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On Monday, July 14, 2014, the New York Supreme Court dismiss the lawsuit for defamation and interference with business relations brought by New York resident Kenny Kramer against writer/comedian Fred Stoller. Kramer, who is the real-life inspiration for the Seinfeld character Cosmo Kramer, stated that the portrayal of Kramer's Seinfeld Reality bus tour in Stoller's new comedic memoir, "Maybe We'll Have You Back," defamed him. He also asserted that Stoller's depiction of the bus tour erroneously accuses him "of taunting persons from the gay community," and thus institutes defamation. Kramer claimed that the defamation was worth one million dollars in damages.
The Court disagreed with Kramer and noted that the statements in "Maybe We'll Have You Back" are not defamatory. Judge Barbara Jaffe explained, "On its face, the phrase expressly conveys the notion that there is nothing wrong with being gay. In that respect, it cannot be considered homophobic. [And in context with the specific episode] the catch phrase speaks to the ambivalence a heterosexual male may feel about homosexuality, and says little, if anything, about homosexuality." The Court also acknowledged that the Seinfeld episode received critical acclaim from the gay community, and the show determined that the use of the phrase is not practically susceptible of a homophobic meaning.
Stoller's primary counsels were David Albert Pierce and Azita Mirzaian from Beverly Hills' Pierce Law Group, LLP. His local counsel was New York attorney Francis X. Dehn. After the lawsuit Mr. Pierce claimed, "We've maintained for seven months that this is a case about nothing, today the Court agreed."
I asked Mr. Pierce what does Stoller's case mean to him? "It's indicative of the cases I enjoy being a part of. I don't take cases unless my clients have been treated unjustly in some way - either someone has genuinely hurt them or they have been wrongfully bullied by a plaintiff without a case." He continued to say that Stoller is a blue-collar guy who wrote a passage in a humor book about his perceptions of Kenny Kramer's aging bus tour designed for Seinfeld trivia fans, which caused Kramer to file a lawsuit for which the underlying motivation was a combination of a desire for publicity and hurt feelings about Stoller essentially referring to the tour as being lame. Mr. Pierce was elated that the honorable Judge Jaffe dismissed the case and wrote an articulate fifteen-page decision analyzing each issue in the defamation suit.
Does he believe this case was about defamation? "No. This was a frivolous case. In my opinion, Kramer wanted publicity for himself and his aging bus tour. He seems to always want publicity." Mr. Pierce also emphasized that Stoller's book never taunted the gay community and anyone that buys the book and reads the actual passage at issue in the context it was written will understand that.
In homage to the fictional Seinfeld attorney Jackie Chiles, Mr. Pierce stated, "This entire case was outrageous, egregious, preposterous!" He added, "With this decision, my client has serenity now!" (referencing yet another catchphrase of the Seinfeld series).
Mr. Pierce was able to poke fun of this case after it was dismissed, but was he worried that Stoller would be liable for defamation? "I was never worried that Stoller would be liable for defamation. I was concerned that the case would drag on and that he would owe costly legal fees to his publishing company, which had a separate counsel in the case for which he had a duty to indemnify."
Mr. Pierce is managing member of Pierce Law Group LLP. He predominantly engages in transactional representation of television and film production companies, which includes some of the most respected companies in Hollywood, including Lions gate, Profiles Television Productions (executive producers of the multiple Emmy award winning "Amazing Race"), Oprah Winfrey's Harpo Productions, and Le Petite Rein (producers of the 2012 Academy award winning film "The Artist"). Mr. Pierce's production counsel practice is diverse and includes counseling and representation in the areas of employment & labor law issues in the film & TV industry; entertainment law; internet/new media law; intellectual property; clearance & rights issues, securities law/film finance, and issues regarding crisis management on the set. Aside from production counsel work, he also represents individual writers, producers, and artists, and a significant number of stand-up comedians, as well as serving as outside general counsel for the world famous Comedy Store for the past 12 years.
Mr. Pierce lectures regularly on the legal matters confronting the entertainment industry, and has served as an adjunct lecturer at UCLA Extension on "Organizing, Financing and Running A Start-Up Entertainment Production Company" for over ten years. He has also served as an adjunct professor at Loyola Marymount University's Graduate School of Film & Television (teaching a course entitled "The Business of Screenwriting"), and Elon University's Semester In Los Angeles Program teaching "Media Law & Ethics"). In 2011, he taught U.S. film law issues for five days at a symposium sponsored by the St. Petersburg University School of Film & Television in Russia. He has also delivered an annual seminar on the state of the law on clearance issues to the Academy of Television Motion Picture Arts & Sciences during their Visiting Professor Series program which occurs each Fall. He is also the author of numerous entertainment law articles and is a regular columnist for Movie Maker Magazine.
Mr. Pierce is admitted to the State Bar of California. He is admitted to practice in the Northern, Central and Southern federal district courts of California, as well as being recently admitted in December 2013 to the United States Supreme Court. He is a member of the American Film Institute, the Independent Feature Project/West, California Society of Entertainment Lawyers, the Beverly Hills Bar Association's Entertainment Law Section, and the American Bar Association's Forum on the Entertainment & Sports Industries. Mr. Pierce is a member of the Labor & Employment Law sections of the American Bar Association and the California Bar Association. He is also the former Chairman of the Beverly Hills Bar Association's Labor & Employment Law section.
Mr. Pierce was born and raised in Niagara Falls, New York. He is the youngest of four children. Mr. Pierce earned his undergraduate degree with honors from the State University of New York at Binghamton, where he majored in Political Science and minored in Business. He also earned his Juris Doctorate degree from Cornell Law School with a concentration in Business Law & Regulation. While at Cornell, Mr. Pierce was a member of the Cornell Law and Public Policy Journal and the Entertainment & Sports Law Association.
When the fearless attorneys isn't working, he enjoys the Buffalo Bills, Los Angeles Dodgers, Lakers and Clippers (which he points out was long ago originally the NBA franchise known as the Buffalo Braves before it moved in the 70's to San Diego and then onward to L.A.), spending time with his dog, sailing, and attending film festivals and comedy clubs. Mr. Pierce also enjoys eating sushi, fine steaks, great Italian food, and authentic Buffalo chicken wings. His favorite books includes William Knoedelseder's I'm Dying Up Here: Heartbreak and High Times in Stand up Comedy's Golden Era and Bernie Brillstein's Where Did I Go Right?: You're No One in Hollywood Unless Someone Wants You Dead.
Mr. Pierce's Memories and Motivations
Did Mr. Pierce receive any awards, participate in any internship or have other experiences influential in his decision to go into the law? "I always wanted to be a lawyer for as long as I can remember. While, I did win a political scholarship contest in high school and had assorted internships during law school, college and law school in both political and legal offices, I think I was most influenced by my family."
His father held the highest admiration for attorneys, which influenced Mr. Pierce to attend law school from a very early age. He recalled growing up in the Niagara Falls tourist industry which he states in many respects shares aspect of the entertainment industry. In 1978, his father who operated "The Cave of the Winds," one of the major attractions at Niagara Falls, lost his concession contract with the state of New York (which owns the land on which the attraction and the Falls occupy) as a result of certain improprieties in the sealed bidding process for which Pierce's father successfully sued the state of New York to regain his family's control of the world famous tourist attraction (See: Cave of the Winds Scenic Tours, Inc. v. Niagara Frontier State Park & Recreation Commission, 64 A.D.2d 818 (1978). Pierce states, "At 10 years old that case showed me the importance of our legal system."
Does he have a most memorable law school experience? Mr. Pierce recalled spending the summer at Cornell studying for the California Bar exam. "I remember being more organized and structured during that 10 week period of exam study than any other time in my life. I attended my BarBri seminar in the morning, I'd exercise in the afternoon, have a great dinner and then resume study at the law library until bed. My dog used to sleep on my desk in the law library. Everything clicked, it was methodical each day and I really enjoyed the whole process set against the backdrop of the beautiful summer scenery of the town of Ithaca where Cornell is located."
How long has Mr. Pierce been an attorney? "I was admitted the California Bar in December 1992."
What is the best part of Mr. Pierce's job? "The versatility of his practice." He said he enjoys spending half of his day being a transactional entertainment attorney analyzing and negotiating contracts, and the remaining portion of his time donning the litigation hat for clients in need of formal dispute resolution.
What is he known for professionally? "I am told that I'm known for being extremely hardworking and I bring the highest intellect acumen to entertainment law issues. I approach each issue systematically and encourage those at my firm to likewise spot new issues that lead to new paths and creative contracts that achieve our client's goals better than our client's may have even contemplated. Our firm is also known for being ethical, hardworking, and collegial - and that important to me."
What area of the law is Mr. Pierce most passionate about? "Entertainment law which for my practice encompasses: intellectual property, labor issues, finance, and basic nuts and bolts of contracts for those in the film and television industries."
Mr. Pierce also spoke proudly about being admitted to the U.S. Supreme Court in December 2013. On June 30, 2014, he recently filed his first amicus brief on behalf of California Society of Entertainment Lawyers (in conjunction with the law firm of Sedgwick LLP) encouraging the U.S. Supreme Court to grant the writ of certiorari in the case of Segal v. Rogue Pictures, U.S. Supreme Court Docket No.13-1425, which if heard would help clarify the proper manner in which lower courts apply the test for copyright infringement cases.
Is there an area of practice he would like to develop further into? "I'm quite happy with the specialty areas that I practice in. I am however constantly working to obtain bigger and more prominent clients. Like anyone else in this field, I would enjoy representing bigger studios and more A-list celebrities, but, I would never want to give up representing individuals who recently graduated from film school- that's often where some of the most rewarding legal counseling occurs."
If Mr. Pierce were not a lawyer, what would he most probably be doing? "I would be a stand-up comedian. I would also like to own and operate an ice cream parlor-instead of resolving disputes, I could just focus on putting smiles on people's faces."
Where does he see himself in five years' time? "I will be doing exactly what I am doing now with a firm that has upped its prominence and increase our ranks to perhaps ten attorneys, I wouldn't want much more growth than that as small firms have a real appeal to me. If I have the same client base I will be content."
What motivates Mr. Pierce to be an attorney every day? "Knowing that I can make a difference and that I can resolve creative people's legal issues, and perhaps contribute in some small way from a business prospective to film or an artist's development."
How does he want to be remembered? "As an honest affable lawyer who always worked diligently for his clients and genuinely cared about their interests."
High Profile Cases
Mr. Pierce discussed a few cases that have stood out during his career.
The case of LWRC International, LLC v. Mindlab Media, LLC (2011) 838 F.Supp2d 330, is a landmark case and the first reported case ever to articulate an actual exception to the "First to File Rule" in federal courts. The First to File Rule states that if one party files an action in one jurisdiction before the opposing party files its own action in another jurisdiction, the first to file will be the jurisdiction that hears the case and the later filed case should be dismissed. In LWRCI v. Mindlab Media, Pierce convinced the federal district court of Maryland that an exception to the First to File Rule could exist when no prior exception in the history of federal jurisprudence had been found; and in so doing the federal district court in Maryland dismissed a pre-emptive declaratory relief action brought against Pierce's client so that his clients' copyright infringement/right of publicity action could be properly heard in the federal district court for Central District of California (See: Richard Machowicz & Mindlab Media v. LWRCI, et al 2011 (USDC Central District of California Case# CV11-03405 CAS).
In those two related cases, Pierce represented Richard "Mack" Machowicz, a former Navy Seal and weapons expert who hosted the Discovery Channel and Military Channel show "Future Weapons," in a multi-count copyright infringement/right of publicity lawsuit (along with Mindlab Media, a company controlled by Machowicz that owned the copyright of photos of Mack) against a gun manufacturer, LWRCI. After LWRCI used Machowicz's photo without authorization in an advertisement it placed in the March 2011 issue of Guns & Ammo magazine (and similar ads on its website), Mr. Pierce sent a cease-and-desist letter to the company, asserting that LWRCI's actions "place at risk multi-million dollar [sic] celebrity endorsement opportunities for the hottest celebrity name among gun enthusiasts" and "serve as death nails [sic] to Mack's ability to attract any other legitimate manufacturers of guns, related gun paraphernalia and equipment." His letter stated that a multi-count copyright infringement lawsuit was being prepared, but it gave LWRCI a window of opportunity to settle the case via a proposal for the company to enter a legitimate three-year paid endorsement deal which would have permitted everyone to benefit (for which Pierce proposed $5.75 million/year as appropriate contract price for such a 3 year deal).
Mr. Pierce threatened to file a lawsuit unless a settlement was reached by April 18, 2011.LWRCI's counsel contacted Pierce on April 18, 2011, and requested the professional courtesy of an brief extension of time to reply while LWRCI awaited response from its insurance company concerning its coverage inquiries. The request for an extension occurred at a time when the Complaint was ready and set to be filed with the California court. Pierce cancelled a courier that was set to file his lawsuit with the federal district court in California in reliance on LWRCI's counsel stating that it wished to discuss settlement but needed a little extra time for its insurance carrier to weigh in. Unbeknownst to Pierce and his client, LWRCI then in turn filed its own Declaratory Relief action in federal court in Maryland. When Pierce learned of this trick, his firm filed its original complaint in California one day after receiving notice of the Maryland action.
In examining the facts, the federal court in Maryland wrote: "In the race to the courthouse, one litigant cannot tie the shoelaces of another litigant together." Thus, establishing the first ever reported exception to the First to File Rule.
Mr. Pierce's client went on to litigate the case in its desired jurisdiction of California and obtained a confidential settlement two years later just weeks before the multi-million dollar trial was to commence (Notice of Confidential Settlement filed April 19, 2013). Another group of companion cases memorable to Pierce concerned Richardson& Modern Age Photography v. Spearmint Rhino Companies, LLC, et al. (2001) US Central District of California Case # 01-00546; and Gleave v. Spearmint Rhino Companies, LLC (2002) L.A. Superior Court Case #BC 265221. Those two cases were filed less than a year apart.
In Richardson, a fashion model's photographs that were originally taken for a lingerie catalog were copied without authorization and converted into a larger than life billboard on Sunset Boulevard advertising the Spearmint Rhino Gentlemen's Club which had no lawful relationship to the model, the photographer who held the copyright or anyone else in a lawful position to properly convey the rights to the photo. Mr. Pierce represented the model and the photographer/copyright owner of the photo and obtained a confidential settlement. Thereafter, Mr. Pierce brought the Gleave v. Spearmint Rhino case case with near identical facts against the same defendant on behalf of another model and actress whose photograph was likewise misappropriated and wound up in an advertisement for the same strip club! That case settled quickly. Those cases resulted in this large national strip club franchisor changing its corporate policies concerning its advertising methods to ensure that only models specifically engaged for posing for such adult-oriented services are legitimately used, rather than the system prior to the lawsuits brought by Mr. Pierce's clients in which some low ranking employee would "surf the web and pirate photos of any pretty girl that caught his interest" without regard to consents, authorizations or payments.
Mr. Pierce also spoke of his success in a federal trademark infringement case which he won on behalf of Profiles Television Productions, Inc., the multi-Emmy award winning producers of "The Amazing Race" against a production company operating on the east coast with the identical name but which the east coast company had adopted years after Mr. Pierce's California based client had first commenced using the name on a national basis and which held trademark protection. Profiles Television Productions, Inc. (a California corporation) v. Profiles Television Productions, Inc. (a Florida corporation) (2011) US Central District of California Case #CV11-9435 DDP.
Finally, Mr. Pierce spoke fondly about a case involving a breach of a distribution deal for a series of religious based children's videos produced by American Bible Society and distributed by Sony. American Bible Society v. Sony Music Entertainment, Inc. et al (2002) NY Supreme Court County of NY Case Index No: 602509. In representing the producer of the children's videos, Pierce argued that typical "Hollywood account rules" and contractual standards of "good faith efforts" did not apply to his client's case because the parties were in an actual "joint venture partnership" as opposed to a mere arms length contractual relationship where "caveat emptor" would otherwise dictate how the parties treat each other. Instead, at mediation Pierce argued that a fiduciary duty was owed by virtue of a true partnership between Sony and his clients, and on the strength of that argument a confidential settlement was achieved. Mr. Pierce credits the strategy to his late entertainment law mentor, Paul Schreibman, who passed away at the age of 91 some six months earlier before Pierce even obtained the case. In fashioning the legal strategy for American Bible Society, Pierce had recalled a story his mentor shared with him about a similar situation which occurred some fifty years earlier in which his mentor successfully utilized the concept of "fiduciary duties" owed of one partner to another.
Teaching Students, Writing and Speaking Engagements, Pro Bono Work, Non-Profit Organizations and Mr. Pierce's Goals
What motivates Mr. Pierce to teach? "It's one of my favorite things to do. I love connecting with my students. It's also my little outlet for stand-up comedy. I love making my students laugh while their learning at the same time."
Will he continue his writing and speaking engagements? "Absolutely. It's the core of who I am and what my practice is about. There is no other way to stay on the cutting edge- practicing law makes you a better teacher of it, and teaching law makes you a better practitioner of it."
Does Mr. Pierce handle pro bono work? Mr. Pierce and his firm regularly help out a lot of starving actors and budding writers confronted by legal issues. However, Mr. Pierce is most proud of his pro bono legal efforts that he provided to assist a dedicated employee who works for him. Her son suffers from autism and is mentally disabled. The child completely lacks the ability to speak but was succeeding in his sign language classes when the Los Angeles School District decided to eliminate it on the basis that sign language should be reserved for the deaf. Mr. Pierce fought on behalf of the disadvantage child and he was able to obtain more sign language therapy for the child then even the family and his supportive teachers had thought possible.
Mr. Pierce is also member of the pro bono organization known as California Society of Entertainment Lawyers (CSEL) which focuses on filing amicus curiae briefs on legal issues that affect the entertainment community. In June 2014, Mr. Pierce and his firm were selected to take the lead in regard to the pro bono researching, coordinating and submitting of an amicus brief on behalf of the CSEL in support of a writ of certiorari to the United States Supreme Court.
Is he involved with any non-profit organizations? "Yes. For the past four years, I have served on the Board of Trustees for the Southern California Leukemia Lymphoma Society. It is an organization that's close to my heart since my father passed away from Leukemia. I also served for three years as an Executive Board Member on the National Alumni Association for Cornell Law School. I've also been involved with charities related to autism and my law firm regularly donates our old computers to special education classrooms that focus on autistic children."
Does Mr. Pierce have goals? "To continue to grow the reputation and prominence of my firm and to keep my doors open in beautiful Beverly Hills."
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