Charisma . . . is not copyrightable.

SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 10-56535, slip op. 10 (9th Cir. Mar. 11, 2013) (Trott, J.) (holding that fair use doctrine barred copyright claim for showing of seven-second clip from Ed Sullivan's really big show in musical play about Four Seasons, which launched Frankie Valli's singing and dancing career).

Bonus: The court upheld an award of attorneys' fees for SOFA, the producer of Jersey Boys, because Dodger had tried pretty much the same thing with clips involving Elvis Presley.

Brigantine Making Sail

A brigantine making sail — perhaps to escape spoliation.

Have you noticed how many e-discovery pros have e-merged in the last decade to offer e-services? Some promise low, low prices, vow super se-cure review platforms in the cloud, and guarantee nearly-omniscient pre-dictive coding software? They call, text, or e-mail you e-very day.

You may treat them with disdain. They need you more than you need them. E-xactly.

And yet they have affected how you think. Or at least the ubiquity of e-discovery has. Now you may be-lieve the best way to win your case involves not so much proving it as e-stablishing that the other side Spoliated E-vidence.

Let us pause to consider what spoliation means. It comes from the Latin for plunder. As in de-spoil, ransack, loot, pillage. The first time the U.S. Supre-me Court deployed the word, in fact, it used it in that piratical sense, in a case that involved what the Court deemed unlawful:

Talbot [the French captain of the schooner L'Ami de la Point-a-Petre] knew that Ballard [an American who commanded another schooner, L'Ami de la Liberte] had no commission; he so states it in his claim: the facts confirm the statement; for, about an hour after Ballard had captured the [Dutch brigantine] Magdalena, he came up, and took a joint possession, hoping to cover the capture by his commission, and thus to legalise Ballard's spoliation. How silly and contemptible is cunning, how vile and debasing is fraud.

Talbot v. Jansen, 3 U.S. 133, 157 (1795) (emphasis ours).

But accusing the other side of e-plunder seldom works out for the accuser. See, e.g., here. A de-cision by the D.C. Circuit illustrates the fact.

In Grosdidier v. Broadcasting Board of Governors, No. 11-5291 (D.C. Cir. Mar. 8, 2013), a French woman alleged that the Voice of America discriminated against her on grounds of gender by promoting a man instead of her to a Senior Editor spot. Two of the three VOA people who interviewed the candidates had discarded their notes, a no-no under an EEOC regulation, which required the VOA to keep the notes for a year. But the district court granted summary judgment for the VOA's Broadcasting Board of Governors (BBG), ruling that Grosdidier had shown little more than uncouth and unprofessional behavior.

The D.C. Circuit affirmed despite Grosdidier's argument that the improper destruction of the interviewers' notes lifted her over the summary judgment threshold. The panel said:

Grosdidier requested . . . a spoliation inference . . . that the interview panelists considered her to have superior qualifications. But this would not be a reasonable inference in light of the evidence of the relative qualifications of the applicants and the panel’s evaluation of their qualifications. Neither does the evidence support a reasonable inference that the notes would likely contain information that the BBG is falsely defending on the ground that it selected Donangmaye for his knowledge, skills, and abilities. Even if it would be reasonable to infer that the destroyed notes included evidence corroborating that Grosdidier performed well in the interview or that different interviewers emphasized different qualifications of the applicants, other evidence, including the panel’s contemporaneous written explanation for its recommendation in view of the skill sets for the position, would not permit a reasonable finding that the destroyed notes would have established pretext, let alone unlawful discrimination. For this reason, the denial of Grosdidier’s request for an adverse spoliation inference was harmless error.

Grosdidier v. Broadcasting Board of Governors, No. 11-5291, slip op. 15 (D.C. Cir. Mar. 8, 2013).

We can all agree "[h]ow silly and contemptible is cunning, how vile and debasing is fraud." But a jury acquitted Ballard of piracy. And the D.C. Circuit let the VOA off the hook.

You may protest that spoliation sometimes can make the difference between getting to trial and losing on summary judgment. Blawgletter asks you to cite a single instance in which it did matter. And we bet that in more than a few cases the accuser lost more in credibility on the merits than she gained with the accusation.

Let's focus on proving the main charge, people, and leave charges of spoliation to the rare instances of actual evidence-plundering.

When Blawgletter did a stint in law school as a student-prosecutor in Brookline and Dedham, Massachusetts during the 1980s, district attorneys could use “peremptory challenges” to strike anyone from panels of potential jurors for any reason at all, including racial, religious, and gender bias. Many juries as a result did not come close to reflecting the make-up of the communities they served. The problem vexed the lower South, where I grew up, especially.

The U.S. Supreme Court for a long time took a hands-off approach, ruling in Swain v. Alabama, 380 U.S. 202 (1965), that a criminal defendant couldn’t complain about exclusion of racial minorities from the jury that heard his case unless he proved systematic exclusion of racial minorities over multiple cases and across time. Few, if any, could satisfy the test. And so the problem persisted.

Finally, in Batson v. Kentucky, 476 U.S. 79 (1986), the Court limited the ability of prosecutors to use peremptory challenges as a means to achieve frequently all-white juries. The Court ruled by a 7-2 vote that a prosecutor must provide non-racial reasons for striking a minority panel member once the defendant presents “facts and any other relevant circumstances [that] raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race.”

Batson helped a lot. So did Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), which extended the Batson rule to civil trials.

Has the problem vanished? Of course not.

In Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc. No. 10-35137 (9th Cir. Mar. 6, 2013), the court upheld a $16 million jury award against Avis for breaking its promise, in a settlement agreement, not to compete in specific ways with certain Avis franchisees. Avis’s lawyer asked members of the jury venire whether they would award damages simply because Avis breached the settlement agreement. Some, including two Alaska Natives, suggested they might. The Avis lawyer tried to strike the Alaska Natives but not the others who had given similar answers. The district court refused to accept one of the strikes, although the court also found that the Avis lawyer did not harbor any actual racial bias.

The Ninth Circuit observed:

Objective analysis is also more reliable than subjective analysis. A judge, like any person, is ill-equipped to see into peoples’ hearts.18 Trial judges are generally very reluctant to call a lawyer a liar, by finding that the justification for a peremptory challenge is not credible. But a trial judge is in a very good position to evaluate objectively and impartially what the record would establish, from the point of view of a reasonable observer. In this case, the trial judge found the absence of subjective racial bias, but the presence of an appearance of purposeful discrimination. That suffices to justify denial of a peremptory challenge, at least in a civil case.

A claimant whose lawyers years before gave more than $25,000 to the sole arbitrator’s judicial campaign failed to persuade the Third Circuit that the arbitrator harbored “evident partiality” against him.

The basis for his claim of bias? That the other side had contributed $4,500 to her campaign.

You got that right, people. The losing claimant accused the arbitrator of bias against him because his opponent lavished LESS THAN 20 PERCENT of his own lawyers’ campaign cash on her run for re-election to the Pennsylvania Superior Court. Freeman v. Pittsburgh Glass Works, LLC, No. 12-2026 (3d Cir. Mar. 6, 2013) (available at http://www.ca3.uscourts.gov/opinarch/122026p.pdf).

We've known at least since Bell Atl. Co. v. Twombly, 550 U.S. 544 (2007), that competitors can engage in parallel conduct — charging the same price, offering the same product features, setting identical contract terms — without running afoul of the Sherman Act. A plaintiff claiming a violation of section 1, which bars conspiracies in restraint of trade, must allege, in addition to parallel behavior, "plus factors" that point to an agreement between competing firms not to compete.

The Second Circuit ruled on March 5 that a section 1 claim failed because the complaint's thrust — that financial institutions agreed to stop propping up "auction rate securities" and all at once exit the ARS market — didn't make sense:

Indeed, Defendants' alleged actions — their en masse flight from a collapsing market in which they had significant downside exposure — made perfect business sense. . . . In their brief on appeal, with its repeated mention of the February 13 auction failures, Plaintiffs seem to be suggesting that the ARS market had been healthy until that day and imploded in a sudden and unexpected collapse. But the allegations in their complaints reveal otherwise. Indeed, according to Plaintiffs themselves, ARS auctions started failing as early as the summer of 2007. Compl. 80. More auctions failed during the fall and winter, putting Defendants on notice that "the market for [ARS] was in danger of failing." Compl. 81. Thus by early 2008, each defendant was faced with the same dilemma. Continuing to prop up the auctions with support bids generated commissions for successful auctions; but if enough auctions failed, ARS would be seen as poor investments, the markets would dry up, and Defendants' support purchased would turn into major liabilities. As the complaints vividly demonstrate, each defendant was well aware of these dynamics — the market as a whole was essentially holding its breath waiting for the inevitable death spiral of ARS auctions. In such an environment, it is unsurprising, and expected, that once failures reached a critical mass, defendants would exit the market very quickly. In fact, at that point abandoning bad investments was not just a rational business decision, but the only rational business decision.

Mayor and City Council of Baltimore v. Citigroup, Inc., No. 10-0722-cv (L), slip op. at 15-16 (2d Cir. Mar. 5, 2013) (emphasis in original).

Did you see the piece in the March 2013 issue of ABA Journal by Bryan Garner? The guy who edits Black's Law Dictionary? Author of books on American, legal, and American-legal prosel. He wrote "Why lawyers can't write".

Whoa.

Mr. Garner said the great mass of legal writers think themselves Far Better at pen- and keyboard-wielding than the facts support. He cites "the Dunning-Kugler effect" as the chief cause of their blindness to the poverty of their prose. He compares lawyers in their guise as writers to duffers who delude themselves into thinking that their 23 handicap makes them the in-fact equal of Phil Mickelson or Tiger Woods.

As Wikipedia explains:

The Dunning–Kruger effect is a cognitive bias in which unskilled individuals suffer from illusory superiority, mistakenly rating their ability much higher than average. This bias is attributed to a metacognitive inability of the unskilled to recognize their mistakes.

Those who suffer from D-K do as the Black Knight in Monty Python and the Holy Grail did. As you will recall, when King Arthur's sword relieves the Black Knight of his upper limbs, he calls his injuries "a flesh wound". After Arthur then hews off his legs, too, he says "alright, we'll call it a draw." Dunning-Kruger.

The article doesn't explain why lawyers can't write, but you'll like it anyway. Mr. Garner does have a way with words.

B. McLeod does, too. He wrote in one of his comments on the piece:

I fur wan wuz glad to see this artikul.  Mini tymz ovur the yeers, aftur fileeng an upellit breef, I wood find a miztake in thair.  Eevun tho I red the theeng a duzzen tymz beefor sendeeng it in.  Now I reelize it must be beecuz of my bad golf skilz, which hav ulweez bin veree por.  To Mistur Garner for cawleeng this to my attenshun now I veree thankful am.  I hoap I will hav a chans eevenshulee to by his boox, or sum of such, so I can beegin to fix my awbveeus Dunnig-Kruger prawblum too.  Providud, howevur, that he duz not want too big a pryce for the such boox menshund hearin abuv (beeeeng nawt so much a faymuss ritur myself, I prawblee need to be mor cairful how I spend my munny).  Of corse, I hav bawt a fue boox beefor, but sum of them wur kwite unhelpful.  Fawnix, fur exampul, woant ulweez git yu thair.  Thatz fur shure.

The U.S. Supreme Court today upheld a battery claim against the federal government for botching cataract surgery on a U.S. Navy veteran.

The 9-0 Court ruled that the Gonzalez Act limited the ban in the Federal Tort Claims Act on claims for certain intentional (and intentional-ish) torts such that it wouldn't bar claims for "malpractice committed by medical personnel of the armed forces and other specified agencies." Levin v. United States, No. 11-1351, slip op. at 4 (U.S. Mar. 4, 2013).

Justice Ginsburg wrote the opinion.

Justice Scalia joined in all of it except for two footnotes, where the Court cited legislative history in support of its reading of the statute.

For those counting, the Court has gone 2-0 for plaintiffs in the last couple of weeks.

Unless of course you count Gabelli v. Securities and Exchange Comm'n, No. 11-1274 (U.S. Feb. 27, 2013), in which Chief Justice Robert, writing for another unanimous Court, opined that another kind of exception — the "discovery rule" exception that tolls the running of limitations for private securities law claims — does not apply to the five-year statute of limitations for the Securities and Exchange Commission to bring civil actions for penalties under the Investment Advisers Act of 1940

The legal landscape for class actions has gotten harder for plaintiffs to cross in the last decade or so. Today it got no worse. And plaintiffs and their counsel rejoice at that.

In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, No. 11-1085 (U.S. Feb. 27, 2013), the Court ruled 6-3 that a class of plaintiffs who allege a fraud on the market claim under federal securities law need not prove the materiality element in order to obtain class certification under Rule 23(b)(3).

Justice Alito joined in the majority opinion (by Justice Ginsburg) but wrote a concurrence to suggest the Court may someday want to toss the Basic, Inc. v. Levinson, 485 U.S. 224 (1988), presumption that people who buy securities in an "efficient" market rely on the accuracy of information the market believes and therefore incorporates into the market price of securities.

Justices Scalia and Thomas wrote dissents. Justice Kennedy joined in the Thomas dissent, and Justice Scalia joined in it except for part I.B.

Another class case, Comcast Corp. v. Behrend, No. 11-864 (U.S.), remains under advisement. Blawgletter had the honor of arguing Behrend on the same day as Amgen.

Kimberly Kralowec offers a preview of the oral argument this morning in Am. Express Co. v. Italian Colors Restaurant, No. 12-133 (U.S.). Check it out.

The case deals with whether a court may strike down an arbitration clause under federal law (the Arbitration Act) on the ground that it makes getting relief under substantive federal law (the Sherman Act) all but impossible. See "Class Arbitration Ban Fails in Second Circuit; Evidence Showing 'Frustration' of Rights Key".

Thanks, Kimberly!

The Supreme Court of Texas held last week that the courts below shouldn't have refused to certify a "takings" case as a class action on the ground that the class representatives couldn't adequately represent the interests of all class members. Riemer v. Patterson, No. 11-0548 (Tex. Feb. 22, 2013).

That doesn't amount to saying the courts below should on remand certify the case as a class action. Only that if they do again decline certification they'll have to find another ground.

The case relates to the "takings" of surface and mineral rights without due process and payment of compensation by virtue of where the State of Texas deemed the boundaries of the Canadian River to lie. The State owns the surface and minerals beneath the bed of streams and therefore has an interest in, shall we say, exaggerating the width of Texas waterways.

Yes, this counts as progress.