David Fleischer is a litigation partner in the New York office of Haynes and Boone. He has more than 30 years of experience litigating cases across multiple industries and areas of law. His practice primarily concentrates on high-stakes business litigation in the entertainment, real estate and bankruptcy areas.
David regularly represents clients in a wide range of commercial litigation matters, including intellectual property and contract disputes, real estate litigation, consumer class actions, governmental investigations, bankruptcy and creditors' rights and corporate governance. He regularly appears in state and federal courts as well as arbitration and mediation forums throughout the United States.
In December 2011 David secured summary judgment dismissing copyright infringement claims against Marvel Entertainment and its licensees by a comic book writer claiming ownership of the copyright in Marvel's Ghost Rider character featured in a blockbuster film released in 2007 and to be featured in another film scheduled for release in 2012.
David represented Marvel Entertainment in a declaratory judgment action seeking to invalidate copyright termination notices issued on behalf of the heirs of Jack Kirby, which sought to obtain rights in numerous iconic Marvel characters including The Incredible Hulk, The Fantastic Four, Iron Man, Nick Fury and many others. A decision rendered in August 2011 granted Marvel Entertainment's motion for summary judgment invalidating the termination notices.
In March 2010 David secured dismissal on behalf of Marvel Entertainment of a lawsuit seeking more than $750 million in damages and other relief. The would-be derivative plaintiffs in that action claimed that Stan Lee signed over to Stan Lee Media, a now defunct company with which Mr. Lee is no longer affiliated, rights to iconic characters he created while employed by Marvel, including Spider-Man, Ironman and The Incredible Hulk. Manhattan federal district court Judge Paul Crotty held that the plaintiffs lacked standing, had filed claims barred by the statute of limitations, and failed adequately to plead legally sufficient claims. In a related action by Stan Lee Media collaterally attacking the dismissal of the derivative claims David obtained a 28-page decision in February 2011 rejecting the collateral attack on Judge Crotty's decision.
In February 2011 David also secured a judgment on Marvel Entertainment's behalf declaring that Marvel's contractual obligation to pay royalties on sales of a very successful Spider-Man role play toy terminated upon expiration of a patent related to the toy. In a related action, in January 2012, on summary judgment David obtained a declaratory judgment to the effect that Marvel had satisfied any obligation it might have had to negotiate a royalty agreement related to that Spider-Man toy after expiration of the patent.
Additional representative matters include:
- Representation of a lender affiliate of a large national real estate company in a hotly contested mortgage foreclosure action
- Representation of a private equity firm in defending tort claims arising out of failed restructuring negotiations
- Representation of a national title company and its title insurance underwriter subsidiaries in consumer class actions and regulatory matters throughout the United States and in coverage and claims matters.
- Representation of institutional financial clients in a variety of real estate and construction disputes in arbitration and judicial proceedings.
- Litigation for a major insurance carrier in which the client sought to set aside and enjoin as fraudulent conveyances certain distributions to the equity partners of a non-recourse borrower. The litigation produced two opinions in the Second Circuit Court of Appeals holding that, notwithstanding broad exculpation language in its loan documents, Travelers had standing to pursue fraudulent conveyance causes of action against the borrower and its partners.
David was selected for inclusion in New York - Metro Super Lawyers 2010-2012 and is AV® Peer Review Rated Preeminent by Martindale-Hubbell® Law Directory.
Selected Representative Experience
Kimble v. Marvel Enterprises, Inc., ___ F.3d ___, No. 11-15605, 2013 WL 3621763 (9th Cir. July 16, 2013)
In a case involving the right to produce a Spider-Man role play toy, obtained affirmance of a summary judgment holding that a royalty obligation under a hybrid agreement covering both patent and non-patent claims terminated upon the expiration of the patent.
Lee v. Marvel Enterprises, Inc. 471 Fed.App'x 14 (2d Cir. 2012), aff'g 765 F. Supp. (S.D.N.Y. 2011)
Represented appellee Marvel Entertainment, LLC in successfully opposing appeal from denial of a non-party's motion to vacate judgment dismissing claims with prejudice, intervene as real party in interest and unseal certain documents.
Gary Friedrich Enterprises, LLC v. Marvel Enterprises, Inc., 08-cv-1533 (S.D.N.Y. Dec. 28, 2011)
Represented Marvel and numerous Marvel licensees in action alleging copyright infringement, Lanham Act and state law claims arising from exploitation of Ghost Rider origin story and characters in feature films, video games, toys and other merchandise, securing decisions dismissing Lanham Act and state law claims on motion to dismiss and copyright infringement claims on summary judgment.
Marvel Worldwide, Inc. v. Kirby, 756 F. Supp. 2d 461 (S.D.N.Y. 2011)
Represented Marvel in action for declaration that notices issued by the heirs of comic book artist Jack Kirby seeking to terminate Marvel's copyright interests in numerous comic book characters appearing in Marvel comics were invalid on the ground that all of the characters at issue had been created as works made for hire not subject to termination rights created under the Copyright Act of 1976.
Kimble v. Marvel Enterprises, Inc., 692 F. Supp.2d 1156 (D. Ariz. 2010)
Obtained declaration that royalty obligation under agreement conveying patent and non-patent rights terminated upon expiration of patent.
Abadin v. Marvel Entertainment, Inc., 08-cv-715 (S.D.N.Y. Mar. 31, 2010)
Secured dismissal of a lawsuit against Marvel seeking more than $750 million in damages and other relief. The would-be derivative plaintiffs in that action claimed that Stan Lee signed over to Stan Lee Media, Inc., a now defunct company with which Mr. Lee is no longer affiliated, rights to iconic comic book characters Lee created or co-created while employed by Marvel, including Spider-Man, Ironman and The Incredible Hulk.