Legal Profession Blog

WWE Lawsuits Draw Discovery Sanctions

The United States Court of Appeals for the Second Circuit affirmed the award of sanctions imposed against a law firm that had sued the World Wrestling Entertainment and Vince McMahon

Over the course of several months in 2014 and 2015, Appellants-Cross-Appellees Konstantine W. Kyros and his law firm, Kyros Law P.C. (together, “Kyros”) filed, in jurisdictions across the country, class action lawsuits and wrongful death lawsuits against Appellees-Cross-Appellants World Wrestling Entertainment, Inc. and Vincent K. McMahon (together, “WWE”), asserting various tort claims that related to chronic traumatic encephalopathy (“CTE”) in former wrestlers. In 2016, Kyros filed an additional mass action lawsuit on behalf of fifty-three former wrestlers, asserting a wide range of tort claims. See Laurinaitis v. World Wrestling Entm’t, Inc., No. 3:16-cv-1209-VLB (D. Conn.) (“Laurinaitis”). These lawsuits were all eventually transferred to the United States District Court for the District of Connecticut. We previously affirmed the district court’s dismissal of the Laurinaitis complaint and dismissed Kyros’s appeals of the other consolidated cases against WWE for lack of jurisdiction. See Haynes v. World Wrestling Entm’t, Inc., 827 F. App’x 3 (2d Cir. 2020).

The present appeal concerns only the district court’s awards of sanctions in Laurinaitis and Singleton v. World Wrestling Entertainment, Inc., No. 3:15-cv-425-VLB (D. Conn.) (“Singleton”), one of the class action lawsuits. At an earlier stage of the case, the district court (Vanessa L. Bryant, Judge) ruled that Kyros had repeatedly engaged in pleading and discovery misconduct and decided to impose sanctions in Laurinaitis under Rule 11 of the Federal Rules of Civil Procedure, and in Singleton under Rule 37. Although Kyros challenged these orders in the previous appeal, we dismissed that portion of his appeal because the district court had not yet entered a final order that fixed the amount of sanctions. See Haynes, 827 F. App’x at 11. Following our decision, the district court (Jeffrey A. Meyer, Judge) adopted a recommended ruling of a magistrate judge 7 (Robert A. Richardson, Magistrate Judge) and awarded sanctions to WWE in the amount of $312,143.55—less than WWE’s requested amount of $533,926.44. McCullough v. World Wrestling Ent., Inc., 2021 WL 4472719, at *1, *4–5 (D. Conn. Sept. 30, 2021). With the amount of sanctions calculated, we now consider Kyros’s appeal of the Rule 11 and Rule 37 sanctions and WWE’s cross-appeal, which challenges the district court’s application of the forum rule to award less than the requested amount of sanctions.

On appeal of the District Court's sanctions, the law firm sought reversal; the WWE sought an increase.

On the record before us, we find no abuse of discretion because the district court ordered sanctions based on pleading defects that WWE had identified in their motions seeking Rule 11 sanctions.

No out-of-district counsel increase was warranted

WWE argues that, even if the forum rule applies, WWE is subject to an exception under Simmons because out-of district counsel “likely (not just possibly) produce[d] a substantially better net result” than local counsel would have. 575 F.3d at 172. Citing out-of-district counsel’s extensive experience representing WWE and litigating CTE matters, WWE asserts that no local counsel had comparable specific knowledge, nor could local counsel have improved upon the results achieved below. The district court acknowledged out-of-district counsel’s “longstanding involvement in defending claims brought by former wrestlers,” Special App’x at 281, but, as discussed above, concluded that WWE failed to show that out-of-district counsel likely produced a substantially better net result, especially where the case was dismissed based on deficient pleadings and conduct during discovery—that is, egregious litigation misconduct that in-district counsel would have been equally well placed to identify and oppose. Once again, we see no reason to fault that determination, made within the district court’s broad discretion.

Having carried out our “highly deferential,” H.C., 71 F.4th at 125, review of the district court’s efforts to achieve “rough justice,” Fox, 563 U.S. at 838, in keeping with the goals of fee-shifting, we affirm the district court’s application of the forum rule under the circumstances of this case.

(Mike Frisch)

Ad for Louisiana US Senate Race Takes a Right-Hand Turn You Don't See Coming

I saw a TV ad yesterday in our local U.S. Senate race that made me do a literal double-take. I recognize this blog is not really for politics, so please forgive me for deflecting from another Ohio discipline case involving exotic dancers (wait--maybe that does relate to our senate race in some way). I should qualify it by noting that this candidate is not the worst we have on our local airwaves right now, just the one with an ad I feel like sharing. I'm not posting the ones where other candidates essentially fight over how much they hate the President and who is impeaching the IRS Commissioner. And even they are better than candidate David Duke, if you recognize the name (some people forget). Anyway, it's the ad (currently) at the top labeled "...Conservative for Louisiana." Don't be afraid that by clicking on his site you'd be supporting his candidacy in some The Google way. I assure you he's not at all as bad as many of the 16 others.

In other political info I want to share, my son Steven works for a tech company that (inter alia) runs a tracking poll for the U.S. Presidential race (in a project with The Times Picayune newspaper). It's actually pretty amazing what their methodology is. New results tend to show up at noon central each day. I click on it a lot. I am suffering pre-PTSD for the election.

(Alan Childress) 

TV Retailer Subtly Supports Trivia that Declaration Was Signed July 3

Posted by Alan Childress:

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Final Final Jeopardy

[I enjoyed reading Shubha Ghosh's trip in TV Land, and it looks like a lot of other blogs or forums pointed their way to his posts; here is his Epilogue.--Alan]

The recent Jeopardy posts may have come across as somewhat of a light hearted lark. But in my desire to show rather than tell, some of the parallels between games shows and legal education and legal profession may have come across as elliptical. The lottery mentality of games shows, the organization of economic power in terms of managers, workers, and contestants, and the implied promise of the contests do parallel, in my view, how legal education and legal process are structured. My emphases and perspectives in the posts were meant to draw out these parallels without being too obvious or strident.

At the risk now of being strident, I have to say that the experiences on the game show (and some of the aftermath) reminded me of what our students go through as they quest for the right answer in order to get whatever rewards the profession has to offer and what many clients, whether well-healed or, more often, not, progress through in the quest for justice. To look for these points in a game show may seem misguided, but the larger point of the posts is to show that the tournament for reward and justice has common roots with other parts of our culture and society.

Finally, to end this commentary on a game show note, during the taping, one of my contestants had toured the set for the show "Wheel of Fortune" and told me how surprisingly small the wheel was when compared to how it appeared on television. I pointed out that the Wheel has to be just large enough to allow the average American to spin it. Constraints of practicality, which often mask those of power, define market society and the legal profession that services it.

Ghosh on Jeopardy, Part IV: Final Jeopardy (and a parallel to legal education?)

[Our final installment of Shubha's appearance on Jeopardy. And as I promised, here is one other writing you can see from him, perhaps a bit more technical, his coauthoed West casebook, Intellectual Property.   Where we left off, Shubha was about to compete. --Alan.]

   When my turn to compete came up, I had watched four previous tapings and felt relatively confident.  But standing behind the podium is, needless to say, different from sitting down, spouting out answers, and being entertained. I was now the entertainment; people would tune in to be enthralled by a real contest.  Cameras rolled. Theme music filled the silence of the sound stage. Holy shit, I said to myself quietly, mindful of the FCC. At that moment, whatever the tallest water fall in the world might be, it did not match the cascade of facts that was emptying from my brain. [Angel falls? -- Alan] Game play is twenty-two minutes, which strikes me now as an overestimate. Time was demarcated by the flash of questions and the ding of buzzers, which by the way took a real effort to control. My biggest fear was going into the red and at one point I could have gone either way.  My reaction when I got the question right was used in the promo for the week’s broadcast.  There were times when I felt on a roll.  Obama Successors was amazingly enough a category. Other times though I knew I was spouting the wrong answer when the right one was starting at me.  Should it ever be useful, the difference between a capital theta and capital phi is now permanently imprinted.  At one point, the judges stopped the game for an interminable period of time to see if my answer “prehistorical” was close enough to what they wanted “prehistory.”  What the…?  There were also several moments when I was sure that the answer I gave was the correct one.

But this game is not about analytical prowess.  Knowledge may be power but in the heat of Jeopardy battle, facts are money. At the end of it all, a dollar separated me from a tie with first place. The result was satisfactory intellectually: a respectable showing that allowed me to go home with an interesting set of experiences.  But that rationalized a terrible sense of disappointment which combined regret at not making a big money payoff (second place gets $ 2000 and third, $ 1000) with a feeling that I could have done better.  No robot can be programmed to replicate the feelings I had at the exact moment when the game was over.

As they tape the end credits, the contestants stand on the stage next to Alex Trebek and engage in banter.  Alex asked me what kind of law I was involved with, and I said intellectual property. “That must be really interesting with the Internet and all, “ he said.  “Yes, the Internet and other things,” I replied, launching into a law professor shtick on the reasons intellectual property is interesting. He interrupted me: “Well, I think all you need to protect intellectual property is a good gun.”  I stared back at him: “Yes, well, that seems to be how the rap industry operates.”  Blank stare back.  Last of the end credits. Usual disclaimers. Copyright notice. Jeopardy theme crescendo. And that was a wrap.

The contestant coordinators now had the job of escorting us out of the studio. More forms were signed. We were told we would get out checks four months after the show’s airdate. A canvas Jeopardy tote bag was handed to each of us as we were told where we could meet our cab to wherever we were going. Outside, the late afternoon sun nearly blinded me. I thanked the contestant coordinator for inviting me on, and he nodded cordially. Sequestration over, I was reunited with my spouse as we made our way off the lot with two other contestants.  There was a crowd of people outside the sound stage.  A bunch of young kids shouted out my name. “Shubha, you should have bet two more dollars.” I shouted back: “I didn’t have it!” and then added some platitude about studying hard.  My spouse explained that they were students at Culver City High School.  The Jeopardy announcer, during one of the breaks between tapings, introduced them as part of a special educational program the show had with local schools. My spouse had spoken to one of the kids who told her that attending the tapings was part of his community service.  I laughed, “What next?  Will the State of California have convicts compete to get time off for good behavior.” I resisted punning on “Double Jeopardy.” [Which would have been funny to anyone except Alex? -- Alan] As I said good bye to two of my fellow contestants, who were also headed back home, I realized  that the show would never lack for people to compete on whatever promise the show offered.

There are in your face parallels between being on a game show and being in legal education: the promise of monetary success, the piling on of information and its regurgitation in countless exams, the winner take all structure of the contest. But of course they are just trite analogies which the patient reader can indulge. Legal education, of course, serves a higher purpose and has real impact. Gameshows are true lotteries; junk food for the educated. At the end of my experience on Jeopardy, I have to say, to quote a literary character some may recognize, I didn’t learn a damn thing. [Jeff, who said that? --Alan] I did have a fun time in the process though. Yet, when thinking about all the facts I acquired during the day, about make-up artists, about game show rules and regulations, about Watson, about my fellow competitors, I wonder if I am not missing some cohesive lesson into which all these clues assemble. If I strain hard enough and think quickly, maybe I can come up with the right response.
    What is an entertaining diversion from what really matters, Alex?

[Editor's note:  I watched this show Friday and Shubha does not say, but he should be very proud.  He did extremely well, and Alex commented much the same.  Shubha answered some unbelievable questions, in one case to his own obvious surprise.  I am not sure of his epilog, since for some people game shows are what really matters--but there is no doubt in my mind that Shubha competed admirably and well represented the U. of Wisconsin.]

Ghosh on Jeopardy, Part III

[Third in a series on Prof. Ghosh's appearance Friday, April 30, at least in TV time that is, on the grueling quiz show, in his own words. A Legal Profession Blog exclusive.  -- Alan]

      That morning the Jeopardy crew was testing out a prototype for Watson, a robot created by IBM  to play Jeopardy against human contestants.  The first game with Watson is scheduled for later this year or perhaps in early 2011.  I really could not make out what the director, cameramen, and other technicians were doing with Watson, perhaps whatever passes for make-up in the robot world.  ["Only its hairdresser knows for sure." -- Alan]  We were asked to sit patiently as Watson was tamed and then escorted off stage like so many other contestants past and future. Then the real fun began: learning how to use the game equipment. The director had us up on stage, three at a time, to try out the buzzer and learn what it felt like to be behind the podium. We saw how the Board was set and  reset, where the videoclues were displayed, how the sidelights came on and off indicating when we could buzz in, and the nifty, but not so-futuristic, sliding doors through which Alex entered. Platforms behind each podium raised and lowered contestants so that they would all appear to be the same height for the home viewers. We practiced a game with easy questions, some involving Sony products, to get used to the feel of the buzzer, the flash of lights, the cadence of the questions as they filled the sound stage. I fumbled with the buzzer, kicked myself for not getting “what is a walkman?,” and ever so briefly worried whether I had on too much make-up. I felt ready to go, but inside thought of all the million ways I could screw up, many of which I executed perfectly later on.

       I wasn’t picked in the first group of contestants which consisted of the returning champion from the previous day’s taping, or last Friday’s show as it would be referred to, and two of the newbies.  I figured I would be the last one selected and I was, but that gave the whole day to watch the behind the scene action and mingle with my fellow contestants. Under the terms of our sequestration, the contestants sat together on the side bleachers of the studio audience and are not allowed to communicate, even look at, friends and family sitting across the aisle. We were told not to speak out any answers, even in a whisper.   Conversation among the contestants was limited to how the last game went, experiences with the audition and other games. One just had a baby. Another mentioned that the family car broke down on the day she got the invite call; the money would help out.  A graduate student in art history from New York, a researcher on the mathematics of earthquake prediction from California, a high school teacher and quiz bowl coach from Arkansas—all brought together by the promise of being on TV for twenty minutes and earn several thousands in prize money.  [part 4, the last, is next.]

Ghosh on Jeopardy, Part II

[Yesterday Shubha Ghosh, U. Wisc. law prof, appeared on Jeopardy! and was kind enough to share his tale.  Here's part 2. -- Alan.]

The trip from the hotel to the Jeopardy studios consisted of a twenty minute shuttle tour of Culver City, a wait in the studio parking lot (not too far from where, I was told later, The Wizard of Oz and Gone With The Wind were filmed), and an escorted tour through metal detectors and into the green room in the sound stage behind the actual Jeopardy set.  My spouse could not come with me past security and had to enter separately as an audience member when taping began at 11:00 am. In fact, my fellow contestants and I were sequestered from all human contact except for the members of the Jeopardy crew for the rest of day.  Our day would be structured around trips from the green room to the set with a break for a lunch at the commissary, escorted by a contestant coordinator, until our name was drawn to be a contestant and we either lost or moved on as champions. The whole experience was new for me and completely unpredictable. And so I did what I usually do when dropped into foreign situations: I focused on trying to learn more about the people.
  The first people I encountered were the contestant coordinators, some of whom I had met from the auditions, and other background workers who make the show happen. The contestant coordinators checked our ID’s and social security cards (we were asked specifically to bring those and would be disqualified if we did not), made sure we looked over and signed the requisite releases, and informed us of the rules of the game: phrase your answer in the form of the question, answer only when Alex calls your name, buzz in only when the timer lights around the board go off or you will be locked out for 3 seconds, and so forth.  At various points during the green room briefing, each of the contestants was called into a side room for make-up.  Our make-up artist also does Vanna White and had just come back from a shoot in the Philippines with the hostess and famous right of publicity plaintiff.  Between applications of powder and eyeliner, I learned that make-up artists in Los Angeles are all free lance and look around on a day by day basis for gigs like the one in Jeopardy.  I wish I had more time to talk with the make-up artist, and not only about how better to highlight my features. Labor history, especially in Hollywood, has always interested me, and the plight of make-up artists is another example of how another craft gives way to professionalization, guilds, and more readily commodified types of work. 
  In addition to Hollywood labor battles, our morning rounds also touched on the checkered history of the game show.  A bouncy and over the top contestant coordinator soberly reminded us of the quiz show scandals of the 1950’s. As  a result, the background rules for Jeopardy also included an extensive audit by an outside firm (not the same one that does the Oscars) to ensure that no one has access to the questions. Contestants are picked randomly by the outside auditor to determine their order of play during the day. Furthermore, the judges would be right there to ensure fairness and accuracy with one of them connected to the Internet to doublecheck responses.  To reassure us even further, the outside auditor, a friendly gentleman who reminded me of an older William Frawley or a grandfatherly neighbor on a Sixties sitcom, walked into the green room and told us that he was looking out for us, to make sure everything was fair for contestants. I was going to ask him whether he was our attorney and whether I could have his card.  But I reminded myself this is just a game show, for entertainment purposes, for fun and games.
  Primped and primed with the how to’s of the game, well fed with bagels, fruit, and sweets from a deli tray probably picked up that morning from Von’s Grocery by a flunky, the cohort of Jeopardy contestants was finally shown the Jeopardy set in preparation for the first game, scheduled to be shot only an hour later.  I have to admit my heart skipped several beats as the door was opened and a short walk down the hallway revealed the Board and the glaring neon blue and silver of the contemporary Jeopardy stage.  Recent repeated viewings of the broadcast had imprinted  the design, totem-like, on my brain.  The set had a familiarity beyond the television viewings.  It reminded me of  the subdued background lighting and bright colors of a casino, images from Las Vegas and my direct experiences of visiting the casino in Niagara Falls once upon a time.   All it needed was an all you can eat buffet, cocktail waitresses, and a lounge act. Then it slowly dawned on me: we contestants who are about to play are the lounge act. [end of part 2]

Guest Series by Shubha Ghosh, Wisconsin Law Prof and Jeopardy! Contestant Yesterday

[Shubha Ghosh (Wisc., Law), who with Jeff is the most well-read guy I know and a frequent blogger elsewhere, has graciously agreed to write for us a series on his very recent experience playing Jeopardy!  He is coauthor of the casebook Intellectual Property & Business Organizations (LexisNexis 2006) and a book I believe my 1Ls will read this fall, Acing Tort Law. Since he's prolific, I will cite more of his work later... BTW, he is very friendly, though maybe not the day they sent a photographer to his office. Here is part 1. --Alan Childress]

                                        When Jeopardy Attaches

One morning earlier this year, eleven people congregated in the lobby of the Culver City Radisson waiting for the shuttle bus to take them to the Sony Studios to film five episodes of the gameshow Jeopardy.  As those familiar with things L.A. know, this happens almost every week, with eleven different strangers, all filled with anticipation and adrenaline, from all over the country and lucky enough to pass tests of knowledge and of personality.  That morning I was one of the chosen eleven.
         Many lawyers, law students, and law professors have appeared on Jeopardy and other gameshows.  

Some speak negatively of the experience.  Others publicize it proudly on web sites.  I am pretty sure I have seen an AALS FAR include Jeopardy victory under “other accomplishments.” Motivations vary. For me, it was a long time interest, cultivated by high school trivia shows and modest cash bounties, converted into liquid, won at pubs.  I was also curious how it all worked:  the lights, the camera, the ambition to convert inert facts into hot cash all through the push of a buzzer. Appearing on Jeopardy is my flirtation with publicity. To quote the film maker John Waters, I always wanted to sell out but no one wanted to buy me. 

      I used to watch Jeopardy regularly.  My early memories from the Black & White Sylvania my family had in the late Sixties include the moonlanding, news coverage of Bobby Kennedy being killed, anchors reporting on what I heard as gorilla warfare, and three intense people sitting  in front of an array of mechanically displayed clues valued anywhere from ten to one hundred dollars and phrasing their answers in the form of a question. The show went away for a while, but it returned in the mid-Eighties, the board jazzed up and question values appreciated. Now, in 2010, people talk about the Jeopardy web site and the boards, sharing tips on how to buzz in and what to say to Alex Trebek, the host.  Sometime in the shifts of marketing and branding, I stopped watching. 
          Out of whim I tried out for the first time in New York City in 2001, passed some of the hurdles, but never heard back to actually appear on the show. An email announcing an online test escaped my spam filter in January, 2009, and again on a whim I took the test. In May, I was invited, based on the online test, to an audition in Chicago. The audition consisted of another written test and a question and answer session with the two contestant coordinators who were judging  personality and poise on the show. At the end of the ninety minute audition, twenty of us were told that we would be on an invite list for the next eighteen months. All this was the same as my experience in 2001. This time, however, my phone invite came about six months later, shortly after the new year. The call was from the contestant coordinator at my 2001 audition who happened to remember me. You see, there are folks who try out a dozen or more times before the call comes. Luck had it that I was called my second try.
       A panic surged through me as I realized there were only two weeks until taping -- and over two hundred countries whose capitals and major geographical landmarks had to be committed to relatively long-term memory. I also had to start watching the show again. The program guide on the Jeopardy web site indicated that the show aired at the same time accident attorneys, payday loan makers, and diet doctors advertise on the airways, and I set the DVR accordingly. The show used to be on after dinner, a nice way to end the day and begin the evening.  Re-engaging with Jeopardy, I asked myself: What had I committed to by agreeing to be a contestant? Was I a part of a desperate franchise?  Such thoughts were put aside quickly as I worked through, among other lists, the countries in the Commonwealth of Independent States and the names of people who would succeed President Obama.  VP, Speaker of the House, Secretary of State, and so forth.  . . .    [end part 1]

Lawyers On, If Not In, Jeopardy!

Posted by Alan Childress

Lawyers and law professors have been well represented on game shows over the years, and have been -- my impression is -- quite successful on Jeopardy!  I do know (by emails) one undefeated five-time champion:  Pat Healy, a lawyer and an indexing editor, among other positions, for LexisNexis. (His great work on my own book will be sold May 17, more later.)  Critical legal studies scholar Peter Gabel is the son of Arlene Francis, who regularly appeared on the panel for What's My Line?, and of an occasional guest panelist, actor Martin Gabel. (Peter was a surprise mystery guest once, too, and stumped his mother.) And Ninth Circuit Judge Alex Kozinski appeared on The Dating Game. Was he the catch?

Of course, in the early days, the two most famous game show participants were a psychologist (Joyce Brothers) and a literature prof (Charles Van Doren), the latter more like infamous, in the excellent movie Quiz Show.

Readers can post their own examples of law profs in action, but one you did not hear about is my own appearance, 21 years ago next month, on Concentration, with Alex Trebek. You did not hear about it because I told almost no one, which tells you a lot right now.  Suffice it to say that at the end, Alex was not speaking to me anymore, and the last words I heard were from the housewife from Pamona who remarked, after having trounced me, "And he's a professor, too!"  This as my seat was gliding away from her and Alex (who earlier had corrected her when she said "anxious to" when she meant "eager to"; pedantic twit).  It appeared to be gliding but in fact some Teamster off-camera was pulling me as a dolly.

More on that someday, but really this is a week to celebrate other game show moments.

NOW President Terry O'Neill, Lawyer and Former Law Prof, Speaks Out Against Letterman et al.

Posted by Alan Childress

NOW President Terry O'Neill was for years a colleague of mine on the Tulane faculty -- and a popular teacher on subjects including legal ethics, and influential writer on the social and community effects of corporate control rules.  Before that, she was a law graduate of Tulane and undergrad at Northwestern U, a partner in a NOLA law firm, and a prof at UC Davis and Denver. She is shown far right with other NOW officers.

We miss her but she has certainly gone on to great things.  Here is part of her appearance on Joy Behar's show on HLN.  She, Gloria Allred, and others are weighing in on the David Letterman workplace situation.  NOW is particularly not happy with how the media has trivialized it, and how unrepresented women are in CBS's corporate governance.  (See how writing law review articles can actually inform one's real life?)  Here is Terry O'Neill's press release on the David Letterman scandal, noting for all of us, not only constituents and women, why that kind of situation is harmful:

Every woman -- and every man -- deserves to work in a place where all employees are respected for their talents and skills. The National Organization for Women calls on CBS to recognize that Letterman's behavior creates a toxic environment and to take action immediately to rectify this situation. With just two women on CBS' Board of Directors, we're not holding our breath.

And here is an earlier Huff Post column by former NOW president Patricia Ireland on why Terry O'Neill should be elected president -- O'Neill's platform was to take NOW back out into the world, blogs, TV, Twitter, and locally, instead of the opponent's reported agenda, says Ireland, to keep it an inside-the-beltway DC lobbying organization focusing on formal legal positions.

Obviously the fulfillment of that platform is their taking public and media-rich stands against Letterman, Roman Polanski, and other famous events (and especially how the media cover them without recognizing the victims in a serious way).  The NOW press release by Terry about the health care plans and reproductive rights is here and her YouTube vid on public option is here as "absolutely essential."

Info on 2010 NOW internships is here.