Monday, May 14, 2007
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Judge Hints at Revival of Suit Against Rappers, Lawyers
By KENNETH OFGANG, Staff Writer
A Ninth U.S. Circuit Court of Appeals judge Friday hinted at the possible revival of a malicious prosecution suit targeting lawyers who sued a politically prominent black woman over her attacks on rap music lyrics.
Senior Judge John T. Noonan, a member of the panel hearing an appeal by C. DeLores Tucker’s widower, suggested that a jury should consider whether Charles Ortner, David Kenner, and Geoffrey Thomas, and their clients, Interscope Records and Death Row Records, acted with malice in making “wild criminal charges” against Tucker.
Tucker, who died in 2005, in between the filing of the appellants’ and appellees’ briefs, was once Pennsylvania’s secretary of state. She founded the National Political Congress of Black Women, whose activities included a campaign against demeaning references to women in “gangsta” rap music popular with young black men.
Her efforts, controversial in part because of her willingness to ally with white conservatives such as former Secretary of Education William Bennett, were joined by several prominent black women in the entertainment industry, including Dionne Warwick and Melba Moore, who served on the NPCBW Entertainment Commission.
The record companies sued Tucker in 1995, claiming she had engaged in racketeering, extortion, unfair business practices, and other torts designed to injure their business. She was accused of trying to induce Death Row to breach a contract with Interscope and help set up a black-controlled distribution company through her organization, the NPCBW, and with otherwise using her crusade as a cover for efforts to profit personally.
The plaintiffs eventually dismissed those actions, and Tucker filed two malicious prosecution suits, in 1998 and 1999. Named as defendants were the record companies and a number of lawyers, including Ortner, a veteran music industry counsel then with Paul, Hastings, Janofsky & Walker but now in the New York office of Proskauer Rose; Thomas, a Los Angeles-based litigation partner at Paul Hastings; and Kenner, who practices in Encino.
Paul Hastings was also made a defendant.
Tucker and her husband accused the defendants of retaliating against her for her constitutionally protected efforts to clean up the lyrics of music sold to minors.
She said she was described as a “charlatan;” subjected to oppressive discovery, including having to sit for 11 days in deposition; and subjected to extra-judicial attacks while the litigation was ongoing, illustrative of malice on the part of the defendants.
She cited an ad in a rap magazine that she said was a death threat, as well as a top-selling CD in which Tupac Shakur, the Death Row/Interscope artist later shot to death in a drive-by incident in Las Vegas, described her using a vulgarity rhyming with her surname. She also noted that Moore and Warwick were subjected to lengthy depositions.
The suits were assigned to Senior U.S. District Judge Robert Takasugi of the Central District of California, who granted the defendants summary judgment on the ground that the Tuckers could show no damages. The Ninth Circuit reversed and remanded for consideration of the summary judgment motion on other grounds.
Takasugi then granted summary judgment again, ruling that some of the claims in the underlying suit were clearly supported by probable cause and that as to the rest, the Tuckers failed to present sufficient evidence of malice.
But Noonan Friday noted that under California law, a summary judgment on the issue of malice will only be granted in “rare” cases. The suits against Tucker, he said, appeared “to be an attempt to destroy” her political organization rather than to collect damages or obtain the injunctive relief that the companies prayed for in the complaint but never moved for.
He sided the pejorative nature of the allegations, suggesting that Tucker engaged in nefarious activity, including mail fraud and wire fraud. “I can’t imagine what the mail fraud and wire fraud could be,” he said.
Tucker’s attorney, Robert Angino of Harrisburg, Pa., who took over the case after Patton Boggs, a politically influential Washington, D.C.-based firm dropped its pro bono representation in 1997, said he had “never seen a [California] case granting summary judgment as to the issue of malice alone.” He added that “there was “plenty of evidence for a jury, not a judge, to decide.”
Steven A. Marenberg of Irell & Manella, representing Interscope and the lawyers—Death Row, which has been in bankruptcy proceedings, did not file a brief or participate in oral argument—urged the judges—Noonan, Richard A. Paez, and Richard Tallman—not to allow their views of gangsta rap to influence their judgment.
“This is truly one of those rare cases where summary judgment can be granted on malice,” he said.
Tucker, he told the judges, admitted that she attempted to instigate an FBI investigation of gangsta rap figures at the same time she was working with the NPCBW and then-Mayor Omar Bradley of Compton to encourage Death Row to end its relationship with Interscope and participate in a black-controlled venture that would distribute rap music with cleaner lyrics.
“That does constitute extortion,” Marenberg said.
He also defended the litigation tactics of the attorneys as well within the bounds of aggressive advocacy. “There is no evidence...of an improper question at a deposition [or] an improper document request,” he said.
His attorney clients, he said, were “under an obligation to vigorously litigate the case.”
The case is Tucker v. Interscope Records, Inc., 05-56045.
Copyright 2007, Metropolitan News Company