Recently, we covered Sacha Baron Cohen and his company’s copyright infringement lawsuit against Massachusetts dispensary Solar Therapeutics, its President and Director, Edward Dow III, filed a motion to dismiss this week for failure to demonstrate Mr. Dow is personally liable for Solar’s conduct. As we mentioned in the last post, personal liability is not something we see often, especially in California, but Massachusetts law does provide for liability in certain instances.
Specifically, the motion states: “there is not a single actionable fact pled against Mr. Dow beyond the conclusory allegation that “in Massachusetts, a corporate officer is personally liable for a tort committed by the corporation that employs him, if he personally participated in the tort by directing, controlling, approving or ratifying the act that injured the aggrieved party.” It calls for dismissal as to Dow, without leave to amend, “because there is no basis for which to hold him personally liable for the actions alleged against [Solar].”
In the limited cases where we do see both a company and its principal(s) named as defendants, we find that either: (1) the plaintiff and its counsel does have good cause or reason to believe the principal should be personally named, or (2) the plaintiff and its counsel decided to name the principal personally to get their attention and potentially squeeze out a more lucrative settlement by forcing early motion practice (this is more often the case than not).
Sometimes, we’ve been able to obtain agreement for early dismissal without prejudice (meaning, they can re-initiate the litigation against that principal) if the discovery process produces documents or information that indicate personal liability is appropriate. Sometimes, we have had to engage in similar motion practice to the one in this case.
We’ll continue to monitor this case, as it looks like an early settlement is not in the cards just yet. Interestingly, the motion does just recite all of the allegations made against Solar without any comment on their merits. It may be that they wanted to keep the motion very singularly focused, but the fact that the motion was even filed surely means there came to be an impasse on overall resolution.
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