Sanctions order reveals innerworkings of scorched-earth OMG Dolls v. OMG Girlz litigation
Sanctions order reveals innerworkings of scorched-earth OMG Dolls v. OMG Girlz litigation
I’ve also got details on another sanctions order, the latest on Tom Girardi and Michael Avenatti and the details on my upcoming appearance on a Detroit talk show.
Sanctions order reveals innerworkings of scorched-earth OMG Dolls v. OMG Girlz litigation
A recent $1,000 sanctions order offers a window into the no-holds barred litigation tactics in the civil trial over the music group OMG Girlz and MGA Entertainment’s OMG Dolls.
The intellectual property case erupted into an argument about racism after a mistrial last month, with MGA lawyers’ taking issue with one’s trial tactics being described as “racist.” Lawyers for rapper T.I. and the OMG Girlz suggested sanctions over the statements, and they may soon file a motion after Senior U.S. District Judge James Selna in Santa Ana, California, rejected their initial request because it was included in a reply to a mistrial opposition instead of put forth as its own motion.
But there’s another sanctions issue to explore, and it stems from T.I.’s lawyers conduct during witness depositions taken before trial.
The witnesses were consumers who said they purchased the OMG Dolls thinking they were connected to the OMG Girlz music group. MGA lawyer Chase Scolnick asked Selna to block T.I.’s lawyers from using the depositions in trial because of misconduct by Winston Strawn LLP partner Erin Ranahan, including witness coaching.
Scolnick also asked for $62,525 in sanctions to cover MGA’s costs, later upping it to $93,381.21 after all the invoices came in.
A bunch of back and forth and in-court bickering between the attorneys ensued, with Selna ultimately deciding that some sanctions were warranted: Not $$93,381.21, but $1,000, which is enough that Ranahan is required to report it to the California State Bar. (Compare it, though, to a sanctions order that dropped in San Francisco: U.S. District Judge Vince Chhabria’s $925,000 whopper against Gibson, Dunn & Crutcher LLP in the litigation over Facebook’s Cambridge Analytica data privacy scandal.)
But Selna declined the key request: He allowed all depositions to be used in trial, writing, “The testimony of these witnesses certainly show some consumers could be confused.”
Now a public version of the sanctions order over the deposition conduct is on file, and it details comments from Ranahan that Selna described as “clearly coaching” and “unnecessarily argumentative.”
They include:
“I don’t know why you would remember such a thing, but if you remember, you can tell him, but otherwise.”
“Objection, it doesn’t look blonde to me . . . It looks yellow white, Chase.”
“Objection to the extent that African American is dependent on necessarily the skin tone, which there’s obviously light-skinned African Americans and all sorts of different shades.”
“Mr. Chase loves to run to the judge.”
Selna’s decision to sanction was driven by the fact that Ranahan had been warned by U.S. Magistrate Judge Alicia Rosenberg about previous misconduct. Selna declined to issue sanctions over Ranahan’s conduct in depositions before Rosenberg’s warning but called it “outrageous, antagonistic, and unprofessional” and said it “resulted in a gross waste of time.”
The public unveiling of the sanctions order led Ranahan’s Winston Strawn partner David Scheper to file an unredacted version of their objection to the sanctions. It reveals these comments from MGA Entertainment CEO Isaac Larian made to Ranahan during his deposition, which was never played for jurors because Selna called the mistrial:
“These are the dumbest questions I’ve ever heard from a lawyer.”
“You’re incompetent.”
“Go ahead, you have a squeaky voice. Very annoying.”
Ranahan included excerpts from Lairan’s deposition as an exhibit, and it reveals some gems not mentioned in the brief.
A footnote gets dark and personal, revealing Ranahan was dealing with a death in her family when she made all those comments in the deposition - taken remotely via video - that led to sanctions.
As we know, this case is far from over. The second trial is scheduled to begin May 9, and MGA’s lawyers have a brief coming soon in response to an order from Selna that could change their questioning of key witnesses Zonnique Pullins, a former OMG Girl, and her mother, Tiny Harris, a singer and songwriter who is married to T.I.
The judge said he doesn’t believe questions about rap lyrics, social media postings and criminal conduct are relevant, and he ordered attorneys to file a brief explaining why they shouldn’t have to first show the dollmakers knew of the conduct before asking Zonnique and other witnesses about it.
Those are the questions that led Ranahan to describe Keller’s conduct as racist in a written opposition filed after Selna declared a mistrial over deposition testimony played for the jury that violated pre-trial rulings barring the mention of racism or cultural appropriation. She also referenced Keller raising her middle finger to Zonnique while questioning her about her own use of gesture. Scolnick said in his reply that Keller “had to quote Ms. Pullins’ own horribly profane lyrics, which include her frequent use of the ‘n’ word and various other expletives.”
As I said above, Scolnick indicated at the last status conference on Feb. 2 that he’ll be filing a sanctions motion, so I’ll let you know once that comes down.
In case you missed it:
Jan. 27: Deposition testimony about racism leads to mistrial in rapper T.I.'s lawsuit over OMG Dolls
Jan. 20: Trial over dolls brings rapper T.I. to federal court
Speaking of sanctions…
A lawyer whose congressman client was convicted of lying to federal agents about illegal campaign donations has been sanctioned $500 for what the trial judge described as comments in closing argument that “unambiguously crossed the line.”
John Littrell of Bienert Katzman Littrell Williams LLP in San Clemente, California, was defending now-ex Nebraska GOP U.S. Rep. Jeff Fortenberry on false statements charges when he referenced Fortenberry’s decision not to testify and commented on why he didn’t, saying jurors already heard from him in recorded interviews with investigators.
U.S. District Judge Stanley Blumenfeld took issue with the comments shortly after Littrell made them on March 24, 2022, but he waited until after he sentenced Fortenberry to probation to formally notify Littrell of possible punishment.
Littrell’s lawyer, Guy Iverson of Santa Barbara, said in a July 25 brief that sanctioning Littrell “creates a substantial risk of chilling effective advocacy by the defense bar in future cases.”
But Blumenfeld issued a 10-page order on Feb. 2 explaining why Littrell must be sanctioned, saying the comments jeopardize the integrity of the 5th Amendment right to remain silent and put prosecutors in an unfair position because they cannot respond and still remain within constitutional boundaries. He pointed to Littrell’s admission that he was warned in 2010 by U.S. District Judge Philip Gutierrez about similar comments in another closing argument.
“To the extent there is a difference, the closing argument in this case seems more troubling,” Blumenfeld wrote. “Littrell took it a step further still by disclosing what his client purportedly would have said on the witness stand—a step he did not take 12 years ago.”
The judge said Littrell “acted deliberately and in bad faith.”
“Based on its observation of Littrell, the Court is not persuaded that the improper argument was nothing more than a poor word choice or slip of the tongue,” Blumenfeld wrote. “Littrell is a seasoned, skillful, and deliberate lawyer who admittedly made an intentional, strategic decision.”
Still, Blumenfeld declined to refer Littrell to the Central District of California’s Standing Committee on Discipline, saying a $500 sanction “is reasonable and appropriate here.”
Meanwhile, Fortenberry is appealing his convictions with the 9th Circuit. Littrell and his co-counsel at trial, Sen. Ted Cruz’s friend Glen Summers of Bartlit Beck LLP, and a team from , including noted appellate attorney Kannon Shanmugam from Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York City.
I watched Fortenberry’s entire trial, and I remember reading the opening brief and thinking his defense comes across much better on paper than it did in the courtroom. You can read it here. Prosecutors filed their answering brief on Jan. 27. You can read that one here.
Speaking of appeals…
Convicted fraudster and federal prisoner Michael Avenatti has three active appeals in two U.S. circuit courts. Now he’s asking Judge Selna to halt his payment requirements on the $7.6 million he’s ordered to pay his clients-turned-victims, saying the amount is a serious issue for appeal.
I tweeted about Avenatti’s ongoing legal saga last night, sharing a link to the Jan. 19 oral argument in the Nike extortion case and Dec. 16 opening brief in his appeal in the Stormy Daniels fraud case. (Check out the thread here.)
The tweeting led to an exchange with none other than Jay Edelson, the Chicago plaintiff’s lawyer who told U.S. District Judge Thomas Durkin about missing settlement money in the Lion Air crash litigation, leading to the downfall of powerbroker Tom Girardi.
Speaking of Girardi…
His co-defendant Christopher K. Kamon pleaded not guilty on Thursday to the Northern District of Illinois indictment, appearing remotely from jail in a video arraignment members of the public could watch via a link on the court’s website.
Kamon, 49, was the chief financial officer for Girardi Keese, and he’s been in jail since October on a separate case in the Central District of California alleging a side embezzlement of which Girardi apparently had no knowledge. He’s represented by Jack DiCanio, Allen Lanstra and Matthew Tako of Skaden Arps, with Tako appearing for the arraignment.
Kamon and Girardi were indicted in the Central District on Jan. 31 on five counts of wire fraud related to the embezzlement of more than $15 million in client settlement money. The indictment in Chicago was filed the next day, charging Kamon, Girardi and Girardi’s former law partner and son-in-law, 62-year-old David R. Lira, with eight counts of wire fraud and four counts brought under U.S. Code title 18, section 401, which criminalizes contempt of court.
Section 401 also criminalizes misbehavior by officers of the court in their official court business and disobedience or resistance to court orders. Chicago prosecutors say Girardi, Kamon and Lira’s alleged embezzlement of millions of dollars that by court order was to go to family members of Lion Air crash victims qualifies.
I wrote earlier this week that I’d never seen such a charge in the Central District (while clarifying in a video that that doesn’t mean there’s never been one), but I can no longer say that after a reader alerted me to the case of Donald Okada v. Mark Whitehead and its progeny, United States v. Mark Whitehead.
Whitehead was a Florida real estate agent and court-appointed receiver for a property in the Dominican Republican who was by court order barred from selling the property. He tried to sell it anyway, then he gave testimony in trial that a judge said lacked credibility. The judge ended up referring Whitehead to the U.S. Attorney’s Office for criminal charges under, you guessed, it, none other than U.S. Code title 18, section 401. And the judge was U.S. District Judge Josephine Staton, who is coincidentally the same judge assigned to Kamon and Girardi’s case in Los Angeles.
Whitehead was sentenced to 24 months in 2018. You can read more about his case in this sentencing memo from Assistant U.S. Attorney Brett Sagel who, coincidentally, also prosecuted Avenatti.
In case you missed it, Girardi was arraigned in Los Angeles on Monday and will be undergoing a mental evaluation. Judge Staton will ultimately decide if he’s competent to stand trial.
On another note, I wrote in Monday night’s article that noted trial lawyer Tom Nolan attended Girardi’s arraignment. Nolan has since replied to my email asking why he attended. This is what he said: “I was at the Courthouse for other purposes and stopped by more out of curiosity. In truth, where I chose to sit completely blocked my view of Tom. I read that he appeared to have regressed. It is truly a tragic case. My heart breaks for the tens of hundreds of his victims.”
Girardi is to be arraigned in Chicago via video on March. 3. Lira, meanwhile, is scheduled to be arraigned today at 11:30 a.m. Pacific time via video, which means you can watch it online.
U.S. Magistrate Judge Jeffrey Cummings in Chicago included the Webex stream link in a minute entry: “Members of the public and media will be able to view the hearing by using the following Webex link: https://us-courts.webex.com/us-courts/j.php?MTID=m15b12b3396b5a858177a67994a34b130. The call-in number is: 1-650-479-3207; Access: 2314 058 4511.”
Speaking of live streaming…
If you’re reading this before 9:30 a.m. Pacific time on Friday, it’s not too late to catch me live on on Fox 2 News in Detroit.
I’ll be appearing via Skype on the The Noon talk show with Maurielle Lue and Lee Thomas to discuss going viral while covering rapper Tory Lanez’s trial for shooting Megan Thee Stallion.
Maurielle contacted me last month after a Los Angeles County Superior Court jury convicted Lanez of shooting Megan. She said I have a large fan base in the Detroit area after “Meghann Thee Reporter” trended locally for four days straight on Twitter, so today should be a fun discussion about how nuts it was to have all that happen when I was trying to cover a trial.
You can watch live online here. I’m told I’ll be on about 9:40 a.m. Thanks for tuning in!
Lastly, in case you missed it: O.C. jury sides with trucker in lawsuit over 2019 arrest by San Bernardino deputies
Thank you for reading Legal Affairs and Trials with Meghann Cuniff’s weekly round up. I am experimenting with this weekly newsletter as a way to share my work for Los Angeles Magazine and my social media reporting, all in one place. I also am experimenting with more frequent email updates such as the Girardi emails earlier this week. I will be back next Friday. In the meantime, follow me on Twitter.