No Summary Judgment Granted in Archie v. Penders Case

No Summary Judgment Granted in Archie v. Penders Case

by July 17, 2012

“Parties are directed to engage in good faith settlement discussions,” Among Other Advisement

Anything that wasn’t a summary judgment in Archie’s favor would have been good news for Ken Penders and his legal team Monday, as US District Judge Richard Berman heard both sides argue their case in the ongoing civil dispute over the validity of Penders’s copyrights.

That is exactly what the Penders defense got.  Moreover, a court order obtained by TSSZ shows both parties’ motions for summary judgment were tossed by Berman, as well as both parties’ motions in limine, which attempted to limit evidence on both sides in the case.

First, here is why Penders and his defense team have reason to celebrate.  Archie’s attempts to invalidate signed affidavits by Scott Shaw, Karl Bollers, Scott Fulop, and Mike Kanterovich for the case were for naught.  You may remember us telling you about what they said a few months back.  Judge Berman rules those affidavits are valid, as the trial, originally scheduled for January, was delayed:

Archie’s timeliness arguments are unpersuasive. Even assuming, [….] that Penders disclosed any witnesses late, no prejudice to Archie has resulted because the Court vacated the January 30, 2012 trial date [….] leaving Archie ample time to prepare any rebuttal.


The affidavits of Karl Bollers, Scott Shaw, Joshua Ray, Scott D. Fulop, Elliot S. Maggin, and Mike Kanterovich are relevant and admissible, even though they do not have personal knowledge of whether Penders signed the Agreements, because those affiants are freelance artists who previously worked for Archie and claim that Archie never required them to sign any work-for-hire contracts. [….] The affidavits of Fred Mausser and Justin Gabrie are relevant and admissible because those
affiants are former Archie employees who claim that “[f]reelance creators, including Ken Penders, were not required to sign contracts . . . before they could do work for [Archie].”

That said, the judge did conclude portions of affidavits, including some areas of Penders’s own affidavit, are inadmissible due to several reasons, including extrinsic evidence and hearsay.  Some of that concerns small details regarding Ed Spallone, his departure from Archie Comics, and what he allegedly knew or did not know regarding Penders’s contract.  The latter was to be a centerpiece of Penders’s defense, and it appears most of that portion will survive.

The judge also found that Archie’s argument of an E-Mail exchange between Penders and Archie’s Victor Gorelick was not enough to merit summary judgment:

Archie’s contention that “a series of emails written by Penders to Victor Gorelick . . . admit that Penders did, in fact, sign [the] [A]greements” is unpersuasive on summary judgment. (Pl. Mem. at 16.) The emails, dated December 4, 2008, December 15, 2008, and January 5, 2009, reference a “work-for-hire form”
from “back in late ‘95” and do not resolve the genuine issues of material fact regarding the authenticity of the Agreements which are dated December 12, 1996. [….] Because the existence or nonexistence of authentic Agreements is a question of fact for the jury, Archie’s motion for summary judgment is denied.

However, Penders also had his motions denied, and several pieces of evidence his team sought to toss, including duplicate copies of the work-for-hire agreement he allegedly signed, were allowed to stay in the case.  A jury will ultimately determine their authenticity.  In addition, the defense’s cross-motion for summary judgment was denied.  An argument that the contract was unenforceable, even if authentic, did not convince the judge:

[….] The record appears to show that Penders submitted invoices to Archie for payment without expressing “any issue or concern with receiving payment from [Archie] in this method or form.” [….] And, Penders’ argument that, “even if [the] Agreements are found to be authentic, valid and enforceable[,] all Works submitted before December 12, 1996 cannot qualify as work for hire” is unpersuasive. (Def. Opp’n at 15.) The Agreements provide that if any Works “do not qualify as a work for hire, [Penders] will and hereby does assign to Archie any right, title and interest that he/she has or may obtain therein, including all copyrights.”

In a nutshell, it means both parties are back to square one facing a possible jury trial, albeit with most of their ammunition intact.  Judge Berman has ordered both parties to submit pre-trial orders, jury instructions, and verdict sheets jointly by August 10th, as well as any motion in limine.  One last pre-trial conference is scheduled for September 10th to try and hammer out a settlement.

“The parties are directed to engage in good faith settlement discussions prior to the conference,” Berman advised.

If those attempts fail, we should see a trial, and if gets that far, make no mistake; advantage: Penders.

Why should you care if it gets that far?  Any thought of Archie losing this case or a settlement may give the company reason to put the brakes on future releases that include Penders’s work, including but not limited to the long-awaited Sonic Comic Encyclopedia.  There is, of course, no indication that will happen at this point, but should we see a trial and a jury render a verdict, anything in Penders’s favor would make a release like that quite difficult.

We will continue to offer developments in this case as they come in.