Metropolitan News-Enterprise


Tuesday, October 7, 2008


Page 1


U.S. High  Court Declines to Intervene in Dispute Over Rap Lyrics

Justices Deny Review in Suit by Estate of Official Who Attacked Record Companies




The U.S. Supreme Court yesterday delivered a death blow to claims that two record companies and their lawyers maliciously sued a politically prominent black woman over her attacks on rap music lyrics.

The justices, without comment, denied a certiorari petition by the estate of former Pennsylvania Secretary of the Commonwealth C. Delores Tucker. A divided Ninth U.S. Circuit Court of Appeals panel ruled in February that Charles Ortner, David Kenner, and Geoffrey Thomas, and their clients, Interscope Records and Death Row Records, were entitled to summary judgment on the estate’s malicious prosecution claim.

The panel did, however, partially reverse Senior U.S. District Judge Robert M. Takasugi of the Central District of California in ruling that Tucker’s estate can 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. That issue was not before the justices.

Tucker, who died at the age of 78 in 2005, in between the filing of the appellants’ and appellees’ briefs, was a Democrat and the first African American woman to serve as a secretary of state, holding that position from 1971 to 1977. She founded the National Political Congress of Black Women, whose activities included a campaign against demeaning references to women in “gangsta” rap music.

Controversial Efforts

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 who later joined 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 a defendant.

Alleged Retaliation

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.

Takasugi ruled 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.

Malice Argument Rejected

On appeal, Judge Richard A. Paez rejected 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 was prudent 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 the 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.

Dissenting Opinion

Judge Richard C. Tallman joined Paez in his opinion, but Senior Judge John T. Noonan argued in dissent that “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.”

The case is Estate of Tucker v. Interscope Records, Inc., 07-1588.

In another order, the high court denied, without comment, a petition by anti-abortion activists seeking review of a Ninth Circuit ruling that doctors who sued over what a District of Oregon jury found to be threats are entitled to interest covering the nine-year period since the judgment was originally entered.

The jury originally awarded the plaintiffs $109 million, mostly in punitive damages. A 2001 Ninth Circuit ruling threw out the judgment on free-speech grounds, but the court granted en banc review.

The en banc court, in a 6-5 decision in 2002, said the defendants had engaged in unprotected conduct, but sent the case back to District Judge Robert Jones to reconsider the punitive damage award. Jones upheld the award in its entirely, but in 2005, the Ninth Circuit cut the punitive damage award to a total of $4.73 million, nine times the compensatory damages found by the jury.

The defendants then contended that because the Ninth Circuit did not specify otherwise, interest should run from the date of the amended judgment, rather than the original 1999 decree. In February of this year, however, the Ninth Circuit held that its previous order should have specified that interest runs from the date of the original judgment, and that since the omission was inadvertent, it was subject to correction.

That ruling was left standing by yesterday’s order of the Supreme Court.

The case is American Coalition of Life Activists v. Planned Parenthood of the Columbia/Willamette, Inc., 07-1546.


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