Wednesday, September 2, 2015

Judge blasts Philly-area lawyer for conduct in suit against Usher

The same attorney announced this week his plan to sue Led Zeppelin

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Media-based attorney Francis Malofiy (left), who recently made news by announcing plans to sue Led Zeppelin, was sanctioned by a federal judge in Philadelphia for his conduct in a copyright-infringement suit against Usher. (Photos from francisalexander.com and Getty Images)
Media-based attorney Francis Malofiy (left), who recently made news by announcing plans to sue Led Zeppelin, was sanctioned by a federal judge in Philadelphia for his conduct in a copyright-infringement suit against Usher. (Photos from francisalexander.com and Getty Images)

A local attorney who rocked the music industry this week by announcing his intent to sue Led Zeppelin was blasted Wednesday by a federal judge who handed down sanctions against the lawyer in a separate suit involving R&B star Usher.

U.S. District Judge Paul S. Diamond issued a memorandum regarding the conduct of Media-based lawyer Francis Malofiy during proceedings in a suit over the rights to Usher’s song “Bad Girl.” The suit, filed by Malofiy, claims that Usher, also a panelist on "The Voice" talent show, failed to give writing credit to his client.

“It is difficult to convey the poisonous atmosphere created by Malofiy's continual belligerence to opposing counsel,” the judge wrote, noting that 17 of the 20 defendants in the case had moved for sanctions to be imposed against Malofiy.

The judge struck from the record an affidavit and testimony Malofiy allegedly obtained through deception and ordered Malofiy to pay increased attorney’s fees and court costs. Also Wednesday, Diamond granted summary judgment in favor of Usher and the other defendants, ruling that they had received authorization to copy the song.

More coverage
  • Same lawyer says he'll sue over 'Stairway to Heaven'
  • READ: The sanctions memorandum
  • “These are extraordinary measures that you almost never see in court,” said Bruce L. Castor Jr., attorney for defendant IN2N Entertainment Group, which owns some of Usher’s songs. “I’ve almost never seen one, much less all of them.”

    Malofiy, in an emailed statement sent Friday, said he would be appealing both the order imposing sanctions and the summary judgment ruling. "I am confident we will be successful in both appeals, as the rulings are without legal merit and are premised upon gross distortions of the truth unsupported by the objective evidence in either matter," he wrote.

    Malofiy was representing songwriter Dan Marino, a Philadelphia musician who collaborated with two others – Dante Barton and William Guice – on the song “Club Girl.” Barton and Guice copyrighted the song and allowed Usher to use it under the name “Bad Girl” on his Grammy award-winning album "Confessions."

    Marino said in the suit that he never received writing or producing credit for the song, though Barton and Guice did. Marino, with Malofiy as his attorney, filed a federal copyright-infringement suit in October 2011 naming Barton, Guice, Usher, Sony Music Holdings, and several other entertainment and production companies and individuals.

    Malofiy was also in the news this week - including an appearance on CNN - after Bloomberg Businessweek reported he was working with the trust of late guitarist Randy California on a potential suit against Led Zeppelin. California’s family and friends claim the legendary British rock group stole the opening to the hit “Stairway to Heaven” from the Spirit song “Taurus.”

    Diamond, in the memorandum issued Wednesday, slammed what he called Malofiy’s “outrageous” conduct during the Usher case. 

    “Malofiy’s unprofessional behavior throughout discovery was the antithesis of cooperation,” Diamond wrote. The parties in the suit were unable to schedule depositions because Malofiy refused to agree on dates and locations, according to the judge. “When depositions finally took place, Malofiy did what he could to disrupt or obstruct them,” often with wordy objections, Diamond wrote.

    The judge also condemned what he called “Malofiy’s sexist, abusive remarks” when he told a defense attorney at one point, "Don’t be a girl about this.” During one hearing, Diamond said, Malofiy became so aggressive that a defendant being deposed said he “[felt] menaced and threatened by Mr. Malofiy and his continual outbursts and seemingly anger-driven conduct.”

    The attorney’s written filings were just as bad, according to the judge. One was captioned, “Response in Opposition Re: Joint Motion for Sanctions by Moving Defendants Who are Cry Babies;” another, “Plaintiff’s Response to Defendants’ Incessant Complaining,” the memorandum states.

    In behavior Diamond called “the paradigm of bad faith and intentional misconduct,” Malofiy also tricked defendant Guice into signing an affidavit in which Guice admitted to some of the claims brought against him, the judge’s memo states.

    In one proceeding, Malofiy told a defense attorney, “You are defending thieves and you are acting like somebody who should be hanging out with them at this point.”

    The judge said Malofiy assured Guice he was only a witness in the case and was not being sued, neither asking him if he had a lawyer nor advising him to get one. Malofiy then obtained a ruling against Guice for failing to answer the complaint.

    “Having thus dishonestly ensured Guice’s failure to respond, Malofiy entered a default against Guice for that failure,” the judge wrote. “It is difficult to imagine more vexatious or unreasonable behavior.”

    Guice acknowledged Marino was a writer on "Club Girl" and swore to it in an affidavit at a hearing in May 2013. But Guice appeared in court unrepresented because he still thought he was a witness. It became apparent during questioning by defense counsel that Guice did not know the meaning of the word “defendant,” the judge wrote.

    Because the deposition was continued for a month so Guice could try to get a lawyer, Malofiy “multiplied proceedings” and increased court costs, Diamond ruled.

    He ordered that that Malofiy personally pay excess court costs and attorneys’ fees incurred during the extra days of the deposition. Diamond ruled that Guice’s affidavit and part of his testimony be excluded from the record. He also opened the default judgment previously entered against Guice.

    Malofiy said in an emailed statement that the court "made a mistake in this case" and that the judge's opinion "conveys a completely inaccurate and false representation of the facts as it relates to [Malofiy's] interaction with Mr. Guice."

    "Simply stated: I told the man I represented the plaintiff Dan Marino, I told Mr. Guice that he was a defendant," Malofiy said. "He never told me he was confused."

    Malofiy also defended his actions during the depositions, at one point saying he was “going to be a zealous advocate,” according to court records. He later attributed his behavior to his inexperience, the memorandum says. Malofiy, who is 36, was admitted to the Pennsylvania bar in October 2008, records show.

    “I’ve never actually seen a judge tee off on a lawyer this badly,” said Castor, who is with the Ardmore-based firm of Rogers Castor. Castor is a Montgomery County commissioner and a former Montgomery County district attorney. “He could have simply ran a motion for summary judgment and been done with it. He went far beyond that.”

    To date, Malofiy has not said when he plans to file the suit against Led Zeppelin. Still, he said his "primary goal" in filing the lawsuit against Usher was achieved, "in spite of the significant distractions in this case, and the related collateral damage sustained."

    "The court was convinced, and the world now knows that my client – Dan Marino – wrote, recorded, engineered, and produced 'Club Girl' and Usher’s 'Bad Girl,' " Malofiy said, noting his client is pleased.

    "I went to law school wanting to make a difference; when I graduated from law school, I never lost sight of that goal," Malofiy continued. "Sometimes making a difference comes at an expensive price. Whatever consequence I face is my burden to bear."

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