‘Tonight Show’s’ Jimmy Fallon Files to Be Removed From Subpoena in Bored Apes Trademark Case
Fallon’s lawyer called the subpoena an “unwarranted fishing expedition for irrelevant material.”
Lawyers for “The Tonight Show” host Jimmy Fallon filed a motion to quash a subpoena from conceptual artist Ryder Ripps on Monday, calling the move an “unwarranted fishing expedition for irrelevant material.”
Fallon is a non-party to Yuga Labs’ lawsuit against Ripps and Ripps' business partner, Jeremy Cahen. In June 2022, Yuga Labs sued the duo for trademark infringement, false advertising and unfair competition connected to the pair’s creation of a knockoff NFT collection mimicking Yuga’s popular Bored Ape Yacht Club non-fungible tokens.
Ripps and Cahen have posited that their collection was satirical art and thus protected from trademark-infringement claims – though the New York judge overseeing the case disagreed, calling their work “no more artistic than the sale of a counterfeit handbag.”
Though Fallon isn't a named party in the suit between the two men and Yuga Labs, he is a co-defendant in a parallel class-action suit filed in California against Yuga Labs and a host of celebrity promoters, claiming that the Bored Apes were “misleadingly promoted” and resulted in financial damage to the defendants.
Similarly, Ripps and Cohen’s defense in their separate suit rests on an assertion of Yuga Labs’ “unclean hands,” alleging that the company engaged in “various unlawful activities associated with the sale and promotion of BAYC NFTs including Yuga’s misuse of BAYC NFTs as securities, undisclosed compensation for endorsements from celebrities, and/or unlawful acts directed towards the defendants.”
Fallon has been requested to turn over documents relating to “Yuga’s cooperation with third parties aimed at popularizing BAYC NFTs” and “any agreements … in which a BAYC NFT is given, exchanged, or sold to a celebrity, influencer or any other public person.” Fallon mentioned his own Bored Ape on two episodes of "The Tonight Show."
Fallon’s lawyer, Dana Seshens, argued that the motion should be denied because it places an undue burden on Fallon, and the same documents and information have already been sought from Yuga Labs and its alleged agent, Hollywood talent agent Guy Oseary, who was accused in the class-action lawsuit of being the broker between celebrities and Yuga Labs.
Seshens also argued that the subpoena was procedurally improper, because it was signed by Ripps and Cahen’s lawyer, who “apparently is neither admitted to practice law in New York, Vermont or Connecticut, nor admitted to the bar of the Southern District of New York.”
“Courts in this district and elsewhere have recognized that this defect alone renders a subpoena fatally deficient on its face,” Seshens concluded.
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