Prince’s Briefcase: Hays v. Sony Corp of America (Glannon Civil Procedure)

Glannon Civil Procedure: Representations to the Court and Sanctions [Rule 11b & c(1)]

Here is a case from my Civil Procedure class which explains the importance of trial preparedness. And in this case we are taught that doing your homework is essential before you file a claim in federal court.

Case Name, Citation Number, Author
Hays v. Sony Corp of America, 847 F.2d 412 (7th Cir. 1988)

prince's briefcase (princesdailyjournal)Procedural History
Plaintiffs sued Sony for common law and statutory copyright infringement. The district court then granted Sony’s motion to dismiss for failure to state a claim and then granted Sony’s Rule 11 motion (Go to Notes) for sanctions.

–Plaintiffs wrote a manual for operating their school’s Sony word processors and the school asked Sony to adapt that manual (plaintiff’s manual) for use with their word processors.
–Sony then, without charging the school, did not adapt to the plaintiff’s manual and the plaintiffs sued for common law and statutory copyright infringement.
–Plaintiffs sought damages and injunctive relief.
*The Federal Copyright statute, however, abolished common law copyright as of Jan 1, 1978–well before the events giving rise to plaintiffs claims.

Whether the plaintiffs’ lawyer reasonably researched both the facts and the law before filing copyright claims that were seemingly beyond his general experience?

No because the claim of infringement of a common law copyright was frivolous.

–Federal copyright statute already abolished common law copyright given rise to plaintiffs claim.
–Sony never obtained any profits from the sale or distribution of the manual–never sold it.
–Plaintiffs’ lawyer failed to present evidence that his clients had any plans for publishing their manual
–Plaintiffs’ lawyer failed to prove that his clients were eligible for punitive damages

In requiring reasonable evidence before the filing of any pleading in a civil case in federal district court, Rule 11 demands “an objective determination of whether a sanctioned party’s conduct was reasonable under the circumstances.” Rule 11 is like the negligence standard of torts.

Rule 11 sanctions against Mr. Guyon (Plaintiff’s lawyer) affirmed.
Motion to dismiss for failure to state a claim is affirmed

Rule 11(b): REPRESENTATIONS TO THE COURT. By presenting to the court a pleading, written motion, or other paper–whether by signing, filing, submitting, or later advocating it–an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Rule 11(c) SANCTIONS. (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for this violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

Prince’s Takeaway
Do your homework before you file a copyright claim in federal court. Otherwise you claim will never get heard. However you can amend it, but only if it arises out of the same transaction of events!

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In Loving Memory of Mark Alan Fischer (1950-2015)

Mark Fisher, Copyright Litigator and Entertainment Lawyer

It is with a heavy heart that I say my mentor, Mark Fisher, has passed away.

Yesterday I had the privilege and honor to attend Mark’s Memorial Service, where I listened to friends and family share a testament to Mark’s amazing life. A life that many people including lawyers wish to have in a lifetime. I heard stories from Mark’s revolutionary accomplishments in the world of Copyright and Entertainment law to his love for music (opera), creativity, clothing, the Red Soxx, his friends and his loving wife Marnie. One thing that is true about Mark, which we all shared in our eulogies, was that he had an extraordinary gift of drawing people to him.

The first time that I met Mark was at the ICA (Institute of Contemporary Art), on the seaport of Boston, where I was working as a caterer for ICA’s social media event two years ago. My job that day was to greet guests, standing up-straight with a tray of white wine in one hand and a smile on my face, as they would walk-in–and that’s when I saw HIM (no pun intended). Walking through the doors was a man who had the finest light blue (bespoke) suit in the room–topped off with the coolest white brim feather hat you have ever seen. When I saw him, my eyes lit up–I told myself that I had to get the number to his tailor. Anyways, when I approached him and asked “what do you do for a living?” he said, “I’m a lawyer.” I stared at him with a confused face and quietly said “lawyers dress like that?!” During our conversation I told him about my blog and my aspirations for going to law school and that I would love to get together with him to learn about him and the law. He kindly smiled and gave me his card, and the rest as you would say was history.

Mark Fisher Copyright Litigator and Entertainment Lawyer

The one thing that I won’t forget about Mark was his sincere gift of inspiring people to do great things. When I asked him if I could interview him for my blog (my pride and joy), he candidly said, “yes”–which most lawyers today would not always do. But somehow he saw something special in me and agreed to do it–with no questions asked.

For those of you who may not know this, Mark was one of my inspirations (as well as my recommenders) for applying to law school–I can’t stress enough how important mentors are. Without his letter of recommendation, I probably would not have been accepted to Suffolk University Law School. He showed me that you can live life to the fullest and still be a good lawyer–and make a fashion statement. He really sparked my interest to explore entertainment and copyright law.

One of Mark’s clients and colleagues, who read my blog, reached out to me: to not only express the tragic news but to commend me on a well-written interview story about him. He said that I really captured his personality. After our conversation, I am reminded yet again of why I have this “silly” website that you all come to know as

So today Mark I wish to pay tribute to you for entering into my life as you always did with so many of us: with class and style. I’m sorry we couldn’t get together sooner (due to school and all) but thanks for showing me the “cool” side of law. May you Rest in Peace with the Stars! Your story and your legacy will always live-on, here at

To check out my photos from the service, click on the link below.

Mark Fischer’s Memorial Service

If you haven’t read Mark’s story, you can check it out under 50 Shades of Law: Mark Fischer.

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