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August 8, 2008 4:10 PM

Bratz Maker Faults Judge in Mistrial Appeal

Posted by Drew Combs

Lawyers for the Bratz doll maker MGA Entertainment, Inc. filed an appeal on Thursday, once again seeking a mistrial in the copyright infringement trial pitting MGA against fellow toy company Mattel, Inc.

The mistrial appeal--which comes in the form of a petition for a writ of mandamus--was filed by MGA's appellate counsel at Howard Rice Nemerovski Canady Falk & Rabkin. It comes after Riverside federal district court judge Stephen Larson on Monday denied MGA's motion for a mistrial, which was based on ethnically charged remarks by one juror concerning MGA's Iranian-born president. The mistrial motion came as the trial entered the damages phase, which could see MGA take a $1 billion hit.

"MGA and [CEO Isaac Larian] were entitled to have their case heard by a panel of impartial jurors," says Doug Winthrop, an attorney at Howard Rice, in remarks that echo the arguments made by MGA lead trial counsel Thomas Nolan of Skadden, Arps, Slate, Meagher & Flom at Monday's hearing before Judge Larson. "They didn't get that."

Howard Rice was brought into the case about two weeks ago to head up MGA's appellate effort. The firm had a pre-existing relationship with the toy company, having represented it in some licensing disputes.

MGA's push for a mistrial follows the revelation that during deliberations in the first phase of the trial, one juror said her husband, a lawyer, described his Iranian clients as "stubborn," "rude," "stingy," "thieves," who have "stolen other person's ideas."

Judge Larson called the remarks "grossly inappropriate" and ultimately removed the juror. But he refused to throw out the jury's finding that the MGA designer who created the Bratz doll had conceived of the doll while he was on Mattel's payroll. Larson described the biased comments as "extraneous information" that did not have any effect on the jury and did not impact their verdict. He ordered the damages phase of the trial to go forward.

In the appeal, MGA's Howard Rice lawyers say Larson's decision not to grant a mistrial is a "fundamental legal error" because the company and Larian were entitled to a verdict from a completely unbiased jury but instead "received a verdict from nine impartial jurors and a patently biased one." The appeal also states that MGA and Larian "now face subsequent phases of a complex trial that are predicated on a jury verdict...tainted by racial animus."

Additionally, the petition argues that the immediate intervention of the U.S Ninth Circuit Court of Appeals is warranted because MGA faces significant harm, such as limited access to credit as a result of the initial verdict.

Former Mattel toy designer Carter Bryant conceived of the Bratz doll line. In October 2001 he moved to MGA, which manufactured the hugely successful dolls, whose sales have surpassed those of Mattel's Barbie in some markets.

In 2004, Mattel filed suit against Bryant, alleging that he conceived of the dolls while under contract with Mattel. MGA sued Mattel, claiming that its rival copied the Bratz dolls in some of its newer dolls lines. Mattel then countersued, alleging ownership of the Bratz doll line based on its contract with Bryant.

Bryant and Mattel settled on the eve of trial, but he asserted at trial that he was inspired to create the dolls during a period in which he was not under contract with Mattel.

Mattel is represented by lawyers at Quinn Emanuel Urquhart Oliver & Hedges. Lead counsel John Quinn says, "We think the trial court's ruling was correct and are working on a response to the appeal."

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