Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP

*320 Opinion

The Franklin Mint Company and its principals, Stewart and Lynda Resnick (collectively, Franklin Mint), appeal from a judgment dismissing their malicious prosecution action against the law firm Manatt, Phelps & Phillips, LLP, and Attorney Mark S. Lee (collectively, Manatt). Manatt represented the executors of the estate of Diana, Princess of Wales and the trustees of The Diana, Princess of Wales Memorial Fund (collectively, the Fund) in a lawsuit filed against Franklin Mint alleging claims related to Franklin Mint’s use of Princess Diana’s name and image in connection with merchandise Franklin Mint advertised and sold. Franklin Mint’s malicious prosecution claim is based upon two of the claims that were alleged in that underlying lawsuit, for false advertising and trademark dilution under the Lanham Act ( 15 U.S.C. § 1125 (a), (c)). After a 17-day jury trial, the trial court granted Manatt’s motion for nonsuit or directed verdict, finding that Manatt had probable cause to prosecute those claims. 1 We reverse.

We conclude that, based on the record before us, no reasonable attorney could find tenable the false advertising claim as it was alleged and litigated in the…

I respectfully dissent.

One can sympathize with any party that is sued and prevails. The cost in money and reputation can be significant. (Here, the Mint * 1 was fortunate to have recovered its attorney fees incurred in defending the claims and an additional sum from the party that sued it.) But that does not mean that the lawyers who represented the losing party should be fair game.

I hope there is not a diminishing appreciation by the judiciary for the increasing hazards and pitfalls faced by those in private legal practice. “With increasing frequency, disgruntled defendants have brought claims for malicious prosecution and abuse of process against attorneys for opposing parties.” (Crystal, Limitations on Zealous Representation in an Adversarial System (1997) 32 Wake Forest L.Rev. 671, 687 (Crystal); see Wasserman, Malicious Prosecution: The Disfavored Tort That Will Not Go Away (Aug. 11, 1999) 4 Andrews Sec. Litig. & Reg. Rep. No. 23, p. 13 [“there may have been more malicious prosecution opinions published in the past several years by California courts than on almost any other subject involving attorney liability claims”].) An attorney who asserts claims on behalf of a…

WILLHITE, Acting P. J.—

The Franklin Mint Company and its principals, Stewart and Lynda Resnick (collectively, Franklin Mint), appeal from a judgment dismissing their malicious prosecution action against the law firm Manatt, Phelps & Phillips, LLP, and Attorney Mark S. Lee (collectively, Manatt). Manatt represented the executors of the estate of Diana, Princess of Wales and the trustees of The Diana, Princess of Wales Memorial Fund (collectively, the Fund) in a lawsuit filed against Franklin Mint alleging claims related to Franklin Mint's use of Princess Diana's name and image in connection with merchandise Franklin Mint advertised and sold. Franklin Mint's malicious prosecution claim is based upon two of the claims that were alleged in that underlying lawsuit, for false advertising and trademark dilution under the Lanham Act ( 15 U.S.C. § 1125 (a), (c)). After a 17-day jury trial, the trial court granted Manatt's motion for nonsuit or directed verdict, finding that Manatt had probable cause to prosecute those claims. [1] We reverse.

We conclude that, based on the record before us, no reasonable attorney could find tenable the false advertising claim as it was alleged and…