Mark J. Hill & Associates, P.C.

Practice Areas

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Shareholders Litigation
Environmental Litigation

Civil Rights

Small Business

Estate Litigation
Commercial Litigation
Insurance Law
Insurance Bad Faith


Products Liability
Construction Law
Employment Law
Defense Of Self-Insureds

Contracts & Business

Shareholders Litigation
Environmental Litigation
Employment Law
Civil Rights Violations
Small Business Litigation
Estate Litigation

Commercial Litigation

Insurance Law
Insurance Bad Faith
Defense Of Self-Insureds
Products Liability
Construction Law

Case Summaries

McNair v. National Collegiate Athletic Association

In this case, the trial court denied defendant’s motion to seal 400 pages of the record in the lawsuit brought against the NCAA by a former assistant football coach at the University of Southern California, but conditionally sealed the documents at issue pending appellate review. Defendant now moves to seal the same documents lodged as part of the appellate record. Defendant’s motion to seal the appellate record lodged conditionally under seal is denied, where defendant failed to carry its burden to demonstrate that its interest in the confidentiality of its enforcement proceedings overrides the constitutional right of access and the presumption of openness, or how this interest in confidentiality would be prejudiced if the documents at issue were disclosed.

City of San Jose v. Office of the Commissioner of Baseball

Dismissal of plaintiff City of San Jose’s antitrust action regarding the Office of the Commissioner of Baseball’s delay in deciding whether to approve the Oakland Athletics’ move to San Jose, which is within the exclusive operating territory of the San Francisco Giants, is affirmed, where: 1) the baseball industry’s historic exemption from the antitrust laws, upheld in Flood v. Kuhn, barred San Jose’s antitrust claim regarding franchise relocation under the Sherman and Clayton Acts and state law; and 2) antitrust claims against baseball franchise relocation policies are precluded by Flood’s rationale.

Davis v. Electronic Arts

In this right of publicity case, plaintiff professional football players brought suit against defendant Electronic Arts for the alleged unauthorized use of their likenesses. The district court’s denial of defendant’s anti-SLAPP motion to strike the complaint is affirmed, where defendant’s use of plaintiffs’ likenesses is not protected under the First Amendment as “incidental use,” as the use of their likenesses is not incidental, but rather is central to defendant’s main commercial purpose, which is to create a realistic virtual football simulation involving former and current NFL teams.

In re: National Football League Players Concussion Injury Litigation

In this class action suit against the National Football League in which thousands of retired professional football players allege that defendants failed to take reasonable actions to protect players from the risks associated with concussive and sub-concussive head injuries, petition for permission to appeal the district court’s order preliminarily approving a proposed class-action settlement agreement and conditionally certifying the settlement class and subclasses for settlement purposes only is dismissed, where the district court’s order was not an “order granting or denying class-action certification” under the plain text of Federal Rule of Civil Procedure 23(f).

In the Matter of Mark Ford v. New York State Racing and Wagering Board

In this case concerning the introduction of a new equine drug testing rule, the Out of Competition Testing Rule (9 NYCRR section 4120.17), plaintiffs commenced this hybrid article 78-declaratory judgment proceeding in advance of the rule’s effective date, alleging, among other things, that equine drug testing without a nexus to the test subject’s participation in a specific, soon-to-be-run race is not authorized by the enabling legislation and would entail constitutionally unreasonable intrusions upon off-track farms stabling race horses, some of which are owned by persons not subject to the defendant’s licensing jurisdiction. Judgment in favor of defendant is affirmed, where: 1) there are legal grounds for the promulgation of a rule mandating out-of-competition race horse testing; and 2) a testing regimen of the sort proposed would not necessarily involve constitutionally unreasonable intrusions by defendant’s agents.

Saltonstall v. City of Sacramento

In this case, plaintiffs, a group of investors who intended to purchase the Sacramento Kings basketball team, but who lost the sale to defendant City of Sacramento, for whom the sale went through only because of a promised construction of a new arena in downtown Sacramento, moved for a preliminary injunction to stop construction of the arena. Denial of the motion for a preliminary injunction is affirmed, where: 1) because Public Resources Code section 21168.6.6, which modifies several deadlines for review of the arena project under the California Environmental Quality Act (CEQA), does not materially impair a core function of the courts, and because CEQA review does not implicate any constitutionally granted right, the deadlines set forth in section 21168.6.6 are not unconstitutional; and 2) plaintiffs bore the burden of showing necessity for a preliminary injunction, but failed to meet it.

Nunn v. Massachusetts

In an action brought by two former NBA referees alleging breach of contract regarding supplemental disability insurance policies that were issued to them, summary judgment in favor of defendant-insurers is vacated and remanded, where the district court erred in: 1) failing to apply Pennsylvania’s reasonable expectations doctrine to plaintiffs’ reformation claims; and 2) finding the breach of contract claims to be time-barred. (Opinion on rehearing)

Nunn v. Massachusetts Casualty Insurance Co.

In an action brought by two former NBA referees alleging breach of contract regarding supplemental disability insurance policies that were issued to them, summary judgment in favor of defendant-insurers is reversed and remanded, where the district court erred in: 1) failing to apply Pennsylvania’s reasonable expectations doctrine to plaintiffs’ reformation claims; and 2) finding the breach of contract claims to be time-barred.

US v. Lyons

Defendants’ convictions and sentences for two counts under the Wire Act, two counts under RICO, and one count for conducting an illegal gambling business, as well as another eighteen counts for defendant Lyons, are affirmed, where: 1) the district court properly instructed the jury on the government’s charges that defendants violated the Wire Act; 2) the Wire Act applies to the internet; 3) ignorance of the law is no excuse; 4) defendants’ convictions were not an improper extraterritorial application of the Wire Act; 5) there was sufficient evidence that defendants aided and abetted the receipt of sports bets, so the Wire Act properly applied; 6) the district court did not err in admitting into evidence a directory of agents from defendants’ employer; and 7) defendants’ remaining claims fail.

Boorstein v. CBS Interactive, Inc.

Dismissal of plaintiff’s causes of action for violations of Civil Code section 1798.83 et seq. (the shine the light disclosure law) and Business and Professions Code section 17200 et seq. (the unfair competition law), alleging that defendant’s fantasy football website collected information from users, provided it to third parties for direct marketing purposes, and failed to provide users with information on their privacy rights, is affirmed, where the trial court correctly concluded that plaintiff lacks standing to pursue causes of action under either statute because he did not make, or attempt to make, a disclosure request under Civil Code section 1798.83(a).

Bouchat v. Baltimore Ravens Limited Partnership

Judgment for defendants on plaintiff’s claim that defendant National Football League’s use of the Baltimore Ravens “Flying B” logo in three videos featured on its television network and various websites, as well as defendant Baltimore Ravens’ display of images that include the logo as part of exhibits in its stadium “Club Level” seating area, infringe his copyright, is affirmed, where the district court did not err in finding that the defendants’ use of the Flying B logo in both settings was fair and therefore did not infringe plaintiff’s copyright.

Federal Insurance Company v. WCAB

In a workers’ compensation claim brought by a professional basketball player who was not employed by a California team, has never resided in California, has played one professional game in California out of 34 games played during the 2003 season, and has suffered no specific injury in California, who seeks an award against her former non-California team and its insurer for a disability based on a cumulative injury, California does not have a sufficient interest in this matter to apply its workers’ compensation law and to retain jurisdiction over the case.

NCAA v. Governor of New Jersey

Summary judgment to plaintiffs, a conglomerate of sports leagues, in their action challenging New Jersey’s proposed law that would license gambling on certain professional and amateur sporting events, is affirmed, where: 1) the plaintiff leagues have Article III standing to enforce the Professional and Amateur Sports Protection Act of 1992 (PASPA), a federal law that prohibits most states from licensing sports gambling; 2) PASPA is constitutional; and 3) because New Jersey’s sports wagering law conflicts with PASPA, under the Constitution, it must yield.

US v. Bonds

Defendant’s conviction of one count of obstruction of justice in violation of 18 U.S.C. section 1503, arising from his testimony before a grand jury investigating whether the proceeds of the sales of performance enhancing drugs were being laundered, is affirmed, where: 1) section 1503 applies to factually true statements that are evasive or misleading; 2) there was sufficient evidence to convict defendant because his statement describing his life as a celebrity child, in response to a question asking whether his trainer ever gave him any self-injectable substances, was evasive, misleading, and capable of influencing the grand jury to minimize the trainerâ€
TMs role in the distribution of performance enhancing drugs, and 3) defendant’s remaining challenges fail.

Brown v. Electronic Arts, Inc.

The district court’s dismissal of retired professional football player-plaintiff’s action alleging that defendant violated section 43 of the Lanham Act through the use of his likeness in its Madden NFL series of video games is affirmed, where: 1) because the video games were expressive works, the district court correctly applied the Rogers test for balancing between trademark and similar rights, on the one hand, and First Amendment rights, on the other; 2) under the Rogers test, plaintiff’s likeness was artistically relevant to the games and that there were no alleged facts to support the claim that defendants explicitly misled consumers as to plaintiff’s involvement with the games; and 3) accordingly, the public interest in free expression outweighed the public interest in avoiding consumer confusion.

Keller v. Electronic Arts, Inc.

In a putative class-action alleging that defendant violated former college football player-plaintiffs’ rights of publicity under California Civil Code § 3344 and California common law by using his likeness as part of the NCAA Football video series, the district court’s denial of defendant’s anti-SLAPP motion to strike and holding that defendant had no First Amendment defense against the right-of-publicity claims of plaintiffs is affirmed, where: 1) under the “transformative use” test developed by the California Supreme Court, defendant’s use did not qualify for First Amendment protection as a matter of law because it literally recreated plaintiff in the very setting in which he had achieved renown; 2) the Rogers test which had been created to evaluate Lanham Act claims does not apply in the right-of-publicity arena; and 3) the state-law defenses for the reporting of factual information did not protect defendant’s use.

Cann v. Stefanec

Summary judgment for defendant in negligence action in which plaintiff, a UCLA swim team member alleged that she was injured when defendant, her teammate dropped a weight, is affirmed, where the primary assumption of the risk applied to bar plaintiff’s claim.

National Football League v. Fireman’s Fund Insurance Company

In action by plaintiffs NFL and NFL Properties for declaratory relief judgment regarding the coverage duties of defendant-insurance carriers pursuant to some 187 commercial liability policies that were issued over a 50-60 year period regarding claims of brain damage by former players that resulted from on-field injuries, the trial court’s order staying the proceeding pending the outcome of parallel actions in New York, on forum non conveniens grounds, is affirmed, where: 1) plaintiffs, whose principal places of business are in New York City, are not California residents in the inconvenient forum context, even though three teams reside in California; and 2) there was no abuse of discretion in the trial court’s analysis and conclusion that the California action should be stayed.

Hart v. Electronic Arts, Inc.

Summary judgment for defendant on plaintiff’s claim that defendant violated his right of publicity for using plaintiff’s likeness and biographical information in its NCAA Football series of videogames is reversed and remanded, where: 1) the NCAA Football 2004, 2005 and 2006 games at issue in this case do not sufficiently transform plaintiff’s identity to escape the right of publicity claim; and 2) the only apparent use of plaintiff’s likeness in NCAA Football 2009 (the photograph) is protected by the First Amendment, plaintiff’s overall claim for violation of his right of publicity should have survived defendant’s motion for summary judgment.

Frolow v. Wilson Sporting Goods Company

Judgment for defendant in suit alleging breach of license agreement and patent infringement involving tennis rackets, is: 1) reversed in part, where for the fourteen marked rackets, the district court erred when it held that the defendant’s marking was irrelevant because the fact that defendant marked their products with plaintiff’s patent number is a fact which supports plaintiff’s allegation that defendant’s products fall within the patent claims, and this raises a genuine issue of material fact; 2) reversed in part, as to the 299 racket models, because defendant’s history of paying royalties on the 299 racket models is circumstantial evidence that those models are Licensed Articles, and although the district court has the discretion to dismiss those models for being added too late, it was error to conclude that, as a matter of law, those models were not Licensed Articles; but 3) affirmed in part, where the district court did not err in the entry of judgment as a matter of law as to the five racket models contested at trial.

Covington v. International Association of Approved Basketball Officials

Dismissal of plaintiff’s complaint alleging defendants discriminated against her by excluding her from officiating at boys’ high school varsity basketball games, is: 1) affirmed in part with regard to the claims against defendants CVC and IAABO because plaintiff cannot allege an employment relationship for the purposes of Title VII and Title IX; but 2) reversed in part and remanded because plaintiff has plausibly alleged an employment relationship with defendant Hamilton for regular season games, with NJSIAA for post-season games, and with Board 193 as an employment agency.

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