Reprinted with permission.
IMS ExpertServices periodically sends me e-mails that highlight recent key court cases that can significantly
affect the effectiveness of expert testimony, both for the plaintiff and for the defendant.
Joshua Fruchter's latest article titled "From
Dream House to Courthouse" reports on contract law involving a well-known celebrity's epic battle with a major
endorsement and promotion corporation that clearly attempts to leverage said celeb's trademark lack of cerebral
fortitude. Mr. Fruchter's grasp and analysis of the situation once again reminds me that if I am ever in need
of expert witness testimony, he will be at the top of my list for who to call!
Add comments ---
April 01, 2015
Barbie recently sued Mattel for breach of contract and discrimination after the company refused to pay her a
bonus for 2014 and stopped covering her student loans and disability insurance premiums. When Mattel then retaliated
by moving to foreclose on the mortgage it holds on Barbie’s Dream House in Malibu, Barbie filed for bankruptcy.
See Barbara Millicent Roberts v. Mattel, Inc., 2015 WL 12345 (E.D. Wis. April 1, 2015) and In re Barbara Millicent
Roberts, 543 B.R. 210 (Bankr. E.D. Wis. 2015). Barbie’s choice of venue was no coincidence. By filing in her birth
state of Wisconsin (rather than on Mattel’s turf in California), Barbie ensures that the jury pool for any trial
will be drawn from fans, not foes. Clearly, Barbie was well-advised (more on Barbie’s legal team later).
Dubbed "Barbiegate" by the press, the messy litigation has spawned some interesting evidentiary issues, including
several requiring expert testimony. For example, Mattel’s justification for eliminating the 2014 bonus relies on
an obscure provision in the parties’ personal services contract that allegedly ties the payment of an annual bonus
to Barbie’s successfully maintaining "cultural icon status." Mattel alleges that Barbie is no longer a cultural
icon, while Barbie begs to differ. Mattel’s social media expert cited sharp declines in "likes" on Facebook and
"followers" on Twitter as evidence of Barbie’s diminished popularity. Barbie’s expert countered that social media
is not a valid measure of icon status. Rather, she contends that Barbie’s starring role in multiple movies, including
as supporting actress in two Toy Story films, has permanently cemented Barbie as a role model in children’s minds.
In a rebuttal report, Mattel’s expert criticized this analysis on numerous grounds, including that "role model"
is not equivalent to "cultural icon" and that in any event, the question of "icon status" must be measured by the
perception of parents, not children, since children don’t have money to buy dolls (thereby breaking the causal link
between their perception and the drop in doll sales).
Joshua Fruchter, Esq. is the principal of eLawMarketing, a leading provider since 2002 of website development,
email marketing, blogging, search engine optimization (SEO), and social media services to law firms of all sizes.
Joshua is a graduate of NYU School of Law, a member of the New York Bar Association, and a former attorney at
a large NYC firm. Joshua combines his legal background and marketing technology expertise to help law firms
generate leads and business from Internet marketing. Joshua has published articles on legal marketing technologies
in numerous law-related periodicals, and has presented on legal marketing technologies before various bar and
legal marketing associations. Joshua is also the editor of LawyerCasting, a blog covering "best practices" in
online marketing for lawyers and law firms.
Another question of first impression is whether Barbie may testify on her own behalf at trial. As readers will
we recently discussed a Delaware case analyzing whether a corporation can serve as an expert witness. The Delaware
Court ruled in the negative on the ground that a corporation "possesses neither a body nor a brain." While Barbie
has no brain, she has a body, a fact which distinguishes the Delaware ruling. Moreover, Mattel has announced the
launch of Hello Barbie, a new talking version that would allow Barbie to verbally take an oath (instead of using
sign language, which she learned while working as a sign language teacher in 1999). Additionally, Barbie would be
capable of hearing questions posed to her on direct and cross and responding truthfully (provided the Court’s Wi-Fi
connection doesn’t crash). When Mattel’s counsel objected that Hello Barbie may not yet be on store shelves by the
time of trial because of protests by privacy activists, the Court admonished Mattel against obstruction of justice
and directed the company to begin selling Hello Barbie "with all deliberate speed" or face contempt.
As noted, Barbie has complained about Mattel failing to pay her student loans. While the contract is silent on
loan repayment, Barbie contends that because the agreement compelled her to successively attend medical, dental,
nursing, veterinary, culinary, business, architecture, and flight school (while simultaneously serving in the army
and the police force; teaching gymnastics, yoga, and art; and running for President in 1992, 2004, 2008 and 2012),
Mattel should cover the cost of all that education as a matter of equity (or in the alternative, those loans should
be discharged in bankruptcy). Mattel’s vocational expert countered that Barbie made a fine living in each of her
professions (e.g., her babysitting rate alone was $250/hour) and therefore has sufficient income to pay off her
loans on her own. The Court has taken the issue under advisement but directed Mattel to resume payment of disability
insurance premiums pendent lite since the company’s insistence that Barbie change jobs at least once a year likely
disqualifies her from securing a new "own occupation" disability policy were the current one to lapse.
Barbie has sought to dismiss the foreclosure of her Dream House by producing a deed purporting to show that Ken
Carson owns a 51% interest in the property. Mattel claims that interest was transferred to Ken fraudulently in anticipation
of this litigation. The real question here is whether Barbie and Ken are still in a relationship. If so, then Ken
would likely qualify as a "related party" under California’s fraudulent transfer law sufficient to void the transaction
ab initio. To that end, Mattel’s Hollywood gossip expert opines that Barbie and Ken are "still a couple" as per
a picture snapped by paparazzi and published on TMZ showing them embracing at an anniversary party for Barbie’s
parents, George and Margaret Roberts, at their home in Wisconsin. Through his agent (since Ken can’t speak and there
is no talking Hello Ken doll in the works), Ken claims the picture is Photo Shopped.
A final question with which the Court will struggle is Barbie’s claim for discrimination. Presently, neither
the EEOC nor the Courts have recognized toys as a protected class. Other forms of discrimination seem equally implausible.
Age discrimination is not an option – Barbie is still the same age she was in 1959. Neither is gender discrimination
– Barbie earns much more than Ken does. While some of Barbie’s friends have been pregnant (Midge) or disabled (Becky),
Barbie has never been so depicted. As such, the basis for the discrimination claim remains a mystery for now, and
it will likely get dismissed.
An interesting footnote here is that during depositions, it was revealed that, despite her many storied careers,
Barbie was never a lawyer. That revelation has led to conspiracy theories that Mattel deliberately prevented Barbie
from attending law school in order to deter her from ever suing Mattel since she would be unable to represent herself,
thus forcing her to incur high legal fees (under the parties’ contract, each side pays its own attorneys’ fees).
If so, that strategy has backfired since leading plaintiffs’ law firms have been falling all over themselves to
represent Barbie on a contingency-fee basis. In any event, Mattel dismissed the conspiracy theories, observing that
two of Teen Talk Barbie’s phrases were "Law school is easy" and "A lawyer who represents herself has a fool for
Follow this link for more on
on this case.
So what’s your take on this courtroom brawl? Will Barbie lose her Dream House, or will this scuffle cause Mattel’s
stock price to plummet?
This article was originally published in
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Posted September 9, 2014