Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
<b>Counsel Concerns:</b> Fed Court Denies Client's Impleader Against Counsel
A magistrate for the U.S. District Court for the Central District of California decided that a copyright and trademark infringement defendant couldn't file an impleader action against his former lawyer for secondary or derivative liability. Zero Tolerance Entertainment Inc. v. Ferguson, CV 06-4132-RC. Zero Tolerance, a distributor of adult-oriented movies, sued Shaun Ferguson for publishing its content without authorization on Ferguson's Web site, adultsallowed.com. Ferguson stipulated to a permanent injunction at a court-supervised settlement conference at which he was represented by attorney Marc S. Colen.
After Tolerance later filed a supplemental complaint alleging that Ferguson “continued all of the infringing activities,” Ferguson filed a motion under Rule 14(a) of the Federal Rules of Civil Procedure for permission to file an impleader against his now-former attorney Colen. Ferguson claimed that Colen hadn't told him that he was violating the settlement agreement. Ferguson sought damages for Colen's alleged breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and a claim of professional negligence.
The federal magistrate noted in denying the impleader action: “Although these claims may be tangentially 'related to' plaintiff's copyright and trademark infringement claims against defendant Ferguson, they are not derivative of those claims. To the contrary, the nature of these claims [against Colen] is 'entirely different and independent' from the claims plaintiff [Zero Tolerance] raises.”
The magistrate further decided that Ferguson had no legal basis to proceed with indemnification and contribution claims against Colen. The magistrate added as to Zero Tolerance's trial against Ferguson that “the impleader raises new issues pertaining to the standard of legal practice and breach of contract, rather than copyright and trademark infringement; thus, it is indisputable that impleader would complicate the issues at trial.”
A magistrate for the U.S. District Court for the Central District of California decided that a copyright and trademark infringement defendant couldn't file an impleader action against his former lawyer for secondary or derivative liability.
After Tolerance later filed a supplemental complaint alleging that Ferguson “continued all of the infringing activities,” Ferguson filed a motion under Rule 14(a) of the Federal Rules of Civil Procedure for permission to file an impleader against his now-former attorney Colen. Ferguson claimed that Colen hadn't told him that he was violating the settlement agreement. Ferguson sought damages for Colen's alleged breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and a claim of professional negligence.
The federal magistrate noted in denying the impleader action: “Although these claims may be tangentially 'related to' plaintiff's copyright and trademark infringement claims against defendant Ferguson, they are not derivative of those claims. To the contrary, the nature of these claims [against Colen] is 'entirely different and independent' from the claims plaintiff [Zero Tolerance] raises.”
The magistrate further decided that Ferguson had no legal basis to proceed with indemnification and contribution claims against Colen. The magistrate added as to Zero Tolerance's trial against Ferguson that “the impleader raises new issues pertaining to the standard of legal practice and breach of contract, rather than copyright and trademark infringement; thus, it is indisputable that impleader would complicate the issues at trial.”
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.