Blog« back to blog homeSubscribe to RSS feed
Month: September, 2011
Law360 Q&A With Early Sullivan’s Bryan Sullivan
Category: News | Wednesday, September 28th, 2011 | Comments Off on Law360 Q&A With Early Sullivan’s Bryan Sullivan
Law360, New York (September 28, 2011, 5:17 PM ET) — Bryan Sullivan is a founding partner of Early Sullivan Wright Gizer & McRae LLP. He has been involved in cases with a wide range of legal issues, with a particular focus on intellectual property, sports law and entertainment law. He represents entertainment and sports industry clients, such as Miley Cyrus and Roadside Attractions. He was also a writer’s apprentice on the television show “JAG” and wrote the English screenplay for the Bollywood hit “Blue.”
Q: What is the most challenging case you have worked on and what made it challenging?
A: As a junior associate, I represented Bangkok-based Bank of Asia against Red Chamber. Bank of Asia sought to collect on a series of bills of exchange that were used to secure payment for shrimp purchased by Red Chamber from a third-party shrimp seller. This was the first case I handled as a lead associate, and the partner thought it was very straightforward — Red Chamber did not pay money owed to Bank of Asia on the bills of exchange. As we learned more about the case, we discovered that Red Chamber appeared to be the victim of an apparent fraud by the third-party shrimp seller, which became a key defense in the case.
The fraud was very difficult to uncover because we did not understand Bank of Asia’s record-keeping, or the true nature of the transaction. Once we realized the case was far more complicated than we first thought, we went through every document in the case, and, in the process, one of Bank of Asia’s employees made a summary of the bill of exchange transactions that became our primary exhibit in our motion for summary judgment. The court granted that motion and awarded over $7 million in damages. As a result of working on this case, I now meet with my clients as early as possible to learn everything about the case and the client’s business. This leads to more effective and efficient representation.
Q: What aspects of your practice area are in need of reform and why?
A: The focus on the billable hour. Associates at big firms are taught to bill every single minute of the day, and their compensation is primarily based on their billable hours. Good associates are not the smartest ones, or those who do the best work; rather, they are the ones who bill the most hours! Sorry, but clients hate it when they are billed a quarter of an hour of time for the drafting of an email they know takes less than two minutes to draft. I have found that not charging a client for very simple and mundane tasks builds incredible goodwill with the client.
Q: What is an important case or issue relevant to your practice area and why?
A: Effects Assocs. Inc. v. Cohen, 908 F. 2d 555, 557 (9th Cir. 1990), which holds that, under 17 U.S.C. § 204, if a copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. This may seem like a simple tenant of law, and most movie studios comply, but many production companies forget to obtain this necessary writing when acquiring copyright rights, thinking that a handshake or understanding is “good enough.” Thus, a production company can invest a substantial amount of work to develop a property, and then lose the property because it did not obtain an enforceable transfer of the rights to the copyright.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: Wayne Levine, the general counsel of Lionsgate. I have had the opportunity to work with Wayne on a few Lionsgate matters, and he is incredibly intelligent and savvy. He always clearly defines his goals, and develops strategies to accomplish those goals. Also, he is nice and personable. I thoroughly enjoy working with him.
Q: What is a mistake you made early in your career and what did you learn from it?
A: When I was a mid-level associate, I represented a successful executive suing his former employer for wrongful termination. When we got hit with a series of discovery requests (oppressive discovery, in my opinion), my client wanted to hit back hard by submitting a lot of discovery and third-party document subpoenas on his former employer. I assumed that my client was well versed in litigation and its cost. I was wrong. While the case quickly settled after discovery was submitted, my client was angry when he got a final bill that contained numerous hours of discovery and third-party subpoena drafting.
He said he thought the discovery requests were “just forms,” and that it would take an hour to check the boxes on the form interrogatories, the only set of discovery he knew about. From that point on, I always make it a point to apprise clients of tactical costs (risks) vs. potential outcome (return) when discussing case strategy and tactics. For example, a client might want to depose every potential witness in a case, yet some witnesses have very limited knowledge, and the cost of deposing that witness is not worth the minimal information we might gain.
All Content © 2003-2011, Portfolio Media, Inc.
Law360 Q&A With Early Sullivan’s Devin McRae
Category: News | Monday, September 19th, 2011 | Comments Off on Law360 Q&A With Early Sullivan’s Devin McRae
Law360, New York (September 19, 2011, 10:17 AM ET) — Devin A. McRae is a founding partner of Early Sullivan Wright Gizer & McRae LLP. His practice focuses on copyright and trademark infringement, and entertainment and employment disputes. He represents individual and institutional clients in entertainment and business disputes, and insurers and reinsurers in coverage, bad faith, and subrogation actions. His clients include producers, celebrities, a major television network and members of a foreign legislature.
Among other cases, he is presently defending American Broadcasting Companies Inc. and Endemol USA Inc. in a copyright action pertaining to the prime-time show “Wipeout,” defending Fidelity National Financial Inc. against a discrimination and wrongful termination lawsuit and representing a South Pacific insurance company in a multimillion-dollar subrogation action against the American Samoa government.
Q: What is the most challenging case you have worked on and what made it challenging?
A: An immigration appeal I handled pro bono before the Ninth Circuit Court of Appeals. I represented a Haitian-born individual ordered to return to Haiti based on a criminal conviction after decades as a permanent United States resident, service in the United States Army during the foreign conflict in Vietnam and raising two American-born adult sons (one who likewise has served in the United States armed forces).
The matter required me to quickly learn immigration law and procedure, and all applicable criminal law and procedure. The challenge presented was being responsible for a matter that would have a long- term impact on another person’s future, while having very little background in criminal and immigration law. I am pleased to report that I obtained a reversal of the removal order. See Desire v. Gonzales, 245 Fed. Appx. 627 (9th Cir. 2007).
Q: What aspects of your practice area are in need of reform and why?
A: A plaintiff must establish that its work and the defendant’s work are “substantially similar” to prove copyright infringement in the Ninth Circuit. The “extrinsic test” is one of two tests used to establish this similarity. Under this test, the courts conduct an “analytic dissection” and comparison of the works at hand to assess whether a defendant’s work is so “substantially similar” to a plaintiff’s work as to support a finding of illicit copying. In this extrinsic test, the courts take care to separate what is protectable in the plaintiff’s work from what is not, and the nonprotected elements may not contribute to a finding of substantial similarity.
Examples of nonprotected elements are: the basic idea for a story; standard treatments that flow from that basic plot idea and/or stock elements in a particular genre; and acts, scenes, characters, themes or other elements borrowed from another author, from the public domain or which are otherwise not the plaintiff’s “original expression.” The so-called “inverse ratio rule” ostensibly lessens the level of proof required to show “substantial similarity” when the plaintiff can show that the defendant had a “high degree of access” to its work.
The Ninth Circuit could make it clearer (although this is the existing law) that the inverse ratio rule does not impact whether elements are (or may be) protected or nonprotected, and is relevant only to the amount of “similarity” in protected expression there must be to rise to the level of “substantial similarity.” This would curtail spurious copyright claims that rest on inevitable access (for example, because the plaintiff’s show was broadcast and the defendant saw it) and similarity in nonprotected content alone. Classes of content are deemed nonprotected because that content is said to rightfully belong to the public for anyone to use and not to be monopolized by any person.
Q: What is an important case or issue relevant to your practice area and why?
A: On March 8, 2011, the Ninth Circuit published its opinion in Network Automation Inc. v. Advanced Systems Concepts Inc., 638 F.3d 1137 (9th Cir. 2011), which settled the question in this circuit whether bidding on a competitor’s mark to trigger ad placement on the results page of a Web search engine is, in and of itself, an infringement of that mark. The court of appeals held that keyword advertising may in fact be a legitimate form of comparative and contextual advertising.
The court found no reason to believe on the “sparse record” before it that consumers would be deceived by the mere presence of keyword ads. This led to the reversal of a preliminary injunction forbidding a party from buying keyword advertising to be displayed when Internet users entered the trademark of its competitor.
The Network Automation decision established four factors that are “most relevant” for determining whether consumers would likely be confused in the keyword advertising context: (1) the strength of the mark; (2) the evidence of actual confusion; (3) the type of goods and degree of care likely to be exercised; and (4) the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page. I was defending a broadcast network against Lanham Act and unfair competition claims when the Network Automation decision was published.
The claims alleged that my client had infringed three of the plaintiff’s trademarks by using them as search engine keywords (amongst thousands of other keywords) to trigger clearly labeled ads for the premiere of its new show. The decision was published three days prior to the plaintiff’s “consumer confusion” expert deposition.
At the time of the deposition, neither the plaintiff nor its “consumer confusion” expert seemed to be aware of the Network Automation case or the newly established four “most relevant” factors. When I examined the expert at his deposition, he gave away three of the four factors (stating he had no opinion on them) and admitted he was speculating on the fourth factor because the plaintiff or its lawyers had failed to commission a consumer confusion survey. I had prepared a draft summary judgment motion on those claims, and never had to use it because the plaintiff soon voluntarily dismissed the claims based on its lack of proof under the new test.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: I’ve worked with many lawyers with impressive attributes, including Dean Hansell (Dewey & LeBoeuf) and his effective negotiation style, which is seemingly nonconfrontational and delivered with the most pleasant tone but highly aggressive in position; Jack Hursh (Dorsey & Whitney) and his practical, cost- effective approach to litigation, and his conversational, clear and concise oral argument style; and Patty Glaser (Glaser Weil) and her intense, commanding interpersonal presence.
Q: What is a mistake you made early in your career and what did you learn from it?
A: Being drawn into unproductive, costly discovery disputes with the opposing side. To circumvent this, I counsel my clients to avoid taking untenable positions in discovery, and I eliminate needless posturing in the “meet and confer” process and keep the letter-writing to a minimum.
All Content © 2003-2011, Portfolio Media, Inc.