Monday, February 11, 2008
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Court Partially Revives Action Against Rappers’ Lawyers
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday partially revived a malicious prosecution suit targeting lawyers who sued a politically prominent black woman over her attacks on rap music lyrics.
Although the court voted 2-1 to affirm a grant of summary judgment by Senior U.S. District Judge Robert M. Takasugi of the Central District of California in favor of Charles Ortner, David Kenner, and Geoffrey Thomas, and their clients, Interscope Records and Death Row Records, because the widower of C. DeLores Tucker could not show that the defendants acted with malice when they sued Tucker, it ruled that Tucker’s estate could pursue Kenner for drafting a complaint alleging abuse of process by Tucker because a reasonable fact-finder could infer that Kenner knew the claim lacked merit.
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.
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 heads his own firm in Sherman Oaks.
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.
Tucker’s husband also brought a claim for loss of consortium, owing to the psychological effects on Tucker of the alleged retaliation.
The suits were assigned to Takasugi, 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.
On appeal, Judge Richard A. Paez wrote to affirm Takasugi’s decision, rejecting the argument that the advertisement and lyrics showed malice because their publication occurred after the action was instituted. He also wrote that the companies’ voluntary dismissal of the action did not show malice because the Tuckers could not demonstrate that the stated reasons were a sham to disguise the absence of any supporting facts, and that the decision to sue Tucker only represented a prudent litigation decision under the circumstances.
Paez wrote further that the Tuckers could not show malice on the part of any of the attorneys—with the exception of one claim against Kenner—because they could not show the attorneys affirmatively knew that the factual bases for the suits were false at the time the suits were filed, or that the attorneys pursued them after learning that claims were unsupported.
However, he wrote that Takasugi had erred in granting summary judgment in favor of Kenner where Kenner had drafted a complaint that included a count of abuse of process. Noting that it was well-established under California law that the tort of abuse of process requires misuse of a judicial process, and that Tucker had never actually made use of any judicial processes, Paez wrote that a reasonable fact-finder could infer malice from Kenner’s drafting of a meritless claim, so the district judge was wrong on that issue.
But Paez said Takasugi had not erred in dismissing Tucker’s husband’s loss of consortium claims where he failed to raise a triable issue that his wife suffered a psychological injury from the alleged retaliation that was sufficiently serious or disabling as to raise an inference that his relationship with his wife was more than superficially impaired.
Judge Richard C. Tallman joined Paez in his opinion.
In a dissenting and concurring opinion, Senior Judge John T. Noonan wrote to disagree with the majority’s conclusion that a jury could only find malice in Kenner’s actions, and not in the record companies’ and attorneys’ actions.
“Tucker’s evidence affords multiple instances where a jury could infer, from what Death Row, Kenner, Interscope, and Ortner said and did, that the suits brought and maintained against Tucker were knowingly and therefore maliciously filed without probable cause and were prosecuted with malice for three years in an oppressive way, long after a scintilla of cause had been extinguished,” he said.
Writing that the case presented questions of fact that should be left to a jury to decide, he said that “[t]he court is in no position to conclude that the lawyers and their clients believed that these charges were true, rather than unscrupulous inventions.”
The case is Estate of Tucker v. Interscope Records, Inc., 05-56045.
Copyright 2008, Metropolitan News Company