The Art of Presentation: John McCain Goes to Middle School

Talking Points Memo raised a good point while watching McCain's nomination speech on television.

Why was he giving it in front of a green screen?

McCain Greenscreen

 

As the camera panned out, the whole backdrop was revealed:

 

McCain Backdrop

 

Ah, okay. He's giving his speech in front of... a mansion?

Then TPM's readers solved the mystery: it's a picture of a Middle School in North Hollywood, California.

Why would he use that?

Apparently it's Walter Reed Middle School. Like Walter Reed Army Medical Center.

There are three possibilities:

  • as part of a "small town" theme for the convention, the RNC wanted to showcase the San Fernando Valley, a racially diverse section of Los Angeles of particularly high population density;
  • after showing slow-motion video of the World Trade Center attack, the RNC sought to use an almost-Nabokovian depth of irony and subtlety to convey that domestic freedom and prosperity are dependent upon the sacrifice of soldiers in foreign wars; or,
  • some technician searched an image database for "Walter Reed" and used the above without double checking what it represented.

What do you think?

Tags:

How To Trash Your Own Case By Asking Too Many Questions

An interesting aside from Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162 (3d Cir. 2008), a complex business dispute discussed in my prior post.

Here's the deposition testimony given by a Visa corporate representative, on which the Third Circuit relied in reversing summary judgment in favor of the Acquirer:

Q: [by Acquirer's counsel] Is it fair to say that the operating regulations are not intended to benefit a single group of participants, but the Visa payment system as a whole?

Objection. Leading.

A: [by Visa rep] It's fair to say that the core purpose of the operating regulations is to set up the conditions for participation in the system, to set up rules and standards that apply to that ultimately for the benefit of the Visa payment system, the members that participate in it and other stakeholders such as cardholders, merchants and others who may participate in the system as well. (emphasis added).

Q: They may have some incidental benefit; is that correct?

Objection

Leading, and calls for a legal conclusion.

A: The bylaws and operating regulations, by their terms, apply only to members. So to the extent you mean they might have benefits beyond the rules that apply to other stakeholders, that's correct. They're not directly parties to these rules. (emphasis added)

Stop for one second and consider: these questions were asked by the Acquirer's counsel. They were blatantly leading ("is it fair to say") and tried to get legal conclusions ("incidental benefit"), resulting in the Visa corporate representative rejecting their argument, providing fodder for the Third Circuit to overturn their summary judgment.

I don't mean to question the tactical decisions of the Acquirer's lawyers. Indeed, given the absence of other deposition excerpts in support of the Issuer's argument, there seems to have been a reasonable basis for the Acquirer's lawyer to think the Visa corporate representative was going to give them exactly what they wanted to hear.

But the representative did not, and instead gave the appellate court grounds to overturn summary judgment when, as mentioned above, it appears there was little other testimony favorable to the Issuer.

Just something to keep in mind: as tempting as the coup de grace may be, it rarely works as planned.

Who Is An Intended Beneficiary Under Pennsylvania Law?

Courtesy of the complicated mess that is Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162 (3d Cir. 2008), in which credit card "Issuers" sued credit card "Acquirers" and "Merchants" (Acquirers are the companies that process transactions for the Merchants) after a bunch of credit card numbers were stolen from the Merchant.

The big issue is: are Issuers intended beneficiaries of the Merchant and Acquirer's agreement with the Visa network, which includes a number of anti-fraud regulations that the Merchant and Acquirer allegedly didn't follow?

Historically, under Pennsylvania law, "in order for a third party beneficiary to have standing to recover on a contract, both contracting parties must have expressed an intention that the third-party be a beneficiary, and that intention must have affirmatively appeared in the contract itself." Scarpitti v. Weborg, 530 Pa. 366, 609 A.2d 147, 149 (Pa. 1992) (citation omitted). Sovereign appropriately concedes that it is not an express third-party beneficiary of the Visa-Fifth Third Member Agreement. However, in Scarpitti, the Pennsylvania Supreme Court adopted § 302 of the Restatement (Second) of Contracts. Id. That provision allows an "intended beneficiary" to recover for breach of contract even though the actual parties to the contract did not express an intent to benefit the third party. Section 302 provides as follows:

Intended and Incidental Beneficiaries

 (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intentions of the parties and either

(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Got all that? Summary judgment reversed, based upon a memorandum and deposition testimony indicating that the regulations were for the benefit of all the members, as discussed in the next post.

Update: for some reason, movable type ate most of my post, which has been corrected.

Fool Us Twice, Part II: The Lady Doth Protest Too Much, Methinks.

The Sarah Palin bait-and-switch, which I first blogged about here, continues.

First with sexism charges, just like with Miers:

Apparently realizing that the Sarah Palin rollout is going badly, the GOP is holding a series of press conferences here in St. Paul to push back.

Underway now is a presser with female GOP officials talking about the purported "smear campaign" against Palin. "The Republican Party will not stand by while Sarah Palin is subjected to sexist attacks," says McCain surrogate Carly Fiorina, comparing it to sexist comments endured by Hillary Clinton during the primary.

Then with outlandish claims of victimization by unnamed sources:

In an extraordinary and emotional interview, Steve Schmidt said his campaign feels "under siege" by wave after wave of news inquiries that have questioned whether Palin is really the mother of a 4-month-old baby, whether her amniotic fluid had been tested and whether she would submit to a DNA test to establish the child's parentage.

Arguing that the media queries are being fueled by "every rumor and smear" posted on left-wing Web sites, Schmidt said mainstream journalists are giving "closer scrutiny" to McCain's little-known running mate than to Democratic presidential nominee Barack Obama.

"News inquiries" by "mainstream journalists?" Is Schmidt too polite to name names? Too forgiving to point the finger at supposedly professional journalists following "every rumor and smear?" This quiet piety from the same campaign that canceled an interview with Larry King in retaliation for aggressive questioning?

All lies. No "mainstream journalist" asked him whether the amniotic fluid was tested.

Remember, no one knew Palin's daughter was pregnant. The campaign raised that issue specifically to create controversy. After requesting "privacy," both the daughter and the father of the child, whom the campaign named, will appear on stage at the convention.

Candidates do not seek privacy by disclosing their daughter's sex life and then parading her and her fiance on national television. The lady doth protest too much, methinks.

 

Pennsylvania Medical Malpractice After An Car Accident: From Whom Do You Recover?

From the Middle District of Pennsylvania:

In Pennsylvania, an individual who sustains injury in a motor vehicle collision that is aggravated by subsequent medical negligence may recover damages for both injuries either from the driver exclusively or from the driver and the negligent medical practitioner in tandem. See RESTATEMENT (SECOND) TORTS § 457 (s1965) [hereinafter "RESTATEMENT"]; Smialek v. Chrysler Motors Corp., 290 Pa. Super. 496, 434 A.2d 1253, 1258 (Pa. Super. Ct. 1981) (stating that "the original tortfeasor[ in an automobile collision] is . . . fully responsible . . . for the negligent manner in which a physician or surgeon treats the case"). The plaintiff may recover all damages solely from the negligent driver because subsequent faulty treatment is deemed to be a foreseeable consequence of the automobile accidence. See RESTATEMENT § 457 cmt. a ("[D]amages assessable against [a negligent driver] include not only the injury originally caused by the [driver's] negligence but also the harm resulting from the manner in which the medical, surgical, or hospital services are rendered"); Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516, 517 (Pa. 1988).

However, if the plaintiff sues both the driver and the physician, liability should be allocated according to each tortfeasor's separate negligence. 1 See Frazier v. Harley Davidson Motor Co., 109 F.R.D. 293, 295-96 (W.D. Pa. 1985) (stating that negligent motorists and subsequently negligent physicians commit separately identifiable acts of negligent); Smith v. Pulcinella, 440 Pa. Super. 525, 656 A.2d 494, 497 (Pa. Super Ct. 1995); Harka v. Nabati, 337 Pa. Super. 617, 487 A.2d 432, 434 (Pa. Super Ct. 1985) (quoting Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381, 383 (Pa. Super. Ct. 1982)) ("[T]o the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly."). The court determines as a matter of law whether injuries are capable of apportionment; however, the jury determines the value of the claim against each defendant. Voyles, 441 A.2d at 383.

Trout v. Milton S. Hershey Med. Ctr., 2008 U.S. Dist. LEXIS 65553 (emphasis added).

If the medical malpractice causes a catastrophic injury, there are very few situations in which you would want to proceed only against the car driver, not least because they likely have far less available insurance than the medical provider. Indeed, in this case the plaintiff's leg became necrotic and had to be amputated allegedly due to medical malpractice, an injury that, when combined with the accident itself, likely exceeds the insurance coverage of most drivers.



Then again, if neither the auto accident nor the medical malpractice was catastrophic, and the damages are within the coverage limits, the action can be substantially simplified by proceeding only against the car driver. You will still need expert medical testimony, but you might not get nearly the same fight as you would going against the medical provider directly. You might also have more settlement leverage against the car driver's insurance company because they run the risk of eating all of the damages at trial.


Third Circuit: Arbitration Clause Enforceable Even Where Party Ignorant of the Language It Is In

Morales v. Sun Constructors, Inc., 2008 U.S. App. LEXIS 18513 (3d Cir., August 28, 2008) reiterated an important point for non-lawyers to know:

The Supreme Court has observed: “It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained.Upton v. Tribilcock, 91 U.S. 45, 50, 23 L. Ed. 203 (1875). The “integrity of contracts demands” that this principle “be rigidly enforced by the courts.” 1 Richard A. Lord, Williston on Contracts § 4:19 (4th ed. 2008). As one noted treatise explains:

According to the objective theory of contract formation, what is essential is not assent, but rather what the person to whom a manifestation is made is justified as regarding as assent. Thus, if an offeree, in ignorance of the terms of an offer, so acts or expresses itself as to justify the other party in inferring assent, and this action or expression was of such a character that a reasonable person in the position of the offeree should have known it was calculated to lead the offeror to believe that the offer had been accepted, a contract will be formed in spite of the offeree's ignorance of the terms of the offer. The most common illustration of this principle is the situation when one who is ignorant of the language in which a document is written, or who is illiterate, executes a writing proposed as a contract under a mistake as to its contents. Such a person is bound, in the absence of fraud, if the person does not require the document to be read to him … .

Id. See New York Life Ins. Co. v. Kwetkauskas, 63 F.2d 890, 891 (3d Cir. 1933) (recognizing that “[i]t is true that an illiterate man may bind himself by contract by negligently failing to learn the contents of an instrument which he has executed”); Hoshaw v. Cosgriff, 247 F. 22, 26 (8th Cir. 1917) (holding that every contracting party has the duty “to learn and know the contents of a contract before he signs and delivers it”). Arbitration agreements in the employment context are not exempt from this principle. ...

Morales, in essence, requests that this Court create an exception to the objective theory of contract formation where a party is ignorant of the language in which a contract is written. We decline to do so. In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable. ...

Morales is not claiming fraud, see App. 78, 95, and he is not alleging that Sun misrepresented the contents of the Agreement to him. Cf. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 538 (5th Cir. 2003) (recognizing that “[i]t is a widely accepted principle of contracts that one who signs or accepts a written instrument will normally be bound in accordance with its written terms,” and that a defendant,  “illiterate or not, would be bound by the terms of the arbitration agreements,” but remanding for adjudication of a claim of fraud in the inducement); Pimpinello v. Swift & Co., 253 N.Y. 159, 163, 170 N.E. 530 (1930) (stating that “[i]f the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him by the other party … unless the signer be negligent, the writing is void”) (emphasis added). Fn1 Further, there is no evidence that Sun tried to hide the arbitration clause; indeed, it comprised about one-half of the Agreement.

Here's Footnote 1:

The dissent analogizes this case to American Heritage Life Insurance Company v. Lang. Unlike Morales, however, the illiterate plaintiff in Lang asked the defendant's agent to explain each of the documents Lang signed, and he submitted evidence that the agent deliberately mislead him as to what he was signing by claiming that the papers were loan or insurance documents rather than an arbitration agreement.

It bears repeating: by and large, only explicit fraud will relieve someone from a material contract condition. If you're going to take someone's word for something, make sure you actually get their word. Silence usually won't work for fraud.

Free Mind Mapping Programs

A nice list of 11 free mind mapping applications was just posted at Lifehack.org.

If you've never heard of the concept, you can check out this thorough introduction by Dennis Kennedy.

Personally, I find that if I'm dealing with a lot of issues at once -- as is frequently the case in business litigation, multi-defendant personal injury cases, or cases involving a lot of documents -- there are few better ways to get everything in your brain down onto paper in a coherent form.

There are only really two secrets: 

  1. Mind mapping requires too much of an investment of time to use all the time, so save it for when you start having trouble juggling issues in your head; and,
  2. Don't worry about making it perfect. A perfect mindmap is a bad thing, as it usually means you've missed something.

The end result should be coherent enough to help you organize your thoughts but flexible enough that it doesn't hinder those same thoughts by forcing a rigid structure on them.

The first time you make it work you'll wonder how you ever lived without it.

Fool Us Twice: Sarah Palin Is Not The Candidate

In my line of work, I deal with a lot of liars. Some professional, some amateurs. Some lie out of necessity, like the defendant who simply can't admit they were wrong, and some lie as a matter of course, like the lawyers with whom everything must be in writing. There's one thing they all have in common:

If you see a dirty trick work, you will see it used again.

And so it has come to pass that the political machine Karl Rove built has found itself in a tight spot and nominated a thinly-qualified women with no national reputation to one of the most important positions in government, a nomination that, for the moment, has blunted surging liberal momentum, shored up conservative base support, and changed the terms of a debate the Rove machine was losing.

Last time, it was Harriet Miers, who turned the Supreme Court nomination process on its head; before her, Bush was a below-50%-approval President with a Senate margin too thin to overcome a filibuster who was being pressured to replace the first woman on the Supreme Court, a moderate Republican, with another moderate, preferrably a woman. The ranking Democrat and Republican on the Judiciary Committee both recommended the nominee be pulled from outside the federal appellate courts, which had been packed for decades by conservative judicial activists.

She had no national reputation, no experience as a judge, and failed to complete the basic Judiciary Committee questionaire. Once nominated, there was never any serious effort to get her confirmed by the Senate. But by the end of the fiasco, the gender discussion had been completely reversed, with Laura Bush chiming in that Miers was the victim of sexism. Just as importantly, she was an evangelical who was expressly promised to the right wing to be for overturning Roe v. Wade, receiving prompt support from right-wing kingmakers like Dobson. Most importantly, by the time her nomination was withdrawn, the debate had moved from gender and politics to a single issue: experience.

Completely contrary to the initial requirements of all the power players -- including Specter, Leahy, and Clinton -- Miers was replaced by Samuel Alito, an appellate judge with a proven track record of conservative judicial activism considered unacceptable by most Democrats in the Senate. It didn't matter: a Democratic filibuster was thwarted by the Gang of 14 (including John McCain), and Alito was confirmed with a margin below that needed to thwart the filibuster.

It was, in retrospect, an impressive play: with essentially no political capital available, Karl Rove had replaced a moderate female justice with a right-wing activist male justice by changing the debate to remove the essential terms (female moderate from outside the federal appellate courts).

And so they came to mid-August 2008, when Obama had locked up the nomination, Hillary Clinton had started vigorously promoting Democratic unity, and McCain had become terminally locked 5-7 points behind and slipping, despite endless attacks on everything from Obama's religion to his patriotism. In a time when the vast majority of Americans think the country is on the wrong track, McCain's policies are effectively the same as those of the least-liked President since polling began in 1938 and his primary position is the indefinite extension of an deeply unpopular war.

To top everything off, McCain's party is slowly splintering between business-minded, pro-choice 'Rockefeller' Republicans wary of poor economic stewardship and social-activist, anti-choice evangelicals who deeply distrust McCain. A rightwing VP would shore up the base, but would probably lose just as many centrist and independent voters; a moderate VP would shore up McCain's lingering reputation as an independent, but completely alienate a base tired of years of more promises than action. 'The center cannot hold.'

There's ample conservative and liberal analysis out there that the Palin pick was "bold" or a "risk" or a "gambit" or an "act of desperation," depending on your affiliation. But one question has been unanswered: why would McCain disregard the advice of Karl Rove and pick, without any vetting, a candidate with extensive baggage due to be revealed just before the election?

Because McCain's bold or reckless or mavericky? No.

McCain fired Weaver, his longtime strategist, and replaced him with Schmidt, a Rove protege, for a reason: to have access to every underhanded play in the book, to do anything to win. The Rove machine was hired to think big.

And here's the big answer: Palin, like Harriet Miers, has a limited purpose. She's not the real candidate. She's there to change the terms of the debate.

Like with Miers, very few people have come out in favor of her as an actual Vice President (here are supportive conservatives nonetheless calling her "totally unqualified"). She never expressed any real interest in governance or foreign policy until a week ago. But that's not what she's there to do.

Like with Miers, the debate has changed. McCain blunted the media momentum of a speech considered among the finest of any convention, watched by 15% of America, more people than the Olympic opening or the American Idol finale. He shored up support with a conservative base that, for whatever reason, hates and distrusts him (bringing Dobson back in the fold and $7 million overnight in the process), turned the "historic campaign" theme on its head, and shined a new light on Obama's biggest weakness, that he's the most inexperienced Presidential candidate since Lincoln (which, frankly, shows how "experience" isn't everything it's cracked up to be).

But, like Miers, few think she could prevail in the end, and polls have already found her a potential liability. The combination of being inexperienced, unknown, female, and holding extreme political positions looks like it's simply too much for people to swallow. And that's okay:

She'll be gone before the election, replaced by someone with a national reputation, with more experience, who will immediately receive favorable media treatment.

It's too early to speculate on who that might be -- the decision will be electoral, based on who best improves McCain's chances at the time. Keep in mind, base voters tend to be fired up in advance, while swing voters leave their decision until the time of the election. Now that the base has been reassured and the opposition ensnared with the bait, I see two possibilities just before the election:

  • a switch to a political moderate who, on position alone, can pull moderates and independents in swing states;
  • a switch to a well-liked conservative who will have the benefit of entering the election with minimal time for either the opposition to mount an attack or the media to scrutinize.

Tom Ridge (pro-choice, Pennsylvania) would fit the former, Mike Huckabee (evangelical, well-liked) the latter. Given the context, and the crowd we're dealing with, I'm leaning towards the latter.

The best defense in these situations is a strong offense. To me, it seems the Obama campaign should have two goals now: 

  • Creating a reigning storyline now that McCain's choice of Palin reflects the clearest exercise of his judgment to date. If she falls because he was too rash or didn't do enough investigation, he should take the blame.
  • Making the campaign about the issues and about John McCain. McCain has been blatantly "lying" about Obama's policies and about Palin's past positions. It's an easy opportunity to prevent McCain from touting his old "straight talk" reputation, weakening his support among swing voters.

Will their gambit work? I don't know. I do know that, if it does, it'll be shame on us.

Barbie v. Bratz: What Went Wrong for Mattel and Right for MGA

As mentioned yesterday, a jury awarded Mattel $100 million* for the Bratz infringement, one-twentieth of the $2 billion requested in their closing argument, just over three times the $30 million suggested by MGA (and which may be reduced to $40 million, discussed below).

* see end of post, damages are apparently only $20 million due to duplication on verdict sheet

What happened? Mattel misjudged the jury's outrage and overshot.

Here's the jury's breakdown:

The jury awarded damages of $20 million against MGA and $10 million against [MGA CEO] Larian in each of three causes of action, intentional interference with contractual relations, aiding and abetting breach of fiduciary duty, and aiding and abetting breach of the duty of loyalty.

They also found that MGA owed Mattel $6 million for copyright infringement, while Larian owed $3 million in distributions he'd received from Bratz-related sales, and MGA Hong Kong owed $1 million.

Here is what each side claimed:

Quinn said MGA owed Mattel for the entire Bratz empire, amounting to at least $1 billion in Bratz profits and interest. Quinn argued that Larian, too, personally gained nearly $800 million in stock value and distributions flowing from the success of the dolls.

...

MGA attorneys countered that the jury should award Mattel as little as $30 million because the company had built the doll line's value with smart additions, branding and packaging.

(emphasis added) And here's a critical fact:

The four original dolls made just $4 million in profit their first year and comprised only 2.5% of MGA's entire Bratz revenue, said Raoul Kennedy, one of MGA's attorneys.

In the past seven years, MGA has built the popular brand to include more than 40 characters and expanded it with spin-offs such as Bratz Babyz, Bratz Petz, Bratz Boyz and items like helmets, backpacks and bedsheets.

(emphasis added) Recall that excellent Learned Hand quote unearthed by the Eleventh Circuit (and discussed in my post on the Watchmen lawsuit:

It must be obvious to every one familiar with equitable principles that it is inequitable for the owner of a copyright, with full notice of an intended infringement, to stand inactive while the proposed infringer spends large sums of money in its exploitation, and to intervene only when his speculation has proved a success. Delay under such circumstances allows the owner to speculate without risk with the other's money; he cannot possibly lose, and he may win.

I don't believe the Bratz trial addressed laches and the suit was somewhat timely filed from what I can tell, perhaps two years after the infringement was discovered. I doubt any of the jurors were familiar with Learned Hand, but the core idea is well-accepted in America: expanding upon others' ideas is a legitimate enterprize.

The jury essentially found that MGA was entitled to 95% of the Bratz empire's profits, despite accepting that:

  • the original idea was wrongfully lifted from Mattel;
  • MGA willfully interfered with Mattel's business;
  • MGA aided and abetting in breaches of fiduciary duties;
  • MGA aided and abetting in breaches of the duty of loyalty duties.

Despite that, the jury accepted MGA's proposed $30 million and then, perhaps as a deliberations compromise or perhaps in confusion, awarded it thrice. That alone presents a big problem for Mattel, as it's possible the judge will strike two of the three $30 million awards as duplicative, resulting in a $40 million final verdict.

After, say, a 40% gross contingency fee (which is probably on the high end, given the massive damages both Mattel and Quinn thought they could get, but which is common in commercial and business litigation) and costs, that would leave Mattel with about $20-24 million, or less than 5% of their annual profit. Yikes.

For MGA's greedy, unjustified, wrongful conduct, the jury awarded $0 in punitive damages and a fraction of the plaintiff's proposed compensatory damages. What the heck happened?

I'm not in a position to question the tactical decisions of Mattel's counsel, so I won't. With the benefit of hindsight, though, I believe Mattel dramatically overshot. It's indisputable that MGA did virtually all of the work and invested virtually all of the funds that made Bratz the success it is today. They didn't start the fire, but they gathered all the wood, they sheltered it from the rain, and they used it to kindle others. Yet, Mattel claimed it was entitled to everything, that for MGA's risk it should be granted all the reward.

There were three elements missing, at least two of which are essential for a large verdict:

  1. fairness,
  2. the absence of a windfall, and
  3. outrage.

First, jurors try very hard to be fair. What Mattel proposed was not fair. Sure, Mattel may be entitled to it under the law, and it was unfair that their design was stolen. But it's just as unfair to all the people at MGA who didn't know they were working with stolen goods, and, indeed, it's unfair to the infringing parties themselves, since it denies their own contribution to the final work.

Second, jurors don't like to give money for nothing. Mattel proposed a windfall. Why should they get all the profits? Mattel did almost nothing to earn those profits, it just had some design sketchs stolen. Big whoop -- for that you get an entire empire that someone else built?

Third, If the jury had been outraged by MGA's conduct, "fairness" would have already been decided in the plaintiff's favor, and the windfall would have mattered less. But they weren't outraged; they thought it was an unjustified way to do business, but obviously not enough to warrant punishment.

And here's where I think Mattel made its biggest mistake: Mattel only asked for a number, while MGA gave them the tools to reach their own decision in a way that was favorable to MGA. How do I know the jury used MGA's tools? Look at the numbers they used, right out of MGA's closing: $30 million, around 2.5% of $1 billion in Bratz profit.

It can't be said enough: in closing arguments, arm your jurors with the arguments they need to prevail over the others in liability and the tools they need to reach your proposed award.

Either way, MGA is breathing a deep sign of relief today. And Mattel is digging deeply through the transcript to find something warranting a retrial.

UPDATEMGA has been pushing heavily in the press that it's apparently undisputed the damages were overlapping, so the final sum really is just $20 million. Which means the jury took Mattel's damages instructions almost verbatim. I have cleaned up slightly (typo) and moved the old discussion of that issue below the fold, to keep around for posterity, and pasted the MGA press release.

Continue Reading...

Jury Awards One-Twentieth of Requested Damages in Mattel v. Bratz

Interesting:

A federal jury in Riverside, Calif., just returned a $100 million verdict for Mattel, according to an early Reuters report, about $1.9 billion less than the company asked for. Quinn Emanuel’s John Quinn, who repped Mattel, asked the jury for $2 billion for stealing the conceptual drawings of the Bratz doll — at least $1 billion in Bratz profit and interest, and another nearly $800 million for the complicity of MGA’s CEO, Isaac Larian.

I say "interesting" because I doubt the $2 billion was pulled out of thin air. If you win liability, and get a real shot at serious damages, you try very hard not to overshoot and have the jury turn on you.

Maybe Quinn didn't follow the "don't kill the defendant" advice in asking for punitive damages, i.e. that juries will rarely award enough to destroy the defendant's business.

I wonder what drove that figure. Compromise on liability? Respect for the underdog, even where underhanded?

From what I know the infringement wasn't a complete and total slam dunk -- Bratz appeared to have substantially improved the design on its own. Maybe that was part of it.

We'll learn more over the next few days.