The Audubon Quartet Debacle

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The Audubon Quartet Debacle

Post by Ralph » Sun Dec 11, 2005 12:07 am

From The New York Times:

December 11, 2005
Music
The Broken Chord
By DANIEL J. WAKIN

Blacksburg, Va. —The Audubon String Quartet was whimsically named 31 years ago by four young string players to evoke nature's lyrical beauty and an earlier, more innocent America. But in the world of classical music, it has since come to stand for an ugly, almost epic legal feud that has damaged lives and divided loyalties. It is a bitter story, in which music plays no redemptive role.

The feud pits the cellist, violist and second violinist against the first violinist, whom they ousted from the quartet in early 2000. He sued and won a $611,000 judgment, sending the other three to bankruptcy court.

Now, after nearly six years of legal battling, what may be the last chapter is playing out in a Virginia courthouse. A bankruptcy trustee is seeking to liquidate the assets of the violist and the cellist, a married couple. They face the loss of their house, car, snowblower, lawn mower, bank accounts and, most painfully, their instruments. Another trustee is seeking control of the second violinist's instrument.

"I've never imagined something like this before," said Clyde Shaw, the cellist. "It's just the judicial system gone awry. It's a horrible, horrible thing. Our instruments are our voices, our souls."

For his side, the matter is simple: musicians should be able to choose whom to play with. Their former colleague, the other three say, has manipulated the legal system, and in the process violated the conventions of chamber music.

David Ehrlich, their antagonist, said he felt sad that his former colleagues might lose their instruments. "Yes, it's a tragedy," he said, but he had to protect his reputation and recover the life's savings - more than a half million dollars - he spent in legal fees. Mr. Ehrlich, a former junior tennis champ who still has the tenacity of a competitive athlete, says his ouster was a result of a conspiracy. "I would never have gone the distance if I did not believe very, very strongly that this was really outrageous," he insisted. "I want to be whole again."

The three defendants are seeking permission in a state court in Pennsylvania to appeal the judgment. Meanwhile, a bankruptcy hearing about finalizing the liquidation is scheduled for Tuesday. "It's do or die in Pennsylvania," Mr. Shaw, the burly son of an amateur country guitarist, said at his home here.

It would be a cliché, not to mention false, to say that such ugly conflict contrasts with the genteel world of classical music. The field is as rife with passions as any other. But those passions are supposed to be kept private. For a conflict to spill into the courts and the public arena in this way is, musicians say, unprecedented. With all the vitriol and heartache of a bad divorce, it has consumed the lives of those involved, and become a cautionary tale for string players who come together to play the bedrock pieces of the Western chamber music canon.

Mr. Shaw, now 56, also known as Tom, is the only member of the group who was there at its founding in 1974. His wife, Doris Lederer, joined in 1976 and has been the violist ever since. In those early years, the Audubon won several competitions, played at the White House, received glowing reviews, made a rare tour in China and won financial security with a paid residency at Virginia Tech.

Mr. Ehrlich arrived in 1984, and in many ways things seemed stable. Mr. Shaw and Mr. Ehrlich, who lived near each other, would talk about photography; Mr. Shaw's two sons even studied piano with Mr. Ehrlich's wife, Teresa.

Beneath the surface, however, tensions were growing. David Salness, who at the time was the group's second violinist, said Mr. Ehrlich was at odds with him and his colleagues early on over matters musical and nonmusical. "I think that he liked to hear himself a lot," Mr. Salness said. "Tom, Doris and I are more from the American democratically conceived approach to both sharing of ideas, and in the contribution."

Mr. Ehrlich agrees that there were arguments but says the real problems predated him. The group had run through five other first violinists and dismissed one of them. "It shows some dysfunctionality," he said.

In 1993, during a rehearsal at the quartet's spare studio here at Virginia Tech, Mr. Ehrlich announced that he and his wife were starting a music school. A spirited discussion followed.

"I saw a conflict of interest," Mr. Shaw said, and a use of Mr. Ehrlich's group affiliation to further individual ends.

Mr. Ehrlich saw jealousy. Mr. Shaw had suggested an educational effort by the quartet as a whole some years earlier and was shot down. "It was just killing him," Mr. Ehrlich said in court testimony.

Arguments started breaking out during rehearsals. Mr. Ehrlich said he was being drowned out by the other players and began to dream of owning a violin with a bigger sound. But still the quartet kept performing, and issuing recordings.

In 1997, Mr. Salness had had enough. "I chose to extricate myself from the situation," he said.

Mr. Ehrlich told the two remaining members that he felt isolated by them. But together, they agreed to regroup and try again. They hired a replacement for Mr. Salness, Akemi Takayama, a young Japanese violinist. Mr. Ehrlich said he immediately took her under his wing, even lending her a bow.

In retrospect, Ms. Takayama, who is a defendant in the case, said she felt used. "I was close to him in the beginning because he needed my support," she said. "He came off as sincere, but that was only to have me on his side." Mr. Ehrlich accused her of joining the others to usurp his first chair.

Then came what can be called the Bergonzi Affair.

Mr. Ehrlich had located an 18th-century Carlo Bergonzi violin with the sound he wanted, and he wrote several letters soliciting donations for its purchase, in exchange for free concerts by the quartet. Mr. Shaw, claiming that Mr. Ehrlich never told the quartet, was outraged at what he saw as "back-channel" dealings.

Mr. Ehrlich, who called the Bergonzi issue a "red herring," said he had told Mr. Shaw and Ms. Lederer, and pointed out that the quartet had approved a similar plan years earlier. A university foundation eventually acquired a 1735 Bergonzi for him. Mr. Shaw said it at times crushed the sound of the other instruments.

In the summer of 1998, Mr. Ehrlich said he learned that Mr. Shaw had gone behind his back to the music department seeking his removal. "When I heard that, I freaked out," Mr. Ehrlich recalled. He demanded that Mr. Shaw resign and, Mr. Shaw said, raised the threat of a lawsuit for the first time. (Mr. Shaw, for his part, says he was merely inquiring about the contested dismissal of a cello teacher from Mr. Ehrlich's Renaissance Music Academy.)

Matters came to a head during a rehearsal in early 2000, when Mr. Ehrlich demanded expense money that was in dispute. Tempers flared, and the confrontation almost became physical.

"Akemi told me to sit down," Mr. Ehrlich testified. " 'Are you telling me to sit down like a dog?' She said: 'Yes. Just sit down.' " He says the petite Ms. Takayama physically blocked the door.

On Feb. 8, 2000, Mr. Ehrlich met with the other members, again in the group's studio. The quartet was spinning out of control, he said. He had initiated lawsuits against them and would move forward with the cases unless the quartet sought counseling, Mr. Shaw recalled, adding that Mr. Ehrlich refused to elaborate on the lawsuits. (Mr. Ehrlich has since declined to comment on that point, citing the pending litigation, but confirmed the rest of the account.)

The quartet members considered it blackmail. "It was like putting a gun to your head," Mr. Shaw said. "The die was cast." On Feb. 21, 2000, the three handed Mr. Ehrlich a letter, prepared by a lawyer and signed by Mr. Shaw, dismissing him from the group.

Hand over your music, all quartet documents and the quartet American Express card, he was ordered. Give the Bergonzi back to the university. Return your studio key. And do so by 5 p.m. "Failure to return all quartet property in your possession will result in the filing of a criminal complaint," he was told.

Perhaps the dismissal was harsh, Ms. Lederer later acknowledged. "But how would it have been different with a man like this?" she said.

Two days later, Mr. Ehrlich sued, charging wrongful termination. He won injunctions barring the members from performing as the Audubon without court permission, a ban that lasted a year and a half. Their management dropped them. So did Virginia Tech. "They didn't exist as a quartet," said a Tech spokesman, Larry Hincker.

But they still had concerts to play, including a performance at a Richmond Jewish community center. Mr. Shaw told the audience, which included Mr. Ehrlich, that because the court would not allow the Audubon to play as a quartet, they would present duos and trios, including music from the Theresienstadt concentration camp. He compared the situation with the Nazi oppression of Jewish musicians.

"We're going to share music with you - our life's blood - under a very difficult situation," Mr. Shaw told the audience, according to a transcript he provided. "As art imitates life, we are certainly about that tonight."

Mr. Ehrlich condemned the equation. "As a Jewish person, this was tremendously insulting to me," he said. Mr. Shaw called it a "poetic comparison." On Oct. 12, after 18 months of legal combat, Judge Timothy Patrick O'Reilly, of the Court of Common Pleas of Allegheny County, Pa., dealt the three members a devastating blow. They could continue to play as the Audubon, he said, but he decided against them on nearly every other issue.

Viewing the quartet as a business whose "product was their musical performances," he applied corporate legal principles to declare Mr. Ehrlich an owner and director, and found that the other members had unfairly squeezed him out. Mr. Ehrlich was awarded $132,844 in lawyers' fees and $78,275 in quartet funds. But, more important, the judge said Mr. Ehrlich was also entitled to 25 percent of the quartet's "value" as a business. He placed that amount at $400,000, partly based on the expert opinion of a finance professor at Virginia Tech who is also a friend of Mr. Ehrlich's.

"He just had his share of the business coming to him," the judge said in a recent interview.

The other three, saying they were unable to pay the judgment, filed for various bankruptcy protections. Mr. Ehrlich put liens on their property between two such filings. Now they find themselves in Chapter 7: involuntary liquidation. All told, Mr. Shaw said his side had spent hundreds of thousands of dollars in legal fees - perhaps close to the original judgment.

"We're completely impoverished," Mr. Shaw said. "We're hounded by something that's relentless and something that's persistent beyond imagination."

Ms. Lederer said: "The very essence of this whole case is, how is it possible for three people who dismiss one person and end up like that?"

Back in Blacksburg, Mr. Ehrlich, 56, speaks with quiet outrage at what he sees as a gang of bullies taking away his living. "It turned into a life or death war, and I was to go down one way or another," he said.

Interviewed at the airy home of a supporter, he described his love for string quartets. He repeated several times that he was known as an easy person to work with. And he expressed anger about the way he was fired. "When you take somebody's livelihood away, you need to do it with dignity and sensitivity, and you need to follow the law," he said. "If I hadn't cleared my name, I believe no one would have wanted to work with me again."

Mr. Ehrlich is keenly aware of how he is perceived. "This is not a popularity contest," he said. "It's about my life and three other people who attempted to take my livelihood and assassinate my character. I had to defend myself. I'm not the evil one."

In the area around Virginia Tech, the quartet is well known. Each side has gathered passionate supporters from town and gown. Competing Web sites bulge with court documents and decisions. Letters and opinion pieces occasionally rocket forth from The Roanoke Times.

The classical music world is divided, with members of quartets including the Juilliard, Emerson and Mendelssohn and other musicians around the country backing the defendants. Mr. Ehrlich's resort to lawsuits has angered many. "To take it to the court system seems contrary to the spirit of chamber music," said Eugene Drucker, of the Emerson String Quartet.

"The idea of a musician taking other musicians' instruments away from them is something I find quite appalling," said Peter Schickele, the composer behind P.D.Q. Bach, whose First Quartet was commissioned by the Audubon.

But Mr. Ehrlich has plenty of supporters, too. They include several members of the esteemed Vermeer and Guarneri quartets, the pianist Anton Kuerti and several prominent teachers.

Marc Johnson of the Vermeer called the way he was dismissed "unconscionable." "You get two weeks notice at McDonald's," he said. Mr. Kuerti said that with all the years Mr. Ehrlich gave to make the quartet a first-class ensemble, "one couldn't expect him to walk away with nothing."

Needless to say, artistic and personal divides are not rare in an emotional hothouse where four people travel, hash through rehearsals and perform together. In "Indivisible by Four," a profile of the Guarneri Quartet by its first violinist, Arnold Steinhardt, he likens a string quartet to "Siamese quadruplets" or rock climbers roped together. But most quartets have rules to keep tensions in check. In the Guarneri, Mr. Steinhardt writes, the players avoid complimenting one another so as not to stir resentments and expectations. In the Brentano String Quartet, every member has an equal voice, said Mark Steinberg, the first violinist. And usually, when three members decide a fourth must go, the departure is gradual, or accompanied by a monetary settlement. But not in the case of the Audubon.

Now, as Virginia Tech looks toward the Gator Bowl, the parties in Ehrlich v. Audubon Quartet are trying to continue their lives.

Mr. Ehrlich teaches at his academy and directs a small chamber music series in town. He has returned to Virginia Tech as a salaried fellow of fine arts. He rarely plays in quartets now.

Ms. Takayama, 38, the mother of four boys under 6, is concertmaster of the Roanoke Symphony. Mr. Shaw and Ms. Lederer teach at Shenandoah Conservatory in Winchester, Va., about three hours from Blacksburg. And the Audubon is back in business, with Ellen Jewett as the other violinist - alternating the first chair with Ms. Takayama. It has new management and plays about 15 concerts a year. But it is not easy. Mr. Shaw said some presenters fear being sued. "We're radioactive," he said.

How did it come to this? How did the tension between Mr. Ehrlich and the other members of the quartet lead to a six-year legal battle that has scorched the earth beneath their feet?

The personalities of Mr. Ehrlich and Mr. Shaw - both stubborn men - contributed, as did their strong feelings for the quartet. "It's my life," Mr. Shaw said. "It's my identity." The quartet's deal with Virginia Tech, a residency that provided each with $50,000 in yearly salary in exchange for relatively light duty, might also have raised the stakes. And it led the judge to set a high figure for the group's value.

During the lawsuit, both sides said they had made repeated settlement offers and that they were ignored or rejected. Judge O'Reilly said anger got in the way. "There was a lot of money that could have been used to soothe this thing over, and it probably would have gotten settled," he said. "They're high-strung artistic people. I guess an artistic divide occurred."

During the interview, Mr. Ehrlich took a pause from making his case and said quietly, "We have created this mess totally, beautifully, by our own talent."
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Post by Corlyss_D » Sun Dec 11, 2005 12:34 am

As I recall bankruptcy law, the residence and the means of earning a living are excluded from the bankrupt's estate and not eligible for liquidation and distribution to the creditors.
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Post by pizza » Sun Dec 11, 2005 1:53 am

For anyone interested how the trial court that heard the evidence arrived at its decision, here is its Opinion and Adjudication:

http://hometown.aol.com/renardym/paruling.html

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Post by DavidRoss » Sun Dec 11, 2005 8:32 am

Shameful. Judge O'Reilly certainly won't suffer frostbite in the afterlife.
"Most men, including those at ease with problems of the greatest complexity, can seldom accept even the simplest and most obvious truth if it would oblige them to admit the falsity of conclusions which they have delighted in explaining to colleagues, which they have proudly taught to others, and which they have woven, thread by thread, into the fabric of their lives." ~Leo Tolstoy

"It is the highest form of self-respect to admit our errors and mistakes and make amends for them. To make a mistake is only an error in judgment, but to adhere to it when it is discovered shows infirmity of character." ~Dale Turner

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Post by Ralph » Sun Dec 11, 2005 9:11 am

Corlyss_D wrote:As I recall bankruptcy law, the residence and the means of earning a living are excluded from the bankrupt's estate and not eligible for liquidation and distribution to the creditors.
*****

Apparently not. I know almost nothing about bankruptcy but I always assumed that exclusion from seizure by creditors was based on state, not federal law. Isn't that why those with huge houses in Florida get to keep them when discharged in bankruptcy?
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Post by pizza » Sun Dec 11, 2005 10:17 am

DavidRoss wrote:Shameful. Judge O'Reilly certainly won't suffer frostbite in the afterlife.
If the court's findings of fact are based on the evidence -- as they seem to be -- his conclusions of law are correct. What's shameful was the attempt by the defendants to squeeze the plaintiff out without any consideration for his rights.

Maybe Lucifer will advance them good prices for their instruments. :twisted:

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Post by CharmNewton » Sun Dec 11, 2005 12:49 pm

I'm a little confused as to how the judge finds the Bergonzi violin matter confusing. It appears that we have a member of the quartet promising the services of the quartet to cover the purchase of this violin without the discussion or approval of the other members. This seems to me to be a pretty serious matter and the judge just glosses over it and acknowledges confusion.

If this violin had been acquired in this fashion, who would have owned it? The quartet? Mr Erlich?

Secondly, what would have happened if the quartet had just met in 2000 and voted to dissolve, divvied up the assets and moved on (I realize their relationship with Virginia Tech may have complicated a decision such as this)?

John

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Post by Corlyss_D » Sun Dec 11, 2005 3:33 pm

Ralph wrote:
Corlyss_D wrote:As I recall bankruptcy law, the residence and the means of earning a living are excluded from the bankrupt's estate and not eligible for liquidation and distribution to the creditors.
*****

Apparently not. I know almost nothing about bankruptcy but I always assumed that exclusion from seizure by creditors was based on state, not federal law. Isn't that why those with huge houses in Florida get to keep them when discharged in bankruptcy?
Bankruptcy was one of my favorite subjects in Law School. The Federal Law passed in the 80s, the one that was recently modified, pre-empted most state laws on bankruptcy. It was pretty reasonable as to what the bankrupt was permitted to keep in order to continue a reasonable life-style and an income stream, keeping in mind that the law was intended to protect ordinary people in routine circumstances of debt difficulties, not multimillionaires playing accounting games. This solution by this judge seems perversely intended to deprive the bankrupts of even the ability to earn a living and virtually to ensure that they become wards of the state in one form or another (welfare, unemployment), a result the 80s Federal Law was intended to prevent. Chapter 7 bankruptcies as a first resort are unusual. I can't help but think that that is not the result the law intended. It seems to me, based on what I read, that the ruling is draconian and doesn't serve the interests of justice even if it might be emotionally satisfying to the plaintiff.
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Post by Ralph » Sun Dec 11, 2005 4:23 pm

CharmNewton wrote:I'm a little confused as to how the judge finds the Bergonzi violin matter confusing. It appears that we have a member of the quartet promising the services of the quartet to cover the purchase of this violin without the discussion or approval of the other members. This seems to me to be a pretty serious matter and the judge just glosses over it and acknowledges confusion.

If this violin had been acquired in this fashion, who would have owned it? The quartet? Mr Erlich?

Secondly, what would have happened if the quartet had just met in 2000 and voted to dissolve, divvied up the assets and moved on (I realize their relationship with Virginia Tech may have complicated a decision such as this)?

John
*****Ownership of the violin probably would have been by Erlich unless the quartet's agreement provided otherwise.

The quartet could have agreed to dissolve. It's possible their contract to the university might have been breached but it's hard to imagine any damages that could have been claimed. The contract remedy of Specific Performance, e.g., requiring the breaching party to perform, is not available for unique, personal services.

This situation will be on my Remedies exam which I'm writing tomorrow. :)
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Post by Ralph » Sun Dec 11, 2005 4:25 pm

Corlyss_D wrote:
Ralph wrote:
Corlyss_D wrote:As I recall bankruptcy law, the residence and the means of earning a living are excluded from the bankrupt's estate and not eligible for liquidation and distribution to the creditors.
*****

Apparently not. I know almost nothing about bankruptcy but I always assumed that exclusion from seizure by creditors was based on state, not federal law. Isn't that why those with huge houses in Florida get to keep them when discharged in bankruptcy?
Bankruptcy was one of my favorite subjects in Law School. The Federal Law passed in the 80s, the one that was recently modified, pre-empted most state laws on bankruptcy. It was pretty reasonable as to what the bankrupt was permitted to keep in order to continue a reasonable life-style and an income stream, keeping in mind that the law was intended to protect ordinary people in routine circumstances of debt difficulties, not multimillionaires playing accounting games. This solution by this judge seems perversely intended to deprive the bankrupts of even the ability to earn a living and virtually to ensure that they become wards of the state in one form or another (welfare, unemployment), a result the 80s Federal Law was intended to prevent. Chapter 7 bankruptcies as a first resort are unusual. I can't help but think that that is not the result the law intended. It seems to me, based on what I read, that the ruling is draconian and doesn't serve the interests of justice even if it might be emotionally satisfying to the plaintiff.
*****

Thanks.

I agree the remedy is draconian. An appeal might be enough to bring the parties to a settlement.
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Post by Ralph » Sun Dec 11, 2005 4:38 pm

pizza wrote:For anyone interested how the trial court that heard the evidence arrived at its decision, here is its Opinion and Adjudication:

http://hometown.aol.com/renardym/paruling.html
*****

Not a particularly well-written decision. I'd like to know the legal basis for awarding plaintiff attorney's fees.
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Post by CharmNewton » Sun Dec 11, 2005 5:32 pm

Ralph wrote:This situation will be on my Remedies exam which I'm writing tomorrow. :)
You'll have to let us know how your students would handle this. BTW, when students turn in their exams, do they lose the implied copyright protection accorded to their answers? :) I assume the exams become the property of the school.

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Post by pizza » Mon Dec 12, 2005 1:44 am

Ralph wrote:
pizza wrote:For anyone interested how the trial court that heard the evidence arrived at its decision, here is its Opinion and Adjudication:

http://hometown.aol.com/renardym/paruling.html
*****

Not a particularly well-written decision. I'd like to know the legal basis for awarding plaintiff attorney's fees.
Not particularly well-written but well reasoned.

As to the question of attorneys' fees, the Opinion states:

" The Quartet continued to perform after Ehrlich’s ouster, and he played 4 engagements with them before injunction was issued. Funds continued to flow into the Quartet, and were paid out. Between February 23 and July 14, the sum of $130,484 had been paid out by the Quartet to 7 different attorneys, including the aforesaid $75,000 to the Trust Account of Attorney Allen Ternent, of Kansas.

The record reveals that the Quartet was not involved in any litigation before the Ehrlich matter, and I , therefore, conclude that this outpouring of funds all related to the removal of Ehrlich.

I recognize that much of the money was paid into Attorney’s Trust Accounts to be billed against thereafter,......"

And:

" Plaintiff also seeks payment of counsel fees by the Quartet. During this litigation, the counsel fees for the 3 individual Defendants and of the Quartet have been paid out of the corporate funds. As claimed in Ehrlich’s brief, those fees amount to $109,811, plus $46,478 for a total of $156,289. The 3 individual Defendants have stated that these funds will be paid back to the corporation if the Officers and Board of Directors order them to. The likelihood of this happening is nil. Throughout the litigation defense counsel has asserted that the Quartet no longer has any assets. Given its earning potential, as demonstrated by the size of its bank account at the start of 2000, I do not believe it will not take long to re-generate these funds.

It therefore, is clear to me that the corporation has paid all counsel fees for all Defendants, and is unlikely to try to recoup them. It, therefore, is also equitable that the corporation pay Plaintiff’s fees as well.

As claimed by Plaintiff’s attorney, David Alpern, of the Pennsylvania Bar, that amount is $132,844, and is supported by his deposition and itemized billings and time records. Given the complexity of this case, the time devoted, and the distances involved, I find that amount to be fair and reasonable, and will award that as well."

The Quartet used corporate funds in which Ehrlich had an interest to pay their own attorneys. Ehrlich was entitled to his equitable share of those funds to pay his attorneys.

Pennsylvania has also a "bad faith" statute that permits the award of attorneys fees as a sanction for arbitrary, dilatory, obdurate, and vexatious conduct. Although the court didn't make a specific finding in that regard, the thrust of its decision seemed to imply such conduct on the part of the defendants.

I don't find the decision "draconian" at all. The defendants treated a sixteen year integral member like a piece of dirt, with no regard whatever for his professional reputation nor his financial interests. Lederer acknowledged they had treated him harshly. If Pennsylvania recognizes a tort claim for "outrage" it should have been asserted. Defendants are lucky to have escaped an award of punitive damages.

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Post by Ralph » Thu Dec 15, 2005 9:12 am

From The New York Times:

December 15, 2005
Lost in Bitter Legal Battle: Chamber Players' Instruments
By DANIEL J. WAKIN

What would be a wrenching moment for any musician has arrived for two members of the Audubon Quartet: the loss of their instruments, casualties of a bitter legal feud with the member they cast out five years ago.

Yesterday, a day after a federal bankruptcy court judge in Roanoke, Va., ruled that the instruments be surrendered, a trustee prepared an order for their seizure.

"I don't have words for this," said Clyde Shaw, the quartet's cellist. "The letters and notes I'm getting from around the country - the musicians in this country are shocked. They are floored by this decision. It upsets the world that we live in."

Mr. Shaw and his wife, Doris Lederer, the quartet's violist, will have until 4 p.m. on Dec. 23 to hand over their instruments, said the trustee, George A. McLean Jr.

Mr. McLean was appointed to liquidate the couple's holdings. They declared bankruptcy after losing a $611,000 judgment in a lawsuit brought by the quartet's first violinist, David Ehrlich, over his ouster in February 2000 after years of tension.

Mr. Ehrlich, who did not immediately respond to a phone message, has said that while he finds the loss of the instruments tragic, he needs the money for lawyers' fees. He said he was unfairly and summarily fired by three people who conspired against him, and that he had to sue to salvage his reputation.

"We'll just find a place to store them until we can have them appraised and begin the liquidation process," Mr. McLean said of the instruments. He said that they and several bows were valued at $166,000, and that he was also seeking the hand-over of annuities and accounts worth nearly $90,000. Mr. McLean said he would also seek permission to put the couple's house on the market, and added that he had decided against seizing their 1996 Jeep Grand Cherokee because of its limited value. "I'm not going to take it away from them," he said.

Mr. Shaw's cello is an 1887 Eugenio Degani. "It has a beautiful voice," he said. "It matched what I wanted to say." But far worse, he said, would be to lose his precious 1860 bow, a Nicolaus Kittel, which he said was cut from the same block of wood that produced a bow used by Jascha Heifetz. The viola is a 1915 Ferruccio Varagnolo with what Ms. Lederer said was a rare combination: "It's clear and dark and chocolaty. Usually, when you get a viola, it's one or the other."

The legal battle has been long and bitter. It has divided the music world and split loyalties in and around Blacksburg, Va., where the quartet moved in 1980 for a residency at Virginia Tech, which ended after the lawsuit.

Despite this week's ruling, the case is not over.

The judgment against Mr. Shaw and Ms. Lederer came in Pennsylvania because the quartet was incorporated as a nonprofit there. They and the Audubon's violinist Akemi Takayama are still holding out hope of an appeal in a Pennsylvania state court. (Ms. Takayama faces a separate bankruptcy action.) But for that to happen, the bankruptcy judge, Ross Krumm, would have to lift a stay. Howard Beck, a lawyer for the couple, has made the request. At a hearing in bankruptcy court in Roanoke on Tuesday, Judge Krumm said he would hear arguments next month.

During the bankruptcy proceeding on Tuesday, according to an account in The Roanoke Times, Mr. Beck struggled to convince the judge that the couple needed the instruments to make a living - and that a $10,000 exemption from liquidation under bankruptcy law for "tools of the trade" was meaningless for a string player. Mr. Shaw said his bow alone was worth six or eight times that. "How do you give them a fresh start if you take the instruments of their livelihood away from them?" Mr. Beck said in an interview yesterday.

But Judge Krumm said the liquidation was a "no-brainer," the newspaper reported.

Meanwhile, Mr. Beck said he had not ruled out the possibility of appealing the turn-over order. He said that he would use the time before Dec. 23 to push hard for a settlement with Mr. Ehrlich, although settlement talks in the past have foundered. If a settlement is close, or if progress is made in an appeal, Mr. Beck said the instruments might remain protected.

"Al," he said, using Mr. McLean's nickname, "isn't going to hurry out and sell the things to get the cash." He said another strategy might be to give Mr. McLean a bond as an assurance to allow Mr. Shaw and Ms. Lederer to continue playing the instruments for the time being.

Once their instruments are handed over, Mr. Shaw and Ms. Lederer, who teach at Shenandoah University's conservatory in Winchester, Va., and continue to play in the Audubon with a different violinist, will have to find replacements. The university president, James A. Davis, said the university was willing to help, whether lending them instruments in its collection or acquiring new ones to be provided on loan. He left open the possibility of helping buy their old instruments.

"I told them we would work with them to be sure they have a quality instrument to perform and play on," Mr. Davis said.

Ms. Lederer expressed the hope - a long shot, she said - that somehow the money could be found to buy their instruments back from the trustee. "It's awfully hard to raise that kind of money, especially since most of our friends are musicians," she said.

Mr. Shaw said he might borrow a cello. "Music," he said, "the judge can't order that out of my soul."
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Post by pizza » Thu Dec 15, 2005 12:10 pm

These people were hoist on their own petard. If Ehrlich had lost the same as a result of their outrageous behavior, neither they nor the NYT would have shed a fractional tear.

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Post by Cyril Ignatius » Thu Dec 15, 2005 1:09 pm

Tort reform, anyone???
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Post by BWV 1080 » Thu Dec 15, 2005 1:11 pm

Makes one look back whistfully to the time when such disagreements were settled by duelling

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Post by pizza » Thu Dec 15, 2005 1:26 pm

BWV 1080 wrote:Makes one look back whistfully to the time when such disagreements were settled by duelling
Three vs. one is hardly a fair duel. I'll take the court system anytime.

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Post by pizza » Thu Dec 15, 2005 1:27 pm

Cyril Ignatius wrote:Tort reform, anyone???
This wasn't a tort case.

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Post by BWV 1080 » Thu Dec 15, 2005 1:40 pm

Viewing the quartet as a business whose "product was their musical performances," he applied corporate legal principles to declare Mr. Ehrlich an owner and director, and found that the other members had unfairly squeezed him out. Mr. Ehrlich was awarded $132,844 in lawyers' fees and $78,275 in quartet funds. But, more important, the judge said Mr. Ehrlich was also entitled to 25 percent of the quartet's "value" as a business. He placed that amount at $400,000, partly based on the expert opinion of a finance professor at Virginia Tech who is also a friend of Mr. Ehrlich's.

"He just had his share of the business coming to him," the judge said in a recent interview.
Actually this makes alot of sense. If the four of them had co-owned a service business of some sort, say a law firm, no one would dispute this.

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Post by pizza » Thu Dec 15, 2005 1:50 pm

BWV 1080 wrote:
Viewing the quartet as a business whose "product was their musical performances," he applied corporate legal principles to declare Mr. Ehrlich an owner and director, and found that the other members had unfairly squeezed him out. Mr. Ehrlich was awarded $132,844 in lawyers' fees and $78,275 in quartet funds. But, more important, the judge said Mr. Ehrlich was also entitled to 25 percent of the quartet's "value" as a business. He placed that amount at $400,000, partly based on the expert opinion of a finance professor at Virginia Tech who is also a friend of Mr. Ehrlich's.

"He just had his share of the business coming to him," the judge said in a recent interview.
Actually this makes alot of sense. If the four of them had co-owned a service business of some sort, say a law firm, no one would dispute this.
And it wouldn't have made the papers unless it was a high-profile lawfirm.

Interviews are OK but the basis of the court's reasoning is clearly set forth in its Opinion.

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Post by Ralph » Thu Dec 15, 2005 2:42 pm

A decision that many dislike doesn't mean there's any reason for or basis for change in the law. No advocate of tort reform has ever suggested that remedies such as have been applied here shouldn't be available. Like it or not, the plaintiff won on the merits.

This is a very unusual case that's of special interest to folks here. But people lose all their worldly goods every day because of adverse judgments. And as with the HYPERION case which we've discussed here there's every reason to believe that an early settlement could have averted the draconian resolution.

Defense lawyers charge by the hour - there's no other basis for compensation other than a flat fee which only a novice attorney or one desperate for business would accept. Litigation often takes on a life of its own.

When I have a client who's loathe to settle, often for emotional reasons, and I feel that's the most rational and inexpensive course I tell them "You can use your money to send my kid to college or your kid(s). Your choice." That often works.
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Post by CharmNewton » Fri Dec 16, 2005 1:01 am

Is it known if Erlich or the other parties offered to settle prior to trials and what those terms might have been?

It seems to me that the Court (and attorneys in general) are in a position to know what the consequences of these actions could be far more than the litigants. Do courts offer mediation services that advise people of the potential bottom lines in cases like this? If not, it doesn't seem to me that the interests of ordinary citizens are being taken into account here. I think all the litigants have lost here, but the lawyers will walk away with a lot of cash. The law is supposed to be for the benefit of all citizens. This ruling simply sounds bone-headed to me, and that a lawyer is saying that it makes sense doesn't make me feel any better. All the judge has to do is send the parties off into a room and not let them out until they settle!

John

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Post by pizza » Fri Dec 16, 2005 1:50 am

CharmNewton wrote:Is it known if Erlich or the other parties offered to settle prior to trials and what those terms might have been?

It seems to me that the Court (and attorneys in general) are in a position to know what the consequences of these actions could be far more than the litigants. Do courts offer mediation services that advise people of the potential bottom lines in cases like this? If not, it doesn't seem to me that the interests of ordinary citizens are being taken into account here. I think all the litigants have lost here, but the lawyers will walk away with a lot of cash. The law is supposed to be for the benefit of all citizens. This ruling simply sounds bone-headed to me, and that a lawyer is saying that it makes sense doesn't make me feel any better. All the judge has to do is send the parties off into a room and not let them out until they settle!

John
A court can put pressure on litigants to settle, but it can't force them. The same is true of lawyers; they can point out the downside risks of proceeding with litigation to its ultimate conclusion, but they can't force their clients to settle.

The law is for the benefit of all citizens -- even for those who may be unpopular by comparison with their antagonists. The ruling in this case was sound and was fully supported by the evidence. If you can find a flaw in the court's reasoning that should have led to an opposite result, I would certainly appreciate your pointing it out. I don't know what would make you "feel better" -- probably nothing anyone could say, but you have to remember that there can be unpredictable and often adverse consequences to litigation guided mainly by emotional considerations and stubbornness.

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Post by Ralph » Fri Dec 16, 2005 7:43 am

CharmNewton wrote:Is it known if Erlich or the other parties offered to settle prior to trials and what those terms might have been?

It seems to me that the Court (and attorneys in general) are in a position to know what the consequences of these actions could be far more than the litigants. Do courts offer mediation services that advise people of the potential bottom lines in cases like this? If not, it doesn't seem to me that the interests of ordinary citizens are being taken into account here. I think all the litigants have lost here, but the lawyers will walk away with a lot of cash. The law is supposed to be for the benefit of all citizens. This ruling simply sounds bone-headed to me, and that a lawyer is saying that it makes sense doesn't make me feel any better. All the judge has to do is send the parties off into a room and not let them out until they settle!

John
*****

Judges are people and each has his/her own M.O. Some judges are notorious for urging (coercing) settlements but often that isn't in the best interests of one of the parties. Bias may be behind the pressure as well as a desire to conserve judicial time.

Mediation is available to litigants as is arbitration but they generally must select an Alternative Dispute Resolution modality. Courts often urge that approach in domestic relations matters but in this huge, multi-jurisdictional country there are different approaches and experiments.

Lawyers bear the heaviest responsibility for giving advice that will affect the quickest, fairest and least expensive outcome. That means that a lawyer's fees should not be a controlling factor and for a minority of unethical lawyers it is. The tactic is called "churning," keeping litigation going as long as possible for the attorney's benefit.

There's no way to glean what happened here.
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Post by Corlyss_D » Fri Dec 16, 2005 1:44 pm

BWV 1080 wrote:Makes one look back whistfully to the time when such disagreements were settled by duelling
You know, I much prefer duelling to court litigation. Duelling settles an issue exclusively between two parties. Court litigation sets precedents that screws up everybody within the court's jurisdiction. And thanks to SCOTUS' meddling, court litigation is practically barred as a resolution of the kinds of disputes that litigation was intended to substitute for, namely private quarrles involving public assaults on reputations. I like the British system much better - I think it is more attuned to the demands of the situation.
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Post by Ralph » Fri Dec 16, 2005 1:52 pm

Corlyss_D wrote:
BWV 1080 wrote:Makes one look back whistfully to the time when such disagreements were settled by duelling
You know, I much prefer duelling to court litigation. Duelling settles an issue exclusively between two parties. Court litigation sets precedents that screws up everybody within the court's jurisdiction. And thanks to SCOTUS' meddling, court litigation is practically barred as a resolution of the kinds of disputes that litigation was intended to substitute for, namely private quarrles involving public assaults on reputations. I like the British system much better - I think it is more attuned to the demands of the situation.
*****

Historically, duelling often led to "Blood Feuds" which went on for generations.

What Supreme Court decisions have made civil fora unavailable to resolve matters normally adjudicated, Corlyss? Do you have any cases or is this just another slap at the Court? Actually, in Morrison (just one example) the Court found unconstitutional Congress's creation of a federal cause of action for domestic violence civil suits (part of the Violence Against Women Act) enraging very many whose politics aren't yours. Pretty activist, huh? :)

I'd appreciate your response this week since I'm preparing both my required and elective Con Law courses for the spring.

A few Southern states still require a novice lawyer to swear to neither give nor accept a duelling challenge in order to be admitted to practice.
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Post by Werner » Fri Dec 16, 2005 4:41 pm

This is an old story by now, and nobody looks good. But as I seem to recall it, Ehrlich started the problems by agitating in various ways,including a new instrument at the Quartet's expense - in terms of obligations they had not been consulted on. I don't get a very positive picture of the Ehrlich persona - he may be a fine violinist, but after this I'd be cautious about any dealings with him.

So the others got fed up and hired a lawyer. That's when the fun started - with the lawyer's letter of virtually immediate dismissal, with no apparent option for a settlement. I'd supose Ehrlich felt cornered at this point and hired his own lawyer. And what it seems to come to, then, is who hired the most effective lawyers - with no regard to the merits of the case.
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Post by CharmNewton » Fri Dec 16, 2005 10:37 pm

pizza wrote:
CharmNewton wrote:Is it known if Erlich or the other parties offered to settle prior to trials and what those terms might have been?

It seems to me that the Court (and attorneys in general) are in a position to know what the consequences of these actions could be far more than the litigants. Do courts offer mediation services that advise people of the potential bottom lines in cases like this? If not, it doesn't seem to me that the interests of ordinary citizens are being taken into account here. I think all the litigants have lost here, but the lawyers will walk away with a lot of cash. The law is supposed to be for the benefit of all citizens. This ruling simply sounds bone-headed to me, and that a lawyer is saying that it makes sense doesn't make me feel any better. All the judge has to do is send the parties off into a room and not let them out until they settle!

John
A court can put pressure on litigants to settle, but it can't force them. The same is true of lawyers; they can point out the downside risks of proceeding with litigation to its ultimate conclusion, but they can't force their clients to settle.

The law is for the benefit of all citizens -- even for those who may be unpopular by comparison with their antagonists. The ruling in this case was sound and was fully supported by the evidence. If you can find a flaw in the court's reasoning that should have led to an opposite result, I would certainly appreciate your pointing it out. I don't know what would make you "feel better" -- probably nothing anyone could say, but you have to remember that there can be unpredictable and often adverse consequences to litigation guided mainly by emotional considerations and stubbornness.
On the surface this looks like a routine matter. A man is part of an organization that does not want him--this happens everyday. If the terms of their corporate charter cover dismissals, then it is a question of whether those rules were followed. If they're followed, that's that. If not, he gets his job back an apology and perhaps they sit down and talk out their differences (recommended). Maybe the quartet dissolves.

I simply cannot believe the litigants were truly aware of the frightful costs that were coming, although I don't know for sure. The potential loss of home and instruments would have brought on some instant sanity to all parties (ERlich wasn't guaranteed a favorable outcome either). It seems that the legal profession and courts expect ordinary people to be as knowlegdable about the law and potential consequences as they (the professionals) are. I think most people would feel that something was wrong in the way this matter played, taking five years. If that is so, then I believe the legal system failed them as much as they may have been victims of their own poor judgement.

John

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Post by Corlyss_D » Fri Dec 16, 2005 11:07 pm

Ralph wrote:Historically, duelling often led to "Blood Feuds" which went on for generations.
I don't mind.
What Supreme Court decisions have made civil fora unavailable to resolve matters normally adjudicated, Corlyss? Do you have any cases or is this just another slap at the Court?
NYT v. Sullivan (1964) requiring proof of malice for public officials to recover damages from media. I think the decision lead to the irresponsible character of reportage today.
I'd appreciate your response this week since I'm preparing both my required and elective Con Law courses for the spring.

A few Southern states still require a novice lawyer to swear to neither give nor accept a duelling challenge in order to be admitted to practice.
:lol: :lol: :lol: :lol: :lol:
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Post by BWV 1080 » Sat Dec 17, 2005 7:45 am

CharmNewton wrote: On the surface this looks like a routine matter. A man is part of an organization that does not want him--this happens everyday. If the terms of their corporate charter cover dismissals, then it is a question of whether those rules were followed.
John
Not exactly, the comparison is for a partial owner of a business who is frozen out by the other owners, not an employee who was dismissed.

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Post by Ralph » Sat Dec 17, 2005 7:56 am

Corlyss_D wrote:
Ralph wrote:Historically, duelling often led to "Blood Feuds" which went on for generations.
I don't mind.
What Supreme Court decisions have made civil fora unavailable to resolve matters normally adjudicated, Corlyss? Do you have any cases or is this just another slap at the Court?
NYT v. Sullivan (1964) requiring proof of malice for public officials to recover damages from media. I think the decision lead to the irresponsible character of reportage today.
I'd appreciate your response this week since I'm preparing both my required and elective Con Law courses for the spring.

A few Southern states still require a novice lawyer to swear to neither give nor accept a duelling challenge in order to be admitted to practice.
:lol: :lol: :lol: :lol: :lol:
*****

Times v. Sullivan is a major Supreme Court decision that is hardly criticized by anyone except, obviously, public officials. Along with the only case that Nixon ever argued before the High Court, the decisions balanced the public's right to know against damages for a defamed public official.

Times v. Sullivan hardly supports your broad statement about the unavailability of civil remedies. Under the standard announced by the Court a successful public official or public figure (a movie star, for instance) must show that the writer/speaker wrote/spoke with actual knowledge of the falsehood of the statement or with "reckless disregard" for the truth. Since truth is an absolute defense in the law of defamation, only false articulation of alleged fact can be actionable.

Far from giving license to the media it's accepted by virtually all that New York Times v. Sullivan has led to full employment for cautious, even hectoring, lawyers who now vet virtually every story and, definitely, every book and article manuscript (proving actual malice is easier when there is a lead time between writing and publication, something you don't have with breaking news).

Just as Miranda has led to better police investigations and more convictions, New York Times v. Sullivan restrains media output that may be libelous. However no solution exists before that case or now for judgment proof media or for untraceable, e.g. the Web, defamers.
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Post by DavidRoss » Sat Dec 17, 2005 9:06 am

Jonathan Swift, Dr. Gulliver's explanation of Law to a race of rational creatures:
There was another Point which a little perplexed him at Present. I had informed him, that some of our Crew left their Country on account of being ruined by Law; that I had already explained the Meaning of the Word; but he was at a Loss how it should come to pass, that the Law which was intended for every Man's Preservation, should be any Man's Ruin. Therefore he desired to be further satisfied what I meant by Law, and what sort of Dispensers thereof it could be by whose Practices the Property of any Person could be lost, instead of being preserved. He added, he saw not what great Occasion there could for this thing called Law, since all the Intentions and Purposes of it may be fully answered by following the Dictates of Nature and Reason, which are sufficient Guides for a Reasonable Animal, as we pretended to be, in shewing us what we ought to do, and what to avoid.

I assured his Honour, that Law was a Science wherein I had not much conversed, further than by employing Advocates, in vain, upon some Injustices that had been done me: however, I would give him all the Satisfaction I was able.

I said there was a Society of Men among us, bred up from their Youth in the Art of proving by Words multiplied for the Pleasure, that White is Black, and Black is White, according as they are paid. To this Society all the rest of the People are Slaves.

For Example, if my Neighbour hath a Mind to my Cow, he hires a Lawyer to prove that he ought to have my Cow from me. I must then hire another to defend my Right, it being against all Rules of Law that any Man should be allowed to speak for himself. Now in this Case, I who am the right Owner lie under two great Disadvantages. First, my Lawyer being practiced almost from his Cradle in defending Falshood; is quite out of his Element when he would be an Advocate for Justice, which as an Office unnatural, he always attempts with great Awkwardness if not with Ill-will. The second Disadvantage is, that my Lawyer must proceed with great Caution: Or else he will be reprimanded by the Judges, and abhorred by his Brethren, as one that would lessen the Practice of the Law. And therefore I have but two Methods to preserve my Cow. The first is, to gain over my Adversary's Lawyer with a double Fee; who will then betray his Client by insinuating that he hath Justice on his Side. The second way is for my Lawyer to make my Cause appear as unjust as he can; by the Cow to belong to my Adversary; and this, if it be skilfully done, will certainly bespeak the Favour of the Bench.

Now, your Honour is to know that these Judges are Persons appointed to decide all Controversies of Property, as well as for the Tryal of Criminals; and picked out from the most dextrous Lawyers who are grown old or lazy: And having been byassed all their Lives against Truth and Equity, are under such a fatal Necessity of favouring Fraud, Perjury, and Oppression; that I have known some of them refuse a large Bribe from the Side where Justice lay, rather than injure the Faculty, by doing any thing unbecoming their Nature or their Office.

It is a Maxim among these Lawyers, that whatever hath been done before, may legally be done again: And therefore they take special Care to record all the Decisions formerly made against common Justice and the general Reason of Mankind. These, under the Name of Precedents, they produce as Authorities to justify the most iniquitous Opinions; and the Judges never fail of decreeing accordingly.

In pleading, they studiously avoid entering into the Merits of the Cause; but are loud, violent, and tedious in dwelling upon all Circumstances which are not to the Purpose. For Instance, in the Case already mentioned: They never desire to know what Claim or Title my Adversary hath to my Cow; but whether the said Cow were Red or Black; her Horns long or short; whether the Field I graze her in be round or square; whether she was milked at home or abroad; what Diseases she is subject to, and the like. After which they consult Precedents, adjourn the Cause from Time to Time, and in Ten, Twenty, or Thirty Years, come to an Issue.

It is likewise to be observed, that this Society has a peculiar Cant and Jargon of their own, that no other Mortal can understand, and wherein all their Laws are written, which they take special Care to multiply; whereby they have gone near to confound the very Essence of Truth and Falsehood, of Right and Wrong; so that it may take Thirty Years to decide whether the Field, left me by my Ancestors for Six Generations, belongs to me, or to a Stranger three hundred Miles off.

In the Tryal of Persons accused for Crimes against the State the Method is much more short and commendable: The Judge first sends to sound the Disposition of those in Power; after which he can easily hang or save the Criminal, strictly preserving all due Forms of Law.

Here my Master interposing, said it was a Pity that Creatures endowed with such prodigious Abilities of Mind as these Lawyers, by the Description I gave of them, must certainly be, were not rather encouraged to be Instructors of others in Wisdom and Knowledge. In Answer to which, I assured his Honour, that in all Points out of their own Trade, they were usually the most Ignorant and stupid Generation among us, the most despicable in common Conversation, avowed Enemies to all Knowledge and Learning; and equally to pervert the general Reason of Mankind in every other Subject of Discourse, as in that of their own Profession. (excerpted from Swift, Gulliver's Travels)
"Most men, including those at ease with problems of the greatest complexity, can seldom accept even the simplest and most obvious truth if it would oblige them to admit the falsity of conclusions which they have delighted in explaining to colleagues, which they have proudly taught to others, and which they have woven, thread by thread, into the fabric of their lives." ~Leo Tolstoy

"It is the highest form of self-respect to admit our errors and mistakes and make amends for them. To make a mistake is only an error in judgment, but to adhere to it when it is discovered shows infirmity of character." ~Dale Turner

"Anyone who doesn't take truth seriously in small matters cannot be trusted in large ones either." ~Albert Einstein
"Truth is incontrovertible; malice may attack it and ignorance may deride it; but, in the end, there it is." ~Winston Churchill

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Post by Corlyss_D » Sat Dec 17, 2005 12:57 pm

Ralph wrote:Times v. Sullivan is a major Supreme Court decision that is hardly criticized by anyone except, obviously, public officials. Along with the only case that Nixon ever argued before the High Court, the decisions balanced the public's right to know against damages for a defamed public official.
POV. I think it was another example of misguided decisions by the Warren Court.
Times v. Sullivan hardly supports your broad statement about the unavailability of civil remedies. Under the standard announced by the Court a successful public official or public figure (a movie star, for instance) must show that the writer/speaker wrote/spoke with actual knowledge of the falsehood of the statement or with "reckless disregard" for the truth. Since truth is an absolute defense in the law of defamation, only false articulation of alleged fact can be actionable.
A little disingenuous, don't you think? You know as well as I that that standard is so rarely met that it is virtually non-existent. The decision stripped public figures of any recourse in the courts. Hell, the thing can't even be claimed to encourage settlement since the public figure can't win in court so the defendant has no reason to settle.
Just as Miranda has led to better police investigations and more convictions, New York Times v. Sullivan restrains media output that may be libelous.
Stats please. And lets hope the stats distinguish between improvements due to the exclusionary rule and improvements due to Miranda.
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Post by CharmNewton » Sat Dec 17, 2005 1:01 pm

BWV 1080 wrote:
CharmNewton wrote: On the surface this looks like a routine matter. A man is part of an organization that does not want him--this happens everyday. If the terms of their corporate charter cover dismissals, then it is a question of whether those rules were followed.
John
Not exactly, the comparison is for a partial owner of a business who is frozen out by the other owners, not an employee who was dismissed.
Erlich's ownership in the corporation should be easy enough to prove--he should own stock. But it still boils down to his skills not being wanted by the other members of the quartet. This probably happens everyday in the music world. Is it a conspiracy that the other three members didn't want to play with him? Is it a conspiracy if someone is booted off of this board? It seems to me that prople may have been ill advised here. The parties involved here are musicians, not lawyers. If they knowingly risked everything, that is one thing, but I sincerely doubt they did. The simple answer may have been to dissolve the quartet and move on. This is an ugly decision that shouldn't have taken five years. One side is broke while it may be a long time before the other plays in a quartet again (would you play with him?). I don't think what happened here would square with the FOunding Father's conception of justice.

John

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Post by Ralph » Sat Dec 17, 2005 1:45 pm

Corlyss_D wrote:
Ralph wrote:Times v. Sullivan is a major Supreme Court decision that is hardly criticized by anyone except, obviously, public officials. Along with the only case that Nixon ever argued before the High Court, the decisions balanced the public's right to know against damages for a defamed public official.
POV. I think it was another example of misguided decisions by the Warren Court.
Times v. Sullivan hardly supports your broad statement about the unavailability of civil remedies. Under the standard announced by the Court a successful public official or public figure (a movie star, for instance) must show that the writer/speaker wrote/spoke with actual knowledge of the falsehood of the statement or with "reckless disregard" for the truth. Since truth is an absolute defense in the law of defamation, only false articulation of alleged fact can be actionable.
A little disingenuous, don't you think? You know as well as I that that standard is so rarely met that it is virtually non-existent. The decision stripped public figures of any recourse in the courts. Hell, the thing can't even be claimed to encourage settlement since the public figure can't win in court so the defendant has no reason to settle.
Just as Miranda has led to better police investigations and more convictions, New York Times v. Sullivan restrains media output that may be libelous.
Stats please. And lets hope the stats distinguish between improvements due to the exclusionary rule and improvements due to Miranda.
*****

There's an extensive body of literature in law reviews and journalism publications about the degree and extent of legal vetting of material before publication. And there have been instances where such vetting has been made public by authors or others.

You are correct that New York Times v. Sullivan makes it very difficult for public officials to win libel cases but I never said that wasn't the case. Far from it it provides needed insulation for the media to report in a timely fashion recognizing that false and hurtful reports occasionally emerge. Since opinion is fully protected it's only false and opprobrious allegations of fact that may be the basis for a libel action.

Public figures do bring libel actions under the Times v. Sullivan standard and they do occasionally prevail, often through settlements. The balance, however, favors the media be it the Times or the New York Post or, for that matter, any supermarket rag. So media support, obviously, is for that Actual Malice standard and a paper's political orientation is wholly irrelevant.

In any event, your broad statement clearly implied that Supreme Court decisions have handicapped traditional civil dispute resolution. Lawsuits against the media are a tiny tip of tort actions.
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Post by Ralph » Sat Dec 17, 2005 1:51 pm

Here from the American Journalism Review is a very good account of a recent case that the Supreme Court declined to review:

From AJR, April/May 2005
Printer Friendly
Merely the Messenger

A small Pennsylvania paper takes the concept of “neutral reportage” to the Supreme Court

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.

If you've ever heard of the Daily Local News in West Chester, Pennsylvania, it's probably because that's where humor columnist Dave Barry, as he's often reminded his faithful fans, got his first journalism job after he graduated from Haverford College in 1969. But the U.S. Supreme Court might give this small newspaper in a community about 30 miles west of Philadelphia another claim to fame: an opportunity to rewrite the law of libel.

Things must have been pretty contentious at the Parkesburg Borough Council back in April 1995. After a series of what the Pennsylvania Supreme Court as "heated exchanges" between council member William T. Glenn Sr. and council President James B. Norton III, Norton read a statement at a special meeting threatening to evict anyone who disrupted future sessions. Glenn, who was planning to run for reelection, intended to read his own statement at the meeting, but it adjourned before he could do so. However, he gave a Daily Local News reporter a copy of the statement, and the paper ran a story the next day headlined "Slurs, insults drag town into controversy."

The article reported that Glenn's statement claimed Norton and Borough Mayor Alan M. Wolfe were "queers and child molesters." It also reported that Glenn's statement accused Norton of making unwanted homosexual advances toward him. Because Norton had "access to children"--he was a schoolteacher--Glenn wrote that "I now feel that it is my duty to report what has been happening." The article also noted that Norton dismissed Glenn's comments as "bizarre" and expressed the hope that Glenn could "get the help he needs."

Glenn's comments didn't help his reelection bid--he lost. To add insult to injury, Norton and Wolfe were returned to office in the same election.

You might think that having won, Norton and Wolfe would concede that they hadn't suffered any real harm to their reputations and go back to the business of running Parkesburg Borough. But they didn't. They filed a libel suit in state trial court not only against Glenn but also against the Daily Local News; its owner, William Caufield and Troy Publishing Co. Inc.; and the reporter who wrote the story. As Dave Barry would say, I'm not making this up.

The newspaper argued that it shouldn't be held liable for accurately reporting what a council member had said about his fellow officials. It claimed that it was protected by the constitutional privilege of "neutral reportage," first articulated by the 2nd U.S. Circuit Court of Appeals in 1977 in Edwards vs. National Audubon Society.

The idea behind this privilege is simple: The public has an interest in being fully informed about controversies concerning important issues. When a responsible organization makes accusations against a public figure, the press should be able to report them, even if the journalist has serious doubts about their veracity, without worrying about being sued for libel. Therefore, the Daily Local News argued, it should be allowed to report charges made by a public official about other public officials, which would clearly be of interest to voters in the run-up to an election, even though it knew the accusations were hogwash.

The problem was that only a handful of jurisdictions have adopted the neutral report privilege. In October 2004, the Pennsylvania Supreme Court declined to join them.

The opinion by Chief Justice Ralph J. Cappy contended that the First Amendment is all very well, but other interests matter, too. For example, he wrote, the individual's right to a good reputation is so important that it is guaranteed by the Pennsylvania Constitution. Cappy argued that although the U.S. Supreme Court gave the media "considerable protection" against libel suits by public officials, it never granted complete immunity. Instead, it left open potential liability for publishing falsehoods with knowledge that they were untrue--"actual malice." Cappy concluded that the high court would never abandon the actual malice standard nor adopt the neutral report privilege. And he wasn't about to do it in Pennsylvania.

Justice Ronald D. Castille concurred in the majority opinion, but he didn't seem all that happy with it. He acknowledged that when an elected official acts in a "scurrilous manner" and makes unsubstantiated allegations about his fellow council members, that's news. Castille worried that as a result of the ruling, newspapers, fearing libel suits, would "sanitize" their reports, resulting in "highly subjective changes" that might mislead the voters who have to pass judgment on whether to return these characters to office. But, Castille wrote, it's not up to a state court to second-guess the U.S. Supreme Court.

It isn't surprising that the Pennsylvania high court punted on the question. Lower court judges these days are reluctant to venture into uncharted constitutional territory, often out of fear of being labeled "activist" or worse. So in January 2005, the Daily Local News asked the U.S. Supreme Court to review and reverse the case.

Let's hope it does. As Dave Barry might say, "Neutral Reportage" would be a good name for a rock band. And it would be good public policy, as well.

Online Update: After AJR's press time, the Supreme Court declined to hear the case, letting the Pennsylvania Supreme Court ruling stand.
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Post by CharmNewton » Sat Dec 17, 2005 3:59 pm

DavidRoss wrote:Jonathan Swift, Dr. Gulliver's explanation of Law to a race of rational creatures:There was another Point which a little perplexed him at Present. I had informed him, ...
I laughed quite a bit as I read this, but it was in the same vein as Solzhenitsyn laughing about his experiences in the Soviet gulags.
DavidRoss wrote: Here my Master interposing, said it was a Pity that Creatures endowed with such prodigious Abilities of Mind as these Lawyers, by the Description I gave of them, must certainly be, were not rather encouraged to be Instructors of others in Wisdom and Knowledge. In Answer to which, I assured his Honour, that in all Points out of their own Trade, they were usually the most Ignorant and stupid Generation among us, the most despicable in common Conversation, avowed Enemies to all Knowledge and Learning; and equally to pervert the general Reason of Mankind in every other Subject of Discourse, as in that of their own Profession. (excerpted from Swift, Gulliver's Travels)
Fortunately for us this is not true of the lawyers who inhabit this board who daily show both their wisdom and their wit. One has brought Monteverdi into my consciousness while another brought Dittersdorf (Ives was already there).

John
Last edited by CharmNewton on Sun Feb 05, 2006 12:25 pm, edited 1 time in total.

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Post by pizza » Sun Dec 18, 2005 2:25 am

CharmNewton wrote:
BWV 1080 wrote:
CharmNewton wrote: On the surface this looks like a routine matter. A man is part of an organization that does not want him--this happens everyday. If the terms of their corporate charter cover dismissals, then it is a question of whether those rules were followed.
John
Not exactly, the comparison is for a partial owner of a business who is frozen out by the other owners, not an employee who was dismissed.
Erlich's ownership in the corporation should be easy enough to prove--he should own stock. But it still boils down to his skills not being wanted by the other members of the quartet. This probably happens everyday in the music world. Is it a conspiracy that the other three members didn't want to play with him? Is it a conspiracy if someone is booted off of this board? It seems to me that prople may have been ill advised here. The parties involved here are musicians, not lawyers. If they knowingly risked everything, that is one thing, but I sincerely doubt they did. The simple answer may have been to dissolve the quartet and move on. This is an ugly decision that shouldn't have taken five years. One side is broke while it may be a long time before the other plays in a quartet again (would you play with him?). I don't think what happened here would square with the FOunding Father's conception of justice.

John
Ehrlich proved his ownership in the corporation. Shares of stock were never issued but that doesn't affect his rights. Why should he have walked away from a 16 year investment of his professional life in a viable business that he helped to develop -- and it was a business-- with nothing? Would you?

Nobody was forced to play with Ehrlich. The judge simply didn't believe that lack of professional skill was a factor in the attempted freeze-out. A quartet doesn't win awards and rave reviews over a long period of time with a substandard first violinist. The defendants lost credibility with that contention and the judge was on solid ground in disregarding such a claim.

The defendants could have offered him a fair settlement. They didn't. These kinds of disputes happen every day. There's no magic to resolving them. I'm sure this wasn't the first time that a quartet decided to dissolve. The problem was that the cellist considered the Audubon to be his private property and wouldn't give an inch. He influenced the other two to support him. Conspiracy? If by that you're asking did they privately decide among themselves to freeze him out with no effort to resolve the matter among all the members, it was precisely that.

We're not discussing a school yard dispute among children. These are mature adults and although they may not be lawyers, they can't pretend to be ignorant of the ordinary affairs of life.

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Post by CharmNewton » Sun Dec 18, 2005 11:12 am

pizza wrote: Ehrlich proved his ownership in the corporation. Shares of stock were never issued but that doesn't affect his rights. Why should he have walked away from a 16 year investment of his professional life in a viable business that he helped to develop -- and it was a business-- with nothing? Would you?

Nobody was forced to play with Ehrlich. The judge simply didn't believe that lack of professional skill was a factor in the attempted freeze-out. A quartet doesn't win awards and rave reviews over a long period of time with a substandard first violinist. The defendants lost credibility with that contention and the judge was on solid ground in disregarding such a claim.

The defendants could have offered him a fair settlement. They didn't. These kinds of disputes happen every day. There's no magic to resolving them. I'm sure this wasn't the first time that a quartet decided to dissolve. The problem was that the cellist considered the Audubon to be his private property and wouldn't give an inch. He influenced the other two to support him. Conspiracy? If by that you're asking did they privately decide among themselves to freeze him out with no effort to resolve the matter among all the members, it was precisely that.

We're not discussing a school yard dispute among children. These are mature adults and although they may not be lawyers, they can't pretend to be ignorant of the ordinary affairs of life.
If no one was forced to play with Erlich, how could he be frozen out of anything?

But I think you have missed my point. This group seems to have beem ill served by their attorneys and the court. If it was clear that Erlich was entitled to a settlement at the beginning (the quartet had been in existence for years before Erlich became a member), the parties should have been so advised. The simple solution would have been to dissolve the quartet and divvy the assets. There may have been other implications to this such as loss of their residency, but life goes on. The members would have been free to form or join other organizations. Perhaps that was painted as an option, but I haven't read anything that would make me believe this were true. They'd at least still have the shirts on their backs.

In the end, this case makes it appear that the legal system now appears to exist for the benefit of lawyers.

John

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Post by Ralph » Sun Dec 18, 2005 4:48 pm

CharmNewton wrote:
pizza wrote: Ehrlich proved his ownership in the corporation. Shares of stock were never issued but that doesn't affect his rights. Why should he have walked away from a 16 year investment of his professional life in a viable business that he helped to develop -- and it was a business-- with nothing? Would you?

Nobody was forced to play with Ehrlich. The judge simply didn't believe that lack of professional skill was a factor in the attempted freeze-out. A quartet doesn't win awards and rave reviews over a long period of time with a substandard first violinist. The defendants lost credibility with that contention and the judge was on solid ground in disregarding such a claim.

The defendants could have offered him a fair settlement. They didn't. These kinds of disputes happen every day. There's no magic to resolving them. I'm sure this wasn't the first time that a quartet decided to dissolve. The problem was that the cellist considered the Audubon to be his private property and wouldn't give an inch. He influenced the other two to support him. Conspiracy? If by that you're asking did they privately decide among themselves to freeze him out with no effort to resolve the matter among all the members, it was precisely that.

We're not discussing a school yard dispute among children. These are mature adults and although they may not be lawyers, they can't pretend to be ignorant of the ordinary affairs of life.
If no one was forced to play with Erlich, how could he be frozen out of anything?

But I think you have missed my point. This group seems to have beem ill served by their attorneys and the court. If it was clear that Erlich was entitled to a settlement at the beginning (the quartet had been in existence for years before Erlich became a member), the parties should have been so advised. The simple solution would have been to dissolve the quartet and divvy the assets. There may have been other implications to this such as loss of their residency, but life goes on. The members would have been free to form or join other organizations. Perhaps that was painted as an option, but I haven't read anything that would make me believe this were true. They'd at least still have the shirts on their backs.

In the end, this case makes it appear that the legal system now appears to exist for the benefit of lawyers.

John
*****

A settlement offer usually comes from the defendant(s) and that starts negotiations. I'm sure the lawyer(s) urged that (I think I read there was an early offer). If defendants don't want to settle then their lawyer has no choice but to litigate.
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CharmNewton
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Post by CharmNewton » Sun Dec 18, 2005 7:12 pm

Ralph wrote: A settlement offer usually comes from the defendant(s) and that starts negotiations. I'm sure the lawyer(s) urged that (I think I read there was an early offer). If defendants don't want to settle then their lawyer has no choice but to litigate.
Perhaps attorneys should have some humor in their waiting rooms (like dentists):

If you lose you could have a chilly snooze.

or

It feels good to be right but it feels good to have money to pay the rent too.

Lawyers aren't social workers, but they are referred to as counselors. It just seems that this situation could have had a different outcome, perhaps involving the university.

John

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Post by MaestroDJS » Sun Dec 18, 2005 7:54 pm

Ralph wrote:A settlement offer usually comes from the defendant(s) and that starts negotiations. I'm sure the lawyer(s) urged that (I think I read there was an early offer). If defendants don't want to settle then their lawyer has no choice but to litigate.
It has occurred to me that the name Audubon is perfectly apt, because this saga is for the birds. :D

As an engineer I know that compromises and corrections are much simpler and easier to implement when they are done sooner rather than later. I have seen several engineers let their pride get the better of them, and so small errors or disagreements escalate and get out of control. Often it's better to agree to disagree and reach a compromise -- perhaps lose a little now for the greater good, rather than lose everything later. But as Ralph mentioned, if the parties involved simply won't compromise, then there may be no choice but to resort to a costly retrofit.

The more I learn from Ralph, the closer the engineering and legal realms seem to be. :)

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Post by RebLem » Tue Dec 20, 2005 12:25 am

Somebody should write an opera about this.
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The Audubon Quartet Debacle

Post by michael renardy » Wed Dec 28, 2005 6:18 pm

My web site has already been cited in this thread:
http://hometown.aol.com/renardym

Many of the original court documents and other facts on the history of this case are available there.

I would like to address one particular point that has been raised in this thread: The Bergonzi violin was for Ehrlich's USE, not for him to OWN. He does not own the Bergonzi violin on which he plays now (Virginia Tech does), and it is my understanding that in all past efforts to obtain funds, it was always understood that the sponsor would retain ownership. This may not be very clear from the judgment.

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Post by Corlyss_D » Wed Dec 28, 2005 6:41 pm

I see you made it, Michael. Kick your shoes off and set a spell.

As you can see from the thread, there was a lot interest in the case here. We have a couple of lawyers to clarify for the non-lawyers. One of them Ralph is indisposed at the moment, but we would like to be kept updated on the case. We are following the Hyperion debacle as well.
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The Audubon Quartet Debacle

Post by michael renardy » Sun Feb 05, 2006 9:00 am

The parties in the Audubon Quartet have reached a settlement, ending the legal dispute. For legal reasons, the settlement cannot take full effect until deadlines for claims (which could theoretically still be brought by yet unknown creditors) are expired. As announced previously, Shaw and Lederer will keep their instruments under the settlement.

I shall not announce details or comment further on the settlement unless
this becomes necessary in response to coverage elsewhere.

Michael Renardy

http://hometown.aol.com/renardym

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Post by Ralph » Tue Feb 07, 2006 9:15 pm

From The New York Times

February 7, 2006
How Audubon Musicians Kept Their Instruments
By DANIEL J. WAKIN

Last month, an anonymous individual stepped in to help two members of the Audubon String Quartet keep their instruments after they lost a lawsuit to a fired former colleague and faced bankruptcy.

Now, the person has stepped forward.

He is Daniel Braden, 53, a freelance French horn player in Bethlehem, Pa., who buys instruments as an investment and lends them to musicians who may not be able to afford them.

"Those instruments are part of their musical personality, their musical identity," Mr. Braden said in a telephone interview. "I thought this was an opportunity to address this one aspect of the situation."

The "situation" is a bitter, drawn-out legal dispute between David Ehrlich, the quartet's former first violinist, and its three other members: Akemi Takayama, the second violinist; Doris Lederer, the violist; and Clyde Shaw, the cellist. Mr. Shaw and Ms. Lederer are married.

The three dismissed Mr. Ehrlich in February 2000 after a history of tensions. Mr. Ehrlich sued and won a $611,000 judgment. After years of appeals and bankruptcy hearings, a December deadline arrived for Mr. Shaw's and Ms. Lederer's instruments — a 1915 Ferruccio Varagnolo viola, and an 1887 Eugenio Degani cello along with an 1860 bow by Nicolaus Kittel — to be sold to raise money to pay the judgment.

But after a round of news reports, the two sides agreed to settle the case. A key aspect of the settlement was Mr. Ehrlich's acceptance of a $200,000 payment in exchange for dropping his claim on the instruments.

Mr. Braden said that after learning of the circumstances, he approached Ms. Lederer and Mr. Shaw, offering to buy their instruments for that amount. In exchange, they would have the guaranteed use of them for 10 years.

"I needed them to feel there are a couple of things in their lives that are guaranteed," Mr. Braden said, adding that the two musicians have the option to buy back the instruments at a set price for a period of time, which he did not disclose. After 10 years, he said, they will discuss the next step.

"I want to make it very clear, I'm not a donor," he said. "I'm buying the instruments and loaning them back to them." But, he added, "I have great sympathy for what this has meant and done to them emotionally."

Mr. Braden said that for about two decades starting in the early 1980's, he did tax work for musicians and worked as a business manager for a New York violin dealer. He invested his earnings in the 90's, he said, adding, "The stock market was very good to me."

Now a violinist in the Berlin Philharmonic, a cellist in the Pittsburgh Opera and a violinist in the Lehigh Valley Chamber Orchestra, in which Mr. Braden also plays, are borrowing his instruments, he said.

As part of the settlement with Mr. Ehrlich, which was signed on Friday, Mr. Shaw and Ms. Lederer must vacate their house in Blacksburg, Va., by March 15 and turn it over to the bankruptcy trustee for sale. Mr. Ehrlich is to receive the proceeds, expected to be more than $200,000, as well as $59,000 in liquidated retirement annuities from the couple.

The couple also rent a home in Winchester, Va., where they teach at Shenandoah University's conservatory. They live in Blacksburg because until the lawsuit, the quartet had residency at Virginia Tech, which is based there.

Ms. Takayama reached a separate deal to pay $40,000 to Mr. Ehrlich, Mr. Shaw said.

"This is it, as far as I'm concerned," Mr. Shaw said, referring to the end of the lawsuit. "When we played a concert Friday night, Akemi and I and Doris looked at each other and said, 'Oh, my God, we're finished.' "
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Post by Charles » Wed Feb 08, 2006 1:40 am

pizza wrote:These people were hoist on their own petard. If Ehrlich had lost the same as a result of their outrageous behavior, neither they nor the NYT would have shed a fractional tear.
I don't agree that they were justly hoisted. I think that the majority of the members of an artistic collaborative should be able to oust a member whose artistic or temperamental qualities make them very uncomfortable with him or her, without that person being able to sue for damage to his career.

I am not a lawyer. I don't want to get involved in a prolonged debate, either legal or ethical, about this, with Pizza, but just want to state my opinion. I played jazz many years ago, and the group I was in dropped sidemen and added others several times. The process was simple, if a little painful personally all around, and especially for the people who were let go. But heaven help us if we had to go thru hell like this because of our artistic needs. And heaven help any musical, dramatic or dance group if they have to go thru this kind of hell to try to fulfill their collective aims. It is a travesty, in my opinion.

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Post by Corlyss_D » Wed Feb 08, 2006 3:02 am

I'm glad someone came to the rescue. Erlich's vengefulness should make him radioactive for the rest of his professional life.
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