October 26, 2011 2:18pm PT by Eriq Gardner
Warner Bros. Wins Round in Battle with Superman Lawyer
The lawsuit brought by Warner Bros. against attorney Marc Toberoff for allegedly interfering with contracts over rights to Superman will continue. On Tuesday, a California federal judge rejected Toberoff's attempt to strike the lawsuit on First Amendment grounds.
Warner Bros. brought the lawsuit after years of battling the estates of Superman co-creators Jerry Siegel and Joe Shuster, represented by Toberoff. The estates have largely been successful in exploiting the termination provisions of the U.S. Copyright Act in an attempt to wrestle back control over the lucrative Superman franchise.
So in 2010, Warners executed a new strategic counter-attack by filing a tortious interference suit against Toberoff, arguing that the parties had nearly executed a settlement agreement in 2002 before Toberoff inserted himself into the situation unlawfully. Specifically, the studio pointed to agreements with the Shusters made by one of Toberoff's companies, Pacific Pictures Corporation, where a joint venture was established to exploit the Shusters' rights.
In response, Toberoff filed an anti-SLAPP motion, saying that Warners' gambit violated First Amendment protections such as the right to petition.
The parties submitted thousands of pages presenting their respective sides. Warners introduced all sorts of agreements and correspondence from more than a decade ago in an effort to show Toberoff was involved in a sly ploy "designed to break off [the estates'] dealings with DC Comics and Warner Bros" and win rights for his own company.
Meanwhile, on a threshold matter, Toberoff said he was merely performing legal duties and Warners had no right to impinge his constitutional protected activity.
For now, U.S. District Court judge Otis Wright II has given Warners the edge, finding that Toberoff's motion to strike fails because "while such protected activity may evidence the alleged interference, it does not shield it." The judge finds "logic" in Warners' arguments that Toberoff interfered with the studio's rights under a prior 1992 agreement by striking his Pacific Pictures deal nearly a decade later. The judge says Toberoff has failed in his initial burden to demonstrate the claims arose out of protected activity. '
Of course, the ruling makes no measurement of the merits of Warners' claims. Having failed to establish the first prong under the anti-SLAPP statute, Judge Wright doesn't analyze the next prong -- Warners' likelihood of success in this case.
Toberoff will likely have more opportunities to beat the case in the pre-trial phase or win the case before a jury. But for now, Warner Bros. gets a small win -- albeit hard-fought -- and gets the case past its first roadblock.
We've reached out to Toberoff for comment and will update with a response.