Wednesday, August 31, 2011

Marvel Worldwide, Inc. et al v. Kirby et al - The Appeal May Fail

Just a quick one for all and sundry - it would appear that the recent appeal in the Kirby Estate v Marvel might well fail, and fail on a technicality.  According to the most recent filing from the court, dated the 30th of August 2011, the Kirby side failed to file the appeal properly.  In a one page document the court advises that;

A notice of appeal was filed on August 15, 2011. Appellant's Forms C and D were due August 29, 2011. The case is deemed in default.

IT IS HEREBY ORDERED that the appeal will be dismissed effective September 13, 2011 if the forms are not filed by that date.

If the forms are not filed, correctly, within a fortnight, then the appeal will be dismissed.  It'd be a shame for the Kirby family to come this far only to have the appeal thrown out because somebody forgot to file the paperwork.  Surely lawyer Marc Toberoff, who is no stranger to filing appeals (I've lost count of how many appeals he's filed in the Siegel v DC case), knew beforehand that the paperwork was incorrect at the time of filing, but as he's busy filing declarations filled with vitriol towards DC Comics elsewhere, it might have slipped mind.

Let's hope that the error is rectified, and rectified quickly.  As it stands if the appeal is thrown out in such a manner then it might well cause damage to the credibility of any future appeal.


mr ed said...

Check back through the dockets and you will find several previous instances where paperwork has had to be refiled due to some minor technicality.

Mikeyboy said...

I would indeed like to see JACKs family get soem money in this deal. If the Superman family can settle and come to terms then the Kirby camp can find their way as well. It would be good for the legacy of the ETERNAL KING KIRBY!

Mark Luebker said...

I'm not as convinced as others that Toberoff is some sort of legal juggernaut on behalf of comics creators. It looks more and more like he got lucky with the circumstances of the Siegel case, and hasn't put one in the win column since.

Mikeyboy said...


Daniel Best said...

Mr Ed: Absolutely, when you look back there's many instances where paperwork has been filed in error and the like, however it's unusual that Toberoff, who has filed more appeals than you've probably had hot dinners, would miss such a thing.

Mark: I've read a lot of court documents and articles on Toberoff over the past year or so and I'm not convinced that he's the wunderkind of lawyers. His last filings in his case with DC show a man who is clearly annoyed with the legal system at the moment - strange indeed. And yes, he lost this case, and he lost the bench trial for the accounting in the Siegel case...but let's hope he does the right thing by the Kirby's here and gets the paperwork in on time. I hate to think how much this is costing them.

mr ed said...

Dan, None of Toberoff's clients pay him a fee, he works only on a contingency basis. That's been reported in a number of places.
Of course if he wins a case he gets a huge cut, but in a way that serves the client well, it's a big risk taking on the likes of Warners or Disney, and the vast majority of people couldn't even come close to financing such a challenge. And it's a good motivation for the attorney. He only gets paid if he wins.

Anonymous said...

"" a man who is clearly annoyed with the legal system at the moment - strange indeed.

If he was a character in a TV legal show, it would be just this quality that would ensure a resounding victory every week.

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