Philly Lawyer Blasted in Suit Against Usher
(CN) - A federal judge ordered sanctions against the attorney of a man suing Usher and 19 others for failing to credit him for co-writing a song on one of the decade's best-selling albums.
Daniel Marino, Dante Barton, and William Guice had allegedly co-authored the song "Club Girl," later renamed "Bad Girl," recorded by "Usher" Raymond IV, and released in 2004.
But because Marino did not receive writing and producing credit for the song, he sued Barton, Guice, Usher, and 17 others for copyright infringement in Philadelphia on Oct. 28, 2011.
Confessions, the album featuring the song, had sold over 10 million copies in the U.S. by 2012, according to Billboard.
Seventeen of the 20 defendants moved to impose sanctions against Marino's attorney, Francis Alexander Malofiy, on Oct. 8, 2013.
U.S. District Judge Paul Diamond partially granted the motion May 21, finding that Malofiy "has behaved in a flagrantly unprofessional and offensive manner" during the litigation.
The court accepted the unrepresented Guice's "compelling" testimony that Malofiy tricked him into signing an inculpatory affidavit after lying that he was only a witness.
"Malofiy's conduct served no legitimate purpose," Diamond wrote. "He lied to Guice that Marino was not proceeding against him, thus convincing Guice that he did not need to respond to Marino's amended complaint. Having thus dishonestly ensured Guice's failure to respond, Malofiy entered a default against Guice for that failure. It is difficult to imagine more vexatious or unreasonable behavior."
The judge took a dim view of Malofiy's "outrageous" and "abusive" discovery conduct.
"The parties were unable to schedule depositions because of Malofiy's refusal to consent to mutually agreeable dates and locations," Diamond wrote. "When depositions finally took place, Malofiy did what he could to disrupt or obstruct them. At Malofiy's request, I directed all counsel to refrain from making repeated, lengthy objections."
But Malofiy himself "continually" broke that rule, according to the ruling.
"In a single deposition, he made 65 speaking objections after I directed the parties to refrain from the practice," Diamond wrote.
The judge later added: "It is difficult to convey the poisonous atmosphere created by Malofiy's continual belligerence to opposing counsel."
Malofiy not only told defense counsel "Don't be a girl about this," but also accused the attorney of being "tricky" and unable to "handle the truth," the ruling states.
"Usher has 130 million . . . I'm going to take every penny of it," Malofiy said during Guice's deposition, later adding that the process was "nauseating."
The lawyer told former Motown producer Tom van Dell, "You stole $200 million, you and the defendants, and [Marino] got nothing. And you're a cheat, and you cheated this man."
Diamond tossed aside the claim that Malofiy, who joined the Pennsylvania bar six years ago, should be excused due to his inexperience and need of a mentor.
"Defendants have shown clearly and convincingly that attorney Francis Malofiy has acted disgracefully: lying to an unsophisticated, impoverished, unrepresented defendant, thus convincing that defendant to expose himself (probably baselessly) to substantial liability.
Malofiy also needlessly increased discovery costs. Denying plaintiff the 'fruits' of Malofiy's misconduct and requiring Malofiy to pay these increased costs are the least sanctions I can impose."
Malofiy recently told Bloomberg Businessweek that he is planning to sue Led Zeppelin for stealing the opening to "Stairway to Heaven" from another band.