By Jeff Trexler
[On Monday, US District judge Otis Wright cancelled a hearing on the case of the Joe Shuster estate's claim for his half of the copyright to Superman. This led many observers to think a decision was near. The Beat's legal expert, Jeff Trexler explains it's just not that simple.]
When a judge agrees to decide a matter on the filings, it often means that the matter is considered to be a clear call. Reading the tea leaves, DC filed for the motion to have the hearing taken off calendar, and the fact that the judge consented could be taken as a sign that things look good for DC. Of course, it could also go the other way. The reason the judge cancelled could also be that he thinks the documentation on this case is so thorough that this hearing would have been a waste of time. Things will likely be a bit clearer, of course, when Judge Wright issues his ruling.
As for the timing, the ruling may be near or may not. It’s an easy guess to think that it is near, not just because of the decision to decide on the briefs but also because it’s August. Late August/early September is when the new law clerks start. If the clerk assigned to the case is leaving, the judge (not to mention the clerk) would most likely prefer to have it off the desk before the clerk most familiar with the matter disappears. Of course, district court clerks can have two year terms, so unlike, say, federal appellate courts, where the norm for all terms is one year, it is conceivable that Judge Wright and his Pacific Pictures clerk might not be facing this time crunch.
What most surprised me about the cancellation of the hearing was not the fact of it – this one does seem to be decidable on the filings, and even if his clerks aren’t leaving it’s August and the beach is calling.
Or at least it was for Marc Toberoff, whose vacation plans for the day of the hearing were the reason that DC cited as grounds for taking the hearing off the calendar. DC’s motion is a wonderful piece of frenemy gamesmanship – DC is only being helpful to Marc Toberoff, you know, when it tells the judge that Toberoff thinks a family frolic and a September appearance in New York are way more important than showing up in this case.
Subtly twisting the knife, DC doesn’t ask straight out for a decision on the filings, nor does it tout the strength of its case. Rather, it slyly “defers to the Court if and when a hearing should be scheduled.”
All in all, it looks like another strategic miscue for the Pacific Pictures team. Yes, attorneys do go on vacation, and they even use it as a reason to move hearings dates. But in a case of this magnitude, with Toberoff’s filings taking a stridency that sounds so much like a comment screed the only thing missing is caps lock, the idea that he’d skip this supposedly landmark Superman hearing in favor of vay-cay and the Mad Myth Mysteries makes his theatric moral outrage seem ridiculous.
Judging from DC’s reference to Toberoff’s plan to file a cross-motion for partial summary judgment sometime in September or October, it appears that Toberoff was hoping to delay a negative ruling until he could score a few points of his own. It didn’t work.