Counsel Concerns

The New York Appellate Division, First Department, reinstated a malpractice claim filed by a production company over legal representation regarding its rights to the musical Harmony, co-written by Barry Manilow. Snorkel Productions Inc. v. Beckman Lieberman & Barandes LLP, 03840. Previously, Manilow and his co-writer, Bruce Sussman, had pursued arbitration against Snorkel Productions under a production-rights agreement, for a ruling that Snorkel failed to timely exercise its option to extend its right to produce the play. The arbitration panel decided in favor of Manilow and Sussman; the Southern District of New York affirmed. Manilow v. Snorkel Productions Inc., 04 Civ. 1866 (PKC) (S.D.N.Y. 2004). In the complaint Snorkel then filed against its counsel, the New York County Supreme Court granted summary judgment for malpractice defendants Beckman Lieberman & Barandes.

The appellate division affirmed in part, noting: “In light of [Snorkel's] admission that, had [the malpractice] defendants properly advised them of the date on which the option to produce a dramatic-musical play written by Barry Manilow and Bruce Sussman ' would lapse, they would have timely renewed the option and proceeded to invest, willingly assuming the risk that they would be unable to obtain adequate financing and the production would fail, the motion court correctly concluded that, although the incorrect advice may have induced plaintiffs' continuing investment, it was not the proximate cause of their claimed losses, which resulted solely from the failure to obtain financing sufficient to support the production.”

But the appellate division further found that Snorkel could continue its malpractice claim against Beckman Lieberman & Barandes over the outcome of the arbitration. According to the appellate court: “The only loss proximately caused by defendants' negligent advice was plaintiff Snorkel's loss of its right to produce the play. While there is no nonspeculative basis for valuing that right, Snorkel may seek to recover as damages the expenses it incurred in connection with the arbitration commenced by Manilow and Appoggiatura to recover their rights.”

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Malpractice Suit/Lack of Specificity

The U.S. District Court for the Southern District of New York dismissed legal malpractice and related claims by a former of counsel to Manhattan-based Cowan, Liebowitz & Latman over the plaintiff's invention for selling on-the-spot concert recordings. Gurvey v. Cowan, Liebowitz & Latman (CLL), 06 Civ. 1202. Amy Gurvey worked as of counsel to CLL in 2002. CLL represented Gurvey, including after she was asked to leave the firm, in patent applications for her invention filed with the U.S. Patent and Trademark Office. CLL later withdrew as Gurvey's counsel citing a conflict of interest; the law firm also represented Gurvey-suit co-defendant Clear Channel Communications (CCC), whose affiliate InstantLive announced in 2003 that it would sell immediate concert recordings to its show attendees.

The district court found Gurvey's misappropriation claims were time barred under a three-year statute of limitations in New York, and that her federal and state anti-trust claims referred only “vaguely to supposed admissions of 'monopoly' control.”

Gurvey alleged tortious interference with contract against CLL over her loss of a law client. The court found that claim was time-barred, too, but added that “even if the claim were not time-barred, ' Plaintiff has alleged that 'shortly after [she] became “of counsel” to CLL, CLL attorney Mark Montague was introduced to plaintiff's client, Legend Films, whom plaintiff had also served as General Counsel up to 2002. CLL orchestrated plaintiff's ouster from Legend and induced Legend to renege on its obligation to pay plaintiff for her services.' ' It is insufficient to merely state, without more, that Defendants 'orchestrated' Plaintiff's ouster.”

In dismissing Gurvey's legal malpractice claims, the district court noted: “Here, Plaintiff offers only vague and non-actionable challenges to CLL's legal representation. Plaintiff first pleads that CLL 'failed to protect and safeguard her trade secrets.' ' This allegation appears to refer either to the presence of non-attorney CLL employees at the initial presentation of Plaintiff's inventions or to the misappropriation at the heart of Plaintiff's TAC [i.e., third amended complaint]. However, neither instance is premised on anything more than speculation, and neither presents a challenge to the actual quality of CLL's legal representation. Plaintiff also alleges that CLL 'fail[ed] to properly advise [her] with respect to the opportunities for commercial exploitation of [her] inventions and trade secrets.' ' This allegation again does not address CLL's legal representation and merely challenges the 'selection of one among several reasonable courses.'”

The court continued: “Moreover, the TAC fails to identify the precise damages suffered or how the Defendant's legal representation of her actually caused these damages. A plaintiff must properly plead that,' 'but for' the attorney's conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages.”

The New York Appellate Division, First Department, reinstated a malpractice claim filed by a production company over legal representation regarding its rights to the musical Harmony, co-written by Barry Manilow. Snorkel Productions Inc. v. Beckman Lieberman & Barandes LLP, 03840. Previously, Manilow and his co-writer, Bruce Sussman, had pursued arbitration against Snorkel Productions under a production-rights agreement, for a ruling that Snorkel failed to timely exercise its option to extend its right to produce the play. The arbitration panel decided in favor of Manilow and Sussman; the Southern District of New York affirmed. Manilow v. Snorkel Productions Inc., 04 Civ. 1866 (PKC) (S.D.N.Y. 2004). In the complaint Snorkel then filed against its counsel, the New York County Supreme Court granted summary judgment for malpractice defendants Beckman Lieberman & Barandes.

The appellate division affirmed in part, noting: “In light of [Snorkel's] admission that, had [the malpractice] defendants properly advised them of the date on which the option to produce a dramatic-musical play written by Barry Manilow and Bruce Sussman ' would lapse, they would have timely renewed the option and proceeded to invest, willingly assuming the risk that they would be unable to obtain adequate financing and the production would fail, the motion court correctly concluded that, although the incorrect advice may have induced plaintiffs' continuing investment, it was not the proximate cause of their claimed losses, which resulted solely from the failure to obtain financing sufficient to support the production.”

But the appellate division further found that Snorkel could continue its malpractice claim against Beckman Lieberman & Barandes over the outcome of the arbitration. According to the appellate court: “The only loss proximately caused by defendants' negligent advice was plaintiff Snorkel's loss of its right to produce the play. While there is no nonspeculative basis for valuing that right, Snorkel may seek to recover as damages the expenses it incurred in connection with the arbitration commenced by Manilow and Appoggiatura to recover their rights.”

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Malpractice Suit/Lack of Specificity

The U.S. District Court for the Southern District of New York dismissed legal malpractice and related claims by a former of counsel to Manhattan-based Cowan, Liebowitz & Latman over the plaintiff's invention for selling on-the-spot concert recordings. Gurvey v. Cowan, Liebowitz & Latman (CLL), 06 Civ. 1202. Amy Gurvey worked as of counsel to CLL in 2002. CLL represented Gurvey, including after she was asked to leave the firm, in patent applications for her invention filed with the U.S. Patent and Trademark Office. CLL later withdrew as Gurvey's counsel citing a conflict of interest; the law firm also represented Gurvey-suit co-defendant Clear Channel Communications (CCC), whose affiliate InstantLive announced in 2003 that it would sell immediate concert recordings to its show attendees.

The district court found Gurvey's misappropriation claims were time barred under a three-year statute of limitations in New York, and that her federal and state anti-trust claims referred only “vaguely to supposed admissions of 'monopoly' control.”

Gurvey alleged tortious interference with contract against CLL over her loss of a law client. The court found that claim was time-barred, too, but added that “even if the claim were not time-barred, ' Plaintiff has alleged that 'shortly after [she] became “of counsel” to CLL, CLL attorney Mark Montague was introduced to plaintiff's client, Legend Films, whom plaintiff had also served as General Counsel up to 2002. CLL orchestrated plaintiff's ouster from Legend and induced Legend to renege on its obligation to pay plaintiff for her services.' ' It is insufficient to merely state, without more, that Defendants 'orchestrated' Plaintiff's ouster.”

In dismissing Gurvey's legal malpractice claims, the district court noted: “Here, Plaintiff offers only vague and non-actionable challenges to CLL's legal representation. Plaintiff first pleads that CLL 'failed to protect and safeguard her trade secrets.' ' This allegation appears to refer either to the presence of non-attorney CLL employees at the initial presentation of Plaintiff's inventions or to the misappropriation at the heart of Plaintiff's TAC [i.e., third amended complaint]. However, neither instance is premised on anything more than speculation, and neither presents a challenge to the actual quality of CLL's legal representation. Plaintiff also alleges that CLL 'fail[ed] to properly advise [her] with respect to the opportunities for commercial exploitation of [her] inventions and trade secrets.' ' This allegation again does not address CLL's legal representation and merely challenges the 'selection of one among several reasonable courses.'”

The court continued: “Moreover, the TAC fails to identify the precise damages suffered or how the Defendant's legal representation of her actually caused these damages. A plaintiff must properly plead that,' 'but for' the attorney's conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages.”