September 5, 2008 10:52 AM

THE AM LAW LITIGATION DAILY: SEPTEMBER 5, 2008

Posted by Dimitra Kessenides

 

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LABOR & EMPLOYMENT
Philly Judge Affirms $187 Million Class Action Damages Award Against Wal-Mart

It's now official: Wal-Mart owes a class of 125,000 Pennsylvania employees $187.6 million for skimping on their meal and rest-break pay. On Wednesday common pleas court judge Mark Bernstein issued a 22-page opinion affirming his previous denial of post-trial motions in a pair of state-wide class actions against the Bentonville Behemoth. "[Wal-Mart] claims the jury verdict was against the weight of the evidence," the judge wrote. "[But] the factual testimony over 29 days of trial was dramatic and more than sufficient to prove the class claims presented." The jury awarded damages of $78.5 million in October 2006; the judge tacked on another $62 million in statutory damages a year later.

Class members can't count on the dough yet, though: Bernstein's opinion means that Wal-Mart's appeal to the Pennsylvania Superior Court can now proceed. Lead plaintiffs counsel Michael Donovan of Donovan Searles told us the appeals court will issue a briefing schedule in the next few days. Wal-Mart has three firms working on the appellate case: Susman Godfrey, Wolf Block, and Lamb McErlane.

Wal-Mart has had quite a rollercoaster ride in the scores wage-and-hour class actions filed across the country. The downs: As we've previously reported, the company lost its third class action trial in July, when a state court judge in Minnesota awarded $6.5 million to a class of 56,000 Wal-Mart workers. The company lost its first wage-and-hour trial in California in 2005, when a state court jury in Oakland assessed $172 million in damages for a 200,000-member class. Both the Minnesota and California cases are also on appeal.

But in June Wal-Mart caught a gigantic break: The federal district court judge overseeing a multi-district litigation involving 35 class actions against the company denied class certification in the first four statewide cases he has considered: Alaska, Nevada, South Dakota, and Delaware. (Subscription required.) Judge Philip Pro found that individual issues predominated over class claims. Bloomberg reported on Tuesday that the ruling essentially puts a cap on Wal-Mart's damages in the wage-and-hour litigation. According to the lead plaintiffs counsel in the MDL, Robert Bonsignore of Bonsignore & Brewer, Wal-Mart's defense was led by Brian Duffy of GreenbergTraurig. (We called Wal-Mart spokesperson Daphne Moore for comment but she didn't call back.)

The difference between the class actions proceeding in state court and those in the multi-district litigation, according to Bonsignore, is timing. The cases in the MDL were removed from state to federal court after Congress passed the Class Action Fairness Act in 2005. The others were underway before 2005. "The situation is that these cases should be decided by states, but here you have a judge in Nevada making the call," the plaintiffs lawyer told The Litigation Daily. Bonsignore, who also has five pending state class actions against Wal-Mart, said the plaintiffs have appealed Judge Pro's certification denial to the Ninth Circuit.

ENVIRONMENTAL
Surprise! The EPA Wins a Case
Last week week we noted the poor record compiled by the Bush Administration's Environmental Protection Agency in court. Earthjustice attorney Keri Powell, who'd recently won a case against the EPA on behalf of the Sierra Club, whipped up a quick list of 23 environmental cases the agency has lost in the last few years.

This week the EPA turned back the tide. The 11th Circuit Court of Appeals ruled in favor of the agency in a power plant permit case that invoked the Clean Water Act. The Sierra Club and the Coosa River Basin Initiative argued that the law required the EPA to object to Georgia Power Company's permits after the agency had sent the company a violation notice and filed a complaint against it. The appellate judges ruled that the EPA chief, who refused to issue the objections, had not abused his discretion. "A violation notice and civil complaint are merely initial steps in an enforcement action," the panel concluded. "[They] do not, by themselves, inevitably trigger the EPA Administrator's duty to object."

We called Justine Thompson of GreenLaw, one of the lawyers who represented the Sierra Club. She conceded that the loss reversed a trend of courts pushing back against the Bush Administration's EPA, but said it's because the decision "contradicts decisions made by other circuits." Not only that, Thompson told us: The ruling "defies common sense."

                         

IP
Photographer's Heirs Prevail in Dispute over Marilyn Monroe Images
To answer the question of whether Marilyn Monroe's estate owns her right to publicity, it turns out that you have to know where she lived at the time of her death. New York photographer Sam Shaw owned a collection of Monroe photos that included the unforgettable image of her in a billowing white dress as wind blows up through a subway grate. But representatives of Monroe's estate, CMG Worldwide and Marilyn Monroe LLC, said Shaw's heirs couldn't use the images, asserting that they alone own Monroe's right to publicity. On Tuesday, Manhattan federal district court judge Colleen McMahon squelched that argument, ruling that CMG and the Monroe estate have no such rights.

To get the backstory, we talked to the lawyers representing Shaw's heirs--New York IP specialist Christopher Serbagi and Shaw's grandson David Marcus. They told us that the litigation began when Monroe's estate sued the Shaw Family Archives in Indiana in 2005 for illegally exploiting the Monroe images. Serbagi and Marcus had the case moved to New York, then asked Judge McMahon for a declaratory judgment that CMG and Monroe's estate had no right of publicity. The estate, they explained, might have had a good case if Monroe had become a Californian before she died, thanks to a 1984 state law that grants celebrities postmortem publicity rights and a 2007 legislative clarification that made those rights retroactive.

But dead New Yorkers don't get to control their postmortem publicity. Judge McMahon concluded that even though Monroe died in California, she resided in New York. McMahon's ruling follows a similar decision by a Los Angeles federal district court judge, who found in another case involving the Monroe estate and a photographer's heirs that Monroe was a New Yorker when she died.

The next stop for Monroe's estate may be Albany to lobby legislators for a law like the one in California. We called Loeb & Loeb partner Barry Slotnick, who is listed on the docket as counsel to the Monroe estate, but we didn't hear back.

SPORTS
Game On: Am Law Daily Talks Fantasy with Founder of SportsJudge.com
If you know, right off the top of your head, Eli Manning's QB rating after last night's victory over the Redskins, then chances are that Marc Edelman is living your dream. Once an associate who toiled in the litigation ranks at Skadden and Dewey, Edelman quit law firm life to manage his website, SportsJudge.com, which is dedicated to resolving thorny fantasy sports disputes. (Edelman is also a teacher at Rutgers School of Law-Camden.) This is serious stuff. Check out this sample decision involving a proposed trade of Houston Astros first baseman Lance Berkman and San Diego Padres pitcher Chris Young for Chicago Cubs first baseman Derek Lee and New York Mets right fielder Shawn Green. Beats slogging through document discovery any day.

Edelman told Brian Baxter at the Am Law Daily--in a terrific Q&A session--that the idea for the site originated when he was a law student at the University of Michigan, and friends routinely called to ask him to decide fantasy sports disputes (which, as some of us know, can get pretty heated). When word spread to strangers that he was the guy to see if you had a fantasy sports spat, Edelman decided it was time to start a site. Today he has more than 30 people on the SportsJudge.com team, including three lawyers available to resolve disputes. It's not a huge money maker, so please spare Edelman your resume. He charges an un-Skadden-like $15 per opinion. "In real legal practice, I can do that work for up to $350 an hour," Edelman told Baxter. "So writing an entire opinion for $15 is really a labor of love."

                                                                    

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