Counsel Concerns

Amendment Denied For Malpractice Suit Over 'Bowie Bonds'

By Stan Soocher

The U.S. District Court for the Southern District of New York denied a motion by legendary Motown songwriter Lamont Dozier to file a second-amended legal malpractice complaint against Wilkie Farr & Gallagher over the handling of the securitization (also known as “Bowie Bonds”) of Dozier's royalty revenues. Dozier v. Wilkie Farr & Gallagher LLP (WFG), 09 Civ. 9865(LMM).

The malpractice complaint currently alleges fraud, breach of contract and breach of fiduciary duty. Dozier sought to add a cause of action for professional negligence.

According to Dozier's complaint: “In or about June 2, 1998, Defendant Willkie represented Dozier in a securitized transaction (the 'Transaction') entered into by Dozier with entities and individuals identified as David Pullman (hereinafter 'Pullman') and Fahnestock & Company (hereinafter 'Fahnestock') wherein the Transaction was to provide revenue to Dozier through the securitization of his future stream of music, entertainment and intellectual property royalties.”

Dozier and Wilkie Farr previously stipulated that new amendments to the complaint could only be filed at the direction of the court. (Dozier originally filed suit in California federal court; the case was transferred to New York.) Furthermore, New York's statute of limitations for legal malpractice claims is three years from when the alleged malpractice accrued. Dozier argued, however, that his professional negligence allegation could proceed under the continuous representation doctrine.

But U.S. District Judge Lawrence M. McKenna noted: “Plaintiff alleges very generally that Willkie, subsequent to the 1998 transaction, 'continued to represent Plaintiff, Plaintiff's wife and Plaintiff's entities from 1998 through Dec. 11, 2009.' ' Plaintiff urges that there is sufficient continuity in that all of Willkie's services over the years 'arose out of [his] occupation as a songwriter' (Pl. Reply Mem. at 2), but he gives no particulars at all, and the fact that he may have required legal services as a result of his being a songwriter does not mean that the particular services the songwriter required as such 'pertain[ed] specifically' to the 1998 transaction.”

' Stan Soocher is Editor-in-Chief of Entertainment Law & Finance.

Malicious Prosecution Suit Is Reinstated Against Manatt Phelps

By Cheryl Miller

Princess Diana died 13 years ago, but litigation involving her image was recently given new life. A split California Court of Appeal, Second District, reinstated Franklin Mint's malicious prosecution lawsuit against Manatt, Phelps & Phillips, the firm that sued Franklin for hawking plates and other collectibles bearing the likeness of the so-called “People's Princess.” Franklin Mint Co. v. Manatt, Phelps & Phillips, BC285388.

Writing for the majority, Justice Thomas Willhite said that Manatt had no probable cause to bring trademark dilution or false advertising claims against Franklin on behalf of the firm's clients, the late princess's estate and The Diana, Princess of Wales, Memorial Fund. “No reasonable attorney,” Willhite wrote in a 50-page opinion, would conclude that Princess Diana used her name in such a way that it could be protected by trademark. Justice Steven Suzukawa concurred. The ruling reversed now-retired Los Angeles Superior Court Judge Warren Ettinger, who had granted Manatt's motion for non-suit after a 17-day jury trial.

Franklin Mint sued Manatt and firm partner Mark Lee, claiming that their unsuccessful 1998 lawsuit was a malicious attempt to hurt sales of Diana memorabilia. Franklin Mint settled its claims against Diana's estate and charity trust fund.

In a 34-page dissent in Franklin Mint, Justice Richard Mosk said that attorneys representing losing parties “shouldn't be fair game” to the victors. “An attorney who asserts claims on behalf of a client should not be exposed to a malicious prosecution claim just because those claims do not fall within the four corners of established case precedent or the specific words of a statute,” Mosk wrote.

' Cheryl Miller is a Staff Reporter for The Recorder, an ALM affiliate publication of Entertainment Law & Finance.

Amendment Denied For Malpractice Suit Over 'Bowie Bonds'

By Stan Soocher

The U.S. District Court for the Southern District of New York denied a motion by legendary Motown songwriter Lamont Dozier to file a second-amended legal malpractice complaint against Wilkie Farr & Gallagher over the handling of the securitization (also known as “Bowie Bonds”) of Dozier's royalty revenues. Dozier v. Wilkie Farr & Gallagher LLP (WFG), 09 Civ. 9865(LMM).

The malpractice complaint currently alleges fraud, breach of contract and breach of fiduciary duty. Dozier sought to add a cause of action for professional negligence.

According to Dozier's complaint: “In or about June 2, 1998, Defendant Willkie represented Dozier in a securitized transaction (the 'Transaction') entered into by Dozier with entities and individuals identified as David Pullman (hereinafter 'Pullman') and Fahnestock & Company (hereinafter 'Fahnestock') wherein the Transaction was to provide revenue to Dozier through the securitization of his future stream of music, entertainment and intellectual property royalties.”

Dozier and Wilkie Farr previously stipulated that new amendments to the complaint could only be filed at the direction of the court. (Dozier originally filed suit in California federal court; the case was transferred to New York.) Furthermore, New York's statute of limitations for legal malpractice claims is three years from when the alleged malpractice accrued. Dozier argued, however, that his professional negligence allegation could proceed under the continuous representation doctrine.

But U.S. District Judge Lawrence M. McKenna noted: “Plaintiff alleges very generally that Willkie, subsequent to the 1998 transaction, 'continued to represent Plaintiff, Plaintiff's wife and Plaintiff's entities from 1998 through Dec. 11, 2009.' ' Plaintiff urges that there is sufficient continuity in that all of Willkie's services over the years 'arose out of [his] occupation as a songwriter' (Pl. Reply Mem. at 2), but he gives no particulars at all, and the fact that he may have required legal services as a result of his being a songwriter does not mean that the particular services the songwriter required as such 'pertain[ed] specifically' to the 1998 transaction.”

' Stan Soocher is Editor-in-Chief of Entertainment Law & Finance.

Malicious Prosecution Suit Is Reinstated Against Manatt Phelps

By Cheryl Miller

Princess Diana died 13 years ago, but litigation involving her image was recently given new life. A split California Court of Appeal, Second District, reinstated Franklin Mint's malicious prosecution lawsuit against Manatt, Phelps & Phillips, the firm that sued Franklin for hawking plates and other collectibles bearing the likeness of the so-called “People's Princess.” Franklin Mint Co. v. Manatt, Phelps & Phillips, BC285388.

Writing for the majority, Justice Thomas Willhite said that Manatt had no probable cause to bring trademark dilution or false advertising claims against Franklin on behalf of the firm's clients, the late princess's estate and The Diana, Princess of Wales, Memorial Fund. “No reasonable attorney,” Willhite wrote in a 50-page opinion, would conclude that Princess Diana used her name in such a way that it could be protected by trademark. Justice Steven Suzukawa concurred. The ruling reversed now-retired Los Angeles Superior Court Judge Warren Ettinger, who had granted Manatt's motion for non-suit after a 17-day jury trial.

Franklin Mint sued Manatt and firm partner Mark Lee, claiming that their unsuccessful 1998 lawsuit was a malicious attempt to hurt sales of Diana memorabilia. Franklin Mint settled its claims against Diana's estate and charity trust fund.

In a 34-page dissent in Franklin Mint, Justice Richard Mosk said that attorneys representing losing parties “shouldn't be fair game” to the victors. “An attorney who asserts claims on behalf of a client should not be exposed to a malicious prosecution claim just because those claims do not fall within the four corners of established case precedent or the specific words of a statute,” Mosk wrote.

' Cheryl Miller is a Staff Reporter for The Recorder, an ALM affiliate publication of Entertainment Law & Finance.