PHILADELPHIA – A Philadelphia attorney alleges that improper conduct on the part of Pierce Bainbridge founder John M. Pierce, in the form of threatening an unauthorized legal malpractice suit, was done in an attempt to notch a dismissal in a fee-sharing dispute matter.
The saga starts with a 2017 lawsuit filed by Lenwood Hamilton, a former professional wrestler and football player, which claimed that the Augustus “Cole Train” Cole character featured in the Gears of War video game series unfairly appropriated his likeness.
Hamilton’s lawsuit targeted Microsoft, developer Epic Games and the voice actor for the Cole character, Lester Speight. There was a connection between Speight and Hamilton, when the two did business together in the late-1990s. Speight made appearances for Hamilton’s family-oriented wrestling promotion, Soul City Wrestling. At the time, the plaintiff’s wrestling alter-ego was “Hard Rock Hamilton.”
The suit alleged when Speight proposed collaborating with Hamilton on a video game in the future, Hamilton asserted he did not want to participate if the concept was violent. However, the suit added that Hamilton’s likeness would indeed be included when Speight later became a part of the Gears of War video game series.
“The similarities of the avatar ‘Cole Train’ and Hard Rock Hamilton [Hamilton’s pro wrestling alter-ego] include that both are Black (and ‘Cole Train’ is the only Black avatar in the Gears of War series), they both played professional football (although in Gears of War, the game is called ‘thrashball’), Cole Train’s number is 83 (same year that Hamilton played for the Philadelphia Eagles – 1983), the derby hat, wristbands, a front gold tooth and a striking resemblance of both physiognomy and body build,” the suit stated.
Hamilton, who first learned of the game and character in 2015, argued that his intellectual property was stolen when the “Cole Train” character was created and designed in his image.
However, in September 2019, U.S. District Court for the Eastern District of Pennsylvania Judge Anita B. Brody dismissed the case through summary judgment.
Though ruling that there was a good chance the Cole character was inspired by Hamilton, Brody also found that Hamilton’s claims did not pass the “transformative use test.” That test compels plaintiffs like Hamilton to prove that the digital character they’re litigating about is basically identical to themselves, if they want to overcome First Amendment free speech protections.
“In the Gears of War series, the Cole character is not a wrestler but a fictional soldier who engages in highly stylized cartoon violence against formerly subterranean reptilian humanoids on a fictional Earthlike planet, Sera,” Brody said.
“Cole – who engages in extraordinarily stylized and fantastical violence against cartoonish reptilian humanoids on a fictional planet in a fictional war – does not ‘do what the actual’ Hard Rock Hamilton character does – engage in professional wrestling on Earth. Because of these transformative characteristics of the Cole character, defendants meet the transformative use standard.”
Last September, a panel from the U.S. Court of Appeals for the Third Circuit upheld Brody’s ruling, concurring with her rationale that while the Cole character does battle with creatures in a fictional alien universe, Hamilton does not and that crucial difference defeated his claims.
A writ of certiorari has been filed in Hamilton’s underlying case to the U.S. Supreme Court, to which a response is pending.
Meanwhile, separate but related litigation is also in play from Hamilton’s original counsel, Bruce Chasan, versus his second set of counsel from the now-defunct firm of Pierce Bainbridge Beck Price & Hecht (PBBP&H).
Chasan had filed suit for breach of contract and specific performance against PBBP&H in December 2018 seeking $160,000 in damages – eight months after he says the firm stole the representation for his client, Hamilton.
Chasan says he proposed a settlement agreement with PBBP&H for $160,000, which would cover about half of Chasan’s legal fees for the 15 months he spent as representation for Hamilton before his client ran out of funds.
Chasan then contacted PBBP&H in the hopes of securing alternate financing for the case and devising a fee-sharing contract – but alleges that the firm, after initially agreeing to the settlement, ultimately reneged on the deal and assumed sole representation for Hamilton.
Chasan further claimed that John M. Pierce, a then-partner at PBBP&H, threatened him with an eight-figure legal malpractice lawsuit on behalf of Hamilton.
In May 2019, Brody granted a dismissal motion from PBBP&H, citing in part that Hamilton had never signed a settlement between Chasan and PBBP&H.
“Chasan has not pleaded the existence of an enforceable contract. Therefore, even accepting all of Chasan’s factual allegations as true and construing Chasan’s complaint in the light most favorable to him, there is no reasonable reading of Chasan’s complaint that could support Chasan’s entitlement to relief for breach of contract. For this reason, I will grant defendants’ motion to dismiss,” Brody stated.
Though the latter case against PBBP&H was also appealed to the Third Circuit, Brody’s decision was once again upheld in that Court.
Enter an April 5 motion from Chasan to vacate the judgment and re-open the case against the firm, due to “extraordinary circumstances.”
Such circumstances were that Hamilton telephoned Chasan unprompted on Feb. 24, seeking to enlist his assistance for Hamilton to file a legal malpractice lawsuit against one of PBBP&H’s then-partners, John M. Pierce.
In that conversation and recorded ones which followed, Chasan claims Hamilton told him that Hamilton never authorized Pierce or his firm to threaten Chasan with a malpractice action; that Hamilton was never informed by Pierce or his firm that he was required to approve a settlement between the parties; and that Hamilton was never shown a draft release that Chasan had sent to PBBP&H.
Chasan’s motion said that the Court was “overly eager to dispose of this case” and dismissed it prematurely.
“Had the Court permitted the discovery that plaintiffs sought, there would have been factual support for the theory of the case espoused by plaintiffs. In the interests of justice, the Court should hold a suitable hearing, acknowledge its error, vacate the judgment, deny the defendants’ motion to dismiss and allow the case to proceed,” Chasan said.
Chasan maintains that Pierce’s actions violated two of Pennsylvania’s Rules of Professional Conduct, pertaining to making truthful statements to others and misconduct.
It came to light in recent months that Pierce took out personal loans using the PBBP&H firm assets as collateral, which later saw the firm facing a $65 million debt to litigation funding group Virage Capital Management.
Pierce has since created a new firm, “Pierce Bainbridge, P.C.,” but has already faced lawsuits from creditors seeking their money.
Among them are cases filed by Veritext, a legal transcription company, for over $159,000 in unpaid bills, in the New York County Supreme Court in March, and another by law firm Morgan Lewis, for over $430,000 in unpaid rent for Los Angeles office space. That case was filed in California Superior Court for Los Angeles County earlier this month.
Pierce Bainbridge is due to respond to Chasan’s motion by May 19.
The plaintiffs are represented by Bruce J. Chasan of the Law Offices of Bruce J. Chasan in Philadelphia and John J. Cunningham IV of Lamb & McErlane, in West Chester.
The defendants are represented by Edward D. Altabet of Cohen Seglias Pallas Greenhall & Furman, Craig E. Bolton of Goldstein & McClintock and David L. Hecht of Hecht Partners, all in New York, N.Y.
U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-05399
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com