Circus number two:  A show on VH1 about the wives of NBA players called “Basketball Wives.”

The three-ring circus that encompasses all of these:  A series of law suits brought by various NBA players over their depictions, or the depictions of their loves — or in some cases, their wives — by the program, including legal claims in the suit filed by Chris Bosh claiming infringement of something called “life rights.”

The latest suit, this one by Gilbert Arenas, focuses on alleged false inferences concerning a relationship between him and someone called Govan:

A significant issue Arenas raises in this lawsuit is the fact that the show uses a mix of current and ex-wives and girlfriends. In using the title Basketball Wives, it creates an inference that they’re all wives of players. Some of the promotional material mentioned below would also indicate they are still involved in the players’ lives and can comment accordingly.

However, some of these women have been through messy breakups with their respective NBA player. If Arenas were to win his lawsuit and prevent the inclusion of Govan, one has to wonder whether other players would file suit to prevent their ex’s from taking part in the show. Arenas makes the argument that the title of the show is misleading as it applies to him. In reality it’s misleading as it applies to most of the participants. As ridiculous as this whole case may seem, it could lead to the end of this show or at least a title change to accurately reflect the participants involved.

I wouldn’t count on that.

Evidently basketball players have little to do during their extremely brief off-seasons.  The “Basketball Wives” claims, however, look like sloppy law but fine sport in themselves — the kind we big-boned types handle so much better than we do layups.

Yes, if God hadn’t invented the entertainment-sports industrial complex, we lawyers would have had to invent it.  Or did we?  Either way, what could be better summer fun?  The circus is in town!

A circus within a circus within a circus is a post from Overlawyered - Chronicling the high cost of our legal system

A judge refused to issue a gag order on attorneys involved in a lawsuit by the owners of a Coachella [California] olive farm aimed at preventing hot-air balloon companies from flying over their property, and also rejected a bid to have the case moved out of Indio. . . .

JCM attorney Andrew Rauch had asked Superior Court Judge Randall D. White to issue a gag order to prevent attorneys from speaking with the media. . . .

Rauch said attorneys for the balloon companies are “using the media to publicly vilify us” and are attempting to “try the case in the press.”

Defense attorney Robert Gilliland said Rauch last month withdrew a separate request to seal the court records involving the case.

White rejected the gag order request, saying such an order should only be issued if there were extreme circumstances calling for it, and he did not consider such a situation to exist in this case.

Well, that’s one way to keep a case out of the press:  File a motion seeking a virtually unheard-of gag order in a routine civil case about fairly silly issues.

It’s just not a very good way.

(Younger readers may click here if they have any interest in “getting” the clever reference in the opening sentence of this post.)

Hot air lawsuit judge refuses to restrict hot air is a post from Overlawyered - Chronicling the high cost of our legal system

Did Clemens lie?  A trial will never really answer that question.  Everyone has already formed his opinion on whether Clemens is telling the truth.

Either way, we all know a huge chunk of players took PEDs in the 1990s. That era of the game is forever stained regardless of the outcome of this trial. What is this trial going to accomplish?  Is this really the best use of taxpayer money?

I just hope this trial is a short one, because I’d rather focus on the games being played now.

This being Overlawyered, one might suppose the appropriate point of view here would be along those lines.  Certainly, from a libertarian point of view (when in Rome…), it’s hard to be sympathetic to any investigation or prosecution whose roots are in substance abuse.  If taking steroids was or is a violation of a contractual obligation running from players to Major League Baseball, that would be an entirely private matter.  Evidently it wasn’t, or to the extent that it was, MLB would rather not pick at that scab.  Major League Baseball keeps lawyers busy with other things.

But we all acknowledge that prosecutors do and should, to some extent anyway, concern themselves with the laws that are “on the books,” which brings us back to that Sports Guy trope:  ”What difference does it make?  Who cares?  Why are you distracting me with those shiny objects?”

Dumb, dumb, dumb, Sports Guy!

Point One:  It isn’t overlawyering to prosecute people who mislead law enforcement officials or lie under oath.  Yes, people mislead police and prosecutors every day and aren’t prosecuted for it — but famous people often are, because civil disobedience by them can make for a very bad example.  What better example of an example-setter is Bill Clinton, a one-man Chief Executive as sexual revolutionary, who had to turn in his law license to avoid a perjury conviction?

Clemens’s main problem was that he was put, rather unavoidably as Scott Greenfield explained at the time, in a perjury trap:

This was a perjury trap.  Someone was going to walk away under the cloud of perjury, whether it was Clemens or McNamee.  McNamee had the upper hand, having been far more practiced for the performance ahead of him by having had much more time and being far more inclined to be molded for the purpose of giving a good performance.

Celebrities tend to make tough clients, unwilling to bend to the advice of counsel in how to testify and often having counsel too starstruck to tell the client that they aren’t coming off as credible as they think.  Sometimes, they just won’t listen to advice.  These are people who are used to getting their way.  They don’t like being told what to do, especially by people they are paying.  But that makes them arrogant, not deceptive.

There have been casualties in this war on steroids.  Barry Bonds, Marion Jones and Dana Stubblefield, all black, as noted by Doug Berman, opening the political door to the need for a white defendant [to balance out Barry Bonds].  Clemens walked into this void and may very well find himself the perfect target.  Whether he deserves it may never been known, but that doesn’t really matter when you find yourself in the perjury trap.

Clemens might have walked out of the hearing a hero if he had put on a spectacular performance.  But alas, he’s only a baseball player, not an actor.  Or an agent.  It looks like he rolled the dice and lost.  But that doesn’t answer the question of whether he lied.

That’s the way it goes when you’re a high roller.  You play in the Big Leagues, then you play in the Big Leagues.

Point Two:  It doesn’t matter to the real world if the world of sports still “doesn’t care” about Roger Clemens.  It matters because it’s the law even still.  Yes, there are some categories regarding which even the Commissioner of Baseball has no veto over — even the Players’ Association!  This is one of them.

That leads us to Point Three, namely the employment of a favorite cliche of sports “journalism”:  ”Can’t they just drop this [fill in] so we can just enjoy da game?”

Hey, Sports Guy:  Enjoy the game.  You don’t have to report about a trial you say doesn’t matter and that you claim to think no one cares about.  But the protests ring hollow because they come in the middle of your reporting about them.  Why can’t you enjoy the game?  Perhaps there is even time for both!

Your call, Sports Guy.  The adults have some business to attend to, however.  Continue, by all means, with games; no need to be distracted by the grownups and the game of real life if that is just too much for the boys of summer.  There are lots of reasons to question why we prosecute people for “victimless crimes,” and while one of them is, indeed, the fact that “it doesn’t matter to anyone else” when they’ve been done already, that argument not only proves too much — it probably is an inaccurate description of the situation here.

That’s because as every teacher who ever had to fail a student for plagiarism knows, when you don’t play by the rules you don’t only “cheat yourself.”  You cheat everyone else in the grade curve.  The consequences and ripple effects of cheating are potentially limitless.  With apologies to Gaylord Perry, in the case of Roger Clemens, how many careers, fortunes and spirits were broken by what may have been an illegally juiced fastball that far outlived the effects ageing has on the rest of us?  We’ll never know.  But only a child could believe that because those effects “already happened,” what may have been illegal or wrongful conduct that caused them “doesn’t matter any more.”  That argument is no more persuasive here, in fact, than it is with crimes that do have victims.  Do we despair of punishment for murder because it will never “bring back” the victim?

The same can be said regarding the perjury, if indeed anyone can suggest that perjury is a victimless crime, allegedly committed to cover it up.  There is a pretty good policy reason for enforcing the requirement that sworn testimony not be false.  In fact, there is nothing worse for the legal system, or more likely to result in the abuses that this blog documents, than for the legal system to shrug off perjured testimony any more than it already does.

Real life, and real justice, do not end with the last out in the ninth, the buzzer or the Hall of Fame.  Or, if the crime is even, as some would have it, with life.

Roger Clemens is, by all reports, in a world of trouble.  He was a big boy when he got himself into it.  And he may be a lot more grown up by the time he gets… out.

Bad sports is a post from Overlawyered - Chronicling the high cost of our legal system

First it was a “clerical error” that caused Righthaven to sue an Ars Technica journalist for using an image that was part of a court filing, now Righthaven is blaming an undisclosed “Former In-House Counsel” for not disclosing Stephens Media as an interested party in hundreds of cases they have filed over copyright infringement.Righthaven submitted their answer to Judge Roger Hunt’s order to show cause why they should not be sanctioned for the omission. Their only answer was this unnamed rogue in-house counsel screwed up.

For the foregoing reasons, Righthaven respectfully requests that the Court find its failure to comply with Local Rule 7.1-1 through its former in house counsel does not rise to the level of sanctionable conduct given the circumstances described herein. Moreover, Righthaven has taken corrective action in response to the Court’s June 14th Order by filing amended disclosure statements in almost 120 pending cases in within this District and within the District of Colorado. Dated this 28th day of June, 2011.

See: Shawn Mangano’s response

Since so many lawyers have left Righthaven it is difficult to determine exactly who Righthaven is blaming which cannot go over well for any lawyer that has ever worked for Righthaven.

As Marc points out, Steve Green at Vegas Inc. has one possible answer to that question, which suggests one very big little problem with this throw-’em-under-the-bus strategy:

Ninety-eight. That’s the number of Righthaven LLC copyright infringement lawsuits in which Righthaven CEO Steven Gibson was one of the attorneys of record for his own company.

I’ve actually always said, in my professional life, that clients pay, in part, for the privilege of blaming you for no damned good reason.  It’s like being a baseball manager:  Can’t find a third starter or a decent third baseman?  Fire the manager.  Occupational hazard.

But this is a new one.  Can you actually throw yourself under the bus?  Now that would sure flatten you good.  And — again — it would be Mr. Gibson who would be doing the throwing:

In fact, Righthaven is half owned by Gibson and half owned by investors who are part of the family of Arkansas investment banking billionaire Warren Stephens. He and his family also own Stephens Media.

If that’s all true, and I don’t recall anyone denying it, it could be a long, flat summer in Nevada for Righthaven and its, uh, counsel.

Assigned counsel is a post from Overlawyered - Chronicling the high cost of our legal system

But first, our story:

“Jersey Shore” star Paul “Pauly D” DelVecchio was slapped with a $4 million trademark infringement lawsuit Thursday from a Connecticut DJ who claimed his business has been ruined by comparisons to the MTV personality.

Paul Lis of South Windsor, Conn., said he spent 40 years building up a reputation as the region’s “DJ Paulie” before DelVecchio began calling himself “DJ Pauly D” on television. . . .

“He formally trademarked [sic] the name ‘DJ Paulie’ and then came the ‘Jersey Shore’ which basically wiped him off the face of the map,” attorney Jose M. Rojas told NewsCore.

The lawsuit alleges that MTV itself flooded the internet with so much “Jersey Shore” content that it was virtually impossible to find Lis’ information or advertise on [sic] his website.

Sounds like rough going all around here — but believe me, it gets worse.  And how much worse can it get?  After all, how can you “ruin” someone who starts out as a “Connecticut DJ”?  What exactly is the up side on that?  Oh, $4 million you say?  Who knew?

Of course, if you were to run a Google search for DJ PAULIE CONNECTICUT — or go crazy and use PAULY — right now… you’d have one heck of an easy time finding him, now that he’s got, not only two turntables and a microphone, but his own lawsuit!

All of which means proving damages should be a snap, right?  Because this year, what with all the search-engine saturation his court filing has got him, Paulie will demonstrate that, best-case scenario, the DJ Paulie gig is a $4M proposition.  And why should MTV deprive DJ Paulie of his best case?  Trademark infringement-wise.

Or is it the other way around?  Because now that sounds like all that infringerating is making things better, not worse.  (Someone write this down:  ”File lawsuit; enhance Google search results.”)  Okay, we’ll let the jury sort that one out.

Well, how about the Post’s explanation of the theory of damages in the first place here?  ”[I]t was virtually impossible to find Lis’ information or advertise on his website.”  That makes it sound as if MTV was even flooding Lis’s website — to the point where you couldn’t even, um, advertise “on it.”

Typo, right?  Well, the fine state of intellectual property journalism in New York is finally hammered home with this beaut later in the article:

Meanwhile, DelVecchio applied for a slew of US patents attempting to copyright his own moniker.

Whoa!  Trademark… copyright … patents … monikers?

If indeed the test for a trademark infringement is a likelihood of confusion — and I’ve always been partial to the argument that it was — then there is definitely a trademark infringement here.  Because after reading this article I, for one, am completely confused.

What a train wreck.  Here the newspaper story about the lawsuit may be even worse than what reads like one pretty bad lawsuit.  Good thing professional journalism is keeping that edge and saving society from that blogging stuff.

The biggest irony?  The article doesn’t even mention the right of publicity — publicity being the the only thing DJ Paulie’s lawsuit definitely got right.

Paulie unsaturated is a post from Overlawyered - Chronicling the high cost of our legal system

Now, we all remember this popular number from law school — United States ex rel. Gerald Mayo v. Satan and his Staff (“Mayo“), the guy who unsuccessfully sued The Prince of Lies (instead of hiring one) in federal court. Now a court in Timisoara, Western Romania, has dismissed a lawsuit purportedly against God Himself by Mircea Pavel, 40, who is serving 20 years in prison for murder. He has some issues, only not justiciable ones, it seems. The English is Interfax’s, and their regular English-speaking guy seems to be in the Catskills this weekend, so let’s work our way through this together, with Defendant’s help:

Failing to [receive an] answer [to] his prayers, the prisoner sued the [sic] God for “fraud, betrayal of trust, corruption and influence peddling.”

Pavel brought charges against “the defendant God, who lives in the heavens and is represented in Romania by the Orthodox Church,” the Evenimentul Zilei daily reported.

According to the act [lawsuit?], during the baptismal service he “drew a conclusion with [entered into a stipulation with?] the defense” to rescue him from any disaster.

“But the contract’s terms were offended [breached], despite of [sic] my payment in different forms and numerous compellations by way of prayers,” Pavel said in his lawsuit.

Eventually the court dismissed the case, ruling that “God is not subject to law and does not have an address.”

No address?! Now that is heretical; He is, as we know, found everywhere. Well, these folks just recently got rid of Communism, so we can be charitable on the theological training.

But the subject matter jurisdiction point is well taken. There may be other problems with the alleged contract, including most of the grounds for dismissal relied on in Mayo. Also: Pavel’s capacity to enter into a contract (Orthodox baptism is done in infancy); the statute of frauds (or its Soviet-era Romanian equivalent) on several counts; and, of course, in a suit against God, there must always be recourse to the defenses in equity — the plaintiff, the murderer Pavel, comes to court with some very unclean hands.

Give Pavel credit, though, and not just for going after the deep pockets. He believes God had a role in his misfortune, even if, perhaps, he has failed to name an indispensible necessary party — namely Mircea Pavel.

–

Thanks for hosting me! It’s been a pleasure. Stay in touch at my law blog, LIKELIHOOD OF CONFUSION®, or the entirely more wide open Likelihood of Success.

Deus ex curium is a post from Overlawyered - Chronicling the high cost of our legal system

Google Inc. took a swipe at media conglomerate Viacom Inc., which is suing the Internet search leader and its video sharing site YouTube for $1 billion over “massive copyright infringement.”

Google Chief Executive Eric Schmidt, speaking with reporters at a hotel bar at the 25th annual Allen & Co. moguls meeting, said litigation was the foundation of the company that owns the MTV Networks, Paramount movies studio, and video game developer Harmonix.

“Viacom is a company built from lawsuits, look at their history,” Schmidt said on early Friday.

He makes that sound like a bad thing!

Building from the bottom up is a post from Overlawyered - Chronicling the high cost of our legal system

It is to laugh, no? And yet, considering that it is a publicly-funded institution, the “need” for more legal education, in a situation of glut, is a reasonable factor for the legislature that does the funding to consider, isn’t it?

First let’s kill all the law schools is a post from Overlawyered - Chronicling the high cost of our legal system

Until now:

New York attorney Roy Den Hollander, a solo practitioner for more than 15 years who deals primarily with civil litigation and corporate governance, has filed a class action against certain Manhattan nightclubs for “invidious discrimination” against men in their policies for admitting patrons….

“Whether this case succeeds or fails,” says Hollander, “it will result in a much needed victory for men.”

Mm, and how would that be, exactly? Seems from here that the exact opposite is probably the case — if it fails, well, how is that a victory except in the sense that nothing happening to you, and living another day so you can drink another Sam Adams is a victory? And if the case succeeds, probably fewer women will go to bars.

Unless, perhaps, you’re like Roy Den Hollander, and prefer drinking alone, or otherwise without having to wait for the distaff-side customers to be served sooner. Or cheaper. Or less burdensomely. Maybe Roy Den Hollander just doesn’t appreciate “atmosphere.”

Not that there’s anything wrong with that.

Loser’s night is a post from Overlawyered - Chronicling the high cost of our legal system

A former partner of a major New York law firm pleaded guilty to conspiracy Monday in connection with kickbacks the firm is accused of paying to plaintiffs in class action and shareholder lawsuits.

David J. Bershad, 67, of Montclair, N.J., pleaded guilty in federal court to one count of conspiracy that includes obstruction of justice and making false statements under oath.

…Prosecutors believe the firm, now known as Milberg Weiss, received more than $200 million in fees from such lawsuits filed over the past 20 years. Bershad was responsible for overseeing the firm’s accounting department and financial affairs….

Bershad could face up to five years in federal prison when he is sentenced on June 23, 2008.

Grisly. According to the New York Law Journal, Bershad himself made — sit down for this part — $160 million as a Milberg Weiss partner over the last twenty years, so that $8 million (why so low?) should not be all that painful, financially; but this is not the style in which to go out for a Columbia Law man.

Here is the stipulated statement of facts in support of the plea agreement, from the Law Journal. If you have trouble following what he did wrong — the rules regarding class actions and fees are fairly arcane — in short, if you represent a class, you’re not allowed to secretly share attorneys’ fees with favored class members. Such payments create conflicts of interest between the paid plaintiffs and the rest of the class members the lawyers represent. As the statement says:

By entering into such secret payment arrangements, BERSHAD and the other Conspiring Partners were able to secure a reliable source of individuals who were ready, willing, and able to serve as named plaintiffs in Class Actions that Milberg Weiss wanted to bring. In addition, some of these individuals would investigate and propose to BERSHAD and other Conspiring Partners potential Class Actions for Milberg Weiss to bring. Such payment arrangements generally enabled Milberg Weiss to file more Class Actions and to file them more quickly than would be possible absent such arrangements. Filing Class Actions more quickly than other competing plaintiffs’ law firms enhanced Milberg Weiss’s ability to obtain lead counsel status in cases, before and after the passage of the Private Securities Litigation Reform Act of 1995. Lead counsel generally obtained a larger share of the attorneys’ fees awarded in a Class Action than other counsel.

The statement of facts goes on to lay out a Byzantine arrangement of cash flow, everything short of a hollowed-out pumpkin. It describes the sort of thing that, well, crooks do. At this point, the crooks have names in the court filings such as Partner A, Partner B, down through the alphabet — and, just like Little Cats A through Z in The Cat in the Hat, they all cleaned up.

So, how long will this 67-year-old man sit in jail? I imagine he had something more like Miami in mind. But it could get even hotter — for his partners. Bershad is surely going to spill his guts even more. As the story continues:

Legal experts believe Bershad’s plea appears to be an effort to reduce his possible prison sentence in exchange for testimony.

Meanwhile, the good work of the firm goes on:

In its statement Monday, the firm said: “We remain confident that [Mr. Bershad's] actions will have no effect on the firm’s commitment to its clients and its ongoing work to protect public shareholders and consumers.”

Class acting is a post from Overlawyered - Chronicling the high cost of our legal system