Black Eyed Peas
Black Eyed Peas (Nicolas Genin)

SAN FRANCISCO — It’s always dangerous to cite unpublished decisions to the U.S. Court of Appeals for the Ninth Circuit. It’s a particularly bad idea when there’s contrary, published authority on the books. And it could be a very serious problem when you already face the possibility of a $2.5 million sanction.

That’s the predicament Dean Dickie of Miller, Canfield, Paddock and Stone faced on Friday when he tried to argue that the Black Eyed Peas’ recording of “I Gotta Feeling” violated his client’s copyright.

“Why should I believe anything you’re telling me?” Judge Richard Clifton demanded at one point during Pringle v. Adams.

Dickie and his co-counsel have faced an uphill battle representing Bryan Pringle, whose 2010 claim generated media attention but ended in a summary judgment loss and an attorney fee award under the Copyright Act. The Black Eyed Peas and their music companies have asked for $2.5 million and are trying to shift the bill to plaintiffs counsel at Miller Canfield and HamptonHolley under Section 1927, calling the suit “the very definition of frivolous litigation.” They point out, among other things, that Pringle threw away the computer containing his allegedly infringing recording after his attorneys gave assurances that they were preserving evidence.

Pringle alleges “I Gotta Feeling” sampled the “guitar twang” sequence on his song “Take a Dive.” The original doesn’t contain the guitar twang, but Pringle says he added it in 1999 and distributed it widely on demo CDs. Pringle submitted a disk as proof, but there was evidence it had been backdated.

“I have legitimate questions over the authenticity of Mr. Pringle’s representations regarding the dates of his computer files,” Bryan Cave partner Kara Cenar wrote to two of Pringle’s attorneys on July 24, 2010, asking that they preserve everything on his computer system.

“We are preserving evidence, of course,” attorney Ira Gould of the Law Offices of Ira Gould emailed back five days later.

But at deposition, Pringle admitted that his hard drive was “probably in a landfill” because he’d thrown it away in December 2010. That didn’t stop him from moving for an injunction a few weeks before the band would perform “I Gotta Feeling” at the 2011 Super Bowl.

U.S. District Judge Josephine Staton of the Central District of California granted summary judgment to the band, citing the “inescapable conclusion” that Pringle destroyed evidence and brought the suit in bad faith. She awarded attorney fees under the Copyright Act, but mostly denied Section 1927 sanctions.

At the Ninth Circuit Friday, Dickie sought to overturn the summary judgment, arguing that “the big picture of all the events” shows enough evidence to merit a trial.

But the normally congenial Clifton steered Dickie to the standard for Section 1927, telling Dickie he was “distressed” that he would assert in his brief that “Appellees are simply wrong!” and then cite an unpublished decision as authority.

“You’re giving me a statement that appellees are simply wrong—complete with exclamation point—and it’s just not true!” Clifton told him. “I gotta say, I mean, we get submissions that are disappointing, but I don’t expect a brief from a firm of your caliber to contain a statement like that.”

“I understand that your honor, and I apologize for the exclamation point,” Dickie conceded.

Even with that misstep, it sounded as if Dickie and the law firms may escape sanctions.

“You got attorneys fees under the Copyright Act, and you want more?” Judge Mary Schroeder asked Loeb & Loeb partner Barry Slotnick, who argued for the Black Eyed Peas and their affiliates. “Why is there an abuse of discretion in the district court saying, ‘We’re going to give you this, but this is not really bad faith’?”

Slotnick said Pringle has made clear he can’t pay attorney fees. And Judge Staton made all the necessary findings for sanctions, including that Pringle had led counsel on “a snipe hunt” and that most attorneys would have seen that the case was bogus.

“We are asking that the standard shouldn’t be how much gullibility can you tolerate,” Slotnick said. “At some point the light has to go on if you’re a responsible attorney.”

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