Blog of law articles

So Dwyane Wade and his Bilzin attorney Mike Kreitzer are gearing up for a big mediation tomorrow before Bill Hearon that may resolve a number of lawsuits pending against the Heat megastar:

Wade attorney Michael Kreitzer said the Heat star wants all issues on the table. The mediation session was ordered by a federal judge in an antitrust case accusing Wade of seeking a South Florida monopoly on his sports memorabilia, the sales of which were to be a cornerstone of the failed D. Wade's Place restaurant chain.

"We simply suggested, and the other side agreed, that if there was going to be a discussion about settlement, it made sense for the discussion to encompass all of the cases," Kreitzer said in an e-mail. "If a resolution could be reached, the resolution would be final as to all matters."

Wade also was sued by his former partners, Mark Rodberg and Richard von Houtman, for breach of contract in the restaurant venture. A similar case brought by Rodberg accuses Wade of walking away from obligations to the charter schools, now known as Mavericks in Education Florida LLC. Wade has accused von Houtman of defaming him in e-mails to Heat president Pat Riley, and von Houtman has filed a countersuit to that.

Without a deal, Wade could find himself in courtrooms and law offices for months instead of focusing on the Heat season that begins with training camp on Sept. 27.

"This has got to hang like the sword of Damocles over his head," said Washington attorney Bruce Fein, who represents the plaintiffs in the memorabilia case.

Among the pending issues is a subpoena served on Heat President Pat Riley in the antitrust case before Judge Marra. Riley, represented by Alan Fein, has so far refused to appear for his deposition.

Reading the plaintiff's motion to compel Riley's deposition is a hoot. Here's their framing of the dispute:

Plaintiff has strong reason to believe that Pat Riley’s deposition could lead to the discovery of admissible evidence, which is the Rule 26 standard for witness depositions under the Federal Rules of Civil Procedure. Defendant Henry Thomas has stated under oath in a deposition that Pat Riley spoke to him twice about Wade’s involvement in the JVA and Riley’s concern over Wade’s business partners, i.e., Plaintiff. Wade may have spoken directly to Mr. Riley or vice versa about the JVA. The Miami Heat had a clear incentive to conspire with Wade to destroy the JVA because the latter was a competitor in the retail sale of personalized Wade sports memorabilia and in demands on Wade’s advertising availability and time. Wade may have informed Riley of why he was abandoning the JVA. Defendant Andrews or Defendant Case 9:09-cv-80607-KAM Document 41 Entered on FLSD Docket 09/10/2009 Page 3 of 7.

Thomas might also have done so. As President and former head coach of the Miami Heat, Pat Riley would be knowledgeable of Wade’s unique market niche as an NBA superstar and the value of Wade’s name, likeness, and image in promoting the Miami Heat. In summary, Pat Riley inarguably is a proper person for Plaintiff to depose under Rule 26.

Plaintiff’s attorney, Bruce Fein, spoke by telephone with Mr. Riley’s attorney, Alan Fein, on August 25, 2009, in an attempt to discuss the issued raised by Ms. Melchiondo and to set a deposition date. Mr. Fein, however, insisted that Pat Riley would not agree to any deposition at any time. The reasons given by Mr. Fein were at least fourfold: Plaintiff’s antitrust claims gave legal frivolity a bad name; Plaintiff should have named the Miami Heat as a Defendant if it were surmised that the Heat were implicated in Wade’s alleged antitrust violations; Mr. Riley knew of no “smoking gun” that would conclusively prove Wade guilty of an antitrust infraction; and, Mr. Riley did not track retail sales of sports memorabilia by the Miami Heat.

The plaintiff says these arguments are "frivolous" and "amateurly misconstrue the discovery standard under Rule 26."

It's one thing to misconstrue the discovery standard, but come on, at least do it like a professional!

The motion seems like a stretch, however, and even though it's not technically an APEX depo I think the equities are not in the plaintiff's favor here, at least not before other discovery is taken first.

Wade, my advice is to settle these suckers tomorrow.