A federal judge, although "deeply troubled" by a lawyer's behavior, has refused to sanction prominent entertainment attorney Marc Toberoff for alleged discovery violations during his lengthy court battle over the rights to Superman.
Toberoff, of Toberoff & Associates in Malibu, Calif., represents the heirs to one of the co-creators of Superman. They have sued DC Comics, a subsidiary of Time Warner Inc.'s Warner Bros. Entertainment Inc., to terminate the studio's rights to the comic book hero's copyright.
DC Comics later sued the heirs and Toberoff, alleging that he illegally sought to repudiate a 2001 agreement with the studio so that he could become a business partner with his clients in a new deal over the Superman rights. As part of the later suit, DC Comics' attorney Daniel Petrocelli, a partner at Los Angeles-based O'Melveny & Myers, sought terminating sanctions against Toberoff after he failed to reveal several letters in his privilege logs. Petrocelli also sought an evidentiary hearing and, if needed, a special master.
In a March 8 order, U.S. District Judge Otis Wright in Los Angeles refused to go along, concluding that the motion "is really just a rehashing of the tortured course of discovery in these Superman matters." Even though he was "deeply troubled" by Toberoff's failure to update his privilege logs, he concluded that the behavior did not "rise to willful attempts to mislead" the judge or DC Comics.
"In any event, the Court is skeptical of DC's contention that any perceived deception here caused it any real prejudice, as the letters at issue here actually serve more to discredit DC's cries of intentional interference than they do to bolster them," he wrote.
Petrocelli, Toberoff and Toberoff's attorney, Laura Brill, of Kendall Brill & Klieger in Los Angeles, did not return calls for comment.
Writer Jerome Siegel and artist Joseph Shuster co-created Superman during the 1930s and later assigned their rights to DC Comics.
On May 10, 2004, the Siegel heirs sued DC Comics, seeking to terminate its previous copyright grants to Superman. They alleged trademark infringement and sought unpaid profits. DC Comics filed its suit on May 14, 2010, against Jerome Siegel's widow, Joanne Siegel, and his daughter, Laura Siegel Larson; Mark Warren Peary, the nephew of Joseph Shuster; and Toberoff and his related companies, Pacific Pictures Corp. and IP Worldwide LLC.
The studio accused Toberoff and his companies of violating the U.S. Copyright Act by interfering with a 1992 agreement with the Shuster heirs and the 2001 agreement with the Siegel heirs.
"In or about 2001, Toberoff learned of these agreements between DC Comics and the Siegel and Shuster heirs and engineered a course of conduct to induce the heirs to repudiate those agreements, file invalid and erroneous copyright termination notices, and enter into new agreements with Toberoff and his companies netting him the controlling stake in the heirs' asserted interests in Superman," Petrocelli wrote in the complaint.