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"Opportunistic litigation"

By Intellectual Property Law, Esq.

When I first heard about Clint Arthur?s class action lawsuit against LA MOCA last summer, I wrote: "Leaving aside the question of what 'losses' [Arthur] has sustained, wouldn't the class have to be composed of only those buyers who are willing to return their prints in the condition they were received (in order to be eligible for damages under the statute)? And isn't it likely that, at the end of the day, that turns out to be a class of one?"

It turns out I overcounted. A state court judge has dismissed the case on the ground that Arthur himself had not offered the prints back to the museum: "This Court agrees with the defendant that physical tender back of the purchase in dispute is a necessary element of a claim under the Fine Prints Act. ... [Arthur] never did so as he apparently had determined that his purchases were economically beneficial with or without the inclusion of the required certificate."

The Court said the case was a "prime example" of "opportuntistic litigation."

The decision leaves open the theoretical possibility that Arthur could re-file after he tenders ? but that won?t get him anywhere because, if he does, the museum will just refund his money, as they?ve been willing to do all along.

So that leaves only his related federal lawsuit, which, for the reasons stated here, I suspect will meet a similar fate (and perhaps worse: there?s a good chance Arthur is going to end up paying Louis Vuitton's legal fees).

More here from Mike Boehm, who's been covering the story for the LA Times. Arthur says he will appeal.

Full post as published by The Art Law Blog on April 29, 2009 (boomark / email).