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A $500,000 sanction slapped on a Beverly Hills, Calif., lawyer survived a challenge Monday when the 9th U.S. Circuit Court of Appeals asked a lower court to clarify its ruling. A unanimous three-judge panel held that a federal judge did not abuse her discretion in ordering James Hicks, a partner at Ervin, Cohen & Jessup, to pick up the attorneys’ tab since a simple investigation would have revealed a copyright suit was without merit. But the panel asked the judge to clarify the basis for her order. “In doing so, we do not condone Hicks’ conduct or suggest that the district court did not have a firm basis for awarding sanctions,” wrote Judge M. Margaret McKeown. “Rather, the remand is to assure that any Rule 11 sanctions are grounded in conduct covered by Rule 11.” McKeown was joined by Chief Judge Mary Schroeder and U.S. District Judge Thomas Zilly of the Western District of Washington, sitting by designation. The suit stems from a copyright suit filed by Hicks against Mattel Inc. on behalf of a doll maker with a history of courtroom battles over Mattel’s Barbie dolls. U.S. District Judge Nora Manella of the Central District of California, citing “boorish” behavior and a record of litigation misconduct, slapped Hicks with an order to pay more than $500,000 in attorney fees. Hicks, a graduate of both Yale University and Harvard Law School, who edited Harvard Law Review, did not immediately respond to a phone call seeking comment. Hicks’ client is a co-founder of the Collegiate Doll Co., which created, and in 1996 copyrighted, a doll dressed like a University of Southern California cheerleader. After Mattel tried to prevent distribution of the doll, it reached a settlement with Collegiate Doll. The co-founder then filed a copyright infringement suit against Mattel. According to the court, Mattel showed Hicks and his client that Mattel’s allegedly infringing dolls were based on copyrights obtained in 1991, but Hicks refused to withdraw the complaint. During one videotaped meeting, Hicks hurled the dolls from a conference table. During a deposition, he berated his client after a damaging admission. McKeown noted that even after being the subject of a Rule 11 motion, Hicks “began filing additional papers that were characterized by frequency and volume.” Judge Manella granted the Rule 11 motion, telling Hicks that all he had to do was look at the back of the head of the allegedly infringing Barbie dolls, since that’s where the copyright marks are printed. On appeal, Hicks argued that the case was more complex than Manella’s characterization. McKeown concluded otherwise. “It was Hicks’ absence of investigation, not the district court’s absence of analysis, that brought about his downfall,” she wrote. “The laundry list of Hicks’ outlandish conduct is a long one and raises serious questions as to his respect for the judicial process,” wrote McKeown in Christian v. Mattel, 02 C.D.O.S. 3176. However, Hicks struck the right chord when he argued that Manella sanctioned him, in part, for behavior that was outside the pleadings and other papers. Discovery abuses, legal misstatements and generally loutish behavior cannot form the basis of Rule 11 sanctions. “Hicks’ argument has merit,” McKeown wrote in remanding the case to Manella for clarification of the basis of the sanction award. An attorney for Hicks said he had not read the opinion and referred an inquiry to a second attorney, who did not return a phone call seeking comment.

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