An actor in the perennial seasonal favorite, A Christmas Story, is suing McCarter & English, claiming it helped a client fraudulently conceal evidence that he was owed royalties for a movie-themed calendar with his photo.
Zack Ward — who played the 1983 film’s heavy, the bully “Scut Farkus” — says McCarter knew its client National Entertainment Collectibles Association of Hillside sold the calendar but concealed that fact during discovery in a separate suit in Los Angeles.
The new suit, Ward v. National Entertainment Collectibles Association, 12-cv-5078, filed Monday in federal court in Newark, also names National Entertainment and its previous lawyer, Cranford solo Edward Busichio. It seeks compensatory and punitive damages, discovery sanctions and attorney fees.
McCarter spokeswoman Daria Hall says the allegations against the firm are baseless and the firm will fight them.
Ward alleges that National Entertainment contracted with him in 2006 to license his likeness to produce a Scut Farcus action figure. He claims it also agreed to make quarterly royalty payments and issue quarterly reports on sales of the product from the movie, which was based on the short stories of Jean Shepherd and is often replayed on television during the holiday season,
But National Entertainment allegedly did not do so, prompting him to sue in federal court in Newark in July 2010.
Busichio filed an answer on behalf of National Entertainment in August 2010.
Attached to his answer was a “product profit report,” listing three products made by the company that use Ward’s likeness — a A Christmas Story board game, a seven-inch Scut Farcus action figure and a set of A Christmas Story action figures that included the Farcus figure.
The report was issued in response to questions from U.S. Magistrate Judge Patty Shwartz.
On May 2, 2011, Matthew Wapner of McCarter entered his appearance for National Entertainment. Three days later, Ward filed an amended complaint, accusing National Entertainment of fraud for producing the board game without permission to use his likeness.
On May 27, Ward filed a motion to transfer the case to the Central District of California, and District Judge Faith Hochberg granted it that August. Last December, National Entertainment replaced McCarter with Sheppard Mullin Richter & Hampton of Los Angeles.
On Aug. 8 of this year, five days after discovery ended, Ward learned that National Entertainment had used his image, without his consent, on a 2009 calendar, according to his complaint.
It says Central District of California rules bar a plaintiff from amending a complaint to add a claim for fraudulent concealment of evidence, bringing a motion for discovery sanctions against the defendants or extending the discovery deadline.
But, the suit adds, “A plaintiff may file a separate tort action if the evidence concealed by defendants was not discovered by the plaintiff until after the plaintiff’s case in the underlying action has been seriously inhibited.”
He says his suit meets the New Jersey requirements for stating a claim for fraudulent concealment: he alleges that the defendants had a legal obligation to disclose evidence in connection with pending litigation, the evidence was material to the litigation and the plaintiff could not reasonably have obtained access to it from another source. In addition, he alleged that the defendants intentionally withheld the evidence to disrupt the litigation and that he was damaged in the underlying action by having to rely on a record that did not contain the evidence the defendants concealed.
Ward’s attorney in the New Jersey case, New York solo Randall Newman, did not return a call. The company’s chief executive, Joel Weinshanker, referred a call to Kent Raygor of Shepherd Mullin, who said he had not seen the complaint and could not comment.