Friday, March 30, 2012

Brantley v. NBC Universal (9th Cir. - March 30, 2012)

Although I'm not ridiculously old, I remember an era in which Blecher & Collins -- run by Max Blecher -- was a scary law firm.  They had big cases, settled for big money, and were big players.  Or at least that was the impression that I had as a young lawyer working in Los Angeles.

That was perhaps a bygone era.  Now they litigate cases like this one.

It's not that they're not still trying to hit home runs.  They are.  In cases like these as well as in others I've read during the past decade.

They're just whiffing.  In a way that's pretty expected.

This litigation is a classic example.  The lawsuit is about the fact that cable companies tie the purchase of channels that people like (e.g., ESPN) with channels that no one wants.  Blecher sues, claiming that this practice violates the Sherman Act.

But the district court dismisses the lawsuit at the pleading stage, and the Ninth Circuit unanimously affirms.  And, trust me, the case is neither going en banc nor getting reviewed by the Supreme Court.  Even people with only a glancing familiarity with antitrust law would understand that this case was a loser from the outset.

It's possible that Blecher is simply "fighting the good fight" with a full understanding that they'll almost certainly lose.  If that's the case, I get it.  That's not exactly a practice that's designed to make a ton of money, but one of the nice things about making tons of money early is that you can afford to take a flyer.  For one lawsuit or -- given enough money -- for a decade or so.  So as long as you're going into cases with your eyes open, I'm more than okay with that.  Good job.  You may know that the judiciary is radically more conservative than you are, so you're going to lose, but you're going to continue to prosecute cases that you think should be legally cognizable.  Cool.  Rock on.

It's only sad if it's something else.  If winning big cases in the past has blinded you to the changes that have happened during the past thirty years in a way that's embarrassing.

It basically depends on if you know you're Don Quixote or if, instead, you're actually Don Quixote.

One of these is Max Blecher.