The Litigation Nation Podcast, hosted by Jack Sanker & Danessa Watkins, is a roundup of the most important and interesting legal developments happening right now, giving you an insider’s view to the legal system. If you haven't already, be sure to subscribe to Litigation Nation wherever you listen to podcasts, so you never miss an episode.
Welcome litigation nation. I'm your host, Luke Behnke, alongside my co host, Jack Sanker. For those of you new to the show, this is the podcast where we recap the most interesting legal news stories and talk about what you need to know. Jack, what have you got today?
Jack Sanker:So Ed Sheeran, he's not liable for copyright infringement against Marvin Gaye after taking the stand in his defense and teaching the jury a bit of music theory.
Luke Behnke:Montana enacts new legislation regulating third party litigation funding in that state, and the oldest active US federal judge sues to halt the competency probe against her.
Jack Sanker:Luke, you remember the McDonald's hot coffee case from the nineties? Well, we've got a new one, and we'll be covering that today as well.
Luke Behnke:All that and more coming your way. Here's what you need to know.
Jack Sanker:Up first, a rare intellectual property law story on this show, but this is kind of a fun one. Ed Sheeran was recently sued for copyright infringement over a Marvin Gaye song. Specifically, it was accused of copying a musical chord progression from Marvin Gaye's classic, let's get it on, with his 2014 song, thinking out loud. Now I know artists regularly sue each other for this kind of stuff. Basically, when a song sounds too much like another song, the original artist or whomever has the rights to the original artist's music can sue for copyright infringement to grab a piece of the ribbon the revenue that the new song may be generating, and that's generally what happened here.
Jack Sanker:Anyways, I wanted to share the story because of how Ed Sheeran defended himself at trial. At trial, while on the stand, Sheeran actually took out his guitar and gave the jury a demonstration of chord structures and how they're being used in different songs. Specifically, he strummed a common chord progression and sang song lyrics to different songs over the same chord progression showing that many many pop songs borrow from each other in ways that aren't quite, quote, stealing. And I just wanna play a clip for you all here of him being interviewed by Howard Stern after the fact where he kinda demonstrated how this testimony went.
Speaker 3:You sat down with the jury, and I think this is great. And you took out your guitar, and you said to the jury, you think I ripped off this song? I'm gonna play you something now and show you how similar things can be. What did you play for that jury? If I was the jury, yeah, what did you say to them?
Speaker 4:So it was, so my one is,
Speaker 5:when your legs don't work like they used to before, and then there's, have I told you lately that I loved you? And then, people get ready. There's a train coming.
Speaker 4:And then, what was the
Speaker 5:looks like we made it. Look how far we've come my baby. And she breaks
Speaker 4:I mean, there was a there was a 101 songs that and that was, like, scratching the surface. There was, like, a 101 you know, there's,
Speaker 5:I guess you'll say
Speaker 4:it's it's really and what I was saying is, like, yes. It's a chord sequence that you hear on successful songs. But if you say that a song in 1973 owns this, then what about all the songs that came before? We found songs, like, from, like, the 1700 that had similar, melodic stuff, and then there was, like, huge songs in the fifties and huge songs in the sixties. And it's just no one's saying that songs shouldn't be copyrighted, but you just can't copyright a chord sequence.
Speaker 4:You just can't.
Jack Sanker:It's a really cool use of demonstrative testimony to illustrate a point to a jury that I don't think a jury may have grasped unless you actually kinda played the music for them. Very cool trial work. Good work by Sheeran's attorneys at the firm Pryor Cashman, and a good example that when you can distill your sort of complex legal argument into common sense terms, juries can make really smart decisions even on complicated topics such as copyright infringement. And, Luke, I I highlighted this because, 1, it's an interesting story, and 2, I just think it's really good trial work here. I think that Sheeran's attorneys, understood that explaining, you know, complex, aspects of both copyright law and music theory, really, in, like, the dry tactical terms is probably gonna put jury to sleep.
Jack Sanker:I can't imagine being a jury in, like, a copyright case, and I think that sounds awful to me. But when you actually explain to them, you know, this is why this matters, and here's an example of how this kind of would look in the real world, it's really compelling. I think it's a very simple argument, which is, you know, how can Marvin Gaye own the copyright to this chord progression when there's a 100 other examples? And I'm gonna show you them all right now. I I think it's that's frankly really compelling testimony, and it's a compelling argument, for Sheeran's version of the case.
Jack Sanker:What do you think?
Luke Behnke:Yeah. I agree. I think demonstrative evidence, can be a very powerful and persuasive thing, to a jury rather than getting talked at, prefers to sort of see things with their own eyes. And if you can demonstrate, you know, what you're talking about for them, I think you've got a a much higher likelihood of success. Much like, you know, watching surveillance in a in a personal injury case can be pretty powerful and persuasive.
Luke Behnke:One sort of similar instance that I can, you know, draw upon from my experience is, we had this this forklift case, in in federal court, and, our client actually had, the box of this forklift, you know, kind of recreated. And we put that in front of the jury and kinda showed, you know, where, the operator's foot was, and then the plaintiff kinda tried to use it and show, you know, where the the foot might have been. And it was it was interesting, and, ultimately, we were, we were successful, defending the the forklift manufacturer, but that that's just a way that's an example, in a case. And I think the jury, you know, in that in that particular matter, in this Ed Sheeran matter, you know, really appreciated kinda seeing that demonstrative evidence.
Jack Sanker:Yeah. What did they say? Show, don't tell? And Exactly. Yeah.
Jack Sanker:And this is you know, I just think that the Sheeran, you know, actually have and by the way, you know, he's like a world famous pop star. So you as a a member of the jury get, you know, your private little concert, from, you know, a guy who sells out stadiums. I think that there's some element of, you know, reminding the jury that, hey. He's super famous again, and, you should be starstruck in this moment. And and I hope you take that back to the deliberation room when you're thinking about whether he infringed on this copyright or not.
Jack Sanker:All in all, just great trial work. It's a really cool way to demonstrate their argument in a way that makes total sense, by the way. All it takes is, you know, that 45 second clip that I played, and you go, oh, yeah. That's a great point. It's, you know, really, really simple.
Luke Behnke:I think I'm gonna start all of my trials this way. So my first witness will be, like, Justin Bieber. Yeah. Who the Bieber who the Bieber is doing? Get him up there.
Jack Sanker:If you could drop a cepito on him, why not?
Luke Behnke:I'm gonna win them all. For those listeners who didn't catch our last episode on litigation financing, 3rd party litigation financing is an arrangement where a funder who is not a party to the lawsuit agrees to help fund it. Funders are typically private firms or can be private firms operating large investment portfolios who expect to get a payout if the suit is successful. Montana becomes the latest state to enact new legislation which regulates this third party litigation funding. The legislation in Montana requires lawsuit lenders to register in the state and makes judges, juries, and defendants aware of a third party when they're financing the litigation.
Luke Behnke:The governor signed the bill into the law last week, and the president of the American Trucking Association says, quote, the civil justice system is not a stock market, but that is what it's becoming with the rise of 3rd party litigation financing, close quote. He believes that this is a common sense measure, and it will bring lawsuit lenders, quote, out from the shadows and make the fact finders aware that a disinterested third party has a financial stake in any verdict, close quote. Now the president of the ATA, that's American Trucking Association, expects other states to follow Montana's lead in, quote, ensuring full transparency behind this, what he calls, a perverse and shady practice, close quote. Obviously, that's one side of this, of this issue. Proponents, as we discussed in our in our last episode, take it take a different approach.
Luke Behnke:They contend that, litigation funding, keeps plaintiffs in the game longer, levels the playing field, and it puts, litigants on on equal footing with, defendants who, are often well funded. So, Jack, this is a relatively short story. I and I highlighted it only because, you know, as we've discussed on the show, litigation financing is is certainly on the rise. This is yet another state. I think the count is up to, like, maybe or somewhere around 16, states that are starting to regulate litigation, financing in some way, at least making these these litigation funders kinda disclose who they are.
Luke Behnke:There's been work at the federal level, to amend the the rule the federal rules to disclose these litigation, financiers. So it just sort of illustrates where this is going. Do you have any thoughts that you wanna add?
Jack Sanker:Yeah. You know what? I I actually, I I do kind of have a bit of a spicy take on this. So this this Montana law is requiring the the automatic disclosure of any third party litigation funding. Right?
Luke Behnke:That's right.
Jack Sanker:And, you know, it's the bill's passed, and, the folks in Montana whose interests, that, you know, this is intending to serve are, celebrating. What if I told you that this exact same bill was passed in Wisconsin, 2 years ago, and to my knowledge, no one cares? Someone I mean, you practice mostly in Wisconsin. Does it even come up?
Luke Behnke:Well so I'll say this. We've we have started to include these requests in our in our discovery requests. So, you know, we ask, we'll ask plaintiffs to identify, litigation, funders. By and large, though, Jack, I will say that it hasn't it to my knowledge, it has not, you know, delayed resolution of a lawsuit. I don't know if I would go so far as to say it's a perverse and and shady practice.
Luke Behnke:Right. But, you know, I I I do think that it it at least helps us get a matter to resolution if we know who the players are, who the interested parties are.
Jack Sanker:So I think it's definitely relevant, and it's it's a good, you know, if you wanna know, who the stakeholders are, what it's gonna take to get a number, you know, to get to get to a number that's gonna satisfy everyone. Technically, you know, under the law, the loan providers, they they technically have no right to interfere in that process, but in practice, it doesn't exactly always work that way as we know. But what I can tell you is in from from both of us that are doing this, we actually are litigating these cases. You get that information. Great.
Jack Sanker:You know that there's a, you know, a loan for x amount of dollars on the that case. It's not admissible at trial. It's not relevant. You know, you what are you gonna do with that? Are you gonna you gonna argue that, oh, this this plaintiff owes money?
Jack Sanker:Like, that's if anything, that's, you know, arguably sympathetic, to a plaintiff who had to borrow money at, like, this loan shark rate of 30 something percent. I'm not blaming the lenders, by the way, but that's that's what the rate is. So, you know, I I've seen it. I saw that in Wisconsin when this bill was passed, the pretty much the exact same bill, and and, you know, the kind of Chamber of Commerce adjacent, like, pro business, interests kind of were celebrating, and they were saying this is gonna, you know, maybe stop the influx of of third party finance money because now they have to show well, I just don't see that it has had any effect, at all, and I I don't think it will in Montana. I you know, it's great to know, I suppose.
Jack Sanker:It's it's it's interesting to know, and it can impact maybe how you make some a few decisions while you're actually working on a given lawsuit, but it is not a smoking gun, certainly. It doesn't I don't think it helps, you know, a defense at trial very much at all. I don't think it's admissible or relevant, frankly. So, you know, to the extent that the folks in Montana think this is gonna change things, I just don't think it will.
Luke Behnke:Yeah. I'm with you. I it's not a silver bullet. I think if if progressing toward the the ultimate goal, which is to get rid of litigation financing altogether I mean, sort of if that's what their ultimate goal is, yeah, I suppose this is a step in that direction.
Speaker 5:But we
Jack Sanker:know that's not hap that's not even close to happening. It's the opposite is happening.
Luke Behnke:The opposite is happening. And that's that's that's the point I was gonna make. You said, look. You know, if if they thought that this would, you know, scare these, these large funders away from funding lawsuits, you know, well, the opposite has been happening. I mean, this business is from from everything I've seen, this business is, exploding, and I don't see I'm I'm with you.
Luke Behnke:I don't see mandatory disclosure as a a silver bullet for getting rid of litigation funding. In fact, I think litigation funders will probably proudly wear that on their sleeve.
Jack Sanker:Yeah. It's, it's free advertising. Exactly.
Luke Behnke:Judge Pauline Newman, who we talked about in the past episode, she's under investigation for her performance on the bench, has since sued the appeals court's chief judge and others in Washington Federal Court seeking to block their investigation into her fitness to hold office. Newman, who our listeners may recall is 95, alleges in her complaint that the probe violates her constitutional rights, and she denied that there were legitimate concerns about her mental and physical capacity. She's asking the district court to halt or transfer the investigation. Judge Newman's lawsuit claims that the orders justifying the probe were, quote, riddled with errors, close quote, describing as false, an assertion that she was hospitalized after having a heart attack in 2021. According to Reuters, judge Newman says that she served on more appeals panels than most of her colleagues and issued at least 8 opinions that summer, that's back in 2021, and that her productivity has not dropped over the past 3 years.
Luke Behnke:The complaint further states that the committee investigating her gave her only a few days to comply with the requests for mental evaluations and her private medical records, which she calls a baseless invasion of her privacy. So, Jack, I don't I don't suppose that your sort of take on this has changed much since our last, discussion, but I thought that it's only fair to kinda follow-up on this and, and remind everybody that there are sort of two sides to every story. Judge Newman here is clearly not impressed with this, with this investigation.
Jack Sanker:Yeah. I I think it's it's good that we're at least trying to tell the other side of the story now that we have a little information. And it does kinda beg the question, you know, is if there's something else going on here. I don't I don't know. I mean, I'm way off the rails speculating here, but it does not because one of these parties is, like, way wrong, and that's the only out you know, one of them is absolutely full of it.
Jack Sanker:Be just the way that the facts are being presented, and that to me is you know, it it doesn't seem like there's, like, a a benign misunderstanding. It seems like one side is completely off base here, and that, just smells a little weird.
Luke Behnke:Yeah. I mean, this kind of stuff never becomes public, and this is this is a very public spat. Curious to see how this ends up. I mean, that's that's sort of that's the really interesting thing here. Right?
Luke Behnke:If you've got this investigation into this judge and she's filing a, you know, a a complaint, that says that, you know, this is a baseless invasion of her privacy. Like, how do you walk any of this stuff back, Jack? I mean, this is like what? Are you gonna remove a federal judge from the bench, you know, and set a precedent for that? You know, I don't know.
Luke Behnke:I I think, again, me looking into my my, crystal ball here. Judge Newman there's no way judge Newman is gonna get removed from from the federal they're not gonna remove a sitting federal judge.
Jack Sanker:Absolutely
Luke Behnke:agree. So, you know, all you've done really is, you know, call attention to this you made made this this issue very public and, really upset, someone who served for a very long time since 1984. She was, she was appointed in 84 by, president Reagan. Yeah.
Jack Sanker:And, I mean, we we we talked about this, our last episode and, you know, where there's really not a great way to to deal with this scenario, other than, you know, you you hope behind closed doors. If there really is, you know, a mental capacity issue, like, there there is a genuine I'm not suggesting there is here. I don't know anything about this judge. But if there actually is, you kinda hope that folks would just sort of nudge the judge, you know, behind closed doors and kinda get them to voluntarily, you know, walk off into the sunset. To do it this way is like, you know, something really must have happened.
Jack Sanker:And for the judge to, because if the, those that are making the allegations are correct, I mean, this is the biggest example of not taking the hint that I know of in the past few years. And and so, you know, either they're completely off base or this or this judge who is completely aloof, and, like, I doubt that's the case because, one, she's a federal judge. 2, I'm sure that she has attorneys and folks that are working on her behalf and she's consulting with and who have told her that this was a good idea to file this. So it it I don't know, man. It's really interesting to see how this happened.
Jack Sanker:You don't see anything like this. I I don't remember ever seeing anything like this before. It's it's really, you know, dirty laundry of the federal judiciary just being aired in public.
Luke Behnke:Yeah. As we outlined last time, there's there are, precious few examples of federal judges being removed from the bench, in the past. I'll keep an eye on it and, and update everyone because I agree it is a it's interesting because it's rare.
Jack Sanker:Most of you probably have heard of or remember the McDonald's hot coffee case from the nineties. If not, go ahead and Google it. It was, to me, the first lawsuit that I actually remember, learning about, And this was I would have been, like, 6 years old when the hot coffee case was in the news, like, 6 or 8 years old around then. I remember it was the hot coffee case, and it was the OJ trial, or, like, the 2 things that are, like, in my mind is, like, learning what a lawsuit was. Back in the nineties, there's a woman who spilled a a cup of boiling hot what turns out to be, like, boiling hot coffee on her lap.
Jack Sanker:She suffered actually a lot of horrendous injuries because of it. There's a lawsuit. There's punitive damages awarded, and a lot of people didn't like that. It it was kind of a a cultural touchstone for a while. Like, the late night TV host, like, poked fun at her for spilling coffee on herself.
Jack Sanker:But when you look into it further, it turns out, you know, there may have actually been some wrongdoing here. Anyways, it's worth it. It's a it's a great cultural touchstone of the the nineties if you wanna put yourself in that headspace. Finally, we have our own version now. Us, millennials and and, I guess, the younger generations.
Jack Sanker:We have our own McDonald's hot food case, and this is a hot chicken nugget. On May 12th, which is today as we're recording this, a jury in Fort Lauderdale found that McDonald's and the franchise operator for the specific McDonald's, liable for an injury that allegedly occurred when a McDonald's chicken nugget fell onto a girl's leg causing second degree burns. The girl was, I believe, 4 years old at the time. Jury found McDonald's liable for failing to provide instructions for handling hot food. The franchise operator liable for negligence and failing to warn customers about the hot food.
Jack Sanker:And here's kind of just a quick and dirty summary of the facts here. The mother of the injured daughter, her name is miss Holmes, bought her daughter a Happy Meal. The girl was about 4 years old. She handed her the Happy Meal, and then as the car drove away, the little girl started screaming. Miss Holmes took photos and videos from immediately after the accident showing the burn and the child's screams were actually played in court.
Jack Sanker:The child is autistic, and she did not testify. What's interesting is both sides actually agreed that the nugget the chicken nugget caused the burns. There wasn't a dispute on, you know, kind of the key facts on liability here, or on causation at least. They fought over how hot the chicken nugget actually was. McDonald's said it was no more than 160 degrees.
Jack Sanker:The plaintiff said it was over 200 degrees. Regardless, they agree that this chicken nugget burn, the second degree burn in her leg, which is a partial thickness burn of the epidermis and dermis. And as we sit here today, the case has been bifurcated on liability and damages. This was the liability trial, so we know that there is liability. The actual second trial is set for this summer on damages alone.
Jack Sanker:And when I came across this case, I was just transported back to being, you know, 7 or 8 years old and listening to my dad complain about how a, a woman can spill hot coffee on herself and get a $100,000,000 and how that was, you know, that wasn't fair, etcetera. And, then I went to law school and learned all about that case. And now now we got our own to think about, Luke.
Luke Behnke:That's right. And same. So my dad, you know, firefighter captain on the fire department growing up, you know, big proponent of personal responsibility. And so he he's kind of that guy that's like, look. That's that's what this country has come to.
Luke Behnke:This is America these days. You know? You can just, you know, go stub your toe and sue someone for $200,000,000. It's like, yeah, that you know? Were you sitting on the jury?
Luke Behnke:No. Alright. You have no idea what you're talking about. You know? The the facts of that coffee case are actually pretty compelling if you if you actually dig into it.
Luke Behnke:But, yeah, the PR spin around it, made it It
Jack Sanker:was, like, spoofed on, like, Saturday night live at, like, Letterman. Like, they made fun of this woman for, like, years after this. I mean, the PR that that McDonald's was able to pull off is, you know, pretty impressive from their perspective, especially after, like, the, you know, $100,000,000 verdict or whatever it was.
Luke Behnke:So I'm wondering yeah. I mean, I again, this is the same sort of situation. Right? I don't I don't really know the facts of this case. But, man, if if a chicken nugget is putting, like, 2nd degree burns on your leg, you know, I don't call me crazy, but that's too hot.
Luke Behnke:Right, Jack?
Jack Sanker:Yeah. It shouldn't have. It's like, regardless of what happened, you know, how it ended up on the girl's leg, like, you shouldn't be handed a a radioactive chicken nugget. You know? Like, Manny, it shouldn't it shouldn't be that hot, like, no matter what.
Jack Sanker:Right. And if it is, like, let it sit for a minute before you give it to the to the the customer. Like, let it sit. So, so, yeah, I mean, I actually especially because McDonald's appears to have rolled over on, you know, on the causation aspect and and and the fact that it did cause a burn. In my mind, I'm like, well, it's it's a happy meal, which means it's it's it's got a little toy in it.
Jack Sanker:It's, like, intended for little kids. You know? That in particular jumps out to me as, like, a factor. I didn't see it discussed in anything I read, but I bet it was a trial that this was, like, a product that's designed and marketed towards little kids. And then you're gonna put, like, an actual on fire piece of meat in there and hand it to them.
Jack Sanker:Like, it's only a matter of time before someone gets burned. So, yeah. I mean, we'll see what happens. I'm really interested in the damages portion of this trial. Hope the little girl's okay, obviously.
Jack Sanker:But I'll I'll be interested to see if there's a discussion on punitives, the same way that there was in the original hot coffee case. And then I'll be interested to see if the media, how they spin it this time around and see, you know, whether things have even changed at all since the nineties.
Luke Behnke:So that's something interesting that you raised here, and maybe maybe that's something that you can explain for the listeners, Jack. So there's compensatory damages, and then there's punitive damages. So even if the injury itself isn't horrible, right, I mean or it's it's not permanent, it's temporary, there's compensatory damages for that. But the really big numbers come out when you're talking about punitive damages. It's 2 different things.
Jack Sanker:Yeah. And and there's, you know, there's there's case law on this which describes when each is appropriate and when what types of cases where punitive damages can even be sought. But in general, in an injury case, in most states, there's a heightened pleading standard, a heightened standard of proof you have to show. Something along the lines of, like, willful and want in conduct or reckless disregard, which is a step higher than negligence. So you can't you can't get punitives if you prove that it was there was just a breach of a duty of care.
Jack Sanker:You have to prove that that breach was caused by a neglect to the level of being willful. And so you'll get punitives in cases where the tort fees or the the bad actor, the person who's at fault, maybe knew that this bad thing was gonna happen and and did it anyways. So in the famous, you know, hot coffee case, the punitives in that case were based on the fact that lots of other people had been burned by that scalding hot coffee, and they just continued to hand it out anyways, but they didn't change their practices. And then there was more evidence. I I believe that the temp the temperature in that coffee was, like, at that, temp to dissuade people from taking advantage of the limitless refills, because, like, because the coffee took so long to cool down because it was practically boiling that, like, you'd have to sit there all morning if you wanted to get a refill.
Jack Sanker:And so that was, like, the basis for the punitives in that case. In this case, I don't know. I mean, I I have no idea. But, Yeah. I I suspect that there will be a discussion on, punitives, you know, if one's goes to trial in, I think it's set for trial in July.
Jack Sanker:Thanks, everyone. That's the show. Reminder, you can always find us on Apple Podcasts, Spotify, YouTube, wherever you get your your podcast, new episodes drop every other Tuesday and we'll talk to you next week.