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Week in Review

By Martha Nimmer

Barbie v. Bratz

Good news for Barbie! A federal appeals court in California has ruled that Mattel, Inc. will not have to pay $172 million to MGA Entertainment, Inc. to settle a trade secrets theft suit. The court also did away with an additional $85 million in enhanced damages imposed by a lower court judge against Mattel. The court, however, kept in place more than $100 million in attorney's fees awarded to MGA.

The heart of the suit centered on MGA's big-eyed, pouty-lipped, sometimes scantily-clad Bratz dolls, introduced by the then-relatively unknown toy-maker in 2001. According to Thompson-Reuters, the "long-running saga" over MGA's Bratz dolls began in 2004 as the toys soared in popularity, ultimately leading Mattel to accuse the Van Nuys, California-based doll maker of "stealing its designs by hiring one of Mattel's key employees." In 2008, a jury ruled that MGA and its chief executive, Isaac Larian, would have to pay Mattel $100 million in damages. MGA appealed, and the 9th Circuit threw out the verdict in 2010. Following a retrial in 2011, a jury rejected Mattel's copyright claims, finding the toy maker liable on new trade secret allegations raised by MGA at retrial. Those new counterclaims were the basis of the 9th Circuit Court of Appeals' decision to throw out the 2011 jury award against Mattel. In siding with Mattel, the 9th Circuit ruled that MGA's counterclaims were not "compulsory," in that they were not "based on the same underlying facts as Mattel's trade-secret theft claims against MGA." As such, the lower court judge erred by allowing MGA's additional trade secrets claims to be part of the case. "That both Mattel and MGA claimed they stole each other's trade secrets isn't enough to render MGA's counterclaim compulsory," the court said. "What matters is not the legal theory but the facts."

The 9th Circuit closed with the following piece of advice: "[w]hile this may not be the last word on the subject, perhaps Mattel and MGA can take a lesson from their target demographic: Play nice."

The case is Mattel Inc. v. MGA Entertainment Inc., 11-56357, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

http://www.bloomberg.com/news/2013-01-24/mga-bratz-win-over-mattel-partly-erased-by-appeals-court.html

http://newsandinsight.thomsonreuters.com/Legal/News/2013/01_-_January/Appeals_court_sides_with_Mattel_in_latest_Bratz_fight/

Royal Intrigue

The Queen of Versailles, one of the hit films last year at the Sundance Film Festival, follows the daily life of the Siegel family. They are just like any other family, except that they live in a $75 million replica of the Palace of Versailles. The film shows the mansion being put on the market for a fraction of the home's value, as the global economic crisis comes to a head. This "rags-to-riches-to-rags" story of David Siegel, self-made time-share baron of the Westgate Resorts empire, made for an intriguing, if at times cringe-inducing, film. Mr. Siegel, however, is not a fan of the movie--he filed a defamation action last year against the movie's director, Lauren Greenfield.

Last month, the parties gathered for an evidentiary hearing as part of Mr. Siegel's defamation suit against the film's director. Both Mr. Siegel and Ms. Greenfield testified in court, and submitted briefs on the question of whether the film was, in fact, defamatory.

However, a judge must now rule if the dispute should be resolved in arbitration. This would seem like a cut-and-dry issue, considering that the director has a signed released form, stipulating that disputes would be resolved through arbitration. To get around that form, however, Mr. Siegel alleges that his son, Richard, who signed the form, lacked the "full authority to bind Westgate Resorts to arbitration." Essentially, as Hollywood Reporter stated, Mr. Siegel is "selling out his own son . . . ." Although Richard Siegel is a vice president of Westgate Resorts, the plaintiff contends that this was a "strictly honorary" designation, "unaccompanied by any of the traditional corporate authority such as a position might otherwise garner its occupant." In fact, the plaintiff is quick to point out, "that title . . . has been bestowed upon approximately a dozen other individuals working for one of the distinct companies within the Westgate Resorts organization."

Defense counsel, in response, writes that the plaintiff's claim that Ms. Greenfiled's work was unauthorized is "incredible on its face," adding that David and Richard Siegel both authorized the making of the film and the giving of the Westgate Resorts release, and hundreds of people were aware of it. How could over 200 personal releases be signed after shooting company activities if David did not give authority -- real or apparent -- to Richard?" the defendants ask. "The content of the film is the best evidence that David is lying."

A judge is expected to rule on the case soon.

Sixteen Seconds of Fame

The 7th Circuit Court of Appeals has dismissed a woman's invasion of privacy and misappropriation of image claims against comedienne Joan Rivers. Plaintiff Ann Bogie sued Rivers, IFC Films and others following the release of the documentary Joan Rivers: Piece of Work. The documentary follows Joan Rivers and features her performing one of her stand-up comedy routines. During one particular performance, Ms. Rivers discussed her dislike of children, but said that she would have made an exception for a young Helen Keller, "because she didn't talk." Upset by the joke, an audience member heckled Ms. River for the comment. Following the show, Ms, Rivers was approached backstage by the plaintiff, and the two shared a few words that were captured by the cameras filming the documentary. Ms. Bogie told Rivers that she (Bogie) "never laughed so hard" in her life." Ms. Bogie referred to the heckler as "[that] rotten guy," adding that she "was ready to get up and . . . 'tell him to leave.'" This interaction appeared in the documentary, which aired on IFC. Ms. Bogie was none too pleased, however, and sued.

Unconvinced by her claims, the 7th Circuit Court of Appeals wrote in its decision that Ms. Bogie "voluntarily approached a celebrity just after a public performance," adding that "[a]ny reasonable person would expect to encounter some kind of security presence, and indeed here that presence was visible. Furthermore, the camera crew must have also been visible to Bogie as they were filming both Rivers and, of course, Bogie. Courts have found that even performers themselves cannot count on a reasonable expectation of privacy in their own backstage areas."

Now that the suit has been dismissed, Ms. Rivers can concentrate fully on her two self-described interests: making fun of people and getting plastic surgery.

http://www.hollywoodreporter.com/thr-esq/joan-rivers-wins-privacy-dispute-413473

Read the decision here: http://www.ca7.uscourts.gov/tmp/P91EVT32.pdf

Unsportsmanlike Conduct?

Citing the importance of football in the "social lives of Arizonans," the Arizona attorney general has sued the state's NFL team, the Cardinals, in an attempt to force the team to provide captioning for the deaf on all monitors in the team's stadium. Attorney General Tom Horne filed the suit last week on behalf of Michael Ubowski, a deaf Cardinals fan. According to the complaint, Ubowski made numerous, albeit unsuccessful, "attempts between October 2005 and 2007 to consult with Arizona Cardinals' management and encourage them to adopt effective auxiliary aids and services to provide deaf and hard of hearing patrons an experience like that enjoyed by other Arizona Cardinals fans, as the team previously had at Sun Devil Stadium". According to Courthouse News Service, the team perviously used open captioning--a service that transmits information to every person in the stadium--at Arizona State's Sun Devil Stadium in Tempe from 1988 to 2006; that practice ended, however, when the Cardinals moved to the then-new University of Phoenix Stadium. Notably, the New England Patriots, Pittsburgh Pirates, Washington Redskins, and New York Yankees use open captioning in their stadiums, according to the complaint.

Two years after moving to the University of Phoenix Stadium in 2008, the Cardinals had removed the caption-enabled monitors, and began using three wireless personal digital assistants capable of displaying captions, but allegedly "failed to post information about the availability of this auxiliary aid on their website until August 2011, one year after the devices first became available." The complaint states that Ubowski and his father tried to use a PDA during a Cardinals game on September 26, 2010, but "found that the PDA was difficult to locate, obtain, and use." Additionally, there were "delays in the transmission of the captions and frequent device malfunctions," and the PDA "made it impossible to communicate in sign language, cheer, clap, eat, and drink, and also diverted [Ubowski's] attention from the field and scoreboard."

The Arizona Attorney General is seeking a permanent injunction against the defendants so that they will "permanently provide open captioning at the stadium during Arizona Cardinals' football games and events at University of Phoenix Stadium," on all monitors, and to train their employees "regarding operation of the captioning equipment and assistance for people with sensory disabilities."

http://www.courthousenews.com/2013/01/21/54096.htm

She's a He

Bizarre is the only word that describes the Manti Te'o Internet girlfriend hoax. Fearing that this hoax may have legal repercussions, the alleged voice of Manti Te'o Internet girlfriend Lennay Kekua has hired an attorney. The lawyer for the man who has been identified as the creator of the hoax, Ronaiah Tuiasosopo, told the New York Daily News that his client "disguised his voice and assumed the identity of Lennay Kekua to try to develop a relationship with Te'o." Attorney Milton Grimes said that Te'o "thought it was a female he was talking with. It was Ronaiah as Lennay." Grimes added that Tuiasosopo was not trying to hurt Te'o: "[t]his wasn't a prank to make fun. It was establishing a communication with someone . . . It was a person with a troubled existence trying to reach out and communicate and have a relationship."

Earlier this week, the Notre Dame star linebacker appeared on Kate Couric's show, Katie, to explain his role in the apparent hoax. "It didn't sound like a man," Te'o told Couric during the interview that aired on Thursday. Te'o added "[i]t sounded like a woman. It's incredible that he can make that noise." To support his story, Te'o provided voicemails to the program that he says are from the person whom he thought was Kekua. Although the quality of the recording is poor in some of the supplied clips, in a few, the voice does, in fact, sound female. According to Te'o, Tuiasosopo called him to confess and apologize shortly before the hoax came to light this January.

For readers who have been lucky enough to miss this story, the hoax was revealed earlier this month when sports blog Deadspin.com reported that the relationship had been faked. In September, Te'o told media outlets that he had lost both his grandmother and girlfriend "within the span of one day." The Notre Dame star said that his girlfriend, Lennay Kekua, had survived a car accident, but died after an unsuccessful battle with leukemia. Despite the loss of both his grandmother and Kekua, Te'o did not miss any football games for Notre Dame, saying that he had promised his deceased girlfriend that he would play even if something had happened to her. Sports media outlets reported on these tragedies during Te'o's strong 2012 season for Notre Dame when he emerged as a Heisman Trophy candidate. After receiving an anonymous email tip on January 11, 2013, however, Deadspin.com reporters Timothy Burke and Jack Dickey conducted an investigation into the identity of Kekua. On January 16th, they published an article that said they found no record of a woman named Lennay Kekua, and that the story of her death was actually a hoax. According to the report, "the pictures published in the media supposedly of Kekua were actually taken of Diane O'Meara, an acquaintance of Ronaiah Tuiasosopo."

In a press conference following the Deadspin.com report, Notre Dame athletic director Jack Swarbrick tearily confirmed that the university had hired private investigators to uncover the source of the hoax, adding that Te'o's relationship with Kekua was "exclusively an online relationship." This characterization conflicted with Te'o's father's previous account of his son's relationship with Lennay Kekua; Brian Te'o, the football player's father, said that Te'o and Kekua had met after a football game and that she visited him in Hawaii. Te'o previously told Sports Illustrated that she had seen him at a USC game when he was a sophomore.

To make this story even stranger, Ronaiah Tuiasosopo has met with Dr. Phil to discuss the hoax in an interview scheduled to air next week.

http://espn.go.com/college-football/story/_/id/8875990/lawyer-ronaiah-tuiasosopo-was-voice-talking-manti-teo

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This page contains a single entry from the blog posted on January 28, 2013 9:27 AM.

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