Yesterday’s summary judgment filings confirm that settlement talks have been ongoing–and the Siegel side is in disarray.The motion filed yesterday was as expected as a player trotting to first base after ball 4. When an appeals court sends a case back down saying that the case is all but over but the filing, the natural next step for the winning party is to file for summary judgment.
I’ve uploaded the documents here. As anticipated, DC is asking the court to rule against the Siegels in the Superboy and Superman lawsuits on the basis of the pre-existing settlement.
The one thing that stands out: the Siegel side has not been able to state a single argument in favor of keeping these cases alive.
The emails entered as exhibits mention that the parties entered into settlement talks to end the dispute without a final judgment from the judgment from the court. Again, as we’ve noted before, that’s typical in these situations–when one party has a decisive advantage, reaching a settlement without a judgment is efficient and offers a way for the otherwise losing side to save face, not to mention additional legal expenses.
In the course of these exchanges, the Siegel side insists that it has legal arguments for going forward, but upon questioning, it does not mention any specifics. It’s a weak attempt to get some leverage in negotiations, and DC’s summary judgment motion is calling Toberoff’s bluff. Either the settlement is wrapped up quickly and on DC’s terms, or DC will get the court to end it first.
The Siegel response to DC’s summary judgment motion isn’t any stronger–the Siegel case has basically come down to an argument as to the timing of the summary judgment motion. The reasoning does not exactly inspire confidence–the main contention is that while DC’s counsel told Toberoff it would enter a motion for judgment, it didn’t say summary judgment. That line of nyah-nyah argument may command respect on the playground, but in contrast to the heights of 2008 and 2009 it’s kind of sad.
DC also takes the opportunity to call into question the legitimacy of Toberoff’s latest filing in the Pacific Pictures’ case. As discussed in my previous post, that filing also sent a clear message of defeatism and disarray–and DC is moving in for the kill.
Fredric Wertham, Seduction of the Innocent, Chapter 10.
Settlement talks? I don’t see anything.
@mgh The following are a few references to the initiation of settlement talks.
Toberoff’s argument against the summary judgment is that DC violated procedural rules re a mandatory pre-filing notice period. DC finds the you-said-judgment-but-not-summary-judgment argument to be transparent jockeying for tactical advantage. Specifically, DC alleges that Toberoff was delaying so he could prepare and file the 2/7 Pacific Pictures motion, which, reading between the lines, is an attempt at showing that the recent string of losses has not left Toberoff powerless.
Thing is–and here I’m speaking more about the negotiating role of an attorney than the legal–the PacPic filing doesn’t achieve that goal. If anything, it has the opposite effect.
The same goes for the objection to DC’s motion on 2/7. Could Toberoff win on the you-said-judgment-not-summary-judgment technicality? Sure. District court judges have to be sensitive to this sort of stuff, since you don’t want a picayune matter of procedure to undo more substantive decisions. But as I noted yesterday, it doesn’t foster fear or respect.
Settlement talk references – the process started in January
p.17 – email
p. 18 – email
p. 78 “In reality, Mr. Petrocelli had stated in a largely unrelated telephone
conversation with Mr. Toberoff about organizing settlement talks that DC would file a “motion for entry of judgment””
p. 78 “On January 31, Mr. Petrocelli had a telephone conversation with Mr. Kendall (who does not represent any party in these two cases) about coordinating a settlement meeting.”
p. 79 “Obviously, DC cannot use casual references in settlement conversations to evade its meet-and-confer obligations under Local Rule 7-3, especially when DC was openly vague about the sort of motion it intended to file”
A quick update – one procedural, another more interesting.
Procedural: Judge Wright replied pretty much as one might expect. He says that while DC gave Toberoff plenty of notice, Toberoff IDed a technical inconsistency with the procedural rules.
You can almost hear the judge sigh.
The upshot: he grants the continuance and cancels the March 11 dates for the Siegel and Pacific Pictures cases. In Pacific Pictures, he takes this one step further and says that he’ll make his decision based on the record.
What’s more interesting is that DC’s latest document dump includes an interesting piece of info re the Shuster case. DC includes material indicating that it has sought a new court-ordered mediation with Mark Peary now that the court has shown him that he really can lose everything except the micro-settlement with his mother. Previously, Peary had said he had only considered the possibility of a loss “like I would an asteroid hitting us and wiping out life on earth.”
In other words, DC is likely prepared to reach a new agreement in excess of the old 25K/year settlement.
The latest case documents can be found here: http://www.scribd.com/doc/124657128/Siegel-Superman-Superboy-Pacific-Pictures-cases-2-8-2013-documents
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