The FJ vs. H lawsuit thread.

James Puckett

“The idea that there were such things as “typographers,” people whose job was to draw letters…”

Nice to see that they fact-checked the first paragraph of that article. And threw scare quotes around all the typographic terminology to make it seem esoteric. And recycled text from Tobias’ filings without quotation marks. And got the name of Egizio wrong more than once. And I’ve just started the second page. Did NY Magazine fire all the editors or something?

Stephen Coles

And got the name of Egizio wrong more than once.

Maybe Roger said Egiziano (even if he meant the Nebiolo face)?

Florian Hardwig

Hoefler’s 1990 design is unrelated to Egizio. Its name is Egiziano Filigree and it is “based upon the nineteenth-century face Egiziano Nero”, see Emily King’s doctoral thesis.

One might rather question the editors of Eye Magazine, see this quote by David Berlow about Belizio, which is actually something like Egizio:

“At that point, Matthew suggested we do a custom face. So we did Belizio, something like Egiziano, for Roger, who at the time was working for California magazine. I began to think it was time to do a business plan.”

Or maybe David said Egiziano (even if he meant the Nebiolo face)?

Deleted Account

Roger pointed out my error at the time.

Stephen Coles

New docs posted. “Discovery is stayed pending ADR process.”

Scott-Martin Kosofsky

Just when I thought the bad summer movie season was over, it was brought to my attention that the type world's favorite lawsuit (come on, admit it--it is your favorite) was back in action. On August 29th, the transcript of the July 22nd dismissal hearing was posted by the New York State Supreme Court.

https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=z9wGsdxLwA8v1lsgOozYbw==&display=all&courtType=New York County Supreme Court

Of the five causes of action against Hoefler, the judge allowed the first, second, and fourth to stand. The third ("constructive trust") was dropped by consent of Frere-Jones's attorney, as it constituted a Plan B, lest the first action failed. The fifth action, fraud, was dismissed but without prejudice, meaning that it was left open to later process.

For all of you who love tedium (and what typographer doesn't), the lengthy proceeding was transcribed verbatim. It is doc #41 in the record. Those of you who wonder how much a stream of emails might count in a U.S. court when you find yourself there, or what is or isn't considered hearsay in the era of constant electronic communications, will find it and interesting read. In the least, you'll come away with a picture of lawyers and a judge sweating it out in a sweltering New York courtroom in July. You read the back and forth and you just know the air-conditioning had broken down.

What it all means is that the matter may now go on to discovery and trial court, and what happens there is anyone's guess. If the judge's read of the whole thing (he starts out by saying he had no idea there were different typefaces) is any indication of how a jury might find it later, it would appear that Frere-Jones's case has a very good chance. That Hoefler filed no affidavit explaining his version of what the emails were saying from his point of view doesn't bode well for him. But then again, I have no idea of how such technicalities play out in an actual courtroom.

Stay tuned.

kupfers

Awkward to say this, but this play is actually enjoyable to read. That judge has humor and common sense.

John Hudson

The fifth action, fraud, was dismissed but without prejudice, meaning that it was left open to later process.

Tobias' lawyer has appealed dismissal of the fraud action:
https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=W9mTepPTyEdUObpauwQMtw==

Thomas Phinney

It was indeed an interesting read.

Scott-Martin Kosofsky

John, the judge essentially required Tobias's attorney to do that, to keep the claim alive (whence the "without prejudice"), lest fraud be proven at the trial. In and of itself, it's not significant.

John Hudson

Well, no. What the judge said was that the dismissal of the fraud claim -- on the grounds that it was duplicative of the breach of contract claim -- was without prejudice and so could be reinserted in the event of discovery of facts indicating fraudulent intent. The appeal is to overturn the dismissal of the fraud claim on grounds that the dismissal 'was in error', i.e. Tobias' lawyer does not accept the argument that the fraud claim is duplicative of the breach of contract claim, and asserts that at the pre-answer stage the plaintiff may plead both.

So the significance of the appeal is that the appellate court could decide to reinsert the fraud claim without discovery of additional facts.

Scott-Martin Kosofsky

John, that's pretty much what I said. It's also tactical because it has the potential to stand alone--and it is, I think, the most plausible action to incur punitive damages. Each state in the U.S. has different standards for that sort of thing. The case is filed in New York, I live in Massachusetts--and I'm not a lawyer in either one (or anywhere else, for that matter).

Keep in mind, most cases of this kind are settled before they reach court, and it's very likely this one will be, too, especially if Hoefler is persuaded that punitive damages are within the realm of possibility. I'm sure it has already become very expensive for both parties and it wouldn't surprise me if settlement talks aren't underway already. Then the show will over.

The takeaway for me, so far, has been credence given to the email trail, which, in my reading, stopped just short of being definitive, and how quickly the case law presented by Hoefler's attorneys was taken down. But again, because Hoefler failed to file an affidavit presenting his own interpretation of the emails said a lot. I don't know if his side has a right of appeal or not.

John Hudson

The takeaway for me, so far, has been credence given to the email trail, which, in my reading, stopped just short of being definitive, and how quickly the case law presented by Hoefler's attorneys was taken down.

That and the importance of the absence of a merger clause in the employment agreement.

Deleted Account

"most cases of this kind are settled before they reach court, "

Seems that is too late. You mean trial?

Scott-Martin Kosofsky

Yes, that's what I meant. Thanks, David.

James Puckett

They settled: https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=_PLUS_tGklGn5iy7Nw0NighbvGg==

Chris Lozos

Hallelujah! I hope their was a fair and equitable resolution.

William Berkson

Given how outraged F-J was, and the judge's interpretation of the e-mails, I can't imagine F-J walked away with a poor settlement. But I guess we'll never know, as these things are usually kept confidential.

Martin Silvertant

I recently noticed a few type designers stating they will no longer purchase typefaces from Hoefler. It seems the whole situation had bad implications for their fan base as they felt their trust was broken. Like Rodrigo Saiani stated at the beginning of this thread:

I think it's pretty sad that a guy of such stature has the guts to not give what the other is clearly entitled to. They were for me big examples of how to do business the right way, it shocks me this happened

How do you feel about that? Is your trust also harmed or do you see this as not much more than a curiosity?

[Deleted User]

The user and all related content has been deleted.

Robin Mientjes

I motion to close this thread, as any further discussion is off-topic. The case has been settled, and we’ll never hear about this again. Let’s get back to work and make sure we are all blessed, henceforth, with clear contracts and clear expectations.

Martin Silvertant

Why would any type designer purchase anything from any other type designer?

Perhaps not as a type designer, but I'm sure we would as graphic designers.

Stephen Coles

I could be dissuaded, but I'm not sure I agree that any further discussion would be off-topic. The fact that there was a lawsuit is still true, regardless of whether it was settled. There can still be thoughtful discussion about that fact.

Thomas Phinney

I actually occasionally buy fonts, and I often recommend fonts.

For me, I always trusted the quality and design of F&HJ fonts.

Some people have wanted to be strongly supportive of Tobias in the breakup. I infer that is a fairly common sentiment at the high end of the type community, else Tobias wouldn't have been made the keynote speaker for TypeCon last fall, and wouldn't have gotten a standing ovation just for arriving at the podium. A standing ovation that was specifically planned and orchestrated by prominent attendees, even.

For people of such sentiment, they probably wish they knew if Tobias got an equity or future-profits stake in Hoefler Type Foundry (d.b.a. Hoefler & Co.). If Tobias gets no share of future sales, they might choose not to buy (license) fonts from Hoefler today and in the future. If Tobias is sharing in the future profits or has an equity stake, they might be much happier to give the company their business.

Martin Silvertant

I don't think I would go so far as to avoid certain typefaces myself, though since the lawsuit I find I'm not so curious about Hoefler & Co anymore. I can't exactly say why. I would have thought ultimately it wouldn't matter to me where the money goes to, but this situation did leave a bad aftertaste.

Max Phillips

I wish to I knew more about the settlement, too. For what little it's worth, I've been boycotting Hoefler & Co. since this started. And I don't enjoy doing that, because the library is tremendous, and useful for a range of work. But unless I know some of the licensing money goes to Tobias, I think I'll have to go on doing it.

Unlike Martin, I don't personally know any other designers who feel this way. That sort of surprises me.

James Puckett

Unlike Martin, I don't personally know any other designers who feel this way. That sort of surprises me.

Perhaps because designers are just used to getting screwed in business? The impression I get from talking to graphic designers is that someone is always trying to avoid paying for design work.

Nick Shinn

James (M), I license fonts from other foundries occasionally, for use in presentation documents comparing them with custom typefaces I am in the process of designing.

FWIW, I am Facebook friends with both H & F-J.
As someone who frequently puts his foot in his mouth, I try not to bear grudges, on the principle that what goes around comes around.

Martin Silvertant

As someone who frequently puts his foot in his mouth, I try not to bear grudges, on the principle that what goes around comes around.

Right. Also, I was never personally involved with either of them, so I'm not sure why I should take it personally, try to be a defender of justice (without even knowing the details of the case and the relationships involved) and boycott a type foundry.

I'm curious. Provided you're a graphic designer and a hypothetical foundry had the perfect typeface for a job which you found nowhere else, but the money goes to sources which are not justified in your opinion. Would you force yourself to find a different typeface, or would you put your principles aside? I'm wondering how much principles count in this, when ultimately it should be about the quality you provide as a designer and not about how many principles you live by.

I don't mean to imply it's fine to be unethical as long as you provide quality, but to which extent should the principles you live by be valued in situations like these?

Scott-Martin Kosofsky

Martin, you've touched upon some of life's central ethical questions: To what extent am I required to stand up for justice? And how can I be sure my position is just?

We don't know all that transpired between H and FJ, only what we read in the court documents. And more to the point, we don't know what was achieved for the plaintiff in the settlement. An out-of-court settlement does not imply guilt in any way, only an expedient way to despatch the matter before it would become so expensive that any "victory" would be a pyrrhic one and all (except the lawyers) would lose. It could well be that, in avoiding H&Co. fonts, one is harming both parties, or that in some cases you would be hurting FJ even more. We don't know and we may never know.

There are people who avoid Eric Gill's fonts so as not to be associated with his personal behaviors they consider depraved, and there are others who consciously choose not to be concerned with them, saying (not unjustly) that the matters were never brought before a court and are not part of any official record, only hearsay or legend. No one—at least no one thoughtful—can denigrate the quality and importance of Gill's work on account of his supposed personal behavior.

This is something akin to the "Wagner Problem," though in some respects Wagner may be worse. There are those who go to great lengths to avoid the composer's work because he was a rabid anti-Semite and general sociopath. (This is a matter of record in his own published writing, not simply speculation.) But there are others, myself included, who choose to separate great art (and I believe Wagner's is very great, indeed) from the personal defects of their creators. That's not to say I look the other way or pretend that his work is untainted by his madness, but rather that I see no equivalency between great art and morality. Great art is sometimes created by very bad or crazy people. To those who insist on the holiness of art and claim a high moral position for it, I can only say, "Get over it." From my own Jewish perspective, I believe that conflating art with holiness is a form of idolatry. But that's not to say I don't care deeply for art.

What's important, I think, is that we make our own decision on such things, weighing the consequences of our decisions. You are the one who has to live with your decisions, so it may well be that you come to conclusions different from those I have. And you may well change your mind over time.