Federal judge boots attorneys from copyright infringement case against McGraw-Hill

By Karen Kidd | May 16, 2018

PHILADELPHIA — Attorneys representing a Lititz-based photography company in a copyright infringement case have been disqualified following a federal judge's ruling earlier this month over the law firm's hiring of a consultant who previously had worked for the defendants in the case.

Attorneys from Harmon Seidman Bruss & Kerr have been disqualified because of their consulting agreement with former McGraw-Hill Global Education Holdings employee Mari Masalin-Cooper, U.S. District Judge Michael M. Baylson, on the bench for Pennsylvania's Eastern District, said in his May 2 memorandum.

"Masalin-Cooper should not have been retained as a 'consultant' to provide information to [the] plaintiff's counsel about any substantially related cases," Baylson said in the memorandum.

Baylson granted New York-based McGraw-Hill's motion to disqualify Grant Heilman Photography's counsel over allegations that attorneys at the firm had retained Masalin-Cooper "to obtain information regarding this case and other ongoing litigation against [the] defendant." 

U.S. District Judge Michael M. Baylson  

The judge pointed to a rule in the Pennsylvania Rules of Professional Conduct that states that "a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer."

Masalin-Cooper is not an attorney, but Baylson said in his memorandum that the rule still applies to her. 

"Here, there appears to have been no policy or procedure by [the] plaintiff's counsel to check that Masalin-Cooper did not have privileged or confidential/proprietary information," Baylson wrote in the memorandum. 

"Masalin-Cooper specifically stated in her initial emails to both Seidman and Harmon that she functioned as 'content licensing director' [for the] defendant. She also submitted a declaration in the 2012 action in which Harmon Seidman was [the] plaintiff's counsel. 

"Harmon admitted that he did not 'run a check' on Masalin-Cooper’s name. Clearly, Harmon Seidman failed to run the proper conflict checks, including, as would have been appropriate here (given her employer), simply asking Masalin-Cooper about work she did in connection with the 2012 action."

McGraw-Hill filed its motion to disqualify Harmon Seidman in September.

Grant Heilman Photography's copyright infringement lawsuit against McGraw-Hill identifies 2,395 alleged instances in which McGraw-Hill used its photographs from 1995 to 2011. The two parties "generally agree" that McGraw-Hill committed copyright infringement, but they disagree about the "measure of damages," according to the memorandum.

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Grant Heilman Photography Harmon & Seidman, LLC S&P Global U.S. Court of Appeals for the Third Circuit U.S. District Court for the Eastern District of Pennsylvania

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