Amid racism fight, judge’s ruling could drastically change re-trial in MGA’s lawsuit with T.I. and Tiny
A busy week on the legal beat includes criminal charges against Tom Girardi, Harvey Weinstein's motion for new trial and an unusual dustup over a rejected plea deal.
The contentious trade theft civil case pitting MGA Entertainment against hip-hop artists T.I. and Tiny Harris shows no signs of cooling down.
But the judge in charged of managing it signaled Thursday he may implement a major change for the second trial that could eliminate what he identified as a source of most of the contention: MGA lawyers’ argument that the toymaker would never model dolls of T.I. and Tiny’s family because because of behavior they described in trial as “unsavory.”
In a status conference at the Santa Ana federal courthouse, Senior U.S. District Judge James Selna said the questions that seem to have caused the most conflict occurred during Jennifer Keller’s cross-examination of Tiny’s daughter Zonnique, who was a member of the OMG Girlz and believes MGA’s line of OMG Dolls infringes the group’s trade dresses.
Keller focused in part on vulgarity in Zonnique’s social media posts and in her song lyrics, including questioning the 26-year-old about her use of the n-word. Keller said the full word with an a on the end repeatedly, and an older white male juror told her afterward he felt it was unnecessary and that she was trying to appeal to racism.
T.I. and Tiny addressed the issue outside the courthouse on Thursday, with T.I. calling Keller’s use of the n-word “quite unnecessary.”
Judge Selna indicated Thursday he understands how problematic the questioning was, saying, “I’ve indicated previously that I don’t believe that testimony is relevant unless there’s predicate evidence in the record that MGA knew of the conduct” when the company designed the dolls at issue.
Selna went on to issue an order to show cause for why he shouldn’t require MGA’s lawyers to have predicate evidence that the company knew of song lyrics, social media postings, criminal conduct and other activities. Keller has two weeks to file a brief, then T.I.’s lawyers will have two weeks to file their reply. (Update: It’s actually two weeks for both to file an original brief then one week to reply.) Selna scheduled the second trial to begin with jury selection on May 9.
It wasn’t the order to show cause Keller and Sconick were hoping for: They’d asked the judge to issue one as to why T.I.’s lawyer Erin Ranahan, a partner at Winston Strawn LLP, shouldn’t be sanctioned for racism claims that Scolnick called “false, unwarranted, scandalous attacks [on] the sterling reputation Ms. Keller has spent 45 years establishing.”
Selna said Thursday he can’t consider a sanctions suggestion in reply to an opposition to a mistrial motion. If attorneys want him to consider sanctions, they must file a motion for sanctions. Scolnick indicated he’ll do so, and his previous filings offer a preview of his argument, focusing on the vulgarity of Zonnique’s lyrics.
It all stems from a 10-page brief Ranahan filed on Jan. 25. Hours earlier, Selna had declared a mistrial at Keller and Scolnick’s request after deposition video was played for the jury in which a woman lamented MGA’s theft against African-Americans. The judge ruled the testimony shouldn’t have been allowed under a pre-trial ruling that barred the mention of racism or cultural misappropriation.
Ranahan’s filing opposed Keller and Sconick’s written mistrial motion, and it contained a section titled, “Race Cannot be Eradicated from the Case and Counsel’s Racist Behavior Brought it to the Forefront.”
It went on to call Keller’s use of the n-word “gratuitous” but did not mention she said the word in the context of quoting Zonnique’s song lyrics. It also said Keller transitioned from an -a ending to an -er ending, though the court reporter’s transcript doesn’t support that, which Scolnick pointed out in a filing Wednesday night.
In a separate reply, Scolnick called the racism claims “false, unwarranted, scandalous attacks [on] the sterling reputation Ms. Keller has spent 45 years establishing” and asked Selna to strike them from the record. He also asked the judge to issue an order to show cause as to why Ranahan shouldn’t be sanctioned for writing it. Ranahan’s Winston Strawn partner David Scheper signed their sur-reply defending the racism claim and quoting the juror who told Keller he believed she was trying to appeal to racism.
Judge Selna said Thursday he can’t consider a sanctions suggestion in briefing about a mistrial. If attorneys want him to consider sanctions, they must file a motion for sanctions. Scolnick indicated they’ll do so.
That’s not the only sanctions issue in this case.
A $1,000 sanctions order against Ranahan has been sealed since Jan 26. Selna issued it in response to a motion for sanctions that detailed Ranahan’s misconduct during depositions, including “speaking objections and coaching blatantly designed to manipulate and influence the witnesses’ testimony.” (She’d already been reprimanded by U.S. Magistrate Judge Alicia Rosenberg over previous conduct.)
Scolnick asked Selna to sanction Ranahan at least $62,525, which Selna didn’t do, but the $1,000 he did impose is enough to require her to report it to the California State Bar.
Ranahan asked Selna to keep the order sealed until after the next trial, but Selna said Thursday there’s no reason to keep it sealed.
“I did not indicate that I’m going to hold the order and i will not hold the order,” the judge said. Then he said something that really spoke to his prowess as an advocate for open courts: “It seems to me the public is entitled to know what’s going on in this case, whether good bad or otherwise.”
The sanctions order will be unsealed today. I plan to tweet about it, and I’m also experimenting with a new YouTube venture in which I post video reports about the cases I cover. Here’s my report on Thursday’s happenings in this case.
Girardi to be arraigned Monday in Los Angeles
Monday should be a memorable day at the new federal courthouse in downtown Los Angeles: Disbarred and disgraced mega lawyer Tom Girardi is to be arraigned in the criminal case federal authorities unveiled on Wednesday.
The 83-year-old former king of the L.A. legal scene is accused of stealing tens of millions from clients, with the U.S. Attorney’s Office in Los Angeles announcing his indictment the same day Chicago federal prosecutors announced their own indictment against Girardi on eight wire fraud counts and four charges of failure to distribute a settlement, related to the embezzlement of settlement money in the settlements over a 2018 plane crash that killed 189 people in the Java Sea.
The bi-state indictments cap a career that earned Girardi wealth and power but also 136 state bar complaints that were largely ignored. His downfall, prompted by his co-counsel in the Lion Air crash case notifying the judge of missing settlement money, led to a reckoning at the California State Bar that included a splashy announcement about his disbarment and a fight with the Los Angeles Times over records that the bar eventually gave up on.
Girardi’s case has been assigned to U.S. District Judge John Walter, who’s also presiding over a racketeering lawsuit against Girardi and his legal partners that was transferred from San Francisco federal court in December.
My Los Angeles Magazine article covers the basics of his criminal cases and includes links to each indictment. I’m planning to get to the courthouse early enough on Monday to get photos of him going in, so stay tuned to my Twitter page for that.
Update: He’ll be at the old federal building Monday for a 1 p.m. arraignment with U.S. Magistrate Judge Karen Stevenson.
I also analyzed Girardi’s situation in a video you can watch here.
Convicted rapist Harvey Weinstein seeks new trial
Disgraced Hollywood titan Harvey Weinstein’s motion for new trial is in, and it focuses on proposed evidence Los Angeles County Superior Court Judge Lisa Lench didn’t allow in.
But most remarkably, it also reveals a trial-time admission by Jane Doe 1 that Lench barred Weinstein’s lawyers from pursuing in their cross-examination.
My Los Angeles Magazine article explains everything and includes a link to the motion. Check it out here.
Coming soon: State Supreme Court ruling on rejected plea deal in LA. public corruption case
I was happy to put together this Los Angeles Magazine article on an unusual situation involving a judge rejecting a plea deal after a defendant sat for a detailed interview with prosecutors. Read all about it here.
The California Supreme Court should be weighing in soon, so stay tuned.
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