Awesome New Mike Love Article!!

[Emily]

Do we know for sure that Mike kept the same legal counsel through to the appeals process?  

Yes. Philip H. Stillman, Stillman and Associates, Cardiff, California, for plaintiff-appellant Mike Love is listed as M. Love’s lead attorney both in the original case mentions here: https://www.docketalarm.com/cases/California_Central_District_Court/2--05-cv-07798/Mike_Love_v._Mail_on_Sunday_et_al/#q=stillman
And in the appeal, here: http://333.lawlink.com/documents/6826/public

Hey Jude - would it not have been avoided altogether if a meeting was called when any of the members was going to release material that had a BB background?  

Apparently not – if you believe M. Love’s background (I guess you think the lawyer’s made it up), they had discussed it. That seems to be when B. Wilson issued his “threats”.

Hey Jude - that is a tough one.  The job of the client is to "teach the lawyer" the facts of the potential case… Each time you hire a lawyer you have to educate them about the background and all the facts.  

Exactly. It’s absurd to think that the lawyers just made the facts up out of wholecloth.

And, the fact that Mike had "standing" as a beneficial owner, made his position one, that the court had to listen to.  
Remember that a judge is either elected on popularity (depending on the jurisdiction) or appointed by a governor, likely, if that lawyer has made contributions to the campaign of that governor.  They are just "lawyers with a robe" on.    

Yes, and as the appellate court stated, “The mere fact that a plaintiff has statutory standing does not make his legal and factual arguments objectively reasonable.” In this case, the trial judge and at least two of three appellate judges agreed on the decision.

I've had a fair bit to do with lawyers...payin' them for their 'expertise' especially.  I was always aware of what I was paying for and particularly of anything that would have put me at risk of paying the other side more than it deserved or vice versa.  To suggest that Mike knew nothing about the 'case' is stupendously weak.  [and oh so wrong.]

Add Some - I think we all have had similar experiences.  I have had some revise in "handwriting," pleadings, right in the courthouse, that I don't agree with. They don't like being challenged.  Most clients don't challenge lawyers, and just go along with what their lawyers draft.  

But if the lawyer does something that costs you over a million dollars, you wouldn't use that lawyer again, as Emily pointed out. Unless you're a fool.

That is true, but once you are in the middle of a trial, you would likely have to petition the court to (or the lawyer would have to petition to withdraw) if things were not going well, so I am just pointing out other alternative scenarios.  

Of course you would not re-hire, for a different matter, but mid-trial you might be stuck staying with that/those lawyer/s, at the direction of the court.  

No one is making the argument that he didn't switch lawyers mid-trial. The point being made is that he kept the same lawyers for the appeal, which is a new matter. Often people switch lawyers for appeals because it’s a particular specialty. He kept the same lawyer. If he felt that the lawyer had given him ineffective, or indeed effectively negative, assistance, it’s hard to imagine to anyone who is thinking reasonably about the matter, that he would’ve retained him again.

I tried on this board to maintain neutrality and not be on a team because while I’m not a fan of Mike Love particularly:
- I haven’t felt like being mad at him was necessary for my enjoyment of the Beach Boys (I still don’t)
- I felt like there was no need to struggle with people who enjoy his work (I still don’t) and I’ve learned that I really like and respect some people that I perceive to be his particular fans
- I can really understand the feeling that the public has chosen a “baddie” and relentlessly and unfairly picks on that person for anything that can possibly be construed as a misstep and I think Mike Love sometimes falls in this category (I still do)
but in the context of the 2005 case, the extent to which (a very few) people are going to put lipstick on a pig is truly absurd.

Emily -  I have worked to maintain neutrality as well, despite all the mean rumors and innuendo about Brian's absence on the road, and were your late father around, he would likely affirm that statement.  Because I did not know the story I did not judge.  

When Mike started touring after Carl died, I gave him the benefit of the doubt to see if he could make this band work and saw him build it from scratch into a rockin' very authentic band.  And yes, you know or should know that this board is very much anti-Touring Band.  

This thread is all about judgment.  In the context of 2005, the Live Smile version was released but not the actual sessions, six years later in 2011.  So, breaking down a case where the judge starts out by saying "Love wishes they could all be California torts" after having read thousands of cases, sets a snarky tone, which permeated the decision.  Judges are appointed or elected.  They come with biases.  They are not perfect. Some judges beat their children and sit as family court judges.  They are not infallible.  Just sayin.'  

So you speculate, based on a little pun in the decision, that the trial judge and (at least) two of three appellate judges were biased against Mike Love and that had they had a judge who was NOT biased against Mike Love, he would have won this suit?

[filledeplage]

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

No-one -- not one single person -- has argued that Mike didn't have the legal right to sue. He did. What people have been arguing is that he was not *morally* right to do so, and that furthermore it was obvious to any observer that he was going to lose the case before it started, because most of the claims in the lawsuit were incorrect.

Just because you *can* do something doesn't mean you *should* do it.

Andrew - and, they are making a moral judgment, where there was a business interest at issue.  

[filledeplage]

Do we know for sure that Mike kept the same legal counsel through to the appeals process?  

Yes. Philip H. Stillman, Stillman and Associates, Cardiff, California, for plaintiff-appellant Mike Love is listed as M. Love’s lead attorney both in the original case mentions here: https://www.docketalarm.com/cases/California_Central_District_Court/2--05-cv-07798/Mike_Love_v._Mail_on_Sunday_et_al/#q=stillman
And in the appeal, here: http://333.lawlink.com/documents/6826/public

Hey Jude - would it not have been avoided altogether if a meeting was called when any of the members was going to release material that had a BB background?  

Apparently not – if you believe M. Love’s background (I guess you think the lawyer’s made it up), they had discussed it. That seems to be when B. Wilson issued his “threats”.

Hey Jude - that is a tough one.  The job of the client is to "teach the lawyer" the facts of the potential case… Each time you hire a lawyer you have to educate them about the background and all the facts.  

Exactly. It’s absurd to think that the lawyers just made the facts up out of wholecloth.

And, the fact that Mike had "standing" as a beneficial owner, made his position one, that the court had to listen to.  
Remember that a judge is either elected on popularity (depending on the jurisdiction) or appointed by a governor, likely, if that lawyer has made contributions to the campaign of that governor.  They are just "lawyers with a robe" on.    

Yes, and as the appellate court stated, “The mere fact that a plaintiff has statutory standing does not make his legal and factual arguments objectively reasonable.” In this case, the trial judge and at least two of three appellate judges agreed on the decision.

I've had a fair bit to do with lawyers...payin' them for their 'expertise' especially.  I was always aware of what I was paying for and particularly of anything that would have put me at risk of paying the other side more than it deserved or vice versa.  To suggest that Mike knew nothing about the 'case' is stupendously weak.  [and oh so wrong.]

Add Some - I think we all have had similar experiences.  I have had some revise in "handwriting," pleadings, right in the courthouse, that I don't agree with. They don't like being challenged.  Most clients don't challenge lawyers, and just go along with what their lawyers draft.  

But if the lawyer does something that costs you over a million dollars, you wouldn't use that lawyer again, as Emily pointed out. Unless you're a fool.

That is true, but once you are in the middle of a trial, you would likely have to petition the court to (or the lawyer would have to petition to withdraw) if things were not going well, so I am just pointing out other alternative scenarios.  

Of course you would not re-hire, for a different matter, but mid-trial you might be stuck staying with that/those lawyer/s, at the direction of the court.  

No one is making the argument that he didn't switch lawyers mid-trial. The point being made is that he kept the same lawyers for the appeal, which is a new matter. Often people switch lawyers for appeals because it’s a particular specialty. He kept the same lawyer. If he felt that the lawyer had given him ineffective, or indeed effectively negative, assistance, it’s hard to imagine to anyone who is thinking reasonably about the matter, that he would’ve retained him again.

I tried on this board to maintain neutrality and not be on a team because while I’m not a fan of Mike Love particularly:
- I haven’t felt like being mad at him was necessary for my enjoyment of the Beach Boys (I still don’t)
- I felt like there was no need to struggle with people who enjoy his work (I still don’t) and I’ve learned that I really like and respect some people that I perceive to be his particular fans
- I can really understand the feeling that the public has chosen a “baddie” and relentlessly and unfairly picks on that person for anything that can possibly be construed as a misstep and I think Mike Love sometimes falls in this category (I still do)
but in the context of the 2005 case, the extent to which (a very few) people are going to put lipstick on a pig is truly absurd.

Emily -  I have worked to maintain neutrality as well, despite all the mean rumors and innuendo about Brian's absence on the road, and were your late father around, he would likely affirm that statement.  Because I did not know the story I did not judge.  

When Mike started touring after Carl died, I gave him the benefit of the doubt to see if he could make this band work and saw him build it from scratch into a rockin' very authentic band.  And yes, you know or should know that this board is very much anti-Touring Band.  

This thread is all about judgment.  In the context of 2005, the Live Smile version was released but not the actual sessions, six years later in 2011.  So, breaking down a case where the judge starts out by saying "Love wishes they could all be California torts" after having read thousands of cases, sets a snarky tone, which permeated the decision.  Judges are appointed or elected.  They come with biases.  They are not perfect. Some judges beat their children and sit as family court judges.  They are not infallible.  Just sayin.'  

So you speculate, based on a little pun in the decision, that the trial judge and (at least) two of three appellate judges were biased against Mike Love and that had they had a judge who was NOT biased against Mike Love, he would have won this suit?

Emily - Puns are not usually part of a decision, regardless of the outcome.   

[Emily]

Emily - Puns are not usually part of a decision, regardless of the outcome.   

Not usually. It's very hard to find anyone in the law who writes as fluidly as the clerk/judge who wrote that decision. It was refreshing.
It also is unlikely to indicate that the trial judge, and at least two of three appellate judges were biased against Mike Love.

[guitarfool2002]

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

No-one -- not one single person -- has argued that Mike didn't have the legal right to sue. He did. What people have been arguing is that he was not *morally* right to do so, and that furthermore it was obvious to any observer that he was going to lose the case before it started, because most of the claims in the lawsuit were incorrect.

Just because you *can* do something doesn't mean you *should* do it.

Andrew - and, they are making a moral judgment, where there was a business interest at issue.  

When evidence was needed to show proof of the damage or potential damage to the business interest relative to the US market and US laws being cited in the case, the evidence produced in the form of the affidavit from a buyer who claimed confusion due to the CD giveaway was found by the court to be a fabrication and coming from a personal associate of the plaintiff attorneys (uncontested by plaintiff's attorneys), and beyond that the CD itself never made it to the US market to cause such damage or "dampen ticket sales" and the 425 copies of the publication that did make it to the US did not include the CD.

For that one aspect of the case relative to the US, evidence and an allegation produced to demonstrate harm to the business interest in the US marketplace was judged by the court to have been fabricated.

Isn't there also a moral judgement in play when such evidence is presented to a judge in a sworn affidavit as outlined in the appeals decision?

[AndrewHickey]

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

No-one -- not one single person -- has argued that Mike didn't have the legal right to sue. He did. What people have been arguing is that he was not *morally* right to do so, and that furthermore it was obvious to any observer that he was going to lose the case before it started, because most of the claims in the lawsuit were incorrect.

Just because you *can* do something doesn't mean you *should* do it.

Andrew - and, they are making a moral judgment, where there was a business interest at issue.  

And? "Business" is not some sort of separate magisterium, divorced from all other human behaviours, in which the normal rules of morality don't apply.

[SMiLE Brian]

Behind all this legalise from filleplage is a simple concept, Mike Love deserved and should have won this wacky lawsuit against BW.

[HeyJude]

Emily - Puns are not usually part of a decision, regardless of the outcome.   

Judges have been known to sprinkle stuff like that into rulings. Even the Supreme Court has been known to put smart-ass comments into their rulings. I think it's kind of tacky myself, but to highlight one bad pun from the judge (and I won't even bring in the recent Love interview where Mike some seems to find puns *HIIIII-LARIOUS!") and imply some sort of bias is laughable.

My guess is the judge added a bit of snark because his pun was specific to the attempted "residence" switcheroo that the court was offended by to the point of "admonishing" Love.  

If I were Love's legal team, I'd find terms like "frivolous", "vastly over-pled", "unreasonable", "bad faith", and "bloated" far more troubling than a bad pun.

[Emily]

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

No-one -- not one single person -- has argued that Mike didn't have the legal right to sue. He did. What people have been arguing is that he was not *morally* right to do so, and that furthermore it was obvious to any observer that he was going to lose the case before it started, because most of the claims in the lawsuit were incorrect.

Just because you *can* do something doesn't mean you *should* do it.

Andrew - and, they are making a moral judgment, where there was a business interest at issue.  

And? "Business" is not some sort of separate magisterium, divorced from all other human behaviours, in which the normal rules of morality don't apply.

Oh, now you're just being un-American.

[HeyJude]

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

No-one -- not one single person -- has argued that Mike didn't have the legal right to sue. He did. What people have been arguing is that he was not *morally* right to do so, and that furthermore it was obvious to any observer that he was going to lose the case before it started, because most of the claims in the lawsuit were incorrect.

Just because you *can* do something doesn't mean you *should* do it.

Andrew - and, they are making a moral judgment, where there was a business interest at issue.  

And? "Business" is not some sort of separate magisterium, divorced from all other human behaviours, in which the normal rules of morality don't apply.

Thank you! I had been trying to think of the best way to word this, and you've done it. This "business interests" argument comes up time and time again from the same person, and you've succinctly pointed out why such an argument is very limited, especially when the discussion at hand is a very subjective discussion of morals/ethics/behavior.

[CenturyDeprived]

Behind all this legalise from filleplage is a simple concept, Mike Love deserved and should have won this wacky lawsuit against BW.

The Tahoe Bunker's flags were at half staff on that sad, sad day of the court loss. Kokomaoists had the date of the loss with "Never Forget" screened on the front.

If there ever was a lawsuit relating to this band that just deserves to UNIVERSALLY be called out for as completely not right, and not just the lawyers' fault, well that would be this one. If Brian sued Mike tomorrow for being follically challenged, I'd similarly state that Brian had absolutely no right to do so, and was clearly in the wrong. As would any BB fan with a brain. Some things just don't need defending.

The thread would be much shorter if people stopped this inane defense argument and just admitted that Mike himself... not just his lawyers, but the Lovester himself...was wrong to greenlight the suit, and to approve the lawyers doing what they did. At the end of the day, Mike was their boss!

[filledeplage]

Even suits that are considered (at the conclusion) frivolous have a basis to be heard. And, appealed.  It is the legal system being criticized that gave the opportunity to appeal.  Losing cases are how things get to the Supreme Court as landmark cases.  I don't want to lose that option.  Do you? 

If you take that right away from Mike because you don't like him personally, you take it from everyone else, including me.  Just sayin'.

What are you talking about? Nobody is saying any of this. At all. Nobody has once said Mike doesn't have the legal right to bring lawsuits. You're attempting to link negative opinions of Mike with some sort of anti-civil rights movement. It's insulting frankly.

If you don't want to ever paint one single thing about Mike in a negative light, that's cool. But don't assume those who do are trying to subvert the justice system or something.

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

Maybe the Smiley board should have had a "sidebar" with the judge or Mike's lawyer? (I'm kidding.)   

It is water under the bridge and people are still yammering away.     

What standing would that have been? The plaintiff's evidence in the form of an affidavit from a witness who supposedly purchased the magazine with CD giveaway as proof of the "confusion" such a thing caused for buyers in the US marketplace was described as a fabrication by the courts, and that the witness who gave the affidavit claiming confusion had not only fabricated the confusion over the packaging and marketing but was also a personal associate of the plaintiff attorneys. This led to sanctions against plaintiff's counsel and the issue of fabrication was uncontested. No CD's were included in the 425 copies (according to the appeal decision document) of the magazine that were sent for sale to the US: The discs were limited to distribution in the UK and Ireland. When proof was requested specific to that CD in the US market, it was found to be a fabrication.

The point of the lawsuit was written in the appeals court decision as follows: "Love was concerned that a second British invasion and Wilson's return to touring and recording would dampen ticket sales for the live performances of his touring group."

And, ostensibly, citing this magazine promotion and giveaway which was exclusive to the UK market was one of the ways the suit would show those ticket sales and income was or would be damaged by this giveaway and the packaging/labeling of the CD...using laws and guidelines specific to California, and the Lanham act as related to activities that happened in the UK.

It was close to if not a full clean-sweep of a defeat for the plaintiff, complete with compensation being ordered for the defendants named in the original suit.

If some of the prime evidence used to file the claim in district was labeled by that court as a fabrication, and if various elements of the case from the place of residence being claimed to the various acts and common law points being referenced to the defendants being named in the suit itself were each dismissed as strongly as they were...how many grounds to appeal would make sense after the entire case was basically destroyed and dismantled brick by brick by the district court?

And this case is centered on the concerns over "dampening ticket sales"...

GF - interesting in [8] on  p. 9785, "Even if California has an interest in protecting the right of an entertainer with economic ties to the state to exploit his image overseas, that interest is not nearly as significant as England's interest in (not) regulating the distribution of millions of copies of a newspaper and millions of compact discs by a British newspaper primarily in the United Kingdom."  The way I read this is that the distribution would likely be out of the control of a US court, but I think that the court is looking at this issue, because he starts with "Even if."   It was related to extrajudicial enforcement of the Lanham Act.  "Lanham Act cannot be applied extraterritorially to compass acts committed in Great Britain." p, 9786.

And the "California's right of publicity statute mandates an award of attorney's fees for "[t]he prevailing party in any action under this section. Cal. Civil Code  s.3344;" There was a case precedent from Cairns v. Franklin Mint. Co., 2929 F.3d 1139, 1149, 1156, (9th Cir. 2002) (awarding attorney's fees under comparable posthumous right of publicity statute where plaintiff alleged claim under statute but law of Great Britain actually governed the claim).

Mike appears to have had standing as a "beneficial owner."

  

[filledeplage]

Behind all this legalise from filleplage is a simple concept, Mike Love deserved and should have won this wacky lawsuit against BW.

At no place did I say he had a right to win; I gave no opinion on that. 

He had a "right to be heard."

[Emily]

Even suits that are considered (at the conclusion) frivolous have a basis to be heard. And, appealed.  It is the legal system being criticized that gave the opportunity to appeal.  Losing cases are how things get to the Supreme Court as landmark cases.  I don't want to lose that option.  Do you? 

If you take that right away from Mike because you don't like him personally, you take it from everyone else, including me.  Just sayin'.

What are you talking about? Nobody is saying any of this. At all. Nobody has once said Mike doesn't have the legal right to bring lawsuits. You're attempting to link negative opinions of Mike with some sort of anti-civil rights movement. It's insulting frankly.

If you don't want to ever paint one single thing about Mike in a negative light, that's cool. But don't assume those who do are trying to subvert the justice system or something.

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

Maybe the Smiley board should have had a "sidebar" with the judge or Mike's lawyer? (I'm kidding.)   

It is water under the bridge and people are still yammering away.     

What standing would that have been? The plaintiff's evidence in the form of an affidavit from a witness who supposedly purchased the magazine with CD giveaway as proof of the "confusion" such a thing caused for buyers in the US marketplace was described as a fabrication by the courts, and that the witness who gave the affidavit claiming confusion had not only fabricated the confusion over the packaging and marketing but was also a personal associate of the plaintiff attorneys. This led to sanctions against plaintiff's counsel and the issue of fabrication was uncontested. No CD's were included in the 425 copies (according to the appeal decision document) of the magazine that were sent for sale to the US: The discs were limited to distribution in the UK and Ireland. When proof was requested specific to that CD in the US market, it was found to be a fabrication.

The point of the lawsuit was written in the appeals court decision as follows: "Love was concerned that a second British invasion and Wilson's return to touring and recording would dampen ticket sales for the live performances of his touring group."

And, ostensibly, citing this magazine promotion and giveaway which was exclusive to the UK market was one of the ways the suit would show those ticket sales and income was or would be damaged by this giveaway and the packaging/labeling of the CD...using laws and guidelines specific to California, and the Lanham act as related to activities that happened in the UK.

It was close to if not a full clean-sweep of a defeat for the plaintiff, complete with compensation being ordered for the defendants named in the original suit.

If some of the prime evidence used to file the claim in district was labeled by that court as a fabrication, and if various elements of the case from the place of residence being claimed to the various acts and common law points being referenced to the defendants being named in the suit itself were each dismissed as strongly as they were...how many grounds to appeal would make sense after the entire case was basically destroyed and dismantled brick by brick by the district court?

And this case is centered on the concerns over "dampening ticket sales"...

GF - interesting in [8] on  p. 9785, "Even if California has an interest in protecting the right of an entertainer with economic ties to the state to exploit his image overseas, that interest is not nearly as significant as England's interest in (not) regulating the distribution of millions of copies of a newspaper and millions of compact discs by a British newspaper primarily in the United Kingdom."  The way I read this is that the distribution would likely be out of the control of a US court, but I think that the court is looking at this issue, because he starts with "Even if."   It was related to extrajudicial enforcement of the Lanham Act.  "Lanham Act cannot be applied extraterritorially to compass acts committed in Great Britain." p, 9786.

And the "California's right of publicity statute mandates an award of attorney's fees for "[t]he prevailing party in any action under this section. Cal. Civil Code  s.3344;" There was a case precedent from Cairns v. Franklin Mint. Co., 2929 F.3d 1139, 1149, 1156, (9th Cir. 2002) (awarding attorney's fees under comparable posthumous right of publicity statute where plaintiff alleged claim under statute but law of Great Britain actually governed the claim).

Mike appears to have had standing as a "beneficial owner."

 

Well, except that it turned out that he lied about being a California resident.

[filledeplage]

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

No-one -- not one single person -- has argued that Mike didn't have the legal right to sue. He did. What people have been arguing is that he was not *morally* right to do so, and that furthermore it was obvious to any observer that he was going to lose the case before it started, because most of the claims in the lawsuit were incorrect.

Just because you *can* do something doesn't mean you *should* do it.

Andrew - and, they are making a moral judgment, where there was a business interest at issue.  

When evidence was needed to show proof of the damage or potential damage to the business interest relative to the US market and US laws being cited in the case, the evidence produced in the form of the affidavit from a buyer who claimed confusion due to the CD giveaway was found by the court to be a fabrication and coming from a personal associate of the plaintiff attorneys (uncontested by plaintiff's attorneys), and beyond that the CD itself never made it to the US market to cause such damage or "dampen ticket sales" and the 425 copies of the publication that did make it to the US did not include the CD.

For that one aspect of the case relative to the US, evidence and an allegation produced to demonstrate harm to the business interest in the US marketplace was judged by the court to have been fabricated.

Isn't there also a moral judgement in play when such evidence is presented to a judge in a sworn affidavit as outlined in the appeals decision?

Yes quantifying the damages seems, would have been difficult.  

[HeyJude]

Behind all this legalise from filleplage is a simple concept, Mike Love deserved and should have won this wacky lawsuit against BW.

At no place did I say he had a right to win; I gave no opinion on that. 

He had a "right to be heard."

But nobody has ever said he didn't have a right to be heard. You're arguing against a point nobody made.

[CenturyDeprived]

Behind all this legalise from filleplage is a simple concept, Mike Love deserved and should have won this wacky lawsuit against BW.

At no place did I say he had a right to win; I gave no opinion on that.  

He had a "right to be heard."

The lawyers knew Mike was their boss.... they knew he was/is a very wealthy, litigious person... why would they do something (creating a false person, not some little itty bitty thing) behind his back, knowing full well their wealthy client is a smart guy who could sue THEM for malpractice? Would they possibly do that if their client - at the very least - didn't create a "win by any means necessary" type of atmosphere?

Wouldn't Mike, if he had been oh-so wronged by these rogue lawyers, causing people in the public to logically speculate that he in all likelihood either approved or had something to do with some unethical shenanigans... make a public stink about it in some interview? Wouldn't he publicly complain that he had lawyers who went behind his back and did all sorts of awful, rogue stuff which made people have a worse opinion about him?

You think he'd just stay quiet about that, both publicly and in terms of legal reprisal towards rogue lawyers?

You think that's likely?  

[filledeplage]

Even suits that are considered (at the conclusion) frivolous have a basis to be heard. And, appealed.  It is the legal system being criticized that gave the opportunity to appeal.  Losing cases are how things get to the Supreme Court as landmark cases.  I don't want to lose that option.  Do you? 

If you take that right away from Mike because you don't like him personally, you take it from everyone else, including me.  Just sayin'.

What are you talking about? Nobody is saying any of this. At all. Nobody has once said Mike doesn't have the legal right to bring lawsuits. You're attempting to link negative opinions of Mike with some sort of anti-civil rights movement. It's insulting frankly.

If you don't want to ever paint one single thing about Mike in a negative light, that's cool. But don't assume those who do are trying to subvert the justice system or something.

Hey Jude - at each juncture, there are criticisms of this suit.  Mike had a beneficial ownership interest and had "standing" to bring the suit, whether a message board agrees 10+ years down the road.  Yes, it is related to the right to be heard.  I did not use the term civil rights.  It was more a "business interest" not a civil rights (in terms of discrimination) issue.  And yes,  people don't like the pleadings.  We cannot change that. 

Maybe the Smiley board should have had a "sidebar" with the judge or Mike's lawyer? (I'm kidding.)   

It is water under the bridge and people are still yammering away.     

What standing would that have been? The plaintiff's evidence in the form of an affidavit from a witness who supposedly purchased the magazine with CD giveaway as proof of the "confusion" such a thing caused for buyers in the US marketplace was described as a fabrication by the courts, and that the witness who gave the affidavit claiming confusion had not only fabricated the confusion over the packaging and marketing but was also a personal associate of the plaintiff attorneys. This led to sanctions against plaintiff's counsel and the issue of fabrication was uncontested. No CD's were included in the 425 copies (according to the appeal decision document) of the magazine that were sent for sale to the US: The discs were limited to distribution in the UK and Ireland. When proof was requested specific to that CD in the US market, it was found to be a fabrication.

The point of the lawsuit was written in the appeals court decision as follows: "Love was concerned that a second British invasion and Wilson's return to touring and recording would dampen ticket sales for the live performances of his touring group."

And, ostensibly, citing this magazine promotion and giveaway which was exclusive to the UK market was one of the ways the suit would show those ticket sales and income was or would be damaged by this giveaway and the packaging/labeling of the CD...using laws and guidelines specific to California, and the Lanham act as related to activities that happened in the UK.

It was close to if not a full clean-sweep of a defeat for the plaintiff, complete with compensation being ordered for the defendants named in the original suit.

If some of the prime evidence used to file the claim in district was labeled by that court as a fabrication, and if various elements of the case from the place of residence being claimed to the various acts and common law points being referenced to the defendants being named in the suit itself were each dismissed as strongly as they were...how many grounds to appeal would make sense after the entire case was basically destroyed and dismantled brick by brick by the district court?

And this case is centered on the concerns over "dampening ticket sales"...

GF - interesting in [8] on  p. 9785, "Even if California has an interest in protecting the right of an entertainer with economic ties to the state to exploit his image overseas, that interest is not nearly as significant as England's interest in (not) regulating the distribution of millions of copies of a newspaper and millions of compact discs by a British newspaper primarily in the United Kingdom."  The way I read this is that the distribution would likely be out of the control of a US court, but I think that the court is looking at this issue, because he starts with "Even if."   It was related to extrajudicial enforcement of the Lanham Act.  "Lanham Act cannot be applied extraterritorially to compass acts committed in Great Britain." p, 9786.

And the "California's right of publicity statute mandates an award of attorney's fees for "[t]he prevailing party in any action under this section. Cal. Civil Code  s.3344;" There was a case precedent from Cairns v. Franklin Mint. Co., 2929 F.3d 1139, 1149, 1156, (9th Cir. 2002) (awarding attorney's fees under comparable posthumous right of publicity statute where plaintiff alleged claim under statute but law of Great Britain actually governed the claim).

Mike appears to have had standing as a "beneficial owner."

 

Well, except that it turned out that he lied about being a California resident.

There are many factors for a decision on residence..."it is where you intend to return." - He could have spent more time in CA than Nevada.   Some people spend more time at a vacation home than in the home that is judged to be the residence.  

[HeyJude]

There are many factors for a decision on residence..."it is where you intend to return." - He could have spent more time in CA than Nevada.   Some people spend more time at a vacation home than in the home that is judged to be the residence.  

....and the court looked at that issue and called total BS on it, to the point of "admonishing" Mike Love.

I'm sure if it turned out Mike actually did live in California and some paralegal accidentally typed "NV" instead of "CA" or something, the court would have considered the change.

Instead, they admonished the attempt to change the place of residence, because the judges weren't idiots and saw that it wasn't a case of "oops, I *totally* live in California guys!", and was instead an obvious attempt to finagle a way into asserting certain claims.

You can't take a claim or lawsuit that someone loses, and play it off like "hey, it could go either way." People go to court to get someone to *decide* those issues. Mike was shot down just about across the board on that 2005 series of claims. It's no longer "it coulda been this, or coulda been that." No, a court decided that "it was THAT."

[Emily]

There are many factors for a decision on residence..."it is where you intend to return." - He could have spent more time in CA than Nevada.   Some people spend more time at a vacation home than in the home that is judged to be the residence.  

Yes, FdP, but he first listed Nevada as his residence. He then switched it after the court threw it back, with advice of counsel - it was a lie as was much else in this suit.
As Add Some says "Gawd!"
Give it up. There is NO REASONABLE JUSTIFICATION for this action. The judges see that - they were very clear; everyone one this board does; anyone who's ever written about it does. It was Mike Love's low point. It was wrong for him to do. I'm glad he doesn't bring it up and try to justify it and it doesn't make him look better for anyone else to.

[filledeplage]

There are many factors for a decision on residence..."it is where you intend to return." - He could have spent more time in CA than Nevada.   Some people spend more time at a vacation home than in the home that is judged to be the residence.  

Yes, FdP, but he first listed Nevada as his residence. He then switched it after the court threw it back, with advice of counsel - it was a lie as was much else in this suit.
As Add Some says "Gawd!"
Give it up. There is NO REASONABLE JUSTIFICATION for this action. The judges see that - they were very clear; everyone one this board does; anyone who's ever written about it does. It was Mike Love's low point. It was wrong for him to do. I'm glad he doesn't bring it up and try to justify it and it doesn't make him look better for anyone else to.

Emily - The complaint may have been "amended."

[AndrewHickey]

There are many factors for a decision on residence..."it is where you intend to return." - He could have spent more time in CA than Nevada.   Some people spend more time at a vacation home than in the home that is judged to be the residence.  

Yes, FdP, but he first listed Nevada as his residence. He then switched it after the court threw it back, with advice of counsel - it was a lie as was much else in this suit.
As Add Some says "Gawd!"
Give it up. There is NO REASONABLE JUSTIFICATION for this action. The judges see that - they were very clear; everyone one this board does; anyone who's ever written about it does. It was Mike Love's low point. It was wrong for him to do. I'm glad he doesn't bring it up and try to justify it and it doesn't make him look better for anyone else to.

Yep. We've all done stupid and malicious things at times, and this is one of Mike's. Doesn't necessarily make him a bad person, just a person who once did a bad thing. Attempts to whitewash it don't actually make Mike seem any better -- any more than the deliberate interpretations of his actions in the worst possible light by some posters on "the other side" (not especially in this thread) make him seem worse.
I think Mike has often been treated unfairly by the press and fans, but I don't think he's *always* been treated unfairly, and going to ridiculous extremes the other way (to the point, as in filledeplage's earlier post, of apparently denying that morality can ever enter into business decisions) won't improve his reputation.

[Debbie KL]

There are many factors for a decision on residence..."it is where you intend to return." - He could have spent more time in CA than Nevada.   Some people spend more time at a vacation home than in the home that is judged to be the residence.  

Yes, FdP, but he first listed Nevada as his residence. He then switched it after the court threw it back, with advice of counsel - it was a lie as was much else in this suit.
As Add Some says "Gawd!"
Give it up. There is NO REASONABLE JUSTIFICATION for this action. The judges see that - they were very clear; everyone one this board does; anyone who's ever written about it does. It was Mike Love's low point. It was wrong for him to do. I'm glad he doesn't bring it up and try to justify it and it doesn't make him look better for anyone else to.

Just to make this more tedious, as that seems to be the game here to distract people from the odious qualities of this suit - I’ve seen this residency argument many times.  I had to work a lot with attorneys about legal residency in California because of my former employer and benefits that were afforded to CA residents.  One normally had to declare a primary and secondary residence and show that the person him/herself had to reside there a number of months, etc.  

Many wealthy CA residents who didn’t like the taxes and licenses that were required in CA would establish a residence in OR, AZ or particularly in NV for the tax breaks. They might have relatives living in residences they owned in CA, but had other “primary residences” outside CA.  A person wouldn’t be able to claim a NV residence for personal and business tax purposes, then claim the benefits of the State of CA when they so desired for legal purposes.  Evidence was needed of actual residency.  I suspect that any CA judge would be aware of this and make decisions accordingly.

[SurfRiderHawaii]

The article is online today:

http://www.rollingstone.com/music/features/the-ballad-of-mike-love-20160217?page=10


And to most of us on this thread, we are "the crazies" in an article today:

http://ultimateclassicrock.com/mike-love-book/

[filledeplage]

There are many factors for a decision on residence..."it is where you intend to return." - He could have spent more time in CA than Nevada.   Some people spend more time at a vacation home than in the home that is judged to be the residence.  

Yes, FdP, but he first listed Nevada as his residence. He then switched it after the court threw it back, with advice of counsel - it was a lie as was much else in this suit.
As Add Some says "Gawd!"
Give it up. There is NO REASONABLE JUSTIFICATION for this action. The judges see that - they were very clear; everyone one this board does; anyone who's ever written about it does. It was Mike Love's low point. It was wrong for him to do. I'm glad he doesn't bring it up and try to justify it and it doesn't make him look better for anyone else to.

Just to make this more tedious, as that seems to be the game here to distract people from the odious qualities of this suit - I’ve seen this residency argument many times.  I had to work a lot with attorneys about legal residency in California because of my former employer and benefits that were afforded to CA residents.  One normally had to declare a primary and secondary residence and show that the person him/herself had to reside there a number of months, etc.  

Many wealthy CA residents who didn’t like the taxes and licenses that were required in CA would establish a residence in OR, AZ or particularly in NV for the tax breaks. They might have relatives living in residences they owned in CA, but had other “primary residences” outside CA.  A person wouldn’t be able to claim a NV residence for personal and business tax purposes, then claim the benefits of the State of CA when they so desired for legal purposes.  Evidence was needed of actual residency.  I suspect that any CA judge would be aware of this and make decisions accordingly.

Debbie KL - people do establish residences for any number of reasons.  Florida is a hot place because of their homestead protections and/or the taxes.  They do it all over the world.  Depardieu moved "technically" from France to avoid taxes.  It isn't a new thing and clearly you have said you have seen it so it is not uncommon.   

It is odious to some, but I can see a legal rationale, based on the business interest, whether it prevailed or not.  Using the photos however small, might not have made sense. But it was not enforceable in CA, because it was judged to be extra-terrritorial.   
This discussion second-guesses decisions made well over 10 years ago.