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In April, jurors in a copyright infringement case against MP3.com astonished federal Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York when they called his chambers after the verdict and said they had actually intended to award the plaintiffs $2.9 million — not the nearly $300,000 that had been announced when the verdict came down. On Tuesday, Rakoff concluded that the jury’s bad math, apparently the result of a miscalculation on a Palm Pilot, called for only one solution: a new trial with a new jury. “The American jury system may yield countless benefits, but in this case it produced an uncounted, and unaccountable, result,” Rakoff said Tuesday in his opinion ordering a new trial in TeeVee Toons Inc. v. MP3.COM Inc., 00 Civ. 3951. Before trial in April, Rakoff had found MP3.com liable for copyright infringement on some 145 works belonging to the company TeeVee Toons Inc. and other plaintiffs. So the task before the eight-member jury was simply to determine damages for each of the infringed works. On April 6, the jury announced it was awarding nothing for 53 works, $750 for 15 works, $1,248 for one infringement and $50,000 for the infringement of a “greatest hits” compilation of television theme songs. One plaintiff was also awarded $49,875 in damages. The problem came with the jury’s awards to four plaintiffs, including TeeVee Toons: $3,125 for each of 75 infringements, bringing the total awarded to the four plaintiffs to $246,998. Four hours after the jury was dismissed, two jury members who heard media reports on the verdict placed frantic calls to chambers saying the panel had really intended to award close to $3 million. After a series of calls between the judge, his clerk and lawyers for both sides, Rakoff ordered the parties and the jurors to return to court on Monday, April 9. Characterizing the situation as “unprecedented,” Judge Rakoff then held interviews with all eight members of the jury in chambers. Tuesday, in his opinion, Rakoff said he had gotten to the heart of the matter. The jurors he interviewed, he said, “agreed that the process of calculating the appropriate awards for the individual infringements within the framework of the agreed-upon total award had been entrusted to a single juror, who had performed the calculations on her own ‘Palm Pilot’ handheld computer, and that none of the jurors had bothered to double check the calculations thereby obtained.” To support the claim that the announced verdict was incorrect, Rakoff said one of the jurors produced a sheet of scratch paper she had saved from deliberations showing that the total award was intended to be $2.9 million. Other jurors supported that version of events, he said. “From this evidence, it is manifest that the figures recorded in the verdict sheet, even though assented to in open court, do not reflect the verdict the jury actually agreed upon in their deliberations,” he said. CONFIRMING ACCURACY Jeffrey A. Conciatori of Orrick, Herrington & Sutcliffe, who represented MP3.com, had objected to the court’s decision to re-examine the verdict and interview the jurors, an objection based on the prohibition against taking juror testimony to impeach a verdict embodied in Federal Rule of Evidence 606(b). But Judge Rakoff said Rule 606(b) is “silent” as to inquiries aimed at confirming the accuracy of a jury verdict. “More generally, federal law distinguishes between inquiring into the jury’s deliberative process, which Rule 606(b) forbids, and merely seeking to determine whether the verdict actually agreed to by the jury is the same as the one reported to the court, which case law permits,” he said. Because “it is clear that the errors were essentially mechanical in the process of breaking down the agreed-upon verdict into separate awards for each individual infringement,” Rakoff said, inquiring into the error would not amount to an improper involvement in jury deliberations. “However, it is one thing to conclude that the verdict rendered in court was not the verdict actually agreed to and another to ascertain the precise amount of the verdict actually reached,” he said. The difficulty, Rakoff said, was in fixing the “exact breakdown” between the TeeVee Toons plaintiffs and the fifth plaintiff, who was awarded the $49,875. “While it seems likely that the scratch paper showing a total award of $2,915,098 is accurate, only the juror producing it affirmatively testified that this was the precise amount agreed to, and the court concludes that this is an insufficient basis on which to correct the verdict,” Rakoff said. “Accordingly, the only reasonable alternative is to retry the case.” WITHDRAWING COUNSEL Judge Rakoff was faced with another issue at Tuesday’s hearing, the request of Michael Elkin of Thelen Reid & Priest to withdraw as counsel for TeeVee Toons. The request came over a fee dispute with TeeVee Toons, which has now retained James J. Benjamin, of Akin, Gump, Strauss, Hauer & Feld, to handle the retrial. After retiring to the robing room with Elkin and Benjamin, Rakoff returned to the courtroom to announce that he had approved the withdrawal motion. The second trial has been scheduled for November.

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