(Reuters) - Solo practitioner Bruce Chasan cannot enforce a $160,000 settlement he claims he reached in a fee dispute with Los Angeles-based litigation boutique Pierce Bainbridge Beck Price & Hecht after it took over a lawsuit he had filed against “Gears of War” developer Epic Games and its publisher, Microsoft Studios, a federal appeals court said on Tuesday.
The 3rd U.S. Circuit Court of Appeals held that Chasan had offered no evidence of a binding commitment from Pierce Bainbridge on attorneys’ fees, but only a “series of rejected offers and untimely acceptances.”
Chasan, who had filed the misappropriation-of-likeness lawsuit against Epic and Microsoft in 2017 on behalf of former pro wrestler Lenwood “Hard Rock” Hamilton, declined to comment on Wednesday.
Craig Bolton, a Manhattan-based partner at Pierce Bainbridge, said the firm is “pleased to have the distraction of this suit behind us” and will “continue to focus on aggressively litigating on behalf of Mr. Hamilton.”
According to the 3rd Circuit’s nonprecedential opinion, Chasan, who is based in Philadelphia, had sought to bring in Pierce Bainbridge partner John Pierce as co-counsel “to secure(litigation) funding” in March 2018.
One week later, Chasan alleged, Hamilton terminated his representation and hired Pierce Bainbridge. When Chasan demanded that Pierce Bainbridge pay $320,000 for the value of his prior services, the firm threatened to sue him for legal malpractice, Chasan said.
Negotiations ensued. In September 2018, Pierce Bainbridge offered to pay Chasan $160,000, subject to Hamilton’s approval, the 3rd Circuit said. Chasan accepted, but then demanded that the deal include a release of claims by Hamilton. Hamilton and his lawyers refused.
After further negotiations, Chasan drafted a new settlement agreement in November 2018, in which he dropped the demand for a release from Hamilton, the 3rd Circuit said.
Pierce Bainbridge never signed the agreement, and Chasan filed suit for breach of contract in U.S. District Court in Philadelphia in December.
In January, Pierce Bainbridge filed a motion to dismiss Chasan’s suit for failure to state a claim, saying that the “purported settlement agreement…does not exist” and that there was “no enforceable contract between the parties.”
U.S. District Judge Anita Brody in Philadelphia heard argument and ruled in Pierce Bainbridge’s favor in May.
The 3rd Circuit affirmed in Tuesday’s opinion written by Circuit Judge Kent Jordan.
“(I)t is clear from Chasan’s own allegations that the parties never did reach an agreement on an essential term of their purported bargain,” Jordan wrote. He was joined by Circuit Judges Anthony Scirica and Marjorie Rendell.
Brody also presided over Hamilton’s misappropriation of likeness lawsuit, in which Hamilton alleged that the “thrashball”-playing Gears of War character Augustus “Cole Train” Cole was based on his wrestling persona, his college football career and his brief stint with the Philadelphia Eagles in 1987.
Epic Games and Microsoft denied Hamilton’s allegations and raised other defenses.
Brody ruled for the defendants on First Amendment grounds this September. Even viewing the facts in the light most favorable to Hamilton, she said, Cole Train “is a transformative use of the Hard Rock Hamilton character.”
Hamilton, still represented by Pierce Bainbridge, has filed an appeal.
Chasan’s appeal is Law Offices of Bruce J. Chasan, et al v. Pierce Bainbridge Beck Price & Hecht et al, 3rd U.S. Circuit Court of Appeals No. 19-2261.
For Chasan: Law Offices of Bruce J. Chasan and John Cunningham IV of Lamb McErlane
For Pierce Bainbridge Beck Price & Hecht: Craig Bolton of Pierce Bainbridge Beck Price & Hecht; Jessica Loesing and Timothy O’Driscoll of Drinker Biddle & Reath
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