Plaintiffs Status Update Re Final Pretrial Conference and Request for Court to Specify Issues for Trial

Case 2:11-cv-00584-DDP-PJW Document 151

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Filed 08/24/12 Page 1 of 6 Page ID #:3658

KATTEN MUCHIN ROSENMAN LLP

Zia F. Modabber (SBN 137388) [email protected] Tami Kameda Sims (SBN 245628) [email protected] Sara Karubian (SBN 266219) [email protected] 2029 Century Park East, Suite 2600 Los Angeles, CA 90067-3012 Telephone: 310.788.4400 Facsimile: 310.788.4471

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

Howard Weitzman (SBN 38723) [email protected] Jeremiah T. Reynolds (SBN 223554) [email protected] [email protected] 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: 310.566.9800 Facsimile: 310.566.9850

Attorneys for John Branca and John McClain, Executors of the Estate of Michael J. Jackson, Michael Jackson Company, LLC, MJJ Productions, Inc. and Optimum Productions

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CENTRAL DIVISION

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JOHN BRANCA AND JOHN MCCLAIN, Executors of the Estate of Michael J. Jackson, et al.,

) ) ) ) Plaintiffs, ) vs. ) ) HOWARD MANN, an individual, et al., ) ) Defendants. ) ) ) ) Vintage Associates, LLC, ) ) Counter-Plaintiff, ) vs. )) John Branca, John McClain, Executors of ) ) the Estate of Michael Jackson, ) ) Counter-Defendants.

CASE NO. CV-11-584 DDP (PJWx) [Hon. Dean D. Pregerson] PLAINTIFFS’ STATUS UPDATE RE FINAL PRETRIAL CONFERENCE AND REQUEST FOR COURT TO SPECIFY ISSUES FOR TRIAL

STATUS UPDATE RE FINAL PRETRIAL CONFERENCE AND REQUEST FOR COURT TO SPECIFY ISSUES FOR TRIAL

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Plaintiffs submit the following update regarding the final pretrial conference and hereby request that the Court specify the issues for trial in the pretrial order:

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Summary Judgment Established Liability On All Claims, Leaving

Only Damages For Trial.

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On August 10, 2012, the Court granted Plaintiffs’ motion for partial summary

6 judgment. Among other things, the Court granted summary judgment on liability in 7

favor of Plaintiffs on their copyright claims, false designation of origin claim under

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the Lanham Act, misappropriation of likeness claim, unfair competition claim,

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cybersquatting and cyberpiracy claims. 1

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As a result, Plaintiffs submit that trial

concerns only the measure of damages to be awarded to Plaintiffs.

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On August 20, 2012 the parties submitted: (a) joint jury instructions; and (b)

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disputed jury instructions. instructions.

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[proposed] pretrial order. From those those pretrial submissions, submissions, it became became clear that that the

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parties differ drastically on the scope and issues for trial.

On August August 21, 2012, the the parties submitted a joint

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To clarify and streamline the issues for trial, on August 22, 2012, Plaintiffs

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informed Defendants that for a number of reasons, not the least of which is Plaintiffs’

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perception of the ability to collect on a money judgment, Plaintiffs proposed to

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proceed at trial only on the damages specified in their Expert’s report (between $5-

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$12 million). million). These damages constitute constitute the Expert’s opinion of the fair market value

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of a license license to use the intellectual intellectual property assets assets unlawfully infringed. Plaintiffs

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would also seek their attorneys’ fees under the Copyright Act and Cal. Civ. Code

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Section 3344.1.

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Plaintiffs explained that by not pursuing other available damages including (1)

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punitive damages, (2) statutory damages under the Lanham Act, Copyright Act or Cal.

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Civ. Code Section 3344.1 or (3) the disgorgement of Defendants’ profits, the trial

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would likely likely involve involve only one witness, witness, Plaintiffs’ Expert.

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expert.2) Plaintiffs’ proposal and explanation was sent in an email, a true copy of

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which is attached hereto Exhibit A.

(Defendants have have no

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Unfortunately, Defendants wrote back stating, among other things, that they

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intended to present an expansive amount of evidence involving a host of other issues,

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none of which relates to the limited damages proposed to be offered at trial by

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Plaintiffs. This includes a broad range of evidence on the irrelevant issue issue of their

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supposed “innocent” state of mind in connection with all their infringing activity.

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They also raised a host of other extraneous issues, all of which are included in their

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email to Plaintiffs’ counsel on August 23, 2012, a copy of which is attached hereto as

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Exhibit B.

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Defendants further intend, as their proposed (but disputed) jury instructions

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make clear, to raise additional defenses to the underlying merits that were never raised

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in opposition to Plaintiffs’ motion for summary summary judgment, such such as fair use. Moreover,

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Defendants identify 29 potential witnesses on their witness list, all of whom they

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propose to call during what they claim will be a three day trial.

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To avoid inefficiency in both preparation for and presentation of irrelevant

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issues, Plaintiffs ask the Court to define the scope of this trial at the Final Pretrial

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Conference in order to limit trial to: the amount of Plaintiffs’ actual damages, as

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measured by the fair market value of Defendants’ wrongful use of Plaintiffs’

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copyrighted works works and rights rights of publicity, publicity, plus attorneys fees. Further, the Court







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should make clear that (a) Defendants’ intent; and (b) Defendants’ purportedly new

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affirmative defenses, are not issues to be litigated at trial. 3

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2.

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In light of Plaintiffs’ remaining request for damages, evidence presented at trial

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as to Defendants’ state of mind is irrelevant and would waste time and the resources

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of the Court and the parties. The Expert’s proposed fair market value of the infringing

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uses of Plaintiffs’ copyrights and publicity rights is the proper measure of actual

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damages under the Copyright Act and California Civil Code Section 3344.1.

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Polar Bear Productions, Inc. v. Timex Corp ., 384 F.3d 700, 709 (9th Cir. 2004);

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Solano v. Playgirl, Inc. , 292 F.3d 1078, 1090 (9th Cir. 2002). Plaintiffs’ Lanham Act

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claims are based on the same conduct that supports s upports the Section 3344.1 claim – namely

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the unlawful use of Michael Jackson’s name, image and likeness.

Defendants’ Intent Is Irrelevant To Plaintiffs’ Actual Damages.

See

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State of mind, intention and alleged willfulness or absence thereof are irrelevant

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to the measure of actual damages. Faulkner v. Nat’l Geographic Soc ., 576 F. Supp.

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2d 609, 613-14 (S.D.N.Y. 2008) (granting motion in limine to preclude evidence as to

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willfulness in copyright infringement case where plaintiff sought actual damages

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based on a reasonable license fee); Jarvis v. K2 Inc ., 486 F. 3d 526, 533-35, fn. 9 (9th

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Cir. 2007) (“the district court properly based its calculations on objective

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considerations of market value”); Waits, 978 F.2d at 1102-03 (defendants’ state of

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mind not an identified factor in determining fair market value of plaintiff’s publicity

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rights).4 For example, in Jarvis, the Ninth Circuit explained that the plaintiff’s “policy

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argument about deterring infringers by charging them the higher price is . . .

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unsupported by the statutory text or by the case law’s emphasis on fair market value at

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the time of the infringement. Making the plaintiff whole is plainly different from






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punishing the infringer by charging the highest possible rate for the infringement.”

2 Jarvis, 486 F. 3d at 535. 3

Under the circumstances of this case, a trial on Defendants’ state of mind is not

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only irrelevant, but will pointlessly waste the resources of the Court and the parties,

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and result in an extended extended trial for no practical purpose. purpose. (Candidly, if Plaintiffs Plaintiffs thought

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Defendants had sufficient assets to satisfy the substantial judgment that would be

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sought on these other damages theories, they would proceed.)

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3.

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Wrong.

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Defendants’ Assertion of Entitlement to Affirmative Defenses Is

Defendants claim that they are entitled to raise new affirmative defenses at trial.

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However, Defendants were required to raise any affirmative defenses in opposition to

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Plaintiffs’ motion for summary summary judgment. A “summary judgment judgment on the issue of

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liability encompasses all affirmative defenses and implicitly challenges the non-

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movant to establish a basis for finding that the defenses are both applicable and

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supported by the sufficient facts.” See Pantry, Inc. v. Stop-N-Go Foods, Inc ., 796 F.

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Supp. 1164, 1167 1167 (S.D. Ind. 1992). Consequently, “the failure failure to raise an affirmative

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defense in opposition to a motion for summary judgment constitutes an abandonment

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of the defense.” United Mine Workers of Am. 1974 Pension v. Pittston Co ., 984 F.2d

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469, 478 (D.C. Cir. 1993); United States v. Mottolo , 26 F.3d 261, 263 (1st Cir. 1994)

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(“At summary judgment on the issue of liability, unproffered affirmative defenses to

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liability normally are deemed abandoned.”).

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Accordingly, Defendants are precluded from raising at trial, purportedly “new”

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affirmative defenses, which they did not raise in opposition to Plaintiffs’ motion for

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summary judgment or, in some instances, in their responsive pleadings. See Enlow v.

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Salem-Keizer Yellow Cab Co., Inc ., 389 F.3d 802, 819 (9th Cir. 2004) (“Failure to

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plead an affirmative defense therefore results in a waiver of that defense.”).

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Dated: August 24, 2012

KATTEN MUCHIN ROSENMAN LLP

8 By /s/ Zia F. Modabber Zia F. Modabber Attorneys for John Branca and John McClain, Executors of the Estate of Michael J. Jackson, Michael Jackson Company, LLC, MJJ Productions, Inc. and Optimum Productions

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Dated: August 24, 2012

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

Weitzman By /s/ Howard Weitzman Howard Weitzman Attorneys for John Branca and John McClain, Executors of the Estate of Michael J. Jackson, Michael Jackson Company, LLC, MJJ Productions, Inc. and Optimum Productions







Case 2:11-cv-00584-DDP-PJW Document 151-1 #:3664

Filed 08/24/12 Page 1 of 2 Page ID

EXHIBIT A













EXHIBIT B







Plaintiffs Status Update Re Final Pretrial Conference and Request for Court to Specify Issues for Trial

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