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FLIGHT ATTENDANTS WHO SETTLED ARE NOW UNITED CREDITORS Current and former female flight attendants of United Airlines reached a $30 million settlement with the company recently in a discrimination case that made new law when it went up to the 9th U.S. Circuit Court of Appeals. Unfortunately, like any other matter associated with United these days, whether and when the flight attendants get their money is in the hands of a federal bankruptcy judge. The women sued over an airline policy that set maximum weight requirements for female flight attendants. After their suit was thrown out by one federal judge, it was reinstated by the 9th Circuit. On remand, the case was transferred to U.S. District Judge Martin Jenkins, who approved the settlement Dec. 6 — a week earlier than was originally scheduled. Why? Because days later United filed for bankruptcy. And although dispersement of the settlement is still subject to the bankruptcy court, the plaintiffs wanted to get the deal done without having U.S. Bankruptcy Judge Eugene Wedoff dictate the terms. For example, said Lieff Cabraser Heimann & Bernstein partner James Finberg, $10 million of the settlement is set aside for emotional distress claims. Wedoff could have set that figure at zero. Finberg said one flight attendant once had two pints of blood removed prior to a weigh-in. Another postponed a doctor-recommended hysterectomy because the accompanying medication would cause her to gain weight. “We’re an unsecured creditor in the bankruptcy court with a $30 million claim,” Finberg said. But plaintiffs still wanted Jenkins’ approval so that “we go into bankruptcy with a liquidated claim.” Along with Finberg, the plaintiffs were represented locally by San Francisco solo Edith Benay. O’Melveny & Myers represented United, which included San Francisco partners Douglas Dexter and David Reis. Retired U.S. District Judge Charles Renfrew moderated settlement talks and is expected to issue a recommendation on attorneys fees this week. According to the settlement, the fee award will not exceed $6.14 million. — Jason Hoppin RAVE REVIEWS The stellar lawyering in the first criminal trial of the Digital Millennium Copyright Act had even the judge gushing. After attorneys finished closing arguments Thursday morning, a usually low key U.S. District Judge Ronald Whyte couldn’t help himself. “This is the best-argued case I’ve seen since I’ve been on the bench,” Whyte said after jurors filed out of his San Jose courtroom. The two-week trial pitted Assistant U.S. Attorney Scott Frewing against Joseph Burton, a partner at San Francisco’s Duane Morris and a former assistant U.S. attorney. The criminal trial — the first ever under the fledging DMCA — left much room for sparring as Frewing and Burton duked it out over jury instructions and testimony. And while the case had its fill of techno babble, attorneys were able to keep it interesting, with the prosecutor complaining of a last-minute exhibit “ambush” and Burton angling to keep out a videotaped deposition. — Shannon Lafferty THE WAL-MART WAY In other Digital Millennium Copyright developments, after-Thanksgiving sales circulars could fuel the next battle under the fledgling DMCA. Wal-Mart Stores Inc., Kmart Corp. and other national retailers are irritated that Ohio-based Web site Fatwallet.com leaked and published their after-Thanksgiving sales prices before the big shopping day. They fired off cease-and-desist letters, contending that sales circulars and pricing information was copyrighted material under the DMCA. Wal-Mart also subpoenaed Fatwallet.com under the DMCA, asking the consumer-to-consumer Web site to divulge the name of the person who leaked the information. Fatwallet.com pulled down the pricing information, but is refusing to respond to the subpoena, and now its attorneys, including the Samuelson Law, Technology & Public Policy Clinic at Boalt Hall School of Law,have questioned the copyright ability of pricing information and demanded that Wal-Mart pay attorneys fees and damages. “They had no legal right to assert copyright protections,” said Megan Gray, a Washington, D.C., based solo representing Fatwallet.com. “If someone makes a knowingly false claim of copyright infringement, they are responsible to the Internet service provider for all of its damages and attorneys fees for responding to the frivolous copyright claims.” Wal-Mart has since backed down from the subpoena. The company’s attorney, Jeffrey Gitchel, an associate at Pittsburgh’s Kirkpatrick & Lockhart, said Wal-Mart dropped the subpoena request when it became clear that Fatwallet.com’s attorneys wanted to raise a “constitutional matter.” “They’re trying to leach off Wal-Mart’s name and we are not going to give it to them,” Gitchel said. — Shannon Lafferty A FIRST-YEAR TRIUMPH A Sacramento jury recently found outgoing state Department of Education Superintendent Delaine Eastin was “personally liable” for retaliating against a former employee. A jury ordered Eastin to pay nearly $1.5 million to James Lindberg, who was demoted after he discovered misappropriation of federal funds within the department. The state and another manager were ordered to pay $3 million. And while the Sacramento Superior Court case is remarkable because it’s rare for a jury to order a constitutional officer to pay an award, the matter is also noteworthy because Lindberg’s attorney has only been practicing law for one year. “It’s good. It’s beyond my dream,” said 28-year-old Gaspar Garcia II, who attended UC-Davis’ King Hall School of Law and passed the bar in December 2001. Garcia got the case, James Lindberg v. California Department of Education, et al., 01A203012, because his father, the first Gaspar Garcia, knew Lindberg from working at the Department of Education. The elder Gaspar, whom his son calls a “very political person,” is now on the board of the Sacramento Unified School District. Eastin ends her second and final term as education chief this year. Gaspar II said he hopes the verdict will send a message to others who would retaliate against whistle-blowers. The Sacramento solo said he’s working on myriad other cases, mostly employment and personal injury matters. Even though it’s a gold star for him now, Gaspar might not be finished with the Eastin matter. Attorneys representing her and the education department said they will appeal. — Jeff Chorney

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