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Sanctions imposed on two lawyers and their clients because the clients gave false affidavits in an authorship dispute over the song “The Lion Sleeps Tonight” have been upheld by the 2nd U.S. Circuit Court of Appeals. A unanimous court let stand the 1998 decision by Judge Michael B. Mukasey of the U.S. District Court for the Southern District of New York ordering attorneys Mitchell A. Stein and Stephen J. King to pay $15,000 -� and their clients to pay $7,680 -� to help “defray fees generated by their unreasonable conduct,” in asserting a time-barred claim in Margo v. Weiss, 98-9609. The event that triggered the sanctions was the attempt of four members of the 1950s musical group, The Tokens, to correct deposition testimony saying they initially learned they had been fraudulently denied authorship rights to the song in late 1992. Stein and King drew the ire of Mukasey when they tried to present evidence that their clients had been mistaken in those depositions and had actually learned about the denial of authorship rights much later -� late enough to place their 1996 lawsuit within the three-year statute of limitations. Mukasey dismissed the suit as time-barred in 1997, and the following year granted a defense motion to impose sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure and Section 505 of the Copyright Act of 1976. The Tokens, comprising Philip Margo, Mitchell Margo, Henry Medress and Jay Siegel, recorded the song in 1961. However, another version of the song had been recorded almost a decade earlier under the title “Wimoweh” -� a word used repeatedly in the chorus of the song -� and was copyrighted by Folkways Music Publishing Inc. A dispute over renewal rights between the lyricists who wrote the words for “The Lion Sleeps Tonight” and Folkways prompted The Tokens to file their own action against the lyricists in May 1996. Before that dispute became public in 1992, The Tokens charged, they had no reason to think they had a co-authorship claim against the lyricists. AMENDED COMPLAINT In 1997, The Tokens filed an amended complaint, with affidavits asserting they had learned of the dispute in late 1994. They also submitted errata sheets for their deposition transcripts, and citing errors in those transcripts, tried to change their testimony. In granting the sanctions, Mukasey said that the filing of the affidavits was unreasonable and “motivated by a desire to prolong what had become objectively baseless litigation.” Mukasey added that to believe the plaintiffs, “would be to affect a level of naivete about human affairs that is not required even of judges.” He also said that “the plaintiffs attempt to disavow their deposition testimony was false, and that legally significant falsity was aided and abetted by their lawyers … “ On appeal, Stein and King claimed that Judge Mukasey’s decision denied them due process; they also said he imposed sanctions without an evidentiary hearing or proper notice. The 2nd Circuit, however, disagreed in an opinion written by Judge Robert D. Sack. The appeals court upheld Mukasey’s sanction, but was careful to note that the judge, while using harsh language, “did not say that the plaintiffs or their lawyers committed perjury.” The lawyers had argued on appeal that in certain sanctions proceedings, one is entitled to the procedural protections afforded someone charged with a crime. But Sack said the proceedings in this case were not even “quasi-criminal.” FEES AS COMPENSATION “The award of fees in this case, by contrast, was meant to compensate the defendants for the extra costs, including legal fees, created by the plaintiffs’ unreasonable conduct, and as such the fees were payable to the defendants.” Sack also said “plaintiffs’ counsel received ample notice of the specific conduct for which they were sanctioned.” The sanctioned attorneys had argued that the lawsuit had been filed before the 2nd Circuit’s opinion in Merchant v. Levy, 92 F3d 51 (1996), which held that plaintiffs were time-barred from seeking a declaration of copyright co-ownership rights once the three-year statute of limitations for copyright claims set forth in 17 U.S.C. �507(b) had run. Sack said that under Merchant, Mukasey’s ruling that their claim was time-barred was correct. Moreover, he said, defendant’s Rule 11 motion made it clear that Merchant governed the case. Judge Sack said that “plaintiffs’ counsel took advantage of the notice they received from the defendants’ Rule 11 papers” by submitting a declaration “in which they presented at length, their version of the events that culminated in the submission of the plaintiffs’ contradictory affidavits.” “The district court acted well within its discretion in granting the defendants reimbursement for a portion of their attorneys fees to compensate them for the waste of the court’s and counsel’s time,” he said. The defendants had also asked the 2nd Circuit to award attorneys’ fees for the appeal. “We decline, in our discretion, to award such fees,” Sack said. “Because the plaintiffs’ half-hearted appeal on the merits is governed by the well-settled case law of this circuit as correctly applied by the district court, however, we award defendants double costs on the appeal.” Judge Amalya L. Kearse and Senior Circuit Judges Wilfred Feinberg joined in the opinion. Tab K. Rosenfeld of Stein & Associates represented The Tokens and King and Stein on the appeal. David Blasband, of Deutsch Klagsbrun & Blasband, represented George David Weiss, and Luigi Creatore, the lyricists of “The Lion Sleeps Tonight,” and June Peretti, the widow of a deceased co-lyricist. Rosenfeld said: “We believe there was nothing in the 2nd Circuit’s opinion that suggests or intimates that there were any improprieties by the attorneys representing the plaintiffs.”

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