A lawsuit between the former and current heads of the NBA players union is giving new meaning to the notion of home-court advantage.
Former National Basketball Players Association Executive Director Billy Hunter has sued NBPA president Derek Fisher and Fisher's publicist in Alameda County Superior Court, claiming defamation and breach of contract over Hunter's termination earlier this year.
Now, Hunter and Fisher are fighting over the proper venue for the suit.
Hunter, who wants the case to stay in Oakland, isn't just a former Washington Redskins wide receiver and ex-union head but also the former Northern District U.S. attorney who is friends with Alameda County's presiding judge. Fisher wants the case moved to L.A., where he is well-known after winning five NBA championships for the Los Angeles Lakers.
"There's a lot of first-quarter skirmishes designed to affect the final score of the game," says James Wagstaffe of Kerr & Wagstaffe and a professor of civil procedure at UC-Hastings College of the Law. "In almost every sport, home-court advantage is something you fight for. People usually play better in front of their home crowds."
Hunter was fired in February as the union's longtime executive director after the union's executive committee, led by Fisher, found Hunter had steered work toward family members, including to his daughter, a lawyer at Steptoe & Johnson.
The venue-change motion filed by Kirkland & Ellis partner Andrew Kassof on behalf of Fisher and publicist Jamie Wior included an email exchange that revealed Hunter's close legal ties.
Retrieved from Hunter's union email account were messages between Hunter and Alameda County Superior Court Presiding Judge C. Don Clay about Fisher, who as NBPA president had clashed with Hunter over control of the union during its tense collective bargaining agreements with NBA owners between 2010 and 2011.
In April 2012, Hunter wrote to Clay, saying he pushed for "an extensive audit to shutdown Derek Fisher." Within two hours, the judge responded: "Don't let any of this get you down. You will come out of this. You have always known that you are a moving target. If there is anything I can do please let me know."
In an email a few days earlier with subject line "The Fight Goes On," the judge wrote, "Billy, This guy and his advisors still think that they can out think you! They will never give up! You know always to be on the alert! Keep up the fight! Will continue to pray for you."
Clay did not respond to an interview request.
The suit is assigned to Judge Frank Roesch, based on a random assignment.
Hunter's attorney, Sidley Austin partner David Anderson, called the emails insignificant.
"The defendants dig up year-old emails between Billy Hunter and a respected judge who is not the judge in this case," Anderson said in an email to The Recorder. "It feels to me like the defendants are trying to distract attention from the facts. They can try to change the venue, but they can't change the facts."
Kassof and union attorneys at Orrick, Herrington & Sutcliffe and Weil, Gotshal & Manges argue that Hunter has strained the normal rules of venue in order to have the case argued in the East Bay. The employment contract at issue was not signed in Alameda County or even in California, and the defendants live in L.A.
"No amount of creative pleading can justify the Alameda County filing," Kirkland's Kassof wrote. "This case belongs in Los Angeles County, where the two individual defendants live."
The union defended its inclusion of Clay's emails with Hunter:
"When a party has what appears to be a very close personal relationship with the chief judge and there is an exchange of opinions regarding events underlying the lawsuit, it is a fact that should be brought to the court's attention in the first instance, and can serve as another reason to transfer the case in addition to the strong legal arguments that were put forth," said Orrick partner Christina Sarchio.
She added: "Our motion does not rest exclusively on these facts, but instead rests on this information combined with fundamental legal principles to justify a transfer to the appropriate forum."
Those change-of-venue motions are set to be decided in August.
Without commenting on the specifics of the pending change-of-venue motions, UC-Hastings' Wagstaffe said rules of procedure generally favor a defendant's place of residence or the "locus" of the contract or action in dispute.
However, he said, moving a case out of a county is a much more difficult burden to meet than changing the courtroom.
"Merely because one judge has to recuse himself doesn't mean the whole court does," said Wagstaffe, adding, "Nothing surprises me here as a teacher and lawyer on procedure. They both think they'll get a better shake in front of their home crowds."
REPRINTED WITH PERMISSION FROM THE JULY 7, 2013
EDITION OF THE RECORDER © 2013 ALM MEDIA INC. ALL RIGHTS
RESERVED. FURTHER DUPLICATION WITHOUT PERMISSION IS PROHIBITED