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Concert Litigation Lawyers Prevail in Legal Malpractice Case

The Court of Appeals of Texas affirmed a trial court's summary judgment ruling in favor of attorneys sued for malpractice over their representation of a client in concert promotion litigation. Resendez v. Maloney, 01-08-00954-CV. In the underlying case, Paul Resendez and his company had co-promoted Latin music events with Pace Concerts and its successor, SFX Entertainment (today known as Live Nation). After Pace/SFX began co-promoting events for the Hispanic market with Cardenas/Fernandez & Associates, Resendez sued Pace/SFX in Bexar County Court. Pace/SFX responded with a suit in Harris County Court seeking a declaration that it had no partnership relationship with Resendez. Resendez then non-suited the Bexar County complaint and counterclaimed with a fraudulent-inducement-to-contract allegation in the Harris County case. The Harris County judge ruled the statute of frauds barred any partnership agreement between Resendez and Pace/SFX. After losing on appeal, Resendez sued his counsel, Pat Maloney Jr. and James E. Willingham Jr., alleging malpractice in how they presented Resendez's appellate arguments in the concert promotion case. Resendez had claimed to have a 10-year agreement with Pace/SFX, but in deciding the legal malpractice case in favor of the lawyers, the court of appeals noted of the underlying concert promotion litigation: “The letters and memoranda exchanged by [Resendez and Pace/SFX] demonstrate their attempt to negotiate a partnership agreement. For example, Pace Concerts sent Resendez an unsigned memorandum that stated, 'The information contained in this outline should not be construed as a firm offer, but rather as a starting point to determine if all of the related parties are in agreement to move this potential partnership forward.' Resendez later wrote to Pace Concerts and explained his disappointment about the relationship as it had evolved between the parties. He implicitly acknowledged that the parties did not have a written contract when he expressed his reservations about 'going further without a written and specific plan of participation,' and he reiterated what terms of partnership would be acceptable to him. These documents that suggest the parties might enter into a partnership at some time in the future are insufficient to satisfy the writing requirement of the statute of frauds. ' In addition, none of the documents exchanged between the parties and submitted as summary judgment proof were signed by a representative of Pace Concerts or SFX Entertainment.”

Forum Selection Clause in Jersey Shore Appearance Release Ruled Enforceable

The U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed on the basis of improper venue a suit by an individual who signed a release to appear on the TV show Jersey Shore. Malec v. MTV Networks, 10 C 4092. Carrie Malec signed an appearance release during a taping at a nightclub of a Jersey Shore episode. She later filed suit to block distribution of the episode, alleging that the defendants had put her “in a situation that would provoke physical harm in order to provide a television spectacle, receive profits, and produce a lucrative business endeavor.” A forum selection clause in the appearance release stated: “This Release shall be construed and enforced in accordance with the laws of the State of California applicable to agreements of this nature and you hereby consent to the exclusive jurisdiction and venue of said State.” District Judge John F. Grady found the forum selection clause to be enforceable. Judge Grady noted: “Plaintiff fails to explain how the circumstances under which the Release was 'tendered' to her were unfair. Although she complains that the lighting at the nightclub was poor and that the font of the Release was small, she does not claim that she did not have the opportunity to read it, was unable to read it, or even that she did not in fact read it. ' Malec had a meaningful choice whether to sign the Release, so her unconscionability argument fails.”

Online Music Service Is Subject to Jurisdiction in CA

The U.S. District Court for the Northern District of California decided it has personal jurisdiction over an online music service that is “interactive, commercial, and targeted at California residents.” Quigley v. Guvera IP Pty Ltd., C 10-03569 CRB. The owner of the Groovera online music service filed a trademark infringement action over Guvera USA's online music service, a subsidiary of the Australian company Guvera IP. In finding personal jurisdiction over Guvera USA, District Judge Charles R. Breyer noted that the online service “requires users to register in order to download free songs, Guvera's key feature. ' This interaction is crucial to Guvera USA ' consumers are able to obtain free music only in exchange for information about themselves, which is then matched with advertiser preferences, which in turn allows Guvera USA to collect fees from advertisers with which to pay licensing fees for the music and earn revenue. Thus, although Guvera USA does not directly sell products through its [Web site], it generates revenue through consumer interaction on the [Web site].” However, Judge Breyer ruled that the Australian parent, Guvera IP, wasn't subject to personal jurisdiction in California because it's “sole act of licensing the Guvera mark to Guvera USA for use in the United States does not constitute purposeful direction '. Licensors are generally not subject to personal jurisdiction where their sole contact with the forum state is a license.”

Concert Litigation Lawyers Prevail in Legal Malpractice Case

The Court of Appeals of Texas affirmed a trial court's summary judgment ruling in favor of attorneys sued for malpractice over their representation of a client in concert promotion litigation. Resendez v. Maloney, 01-08-00954-CV. In the underlying case, Paul Resendez and his company had co-promoted Latin music events with Pace Concerts and its successor, SFX Entertainment (today known as Live Nation). After Pace/SFX began co-promoting events for the Hispanic market with Cardenas/Fernandez & Associates, Resendez sued Pace/SFX in Bexar County Court. Pace/SFX responded with a suit in Harris County Court seeking a declaration that it had no partnership relationship with Resendez. Resendez then non-suited the Bexar County complaint and counterclaimed with a fraudulent-inducement-to-contract allegation in the Harris County case. The Harris County judge ruled the statute of frauds barred any partnership agreement between Resendez and Pace/SFX. After losing on appeal, Resendez sued his counsel, Pat Maloney Jr. and James E. Willingham Jr., alleging malpractice in how they presented Resendez's appellate arguments in the concert promotion case. Resendez had claimed to have a 10-year agreement with Pace/SFX, but in deciding the legal malpractice case in favor of the lawyers, the court of appeals noted of the underlying concert promotion litigation: “The letters and memoranda exchanged by [Resendez and Pace/SFX] demonstrate their attempt to negotiate a partnership agreement. For example, Pace Concerts sent Resendez an unsigned memorandum that stated, 'The information contained in this outline should not be construed as a firm offer, but rather as a starting point to determine if all of the related parties are in agreement to move this potential partnership forward.' Resendez later wrote to Pace Concerts and explained his disappointment about the relationship as it had evolved between the parties. He implicitly acknowledged that the parties did not have a written contract when he expressed his reservations about 'going further without a written and specific plan of participation,' and he reiterated what terms of partnership would be acceptable to him. These documents that suggest the parties might enter into a partnership at some time in the future are insufficient to satisfy the writing requirement of the statute of frauds. ' In addition, none of the documents exchanged between the parties and submitted as summary judgment proof were signed by a representative of Pace Concerts or SFX Entertainment.”

Forum Selection Clause in Jersey Shore Appearance Release Ruled Enforceable

The U.S. District Court for the Northern District of Illinois, Eastern Division, dismissed on the basis of improper venue a suit by an individual who signed a release to appear on the TV show Jersey Shore . Malec v. MTV Networks , 10 C 4092. Carrie Malec signed an appearance release during a taping at a nightclub of a Jersey Shore episode. She later filed suit to block distribution of the episode, alleging that the defendants had put her “in a situation that would provoke physical harm in order to provide a television spectacle, receive profits, and produce a lucrative business endeavor.” A forum selection clause in the appearance release stated: “This Release shall be construed and enforced in accordance with the laws of the State of California applicable to agreements of this nature and you hereby consent to the exclusive jurisdiction and venue of said State.” District Judge John F. Grady found the forum selection clause to be enforceable. Judge Grady noted: “Plaintiff fails to explain how the circumstances under which the Release was 'tendered' to her were unfair. Although she complains that the lighting at the nightclub was poor and that the font of the Release was small, she does not claim that she did not have the opportunity to read it, was unable to read it, or even that she did not in fact read it. ' Malec had a meaningful choice whether to sign the Release, so her unconscionability argument fails.”

Online Music Service Is Subject to Jurisdiction in CA

The U.S. District Court for the Northern District of California decided it has personal jurisdiction over an online music service that is “interactive, commercial, and targeted at California residents.” Quigley v. Guvera IP Pty Ltd., C 10-03569 CRB. The owner of the Groovera online music service filed a trademark infringement action over Guvera USA's online music service, a subsidiary of the Australian company Guvera IP. In finding personal jurisdiction over Guvera USA, District Judge Charles R. Breyer noted that the online service “requires users to register in order to download free songs, Guvera's key feature. ' This interaction is crucial to Guvera USA ' consumers are able to obtain free music only in exchange for information about themselves, which is then matched with advertiser preferences, which in turn allows Guvera USA to collect fees from advertisers with which to pay licensing fees for the music and earn revenue. Thus, although Guvera USA does not directly sell products through its [Web site], it generates revenue through consumer interaction on the [Web site].” However, Judge Breyer ruled that the Australian parent, Guvera IP, wasn't subject to personal jurisdiction in California because it's “sole act of licensing the Guvera mark to Guvera USA for use in the United States does not constitute purposeful direction '. Licensors are generally not subject to personal jurisdiction where their sole contact with the forum state is a license.”