The FJ vs. H lawsuit thread.

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  • James PuckettJames Puckett Posts: 1,676
    edited June 2014
    “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 ColesStephen Coles Posts: 784
    edited June 2014
    And got the name of Egizio wrong more than once.
    Maybe Roger said Egiziano (even if he meant the Nebiolo face)?
  • Florian HardwigFlorian Hardwig Posts: 170
    edited June 2014
    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)?
  • Roger pointed out my error at the time.
  • Stephen ColesStephen Coles Posts: 784
    edited July 2014
    New docs posted. “Discovery is stayed pending ADR process.”
  • 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.
  • kupferskupfers Posts: 246
    Awkward to say this, but this play is actually enjoyable to read. That judge has humor and common sense.
  • 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==
  • It was indeed an interesting read.
  • 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 HudsonJohn Hudson Posts: 1,776
    edited September 2014
    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.
  • 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.
  • 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.
  • "most cases of this kind are settled before they reach court, "

    Seems that is too late. You mean trial?
  • Yes, that's what I meant. Thanks, David.
  • Hallelujah! I hope their was a fair and equitable resolution.
  • 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.
  • 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?
  • Why would any type designer purchase anything from any other type designer?
  • 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.
  • 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.
  • 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.
  • 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 PhillipsMax Phillips Posts: 463
    edited December 2014
    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.
  • 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 ShinnNick Shinn Posts: 1,482
    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.
  • 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?
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