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Justia › US Law › US Case Law › US Supreme Court › Volume 302 › Ocean Beach Heights, Inc. v. Brown-Crummer Inv. Co.
Ocean Beach Heights, Inc. v. Brown-Crummer Investment Co.
1. In the absence of a law authorizing the creation of a municipality de jure there can be none de facto. P. 302 U. S. 619.
2. Acting under a Florida statute granting no authority to include noncontiguous areas, electors residing on the west side of a bay incorporated a town with boundaries described as embracing also land on the east side. Holders of bonds thereafter issued by the town and defaulted sought, by litigation in the federal court against the town and east side landowners, to require a tax levy on all of the lands to provide payment.
(1) Under the statute, the town had acquired no jurisdiction, de jure or de facto, over the east side lands. P. 302 U. S. 619.
(2) Acquiescence by owners of east side land in earlier attempted exercises of jurisdiction over them upon the part of the town authorities, including taxation, could not invest the town with de facto jurisdiction. Id.
(3) The bill should be dismissed. P. 302 U. S. 620.
Certiorari, 301 U.S. 673, to review the affirmance of a decree granting an injunction to restrain interference with the levy of a town tax on land for the payment of the plaintiffs' bonds. See also 69 F.2d 105; 11 F.Supp. 73.
The question is whether, for the payment of its outstanding bonds, the respondent town may tax petitioners' lands which, without statutory authority, were included by boundaries defined in proceedings for its incorporation. Petitioners' contention is that the lands never were within the boundaries of the towns de jure or de facto, and that therefore they are not subject to its taxing power.
"the qualified electors present, being not less than two-thirds of those whom it is proposed to incorporate, and not less than twenty-five in number, shall select a corporate name . . . for the municipality . . . and designate by definite metes and bounds the territorial limits,"
detached tracts of land as corporate territory under one government is unauthorized and void."
In 1926, electors residing in Dade County, Fla., on the west side of Biscayne Bay, incorporated a town, Miami Shores, now called North Miami. The boundaries specified by the incorporators included approximately 16 square miles, 14 of which were on the west side of the bay and had a population of 2,500. Two square miles were on the east side, and had but 12 inhabitants. Though nearly vacant, these lands were much more valuable than all the property on the west side. The water separating the two areas is about a half mile wide. At the time of incorporation, construction of a causeway had been commenced, but its beginnings having been destroyed by hurricane later in that year, it has not been built. By land, the distance between the settlement on the west side and the east side area is about ten miles, and, to go by land from one to the other, it is necessary to pass through another municipality. Petitioners own lands on the east side.
of the bonds were used for the construction of permanent improvements; the only part spent on the east side was $6,000 for mosquito eradication, most of which went for equipment which the town still owns.
In a quo warranto suit brought by the state on the relation of its Attorney General in August, 1929, and in a later suit brought by owners of east side lands to cancel tax certificates on their lands, the state Supreme Court held that the statute relied on for creation of the municipality did not authorize inclusion of noncontiguous areas. Mahood v. State, 101 Fla. 1254, 133 So. 90; Leatherman v. Alta Cliff Co., 114 Fla. 305, 153 So. 845. And, in those suits, it was finally adjudged that the east side was not and never had been a part of the incorporated town, and that the town never acquired jurisdiction de jure or de facto over the land east of the bay. A decree of ouster as to the east side land was entered in December, 1931, and tax certificates on lands on that side were cancelled. No bondholder was a party to either of these suits.
Prior to the quo warranto suit, the jurisdiction of the town over the east side was not challenged by the state, property owners, or others. And until prevented by the decree of ouster, the town exerted municipal authority on both sides of the bay within the boundaries defined by west side electors acting to incorporate the town. It laid taxes on east side lands, some of which were paid by petitioners.
In 1930, respondent sued the town in the United States District Court for Southern Florida and got judgment on nine of the bonds. There was involved no question as to whether the east side lands ever were within the town or liable to be taxed to pay the bonds. In 1931, respondent brought, in the same court, a mandamus suit to compel the town and its officers to levy taxes on all the lands within the boundaries defined by the incorporators.
Owners of land on the east side, including petitioners, were permitted to intervene. They maintained that the town had no jurisdiction over their lands, or authority to tax them. The court entered a decree commanding the town and its officers to tax all the property within the town limits as originally defined. The town and its officers did not object to the decree, nor appeal from it. The intervening east side owners attempted to have it reviewed in the Circuit Court of Appeals. The court held that, as the judgment was not against them, they had no standing to question it, and dismissed their appeal. 69 F.2d 105.
Then respondent brought this suit for itself and other bondholders against the town, its officers, the clerk of the Circuit Court of Dade County, and east side landowners, including the petitioners. It alleged that the town was unable to pay the bonds unless permitted to levy and collect taxes on east side property; that the town and its officers were ready and willing so to do, but were prevented by the decrees in the Mahood and Leatherman cases, and that the clerk of the circuit court was bound by the decree in the latter case. It prayed an injunction to restrain petitioners from interfering, by use of the ouster decree or otherwise, with the levy or collection of taxes on east side lands for the payment of respondent's judgment and the outstanding bonds, and to restrain the town and the clerk of the court from refusing to levy or to take steps required for collection of such taxes. The town and its officers answered and, in effect, joined in the prayer of the bill. Petitioners moved to dismiss, the court denied their motion; two of them answered. The parties introduced their evidence; the court found the facts and entered its decree substantially as prayed. Petitioners alone appealed. The Circuit Court of Appeals affirmed on the ground that the town de facto included the east side lands. 87 F.2d 978.
municipality cannot be made to serve as would a statutory grant of power. Hayes v. Holly Springs, 114 U. S. 120, 114 U. S. 126-127; Merrill v. Monticello, 138 U. S. 673, 138 U. S. 693-694. As the east side lands never became liable to be taxed by the town to pay its bonds, respondents were not entitled to restrain petitioners from defending against levy and collection of the taxes or to any relief in this suit. The decree of the Circuit Court of Appeals will be reversed, and the case will be remanded to the District Court with directions to dismiss the bill.

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Kathleen B. Campbell, Esq. and Garrett D. Trego, Esq.
2018 saw an increase in high-profile lawsuits alleging climate change-related claims against both private industry accused of creating products that aggravate the trend and governments accused of doing too little to address the issue. Federal appellate courts are likely to provide meaningful rulings on both types of cases in 2019.
In the first category, suits against private industry, state and local governments generally alleged state common law claims – public nuisance, trespass, unjust enrichment, etc. – against energy companies, seeking damages related to the current or future impact of climate change on the governments’ infrastructure. In total, since 2017, eight municipalities in California and state and local governments in Colorado, Washington, New York, Rhode Island, and Maryland filed such suits.
Federal district courts in New York and California granted defendants’ motions to dismiss in two such cases in 2018. The governmental plaintiffs appealed the decisions to federal circuit courts, where arguments will be heard in 2019. In City of New York v. BP P.L.C., No. 18-2188, the Second Circuit will consider the City’s arguments that it is entitled to pursue public nuisance and trespass claims against private energy companies that the City alleges contributed to global warming and forced the City to construct infrastructure improvements to combat the negative effects. The district court dismissed the City’s claims, holding that the federal common law and the Clean Air Act displace the City’s climate change-related state common law claims and that the climate change-related claims uniquely impact global, foreign policy and separation of powers issues that counsel against a federal district court’s intervention. City of New York v. BP P.L.C., 325 F.Supp.3d 466 (S.D.N.Y. 2018). The Second Circuit is likely to consider similar defenses on appeal.
In the Ninth Circuit, a number of municipalities continue to fight energy company defendants over whether the municipalities’ climate change-related claims belong in state or federal court. In early 2018, two Northern District of California judges issued conflicting rulings granting and denying, respectively, municipalities’ motions to remand their climate change-related state common law claims back to state courts. Compare California v. BP P.L.C., No. C 17-06011, C 17-06012, 2018 WL 1064293 (N.D. Cal. 2018) (denying motions to remand); County of San Mateo v. Chevron Corp., 294 F.Supp.3d 934 (N.D. Cal. 2018) (granting motions to remand). In both cases, federal jurisdiction hinged largely on whether the federal common law applied. In California, Judge William Alsup held that “Plaintiffs’ nuisance claims—which address the national and international geophysical phenomenon of global warming—are necessarily governed by federal common law.” 2018 WL 1064293, at *2.
In contrast to both California and the S.D.N.Y.’s decision in City of New York, Judge Vince Chhabria held in County of San Mateo that federal common law did not displace the municipalities’ state common law claims because, as the U.S. Supreme Court held in American Electric Power, Inc. v. Connecticut, the federal common law was itself displaced by the Clean Air Act in federal climate change-related claims. 294 F.Supp. 3d at 937 (citing 564 U.S. 410 (2011)). Through the appeal of the consolidated County of San Mateo cases, the Ninth Circuit will soon weigh in on whether the eight California municipalities’ state common law claims belong in state or federal court. County of San Mateo v. Chevron Corp., No. 18-15499, 18-15502, 18-15503 (9th Cir.).
In the second category, suits against governments, various environmental groups or groups of young people generally alleged that state or federal governments violated the individual plaintiffs’ constitutional rights by failing to adequately address climate change. The leading case is Juliana v. United States, No. 15-cv-1517 (D. Or.), in which a group of individual plaintiffs alleged claims against the United States under the Fifth Amendment, the Ninth Amendment, and the public trust doctrine. That case had been scheduled for trial on liability in early 2019, but in late November 2018, federal district Judge Ann Aiken granted on reconsideration the United States’ request for certification for interlocutory appeal, after the United States Supreme Court granted the United States’ request for stay of proceedings in In re United States, 139 S.Ct. 452 (2018). Juliana v. United States, No. 15-cv-1517, 2018 WL 6303774 (Nov. 21, 2018). Thus, rather than a trial on the merits at the district court level, the Ninth Circuit will address Judge Aiken’s original opinion denying the United States’ motion to dismiss in 2016. See Juliana v. United States, 217 F.Supp. 3d 1224 (D. Or. 2016) (denying United States’ motion to dismiss).
While the flurry of additional climate change-related cases seems likely to continue into 2019, the fate of all these cases may turn in the near term on the rulings issued by the Second and Ninth Circuits in 2019.

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Walter E. Campbell Co. v. Hartford Fin. Servs. Grp., Inc.
Walter E. Campbell Co.v.Hartford Fin. Servs. Grp., Inc.
Walter E. Campbell Co., Inc., Plaintiff, v. Hartford Financial Services Group, Inc., et al., Defendants.
Paul Anton Zevnik, Steven A. Luxton, Morgan, Lewis & Bockus LLP, Washington, DC, for Plaintiff. Edward B. Parks, II, James Pio Ruggeri, Shipman & Goodwin, LLP, Lori Allison Rubin, Foley & Lardner, LLP, Harry Lee, Steptoe & Johnson LLP, Brandon David Almond, Troutman Sanders LLP, Washington, DC, Jacob C. Cohn, William P. Shelley, Gordon & Rees, LLP, Philadelphia, PA, for Defendants.
Paul Anton Zevnik, Steven A. Luxton, Morgan, Lewis & Bockus LLP, Washington, DC, for Plaintiff.
Edward B. Parks, II, James Pio Ruggeri, Shipman & Goodwin, LLP, Lori Allison Rubin, Foley & Lardner, LLP, Harry Lee, Steptoe & Johnson LLP, Brandon David Almond, Troutman Sanders LLP, Washington, DC, Jacob C. Cohn, William P. Shelley, Gordon & Rees, LLP, Philadelphia, PA, for Defendants.
Plaintiff Walter E. Campbell Company (“WECCO”) originally brought this action in the Superior Court of the District of Columbia, seeking a declaratory judgment to resolve an insurance dispute between WECCO and eight insurance company defendants, as well as former defendant Property and Casualty Insurance Guaranty Corporation (“PCIGC”). Walter E. Campbell Co. v. Hartford Fin. Servs. Grp., Inc., 959 F.Supp.2d 166, 168 (D.D.C.2013) ; see also Walter E. Campbell Co. v. Gen. Ins., No.2013 CA 109 B (D.C.Super.Ct. Dec. 26, 2013) (dismissing defendant PCIGC for lack of personal jurisdiction) [Dkt. # 1–2] (“Super.Ct.Order”). Both WECCO and PCIGC are Maryland corporations with Maryland as their principal place of business. Walter E. Campbell Co., 959 F.Supp.2d at 168. None of the other defendants is incorporated in Maryland. Compl. ¶¶ 5–13 [Dkt. # 1–1].
Defendants first removed this action to this court on February 11, 2013, arguing that WECCO had fraudulently joined PCIGC, and that therefore, there was complete diversity among the parties for purposes of 28 U.S.C. § 1332(a). Walter E. Campbell Co., 959 F.Supp.2d at 168. The Court disagreed, finding that defendants had not proven that PCIGC was fraudulently joined, and remanded the case. Id. at 168. The Superior Court then held that it lacked personal jurisdiction over PCIGC and dismissed PCIGC from the case. Super. Ct. Order at 10.
The remaining defendants removed the case to this court again on December 30, 2013. Notice of Removal at 1 [Dkt. # 1]. WECCO has again moved to remand the case back to the Superior Court, invoking the “well-established ‘voluntary-involuntary’ rule,”Shepherd v. Am. Broad. Cos., Inc., No. 88–0954 (RCL), 1988 WL 110602, at *1 (D.D.C. Oct. 11, 1988), which holds that federal diversity jurisdiction cannot be created by the dismissal of a defendant when that dismissal is against the will of the plaintiff. Mot. to Remand at 1 [Dkt. # 3]; see also Whitcomb v. Smithson, 175 U.S. 635, 638, 20 S.Ct. 248, 44 L.Ed. 303 (1900) (holding that a “ruling on the merits ... adverse to plaintiff, and without his assent ... did not operate to make the cause then removable”). Defendants counter that the voluntary-involuntary rule does not apply in this case because PCIGC was fraudulently joined at the outset. Defs.' Mem. in Opp. to Pl.'s Mot. to Remand at 8 [Dkt. # 16] (“Defs.' Opp.”); see also Insinga v. LaBella, 845 F.2d 249, 254 (11th Cir.1988) ( “Fraudulent joinder is a well established exception to the voluntary-involuntary rule.”). The Court finds that the Superior Court's dismissal of PCIGC does not compel a finding that PCIGC was fraudulently joined, and so the voluntary-involuntary rule does bar removal of this case. For that reason, the Court will again remand the case to the Superior Court of the District of Columbia.
A defendant may remove a state court action to federal court only when the case originally might have been brought in the federal court, including on the basis of diversity of citizenship. 28 U.S.C. § 1441(a) ; see also Neal v. Brown, 980 F.2d 747, 747–48 (D.C.Cir.1992) (permitting removal where there is “complete diversity of citizenship and no defendant properly joined and served is a citizen of the state in which the action is brought”); Busby v. Capital One, N.A., 932 F.Supp.2d 114, 126 (D.D.C.2013) (“A defendant has the right to remove to federal court an action brought in state court where the federal court has original subject matter jurisdiction....”). Diversity jurisdiction exists when the amount in controversy exceeds $75,000 per plaintiff, exclusive of interest and costs, and when the matter in controversy is between citizens of different states. 28 U.S.C. § 1332(a). When a federal court lacks subject matter jurisdiction over a dispute removed from state court, the court must remand the action back to the state court. 28 U.S.C. § 1447(c). The removing party bears the burden of showing that the federal court has subject matter jurisdiction over the action. Wexler v. United Air Lines, 496 F.Supp.2d 150, 152 (D.D.C.2007). “[I]f federal jurisdiction is doubtful, a remand to state court is necessary.” Breakman v. AOL, LLC, 545 F.Supp.2d 96, 100 (D.D.C.2008), quoting Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.2004) (en banc); see also Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 196 (D.C.Cir.2002) (“When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case....”).
In support of a removal petition, defendants may submit affidavits and deposition transcripts; and in support of a motion for remand, a plaintiff may submit affidavits and deposition transcripts to supplement the factual allegations contained in the verified complaint. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). In assessing the motion for remand, the court must assume all of the facts set forth by plaintiff to be true and resolve all uncertainties as to state substantive law in favor of the plaintiff. See Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216 (5th Cir.1995) ; Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir.1990).
The “well-established ‘voluntary-involuntary’ rule” provides that a district court may not exercise diversity jurisdiction over a case when the diversity was created by the “involuntary” dismissal of a defendant. Shepherd, 1988 WL 110602, at *1 ; see also Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237, 62 L.Ed. 713 (1918) (stating that a case cannot become removable unless by “voluntary amendment of his pleadings by the plaintiff” or “by voluntary dismissal” of a party by the plaintiff); Am. Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 316, 35 S.Ct. 355, 59 L.Ed. 594 (1915) (noting that “the discontinuance as to [the non-diverse defendant must be] voluntary on the part of the plaintiff”); Cartier v. Wells Fargo Bank, N.A., 547 Fed.Appx. 800, 804 (8th Cir.2013) (applying the voluntary-involuntary rule); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 761 (11th Cir.2010) (“The traditional rule is that only a voluntary act by the plaintiff may convert a nonremovable case into a removable one.”). A defendant's dismissal is “involuntary” if it is against the will of the plaintiff, such as when it was the result of the unilateral action of a court. See Self v. Gen. Motors Corp., 588 F.2d 655, 660 (9th Cir.1978) (holding that a final judgment is an involuntary dismissal); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 548 (5th Cir.1967) (ruling that dismissal by directed verdict was involuntary). If, however, the involuntarily-dismissed defendant was fraudulently joined—and, therefore, did not belong in the case to begin with—then the voluntary-involuntary rule does not prevent a district court from exercising diversity jurisdiction when the other requirements of 28 U.S.C. § 1332(a) are met. Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152, 34 S.Ct. 278, 58 L.Ed. 544 (1914) (”[The] right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy.”); see also Insinga, 845 F.2d at 254.
In 1949, the statute governing the removal of cases, 28 U.S.C. § 1446(b) (2012), was amended to allow for removal of cases that are not removable when filed, but become removable at some point after filing. Poulos v. Naas Foods, Inc., 959 F.2d 69, 71–72 (7th Cir.1992). Every court to consider whether the voluntary-involuntary rule survived the 1949 amendment has held that it did. Id. at 72 ; see also Davis v. McCourt, 226 F.3d 506, 510 n. 3 (6th Cir.2000) ; Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir.1988) ; Insinga, 845 F.2d at 252–55 ; Gould v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 773 (9th Cir.1986) ; In re Iowa Mfg. Co. of Cedar Rapids, Iowa, 747 F.2d 462, 464 (8th Cir.1984) ; Quinn v. Aetna Life & Cas. Co., 616 F.2d 38, 40 n. 2 (2d Cir.1980) ; DeBry v. Transamerica Corp., 601 F.2d 480, 487–88 (10th Cir.1979) ; Weems, 380 F.2d at 548–49.
In bringing a claim of fraudulent joinder, the removing party bears the heavy burden of proving that either: “(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the ... defendant into state court.” In re Tobacco/Governmental Health Care Costs Litig., 100 F.Supp.2d 31, 39 (D.D.C.2000), quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997). In other words, the defendant must show that the plaintiff has “no possibility of a right to relief.”Brown v. Brown & Williamson Tobacco Corp., 26 F.Supp.2d 74, 77 (D.D.C.1998), quoting Richardson v. Phillip Morris Inc., 950 F.Supp. 700, 702 (D.Md.1997) ; see also Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751 (5th Cir.1996) (“Our evaluation of fraudulent joinder claims ... merely considers whether there is any possibility that the plaintiff might prevail.”). Fraudulent joinder, however, is not equivalent to improper joinder: “[a] party ... can be improperly joined without being fraudulently joined.” Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 533 (5th Cir.2006).
Defendants do not dispute that PCIGC was involuntarily dismissed from this case. Defs.' Opp. at 4–5. Rather, they renew their argument that PCIGC was fraudulently joined at the outset. Id. Therefore they contend that the voluntary-involuntary rule does not bar removal in this case. Id. at 12; see also Mayes v. Rapoport, 198 F.3d 457, 461 n. 9 (4th Cir.1999) (noting that the fraudulent joinder doctrine has been applied as an exception to the voluntary-involuntary rule).
The Court previously rejected defendants' contention that PCGIC was fraudulently joined because defendants had failed to establish that PCIGC would not be subject to personal jurisdiction in the District of Columbia, and therefore had not proven that there was “no possibility” that WECCO could establish a cause of action against PCIGC. Walter E. Campbell Co., 959 F.Supp.2d at 173–74. Now, defendants claim that, “equipped with the D.C. Superior Court's ... Order, this Court knows ” that there is no personal jurisdiction over PCIGC in the District. Defs.' Opp. at 6–7. Therefore, they argue, PCIGC was fraudulently joined, after all. Id. at 12.
Defendants also argue that the Superior Court's finding of lack of personal jurisdiction over PCIGC should constitute per se fraudulent joinder, citing Insinga, 845 F.2d at 254. Defs.' Opp. at 8. But the portion of Insinga that defendants cite is merely dicta and has not been followed by other circuits. See, e.g., Knudson v. Sys. Painters, Inc., 634 F.3d 968, 978 (8th Cir.2011) ; see also Greco v. Beccia, No. 99–CV–2136, 2001 WL 121887, at *4–5 (M.D.Pa. Feb. 13, 2001).
But improper joinder is not the same as fraudulent joinder. See Crockett, 436 F.3d at 533. The Superior Court's detailed decision hinged on the court's determinations that PCIGC's role as the guarantor of insurance contracts does not constitute “contracting to insure” under the District of Columbia long-arm statute, D.C. Code § 13–423(a)(6) (2012), and that PCIGC lacked sufficient minimum contacts with the District for purposes of due process. Super. Ct. Order at 7–10, 11–12. The Superior Court's opinion dismissing PCIGC for lack of personal jurisdiction is not proof that there was “no possibility” that plaintiff could have established a cause of action against PCIGC and, if anything, it indicates that the question was close. Therefore, the dismissal of PCIGC does not undermine this Court's previous ruling that defendants have not met their burden to establish that PCIGC was fraudulently joined. See Walter E. Campbell Co., 959 F.Supp.2d at 174.
As there is no dispute that PCIGC was involuntarily dismissed, the voluntary-involuntary rule prevents this Court from assuming diversity jurisdiction over this case. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 72 (7th Cir.1992) (applying the voluntary-involuntary rule and finding remand appropriate); Weems, 380 F.2d at 546 (holding remand not proper after applying the voluntary-involuntary rule). Therefore, the Court will grant plaintiff's motion and remand this case to the Superior Court of the District of Columbia.
Because the Court finds that the Superior Court's ruling does not indicate that PCIGC was fraudulently joined at the outset of this case, the voluntary-involuntary rule prevents the Court from assuming diversity jurisdiction now. Accordingly, the Court will grant plaintiff's motion and will remand this case to the Superior Court of the District of Columbia. A separate order will issue.


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D.C. Law Library - § 7–231.24. Confidentiality and disclosure of information from vital records or vital reports.
↪ Chapter 2A. Vital Records, 2018.
↪ § 7–231.24. Confidentiality and disclosure of information from vital records or vital reports.
§ 7–231.23. Preservation of vital records.
§ 7–231.25. Certification from the system of vital statistics.
§ 7–231.24. Confidentiality and disclosure of information from vital records or vital reports.
(a) Vital records, vital reports, indices, related documents, and data or information contained therein shall be confidential and shall not be subject to disclosure under subchapter II of Chapter 5 of Title 2.
(b) Except as authorized by this chapter, rules issued pursuant to and consistent with this chapter, or by an order of the court, it shall be unlawful for any individual to permit inspection of, or to disclose data or information contained in a vital record, a vital report, or related documents, or to copy or issue a copy of all or part of any such record or report. Rules implementing this section shall provide for adequate standards of security and confidentiality of the vital statistics system.
(5) Provision of documented procedures for data storage and the data destruction method to be used for the information provided.
(6) Require that ownership of vital records data provided under the agreement shall remain with the Registrar, not the researcher or the research project.
(e) The Registrar may disclose de-identified statistical data from vital records that do not identify or enable the identification of any individual to federal, District, state, or other public or private agencies that request the data for statistical or administrative purposes in accordance with standards established by rules issued pursuant to § 7-231.29.
(f)(1) The Registrar may authorize the release of vital event verification copies of records or data from the system of vital statistics to a government entity, including federal, state, local and tribal agencies, upon written request, provided that the copies or data shall be used solely in the conduct of the government agency's official duties.
(D) A demonstration of administrative need by the agency or other entity.
(g)(1) The Registrar may furnish to the National Center for Health Statistics ("NCHS") or its successor agency, copies of data, records, or reports from the system of vital statistics as it may require for national statistics; provided, that the NCHS or its successor agency share in the cost of collecting, processing, and transmitting the data; provided further, that the data shall not be used for other than statistical purposes by the NCHS or its successor agency unless so authorized by the Registrar in writing.
(2) To obtain data, records, or reports from the Registrar, the NCHS or its successor agency shall enter into an agreement with the Registrar indicating the statistical purposes for which the data, records, or reports may be used. The agreement shall prohibit the re-release of data, records, or reports by the NCHS or its successor agency without express written permission from the Registrar. Ownership of vital records data provided under such agreements shall remain solely with the Registrar, not the NCHS or its successor agency.
(B) Foreign countries when the data, records, or other reports relate to residents of those states, U.S. jurisdictions, or foreign countries or to individuals who are born or die in those states, U.S. jurisdictions, or foreign countries.
(2) The Agreement shall specify the purposes for which the data, records, or reports may be used by each state, U.S. jurisdiction, or foreign country, and shall provide instructions for the proper retention and disposition of the data, records, or reports.
(3) Any vital records data or copies of records or reports received by the Registrar from another state, U.S. jurisdiction, or foreign country as a result of an Agreement shall be confidential and the state, U.S. jurisdiction, or foreign country where the event occurred shall retain ownership of the data, records, or reports.
(4) Data, records, or reports may be used by the recipient state, U.S. jurisdiction, or foreign country only for the purposes specified in the Agreement, and the Agreement shall prohibit the recipient state, U.S. jurisdiction, or foreign country from otherwise disclosing any of the District's data, records, or reports.
(i)(1) A live birth record shall be considered open when 125 years have elapsed from the date of birth.
(2) A death record shall be considered open when 75 years have elapsed from the date of death or fetal death.
(3) A marriage record shall be considered open when 100 years have elapsed from the date of marriage, divorce, dissolution of marriage, or annulment.
(j)(1) Supporting documents, including corrections and acknowledgments of paternity for open vital records shall also be public. Sealed records shall not be classified as public unless unsealed by the court. Vital records made public after the prescribed time may be transferred to the District of Columbia Archives ("Archives") in accordance with archival procedures that provide for the continued safekeeping of such vital records.
(2) Before the transfer of live birth and death records to the Archives, the Registrar shall redact any information identified in the NCHS' U.S. Standard Certificates of live birth and death, and reports of fetal death or reports of induced termination of pregnancy, or as identified by the District by rules issued pursuant to § 7-231.29 as medical or for health use only.
(3) The Registrar shall be the only individual authorized to issue certified copies of live birth and death records in the District.
(k) The Vital Records Division shall remain the legal custodian of live birth, death and fetal death, domestic partnership, and dissolution of domestic partnership records and related statistical reports until these records are transferred to the Archives. Only the Registrar may certify issuances of District live birth, death and fetal death records. The Archives may provide non-certified copies of vital records made public pursuant to subsection (j) of this section in accordance with the procedures of the Archives for making non-certified copies.
(l) The Registrar shall disclose information contained in vital records, or copies of vital records, to the IV-D agency upon request, for purposes directly related to paternity establishment or the establishment, modification, or enforcement of a support order.
(m) The Registrar may approve or deny a request for inspection or disclosure of data. A decision by the Registrar regarding the inspection or disclosure of data or information contained in a vital record or vital report shall constitute a final agency determination.
(n) Notwithstanding the provisions of this section, the Registrar shall provide reports of homicides or suicides, as that term is defined in § 5-1431.01(e), to the Violence Fatality Review Committee established pursuant to § 5-1431.01.
Section 401 of D.C. Law 22-164 provided that subsection (n) of this section shall apply as of October 1, 2018.

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This is Part One in a two-part series of columns. Part Two in the series will appear here on Justia’s Verdict on Wednesday, November 7. –Ed.
On Wednesday, October 31, the U.S. Supreme Court will hear argument in two Fourth Amendment cases from Florida. The cases both revolve around the constitutional significance of police dog sniffs for narcotics.
One case, Florida v. Jardines, focuses on the preliminary question of whether a police dog sniff itself invades Fourth Amendment privacy and thus constitutes a “search” for constitutional purposes.
The second case, Florida v. Harris, turns to the evidentiary significance of a positive alert after a dog sniff for narcotics has occurred.
In this column, I will examine some of the main factors that may prove salient in the two cases, and I will suggest that the Court’s analysis might benefit from an appreciation of what distinguishes dogs from inanimate, evidence-gathering machines.
In each of the two cases before the Court, a dog who assisted police in identifying narcotics communicated to his handler that he had sniffed contraband.
In Jardines, the dog in question, named “Franky,” walked up to the front door of a house that was suspected of containing narcotics and indicated (by sitting in front of the door) that he did, indeed, smell the odor of drugs coming from inside the house.
In Harris, the dog in question, named “Aldo,” sniffed the exterior of a truck that was suspected of containing contraband, after which he communicated a positive alert to the door handle of the driver’s side of the truck.
In Jardines, the reliability of Franky’s responses to narcotics appears uncontested. The legal issue is therefore whether, in the absence of individualized suspicion, police may legally approach the door of a suspect’s private residence with a dog who has been trained to detect narcotics. Stated differently, the Court will address the question whether a person has a reasonable expectation of privacy in not having a police dog approach his house, detect, and convey to police the fact that the house contains contraband.
The Florida Supreme Court held that a person does have this expectation of privacy, and that police must therefore have probable cause before subjecting an individual’s home to a narcotics dog sniff.
In Harris, the Fourth-Amendment legality of performing the dog sniff near the lawfully stopped vehicle appears uncontested. What the Court must decide here is, accordingly, when a dog’s alert to drugs provides an officer with probable cause to believe that drugs are actually present.
How closely, then, should courts scrutinize a dog’s reliability at detecting narcotics, in determining whether a dog’s positive alert provides probable cause for a search? Is it enough for the dog’s handler to testify that the dog is certified for narcotics detection? Or must there be a detailed record showing that the dog has repeatedly and accurately discriminated between places that do, and places that do not, contain narcotics?
In the particular case, the handler who worked with Aldo—the dog in question—did not present evidence of Aldo’s error rate, so it was difficult to assess with any precision how likely he was to alert to drugs where there were actually no drugs to be found. In other words, the government did not introduce evidence as to how often Aldo’s sniffs yielded false positives.
Further complicating matters in Harris are three facts. First, Aldo gave a positive alert to the same driver’s side door of Harris’s truck on a subsequent occasion (two months after the stop at issue in this case), but no illegal substances were found in the truck. This error suggested that Aldo may be prone to giving “false positive” alerts to contraband.
A second fact, which may explain the first, is that dogs are often able to detect drug residue – the tiny amount of narcotic, for example, that might be present because someone who recently used drugs touched the car door. The dog, in such a scenario, would not technically be erroneously identifying drugs but would be providing a “false positive” in the sense that the sniffed vehicle does not contain a legally cognizable quantity of drugs.
Third, and finally, the dog in Harris was trained to detect methamphetamine but not, so far as the evidence indicated, to detect the precursors to methamphetamine, such as the pseudoephedrine pills that were found in the truck that police searched.
An inquiry into a dog’s skill in narcotics detection might therefore need to specify both the quantity and the particular substances that the dog has become skilled at detecting, in order to ensure that the dog’s positive alert corresponded to a drug for which police were searching, and in the quantity that would need to be present to violate the criminal law.
None of this information about error rates and training was available to the courts in Harris, and according to the Florida Supreme Court, it should have been.
Accordingly, the Court has held that dog sniffs may occur in the absence of a warrant, probable cause, or indeed any individualized suspicion. From these cases, including United States v. Place and Illinois v. Caballes, one might infer that the Florida Supreme Court erred in finding a Fourth Amendment search in Harris.
On the other hand, the Court has consistently treated the home as a sacrosanct zone for Fourth Amendment purposes. In 2001, in Kyllo v. United States, for example, the Court said that using a thermal-detection device to register heat waves emanating from a home invaded a reasonable expectation of privacy. This was true, the Court reasoned, notwithstanding the fact that the thermal detection device used would reveal very little about the activities within the home beyond the fact that heat lamps associated with the indoor cultivation of illegal drugs might be present.
Moving even further back in time, in Payton v. New York, the Court held that police must obtain an arrest warrant to arrest an individual at home, even though they could have arrested the same individual in public without any warrant, simply on the basis of probable cause. The reason for the distinction, the Court indicated, was the invasion of privacy that inevitably accompanies a home arrest, but not a public arrest.
In Welsh v. Wisconsin, the Court rejected the decision of police officers to enter a suspect’s home to arrest him without a warrant for a minor offense, in spite of the facts that (1) there was arguably an exigent circumstance making it impractical to seek a warrant ahead of time, and (2) the Court later held that arrests for minor offenses are consistent with the Fourth Amendment, even when—as in Atwater v. Lago Vista—the arrestee’s offense carries no potential jail time, and even when—as in Virginia v. Moore—state law designates the crime as a “no arrest” offense.
If that is the case, then perhaps even the fact that there are narcotics in the house—if not apparent to passersby without the assistance of a dog trained to detect narcotics—is a “private” fact for Fourth Amendment purposes. And this conclusion would lead the Court to affirm the Florida Supreme Court’s ruling in Jardines.
Part Two in this series will appear here on Justia’s Verdict on Wednesday, November 7.


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The purpose of expert witness testimony is to provide findings of fact for the decision-making process of semijudicial or judicial bodies or to provide the various courts of law with factual information on which to base a resolution, ruling, or verdict (Dorram 1982). The controversies surrounding the use of expert witnesses and expert testimony may revolve around issues such as whether experts may be abusing their power to influence the outcomes of adjudication, be providing better evidence than lay persons, or be speaking on matters relevant to cases that are outside of their expertise, but the controversies are not limited to these issues. Before an individual may be allowed to offer opinion testimony as an expert, however, it must be established not only that the subject of the opinion is proper for expert testimony but also that the individual offering the opinion is “a person skilled at touching the matter of inquiry” (Gothard 1989).
Expert testimony today is very much like a corrida, the traditional bullfight. It has precisely prescribed rituals. The beginning, which is the bailiff’s opening statement to the public to rise upon the entrance of the judge, is like the music of the bullfight. The ending, like the dragging out of the bull by the mules, is the moment when the gavel is slammed down. In between, the expert witness is the bull in the arena. The various attorneys entitled to cross-examine will treat him or her exactly as a bull is treated— although in this case the pics, lances, and swords are metaphorical. Just as the traditional bullfight has established stages, so does the proper expert testimony. Stage 1 is the swearing in and identification of the witness, which is followed by stage 2, the statement and presentation of the witness’s professional qualifications. If they are not accepted, that is the end of the testimony. The bull is dead; bring in the next bull (Dorram 1982, 4).
The first documented forensic expert was Antistius, who was asked to examine Julius Caesar’s corpse to determine the cause of his death (Meyer 1999). In his opinion, Antistius declared that only one of the 24 sword wounds he suffered actually caused Caesar’s death and that it was the sword wound that perforated his thorax (Meyer 1999, 2). In the beginning, then, only medical experts were allowed to provide expert testimony, and then only related to their specific field of practice, such as chemistry, biology, or psychiatry. In fact, experts, specifically medical experts, have been used in English courts since the 14th century and in the common law courts of North America for more than 200 years (Meyer 1999). Since the mid-1980s, social workers have been recognized by courts as having sufficient expertise in several fields of practice and, subsequently, have been qualified as experts in courts of law (Gothard 1989).
The Federal Rules of Evidence (FRE), the Frye test, and the Daubert guidelines form the basis for determining the admissibility of expert medical or scientific testimony (McHenry et al. 2005). Although the FRE are meant to be applied to federal court proceedings, many state courts have adopted them as a guide for dealing with expert witness testimony. Various sections of the FRE outline the “knowledge, skill, experience, training or education” levels required of experts and allow for judicial discretion in determining who constitutes an expert witness and whether the testimony is relevant to jury deliberations (McHenry et al. 2005). Besides, expert testimony must be based on information that is generally accepted in the scientific community, according to Frye v. United States (1923), in which the court decided that a technique used for performing a lie detector test must be “generally accepted within the scientific community before expert opinion about data gained from use of the technique is admissible into evidence” (see Frye v. United States 1923). The Frye test, then, is used as the legal basis for judges to exclude expert testimony based on information, principles, or opinion not falling within those parameters.
In 1993, the U.S. Supreme Court provided guidelines for expert witnesses in the federal court case of Daubert v. Merrell Dow Pharmaceuticals, Inc. when it ruled that expert testimony should be based on information that has been subjected to the scientific method rather than on unsupported speculation (see Daubert v. Merrell Dow Pharmaceuticals Inc. 1993). The court also directed trial judges to determine whether expert testimony is relevant and based on valid scientific evidence (Daubert v. Merrell Dow Pharmaceuticals Inc. 1993). Further, the Court gave its support to the FRE guidelines, which permit judges to appoint their own independent expert witnesses. In so doing, the Court proclaimed that an expert witness must be able to determine the relevant facts of a case, define the standard of care for management of a specific problem, determine whether a physician’s action conformed or deviated from the standard of care, and assess the relationship between the alleged substandard care and the patient’s outcome (McHenry et al. 2005, 275). The problem with this standard of application, according to Christopher McHenry, is that “very little constraint is applied to the testimony of an expert, often giving him or her inordinate latitude to comment on things that are outside his or her area of expertise” (McHenry et al. 2005, 276). Once the expert has been qualified as such, then the person on the stand, under oath, is allowed to expound upon various topics and issues relevant to the trial, oftentimes without having any brakes applied to his or her utterances, in part because the expert testimony becomes a performance that is not unlike a regular stage performance. What the expert must convey in the course of the performance is that he or she is indeed an expert and that his or her opinion should be taken seriously (Dorram 1982, 51).
Problems with expert witnesses and expert witness testimony have included the fact that some experts have been allowed not only to testify about medical facts but also to offer opinions about material issues of the criminal trial. Their opinions may influence decisions involving criminal sentencing or involuntary commitment, for example (Faust and Ziskin 1988). The issue here becomes whether some experts have abused the power to be able to influence the outcome of trials and have turned the criminal trial into a kind of “legalized gamble” (Meyer 1999, 3), particularly because, when judgments have rested on common sense or stereotypes rather than empirical knowledge, professionals have not been shown to outperform lay persons in terms of accuracy; that is, studies show that professional clinicians do not in fact make more accurate clinical judgments than laypersons (Faust and Ziskin 1988, 34).
Another issue that complicates the use of expert testimony is the interrelated specialties that have arisen in the medical field such that experts can defer endlessly to colleagues who possess more specialized knowledge of the issue at bar.
Whereas 50 years ago medicine was still primarily an art rather than a science, medicine is now interlinked with a plethora of technical and scientific occupations. The proliferation of information and specialties has become such that large health care providers now employ specialists in primary care and farm out patients for further specialized treatment. In fact, some specialties have become so compartmentalized that surgeons, chemotherapists, and radiation specialists no longer feel comfortable weighing the advantages of competing treatment modalities for certain types of diseases, such as cancer of the uterus or prostate gland (Meyer 1999, 3).
Additionally, there is some concern over the rather subjective nature of expert testimony, not only because testimony by a so-called expert is often allowed by judges even though other physicians or scientists do not regard the individual’s credentials as those of an expert in a particular field (McHenry et al. 2005, 276) but also because the perception exists that an expert can be found to support any point of view as long as the financial compensation is right (McHenry et al. 2005, 276). Moreover, there is no peer review of expert witness testimony to ensure its merit or validity (McHenry et al. 2005, 276). These and other problems not mentioned here contribute to increasing skepticism about the veracity and reliability of expert witness testimony.
Moreover, judges and juries are not bound by expert witness testimony; the jury members (and the trial judge) are free to accept or reject the expert’s testimony in whole or in part (Gutheil 1998). Attorneys, therefore, must base the decision of whether to offer expert testimony on the likelihood of that expert being able to connect with the jury—that is, to leave an impression that is favorable to winning the verdict. Jury instructions do not require members to heed the advice of experts; in fact, some jury instructions encourage jurors to exercise their own judgment as to whether to believe or include the opinions of experts in their deliberations.
There is also some evidence to suggest that jurors use intuition, credentials, and mannerisms to determine the veracity of expert witness testimony. Put another way, there is nothing to prevent jurors from using their gut feelings about an expert, the prestige of the institutions from which the expert graduated, or the appearance of the expert on the stand to determine the veracity of the expert’s testimony even though these supposed markers of accuracy are potentially prejudicial (Faust and Ziskin 1988). In fact, some evidence suggests that jurors tend to ignore the expert testimony presented on the stand during the trial and, instead, choose to use their own life experiences or common sense to determine guilt or innocence. In such cases, the expert’s efforts to persuade may well succeed if it aligns more closely with common belief (Faust and Ziskin 1988).
When asked about the defense’s case, one juror said: “I think they tried to prove that he was mentally incapable of understanding what he was doing and brain damaged . . . which didn’t have any effect on me because I know that you can get psychiatrists to argue anything because it’s not an exact science.” And another juror concluded that “the defense had to show much and they did a good job. We just didn’t buy it” (Cotton 2002, 234).
Several efforts to reform the expert witness process have been undertaken in recent decades (between 1987 and 1998) by respected medical organizations; specifically, the American Academy of Pediatrics, the American Academy of Neurologic Surgeons, the American Academy of Orthopedic Surgeons, and the American Medical Association have published guidelines and/or passed resolutions that subject expert witnessing to peer review and disciplinary sanctions (McHenry et al. 2005, 276). In 2004, the American College of Surgeons issued a statement that includes recommended qualifications and guidelines for behavior of the physician who acts as an expert witness (American College of Surgeons 2004, 22–23). In support of the effort to maintain the integrity of expert witnessing, the Collaborative Defense Network for Expert Witness Research, founded in 1984, collects information on and researches the background of expert witnesses (http:// www.idex.com). The company offers a wide range of expert witness services, such as testimonial history searches, trial depositions and transcripts, state license discipline searches, and articles by the expert, among others.
In the final analysis, there is much to be said about the need for expert witness testimony in this age of complicated medicine and science. If the jury cannot tell sanity from insanity based on their own experience, for example, then persons must guide them with special expertise in the recognition of this hidden condition (Freemon 2001). Only trained experts can separate the individual who is insane in a partial way, or only with regard to certain subjects, from the normal person (Freemon 2001, 361). Nevertheless, it is expected that the same types of controversial issues surrounding the use of expert witness testimony will persist into the future.
Bronstein, Daniel A., Law and the Expert Witness, 3d ed. Boca Raton, FL: CRC Press, 2007.
Candilis, Philip J., Robert Weinstock, and Richard Martinez, Forensic Ethics and the Expert Witness. New York: Springer 2007.
Cotton, Allison, “Who Is This Defendant? A Study of Capital Punishment and the Effort to Attribute Personality.” Ph.D. dissertation, University of Colorado at Boulder, 2002.
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 593–7 (1993).
Dorram, Peter B., The Expert Witness. Chicago: American Planning Association, 1982.
Faust, David, and Jay Ziskin, “The Expert Witness in Psychology and Psychiatry.” Science 241, no. 4861 (1988): 31–35.
Fisher, Jim, Forensics under Fire: Are Bad Science and Dueling Experts Corrupting Criminal Justice? New Brunswick, NJ: Rutgers University Press, 2008.
Freemon, Frank R., “The Origin of the Medical Expert Witness.” Journal of Legal Medicine 22 (2001): 349–373.
Frye v. United States, 293 F. 1013. (D.C. Cir. 1923).
Gothard, Sol, “Power in the Court: The Social Worker as an Expert Witness.” Social Work 34, no. 1 (1989): 65–67.
Gutheil, Thomas G., The Psychiatrist as Expert Witness. Washington, DC: American Psychiatric Press, 1998.
Harris, Rebecca C., Black Robes, White Coats: The Puzzle of Judicial Policymaking and Scientific Evidence. New Brunswick, NJ: Rutgers University Press, 2008.
McHenry, Christopher R., et al., “Expert Witness Testimony: The Problem and Recommendations for Oversight and Reform.” Surgery 137, no. 3 (2005): 274–278.
Meyer, Carl, ed., Expert Witnessing: Explaining and Understanding Science. Boca Raton, FL: CRC Press, 1999.
Sales, Bruce Dennis, Experts in Court: Reconciling Law, Science, and Professional Knowledge. Washington, DC: American Psychological Association, 2005.

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Voice Misappropriation In California – Bette Midler, Tom Waits, and Grandma Burger.
On October 4, 2001, the California Court of Appeal, for the first time, acknowledged, defined, explained, and confirmed the common law of voice misappropriation in California. Unfortunately, only one justice on the three justice panel saw fit to tell the legal world the status of the law before the parties had to go through the expense and uncertainty of a trial. The case is Priority Records v. Superior Court(Geneva Burger).1 As it turns out, the case was settled during trial, for an undisclosed sum of money, and the California Court of Appeal still has yet to make its voice officially heard.
misappropriation of an individual’s voice could, in certain instances, constitute an actionable violation of the common law right of publicity.
WAITS V. FRITO LAY, INC.
The court’s decision in Midler Was further explained in Waits v. Frito Lay, Inc.9 In Waits, the court reaffirmed the discussion in Midler, and further explained the requirements set forth in Midler under which a celebrity can successfully recover for the misappropriation of his or her voice.
The Waits court reiterated in Midler “that when voice is sufficient indicia of a celebrity’s identity, the right of publicity protects against its imitation for commercial purposes without the celebrity’s consent.”12 The court held that in order for Waits to recover under a right of publicity, he must satisfy the deliberate voice misappropriation elements listed in the Midler case. for which the Waits court identified as the “Midler tort.” These elements include (1) a voice; (2) that is distinctive; and (3) is also widely-known.13 The court found that “[a] professional singer’s voice is widely known [for purposes of voice appropriation, if the voice] . .. is known to a large number of people throughout a large geographic area.”14 In so determining, the court stated that “identifiability is properly considered in evaluating distinctiveness.”15 The court affirmed the judgment for Waits.
Once again, the Waits case makes it clear that just being a professional singer does not give one the right to recover for voice misappropriation; the voice also has to be known to a large number of people throughout a large geographic area.
In Priority, Burger was not a professional singer; she was not a celebrity; nobody other than her own grandsons and three other family members were able to identify her in the Song. She certainly could not demonstrate that her voice was distinctive or that her voice was widely known to a large number of people throughout a large geographic area. In fact, as discussed above, the trial court in Burger made a specific finding that Burger’s voice is not distinctive, that is not widely known, and that it has no commercial value whatsoever.
The Priority case was filed 11 years after Midler was decided and 7 years after Waits. The case involved a 78-year-old grandmother, whose 30 year old grandson’s friend engaged her in a telephone conversation about marijuana, taped that conversation, and gave an‘ excerpt of that tape to a rap music producer because he thought that the grandmother’s words were funny. The exact words used by Burger were: “When people are hooked on pot, can they be sick if they don’t get it?” (the “Excerpt”). The Excerpt was exactly 4 seconds long.
D’Andrea thereafter played the musical beat (with the Excerpt) for Snoop Dogg (formerly “Snoop Doggy Dogg” – real name: Calvin Broadus) and C-Murder (real name: Corey Miller). D’Andrea thereafter produced the Album, and included the Excerpt with this musical beat. Priority argued that the Excerpt of Burger’s conversation was obviously included in the song or its content, and not for the uniqueness, distinctiveness, or identifiability of Burger’s voice.
Thereafter, a rap music recording artist named “Magic” (real name: Atwood johnson) released an album entitled “Skys The Limit.” The Excerpt was used at the beginning of the thirteenth song on the album, entitled “No Limit,” which is about marijuana, among other things.
The Song was composed of original music, which was created by D’Andrea, and original rap lyrics by three artists: Snoop Dogg, C-Murder, and Magic. The album was released by No Limit Records, which is owned by the rap artist Master P (real name: Percy Miller), and distributed by Priority Records.
Priority distributed the album in accordance with a “furnishing” agreement with No Limit. Because this agreement was only for distribution of the Album, Priority had no right to control the content of the music. Priority claimed that its sole function was essentially to manufacture the plastic compact discs on which the music was recorded and to deliver those discs to record stores.
At some point after the release of the album, Burger’s grandson, William Burger, informed Burger that her voice had been used on the Album. Priority claimed (and Burger submitted no contrary evidence) that no other individual in the world, other than four of Burger’s own family members, was able to identify Burger’s voice on the Album, and the only reason even they could identify her voice was because Lupo told them that her voice was on the album.
Interestingly, Burger never sued Lupo, the individual who illegally taped her telephone conversation with him. In fact, she never even sued D’Andrea, the producer of the Album, who was actually responsible for including the Excerpt on the Album. Although she did sue Johnson, the artist (who had nothing to do with the inclusion of the Excerpt on the Album), but she never pursued him. She did pursue Snoop Dogg (who merely rapped on the song), C-Murder (who merely wrote some of the rap lyrics), Master P (who merely owned the record company that released the album), No Limit Records (the record company), and Priority Records (which merely distributed the Album).
Priority’s analysis was twofold: First, there is a separate tort in California called “voice misappropriation.” Although it may be a subset of statutory misappropriation and/ or common law right of publicity, Priority argued that there are separate pleading and proof requirements for the more specific voice misappropriation. The second part of Priority’s argument was that, even if voice misappropriation is not to be construed as a separate tort, the “identifiability” element of common law right of publicity and statutory misappropriation would nevertheless preclude Burger’s claim against Priority.
Priority argued that Midler and Waits established the tort of voice misappropriation, and that those cases govern all voice misappropriation cases in California. Priority further argued that not one case from any state (and certainly none cited by Burger) held (or even suggested) that a non-celebrity with a non-distinctive, not widely known voice, particularly one with no commercial value, can sue for voice misappropriation.
However, in Midler and Waits, there was similarly no dispute as to whom the voices were imitating, and the court still required that the “professional singer’s” Voice be “widely known” and “distinctive.” In fact, language from those cases makes it clear that the court was not limiting its holding (and the requisite elements for a voice misappropriation cause of action) to “soundalike” cases. “This case centers on the predictability of the voice of a celebrated chanteuse from commercial exploitation without her consent. ”22 “At issue in this case is only the protection of Midler’s voice.” 23 The court did not say that the “case centers on the predictability of the voice of a celebrated chanteuse from ‘soundalikes’ without her consent”; it said that the heart of the Midler case was the protection of a “celebrated” singer from any “commercial exploitation without her consent.”24 Clearly, neither the holdings of Midler and Waits, nor the requirements identified therein, are limited to cases in which a soundalike was used, as opposed to a plaintiff’ s actual voice. If a plaintiff’ s voice is not distinctive and widely known to a large number of people throughout a large geographical area, than that plaintiff simply cannot maintain a cause of action for common law voice misappropriation, whether the defendants used a soundalike or the plaintiffs actual voice.
The motion was ultimately heard by the trial court, which specifically held that Burger’s voice (1) was not distinctive; (2) was not widely known to a large number of people throughout a large geographical area; and (3) had no commercial value. The court further held, however, that, contrary to Midler and Waits, Burger was nevertheless entitled to maintain her cause of action for common law/voice misappropriation because the requirements identified in Midler and Waits only apply to soundalikes, and not to an actual voice.
At the end of the hearing, Priority made an oral Motion to Stay all proceedings pending Appellate review, which it intended to seek on the following week in light of the fact that the issue was solely one of law (and because trial was imminent). Burger’s counsel argued vehemently (if not fatuously) that there was no question whatsoever that the Court of Appeal would deny a petition for writ of mandate within two days of receiving it, and that “justice delayed is justice denied.” The trial court decided not to rule on the oral motion to stay, and set the motion for hearing on the date set for trial.
Four days before trial was to commence, the Second District Court of Appeal, Division One, issued an Order staying all proceedings including trial, and requiring Burger to file an Opposition Brief within 15 days thereafter. Burger filed her Opposition brief, and Priority filed its Reply thereto.
Two days after the filing of Priority’s Reply brief, the Court of Appeal issued an Order, stating very simply: “The petition is denied. The stay previously issued by this court is dissolved.” The Order was signed by Justices Ortega and Mallano. The interesting part of the Order, however, was what amounted to, in essence, a dissenting opinion, which essentially said that Priority is correct on the law; why make the company go through a lengthy and expensive trial when there is only one cause of action against 2003] VOICE MISAPPROPRIATION 51 it, and we all know that any judgment on that cause of action will be reversed.
From these and other cases, it is clear that a plaintiff must be some sort of celebrity or at least claim some degree of notoriety. For this reason, I would issue an order to show cause and consider the issue now so that Priority Records, a minimally involved defendant, is not dragged through a lengthy trial with its attendant expense-particularly since no other causes of action are alleged against this particular defendant.
A As discussed above, the case proceeded to trial. Snoop Dogg settled out before trial. The jury found in favor of Master P, but rendered a verdict against Corey Miller and N 0 Limit Records. Priority decided to settle the case in the middle of trial for a substantial sum of money. The judge later overturned the defense verdict in favor of Master P, after piercing P’s corporate veil, and entered a Judgment against P for $25,000 in compensatory damages and $75,000 in punitive damages.
1. Priority Records v. Superior Court, Priority Records v. Los Angeles County Superior Court, 2001 Cal. LEXIS 3092 (Cal. Nov. 20, 2001).
Case No. B15251; Geneva Burger v. Priority Records, et al., Los Angeles Superior Court (Pomona) Case No. KC 027 869 (Hon. R. Bruce Minto,_]udge).
2. 849 F.2d 460 (9th Cir. 1988) (holding that California law recognizes a tort of appropriation of a professional singer’s voice where the singer was widely known and where the use was to sell a product).
6. Id. at 463 (emphasis added).
9. 978 F.2d 1093 (9th Cir. 1992).
12. Id. citing Midler, 849 F.2d at 463.
13. 978 F.2d Id. at 1100at 1102..
17. A “beat” in rap music is a composition of music, without the rap or lyrics which comprise the completed song.
18. Burger could not claim statutory misappropriation pursuant to California Civil Code Section 3344 because that cause of action requires proof of “knowledge,” and Burger could not prove that Priority had any knowledge that Burger’s voice had been misappropriated, or that Priority had any knowledge whatsoever concerning the origin of the 4-second Excerpt.
19. However, even in name and likeness cases (as opposed to voice misappropriation cases), the plaintiff must be sufficiently “identifiable” to sustain a cause of action. Waits V. Frito Lay, Inc., 978 F.2d 1093, 11020 (9th Cir. 1992) (“Identifiability . . . is a central element of a right of publicity claimase”). There is an absolute requirement that a “significant” number of people be able to identify the plaintiff. As discussed in]. McCarthy, Rights of Publicity and Privacy, which was extensively cited by Burger, the author made it very clear that “the test of liability (as opposed to the scope of remedy) is whether a ‘significant’ or more than de minimis number of persons can reasonably identify plaintiff from the total context of defendant’s use.” Id. at §3.4[D]. Three or four of Burger’s family members (who already knew her voice was on the Song), being the only ones who could identify her voice, is certainly “de minimis,” and clearly, as a matter of law, renders the voice not sufficiently identifiable to maintain a cause of action for voice misappropriation (or any form of right of publicity).
20. Priority Records V. Superior Court, Priority Records V. Los Angeles County Superior Court, 2001 Cal. LEXIS 8092 (Cal. Nov. 20, 2001).(citing Opposition Papers filed in the case and referenced at 11:2 and 3:3).
21. Id. citing Opposition Papers at 3: 10-12.
22. See supra note 12.
26. See supra note 20.

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Whether you are an employer or employee noncompetition agreements are complicated. You should hire experienced noncompete lawyer when a dispute arises over a noncompete.
A Palm Bay woman was sued by her former employer for breach of a noncompete agreement. Arcadier, Biggie & Wood, defended the woman and filed a Motion for Summary Judgment on her behalf. After reviewing the Motion for Summary Judgment the Judge found that she should prevail on her defenses as a matter of law. The case was brought in the Ninth Judicial Circuit Court Orange County Florida.
This order demonstrates how important it is to be represented by counsel at your deposition.
Defendant was an employee of Plaintiff. (Hall Dep. II pg. 5. 125 – pg. 6 1 4). During the course of her employment Defendant signed a contract agreeing not to compete against the Plaintiffs. (Def. Ex. 1). Defendant was terminated on May 13, 2011. (P. Amend. Compl.).
The non-compete agreement included 6 restrictive covenants. (Def. Ex. 1). The Plaintiff’s sued the Defendant alleging violations of three restrictive covenants. (P. Amend. Compl.). The covenants were Non-Disclosure, Third-Party Information/Relationships, and Non-Competition .
Defendant began working for for a new employer. (Def. Dep. II pg. 6 Ll 8).1 The new employer’s office is located on Conlan Boulevard in Palm Bay, Florida 32905 (Def. Dep. II pg. 221 L6 – 13). The Defendant has conceded that Superior is within the 75 mile radius outlined in the non-compete.
It is undisputed that Defendant has not placed temporary employees with any fomer clients of Plaintiff, that there is no overlap between clients of Plaintiff and the new employer, that the Plaintiffs and new employer use different computer systems to maintain their staffing operations, and that all work performed by Defendant are for long standing clients of the new employer that are located outside of the 75 mile radius.
It is undisputed that Defendant did not receive any specific or specialized training while employed by the Plaintiffs, (Def. Dep. II pg. 15 Ll4 – 16), and that she already obtained relevant training and experience prior to her employment with the Plaintiffs.
Personal knowledge of the Plaintiffs’ Witnesses.
“Witness 1” does not know if Defendant disclosed any of the Plaintiffs policies, trade secrets, or confidential information. “Witness 1” is unaware of anyone with personal knowledge or any proof whatsoever regarding Defendant disclosing policies, trade secrets, or confidential information of the Plaintiff or breaching any other restrictive covenant in the agreement.
Two companies have left Plaintiff since Defendant has left but the Plaintiffs cannot contribute the loss of business to Defendant. (W1. Dep. II pg. 24 L19 – 22). “Witness “1 does not know if the Plaintiffs have been damaged by Defendant’s departure and employment with her new employer. (W1. Dep. I pg. 71 L4- 7).
The Plaintiffs’ witness with the most knowledge testified that the Plaintiffs’ trade secrets are flexibility with their clients, ID long term staffing contracts with their clients, payroll services, and background checks. The Plaintiff’s staffing business operates similarly to other staffing companies in the industry, the Plaintiff’s approximated that 15% of their competitors operate in a similar fashion. The Plaintiffs brought forth no evidence of what their trade secrets are worth.
Evidence Brought Forward by the Plaintiffs.
The Plaintiffs bring forth three pieces of evidence that they argue establish a genuine issue of material fact.
“Q: Has [Defendant] given you any information in – that in her experience something would work better if you did it a certain way or anything like that? A: Best practices. Q: What type of best practices has she shared with you, if you know, but don’t speculate. A: Yeah. I don’t know specific, but just general best practices. Q: Okay. So there are occasions when you and [Defendant] discuss different ways of performing your job duties? A: Occasionally best practices. Q: So when you say ‘best practices,’ you mean that you discuss ways you have found that work well to do your job? A: Yes…. Q: Has [Defendant] ever discussed with you anything at all about [Plainiff]? A: No. (Employee Dep. pg. 26 L15 – 17). Q: Has she ever discussed with you anything about Plaintiff? A: No.” (Employee Dep. pg. 25 Ll 7 – pg. 26 L14); (Employee Dep. pg. 26 L18 – 20).
Second the Plaintiffs argue that Plaintiff is working for another staffing company physically located in the 75 miles radius.
Third the Plaintiffs point to Plaintiff’s testimony as an admission of breaching the contract. (Pl. Dep. II pg. 20 L3 – 17).
Summary Judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Kitchen v. Ebonite Recreation Centers, Inc., 856 So. 2d 1083, 84-5 (5th DCA 2003) (citing Fla. R. Civ. P. 1.Sl0(c) and Fiselv. Wynns, 667 So.2d 761,764 (Fla.1996)).
A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party. Kitchen, 856 So. 2d 1085 (citing Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002)).
Evidence relied upon by a party at the summary judgment stage of litigation must be admissible at trial. Holl v. Talcott, 191 So. 2d 40, 45 (Fla. 1966).
The issue is whether the testimony of the employee creates a material issue of fact with respect to whether Plaintiff disclosed confidential information, third party information, or trade secrets belonging to the Plaintiffs.
Under controlling statutes and case law in order for a noncompetition agreement to be enforceable the Plaintiff must come forward with specific identifiable misappropriations by the Defendant. See Passalacqua v. Naviant, Inc., 844 So. 2d 792, 796 (4th DCA 2003) (The Plaintiff failed to bring forth any identifiable misappropriations of trade secrets or confidential information therefore he cannot establish a legitimate business interest.) (citing Fla. Stat. § 542.335); University of Florida, Board a/Trustees v. Sana!, 837 So. 2d 512,515 (1st DCA 2003) (“A plaintiff seeking to enforce a restrictive covenant should be entitled to do so only if “it can demonstrate that the defendant has misappropriated (or threatens to misappropriate) identifiable assets” of the plaintiffs business.) (quotation omitted.).
The testimony of the employee talks about best practices in general and does not indicate that the Defendant disclosed any identifiable trade secret, confidential information, and/or practices of the Plaintiffs. Further the employee testified unequivocally that Defendant did not discuss anything regarding the Plaintiffs with him.
There is no evidence in the record of the Defendant disclosing or threatening to disclose any identifiable assets of the Plaintiffs. There is no evidence in the record of the new employer adopting the policies and practices of the Plaintiffs.
Further under Fla. Stat. § 688.002, “a trade secret must have independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use,” additionally confidential information must also have some type of value under Fla. Stat. § 552.335(1)(b)(2).
The Plaintiffs’ witness with the most knowledge testified that 15% of other staffing companies operate similarly to the Plaintiffs, and there was no evidence put forth by the Plaintiffs of the value of their trade secrets or confidential information.
There is no general issue of material fact regarding whether the Defendant Garrett disclosed identifiable trade secrets or confidential information because there is no evidence of Defendant Garret disclosing identifiable assets of the Plaintiffs: Let alone identifiable assets which are not generally known in the staffing industry and have some economic value to the Plaintiffs.
The issue is whether or not the Plaintiffs have a legitimate business interest in enforcing the 75 mile radius restrictive covenant against Defendant.
Under controlling case law and statutes the Plaintiff cannot enforce a noncompetition agreement’s geographic restriction as a restraint on generic competition in the market place, rather it must relate to a legitimate business interest. Sana!, 837 So. 2d 515 – 516. In Sanal, the Defendant was operating within a noncompetition agreement’s geographic restriction before the expiration of the agreement. Id. At Summary Judgment the Plaintiff in Sanal, could not establish that the Defendant provided services to its former clients, the Plaintiff could not establish that its current clients followed the Defendant to his new employer; the Plaintiff could not establish that it suffered any damages, and it was undisputed that the Defendant only worked with preexisting clients of his new employer. Id. at 514. The trial Court found that the Defendant had violated the agreement however the agreement was unenforceable because the Plaintiffs could not overcome the fact that it had no legitimate business interest. Id. at 515. The Florida First District Court of Appeals held that Summary Judgment was properly granted for the Defendant. Id. at 516.
In this case it is undisputed that the Defendant is operating inside the restrictive covenant, however Defendant only works for long established clients of her new employer, the employees being staffed by Defendant are outside of the 75 mile radius, Defendant’s job duties do not include solicitation of clients or potential employees on behalf of Superior within the 75 mile radius, Defendant has not placed temporary employees with any former clients of Plaintiff, there is no overlap between clients of Plaintiff and the new employer, the Plaintiffs and the new employer use different computer systems to maintain their staffing operations, Defendant did not receive any specific or specialized training while employed by the Plaintiffs, that she already obtained relevant training and experience prior to her employment with the Plaintiffs, and that the Plaintiffs have not been damaged by Defendant’ s employment with her new employer.
There is no genuine issue of material fact; the Plaintiffs do not have a legitimate business interest in enforcing the geographic restriction against the Defendant.
The final issue is whether Defendant’s testimony that she breached the noncompetition agreement creates a geniune issue of material fact regarding whether the agreement is enforceable against Defendant.
First at the deposition Defendant’s attorney objected to the question and argues that the testimony is inadmissible because it calls for a legal conclusion. (Def. Dep. II pg. 20 L3 – 17). A question that calls for a legal conclusion is an expression·of opinion. Marine Investment Company v. Van Vorhis, 162 So. 2d 909, 910 (Fla. 1st DCA 1964). A lay witness cannot testify regarding an opinion if giving that opinion requires a special skill, knowledge, experience, or training. Fla. Stat. § 90.701.
There is no evidence or underlying foundation establishing that Defendant is qualified to give that opinion. Therefore it is inadmissible under Fla. Stat. § 90.701 and will not be considered for summary judgment purposes. Holl, 191 So. 2d at 45.
Second even if the testimony is admissible and Defendant is ‘technically’ breaching the noncompetition agreement by working inside the geographic restriction she is still entitled to Summary Judgment because the Plaintiffs have not established a legitimate business interest that requires protection. Sanal, 837 So. 2d at 515 (“The trial court concluded that Dr. Sanal was ‘practicing medicine in violation of the terms of the non-compete agreement.’ However, it concluded, further, that the University had failed to establish that it had any ‘legitimate business interest….’ Accordingly, the trial court denied the University’s request for temporary injunctive relief, and granted Dr. Sanal’s motion for summary judgment.”).
The Defendant Garrett’s Motion for Summary Judgment is hereby GRANTED. The Court will reserve jurisdiction for attorney fees and costs and all other reasons consistent with this Order.
DONE AND ORDERED m Orlando, Orange County, Florida, on this 17th day of January, 2014.


§ 19.2-163.01 Virginia Indigent Defense Commission established; . . .
1. To publicize and enforce the qualification standards for attorneys seeking eligibility to serve as court-appointed counsel for indigent defendants pursuant to § 19.2-159.
2. To develop initial training courses for attorneys who wish to begin serving as court-appointed counsel, and to review and certify legal education courses that satisfy the continuing requirements for attorneys to maintain their eligibility for receiving court appointments.
3. To maintain a list of attorneys admitted to practice law in Virginia who are qualified to serve as court-appointed counsel for indigent defendants based upon the official standards and to disseminate the list by July 1 of each year and updates throughout the year to the Office of the Executive Secretary of the Supreme Court for distribution to the courts. In establishing and updating the list, the Commission shall consider all relevant factors, including but not limited to, the attorney’s background, experience, and training and the Commission’s assessment of whether the attorney is competent to provide quality legal representation.
4. To establish official standards of practice for court-appointed counsel and public defenders to follow in representing their clients, and guidelines for the removal of an attorney from the official list of those qualified to receive court appointments and to notify the Office of the Executive Secretary of the Supreme Court of any attorney whose name has been removed from the list.
5. To develop initial training courses for public defenders and to review and certify legal education courses that satisfy the continuing requirements for public defenders to maintain their eligibility.
6. To periodically review and report to the Virginia State Crime Commission, the House and the Senate Committees for Courts of Justice, the House Committee on Appropriations, and the Senate Committee on Finance on the caseload handled by each public defender office.
7. To maintain all public defender and regional capital defender offices established by the General Assembly.
8. To hire and employ and, at its pleasure, remove an executive director, counsel, and such other persons as it deems necessary, and to authorize the executive director to appoint, after prior notice to the Commission, a deputy director, and for each of the above offices a public defender or capital defender, as the case may be, who shall devote his full time to his duties and not engage in the private practice of law.
9. To authorize the public defender or capital defender to employ such assistants as authorized by the Commission.
10. To authorize the public defender or capital defender to employ such staff, including secretarial and investigative personnel, as may be necessary to carry out the duties imposed upon the public defender office.
11. To authorize the executive director of the Commission, in consultation with the public defender or capital defender to secure such office space as needed, to purchase or rent office equipment, to purchase supplies and to incur such expenses as are necessary to carry out the duties imposed upon him.
12. To approve requests for appropriations and receive and expend moneys appropriated by the General Assembly of Virginia, to receive other moneys as they become available to it and expend the same in order to carry out the duties imposed upon it.
13. To require and ensure that each public defender office collects and maintains caseload data and fields in a case management database on an annual basis.
14. To report annually on or before October 1 to the Virginia State Crime Commission, the House and Senate Committees for Courts of Justice, the House Committee on Appropriations, and the Senate Committee on Finance on the state of indigent criminal defense in the Commonwealth, including Virginia’s ranking amongst the 50 states in terms of pay allowed for court-appointed counsel appointed pursuant to § 19.2-159 or subdivision C 2 of § 16.1-266.
B. The Commission shall adopt rules and procedures for the conduct of its business. The Commission may delegate to the executive director or, in the absence of the executive director, the deputy executive director, such powers and duties conferred upon the Commission as it deems appropriate, including powers and duties involving the exercise of discretion. The Commission shall ensure that the executive director complies with all Commission and statutory directives. Such rules and procedures may include the establishment of committees and the delegation of authority to the committees. The Commission shall review and confirm by a vote of the Commission its rules and procedures and any delegation of authority to the executive director at least every three years.
C. The executive director shall, with the approval of the Commission, fix the compensation of each public defender and all other personnel in each public defender office. The executive director shall also exercise and perform such other powers and duties as may be lawfully delegated to him and such powers and duties as may be conferred or imposed upon him by law.
2004, cc. 884, 921; 2005, c. 230; 2006, cc. 429, 501; 2007, c. 371; 2008, cc. 536, 815; 2010, c. 314.
If you’re reading this for anything important, you should double-check its accuracy—read § 19.2-163.01 on the official Code of Virginia website.
. . . of that office's investigator. See Code § 19.2-163.01(A)(10) (granting the Virginia Indigent . . .
. . . standards are legislatively mandated by Code § 19.2-163.01(A)(4) (distinguishing . . .


text:
G. Warren Bleeker is a Partner in Lewis Roca Rothgerber Christie’s Intellectual Property practice group. Warren focuses on patent, copyright, trademark, trade secret and unfair competition matters. He represents clients enforcing their intellectual property rights and clients accused of infringing upon the intellectual property rights of others. He has extensive litigation experience in both federal and state courts and before the Trademark Trial and Appeal Board.
Warren has counseled and represented numerous Fortune 500 clients, mid- and small-size corporations and individuals in areas of commerce including industrial manufacturing, toys, electronics, cutlery design, oil and gas, clothing and textiles, handbag manufacturing and distribution, photography and photography accessories, food preparation, restaurant, and the music and entertainment industries.
Obtained consent judgment and permanent injunction as to eight counts of copyright infringement and damages of $120,000 on behalf of large knife distributor against its competitor following favorable summary judgment ruling. Master Cutlery, Inc. v. Pacific Solution Marketing, Inc., Case No. CV 13-9096 JAK (PLAx) (C.D. Cal. 2015).
Defended a Paso Robles-based winery against claims of copyright infringement by uncovering decades-old golf tournament programs proving that key images were not copyrightable and by asserting that registration at issue was invalid for failing to comply with regulations for group works; prior to summary judgment briefing on these issues the case settled and the claims were dismissed with prejudice. Veris Management Co. d/b/a Jankris Vineyards v. Jules Alexander, Case No. CV 11-1962 VBF (JEMx) (C.D. Cal. 2012).
Defended well-known toy manufacturer Wham-O against charges of copyright infringement and trade dress infringement concerning the manufacture and sale of kite products; negotiated a successful settlement of the matter; following settlement, the claims were dismissed with prejudice. Brainstormproducts, LLC v. Wham-O, Inc. and Wham-O Marketing, Inc., Case No. 13-CV-1178 WQH (BLMx) (S.D. Cal. 2013).
Obtained numerous judgments and negotiated successful settlements on behalf of membership association of composers, songwriters, lyricists, and music publishers for copyright infringement for unauthorized public performances of protected musical works. Van Halen Music, et al. v. Okefenokee Inc., et al. Case No. 2:02-cv-02774 SVW (SH) (C.D. Cal. 2002); Warner Bros Inc., et al. v. Robert L Antonini, Case No. 2:03-cv-04271 FMC (JWJx) (C.D. Cal. 2004); Controversy Music, et al. v. Prado Enterprises LLC, et al. Case No. 2:05-cv-02720 MMM (PJWx) (C.D., Cal. 2005); LA Posse Music, et al. v. Bene Benwikere, Case No. 2:05-cv-06858 RGK (QWJx) (C.D. Cal. 2006); Center City Music, et al. v. Frank T. Brinias, Case No. 5:02-cv-00587 RT (SGLx) (C.D. Cal. 2003); Quartet Music Inc., et al. v. Pharaoh’s Lost Kingdom Inc., et al. Case No. 5:05-cv-00112 VAP (SGLx) (C.D. Cal. 2005); Jobete Music Co. Inc., et al. v. WFO Entertainment Group, et al. Case No. 8:03-cv-00062 GLT (MLGx) (C.D. Cal. 2003).
Negotiated successful settlement on behalf of Defendant clothing retailers, designers and manufacturers accused of copyright infringement after uncovering evidence that the Defendants had superior rights to the copyrighted design and therefore were entitled to copyright damages from the Plaintiff. Unicolors, Inc., et al. v. J.C. Penney Corporation, Inc., et al. Case No. CV 07-2584 JFW (RZx) (C.D. Cal. 2008).
Negotiated successful settlements on behalf of Swiss air filter manufacturer against third parties selling low quality, unauthorized replacement filters. IQAir North America, Inc., et al. v. Crucial Vacuum, LLC, et al. CV 14-9631 JFW (RZx) (C.D. Cal. 2015); IQAir North America, Inc. et al. v. Roome Technologies, Inc. Case No. CV 14-7684 MMM (PJWx) (C.D. Cal. 2015).
Defended claim of trademark infringement regarding the mark HOLLYSCOOP; successfully resolved the matter by uncovering evidence that the Plaintiff lost ownership of her claimed trademark registration prior to filing suit. Wendy Wheaton v. Rev New Media, Inc., Case No. CV 13-6226 RGK (SSx) (C.D. Cal. 2014).
Obtained temporary restraining order and permanent injunction against Defendant solar panel manufacturer accused of trademark infringement and unfair competition. Suntech Power Holdings Co., Ltd., et al. v. Shenzhen Xintian Solar Technology Co., Ltd. Case No. 08-CV 1582 H NLS (S.D. Cal. 2008).
Defended large knife distributor against claim of design patent infringement; case was dismissed with prejudice following favorable summary judgment ruling as to non-infringement. Pacific Solution Marketing, Inc. v. Master Cutlery, Inc., Case No. CV 13-1469 JAK (PLAx) (C.D. Cal. 2015).
Negotiated successful settlement on behalf of Defendant manufacturer of plastic card products accused of patent infringement after uncovering evidence that formed the basis of a claim of inequitable conduct against the inventor of the patents asserted by the Plaintiff. Advanced Card Technologies LLC v. Harvard Label, Inc., et al. Case No. CIV 07-1269 D (W.D. Okla. 2010).
Obtained summary judgment of non-infringement as to all 44 asserted patent claims on the grounds that the accused blanket product was knit, not woven; obtained an award of attorneys’ fees against Plaintiff and its attorneys on grounds that it was an exceptional case and counsel for Plaintiff unreasonably and vexatiously multiplied the proceedings. International Intellectual Management Corporation v. Lee Yunn Enterprises, Inc. (U.S.A.), Case No. CV 08-7587 R (JWJx) (C. D. Cal. 2009).
Negotiated successful settlement on behalf of manufacturer of wireless controller used with Nintendo Wii gaming system accused of patent and trademark infringement. Nintendo of America, Inc. v. NYKO Technologies, Inc., Case No. 08-cv-907 (W.D. Wash. 2009).
Obtained consent judgment and permanent injunction, requiring $1 million payment, on behalf of electric motor manufacturer, against a former employee and consultant who used confidential information without permission, following successful summary judgment motions. Reuland Electric Co. v. Burgi Engineers, LLC, Case No. CV 13-9499 SJO (JCx) (C.D. Cal. 2015).
Obtained a complete defense verdict for Defendant multi-national company following a five day bench trial and extensive post trial briefing involving claims of trade secret misappropriation and breach of contract relating to a technology sharing agreement for the manufacture of fiberglass reinforced pipe; Plaintiffs sought at least $10 million in damages; the Court ruled in favor of Defendant on all counts and Plaintiffs did not appeal the judgment. Petroplast Petrofisa Plasticos et al. v. Ameron International Corp., Case No. 4304-VCP, Delaware Court of Chancery (July 31, 2012).
Negotiated successful settlement on behalf of Plaintiff inventor of unique food preparation technology against former employees accused of extensive trade secret misappropriation and unfair competition. Del Real I.LC v. Mi Quinta Foods, et al., Case No. RIC 454116 (Riverside Sup. Ct. 2008).

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