goulding, Cara [Delevingne] and Dree Hemmingway,” among others.

Ipek Irgit, the founder and creative director of Kiini, obtained federal copyright protection for the bikini design in December 2014, making Kiini the “sole and exclusive owner to all right, title, and interest in and to the copyright to the design.” The brand alleges that in addition to enjoying federal copyright protection, it has developed trade dress rights, as “the purchasing public has come to associate the distinct Kiini trade dress with Kiini, and Kiini trade dress has achieved secondary meaning.”

The trade dress at issue consists of: “1) a triangle profile bikini; 2) a distinctive, rectangular crochet pattern that borders the edges of the bikini; 3) the rectangular geometric pattern is doubled at the bottom edge of the bikini top, and the top edge of the bikini bottom; 4) bright color blocking resulting from a woven interlaced pattern of contrasting colored and textured material, specifically elastic and crochet yarn; and, 5) the bikini top’s upright triangle profile and the bikini bottom’s upside down triangle profile.”

For the uninitiated, trade dress extends to the total image of a product and can be based on shape, size, color, texture, and graphics. In order to be eligible for trade dress protection, a design must serve as a non-functional identifier of source. Per Kiini, the triangle designs featured on the bathing suit at issue are in no way functional and that “the only reason to copy the Kiini trade dress is to attempt to trade off its goodwill and draw sales away from Kiini. This is exactly what [Victoria’s Secret] has unfairly and unlawfully done here.”

Kiini goes on to bolster its claim by stating that it is not the only one who noticed the similarities between its designs and the Victoria’s Secret copies. According to Kiini’s complaint, “several discerning customers have generated electronic content posted on popular social media, referring to the Victoria’s secret copy infringing design, and stating: ‘totally kinii [sic] knock off,’ ‘kiini copiers,’ and ‘Victoria’s secret knock off kiini.’”

The complaint continues on to note that the similarities between its design and the Victoria’s Secret copy gave rise to actual confusion amongst consumers and offered evidence that consumers “queried on photos” of the Victoria’s Secret copy, asking: “Is this a Kiini swimsuit or a Victoria’s Secret?” Victoria’s Secret allegedly ignored the customer comments “chiding it for stealing the Kiini design, and they continue to intentionally market and sell their imitations.”

Kiini originally sought preliminary and permanent injunctive relief “against the ongoing infringement of its legal rights, and damages, both actual and statutory, for the violations of Kiini’s rights to date.” Interestingly, in the time since the brand filed suit, Victoria’s Secret has folded its swimwear division entirely to focus exclusively on lingerie and loungewear.

Is Discovery That Section 8 Affidavits Were Not Filed by the Owner of the Registration Grounds for Cancellation? N.D.Cal Rules “No.”

By Theodore Davis Jr., Stephen Feingold, and Calla Yee
(JD Supra)

United Tactical Systems, LLC v. Real Action Paintball, Inc., 2017 WL 713135 (N.D. Cal. 2017)

CASE SUMMARY

Every trademark lawyer knows that between the fifth and sixth year after registration the trademark owner must file an affidavit of use. If the mark has been in continuous use, the owner may also file an affidavit of incontestability. However, regardless of whether a Section 15 Affidavit has been filed, once a registration reaches its fifth anniversary, the grounds for cancellation are very limited.

A recent case from the Northern District of California illustrates how “simple” errors in a registration’s chain of title can exponentially increase the cost and time necessary to enforce a trademark owner’s rights. While ultimately these mistakes were not fatal, the case provides an excellent opportunity to explore the finer details of prosecution and due diligence. United Tactical Sys., LLC v. Real Action Paintball, Inc., No. 14-cv-04050-MEJ, 2017 WL 713135 (N.D. Cal. Feb. 23, 2017).

THE TAKE AWAY

While we provide a detailed analysis of the case below, the critical issues to take away are:

  1. Make sure that you identify the correct owner of the mark when you file the initial application and any subsequent papers. While the TMEP provides that you may correct technical errors, you may not make changes that have legal significance. For instance, if you file an application in the name of ABC, Inc. of New Jersey when the applicant’s legal name is ABC, Inc. of New York, and there is an existing related company with the name ABC, Inc. of New Jersey, you will not be able to correct that mistake because that would alter the identity of the owner. However, if ABC, Inc. of New Jersey did not exist, then you could correct the error because it would not change the rights of an existing entity. TMEP § 1604.07 provides examples of acceptable and unacceptable changes.
  2. Due diligence will not eliminate any of the risks the trademark owner faced in this case. But a thorough due diligence, including tracing back the chain of title to the mark’s creation, will enable the trademark owner to identify the magnitude of the risk. Even though UTS eventually won the legal argument, it undoubtedly spent hundreds of thousands of dollars to do so. A savvy deal attorney will recognize the leverage this risk offers to obtain more favorable terms.
  3. Exercise extreme caution before acquiring a trademark at a foreclosure sale. Even if the sale is overseen by a bankruptcy court, the buyer receives nothing more than quitclaim title to the mark.
  4. If you are charged with recording a security interest, we suggest you take a few moments and learn more about the process. Here is link to an International Trademark Association (INTA) PowerPoint that is a good place to start.

Facts

PepperBall® projectiles are small plastic spheres that can be used in the same way as pepper spray. The PepperBall mark was originally filed by Jaycor, Inc., which then assigned the mark to Jaycor Technical Systems, Inc. (“Jaycor”). After the registration issued in May of 2003, Jaycor recorded a name change to PepperBall Technologies, Inc., a Delaware corporation (“PTI-DEL”). This assignment was recorded twice at the Trademark Office in 2002 and 2003.

In 2005, a security interest was recorded against this registration. The Cover Sheet states that the party granting the security interest was PTI-DEL. The underlying document on file with the Trademark Office, however, states that the security interest was granted by Pepperball Technologies, Inc., a California corporation. This security interest was eventually acquired by a predecessor to the named plaintiff, United Tactical Systems (“UTS”).

In 2008, PTI-DEL acquired Securities With Advanced Technologies, Inc. (“SWAT”). Driven by various corporate concerns, the acquisition had an unusual structure. PTI-DEL merged into PTI Acquisitions Corp. to become Pepperball Technologies – CA, Inc. (“PTI-CA”). SWAT then changed its name to PepperBall Technologies, Inc., a Colorado corporation (“PTI-CO”), which became PTI-CA’s parent company. Both PTI-CA and PTI-CO did business under the simple name of Pepperball Technologies, Inc. (“PTI”). To the public, it seemed as if there was only one company known as PTI and that it was the same entity that had existed for many years.

Based on these facts, the actual owner of the PepperBall mark was PTI-CA since it was the successor to PTI-DEL. The fact that PTI-CO is the parent company for PTI-CA in no way vested it with direct ownership of the mark. Furthermore, the security interest in the PepperBall mark granted by Pepperball Technology, a California corporation, would appear to be of no legal significance since that entity did not own the mark at the time the security interest was granted.

When the combined Affidavit of Use and Incontestability for the PepperBall registration was filed in 2009, the entity making that filing was not PTI-CA, the successor in interest to PTI-DEL, but Jaycor. Pepperball Technologies was listed as the proposed owner, but the Affidavit listed Jaycor as the current owner, which was consistent with the name change previously recorded in 2002 and 2003. Jaycor did not explain that the company then bearing that name was a new Colorado corporation and not the Delaware Corporation which was the successor to Jaycor and which had merged into PTI-CA.

The TMEP explains the Section 8 Affidavit must be filed by the owner and provides that if it is filed by the wrong party and the time for filing has elapsed, then the registration will be cancelled. See TMEP Section 1604.07(f). However, since there was no obvious deficiency, the Trademark Office accepted the Section 8 Affidavit.

Apparently, PTI-CO assumed the loan obligations underlying the security interest wrongfully recorded against the PepperBall registration. At some point, the lender obtained but never recorded a security interest in the PTI-CA trademark. When PTI defaulted on the loan, UTS’s predecessor foreclosed on the collateral and held an auction under the UCC. Notably, UCC sales are quitclaim sales with no representations or warranties about the property being sold. UTS’s predecessor eventually acquired the PepperBall mark through this sale. But if the foreclosure was based on a perfected security interest granted by an entity that did not own the mark, what exactly was acquired?

In 2013, UTS’s predecessor renewed the PEPPERBALL registration after explaining to the Trademark Office it had acquired the mark through the foreclosure sale of “PTI’s” trademark. Of course, this explanation was not completely accurate because the foreclosure was on PTI’s interest while the mark was still owned by PTI-CA. Nevertheless, the Trademark Office accepted the renewal of the mark with the owner now listed as UTS’s predecessor.

In 2012, one year after the registration was renewed, UTS’s predecessor brought a suit against Real Action alleging trademark infringement.

All of these issues only surfaced after extensive discovery leading, ultimately, to a decision five years after the first complaint was filed on whether UTS was in fact the owner of the PepperBall trademark. One year after UTS initiated its first complaint in Indiana, it obtained injunctive relief. The Seventh Circuit subsequently vacated that injunction finding that Real Action was not subject to personal jurisdiction. Real Action then commenced its own litigation initiative leading to counterclaims by UTS that were consolidated before the Northern District of California. In 2014, UTS again obtained a preliminary injunction. Real Action moved for summary judgment claiming that UTS was not the owner of the rights being enforced.

The Affidavit of Use

Real Action’s primary argument centered on the first Affidavit of Use. It argued that Affidavit was defective thereby causing the registration to expire as a matter of law regardless of whether the Section 8 Affidavit was accepted by the Trademark Office. The district court recognized that the Lanham Act requires that the Affidavit of Use be filed by the owner of the mark and not the “registrant.” It also held that the entity that filed the Affidavit of Use and Incontestability for the PepperBall mark was not the legal owner. 2017 WL 713135, at *14. However, the district court concluded that because the mark was incontestable these errors were of no legal significance reasoning:

Section 33(b) of the Lanham Act provides that after a registration reaches its fifth anniversary, “the registration shall be conclusive evidence of the validity of the registered mark and of the registration of the mark, of the registrant's ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce.” 15 U.S.C. § 1115(b). Once a registration has passed its fifth anniversary, and assuming the registrant files a Section 8 declaration of ongoing use, it is subject to cancellation for a limited number of reasons enumerated in Section 14 of the Lanham Act. Erroneously filed or mistakenly accepted Section 8 or Section 15 Affidavits are not one of these enumerated exceptions permitting cancellation of such a registration. Real Action tried to skirt this issue by suggesting that the Court should correct the Trademark Office’s error in accepting the Section 8 Affidavit. The court rejected this argument because no case law was offered to support it. In a footnote, the Court explained that the Trademark Office was in a better position to determine the legal ramifications for its erroneous acceptance of the Section 8 Affidavit. Id. at n. 11.

This deference to the Trademark Office seems misplaced. The only way Real Action could have presented this case to the Trademark Office was either by moving to cancel the PepperBall registration or by a special petition to the Director. Since the Lanham Act on its face does not permit cancellation of a five-year-old registration on this basis, the better option would be to petition the Commissioner to issue a notice of deficiency under Section 8 based on newly presented evidence and request that unless the deficiency was corrected that the Office issue a new notice refusing the Section 8 Affidavit. Arguably, this strategy would make the limitations for cancelling an incontestable registration irrelevant. In either event, Real Action could appeal an adverse decision on either the cancellation or the petition for de novo review by the District Court. The requirements for who must file the Section 8 Affidavit are statutory and, ultimately, it is an Article III court that should determine how those obligations are satisfied and not an Article I court.

Family Blasts Gov't, Creditors In Iran-Owned Tower Spat

By Natalie Rodriguez
(Law360, New York)

A family seeking to intervene in a suit over assets from the sale of Iran's interest in a Manhattan tower blasted the U.S. government and existing judgment creditors on Friday, alleging they wrongfully tried to get around forfeiture case rules, and asked the court to set a deadline for any further opposition.

In a response supporting their motion to intervene, Jeremy Levin, who was kidnapped in 1984 by terrorists allegedly funded by Iran, and Lucille Levin urged U.S. District Judge Katherine B. Forrest to allow them an opportunity to take a piece of forfeited funds from the sale of 650 Fifth Ave. The family blasted creditors that have already entered into a settlement for the funds and the federal government over allegedly shirking rules regarding forfeiture cases.

“[T]hey seek to avoid those rules and procedures by a private agreement, which eliminates the participation of other victims of Iranian terrorism with identical claims, will not give notice to other victims, and will not allow all claimants to petition for a pro rata share of the forfeiture fund,” the Levins said in a motion.

The family holds a $28.8 million judgment against Iran from a 2009 Washington, D.C., case.

Further, the Levins rebuffed the settling creditors’ arguments that the court does not have jurisdiction to allow the Levins in due to an appeal. The family, however said they would join the appeal and that they do not seek to challenge the terms of the order being appealed.

Separately, the Levins also asked the judge to order any further opposition to be filed within five days. “We do not know of any other parties that will file a response, but in order to bring this to closure, we ask that the court issue a scheduling order,” the letter said.

In February, U.S. Department of Justice attorneys argued that the Levin’s motion to intervene should be denied for untimeliness, the potential prejudice to current plaintiffs and failure to show a legally protectable interest.

The government also blasted the Levins’ argument that it had failed to properly notify them that they were potential claimants to the suit.

It argued under the Levins’ interpretation, the government would have had to assume the outcome of a Terrorism Risk Insurance Act litigation question that did not exist when the government filed its action in the 650 Fifth Ave. case. Further, it noted that the published notice allowed vigilant parties with an interest to intervene and that more than a dozen judgment creditor claimants were able to do so.

Several others with judgments against Iran have been attempting to carve out a place in the case. In February, the judge blocked Amir Reza Oveissi, whose grandfather was an Iranian general killed during the 1979 Iranian revolution, from consolidating his Washington, DC., case — which has a $307.5 million claim against Iran — with the New York case.

Judge Forrest contended that the consolidation would be unfair to the current plaintiff-claimants who have a settlement agreement to distribute funds from the property’s sale on a pro rata basis.

The Levins are represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.

The U.S. Government is represented by United States Attorney for the Southern District of New York Preet Bharara and Assistant United States Attorneys Michael D. Lockard, Martin S. Bell and Carolina A. Fornos.

The case is In re: 650 Fifth Avenue and Related Properties, case number 1:08-cv-10934-KBF, in the U.S. District Court for the Southern District of New York.

'Days of Our Lives' Drake Hogestyn (John Black) recovering from an on-set injury

By Shelby Morris
(Blasting News)

Drake Hogestyn injured in fall, temporarily out at Days

Drake Hogestyn injured in fall, temporarily out at Days

Actor Drake Hogestyn plays John Black on "Days of Our Lives". His character is not only a fan favorite but also a key member of the cast. We have followed him through many twists and turns over the years. Though he may leave Salem for various adventures and trials, John always comes back home to his beloved Marlena.

He has been missing from the show for a while now. The initial report came from the "Globe" stating that he had fallen from a tree and had experienced internal bleeding. Another report in July from "We Love Soaps" brought to light that he had actually been injured onset of "Days of Our Lives". There were few details and fans were left with many questions.

Finally we know where John Black is.

After months of rumors and false reports, we finally know where our beloved John Black is. He was indeed injured on the set of "Days of Our Lives" as was confirmed when Drake Hogestyn's legal team released a statement. On May 5th he was doing his own stunt. He had been instructed to run full speed and crash headfirst into a door. The intention was for the door to fling open. However, the prop wasn't set up correctly, When he hit the door at full force head on the door didn't budge. He suffered severe head injuries from this stunt gone wrong. We don't know the full extent of the injuries or any possible long term effects he may suffer.

Drake Hogestyn was hospitalized for his injuries from this onset accident. He has since been released and is recovering at his home in Malibu with his wife and family at his side.

Drake thanks his fans for their support.

The statement from the legal team also said, "Drake, his wife Victoria and the Hogestyn family appreciate the good wishes, prayers and positive thoughts from so many loyal fans, but ask that their privacy be respected at this time. Drake's goal is to get back to the show as soon as possible."

We have no word of when we may see Drake Hogestyn back on set. Hopefully he has a full recovery and rejoins the cast of "Days of Our Lives" in Salem very soon. #Television

Update and Details on Drake Hogestyn Injury

By Hope Campbell
(Soap Hub)

Earlier this month, reports surfaced that “Days of Our Lives” star Drake Hogestyn was injured after falling out of a tree. That claim now proves false. Yes, the actor was sidelined by an injury, but apparently, it happened on set.

According to a statement from Hogestyn’s lawyer published by Soap Opera Digest, the actor was injured on May 5 performing a stunt on set that had him breaking through a prop door. (It looks like John will still be fighting crime months from now.) The lawyers claim that the door was “not properly prepared” when he ran “full speed” and “smashed headfirst into it.”

Hogestyn was reportedly seriously injured and rushed straight to the hospital. He’s now recovering at home in Malibu.

In a further statement, his lawyers said:

“Drake, his wife Victoria, and the Hogestyn family, appreciate all the good wishes, prayers, and positive thoughts from so many loyal fans, but ask that their privacy be respected. Drake’s goal is to get back to the show as soon as possible.”

Journalist Settles Age Bias Suit Against NBC

By Matt Reynolds
(Courthouse News Service, Los Angeles)

Veteran journalist Frank Snepp has settled claims that he was forced out of NBCUniversal Media’s LA news affiliate KNBC-TV because of his age.

Snepp filed a notice of settlement on March 28 and NBC asked a judge to dismiss the case on April 18, according to court records at Los Angeles County Superior Court.

Late last year, a California state court judge declared a mistrial in the journalist’s age discrimination suit against NBC, after a jury deadlocked following three full days of deliberations.

Snepp sued NBCUniversal Media and its Los Angeles affiliate KNBC-TV in 2014. The 73-year-old producer and reporter claimed news director Todd Mokhtari and general manager Steve Carlston abruptly fired him from his $120,000-a-year position in October 2012 after he had complained about age discrimination and ageism.

Snepp was 69 when he lost his job.

After NBC hired him in 2006, the former CIA operative won three Emmys, a Los Angeles Press Club award and a Peabody Award for his investigative reporting at the station.

Comcast acquired NBCUniversal in 2009, and Snepp said the philosophy of the station changed as it addressed declining ratings and pivoted towards a more youthful audience.

Along with the rebrand, reporters were given new job titles as “content producers,” told to take a more hands-on approach during production and write more stories, the jury heard during the trial.

But NBC said there was no evidence that the station had discriminated against Snepp and claimed that he had refused to do assigned production tasks or learn to use a newsroom editing system.

Snepp had also worked on HBO movie scripts, television pitches and other side projects while working at NBC, the media company said, including a script based on his book “Irreparable Harm.”

The book detailed a campaign of retaliation against Snepp for writing the expose “Decent Interval,” detailing his time as a CIA operative during the Vietnam War. But Snepp’s attorneys argued that the movie projects were “red herrings” that masked the station’s discriminatory conduct.

Snepp had sought almost $5.5 million in damages. A new trial date of April 18 was taken off the court’s calendar.

Snepp’s attorneys Suzelle Smith and Ames Magill Smith of Howarth & Smith were not immediately available for comment by phone on Wednesday.

Their spokeswoman Kathy Pinckert said she could not disclose how much the journalist had settled the case for.

“The matter was resolved,” Pinckert said.

During a brief phone interview, NBC’s attorney Bart Williams, with the firm Proskauer, also said he could not disclose the terms of the settlement.

Justice Delayed: Terrorism Victims Fight For Redress

By Natalie Rodriguez
(Law360)

jerusalem-bombing-w-caption2.jpg

Gregg Salzman still feels the pain from where the shrapnel sliced into his face.

Nineteen years ago, the New Jersey chiropractor was walking through a Jerusalem mall when bombs packed with nails, screws, glass and chemicals detonated. The suicide bombings by Hamas militants left him with permanent nerve damage, a perforated eardrum and burns across his body.

Gregg Salzman is still trying to collect compensatory damages. 

Gregg Salzman is still trying to collect compensatory damages. 

He still suffers constant pain and debilitating headaches from the shrapnel, which lodged itself above his upper lip.

The physical injuries, however, were only the start of his troubles, he contends.

Over the years, Salzman has relied on a battery of lawyers in the U.S., U.K and Canada to fight for judgments against Iran, which allegedly sponsored the mall attack. Here in the U.S., he was awarded $10 million in compensatory damages in 2003, but — like so many other terrorist victims — he has been unable to extract the funds from Iran more than a decade out from that win. In the meantime, he continues to work when he can, around the limitations of his injuries, as medical bills pile up.

Although there have been moments of hope that the evolving field of terrorism-victim compensation law will one day bring him some measure of justice, the seemingly never-ending process — and the courtroom setbacks he says he suffered, such as being left out of a recent $9.4 million award to other victims of the same bombing — mostly left Salzman angry and tired.

“It feels like just constantly getting knocked down,” Salzman told Law360.

Victims of Iranian-sponsored terrorism seek compensation from the sale of the office tower at 650 Fifth Ave. in New York. (Credit: M. Lebetkin)

Victims of Iranian-sponsored terrorism seek compensation from the sale of the office tower at 650 Fifth Ave. in New York. (Credit: M. Lebetkin)

Currently, he is part of a sprawling web of litigation where victims are elbowing for the chance at grabbing proceeds from the sale of Manhattan office building 650 Fifth Avenue and certain other properties allegedly owned by Iran-backed entities. That and a new $1 billion federal fund for terrorism victims offer a potential reprieve in the near future, though even these two efforts are bound up in red tape.

Salzman’s story is just one from a growing community of terrorism victims and their advocates, who are embroiled in power struggles that start at the top bureaucratic levels with government players jostling for control, and end, all too often, pitting victim against victim in courtrooms and administrative offices across the country.

Calculating the Bill

The new $1 billion fund, which was created by legislation included in the omnibus package that passed in late 2015, is being kick-started with money from the $8.97 billion deal that the Department of Justice entered into with BNP Paribas SA to settle charges that it conspired to push through a financial transaction that violated U.S. sanctions on Sudan, Iran and Cuba. The new fund also would refill its coffers with pieces of future penalties that the U.S. lobs at state sponsors of terrorism or other entities found to be connected to terrorism.

The Congressional Research Service is predicting another $1.5 billion will come into the fund over the next decade. But even with this built-in revenue stream, the fund likely won’t be able to compensate all victims fully. Currently, U.S.-based terrorism victims are owed about $12 billion in court judgments where lawyers have yet to nail down assets to cover the bill.

At least that’s the best estimate based off a running list that Washington, D.C., attorney Stuart Newberger has pinned to his office wall. The Crowell & Moring LLP partner has been at the forefront of several of the terrorism cases on that list, including a $335 million judgment that he won for victims of a 1983 Beirut embassy bombing.

His numbers echo a 2008 congressional review of lawsuits against countries alleged to have sponsored terrorism, which indicated there was $11.39 billion in outstanding awards. Of the four top terrorist states with outstanding judgments against them, Iran by far holds the largest bill, according to that review.

So when the Iran nuclear agreement that the Obama administration struck last summer didn’t include a nod to that outstanding bill, many of the victims and lawyers battling for compensation from car bombings, kidnappings and other attacks linked to Iran were upset.

“It’s not a new thing to compensate victims when bringing a country back into a community of nations,” said attorney Suzelle Smith, pointing to a 2002 reconciliation treaty with Libya over its chemical weapons program that included compensation for those in the 1988 bombing of Pan Am Flight 103. “I think it was disappointing that the government and the Obama administration didn’t … say to Iran, ‘Look, this is what you need to do to make amends.’”

Smith, who co-founded Los Angeles trial boutique Howarth & Smith and represents terrorism victims, argues that of the $100 billion in frozen assets that Iran stands to get back as part of the nuclear deal, the U.S. government should have kept $10 billion for victims.

“My clients and I are in favor [of the nuclear deal],” Smith said. “We think it’s time for Iran to come into the community of nations and act responsibly ... but that doesn’t mean acts of terrorism should be wiped away.”

For Smith, the absence of reparations in the accord is just another addition to a string of setbacks or missed opportunities in the U.S. government and courts.

Smith represents Jeremy Levin, a former CNN journalist kidnapped in 1984 in Beirut by Hezbollah terrorists linked to Iran, and his wife Lucille Levin, whose attempts to rescue him were immortalized in a 1991 made-for-TV movie. Both are in their 80s and in poor health, Smith says. And they weren’t necessarily gung-ho about entering the legal fray to look for compensation.

“It took [Jeremy Levin] about 15 years before he decided it was right to file a lawsuit against Iran and the state sponsors of terrorism,” she said. “He was conflicted about it because he’s a man that cares very much in world peace ... [but] he decided you have to stand up and condemn acts of terrorism.”

So far, though, the Levins have spent years pursuing first a $28.8 million judgment against Iran and now the payment of that judgment.

The Long Fight

For many victims, their court cases are about making a larger statement to the world that they will hold accountable those who helped terrorists. It is a motivation that has spurred many trailblazers in this litigation arena to wage decadeslong battles.

The bodies of Charles Hegna and William Stanford, who were killed by terrorists aboard an Iranian airliner, arrive home at Andrews Air Force Base in 1984. (Credit: Corbis)

The bodies of Charles Hegna and William Stanford, who were killed by terrorists aboard an Iranian airliner, arrive home at Andrews Air Force Base in 1984. (Credit: Corbis)

Case in point: Edwena Hegna. Over the last three decades, the Arizona resident’s skin has wrinkled some and she has struggled with treatments for clinical depression. She has lost a son to complications with AIDS and seen her three other children spread out across the U.S.

And through it all, she and her children have been embroiled in a fight to secure compensation for her husband’s 1984 kidnapping and murder. In early December 1984, Charles “Chuck” Hegna was a 50-year-old diplomat looking to make his way home to his family for the Christmas holiday when his commercial flight from Kuwait City to Karachi, Pakistan, was hijacked by Hezbollah terrorists who diverted the plane to Tehran.

Witnesses to the event have said in court documents that Hegna was the first to raise his hand when the militants asked Americans on board to identify themselves. He was subsequently tortured, shot in the stomach and left to die on the tarmac of an Iranian airport.

“To a reasonable degree of medical certainty, Hegna suffered extreme pain and mental anguish from his gunshot wounds from approximately 6 a.m. on Tuesday, December 4, 1984, until his death, sometime before midnight on Thursday, December 6, 1984,” according to a 2002 judgment that awarded the family $42 million in compensatory damages and $333 million in punitive damages.

The fight to get those judgments paid has taken the Hegnas and their lawyers, including the Connecticut-based Ralph DuPont, from U.S. federal courtrooms to the U.S. Claims Tribunal in The Hague.

DuPont — who came to know and represent the Hegnas because a personal friend was also killed in the same hijacking incident — says the family’s legal efforts are about more than just finding assets to tap.

“They want to get closure. They want to see Iran held responsible by the court and to do the things that the justice system requires,” DuPont said. “They will say often it’s not about the money. And it’s true, it really isn’t. Nobody would go through what these folks go through … just for the money.”

Internal Battles

Too often, the judicial system pits victims against one another in their efforts to make terrorist sponsors or other abettors pay. A prime example is the New York federal case revolving around assets forfeited from purported Iran-backed entities, the prized jewel of which is a piece of the 650 Fifth Avenue tower.

Salzman inked a deal in 2014 with federal prosecutors to get in line to nab a piece of the proceeds if the case survives a number of appeals. Both the Hegnas and Levins have also been fighting to secure a piece of the same proceeds.

The Hegnas, who have been fighting for a share since early on in the case, argue that they had a 2002 lien on all Iran-owned property in the Southern District of New York, and they are currently appealing to the Second Circuit a ruling that looks to block them out.

Last year, the Levins tried to intervene in the 650 Fifth Avenue case, arguing that it was “a miscarriage of justice” that the U.S. government had struck a deal with only a select group of terrorism victims to split up the property proceeds.

The way the 650 Fifth Avenue case has played out has placed the DOJ in the awkward position of putting some victims — those who timely responded to a published notice in the Federal Register — above those who missed the deadline.

For the Levins, the court’s decision to deny them entry into the case, which was affirmed this month by the Second Circuit, stung, since they had agreed in other cases to share assets with intervening groups because it was the fairer thing to do, according to Smith.

The American government’s first attempt to directly compensate terrorism victims through a fund also inadvertently pitted victims against one another by creating classes of victims, according to Kenneth Feinberg, the attorney who served as the “special master” of the first fund to support victims of Sept. 11.

Kenneth Feinberg was appointed to oversee the Sept. 11 Victim Compensation Fund and the victim assistance fund established in the wake of the 2013 Boston Marathon bombings. (Credit: AP)

Kenneth Feinberg was appointed to oversee the Sept. 11 Victim Compensation Fund and the victim assistance fund established in the wake of the 2013 Boston Marathon bombings. (Credit: AP)

Legislation creating the 9/11 fund passed less than a fortnight after the attacks, without any congressional hearings.

“It was enacted by Congress in a patriotic effort to rally the country and to discourage lawsuits against the airline or World Trade Center,” Feinberg said.

With no previous precedent for such a fund and only the hastily passed statute to serve as a guiding light, Feinberg had to put together a system for deciding sensitive issues, such as who would be eligible to receive the funds and how the compensation would be calculated for each recipient.

As mandated by the legislation, Feinberg turned to his experience with tort law to come up with the equations that took into account victims’ age, health and income to determine payouts.

The fund was a success in that it helped to compensate victims and their families quickly. But having wildly varying payouts also led to Feinberg personally conducting 900 hearings with victims who were asking why they got less than their next door neighbor did.

“It was very emotional, very debilitating,” Feinberg said. “If it was to be done again, I would urge Congress to provide the same amount to everybody. Don’t tie it to the tort system.”

Feinberg had a much easier time recently serving as administrator for The One Fund Boston, a fund put together entirely with private money to help the victims of the 2013 Boston Marathon bombing. There, all the double amputees got the same amount and all of the single amputees got the same amount.

“It was much easier, much more equitable,” Feinberg said.

Much of the federal legislation revolving around terrorism victim compensation, however, has tended to be pushed through without all of the nuts and bolts of the schemes being worked out, according to experts.

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When the 2010 James Zadroga 9/11 Health and Compensation Act set up a second, broader 9/11 fund to help compensate many of the first responders that got sick in the years after the attack, the appointed special master Sheila Birnbaum had to start up the operation from almost thin air.

Working from her own New York office at Quinn Emanuel Urquhart & Sullivan LLP with the help of deputy special master Debbie Greenspan, who had helped run the first victims’ compensation fund, she set about creating the fund’s infrastructure: picking personnel, crafting the methodologies for compensating victims and writing out the claims policy.

To date, the fund has processed most of the claims it has received — but there is still work to do, which Birnbaum admits will likely move forward under another special master.

“I think another five years would be a little much for me,” Birnbaum said.

The Latest Hope

Buried within the 2,009-page omnibus spending bill that the president signed into law in mid-December was the reauthorization of the 2010 James Zadroga 9/11 Health and Compensation Act, which will keep that fund currently being overseen by Birnbaum running for another five years.

And buried within that — without having been debated at any congressional hearings — was the authorization of the new $1 billion terrorism victim compensation fund, which is being funded initially by the BNP Paribas penalties. This fund should cover a broader array of victims, including Salzman, the Hegnas and the Levins.

While the new fund won’t erase all of the existing judgments, it will go a long way to ensuring that all victims with final judgments get at least something for their pain and suffering, contends Newberger, who helped lobby for and craft the legislation. It is the first fund to apply to any victims of state-sponsored terrorism.

As currently structured, the fund will make payments on a pro rata basis that will afford victims about 10 cents on the dollar — or 30 to 40 cents on the dollar if assets from certain pending cases make their way into the fund. Additional payouts from the fund will be considered only after everybody is paid their pro rata share.

“They have to wait until everybody else gets 30 cents on the dollar,” Newberger said. “Nobody moves ahead in the line, nobody moves to the back of the line.”

In some ways, the new terrorism fund legislation is also Congress’ attempt to fix problems created by previous diplomatic and legislative efforts.

For one, the new fund will offer long-barred compensation to victims of the Iranian hostage crisis, where 52 American diplomats and civilians were held captive and tortured for 444 days between 1979 and 1981. For years, many of those victims’ efforts to sue for compensation for their suffering were blocked by a provision in the Algiers Accord that freed them. As part of their release, the U.S. promised to keep any suits based on the incident from playing out in court.

Five years after their release, the hostages received about $50 for each day spent as hostages. Under the new legislation, though, they will be entitled to $4.4 million in compensation, or $10,000 for each day held in captivity.

The use of the BNP Paribas settlement for the fund is essentially a roundabout way of getting Iran to pay for some of its outstanding judgments. U.S. Sen. Johnny Isakson, R-Ga., praised the legislation in a news release on Dec. 20 — the 35th anniversary of the release of the hostages — saying, “We know it's a bittersweet day having the memory of captivity combined with joy of knowing there finally will be compensation from the Iranians.”

Additionally, the fund in some ways attempts to fix the problems with judgment recovery that have arisen since Congress enacted a terrorism exception to the Foreign Sovereign Immunities Act about two decades ago. While the exception encouraged victims to go to court and sue states such as Libya and Iran, it failed to provide a good avenue for recovering actual funds.

“I think that the problem Congress was solving was a problem Congress felt responsible for,” said Newberger, noting that judges have expressed frustration that they were given this job by Congress and they weren’t getting anywhere with the enforcement of judgments.

The new fund highlights the delicate balance of bureaucracy and diplomacy that must be reached when trying to compensate terrorism victims, according to experts.

“A fund like this creates a very difficult balance between a need and desire to compensate deserving victims of terrorism with trying to make it comprehensive, equitable, predictable and consistent with our national security interests of protecting sovereign immunity,” said John B. Bellinger III, an Arnold & Porter LLP attorney who served as the legal adviser to the Department of State during the George W. Bush administration. “The U.S. has grappled with ways to do that over the years.”

Still, some in the industry think Congress should use its fund-creating powers sparingly, given that they can all too easily leave someone behind.

“I think these programs should remain very rare. These special compensation funds should be limited in number, and should not be encouraged,” said Feinberg, arguing that “the litigation system works pretty well.”

It’s a sentiment echoed by Steven Perles, an attorney who also worked on the new fund legislation and who has represented terrorism victims in numerous high-profile court cases, including a rare handful that secured settlements and judgments.

The legislation includes a provision that will allow victims whose own cases and investigations help the DOJ impose new penalties to keep a certain percentage of those fines outright, and Perles hopes that will help “mobilize resources in the private sector to hunt dirty money.”

“This is not about compensation,” Perles said. “It’s about deterring future acts of terrorism against U.S. citizens.”

The Critics

The new fund is not without its critics, however. Touted by supporting lawmakers as a major win for victims, the legislation seemed to appear out of thin air — at least to some observers who have raised an eyebrow at the lack of hearings.

“In creating a billion-dollar fund, we’re leaving it to a very small number of people behind closed doors to have gotten this right without any consultation,” Bellinger said.

But lawyers who spent the last year and a half or so pushing for the legislation contend that the fund is fair in how it looks to dole out compensation to victims, and they note that it came together in a rare burst of bipartisan effort between both the Senate and House judiciary committees.

“There were no hearings because it moved very fast … [legislators] felt so strongly about this that they decided they were going to do it jointly and in a collaborative measure,” Newberger said.

In the quick push to roll out the new terrorism fund legislation, however, a provision was added in at the final draft stage that may leave some terrorism victims behind, critics contend.

The provision calls for fund participants to not only hold final judgments that have ridden out all possibility of appeal, but they must also hold an order showing that the foreign sovereign was served notice of the judgment.

While on the surface this provision seems to ensure that the participants are fully eligible for the fund, it may create problems for those holding judgments against Syria because the State Department is presently declining to deliver service to Damascus. This could mean that otherwise-qualified terrorism victims will be left out of the fund.

It could be fixed in a number of ways, such as the State Department starting service again, Congress passing a technical amendment, or the special master of the new fund simply waiving requirement for Syrian cases, Perles said. But it will be another hard decision that officials will have to make.

Choices

Those currently embroiled in some of the highest-profile cases on the terrorism compensation front will also need to make some tough choices regarding whether to join in on the new fund.

Under the law, those involved in the 650 Fifth Avenue case have three options when it comes to taking part in the fund. The same goes for those involved in a separate case in which lead plaintiff Deborah Peterson and other victims of the 1983 Beirut Marine Corps barracks bombing are pursuing $1.75 billion worth of funds owned by Bank Markazi in a Citibank NA account.

One option is to fully elect to join the fund, which would mean that the victim also agrees to pool his or her winnings in the cases with the rest of the fund. That would sweeten the pot for everyone, but it could leave a claimant with less than he or she would have gotten outside of the fund.

For those who join, the new fund will cap payments to only cover up to $20 million of compensatory damages for individuals and $35 million for families. And, depending on the number of claimants taking a slice of the funds, getting that full award may occur in pieces over time, though victims still have the right to pursue other civil litigation to try to get paid.

The caps were put in place in an effort to be fair. With $12 billion of outstanding judgments and only a little over $1 billion guaranteed to be entering the fund, “it’s just a matter of trying to get everybody something,” according to a House Judiciary aide, who declined to be named.

A second option is to opt out of the fund and gamble on a larger award in existing court cases, which may or may not come through.

Currently, the defendants in the 650 Fifth Avenue case are appealing to the Second Circuit a judgment that granted the forfeiture of their interests to the U.S. government.

The Peterson case is currently before the U.S. Supreme Court, with Bank of Markazi arguing that Congress overstepped its bounds when it crafted the 2012 Iran Threat Reduction and Syria Human Rights Act and included a provision that allowed the families of victims of the 1983 Beirut Marine Corps barracks bombing to collect on a $2 billion judgment.

There is a third path, however, that most will likely choose to take. Under a conditional payment option, the victims in these cases can be entitled to receive compensation from the fund if their respective cases flame out in a ruling that goes against the terrorism victims. But if the case goes their way, the special master can deny them entrance into the fund.

Salzman, for one, isn’t sure which road he will take.

“We won’t know [if we join the fund] until we know how many hands are in the cookie jar,” he said.

Natalie Rodriguez is a senior legal industry reporter. She has covered the 650 Fifth Avenue case since 2014. Follow Natalie on Twitter.

In State False Claim Act Case Involved Country Club’s Failure To Escheat Unclaimed Deposits, California Court Rules Defendant’s SEC Filings Are Not “Public Disclosures”

By Jonathan Tycko
(The National Law Review)

The California Court of Appeal, Second Appellate Division (an intermediate appellate court in California’s state court system) recently ruled, in an interesting qui tam case brought under the California False Claims Act (“CFCA”), that a defendant’s filings with the United States Securities and Exchange Commission (“SEC”) are not “public disclosures” within the meaning of the CFCA’s so-called “public disclosure bar.” In so doing, the Court of Appeal correctly rejected arguments by the California Attorney General and the defendant that, if accepted, would have greatly expanded the reach of the public disclosure bar, and thus frequently barred otherwise valuable qui tam lawsuits.

The case is State of California ex rel. Bartlett v. Miller, Case No. B259472. Bartlett originally brought a lawsuit against a company called ClubCorp, which operates country clubs, claiming that ClubCorp had refused to refund his $7,500 initiation deposit. Bartlett then subsequently filed an amended complaint, adding a claim under the CFCA. His CFCA claim was based upon an allegation that ClubCorp had a practice of both failing to refund such deposits unless requested to do so by the club member, while also failing to escheat the unclaimed deposits to the state. California, like most states, has an escheat law, which requires a company to turn over to the state monies held by the company that belong to someone else but that are “unclaimed.” Thus, Bartlett’s CFCA claim was based upon what is known as the “reverse false claim” provision of the CFCA, which, in essence, makes it unlawful for a company to fail to pay money to the state that the company knows is owed. (The federal False Claims Act, like most state false claims acts, has a similar “reverse false claims” provision.)

Bartlett admitted that the primary basis for his CFCA claim was information he obtained by reading certain of ClubCorp’s SEC filings. In those filings, ClubCorp stated that it had a large amount of unclaimed deposits, that those deposits might be subject to escheat, and that it was currently involved in an audit by 20 different states (not including California) in which that issue was being investigated. Those SEC filings were publicly available through an online database maintained by the SEC, known as EDGAR. In other words, Bartlett’s qui tam claim was not based on his own “insider” information, but rather was based upon information that any member of the public could have obtained if they knew where to look.

The California Attorney General moved to dismiss the qui tam claim under the CFCA’s public disclosure bar. That provision provides for dismissal of a qui tam claim that is “based upon the public disclosure of allegations or transactions . . . in an investigation, report, hearing or audit conducted by or at the request of the Senate, Assembly, auditor, or governing body of a political subdivision, or by the news media . . .” The trial court granted the motion to dismiss, and Bartlett appealed.

The Court of Appeal, in reversing, rejected two arguments made by the Attorney General and ClubCorp. First, the Court rejected the argument that the SEC filings were a “report” within the meaning of the CFCA public disclosure bar. The Court correctly read the CFCA public disclosure bar to apply only where the “report” at issue was to or by the California state government, and not to or by a federal agency. As the Court explained, “state officials may be unaware of information disclosed solely to or by the federal government; and a relator with information about a state or local fraud, even if that misconduct has been publicly disclosed in a federal forum, may still be making a valuable contribution to state or local authorities that is properly rewarded under CFCA.”

Second, the Court rejected the argument that the SEC’s online database, EDGAR, was “news media.” The question of what materials available on the internet qualify as “news media” has been an issue that courts have struggled with in recent years. (The same term—“new media”—appears in the public disclosure provision of the federal False Claims Act.) In concluding that EDGAR was not “news media,” and in rejecting contrary conclusions of certain other courts, the Court reasoned that “wherever that fuzzy line now is between news media and some other form of publicly accessible information, we have little difficulty concluding that disclosures in forms available only on the SEC’s online public database are not disclosures by the news media no matter how broadly that term is interpreted.”

As it turns out, the California government knew about ClubCorps escheat issue several years before Bartlett filed his qui tam claim, and had been in the process of auditing ClubCorps over that issue. As the Court recognized, Bartlett’s qui tam claim did not add anything to the state’s knowledge, and did not ferret out a fraud of which the state otherwise was ignorant. Thus, from a policy perspective, Bartlett’s qui tam claim was not useful to the state, and did not serve the primary purpose of the CFCA’s qui tam provision. Admirably, the Court was not unduly influenced by that, and instead applied a correct reading of the law. Had it stretched the language of the public disclosure bar to require dismissal of Bartlett’s qui tam claim, the Court would have done significant damage to many meritorious, useful qui tam claims. So, contrary to the old adage, this was a case of bad facts making good law.

What does all of this mean for potential qui tam whistleblowers? In my opinion, this is a helpful decision in cases brought by whistleblowers who are not traditional “insiders.” Sometimes a company’s fraud on the government can be discovered by people outside the company who, because of their own unique knowledge or expertise, are able to investigate and uncover such fraud. Those “outsider” whistleblowers serve the policies behind the False Claims Act by bringing fraudulent conduct to the attention of the government, and by obtaining recoveries for the public fisc. But the public disclosure bar, which is a highly-technical provision of the statute, can trip up such outsider whistleblowers, since those whistleblowers will often rely upon information that they obtain on the internet or through other publicly-available sources. The decision in State of California ex rel Bartlett v. Miller is helpful precedent that keeps the door open to such outsider whistleblowers.

SEC Filing No Bar To Calif. FCA Suit, Appeals Court Says

By Jacob Fischler
(Law360, Washington)

U.S. Securities and Exchange Commission filings are not considered public disclosures for the purposes of the California False Claims Act, a state appellate court ruled Tuesday, reviving a case accusing country club chainClubCorp of withholding unclaimed initiation deposits.

A three-judge panel for California's Second Appellate District said the public disclosure rule, which bars qui tam CFCA cases based on public information, is only triggered if the disclosure occurs in forums explicitly referred to in the state statute. Therefore, relator Robert G. Bartlett’s suit was not torpedoed by ClubCorp’s acknowledging the issue in SEC filings.

Under state law, only public disclosures in a criminal, civil or administrative hearing, a report by a legislative or municipal body or one by the news media trigger the CFCA public disclosure bar, the panel said. Disclosures to federal authorities — like SEC filings — do not rise to that level, the panel said.

“State officials may be unaware of information disclosed solely to or by the federal government; and a relator with information about a state or local fraud, even if that misconduct has been publicly disclosed in a federal forum, may still be making a valuable contribution to state or local authorities that is properly rewarded under CFCA,” Presiding Justice Dennis M. Perluss wrote for the unanimous panel.

The trial court and the state — which had argued that SEC filings were public disclosures under the CFCA — relied too heavily on the federal False Claims Act, the panel said. Although the statutes embody similar goals and practices for accomplishing them, the federal law could not substitute for the state version in sections where their language is not mostly similar, the panel said.

Bartlett sued the country club company and three of its managerial employees in September 2011 for tort-related claims based on a Los Angeles-area club's terminating his membership and refusing to refund a $7,500 initiation deposit he had paid to join, according to the opinion. He amended the claim the next year to include CFCA claims alleging that the club kept such unclaimed deposits, knowingly defying its obligation to turn over to the state millions of dollars in escheatments related to the deposits.

The panel sympathized with the state, Justice Perluss said, as it had begun investigating whether ClubCorp’s California clubs owed the escheatments in 2008 and Bartlett’s suit could not have added much value to that investigation. Bartlett was in a position to reap the rewards of bringing the qui tam action without offering any benefit in return, he said. However, the state investigation had not been publicly disclosed and therefore was irrelevant to the CFCA action, he said. Representatives for Bartlett, ClubCorp and the state did not return messages seeking comment Tuesday.

Bartlett is represented by Don Howarth, Suzelle M. Smith and Jessica L. Rankin of Howarth & Smith and Russell L. Berney of Berney Law Corp.

ClubCorp is represented by Thomas F. Carlucci of Foley & Lardner LLP.

California is represented by Kamala D. Harris, Martin H. Goyette, Frederick W. Acker and Courtney Towle of the California Office of Attorney General.

The case is State of California ex rel. Robert G. Bartlett v. Gene Miller et al., case number B259472, in the Court of Appeal of the State of California, Second Appellate District, Division Seven.

Ex-NBC Reporter Took Orders But Booted Anyway, Jury Hears

By Daniel Siegal
(Law360, Los Angeles)

A Peabody Award-winning investigative journalist alleging NBC painted him as insubordinate as a pretense to fire him from its Los Angeles station took the stand Monday in an age bias and wrongful termination trial, telling a California jury he never refused an assignment.

During the third day of trial in Los Angeles on 72-year-old Frank Snepp's claims that his supervisors concocted a false pattern of insubordination to fire him from NBCUniversal Media LLC's Los Angeles affiliate because of his age, Snepp himself took the stand.

Under examination by his attorney, Suzelle Smith of Howarth & Smith, Snepp gave a broad overview of his responsibilities as an investigative journalist at the station, and walked the jury through the steps of producing an investigative report, from getting a tip and researching the story to shooting, editing, adding graphics and having the final product cleared by NBC's legal department.

Snepp said that despite the “lively give and take” he engaged in with his superiors when pushing to get his reporting on the air, he “never refused an assignment.”

NBC has argued during the trial that Snepp was fired because after a company reorganization in 2009 resulted in Snepp switching job titles — from Field Producer to Content Producer — and getting a $10,000 salary bump, the journalist refused his bosses' orders to expand the scope of his job to include producing more, shorter stories, and to handle certain photographing and editing responsibilities himself.

Smith on Monday asked Snepp about the impact of NBC's reorganization on his job duties, and Snepp said that the station's News Director at the time of the switch, Bob Long, told him it was “simply a name change,” and wouldn't change what his job entailed.

“He said that investigative journalism was the way to improve viewership, to attract people, they would come to see original reporting ... it was the DNA, he said, of NBC,” Snepp said.

A reporter for the network's Los Angeles affiliate, KNBC-TV, Snepp sued in October 2013, alleging he was a victim of the station's efforts to appeal to a younger demographic when he was terminated in October 2012 at age 69.

Snepp, who was a chief intelligence analyst for the U.S. Central Intelligence Agency in North Vietnam during the Vietnam War, has decades of television news experience under his belt. He was hired by NBC in 2005 at the age of 61. One year later, he earned the Peabody Award for a four-part series that investigated environmental and safety hazards at the site of a commercial-residential development in southwest Los Angeles.

According to Snepp's complaint, around 2009, NBC started focusing on its online content and began marginalizing Snepp and other older employees. In August 2010, there was a change in leadership at the station: Vickie Burns, who took over as news director, frequently stated her desire to appeal to a young audience of 20-somethings, Snepp said.

Once, at a morning staff meeting, Snepp alleged that Burns turned to him and said, "Some people just see you as a grumpy old man who oughta just quit."

Burns also allegedly scolded another employee, NBC Platform Manager Todd Reed, after he put Snepp on air to provide commentary for the breaking story of Osama bin Laden’s death in May 2011.

Snepp's civil complaint said his experience with ageism was not unique. Throughout his employment, he made several complaints about the company's apparent age discrimination, including submitting a 150-page summary of his experiences to his superiors.

Snepp's suit also claims he was retaliated against for speaking out about the age discrimination at the station.

That cause of action, however, was tossed by Los Angeles Superior Court Judge Stephen Moloney in August. He agreed with NBC that Snepp failed to show a causal link between his complaints about age discrimination to the network's human resources and legal departments, and the news managers who fired him.

Last week, Bart Williams of Munger Tolles & Olson LLP, representing NBC, told the jury during opening statements that Snepp was in fact the victim of his own obstinacy and refusal to adjust after the reorganization that resulted in more than 50 layoffs.

Williams noted that other decorated employees at the station, including anchor Paul Moyer, who teamed with Snepp on his Peabody-winning story, were cooperating, but Snepp flatly refused his bosses' entreaties.

Trial will resume Tuesday morning with more direct examination of Snepp.

Snepp is represented by Suzelle Smith, Don Howarth, Jessica C. Walsh and Archibald Magill Smith IV of Howarth & Smith.

NBC is represented by Bart H. Williams, Manuel F. Cachan, Margaret G. Maraschino and Erin J. Cox of Munger Tolles & Olson LLP.

The case is Frank W. Snepp v. NBCUniversal Media LLC et al., case number BC523279, in the Superior Court of the State of California, County of Los Angeles.

NBC Benched Reporter For Being ‘Too Veteran,’ Jury Told

By Daniel Siegal
(Law360, Los Angeles)

A former colleague of an investigative journalist alleging NBC's Los Angeles station fired him because of his age on Friday told a California jury the station's news director had insisted the journalist be kept off the air because he was “too veteran.”

During the second day of 72-year-old Frank Snepp's age bias and wrongful termination trial in Los Angeles, the former journalist for NBCUniversal Media LLC's local affiliate called to the stand a former colleague at the station, Todd Reed, to testify about a disagreement he had with Vickie Burns, who took over at news director at the station in 2010 and frequently stated her desire to appeal to a young audience of 20-somethings, according to Snepp's suit.

Under examination by Snepps' attorney Suzelle Smith of Howarth & Smith, Reed, who had worked as a producer and then Platform Manager at KNBC with Snepp, said that he put Snepp — a former U.S. Central Intelligence Agency analyst — on air to provide commentary for the breaking story of Osama Bin Laden's killing by the U.S. in May 2011. After he tried to bring Snepp on-air again in the following days to again provide commentary, however, Burns blocked him from doing so, telling him after the segment that it was because Snepp was “too veteran.”

Manuel Cachan of Munger Tolles & Olson LLP, representing NBC, during a sometimes testy cross-examination asked Reed extensively about apparent discrepancies between the way he described the incident on Friday compared to how he described it in a sworn declaration, asking if he “just forgot” what happened when he said he “believed” he'd been asked to keep Snepp off-air because he was a veteran employee.

Reed said that Cachan could “nitpick words,” but that he knew what Burns had said, and added that from the “expression on her face,” it was evident what she meant.

“Matter of factly she tells me, he was too veteran,” he said.

A reporter for the network's Los Angeles affiliate, KNBC-TV, Snepp sued in October 2013, alleging he was a victim of the station's efforts to appeal to a younger demographic when he was terminated in October 2012 at age 69.

Snepp, who was a chief intelligence analyst for the CIA in North Vietnam during the Vietnam War, has decades of television news experience under his belt. He was hired by NBC in 2005 at the age of 61. One year later, he earned the Peabody Award for a four-part series that investigated environmental and safety hazards at the site of a commercial-residential development in southwest Los Angeles.

Snepp alleged that Burns' taking over newsroom, however, older employers were marginalized, and claimed that in addition to him being prevented from going on air for continued Bin Laden commentary, Burns once told him in a meeting, "Some people just see you as a grumpy old man who oughta just quit."

Snepp's civil complaint said his experience with ageism was not unique. Throughout his employment, he made several complaints about the company's apparent age discrimination, including submitting a 150-page summary of his experiences to his superiors.

Snepp's suit also claims he was retaliated against for speaking out about the age discrimination at the station.

That cause of action, however, was tossed by Los Angeles Superior Court Judge Stephen Moloney in August. He agreed with NBC that Snepp failed to show a causal link between his complaints about age discrimination to the network's human resources and legal departments, and the news managers who fired him.

During opening statements on Thursday, Smith told the jury that Snepp's supervisors concocted a false pattern of insubordination to fire him.

In his opening statement, Bart Williams of Munger Tolles & Olson, representing NBC, told the jury that Snepp was in fact the victim of his own obstinacy and refusal to adjust after NBC underwent a reorganization that resulted in more than 50 layoffs.

On Friday, Williams called to the stand Robert L. Long, the news director who preceded Burns, and who had hired Snepp, and asked him whether he would consider it unprofessional if Snepp had maintained an “intimate, sexual relationship” with one of his confidential sources from a story.

Long said he would consider it unprofessional. Trial adjourned for the day before the conclusion of the cross-examination, and will resume on Monday morning.

Snepp is represented by Suzelle Smith, Don Howarth, Jessica C. Walsh and Archibald Magill Smith IV of Howarth & Smith.

NBC is represented by Bart H. Williams, Manuel F. Cachan, Margaret G. Maraschino and Erin J. Cox of Munger Tolles & Olson LLP.

The case is Frank W. Snepp v. NBCUniversal Media LLC et al., case number BC523279, in the Superior Court of the State of California, County of Los Angeles.