This one just in from the Live-by-the-sword-Die-by-the-sword Department.

HEY! THEY COPIED MY COMPLAINT!
Firm Says Borrowing From its Filings Violates Copyright

BY MOLLY McDONOUGH

Fed up by what it considers work-product theft by "poaching firms," securities class-action titan Milberg Weiss Bershad Hynes & Lerach is taking steps to prevent unfair copying of the language in its complaints.

A lawyer for the New York-based firm has sent more than a dozen cease-and-desist letters to firms it claims copied verbatim up to 90 percent of shareholder complaints. In some instances, Milberg Weiss says it has lost the lucrative lead-plaintiff status when another firm copied a complaint as its own.

Milberg Weiss has begun copywriting its complaints and is threatening litigation if the offending firms don’t quit their copycat behavior. [She means copyrighting not copywriting.]

But legal experts wonder how far Milberg Weiss will get. In some respects, copying is integral to the legal system. Lawyers copy from form books and piggyback on government-led actions. Judges have sanctioned lawyers for plagiarism, but most of those cases involve lawyers who borrowed heavily from a published work without attribution, according to published decisions. Attorney discipline cases primarily involve new lawyers found to have plagiarized while in law school.

Within the profession, "Modeling is a common thing," says Rick Marcus, who teaches civil procedure and complex litigation at Hastings College of the Law in San Francisco. "What is not commonplace is for someone to claim copyright protection and try to enforce it with things filed in court."

Milberg Weiss says, however, that it is uniquely situated and deserving of the same protections afforded artists and authors of original work.

"These are not run-of-the-mill notice complaints," says Atlanta lawyer John C. Herman, who represents Milberg Weiss. "They are very descriptive, involving sometimes hundreds of hours of investigation."

In its shareholder action against Enron, the firm spent hundreds of hours and devoted significant manpower to investigating claims and filed a 501-page complaint. Herman wouldn’t say whether the Enron complaint was copied, but in at least one of the unnamed copycat cases, another firm swooped in and filed a claim within 24 hours, he says.

"A number of firms copied a complaint, sometimes verbatim," Herman says. The behavior, he adds, doesn’t stop at the filing. Firms post the material as their own on the Internet and then "try to defraud potential class members into thinking this is their work product and that they have the legal expertise to handle these kinds of cases."

Herman says Pennsylvania’s Schiffrin & Barroway and New York City’s Bernstein, Liebhard & Lifshitz are among the firms getting cease-and-desist letters. Neither firm returned calls for comment.

Herman says he will continue to send letters as infringements occur.

Responding to criticism that complaints can’t be copyrighted because they are public documents, Herman says no court has found that court filings are free for public use, and nothing in the Copyright Act addresses this scenario. "These complaints fall squarely in the literary copyright subject matter, in which copyright vests in the author at the time complaints are drafted," he says. This is not a question of protectability but one of fair use, Herman argues.

So how far is Milberg Weiss willing to take this? Herman says all the way. "I could foresee a multimillion-dollar-damage case put together where lead-counsel role was usurped by one of these poaching firms," he says.

Still, the issue could be addressed by a new U.S. Supreme Court rule designed to deal with this problem. Class Action Rule 23, which has been approved by the Judicial Conference but not the high court, would require judges to consider the expertise and the work lawyers have put into identifying claims before selecting lead-plaintiffs counsel in class actions.

Professor Marcus says judges should be doing that already. Where there’s a serious question about lead counsel, the judge should hold special proceedings to figure out who has done the research.

The concern is that too many judges ignore quality considerations and instead lump all applications for lead counsel together and ask who’s the cheapest. "If everybody’s complaint looks the same, then probably the judge shouldn’t stop at that point and should get better informed to make a comparison," Marcus says.