April 12, 2016
Congratulations to Eric Jensen and Andy Miller for obtaining a $500,000 jury verdict today for another deserving injured client. Mr. Jensen co-tried the case with Mr. Miller, of The Law Offices of T. Andrew Miller (http://www.amillerlegal.com), in a two day jury trial in Fulton County State Court. This makes seven successful jury trials in 14 months for the Graham & Jensen, LLP trial team. We always prefer to obtain a fast and fair settlement for our clients, but if the defense refuses to pay full compensation, we take it to a jury. Great job Andy and Eric!
March 24, 2016
Courtesy of Toronto Film Festival
When 54 Sudanese refugees filed a lawsuit in February 2015 against the writers and producers of The Good Lie, a 2014 film starring Reese Witherspoon about those who survived starvation, disease and militia attacks in Darfur to make their way to America, we wrote at the time the dispute was "potentially groundbreaking." Behold now a remarkable decision on Wednesday that could impact the way that research is conducted for feature films based on true stories.
The plaintiffs in the case came forward with edgy theories about why, when they sat down with screenwriter Margaret Nagle back in 2003 and shared their life stories, they were entitled to be deemed joint authors of the taped interviews. In their lawsuit against Alcon Entertainment (The Blind Side) and Ron Howard and Brian Grazer's Imagine Entertainment, they also asserted a breach of a joint venture agreement, fraud and more stemming from the way they were promised compensation from a producer. Ultimately, if these refugees couldn't get adequate compensation, they demanded an injunction on The Good Lie, alleged to be a derivative of the interviews and the screenplay they claim to co-own.
Injunctions are incredibly rare, and writers interview sources all the time. This couldn't possibly work, could it? Guess what? U.S. District Judge Leigh Martin May has found that the plaintiffs have stated facts supporting a finding of copyright infringement and the entry of a permanent injunction.
There's a wrinkle here, and it's one that is provocative enough to be on a law school exam.
The Sudanese refugees, who assigned their rights to an umbrella organization called the Foundation for Lost Boys and Girls of Sudan, wanted the judge to issue a declaration that they were indeed joint authors. The problem is that the Lost Boys don't have copyright registrations on the taped interviews. After the film companies pushed for dismissal on this basis, the plaintiffs argued that the film companies should be equitable estopped from seeking dismissal because a failure to register was due solely to the other side's refusal to provide a copy to them to deposit with the Copyright Office.
"While the Court appreciates the logic of Plaintiffs’ argument, they have not pointed to authority applying equitable estoppel to the registration requirement specifically," writes May.
So the judge grants a motion to dismiss, but allows a refiling of the claim should they successfully register their copyrights in the future.
If it stopped here, Alcon would have gained a big victory on a technicality, but it doesn't because Judge May next comes to the amazing conclusion that she may grant injunctive relief despite the Sudanese refugees inability to register for a copyright. And then the judge explores whether in fact the plaintiffs have asserted a viable infringement claim.
Alcon argued that answers in an interview don't possess the modicum of creativity to constitute an original work of authorship under copyright law.
"The Interviews, however, did not consist merely of 'ideas, facts and opinion made during a conversation,' like the interviews by journalists in the cases Defendants cite," responds May. "Rather, the Interviews were a creative process designed to create material for a screenplay and film. All that an 'original work' must possess is 'some minimal degree of creativity’ ... even a slight amount will suffice. Plaintiffs’ telling of their personal stories in response to questions designed to elicit material to create a fictional script for a feature film likely includes enough creativity to render the Interviews an original work of authorship."
OK, but Alcon also tried to argue that the taped interviews couldn't be a "joint work" because there was no allegation of an intent to create one when the contributions were made.
That, writes the judge, "overlooks the allegations of the Complaint emphasizing the importance of contributions of all parties participating in the Interviews to the Screenplay and film to come."
May also concludes, "Plaintiffs have stated a cognizable claim for protection against continuing infringement by Defendants that, if proven, warrants entry of a permanent injunction."
The Lost Boys, represented by attorney Jason Graham, rack up more victories. The judge determines that claims of unjust enrichment, quantum meruit (value for services rendered) and conversion of ideas aren't preempted by the Copyright Act. The judge ruled that claims of an oral agreement concerning a joint venture were sufficient stated to survive a motion to dismiss. Likewise, the judge allowed a claim of fraud to proceed to cover the representations the film companies made in getting the refugees to share their life stories. Here's the full ruling.
The only big victory for the defendants is dismissal of a claim for misappropriation of publicity rights under Georgia common law. Judge May basically concludes that personal stories aren't the same as names and likenesses. "That these experiences were used in a work of fiction, not on merchandise or in a straightforward commercial appeal, further removes them from an appropriator’s archetypical effort to profit from Plaintiffs’ specific identities," she writes.
The end result of all of this is that the Lost Boys can proceed with discovery, and the stakes of the case go up with both sides collecting evidence in advance of summary judgment motions and a potential trial. On the other hand, The Good Lie wasn't a box-office blockbuster, with just $2.7 million in revenue worldwide. The case could be a strong candidate for settlement. If it does get to appeal, the issue of joint authorship of taped interviews will be worth watching.
November 9, 2015
Graham & Jensen, LLP's client, who is the named plaintiff in the VW/Audi class action the firm filed, was interviewed, along with Jason Graham, for a news story on WSB this evening about VW's recent "first step" in doing damage control with its defrauded customers. The firm continues to fight for the rights of consumers and the injured.
September 18, 2015
A couple's honeymoon in Bali came to a rude and painful end when an allegedly drunken guest who had been whacking golf balls off of his balcony hit one to the head of the groom, fracturing his skull and leaving him with complications that persist nearly two years after the incident, according to a recently filed suit.
The plaintiff brought the suit in Fulton County State Court because the defendant, Ayana Resort and Spa, is managed by Atlanta-based Capella Hotel Group. Kit Pappas, chief operations officer for the Capella Hotel Group, said company policy prohibits any comment upon pending litigation.
Attorney Eric Jensen said his client, 31-year-old Adam Alcabes, continues to have recurring headaches and neck and jaw pain that require "trigger point" injections and medication.
"This kind of thing is so terrible, especially for someone so young," said Jensen. "It certainly ruined his honeymoon. He's just lucky it wasn't worse. He could have been paralyzed or killed, but that doesn't minimize the damage he and his wife have suffered."
Jensen said Alcabes has incurred at least $30,000 in medical expenses thus far, not including some of those accrued in Bali, which are tallied in Indonesian rupiahs.
The complaint, filed Sept. 10 by Jensen, Jason Graham and James Nash Jr. of Graham & Jensen, said Adam and Erinn Alcabes were guests at the resort in Jimboran, Bali, in October 2013. The suit said that the resort's management had been "put on notice" that some of its guests—including the man hitting golf shots from his balcony—were drinking and breaking the resort's rules.
According to its website, the Ayana Resort and Spa's amenities include beaches, pools and a one-10th scale, 18-hole golf course that "wraps around the spa complex."
Jensen said the couple lives in Los Angeles, where Adam Alcabes is a sports media executive, and that he first filed suit in federal court there late last year. But Jensen said jurisdictional concerns demanded a move to Georgia, and that action was voluntarily dismissed without prejudice.
According to a plaintiff's mediation statement filed before that suit was dismissed, the Alcabeses had been in Bali for three days when, after going snorkeling, they changed and went to the resort's "iconic Rock Bar" near the ocean, ordered some food and settled in to watch the sunset.
There was a "loud banging" that sounded like a gunshot, and Adam was knocked from his seat, holding his head in "agonizing pain," the mediation statement said. At that point, a hotel security guard came to the restaurant and said that a hotel guest had been hitting golf balls from his villa above the restaurant "without any effective invention" by hotel staff. The guard "acknowledged that they knew of other balls that had landed in the pool and surrounding area."
Other guests in the restaurant began screaming and using outdoor pillows to shield their heads and bodies from errant golf balls, the statement said.
There was no doctor at the resort, so Alcabes was loaded onto a golf cart for a 20-minute ride to a hospital, where a CT scan revealed that his brain was swelling and bleeding. He was diagnosed with an intracranial hemorrhage and a fracture of the left temporal bone and spent four days in the hospital, including two in intensive care.
It was another nine days before he could fly back to Los Angeles.
According to the statement, hotel security had already had run-ins with the man who hit the golf balls, a resident of Singapore. The statement said the man had "ingested significant quantities of alcohol" and had been hitting balls from his villa prior to the incident.
Prior to Alcabes' departure from Bali, Adam was readmitted to the hospital, the statement said, and as he lay in bed with a morphine drip in his arm, the hotel's assistant manager arrived and asked him to sign a waiver of liability in exchange for the hotel paying his medical bills. He refused.
Despite tentative plans for a mediation, Jensen said, none was ever held. The lawyer said he didn't know whether the balcony golfer faced any criminal charges or offered any compensation for the incident.
The complaint said that Capella, the Atlanta-based management company, "negligently failed to provide and/or enforce proper rules and regulations for the use of recreational (specifically golfing) activities from its hotel premises [and] negligently failed to monitor the activities of hotel guests who were drinking quantities of alcohol on its premises."
The suit seeks damages for Alcabes' medical expenses and income, and includes claims for premises and vicarious liability, negligent training and supervision and loss of consortium.
August 31, 2015
A DeKalb County jury returned a $3.16 million verdict—with 25% apportioned against the Plaintiff—to a 24-year old man who sustained an open fracture to his arm after colliding with a box truck. The wreck occurred around 2:30 p.m. on April 6, 2012. While driving in second lane from the right of I-285 North, the Defendant’s vehicle began running out of gasoline. After sputtering for some time in his lane, Defendant maneuvered his vehicle across multiple lanes before stopping against the divided-highway’s left emergency barrier strip. Due to the vehicle’s size, a portion of it protruded into the far left travel lane. The Plaintiff, Muridi Jeilani, testified that he crashed into the box-truck because he was unable to swerve out of the left lane (due to traffic) nor stop in time to avoid the collision.
Liability in the lawsuit was hotly contested. The Plaintiff’s team was led by Jason Graham and Eric Jensen and also included Jim Nash, Zack Lewis, as well as paralegal Samantha Miller of Graham & Jensen LLP. “The real issue, and what the jury recognized, was that if the Defendant had simply fueled up his work truck or pulled off the road to the right then the collision never happens” noted Mr. Jensen. “During discovery, we learned through the Defendant’s fuel receipts that he typically filled up his work truck every two to four business days, but that he had driven three-and-a-half days on the same tank of gas before the collision occurred.”
This case was the first trial on the Plaintiff side for new Graham & Jensen attorney Jim Nash. Mr. Nash had spent the last 13 years defending insurance companies, including the last 9 years at GEICO staff counsel before coming over to Graham & Jensen. Mr. Nash’s Insurance Defense background helped Plaintiff’s counsel anticipate and prepare for likely defense tactics and arguments. When asked about the outcome of the trial Mr. Nash commented, “I thought all the lawyers on both sides did an excellent job. It was a well tried case and I’m thrilled for our client and his family with the outcome.”
Defendant, who was represented by Michael St. Amand of Gray, Rust, St. Amand, Moffet & Brieske, retained the services of an accident reconstruction expert, Will Partenheimer of FORCON International, who performed a line of sight study that allegedly showed the Plaintiff had over 1,000 feet of visibility prior to the point of impact and that Plaintiff had enough room in his travel lane to avoid the truck. The Defendant also alleged that the Plaintiff must have been either speeding or following too closely if he was unable to avoid the wreck.
Before trial, Plaintiff moved unsuccessfully to exclude Mr. Partenheimer from providing that opinion testimony contending it was improper as it involved factual conclusions the jury was capable of reaching (or not reaching) themselves. During Plaintiff’s closing arguments, Jason Graham highlighted to the jury that they should view Mr. Partenheimer’s testimony with skepticism, noting how he fought nearly every single question asked of him during his cross examination. Mr. Graham also pointed out to the jury that there was no evidence—merely speculation—that Plaintiff was following too closely or speeding. “Fortunately, the jury understood that Mr. Jeilani reacted like any reasonable driver would react in that emergency situation, he slammed the brakes and, unfortunately, didn’t have enough time to stop before the wreck occurred,” Graham added.
The case is Jeilani v. Howard 14-A-50332-7.
February 23, 2015
Refugees from war torn Sudan depicted in "The Good Lie" claim the film's writer and Hollywood producers tricked them into telling their stories and broke an agreement to compensate them. Fiftyfour
of the former "Lost Boys of Sudan" and a charitable foundation they set up to help other Sudanese refugees filed the suit Feb. 19 in federal court in Atlanta. The case has been assigned to Judge Leigh Martin May. The 101 page complaint, brought by Atlanta attorneys Jason Graham and co-counsel Craig Lerman, name as defendants screenwriter Margaret Nagle, Ron Howard's Imagine Entertainment and five other Hollywood production companies. The film, starring Reese Witherspoon, premiered at the Toronto International Film Festival in September 2014.
The complaint alleges copyright infringement, breach of contract and fraud. It contends that a decade ago the refugees agreed to tell their stories to Nagle and the late Robert "Bobby" Newmyer of Outlaw productions in lengthy interviews that became the basis of the screenplay. In return, the complaint claims, they were told they would be financially compensated and that film producers would raise money for their charity, the Foundation for Lost Boys and Girls of Sudan. David Matlof, an attorney at Hirsh Wallerstein Hayum Matlof & Fishman in Los Angeles whom the complaint identifies as Nagle's lawyer, could not be reached for comment. Gary Gilbert, cochairman of the entertainment and media practice at LA's Manatt, which lists Imagine Entertainment among its clientele, could not be reached. Imagine cochairman Michael Rosenberg also could not be reached.
"Our foundation has received no compensation for sharing our traumatic personal stories as agreed," said Moses Matur Chol, the foundation's executive director. The "Lost Boys," named by Sudanese aid workers for the Lost Boys in the children's book, "Peter Pan," fled into the African bush when the Muslim militias of northern Sudan began pillaging and burning the predominantly Christian villages in Southern Sudan during 23 years of civil war. A number of them eventually immigrated to the United States, including metro Atlanta.
The suit says that Outlaw's Newmyer first approached some of the Lost Boys in 2002 about making a movie of their experiences and enlisted Nagle's help. "While some common elements of the Lost Boys story were publicly available, Newmyer and Nagle wanted to create a movie with real, personal and emotional details otherwise unavailable to the public at large," the suit says. Newmyer and Nagle originally offered a $55,000 fee collectively to the young men they interviewed and, according to the suit, agreed that any resulting script would not be produced without the refugees' consent and financial compensation. They also promised that all donations generated by fundraisers associated with the film would go to the refugees' foundation, according to the suit. The suit claims the breach of the longstanding agreement with the refugees, although an oral one, "is not the result of an honest mistake, bad judgment or negligence," the suit alleges, "but
rather a conscious, selfish and deliberate act."
According to the Internet Movie Database, the movie, which was largely filmed in Atlanta, cost an estimated $20 million but grossed only $2.7 million after its release in October 2014.