October 30, 2020

Airbus Asks Court To Dismiss Chuck Yeager’s Lawsuit, Pointing Out It Doesn’t Allege Anything Actionable

You may recall that last summer we wrote about how American aviation legend Chuck Yeager decided to sue Airbus when the company mentioned the fact that Yeager broke the sound barrier in marketing material. Yeager’s lawyer is Lincoln Bandlow, who has spent much of the past few years as a copyright troll after a formerly respectable career in which he once touted himself a free-speech fighter. His complaint, however, served mostly as comedic material. There were claims of trademark infringement and violation of Yeager’s publicity rights. Neither made much sense, as repeating a historical fact, even in marketing material, does not constitute either violation and is clearly protected speech. It was only a matter of time before Airbus responded and now we have that response.

Airbus is apparently seeking dismissal by the court on two grounds. The first, and least interesting, is on jurisdictional grounds, as you can read in the filing (which other news sites seem not to have included for reasons beyond me).

Plaintiffs allege that AIRBUS U.S. “has offices throughout the United States,
including an office in Huntington Beach, California”…, and that AHI is
based in Grand Prairie, Texas….. But neither company is incorporated in
California or has its principal place of business in California, nor are they any
allegations in the Complaint that could even remotely warrant deeming this an
“exceptional case.” Accordingly, under Daimler, general jurisdiction in California is
precluded. See, e.g., Martinez, 764 F. 3d at 1070 (noting that Daimler rejected the
argument that general jurisdiction is present when a defendant “engages in a
substantial, continuous, and systematic course of business” in a state; denying
assertion of general jurisdiction when forum is not state of incorporation or principal
place of business of defendant); Perry v. Brown, 2019 WL 1452911, at *5 (C.D. Cal.
Mar. 13, 2019), aff’d and remanded, 2019 WL 5787987 (9th Cir. Nov. 6, 2019) (no
general jurisdiction over defendant incorporated in Tennessee; recognizing that “there
is nothing about this case that would suggest it is an exceptional case that would
justify finding general jurisdiction outside of Defendant’s state of residency.”).

So, yeah. Nothing about this case makes it exceptional to escape the normal jurisdictional restrictions. Given its overall flimsy nature, I wouldn’t be shocked to see the court comply with the dismissal on this alone.

But the response goes on to point out that Yeager and his lawyer seem to have gotten very, very confused about which company he’s supposed to be suing, believing that a European company is connected to an American company, when they’re actually not.

Plaintiffs do not allege that either AHI or AIRBUS U.S. committed any
intentional act, let alone any intentional act that is relevant to the claims in the
Complaint. The only “intentional acts” alleged in the Complaint relate to the use of
Yeager’s name in the 2017 statement from the Paris Air Show, the publication of the
statement on the Airbus.com website, and the alleged video of Yeager visiting Munich
and Toulouse. Yet, there are no allegations in the Complaint even suggesting that any
of this––all of which allegedly took place in Europe––had anything to do with Texas-based
AHI or Virginia-based AIRBUS U.S.

In fact, the only mention of either of these Defendants in connection with the
substantive allegations of the Complaint is the statement in Paragraph 21 that Lutz
Bertling was the CEO of “Eurocopter” which, Plaintiffs’ allege, is the “predecessor”
of Defendant AHI…. But that assertion is demonstrably false. The
company of which Bertling was the CEO is Eurocopter S.A.S., the prior name of
Airbus Helicopters S.A.S., the French company that has not been named in this action.

The response goes on to point that even if you could say that suing American companies for actions of a different (even if connected) European company, none of the actions that are being sued over involved conduct aimed at California, where the suite has been filed:

The actions relating to the 2017 statement and the alleged undated video were
not expressly aimed at the state of California. The challenged statement was made in
France about a European-focused project and then published on a passive website
registered by a European company that is not directed to any particular location…. Beyond the fact that the 2017 statement is in English,
there is nothing to indicate that it was directed specifically at the United States, much
less that it was expressly aimed at California or any other specific place within the
United States. In fact, the repeated use of British spelling in the statement (not to
mention the substance of the statement) confirms that, if anything, the statement was
directed to a European audience, not to the United States more generally or to
California specifically. The allegations about the supposed misuse of a video made in
2008 in Europe are sparse, to say the least. There certainly are none connecting the
alleged misuse of the alleged video to California.

There’s also a statute of limitations problem to toss on top of everything else, which they note Yeager should certainly know about since some of his previous similar lawsuits have been tossed out for this reason:

The Complaint alleges that Plaintiffs learned of the alleged misuse of this
purported video sometime in 2012––more than six years before the Complaint was
filed in September 2019. Because all of Plaintiffs’ claims are subject to statutes of
limitations well short of six years, they are all time-barred. Indeed, the Ninth Circuit
has affirmed dismissal of several of Yeager’s prior lawsuits based on similar types of
claims because he filed them beyond the applicable limitations periods.

And then after all that, finally, the complaint highlights that even if jurisdiction is proper, and even if they get lumped in with the other companies, the whole thing is still a joke because Yeager admits in his complaint that Airbus has the right to do what it did:

These allegations do not state a violation of any intellectual property or contract
rights. Plaintiffs expressly allege that “Airbus” had the right to show the purported
video to employees. That is, the Complaint does not allege any facts showing that
Airbus used Yeager’s name or likeness beyond what Plaintiffs allege Yeager
expressly authorized.

As we said in our original post, there doesn’t appear to be anything at all wrong with what Airbus did in referencing a fact about Chuck Yeager.
On a more personal note, it’s quite sad to see an American hero reduced to trying to profiteer off of the mere mention of his achievements.
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