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UNITED STATES DISTRICT COURT DISTRICT OF MAINE IN RE COMPACT DISC MINIMUM ADVERTISED PRICE ANTITRUST LITIGATION ] ] ] ] ] MDL DOCKET NO. 1361
(This Document Applies to John A. Deep v. Recording Industry Ass'n of of America, Inc., et al., No. 2:05cv118)

ORDER ON PLAINTIFF'S MOTION TO SHOW CAUSE John A. Deep, a pro se plaintiff, has moved for an "order to show cause re remedies." Specifically he seeks to have the law firm of Boies, Schiller & Flexner LLP disqualified in this litigation; to have other lawyers "held to have violated the Maine Code [of Professional Responsibility]," Mot. for Order to Show Cause at 2 (Docket Item 3); and to have me vacate the judgment in the Compact Disc Minimum Advertised Price Antitrust Litigation ("CD antitrust litigation"). The motion is DENIED. The MDL Panel recently transferred Deep's lawsuit against certain record company defendants and others from the Northern District of New York to this Court. Boies Schiller does not appear as counsel for any of those defendants. Boies Schiller did represent Trans World Entertainment Corp. in that portion of the multidistrict CD antitrust litigation in this District that did not involve music clubs. Final judgment entered in that portion of the CD antitrust

litigation, however, on July 9, 2003, following a court-approved settlement of claims.1 From all that appears, Deep never filed a claim to any portion of those

A separate portion of the CD antitrust litigation, specifically the music club portion, remains pending in one very narrow respect. Settlement of that portion also has occurred, and I have
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settlement proceeds, never filed an objection and never sought to be excluded from the class. Indeed, the claims in his lawsuit seem distinct from the

consumer claims settled in the CD antitrust litigation.2 In any event, Deep has shown absolutely no ground for vacating the final judgment approving the settlement of those consumer claims. Therefore, the third request for relief-- vacating the judgment--is DENIED. Because the CD antitrust litigation (except for the music club portion) ended in this Court on July 9, 2003, there is also no reason to "disqualify" a law firm in that proceeding. Boies Schiller and its then client, Trans World Entertainment Corp., are no longer litigants in that lawsuit. Therefore, the first request for relief is DENIED. Finally, Deep seems to believe that other out-of-state lawyers3 in the CD antitrust litigation violated the Maine Code of Professional Responsibility. Specifically, he asserts that these other lawyers were aware of a conflict between him and Boies Schiller and defaulted in their professional

responsibility to report that conflict.

Deep may, if he chooses, initiate a

grievance before the Board of Overseers of the Maine Bar. But any jurisdiction I might have over the out-of-state firms he has named would come from Local

approved attorney fees and expenses. All that remains is to decide what nonprofit organization(s) shall receive certain leftover funds. Boos Schiller does not represent any party in that lawsuit, Trowbridge, et al. v. Sony Music Entertainment, Inc., et al., Docket No. 2:00MD-1361-P-H. 2 Deep claims to be an inventor who entered into a joint venture with Trans World Entertainment Corp to sell musical recordings over the Internet. He claims damages to his business venture resulting from alleged price-fixing behavior of the defendants. 3 Although Deep states that the "lawyers from any of 7 firms" should have revealed the alleged conflict of interest, he does not name specific lawyers in his memorandum, and I have no basis for taking disciplinary action against the entertainment industry associations he names. 2

Rule 83.3(h):
Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred disciplinary jurisdiction upon this Court for any alleged misconduct of that attorney arising in the course of or in the preparation for such proceeding.

The alleged misconduct apparently is that these law firms should have informed this Court that Boies Schiller had a conflict in representing Trans World Entertainment Corp. before this Court because the firm simultaneously was representing Deep in negotiations with Trans World in New York. Trans World is not complaining of any alleged conflict. But

Instead, Deep

apparently believes that Boies Schiller did not adequately represent him in his dealings with Trans World in New York or improperly failed to disclose to him the settlement in the CD antitrust litigation. I conclude that any failure on the part of other lawyers to disclose the alleged conflict of Boies Schiller (assuming they knew of it) to this Court was not "misconduct . . . arising in the course of or in the preparation for" a proceeding in this Court. Moreover, even if I had jurisdiction, the remedy would be to refer the firms to bar counsel for an investigation, not financial relief, which Deep apparently is seeking in his current lawsuit. Deep has also filed a "Request for Judicial Notice." In light of my ruling above, the request is MOOT.

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SO ORDERED. DATED THIS 8TH DAY OF AUGUST, 2005

/s/D. Brock Hornby D. BROCK HORNBY UNITED STATES DISTRICT JUDGE

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U.S. DISTRICT COURT DISTRICT OF MAINE (PORTLAND) CIVIL DOCKET FOR CASE #: 2:05CV118 JOHN A. DEEP Plaintiff represented by JOHN A. DEEP, Pro Se 26 ROOSEVELT BLVD COHOES, NY 12047 (518) 233-0225

v. RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC. represented by TERENCE J. DEVINE DAVID F. KUNZ DEGRAFF, FOY LAW FIRM 90 STATE STREET ALBANY, NY 12207 (518) 462-5300 See above See above

ARISTA RECORDS, INC. ATLANTIC RECORDING CORPORATION ATLANTIC RHINO VENTURES, INC. d/b/a RHINO ENTERTAINMENT COMPANY BAD BOYS RECORDS ARISTA GOOD GIRLS, INC. CAPITOL RECORDS, INC. ELEKTRA ENTERTAINMENT GROUP, INC. HOLLYWOOD RECORDS, INC. INTERSCOPE RECORDS LAFACE RECORDS, INC. LONDON-SIRE RECORDS, INC. MOTOWN RECORD COMPANY, LP

See above

See above See above See above See above

See above See above See above See above See above

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RCA RECORDS LABEL agent of BMG MUSIC SONY MUSIC ENTERTAINMENT, INC.

See above

See above UMG RECORDINGS, INC. VIRGIN RECORDS AMERICA, INC. WALT DISNEY RECORDS WARNER BROS RECORDS, INC. WEA INTERNATIONAL, INC. WEA LATINA, INC. ZOMBA RECORDING CORPORATION METRO-GOLDWYN-MAYER STUDIOS INC COLUMBIA PICTURES INDUSTRIES, INC. DISNEY ENTERPRISES, INC. NEW LINE CINEMA CORPORATION PARAMOUNT PICTURES CORPORATION TIME WARNER ENTERTAINMENT COMPANY, LP TWENTIETH CENTURY FOX FILM CORPORATION See above See above See above See above See above See above See above See above

See above

See above See above See above

See above

See above

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UNIVERSAL CITY STUDIOS, INC.

See above

TRANSWORLD ENTERTAINMENT CORPORATION Defendants

represented by ANDREW C. ROSE NIXON, PEABODY LLP OMNI PLAZA, SUITE 900 30 SOUTH PEARL STREET ALBANY, NY 12207 (518) 427-2666

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U.S. DISTRICT COURT DISTRICT OF MAINE (PORTLAND) CIVIL DOCKET FOR CASE #: 2:00-MD-1361-DBH LIAISON COUNSEL FOR THE PLAINTIFF STATES: Francis E. Ackerman, Maine Assistant Attorney General 6 State House Station Augusta, ME 04333-0006 (207) 626-8800 LEAD COUNSEL FOR THE PLAINTIFF STATES: Linda Gargiulo, Assistant Attorney General 120 Broadway, Suite 2601 New York, NY 10271 (212) 416-8274 Lizabeth Leeds, Assistant Attorney General PL-01 The Capitol Tallahassee, FL 32399-1050 (850) 414-3851 LIAISON COUNSEL FOR THE PRIVATE PLAINTIFFS: Alfred C. Frawley, III, Esq. Gregory P. Hansel, Esq. Preti, Flaherty, Beliveau & Haley, LLC P.O. Box 9546 Portland, ME 04112-9546 (207) 791-3230 LEAD COUNSEL FOR THE PRIVATE PLAINTIFFS: Joseph C. Kohn, Esq. Michael J. Boni, Esq. Kohn, Swift & Graf, PC One South Broad Street, Suite 2100 Philadelphia, PA 19106 (215) 238-1700 COUNSEL FOR THE TROWBRIDGE PLAINTIFFS: Michael Jaffe, Esq. Wolf Haldenstein Adler Freeman & Herz, LLP 270 Madison Avenue New York, NY 10016 (212) 545-4600 LIAISON COUNSEL FOR THE DISTRIBUTOR DEFENDANTS: William J. Kayatta, Jr., Esq. Clifford H. Ruprecht, Esq. Pierce Atwood One Monument Square Portland, ME 04101 (207) 791-1100

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LIAISON COUNSEL FOR THE RETAILER DEFENDANTS: Joseph H. Groff, III, Esq. Jensen, Baird, Gardner & Henry P.O. Box 4510 Portland, ME 04112-4510 (207) 775-7271

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