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Water-cooler gossip among lawyers today just might be all about thelatest episode of “The Sopranos.” But not the TV show. The litigation! In a big plot twist that took place in Philadelphia, a federal appealscourt has breathed new life into a court battle against the creator ofthe hit HBO series about a North Jersey Mafia boss who’s been seeing ashrink to help him cope with the trials and tribulations of raisingteens while rubbing out rivals. The suit, brought by a New Jersey lawyer (now a judge), alleges hedeserves some of the credit for “The Sopranos” original screenplay,premise and plots, and that he was promised he would be paid for hiswork if the show took off. In its 31-page opinion in Baer v. Chase, a unanimous three-judge panelfound that one of the plaintiff’s key claims was improperly dismissed onsummary judgment. For “Sopranos” creator David Chase, the ruling is a mixed bag.Although Chase won a handful of significant rulings, as the court upheldthe dismissal of most of the claims against him, the decisionnonetheless included a significant victory for Robert V. Baer — now thechief judge of Passaic County, N.J.’s municipal court in Prospect Park –because the appellate panel revived a fall-back claim that essentiallyallows him to pursue just compensation for the value of his claimedcontribution. As gossip, Tuesday’s ruling defies a simple water-cooler explanation,and not only because of the cast of characters and the intricate factualbackground. Legally, it’s, well, really complicated. Get ready for a jurisprudential mouthful: The appellate panel rejected all of Baer’s contract claims on thegrounds that the agreement was unenforceable since it lacked “essentialterms” and was “vague, indefinite and uncertain.” It also rejected aclaim for misappropriation on the grounds that “virtually all of Baer’salleged contributions either existed in the public domain or concernedstories and facts he did not provide.” But the court went on to revive Baer’s quantum meruit or”quasi-contract” claim. Finding that while such claims are not subjectto the “discovery rule” for tolling purposes, and that the lower courtinstead correctly applied the “last rendition of services” test, theappeals panel said the lower court nonetheless erred in its analysis ofthe “sham affidavit” doctrine when it held that the plaintiff was notallowed to change his deposition testimony on the issue of when thefinal chore in his work occurred. Translation: Baer has no contract, but he might be able to prove that henonetheless deserves to be paid for his contribution to the originalideas and storylines of the “Sopranos,” and the lower court was wrong totoss out the claim as too late since Baer can show that he misspoke athis deposition about how long his involvement lasted. In reviving Baer’s quantum meruit claim, the appeals court found thatthe trial judge, U.S. District Judge Joel A. Pisano of the District ofNew Jersey, was too quick to reject an affidavit from Baer that said hisdeposition testimony was wrong about the dates of his work for Chase — adate that was critical for statute-of-limitations purposes. Although Baer’s post-deposition statement contradicted his testimony,the appeals panel found he had corroborating evidence that backed it up.In the opening pages of the opinion, Senior U.S. Circuit Judge Morton I.Greenberg traced the history of Chase’s development and creation of “TheSopranos” and his involvement with Baer: Chase is originally from New Jersey, but relocated to Los Angeles in1971 and worked on numerous television productions.Before meeting Baer, Chase had worked on a number of projects involvingorganized crime activities based in New Jersey, including a script for”a mob boss in therapy,” a concept that, in part, would become the basisfor “The Sopranos.” In 1995, Chase was producing and directing a “Rockford Files”movie-of-the-week when he met Joseph Urbancyk, who was working on theset as a camera operator and temporary director of photography.According to the opinion, Urbancyk became the connection between Chaseand Baer as a result of Urbancyk’s long-time friendship with Baer andhis knowledge of Baer’s interest in pursuing a career in writing,directing and producing. Baer, a New Jersey lawyer, recently had left the Union CountyProsecutor’s Office in Elizabeth, N.J., where he had worked for sixyears when Urbancyk urged him to write a script for “The RockfordFiles.” Baer claims he wrote a script that was given to Chase, who saidover lunch that he considered it “interesting” but that no more”Rockford Files” scripts were needed. But in the suit, Baer claims the 1995 lunch also included a conversationabout his experience as a prosecutor, and that Baer pitched the idea toshoot “a film or television shows about the New Jersey Mafia.” At thattime, Baer says he was unaware of Chase’s previous work on a New Jerseymob storyline. Over the next few months, Baer claims he assisted Chase by arranging a”research visit” to New Jersey in which Baer set up meetings for Chasewith Det. Thomas Koczur, Det. Robert A. Jones and Tony Spirito, whoprovided Chase with information, material and personal stories abouttheir experiences with organized crime. The suit alleges that Koczur served as a tour guide and drove Chase andBaer to various locations in northern New Jersey.Significantly, Baer claims in the suit that Spirito told Chase true andsometimes personal stories involving loan sharking, a power strugglewith two uncles involving a family business, and two individualsnicknamed “Big Pussy” and “Little Pussy.” (In “The Sopranos,” one of theMafia capos was named “Big Pussy.”) The suit says Chase sent Baer a copy of a draft of a “Sopranos”screenplay that Chase had written, dated Dec. 20, 1995, and that Baerread it and called Chase with his comments.Baer claims that the two spoke at least four times during the followingyear, and that he sent a letter to Chase dated in February 1997,discussing the script. Baer claims in the suit that he and Chase orallyagreed on three separate occasions that if the show became a success,Chase would “take care of” Baer. At his deposition, Baer claims he misspoke when he was asked: “Soeverything that you had done and to which you claim entitlement was doneby the end of October 1995?”Although his answer in the deposition was: “Yes in terms of assistinghim in helping with this project that would be true,” Baer claimed in alater affidavit that he also sent Chase a letter in February 1997 thatdiscussed the “Sopranos” script. But Pisano applied the “sham affidavit” doctrine and disregarded Baer’spost-deposition certification. Without the February letter, Pisano foundthat the quantum meruit claim was time-barred. Now the 3rd Circuit has ruled that Pisano erred in refusing to allowBaer to modify his deposition testimony. On appeal, Baer argues that his deposition statement was “clearly, andunderstandably, mistaken,” and that his deposition answer related onlyto the “overwhelming majority of his services.”Pisano refused to accept Baer’s “mistake” argument, saying the issue wasof critical importance to his claim and the subject of repeatedquestioning. The 3rd Circuit disagreed, saying Pisano “overlooked the importance” ofevidence that corroborated the February 1997 letter. “When there is independent evidence in the record to bolster anotherwise questionable affidavit, courts generally have refused todisregard the affidavit,” Greenberg wrote. “Baer’s ability to point to evidence in the record that corroborates hislater affidavit alleviates the concern that he merely filed an erroneouscertification out of desperation to avoid summary judgment,” Greenbergwrote in an opinion joined by 3rd Circuit Chief Judge Anthony J. Sciricaand 3rd Circuit Judge D. Michael Fisher. Chase’s lawyer, Peter L. Skolnick of Lowenstein Sandler in Roseland,N.J., said he is confident that the case will be dismissed once again.Skolnick said the appellate court revived only one claim and did so onpurely procedural grounds. In a footnote, Skolnick said, the courtexplicitly stated that Pisano is free to revisit the issue of summaryjudgment on the merits of the claim. Baer’s lawyer, Michael S. Kasanoff, could not be reached for comment.

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