Pushing ‘Meritless’ Migos Infringement Suit Draws Sanctions

Loeb & Loeb LLP is entitled to collect $450,000 in attorney’s fees, costs, and Rule 11 sanctions for having successfully defended hip hop group Migos against an unreasonable copyright infringement claim centered around lyrics in their song “Walk It Talk It,” the Southern District of New York said.

“Plaintiff’s copyright claim was objectively unreasonable,” Magistrate Judge Stewart D. Aaron said. “Plaintiff’s counsel repeatedly was warned about the lack of merit of such claim, but declined to withdraw it.”

Migos Touring Inc. and Capitol Records LLC won dismissal of the suit in November on the grounds that the plaintiff, Leander Pickett, hadn’t registered his own musical composition “Walk It Like I Talk It” with the U.S. Copyright Office before filing his lawsuit in the U.S. District Court for the Southern District of New York.

Loeb & Loeb asked Pickett and his counsel, Sacco & Fillas LLP, to drop the suit as early as December 2018, Aaron said Feb. 25 in a report and recommendation for Judge Analisa Torres. Pickett’s attorney was warned that if the defendants were “forced to move to dismiss,” then they would seek reimbursement of those costs along with sanctions under Rule 11.

Under Rule 11, federal district courts have the discretion to sanction attorneys who have filed pleadings for improper purposes. Such sanctions were appropriate in this case because Pickett’s counsel was repeatedly told that his claim wasn’t ripe under controlling precedent, Aaron said. Deposition testimony revealed Pickett was claiming infringement of a work that he admitted he didn’t create, and therefore didn’t own, Aaron said.

Loeb & Loeb should recoup $361,773 in fees and costs from Pickett alone, Aaron said.

Reimbursement for about 23 hours billed by Loeb & Loeb’s IP and Entertainment Practice Chair Barry I. Slotnick for work he performed on the case wasn’t included in the recommended award. Slotnick’s work “may have brought value to the clients,” but he wasn’t the partner in charge on the case, so “it is not reasonable to pass along the hours he billed” to Pickett, Aaron said.

Aaron also recommended $88,818 in Rule 11 sanctions, based on the billable hours Loeb & Loeb attorneys clocked between August and November 2019. Pickett, his attorney, and the Sacco & Fillas firm should be held jointly and severally liable for that amount, Aaron said.

A request for additional sanctions under 28 U.S.C. Section 1927 shouldn’t be granted because Pickett’s counsel didn’t act so “vexatiously” as that provision demands, Aaron said. In fact, it was Pickett’s refusal to compromise with the defendants that led Sacco & Fillas to withdraw its representation of Pickett in this matter, Aaron noted.

The parties have 14 days to object to Aaron’s report. Torres will make a ruling on the report and recommendation.

Migos’s use of the lyric “walk it like I talk it” wasn’t infringing conduct in the underlying case either, because the turn of phrase has been used regularly in literature, music, and motion pictures, the trial court said in November.

Loeb & Loeb LLP represents Migos Touring Inc., Capitol Records LLC, Quality Control Music LLC, and the Migos members individually.

Leander Pickett currently represents himself. Sacco & Fillas LLP was his prior attorney of record.

The case is Pickett v. Migos Touring, Inc., 2020 BL 70428, S.D.N.Y., No. 18-cv-09775, 2/25/20.