David Baum is a partner in the firm’s Litigation practice, with a broad background in complex commercial, art, media, entertainment, intellectual property, sports, finance, bankruptcy, and insurance disputes. He has substantial first chair trial experience on both the trial and appellate levels, across the country. David has received the prestigious ranking by Chambers USA 2013 and 2014 as a leading attorney in the field of Media and Entertainment Litigation.
Select Complex Commercial and Finance Representations
- David won a contentious Chapter 11 plan battle in the Central District of California over Fremont General, a lender with over $800 million in valuable NOLs (in addition to an approximate $100 million book value). At trial, the equity committee (a competing plan proponent) moved to change the votes of certain securities. David blocked the motion through his cross examination of the trading broker, which established that the transfers could not be traced without certain documents. Based upon the rarely applied "best evidence" rule, the court denied the motion, which, in turn, defeated the competing plan.
- David achieved summary judgment on behalf of two bank holding companies, alleging that a hedge fund breached a contract to redeem millions of dollars in trust preferred securities (known as "TruPS") at a discount as part of the rescue of a troubled bank. TruPS have been the focus of bank regulators in recent years, and a source of litigation nationwide. This is the first known decision establishing liability. Leawood Bancshares Inv. v. Alesco Preferred Funding X, LTD., -- F. Supp. 2d --, 2011 WL 4916352 (S.D.N.Y. Oct. 14, 2011)
- David also represented Carl Icahn and his affiliates in connection with his investment in the commercial lender CIT Group. Icahn held approximately $2 billion in CIT claims, and had been a vocal opponent of CIT’s proposed pre-packaged bankruptcy, and its $4.5 billion extension of a credit facility with its existing lenders. The matter resulted in a favorable agreement for Icahn.
- David won an injunction in the District of Connecticut against former employees of an investment firm, Genworth Financial Wealth Management, for the misappropriation of client information.Genworth Financial Wealth Mgmt, Inc. v. McMullan, WL 2428749 (D. Conn. June 10, 2010). David also won sanctions against defendants for failure to preserve electronically stored computer information, Genworth Financial Wealth Mgmt, Inc. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010), which has been widely reported as an important precedent regarding e-discovery obligations.
- David also won summary judgment in the Northern District of Iowa, which dismissed a class action with more than 200,000 putative plaintiffs alleging complex fraud in connection with long-term care insurance policy rate increases. Rakes v. Life Investors Co. of America, 2008 WL 2518717 (N.D. Iowa June 20, 2008).
- David was on the trial team that defended a billion dollar, month-long federal jury trial against JPMorgan Chase over surety bonds issued to Enron.
Select Arts, Media and Entertainment Representations
- In a widely-reported case, David represented the Cy Twombly Foundation in an action against two of its directors, the secretary and treasurer, for the wrongful taking of improper legal and investment fees. The Foundation, established by the world renowned artist Cy Twombly, holds artwork and other assets worth more than $1 billion. David achieved a favorable result, including the resignations of both directors. The case was featured several times in the New York Times, and has been cited as leading precedent for the governance of non-profit art institutions. David now acts as the outside General Counsel for the Foundation.
- David represented a prominent art collector in efforts, together with the Metropolitan Museum of Art, to recover the famous painting "Innocent Eye Test" by artist Mark Tansey. The painting, which his client co-owned with the Museum, was unlawfully sold by the Gagosian Gallery. As reported in a New York Times feature story, David achieved a favorable result whereby Gagosian paid the buyer $4.4 million to return the painting. David's client subsequently donated her full ownership interest in the painting to the Museum, where it now hangs. Metropolitan Museum of Art v. Safflane, 2012 WL928148 (S.D.N.Y. 2012).
- In another high-profile case, David brought an action against Gagosian Gallery in connection with its unlawful sale of the painting "Girl In Mirror" by iconic artist Roy Lichtenstein. The case was featured numerous times in the New York Times, New York Magazine and other major publications worldwide, and is now taught as a seminal case regarding the duties of art dealers. David developed critical evidence in the case, including the widely reported email from the gallery to the buyer, revealing that the seller was "in terrible straits and needs cash," and soliciting a "cruel and offensive offer" to take advantage. Cowles v. Gagosian, No. 650152/12 (Sup. Ct. Aug. 22, 2012).
- David successfully represented the premier independent record label, Rounder Records, in a breach of contract action brought by Napster, to recover a portion of Napster's large settlement of a prior lawsuit, in which a consortium of music publishers alleged that Napster exploited hundreds of musical compositions on its service without proper licenses. The Southern District of New York dismissed the action on the grounds that Napster had misrepresented the two license agreements at issue. Napster,LLC. v. Rounder Records Corp., 2011 WL 240397 (S.D.N.Y. 2011).
- In another widely publicized case, David won summary judgment in favor of NASCAR star driverKasey Kahne on a breach of contract claim brought by Ford Motor Co. arising out of Kahne’s departure to a Dodge-sponsored team. The Eastern District of Michigan held that the parties' agreement was not binding because it failed to set forth material terms concerning Kahne's race series and team. Ford Motor Co. v. Kahne, 379 F. Supp. 857 (E.D. Mich., 2005).
- David won summary judgment in New York Supreme Court on behalf of Jay Z and his production company, Marcy Projects Productions, on tortious interference claims asserted against them by Robert Kelly p/k/a R. Kelly. The case arose out of R. Kelly’s alleged improper termination from the artists’ “Best of Both Worlds” tour in 2004.
- David successfully represented Britney Spears, BMG Music Publishing NA, and Zomba Enterprises, obtaining a dismissal of a copyright infringement case brought in the Southern District of Indiana. The plaintiff alleged theft of the hit song “Sometimes,” which appears on Spears' debut album Baby One More Time. David demonstrated that the song was written solely by Jorgen Elofsson, who also wrote another Spears hit song “You Drive Me Crazy.”
- David obtained a dismissal in New York Supreme Court of an action brought by an investor against the director and producers of the film “The Education of Charlie Banks,” the winner of the 2007 “Made In New York” award at the Tribeca Film Festival. The dismissal was granted on the grounds of forum non conveniens and lack of personal jurisdiction.
- David successfully defended Ozzy Osbourne and his record label and publisher in an action brought by the bassist and drummer on two classic albums, Blizzard of Ozz and Diary of a Madman, seeking payment of royalties on a panoply of claims. The Central District of California dismissed the action on summary judgment. Daisley v. Osbourne, et al., 78 Fed.Appx. 594 (9th Cir. 2003), cert. denied, 541 U.S. 1030 (2004). The case was featured in a front-page Wall Street Journal article.
- In a landmark copyright decision, David won summary judgment in a claim brought against theBeastie Boys and various corporate parties in a digital sampling case concerning the song “Pass theMic” from the album Check Your Head. The Central District of California decision, that the sampled music was not sufficiently original to warrant protection, was affirmed by the 9th Circuit. Newton v. Diamond, et al., 204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff'd, 349 F.3d 591 (9th Cir. 2003).
- David also obtained a dismissal in the Southern District of New York for Sony Records,Int'l concerning the rights to commercially exploit recordings by the group Third World. The case is widely cited by courts for the governing legal standard on the equitable tolling of a copyright claim's statute of limitations and the Copyright Act's pre-emption of the New York causes of action for unjust enrichment and breach of fiduciary duty. Cooper v. Sony Records Int'l, 2001 WL 1223492, 60 U.S.P.Q.2d 2008 (S.D.N.Y. Oct. 15, 2001).
- Other noteworthy reported decisions in the copyright context include: Tisi v. Patrick, 97 F. Supp. 2d539 (S.D.N.Y. 2000); Jorgensen v. Epic/Sony Records, 2002 W 31119377 (S.D.N.Y. Sept. 24, 2002);Jorgensen v. Careers BMG Music Pub., 2002 WL 1492123 S.D.N.Y. July 11, 2002); Selletti v. MariahCarey, 194 F.R.D. 476 (2d Cir. 2000); and Dimmie v. Mariah Carey, 88 F. Supp. 2d 142 (S.D.N.Y. 2000).
- Among other notable transactions in the media and entertainment industry, David has represented Ford Models, Inc., in connection with the hit show “America’s Next Top Model” and various other properties.
Activities and Affiliations
David has lectured on art law at NYU Law School, and taught copyright and entertainment law seminars at NYU's Department of Music and New York Law School. He also presents courses on intellectual property for continuing legal education programs and clients, including:
- Revisiting Joint Authorship for The Copyright Society of the U.S.A.
- The Brand Universe: A Conversation With Trademark Counsel for a prominent television network
- Take A Picture: How To Defend A Music Copyright Case
- Rent: Protecting Sole Authorship
- National Academy of Recording Arts and Sciences
- The New York State Bar's Commercial and Federal Litigation Section, Committee on Intellectual Property
- The American Bar Association, Forum on the Entertainment and Sports Industries