Anna Vitale/Portfolio

Proving Ground

2011-04-07T07:59:00.000-07:00

Teenage attorneys, polished witnesses and real-life judges and lawyers star in Missouri’s high school mock trial season, now in full swing. Mock trial is a sport like no other, and opposing counsel’s opening statement means one thing: Game on.

The courthouse has been taken over.

By teenagers.

No, that’s not the tagline for a new episode of “Law & Order.” It’s the reality for courthouses across the state during high school mock trial season.

And while there are some clues that these aren’t your typical trials (Exhibit A: Flawless Justin Bieber hair), many of these kids are good enough to have you fooled.

The Bar Association of Metropolitan St. Louis sponsors the Missouri High School Mock Trial Competition each year. Volunteers craft a case, and BAMSL sets up more than 100 additional volunteers from the legal community to coach, judge and evaluate a series of matches culminating in the state championship. For many participants, it’s early grooming for future legal careers.

Over the past few months, teams have assigned roles, strategized and rehearsed, rehearsed, rehearsed as they worked through early rounds. St. Louis-area teams tend to dominate. If you win regionals in St. Louis this week, chances are you’ll take state later this month.

This year’s case, in short: Eighteen-year-old Brock Suzik is in it up-to-here after being charged with leaving the scene of an accident and second-degree murder for the death of a private-practice lawyer’s unborn child.

The student attorneys bring individual style when approaching Suzik’s predicament.

There’s the quietly determined:

“Permission to approach the bench?” says Cor Jesu Academy attorney Patricia Begari during a round one match against Mary Institute and St. Louis Country Day School.

And the no-nonsense:

“I just need a yes or no,” says Carnahan High School of the Future prosecuting attorney Deja Patrick on cross-exam. “Your honor, please instruct the witness to just answer my question.”

The prosecution’s first witness, a medical doctor, is a slight, soft-spoken girl with long, dishwater blond hair. Or a boy with an affected Russian accent and long, dark hair tied back in a ponytail, depending on which courtroom you’re in.

Coaches help students massage their strategies and grasp nitty-gritty legal points.

St. Louis County Circuit Judge David Lee Vincent III coaches teams from Normandy High and Marquette High School and is as likely to tell students they need a good haircut as a good cross-exam. He spent about four days this year putting together his teams’ not-so-secret weapon: a 41-page, color-coded playbook including “The Evidentiary INs and OUTs.” Red is for defense. Blue is for the plaintiff. The “INs and OUTs” cover how to object and respond to objections during competition. Other teams know about the playbook, and sometimes they ask to see it. They get a modified version.

Josh Jones, a lawyer in the 8th Circuit Court of Appeals, is the attorney coach for his mock trial alma mater, Kirkwood High School.

“A coach I had, he would make us memorize, via flashcard, the rules of evidence,” Jones says. “Once I got to evidence in law school, it really helped.”

If you’re skeptical about high school students’ enthusiasm for memorization and otherwise hard mental work after school hours, just ask the kids.

“I love this,” says Emily Gieszelmann, a freshman at Villa Duchesne and a student defense lawyer. “Cross-exam is the hardest and the most fun. I’m good at arguing, ask my dad.”

“I heard she was doing this, and I said, ‘Oh, that’s perfect,’” says her dad, Jim Gieszelmann, flashing an OK sign.

Gieszelmann also competes on the speech and debate team, performs with the show choir and manages the school’s basketball team. Oh, and she’s doing the academic decathlon.

“Not all of us are athletes, but some of us have a very competitive spirit, so it was a way to fulfill that competitive spirit,” says Christina Grove, a high school mock trial veteran who now coordinates the competition for BAMSL.

Despite the fervor, matches are generally won or lost under the larger high school radar. No participants interviewed for this story reported getting slushies to the face, à la “Glee,” but mock trial success doesn’t exactly crown them kings and queens of campus.

“I’d never heard of it,” says Susan Good, an English teacher at Mary Institute and Country Day School. A student asked Good to come to a match eight years ago. Now she’s a roadie who brings “baked treats” to competitions and whispers things like, “Objection, narration,” under her breath during cross-examinations.

“Once you’ve done this long enough, you realize you’ve become one of those people,” Jones, the Kirkwood attorney coach, says.

The rewards, while intangible, aren’t indescribable.

“I’ve gained skills as a public speaker, because you have to talk in front of the jurors that are lawyers,” says Sam Wolter, a Kirkwood student attorney who’s been in mock trial for three years. “I’ve gotten a little more assertive. My parents say it just makes me more argumentative. I always was, but now it’s more like, ‘Show me the proof.’”

Amy's Hail Mary

2011-01-18T12:33:00.000-08:00

The story begins on a fall day at lunchtime. An undergrad, Amy Lorenz, is in Webster University’s cafeteria, and a woman whose name we don’t know is working the line for chicken strips.

Like many undergrads, Amy’s life is just coming into focus. She was an opera major but has switched to political science, because she thinks she wants to be a lawyer. She’s not particularly sure why.

Amy comes from a Sicilian family where opinions rain down loud and plentiful. When she was a baby, she cried at bedtime, banged her head against the crib or held her breath until her mom came and picked her up. When she was in the seventh grade, she led a student walkout to protest a middle-school injustice suffered by one of her friends.

There’s another person in the beginning of this story. A man. Like the woman, we don’t know his name. He has just come into the cafeteria, and he is angry.

Yelling, he hits at the woman working the chicken-strips line.

And because Amy’s the type of person to take action, either by holding her breath or leading a walkout, she calls the police.

When the police come, Amy offers to be a witness. But the woman doesn’t want a witness. She is terrified. She begs the police to let the man go. She knows a witness, the arrest, all of it, will make things worse for her.

“The situation was so complex that you could never really understand it,” Amy says, remembering that day in the mid-1990s.

One thing was clear: Amy knew exactly why she was going to law school.

We’re still in the 1990s, the summer of 1997, and a man named Joe Church is searching for an old classmate at his Mercy High School reunion in St. Louis. He asks a friend where she is.

Prison. For killing her husband.

Now, Joe is a financial planner for Merrill Lynch and not your run-of-the-mill activist. But he’s always had a soft spot for women, especially his mom, mother-in-law and three sisters.

“I’ve always had a hard time imagining how somebody goes home and gets beat up,” he says. “And beaten by someone you know you’re not going to overpower.”

He asks for the name of the prison. Then he calls.

While Amy is in the cafeteria and Joe is searching for his high school classmate, two women, Carlene Borden and Vicky Williams, are sitting in prison in Vanda-lia.

They’ve been here a long time, most of their adult lives.

Carlene and Vicky have this in common: They’ve both been convicted of killing their husbands.

They don’t know it yet, but they also have this in common: Amy.

At the end of their stories, there will be Christmas and birds and interviews and suits. Carlene will say Amy is her angel and her best friend. Vicky will say Amy gave her back her life. They’ll both say they’re glad Amy was on their side and not the other. But that’s all a ways off.

Back to Amy. Because as much as this story is about women, and domestic violence and redemption, it’s mainly about her. Today, she lives in Des Peres, a west St. Louis County suburb perhaps best known for its mall with a giant, illuminated white dove that drivers can see from Highway 270.

Amy now has another last name — Moser — and two girls, 4 and 1. The older one goes to preschool, where she’s learning to dance. The younger one emulates the dance moves, twirling and twirling around and around like a toddler prima donna until she falls down. The little girls’ names are Olivia and Siena, and Dad stays home with them during the day.

“There’s so much pink in this house,” he says, “it’s unbelievable.”

Dad’s name is Michael — Mike. He never imagined he’d stay home raising kids, but then his friends always have said, “Mike, you like things just a little bit dif-ferent.” He left his full-time advertising job in 2006, before the economy tanked. It wasn’t so much prescience as a decision for himself and the family. He was ready to step out of the rat race. He loves the girls. He loves Amy.

They met at a bonfire in Columbia when she was in law school at the University of Missouri and he was working in the St. Louis ad business. She was pretty and bright, and Mike knew he would never be bored with her. They honeymooned in Italy. It was the best trip of his life.

More family: Both of Amy’s parents are musicians and entrepreneurs. No one in the family was a lawyer when Amy decided on law school and her brother fol-lowed suit.

“Of course I should have known that,” says Amy’s mom, Phyllis. “They argued very tactfully throughout their childhood with me and with each other.”

Amy’s parents taught Amy that corporations aren’t faceless. And today, Amy is a big-shot product liability attorney for Armstrong Teasdale.

When she comes home at night, the girls rock the house with “Mommy!!!” and Amy feels like a hero.

Back before the bonfire and honeymoon and pink spilling out all over, Amy, who never forgot the woman whose name we don’t know, found Professor Mary Beck. Professor Beck is soft-spoken and extraordinarily articulate, with kind eyes and bobbed, dusty blond hair. She is a registered nurse and a lawyer, and her life’s work is the Family Violence Clinic at the University of Missouri School of Law.

Amy came to MU because of the clinic. She met Professor Beck after Joe Church made his phone call. Actually, after he made many, many phone calls, 15 mi-nutes here, 20 minutes there, for months. The phone calls led to conversations that culminated in a project called the Missouri Battered Women’s Clemency Coali-tion, made up of individuals from the state’s four law schools.

Like the hardest goals tend to be, the coalition’s was simple: Obtain clemency for 11 women imprisoned in Missouri for killing their husbands. The women had been identified as victims of domestic abuse, but that wasn’t a defense at the time of their trials.

Such abuse looks like this: A toe, broken open by pliers. Whip marks from a belt. Two identical black eyes. Sexual torture. A threat to kill a mother, a child, a dog.

All of the women on the list had been convicted and sentenced to life, without the possibility of parole. Their cases were, all of them, Hail Mary shots.

“There is absolutely no blueprint to write a clemency petition,” Professor Beck says. Each petition is different, because every case is different, and the statute governing petitions does not set out a format for them.

But then, who better to take a Hail Mary shot than bright-eyed law students? Students such as Amy, who now says, “I never let my need to know something about the law slow me down.”

And so the cases were divvied up, and the students — none of whom had any idea how hard all this would be — got to work.

The steps to getting a battered woman who killed her husband out of prison might begin something like this. At least, this is how they began for Amy:

First, write a 150-page clemency petition to Gov. Mel Carnahan, who will die in a plane crash weeks after it hits his desk. Second, wait four years for it to be-come politically advantageous for another governor to consider clemency. Third, wait again, this time as the woman’s case runs up the state’s court system. Eventually, Lynda Branch gets a 2007 parole date, after the Missouri Supreme Court mandates a new hearing from the Missouri Board of Probation and Parole and says the board cannot consider the seriousness of Branch’s offense in its decision.

In the meantime, Missouri Revised Statute 217.692 churns its way through the legislative process.

A word on the statute: Amy didn’t write it. She’d want you to know that. Other coalition members did. What the statute did when it finally passed in 2007 is basi-cally this: Give individuals who have no prior felony convictions, who were tried for spousal homicide before December 1990 and who are serving 50-year or life sentences the eligibility of parole.

There are more than 600 words in the statute. But it meant just one for Carlene Borden and Vicky Williams, still sitting in Vandalia: hope.

Well, maybe not at first. Hope is a tricky thing in prison.

“Do I really want to talk to them?” Vicky asks her caseworker when she first learns the coalition is taking her case. “Because I don’t know what game this is trying to be.”

Amy put in about 250 hours of pro bono work in 2009 on the two women’s cases and another 250 in 2010. Overall, she has put in more than 1,000 hours, easy, carrying the women and their cases from law firm to law firm, telling each new employer about “this little thing that I do on the side.” Everyone has been under-standing, but Armstrong Teasdale has been “wonderful.”

Besides the common thread of thinking in terms of defense, few similarities exist between Amy’s pro bono and product liability work. But she has never done one without the other. One is good work that pays the bills, and the other “is something you do because you absolutely love it.”

This is love: More than 1,000 pro bono hours, two writs of mandamus, six parole hearings.

After the first hearings, the board issues identical two-sentence denials. Amy sues the board and goes to court a few weeks after delivering her second daughter via C-section, because when somebody’s waiting in prison, you don’t move the court date. Mike brings the girls, so Amy can breastfeed before and after in the car.

When they arrive, Lynda, for whom Amy wrote the clemency petition, is unexpectedly there for support — and proof of what is possible.

The judge “gets it” and vacates the board’s decision, determining the board hadn’t included enough information in its denials to even address whether or not it could deny the women’s paroles.

One year and two more parole hearings later, the board delivers more elaborate denials.

Carlene and Vicky ask Amy to call their children. Amy thinks of the room Vicky’s daughter has already readied for her return. She calls, and it is the hardest thing she has ever done.

Amy fears the women will die in prison. She keeps the thought to herself.

“You’re never going to win unless you put that out of your mind and charge.”

Amy can’t find another case besides Lynda’s that has thrown out a parole board’s decision, and she doesn’t know if she will win. That’s the thing about a Hail Mary shot. You don’t take it because you know. You take it because there’s no other way.

And so Amy sues the board again.

In the order she writes, which is entered by Judge Patricia Joyce, she calls on R.S.Mo. 217.692. She says the parole board must only determine whether there is a “strong and reasonable probability” that the women will offend after being released.

“Reconsideration of the seriousness of the offense by the Parole Board would vitiate the basis of the statute and obstruct the legislative purpose of the statute.”

She calls on the five or six ways the board had violated the previous one- or two-page court order.

She calls on the case of Lynda Branch and another coalition woman, Shirley Lute, paroled in 2007 at age 76.

She promises herself that she and Carlene and Vicky are “just going to come back” if the board again denies parole.

When the board issues its third decision, Professor Beck calls Amy on her way to work. She heard it from somebody who heard it from somebody who heard it from one of the women’s kids.

Because this time, the women called their children themselves. Carlene is 66 years old. Vicky is 55. Each has been in prison more than 30 years, and they’re coming home. On a warm October day in 2010, they do.

A story ends in Armstrong Teasdale’s offices in the Centene Building in Clayton. A conference room full of light. A view. Amy in pearls, Vicky in a suit, her daughter and Professor Beck and her kind eyes in the conference room, in the light. Talking, laughing.

A story also ends in Houston, Mo., down deep in Missouri’s beautiful Ozark country. On Christmas, Carlene’s first at home in 32 years, there is snow on the ground, and she sits and watches the cardinals.

“It was beautiful,” she says. “It was like a picture.”

Ultimately, all the coalition’s women, including Joe Church’s classmate, Shelley Hendrickson, will be released or obtain a release date.

In a letter nominating Amy Lorenz-Moser for a Missouri Lawyers Weekly award commemorating her work, he will write that she and the coalition “have changed the landscape nationwide for the defense of battered women and the clemency efforts on their behalf.”

But a changed legal landscape doesn’t mean Amy’s story is over. In what comes as a surprise to no one, she has taken a new case.

She and Professor Beck will tell you the cases are a result of societal issues that haven’t changed much over the last 30 years: A tendency to blame the victim, an attitude that domestic violence is a personal — not a societal — problem in a society where 1 in 4 women will experience domestic violence.

Laws like R.S.Mo. 217.692 have helped. Acknowledgment of battered spouse syndrome has helped. But at the end of the day, every day, women whose names we don’t know face situations that are impossible for anyone to understand. Situations simultaneously personal and societal, breaking and breakable.

And at the center, if they are lucky, they find an angel.

South Butt to World: Be a Butty

2010-12-08T11:10:00.000-08:00

The settlement between South Butt and the North Face has been kept hush-hush, but apparently it's not holding back Jimmy Winkelmann and his gear, as evidenced by this press release from Al Watkins (Winkelmann's super media-friendly attorney):

SOUTH BUTT MAKES PLEA FOR SOUTH BUTT BUTTYS

Parody apparel manufacturer, The South Butt, LLC, has announced a global search for South Butt Buttys to assist in its distribution of donated gear to the internationally acclaimed St. Louis Children’s Hospital.

The donation, scheduled to be made on December 20, 2010, will feature Little Jimmy Winkelmann, the founder of The South Butt, LLC, riding his bicycle to the hospital. Jimmy’s driving has been curtailed by his father due to Jimmy’s failure to observe speed limits.

Three South Butt Buttys are being sought to exude South Butt spirit and commitment to the company tag line, “Never Stop Relaxing.” Applications are being taken on the company’s website.

“The South Butt Buttys will be awarded South Butt gear, enough money for a free pizza, and the memory of a lifetime,” said Albert S. Watkins, legal counsel for The South Butt, LLC. “It is not often one is called upon to assemble a team of buttys designed to exude relaxation, but I am looking forward to the loosely established protocol,” concluded Watkins, the final arbiter of the selection process.

Applicants interested in pursuing this career building opportunity are instructed to make application at the South Butt website, www.thesouthbutt.com.

Whistle-blower in the produce aisle

2010-11-30T09:17:00.000-08:00

Former Whole Foods employee claims mold, conventional produce contaminated organic offerings

By: Anna Vitale
Published: November 9, 2010, Missouri Lawyers Media

A former employee is making some unappetizing allegations about a Whole Foods store in a lawsuit over her firing.

Elisha Wellman sued the Brentwood store manager and the company for allegedly firing her after she complained that the store’s organic produce was contaminated with mold and wasn’t actually organic.

In the lawsuit, filed in St. Louis County Circuit Court Nov. 5, Wellman claims she worked at the Brentwood store from December 2001 to August 2010. Before she was fired, she complained verbally and through e-mail to her direct and regional supervisors about the handling and labeling of produce, she said in the lawsuit.

“Over the last two years,” wrote Wellman in an August 2010 letter sent to Whole Foods’ CEO John Mackey and attached to the lawsuit, “I have personally observed multiple violations of the organic integrity standards in our store. These violations include failing to properly prepare organic produce for sale to our customers, mixing conventional produce and organic produce, selling conventional as organic and most recently, allowing produce to be sold as organic when it has been exposed to mold discovered in our store.”

She alleges that two weeks after she sent the letter, she was fired.

“She’s a protected whistle-blower who lost her job,” said Wellman’s attorney, Gary A. Growe, of Growe Eisen Karlen in Clayton.

Whole Foods spokeswoman Kate Klotz declined to comment on the litigation.

“Unfortunately, we are not able to discuss this matter publicly, given the nature of the situation,” Klotz said in an e-mail.

The case is Elisha Wellman v. Whole Foods Market Group, Inc., et al., 10SL-CC04485.

The boxing judge

2010-11-10T09:45:00.000-08:00

In the ring, Larry Permuter isn’t a judge and he isn’t 63 years old and his wife isn’t sick. In the ring, Permuter is just a student of the sweet science who’s learning some hard lessons.

In Round One, the punch to his face lands fast and hard.

Larry Permuter stumbles backward in the ring, then falls on his side, his nose bloodied. On a white towel, his trainer presses out six, seven, eight meat-red stains. There’s no shame in calling it a day.

But the 63-year-old associate circuit judge says he’s good for more. So he and his 16-year-old opponent, Tommy Daniels, square off again.

Permuter’s day job is handling criminal misdemeanors in St. Louis County. Four years ago, he saw a flier for Sweat, a boxing gym in Clayton. He didn’t know boxing was the sport for him. He just knew he was sick of the treadmill.

But now, Permuter boxes because boxing gets results the treadmill can’t. Because when he’s boxing, there’s no stress — the everyday stress, he says, and the stress of his wife, Darlene, being sick.

She has multiple sclerosis. When things get bad, he thinks, “I gotta get to that gym and start hitting the bag.” When things get worse, he hits harder.

When Permuter told Darlene he was going to start working out at a boxing gym, she said OK. When he told her he was going to get in the ring, she was afraid.

“But I tell her, ‘Don’t worry about it. I know how to protect myself.’”

They’ve been married 29 years. He dedicates every match to her.

Permuter fights because he’s serious about getting better, and you don’t get better unless you fight — and take hits. He shows up at the courthouse with marks: a black eye, maybe, or a bruised nose. He tells the truth: He was boxing.

“Some people will say, ‘Yeah, the guy is crazy,’” Permuter says. “Other people will say, ‘Hey, if he can do it at his age, maybe I can do it.’”

So far, not one of the other judges has taken him up on his offers to try out a group class at Sweat.

“I guess most of them are happy with a half-hour on the elliptical while reading the paper.”

After the match, his trainer, Jose Ponce, tells the judge the kid taught him a lesson. Permuter needs to work on his balance, keep up his sagging arms and tighten his punches.

That’s what Ponce says, but this is what Permuter hears: “I have to train harder.”

Daniels is an aspiring pro, and it’s Permuter’s “absolute goal” to beat him. He says that the day of the match, the last Saturday in October. A few days later, he’s more measured.

“I want to be able to go three rounds with Tommy,” he says, “and not necessarily win, because I don’t think I can win, but to lose without getting hurt and lose on points only.

“I’m gonna keep fighting until I improve. If I get hurt bad enough, I’ll hit the bag.”

Published Nov. 8, 2010

Ritz on the fritz and my interview with Charlie Brennan

2010-10-06T11:22:00.000-07:00

Local hit radio personality Charlie Brennan interviewed me on his morning news show today.

Topic was the Ritz-Carlton Hotel Co.'s lawsuit against the owners of the local Ritz-Carlton. The St. Louis Countian (part of Missouri Lawyers Media) broke the story.

Here's the link to the tape of our interview:

http://kmox.cbslocal.com/shows/charlie-brennan/

And here's the text of the original story:

Ritz isn’t rich enough

Clayton hotel owners sued by chain manager

Published: October 5, 2010

By Anna Vitale

anna.vitale@molawyersmedia.com

How rich should a Ritz-Carlton be?

A lawsuit filed last week in St. Louis County Circuit Court answers the question for at least one of the high-end hotels: The Ritz-Carlton, St. Louis should make at least $4 million in profits a year.

That figure pops up in the lawsuit filed by the hotel operators, Ritz-Carlton Hotel Co. The company, which manages Ritz-Carlton hotels, alleges the owner of the location in Carondelet Plaza is trying to cancel the hotel’s 65-year operating agreement 43 years early because of underperformance.

The hotel has failed to meet its contract’s minimum profit levels from fiscal year 2008 on, according to the lawsuit.

Under the contract, the hotel property’s owner, HEF 1-STL No. 1, can cancel the Ritz’s operating agreement if profits fall below $4 million each fiscal year for two consecutive years — unless Ritz pays the difference for the second year.

HEF 1-STL No. 1 is an affiliate of Maritz, Wolff & Co. of Clayton.

After coming up short in 2008 and 2009, the Ritz paid more than $2 million to cover 2009, avoid cancellation of the contract and “reset” the clock on future cancellation actions, the lawsuit says.

Now, the Ritz claims the Maritz, Wolff affiliate is again threatening to boot it from the operating agreement. HEF has told the Ritz that it expects the hotel to underperform again in fiscal year 2010, the Ritz claims, and that HEF plans to seek “another, multi-million dollar deficiency payment” for the 2009 and 2010 fiscal years. The Ritz claims that such a payment would be “duplicative,” however, and is asking the court to concur.

The Ritz is also asking the court to put a hold on HEF’s alleged efforts to cancel the operating agreement.

“Such a termination would eliminate the Ritz-Carlton luxury hospitality brand in the St. Louis market and would cause Ritz-Carlton to suffer the significant loss of goodwill it has established and built in this market over the past two decades,” the lawsuit says.

Lew Wolff, co-founder of Maritz, Wolff, wasn’t aware that a lawsuit had been filed, but said St. Louisans shouldn’t worry that the Ritz could be leaving town.

“I have a feeling it will be worked out between the parties,” he said.

Wolff said he was aware of the underlying dispute.

“They have one interpretation and we have another,” Wolff said of the operating agreement.

The Ritz is represented by J. Thomas Archer, of Gallop, Johnson & Neuman in St. Louis. Archer referred a reporter to the company’s public relations department. A spokeswoman for the Ritz declined to comment on pending litigation.

The Ritz claims it has already tried to arbitrate with HEF and that it has suggested escrowing the amount of the disputed deficiency payment until the companies work things out. HEF has refused, the suit claims, so the Ritz is also asking for a court order allowing it to escrow the funds.

Maritz, Wolff & Co. boasts $1.5 billion in asset value, according to its website. The Ritz-Carlton, St. Louis, was the first hotel bought by the company, and the hotel’s revenues and operating profits increased 14 percent and 127 percent, respectively, after the 1994 acquisition, according to the website.

The case is The Ritz-Carlton Hotel Company, LLC v. HEF 1-STL No. 1, LLC, 10SL-CC03976.

Lawyers' home bombed

2010-10-01T14:50:00.000-07:00

Bombs damage home of law partners

Published: October 1, 2010

By Anna Vitale and Donna Walter

anna.vitale@molawyersmedia.com

donna.walter@molawyersmedia.com

Two pipe bombs exploded at the home of a leader of a tragedy-plagued Clayton law firm early this morning, the St. Louis Metropolitan Police Department confirmed.

No one was hurt in the bombings at the St. Louis home of Beth Boggs and T. Darin Boggs, both of Boggs, Avellino, Lach & Boggs. Beth Boggs heads up the 26-lawyer firm.

The home’s windows were broken and vinyl siding was damaged.

Three lawyers from the firm have died since December 2006, when partner Ernest “Ernie” Brasier was fatally shot in the firm’s office. His death remains unsolved. Clayton Police Chief Thomas J. Byrne said Friday that the case is still an open investigation.

In fall 2007, Dan Bennett died suddenly, as did Vincent Venker, 51, in August 2008. Both men’s deaths were ruled to be from hypertensive heart disease, according a lawyer who knew them.

As of this afternoon, investigators said they are not aware of any threatening messages sent to the Boggses, police spokeswoman Erica S. Van Ross said in an e-mail.

Police added that they have no information at this time about who may have placed the pipe bombs at the house. A joint investigation is being conducted by the Police Department’s Bomb & Arson Squad and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, Van Ross said.

Police received multiple calls around 1:07 a.m. Friday describing loud gunshots, fireworks or explosions, she said.

Both pipe bombs were found behind the house, one on the driveway and the other on or near the patio, she said.

This afternoon, no one answered the home telephone, and a receptionist at the law firm said neither Beth Boggs nor Darin Boggs was in the office.

When a reporter and a photographer visited the home just south of Carondelet Park, no one answered the doorbell, and no crime tape was up.

At the back of the house, a concrete patio area and nearby grass were charred; vinyl siding was curled and charred in places from the ground to the roof of the two-story house. Garden hoses, a barbecue grill and a shovel were among items on the patio. One back window’s screen was busted out in a bottom corner and the frame appeared bent. The window glass was cracked.

An across-the-street neighbor, Rania Ghanim, was awake at the time of the explosion, she said. She heard one loud sound – like a gunshot – around 1 a.m. and then another loud sound shortly after, she said.

Afterward, she went outside and spoke to the woman who lives across the street, who asked her if she had seen anything (she hadn’t). She wasn’t positive of the name of the woman, but she said that woman said the explosion was probably gas.

But Ghanim’s brother-in-law, who is an Iraqi-born translator for the U.S. Army, was visiting, she said, and he didn’t think it sounded like a gas explosion.

“Because maybe they don’t want to scare us,” she said about the woman across the street’s explanation of the sounds.

We scooped it!

2010-09-22T09:02:00.000-07:00

Flips flopped: Foreclosures, unpaid taxes and bank suits confront major property investor

This story was picked up and covered by KSDK, the St. Louis Post-Dispatch and the St. Louis Business Journal in the weeks after Missouri Lawyers Weekly broke it. Will never forget the hours I spent digging through court filings at St. Louis County Courthouse, discovering bank lawsuit after bank lawsuit against Bellington and its affiliates and then having Mike Litz (the company's president) call me the hour of deadline and try to essentially "cut a deal" to get me not to run the story.

Text of Fox News suit against Carnahan Campaign

2010-09-20T14:45:00.000-07:00

CC 2298917v1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
________________________________________________
)
FOX NEWS NETWORK, LLC and )
CHRISTOPHER WALLACE, )
)
) Case No. _______
)
Plaintiffs, )
)
v. ) COMPLAINT
)
ROBIN CARNAHAN FOR SENATE, INC. ) JURY TRIAL DEMANDED
)
Defendant. )
________________________________________________)
Plaintiffs Fox News Network, LLC (“FNC”) and Christopher Wallace (“Wallace”)
(together, “Plaintiffs”), by their attorneys, Lathrop & Gage LLP, for their Complaint herein
allege as follows:
Parties, Jurisdiction, and Venue
1. In a smear ad against political rival Roy Blunt, Defendant Robin Carnahan for Senate,
Inc. usurped proprietary footage from the Fox News Network to made it appear – falsely – that
FNC and Christopher Wallace, one of the nation’s most respected political journalists, are
endorsing Robin Carnahan’s campaign for United States Senate. In so doing, Defendant
infringed FNC’s valuable and proprietary creative expression and used Wallace’s image and
persona for monetary gain without his permission. This action is brought against Defendant for
copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq.; for invasion of
privacy by misappropriation of likeness in violation of Missouri’s common law; and for invasion
of the right of publicity by misappropriation of identity or persona in violation of Missouri’s
common law.

2. Plaintiff FNC is a limited liability company organized and existing under the laws
of the State of Delaware with its principal place of business in New York, New York. FNC’s
sole member is a corporation organized and existing under the laws of the State of Delaware with
its principal place of business in New York, New York.

3. Plaintiff Wallace is a natural adult person who is a citizen of the District of
Columbia.

4. Upon information and belief, Defendant is a mutual benefit corporation that
operates as the campaign committee of a candidate for United States Senate, with its last known
principal place of business located in St. Louis, Missouri.

5. This Court has original jurisdiction over the claims in this action pursuant to 28
U.S.C. §§ 1331, 1332, and 1338 and 17 U.S.C. §§ 501 et seq. The jurisdictional minimum of 28
U.S.C. § 1332(a) is met because Wallace seeks in excess of $75,000 in damages.

6. This Court has personal jurisdiction over Defendant pursuant to the principles of
specific and general jurisdiction, based upon Defendant’s contacts with the State of Missouri as
well as the connection between certain of Defendant’s contacts with the State of Missouri and
the acts giving rise to the causes of action alleged in this Complaint.

7. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(a), 1391(b), and
1400(a), because a substantial part of the events or omissions giving rise to the claims occurred
in this District, and because the Defendant is subject to personal jurisdiction and may be found
in this District.

Facts
8. FNC is a news organization and the owner and operator of the Fox News Channel,
the country’s number one 24-hour cable and satellite television news network. FNC is and, at all
times relevant to the matters alleged in this complaint, was engaged in the business of news
production and dissemination.

9. Wallace is a nationally-known, award-winning, and highly respected television
news journalist who has hosted the Sunday-morning public affairs program, “FOX News Sunday
with Chris Wallace” (“FNS”) since 2003. As host of FNS, Wallace has secured interviews with
major government figures, including Bill Clinton, George H.W. Bush, Dick Cheney,
Condoleezza Rice, Hillary Clinton, Colin Powell, John Kerry, Howard Dean, Richard Gephardt,
Joseph Lieberman, John Edwards, Nancy Pelosi, President of Mexico Vicente Fox, Bill Frist,
Joseph Biden, California Governor Arnold Schwarzenegger, Dianne Feinstein, and John McCain.
Wallace is well known for his coverage of political news, including regional and national
elections. He has reported live from major election events, including Election Night, the
presidential debates, the Democratic and Republican conventions, the New Hampshire Primary,
and the Iowa Caucuses. Before joining FNC, Wallace served as a senior correspondent for
ABC’s “Primetime Thursday” and as a substitute host for “Nightline.” He has also worked for
NBC News, where he served as the chief White House correspondent and anchored “Meet the
Press” and the Sunday edition of “NBC Nightly News.” Wallace has won every major broadcast
news award for his reporting, including three Emmy Awards, the Dupont-Columbia Silver Baton,
and the Peabody Award.

10. On January 15, 2006, FNS featured an interview by Wallace of Roy Blunt, then a
Member of the United States House of Representatives from Missouri who was vying for the
position of House Majority Leader (the “FNS Interview”). An application for the United States
copyright registration for the FNS Interview is on file with the United States Copyright Office
under Case No. 1-487233081.

11. The FNS Interview, which features Wallace’s likeness and persona, unique vocal
commentary and reporting by Wallace, a graphic display of facts that Wallace used to question
Blunt about whether he was the best candidate for House Majority Leader (the “Graphics”), and
the selection of distinctive and stylized camera angles, is a creative expression of news events
that was the product of editorial discretion and substantial journalistic skills, resources, and
creative energies.

12. FNC has always been and continues to be the sole owner and proprietor of all
rights, titles, and interests in the copyrights in the FNS Interview. The copyright in the FNS
Interview is presently valid and subsisting and was valid and subsisting at all times affecting the
matters complained of herein.

13. Upon information and belief, in or about September 2010, Defendant began
disseminating on the Internet and on television an advertisement entitled “Clean up the house”
(the “Carnahan Ad”) that infringes FNC’s copyright in the FNS Interview by reproducing an
essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary
appropriated from the FNS Interview.

14. The infringing advertisement, which runs for a total of 32 seconds, begins with
Robin Carnahan’s imprimatur, “I’m Robin Carnahan, and I approve this message” and the
prominent display of the address for Defendant’s website. The Carnahan Ad then displays video
footage from the FNS Interview, which features Wallace’s image and persona and displays the
legend “FOX News 1/15/06,” followed by several seconds of voice-over commentary by
Wallace taken from the FNS Interview. The Carnahan Ad misappropriates the entirety of the
special Graphics that FNC had developed for the FNS Interview.

15. Defendant reproduced Wallace’s distinctive vocal performance and news
reporting and FNC’s editorial selection of graphic images and stylized camera angles. In so
doing, Defendant violated FNC’s right to the exclusive use of its creative products in
contravention of its copyright in the FNS Interview. It also misappropriated Wallace’s likeness
and persona.

16. The Carnahan Ad has been disseminated on television and was also available for
anyone in the world to view on the Defendant’s website, robincarhahan.com, where the
misappropriated Graphics – including a copy of the Fox News logo – were prominently
displayed as the focal point of the website’s home page. Immediately to the right of the link to
the Carnahan Ad, visitors were asked to “DONATE TODAY” to Defendant. At the bottom of
the page featuring the link to the Carnahan Ad, visitors were further propositioned to “BUY
NOW” bumper stickers and t-shirts from the “TEAM ROBIN STORE” available online. In so
doing, Defendant used the FNS Interview and Wallace’s likeness and persona with the intent to
acquire commercial gain.

17. Defendant’s verbatim reproduction of footage from the FNS Interview, without
consent, is a use that: (1) allows Defendant to profit commercially without paying the traditional
price; (2) causes substantial harm to the value of the FNS Interview, and (3) was based upon the
unique expressive content of the FNS Interview.

18. Defendant’s unauthorized use of the FNS Interview footage in its Carnahan Ad
also devalues the original work. FNC is a news organization that has not endorsed a candidate in
the 2010 Missouri senatorial race. The value of its news reporting is based in part upon the
public’s faith in the accuracy and integrity of those reports. By including the FNS Interview in
an advertisement endorsing a specific political candidate, Defendant harmed the value of the
original work by compromising its apparent objectivity.

19. Indeed, upon information and belief, it was FNC’s position as a news organization
and Wallace’s stellar reputation that motivated Defendant to infringe FNC’s copyrighted work.
Seeing the verbatim footage from the FNS Interview gives viewers of the Carnahan Ad the false
sense that the Carnahan Ad is credible and accurate. The Carnahan Ad is designed to make it
appear as if Wallace – a trusted journalist – is instead speaking as a campaign operative. The
defendant’s conduct in stealing only certain footage from the FNS Interview is also false and
misleading: Wallace’s tough questions were included, but Blunt’s answers and explanations
were not. The value, therefore, and the purpose of the Carnahan Ad’s use of the copyrighted
FNS Interview footage were based on FNC’s unique expressive news reporting.

20. Based on the aforementioned facts, FNC is informed and believes, and on that
basis alleges, that Defendant knowingly and willfully directly infringed FNC’s copyright in the
FNS Interview.

AS AND FOR A FIRST CAUSE OF ACTION BY FNC
(Copyright Infringement)

21. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 20 of this
Complaint as if fully set forth herein.

22. The FNS Interview is an original creative work that is copyrightable. FNC owns
all of the interests and rights in the FNS Interview. FNC has filed with United States Copyright
Office an application for copyright registration in the FNS Interview.

23. Defendant infringed FNC’s copyrights by using without permission clips and
voice-over commentary from the FNS Interview in the Carnahan Ad, which was disseminated
publicly via the Internet and on television in or about September 2010.

24. Defendant’s infringement is willful in nature; indeed, Defendant acknowledged in
the Carnahan Ad that the FNS Interview was owned by “FOX News.”

25. Defendant’s use of the FNS Interview footage without consent was commercial in
nature, and therefore was presumptively unfair.

26. Upon information and belief, Defendant intends to continue to disseminate the
offending Carnahan Ad in the future, thus continuing to infringe FNC’s copyright.

27. By reason of the foregoing act of copyright infringement and the likelihood of
continued copyright infringement by Defendant, FNC has sustained and will continue to sustain
substantial damages in an amount presently unknown but to be determined at trial.

28. Further, by reason of the Defendant’s infringement and threatened future
infringement, FNC has sustained and, if the Defendant’s acts are not enjoined, will continue to
sustain irreparable harm for which no adequate remedy at law exists.

AS AND FOR A SECOND CAUSE OF ACTION BY WALLACE
(Invasion of Right of Privacy/Misappropriation of Another’s Likeness)
29. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 28 of this
Complaint as if fully set forth herein.

30. Defendant used Wallace’s likeness in the Carnahan Ad on the Internet and on
television.

31. Defendant used Wallace’s likeness in the Carnahan Ad without his consent.

32. Defendant used Wallace’s likeness in the Carnahan Ad to obtain some benefit to
itself, including, but not limited to: bringing attention to Defendant’s business; creating the
impression that Wallace endorsed Defendant; and attracting visitors to donate to Defendant and
to purchase its goods.

33. Defendant used Wallace’s likeness in the Carnahan Ad for the purpose of
appropriating to Defendant’s benefit the commercial and other values associated with Wallace’s
likeness.

34. Wallace sustained injury as a result of Defendant’s misappropriation of his
likeness because Defendant’s acts, inter alia: deprived him of his interest in the exclusive use of
his own identity; intruded upon Wallace’s private self-esteem and dignity; and caused him
emotional or mental distress and suffering.

AS AND FOR A THIRD CAUSE OF ACTION BY WALLACE
(Invasion of Right of Publicity/Misappropriation of Identity or Persona)
35. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 34 of this
Complaint as if fully set forth herein.

36. Defendant used Wallace’s likeness in the Carnahan Ad on the Internet and on
television.

37. Defendant’s use of Wallace’s likeness in the Carnahan Ad was without Wallace’s
consent.

38. Defendant’s use of Wallace’s likeness in the Carnahan Ad used Wallace’s
likeness as a symbol of his identity and public persona as a well-respected journalist and an
objective and expert political commentator.

39. Defendant commercially exploited Wallace’s likeness in the Carnahan Ad by
using Wallace’s likeness for advertising purposes and for its own purposes and benefit.

40. Defendant intended to create an impression that Wallace is associated with
Defendant and that Wallace endorses Defendant by using Wallace’s likeness in the Carnahan Ad.

41. Defendant used Wallace’s likeness in the Carnahan Ad to attract attention to
Defendant’s efforts to raise funds for its own use and to Defendant’s products.

42. Defendant used Wallace’s likeness in the Carnahan Ad to raise funds and to sell
products on Defendant’s website.

43. Defendant used Wallace’s likeness in the Carnahan Ad, which was disseminated
on television and on the Internet, with the intent to obtain a commercial advantage.

44. Wallace sustained injury as a result of Defendant’s misappropriation of his
likeness because Defendant’s acts: deprived Wallace of his interest in personal dignity and
autonomy; secured for Defendant the commercial value of Wallace’s fame; used Wallace’s
likeness and persona in a harmful fashion that diluted the value of his public persona; deprived
Wallace of his work in creating a publicly recognizable persona; created the false impression that
Wallace was not an objective reporter but rather had endorsed Defendant; and resulted in
Defendant’s unjust pecuniary gain.

WHEREFORE, Plaintiffs respectfully pray that this Court grant Judgment to
Plaintiffs as to the above causes of action, as follows:
1. Adjudging and decreeing that Defendant has infringed the copyright in this suit; has
invaded Wallace’s right of privacy by misappropriating his likeness; and has invaded Wallace’s
right of publicity by misappropriating his identity or persona;

2. Immediately and permanently enjoining and restraining Defendant, its officers, agents,
servants, employees, and those in active concert or participation with them or any of them, from
any further copyright infringement of the FNS Interview and any further misappropriation of
Wallace’s likeness, identity, or persona; and

3. Immediately and permanently enjoining and restraining Defendant, its officers, agents,
servants, employees, and those in active concert or participation with them or any of them, from
airing, entering into agreements for the airing of, or otherwise promoting the dissemination of the
Carnahan Ad; and

4. Requiring Defendant to deliver up to Plaintiffs for destruction any and all goods in
their possession or under their control, including but not limited to master copies of the Carnahan
Ad, that infringe on FNC’s copyright and/or misappropriate Wallace’s likeness, identity, or
persona; and

5. Immediately and permanently enjoining and restraining Defendant from any future
unauthorized use of the FNS Interview and of Wallace’s likeness, identity, or persona; and

6. Awarding Plaintiffs damages, including without limitation statutory damages,
compensatory damages, and/or punitive damages for the infringement of FNC’s copyright and
for the misappropriation or Wallace’s likeness, identity, or persona, in an amount presently
unknown but to be determined at trial; and

7. Requiring Defendant to account to FNC for any and all profits derived by them
through activities which infringe FNC’s copyright; and

8. Requiring Defendant to disgorge any fees, profits, or money to Plaintiffs by which it
has been unjustly enriched; and

9. Granting Plaintiffs their costs and disbursements of this action, including reasonable
attorneys’ fees; and

10. Awarding Plaintiffs pre-judgment and post-judgment interest on each and every
damage award; and

11. Granting such other, further, or different relief as the Court deems just and proper.

Dated: Kansas City, Missouri
September 15, 2010
Respectfully submitted,
LATHROP & GAGE LLP
By:__/s/ Bernard J. Rhodes_______________
Bernard J. Rhodes (MO29844)
2345 Grand Boulevard, Suite 2800
Kansas City, Missouri 64108
Tel.: (816) 460-5508
Fac.: (816) 292-2001
E-mail: brhodes@lathropgage.com
Attorneys for Plaintiffs Fox News Network, LLC
and Christopher Wallace

Fox News sues Robin Carnahan Senate campaign

2010-09-16T17:46:00.000-07:00

Missouri Lawyers Media

Fox News sues Robin Carnahan Senate campaign

by Anna Vitale

Published: September 16th, 2010

An ad for Missouri Secretary of State Robin Carnahan’s U.S. Senate run has landed her campaign in hot water with Fox News Network.

In a suit filed in federal court in Kansas City on Wednesday, Fox claims Carnahan’s September “Clean up the house” ad used an “essentially verbatim copy of a 30-second clip of both video footage and voice-over commentary” from a 2006 interview conducted by Fox anchor Christopher Wallace with U.S. Rep. Roy Blunt, R-Springfield. Wallace is also a plaintiff in the suit.

Fox and Wallace are represented by Bernard J. Rhodes, of Lathrop & Gage in Kansas City. Rhodes did not respond to requests for comment by press time.

The ad features Wallace asking Blunt a series of questions about his involvement with lobbyists as a Fox News icon spins in the corner of the screen. Then Wallace asks Blunt if he’s “the one to clean up the house.” Finally, a separate voice says, “Roy Blunt, the very worst of Washington.”

Carnahan’s campaign used the ad on television and on its website next to requests for monetary donations, Fox claims, and made it appear as if Wallace endorsed Carnahan.

“[Fox] is a news organization that has not endorsed a candidate in the 2010 Missouri senatorial race,” the network said in its lawsuit.

“By including the [Fox] Interview in an advertisement endorsing a specific political candidate, Defendant harmed the value of the original work by compromising its apparent objectivity.”

Fox wants the ad down and off the air, and payment for any profits Carnahan gleaned from its use. Fox also claims the interview is copyrighted and asks for master copies of the ad so that they can be destroyed.

A spokeswoman for the Carnahan campaign did not respond to requests for comment by press time.

By 11:30 a.m. on Thursday, however, the ad had been removed from the campaign website with a message stating, “The interview with Roy Blunt that Fox News doesn’t want you to see has been temporarily removed. Check back soon.” (A copy remained on the St. Louis Post-Dispatch website into Thursday afternoon.)

Media lawyer Jean Maneke, of The Maneke Law Group in Kansas City, said Carnahan’s campaign is likely to use a “fair use” defense against Fox’s claims. Under federal law, copyrighted work can be used for teaching, news reporting and under other certain circumstances, including criticism and comment.

In this case, the court will have to answer the following questions, Maneke said:

“Would this constitute criticism of the production, or would it constitute a comment on the copyrighted material used?”

Another media lawyer, Mary Ann Wymore, of Greensfelder, Hemker & Gale in St. Louis, said the fact that Blunt himself never speaks in the ad could hinder the campaign’s defense.

“Fox has an argument to say, ‘You only took the questions and not the answers,’” she said.

Neither Maneke nor Wymore is affiliated with the parties in the suit.

Blunt addressed the lawsuit during a press conference in Kansas City on Thursday, where he announced an endorsement from the Veterans of Foreign Wars’ political action committee.

“This is one campaign where one side thinks they can say whatever they want to say,” he said.

The suit is Fox News Network, LLC and Christopher Wallace v. Robin Carnahan For Senate, Inc., 4:10-cv-00906-GAF.

Staff writer Scott Lauck contributed information to this report.

Eminent domain suit seeks five McKee properties

2010-04-07T07:44:00.000-07:00

Add another twist to the lawsuits and eminent domain hype surrounding Paul McKee’s massive NorthSide Regeneration project.

This time, McKee finds himself on the receiving end of condemnation.

We got the scoop. Read it here.

UPDATED: Consequences await tax scofflaws

2010-02-24T11:33:00.000-08:00

For all the small business owners out there, this site is a must-read. Don't know how I didn't come across it when I was writing the article below and the rest of the Tax Guide for MO Lawyers. Hope it's helpful!

by Anna Vitale
Dolan Media Newswires

What's the best piece of advice on filing tax returns late or not at all? Don't.

Here's what to expect if you neglect your returns...

Stored Communications Act challenged in case involving Facebook

2010-02-18T06:37:00.001-08:00

Facebook comments sought by a former St. Louis police officer in shooting case
by Anna Vitale
Dolan Media Newswires

Read story here.

Case questions Stored Communications Act's primacy

2010-02-18T06:37:00.000-08:00

Facebook comments sought by a former St. Louis police officer in shooting case
by Anna Vitale
Dolan Media Newswires

http://www.dolanmedia.com/view.cfm?recID=568093

St. Louis Civic Orchestra February Newsletter

2010-02-15T18:21:00.000-08:00

Jury finds for defense in roof collapse case

2010-01-21T20:07:00.000-08:00

Tenant was injured while fleeing apartment

A St. Louis jury found that a landlord, a roofing contractor and a shingle delivery company were not at fault for injuries a tenant sustained after his roof collapsed.

In September 2002, employees from Contractors Roofing Supply were unloading shingles onto the roof of a residence owned by landlord Soli Tran. About 45 minutes after the delivery, the roof collapsed. At the time of the collapse, Basil Fattah was sleeping in his second-floor apartment. He was startled by the noise and rushed to leave.

While he was exiting the apartment, however, he fell down a flight of stairs. He spent four days in the hospital and claimed he suffered soft-tissue injuries to his left hip and left shoulder.

After the accident, it was determined that rotting wood in the attic near the chimney was responsible for the collapse. The building was condemned.

At trial, Fattah and his wife sought damages for his injuries and their possessions, which were damaged while stored in the building’s basement after the accident. Each of the defendants testified they weren’t aware of any problems with the roof. Three roofers testified that the roof seemed stable before delivery, and two of the shingle delivery company employees said the roof was in good condition when they left the complex.

Tran, the landlord, testified he was not aware of defects in the roof but was aware water had been leaking into the plaintiff’s apartment shortly before the collapse. Tran said the repair work to the roof was ordered in response to the Fattahs’ complaint. The leak was not in the same place as the rotted boards, though, said defense attorney Seth Gausnell, who represented Tran.

Plaintiff expert Wes Wright testified that each of the defendants should have inspected the roof and the attic space before ordering and carrying out the delivery work, and they didn’t. On cross-examination, however, Wright testified he wasn’t aware of any roofers who go into attics to do the type of inspection he recommended, said Jon Sanner, who represented the roofing defendants.

Defense expert Stephen Spicknall testified that two rotted boards caused the collapse, but the boards would not have been visible under a reasonable inspection.

Plaintiff expert Dr. Thomas Musich testified that Fattah’s injuries had come from the fall. Fattah had had a stroke 10 years before the accident, however, that left him partially paralyzed on the left side. The defense claimed Fattah didn’t exit the building carefully enough. They claimed the roof had not completely collapsed, and Fattah testified he had stopped to see a crowd gathering outside before he exited.

The plaintiffs also claimed their belongings had been destroyed after the accident. Tran had stored them in the basement, but they were exposed to some elements, they said. Gausnell said Tran testified he had communicated to the Fattahs — who don’t speak English — through their son that they could move anything they wanted at any time. The couple did move a few items
while the repair work was being done. The Fattahs’ son did not testify at trial.

“Sometimes accidents happen, and nobody’s really at fault,” said defense attorney Sanner.

Plaintiff attorney Mark Niesen said a couple of factors hindered his case. First, the Fattahs did not contact him until four years after the incident, which made it difficult to gather evidence. Second, he procured a translator for the Fattahs who didn’t disclose until trial that he had not
done translating work before.

Still, Niesen said he feels the Fattahs had a legitimate claim and that their lease stated that Tran would be responsible for the exterior of the property.

“That obviously didn’t happen,” he said.

— Anna Vitale

Clothing giant faces down South Butt

2010-01-15T10:14:00.000-08:00

2010 Missouri Press Association Better Newspaper Contest Winner

3rd Place, Best Business Story

By Anna Vitale, Special to Missouri Lawyers Weekly

“We’re being sued!”

For most companies, especially a nascent clothing manufacturer, such an exclamation would be one of shock or fear. But for St. Louis-based The South Butt, the news bannered on its Web site might read more like exultation. The trademark infringement lawsuit filed by multibilliondollar outdoor apparel brand The North Face meant worldwide publicity for the upstart.

It was a suit ready-made for the news cycle. David versus Goliath, with a college-age David poking the clothing behemoth in its corporate eye and Goliath responding with his big legal club wielded by none other than Bryan Cave.

While the general public may be drawn to the dramatic interplay between 19-year-old Jimmy Winkleman — via his tongue-in-cheek attorney, Albert Watkins — and mega-company North Face, those in the legal world are wondering two things: Does North Face have a case, and can South Butt win on a parody defense?

North Face has filed a gamut of claims in the U.S. District Court in St. Louis against South Butt under national and Missouri trademark law. Seven in total, the claims essentially revolve around two causes of action: infringement and dilution.

Many trademark litigation experts think the infringement claims are moot.

“I think that North Face would probably have a pretty tall order there,” said Paul Fleischut, chair of Senniger Powerstrademark department in St. Louis. “I don’t think that those traditional counts are where the action will be here.”

The reason doesn’t require a degree in anatomy. To prove infringement, you must prove a likelihood of consumer confusion. And as Watkins and Winkleman have pointed out through press releases, a Facebook application and in interviews, nobody is going to mistake a face for a butt.

“There is a cause of action for infringement, but the stronger claim is for dilution,” said Barb Bunning-Stevens, trademark counsel for Monsanto.

Companies with famous trademarks — aka North Face — have gained stronger dilution protections in recent years under the 2006 Trademark Dilution Revision Act. That act requires a plaintiff to prove only the likelihood of dilution — not actual dilution, which was required under the 1995 Federal Trademark Dilution Act.

Claims of dilution can be proven either through blurring or tarnishment. Blurring involves wearing away the identity and distinctiveness of a brand by its use on noncompeting goods; tarnishment links a brand to lesser-quality products or presents the brand in an unwholesome or unsavory context.

South Butt plans to employ a parody defense against the dilution charges, Watkins said. Winkleman claims he created the company after seeing how caught up students at his private high school got with expensive North Face clothing.

Plus, try talking seriously about South Butt without at least cracking a smile.

“The South Butt brand is a clever parody and it’s clearly parody,” said Anthony Biller, an attorney with North Carolina-based intellectual property firm Coats and Bennett and chair of the American Bar Association’s Trademark Litigation committee.

And if North Face decides to take the blurring route in its dilution claims, Biller said the parody defense should be powerful.

“Parody necessarily brings attention back to the dominant mark. … In order to have a successful parody, you have to have something worth criticizing or mocking. In some ways, a parody acknowledges the importance of the senior brand.”

Watkins agrees, and he said South Butt could “even increase awareness of the North Face.”

But claiming to parody a major brand is not always a surefire defense in dilution cases focused on tarnishment.

“To prevail, [North Face has] to prove that this South Butt product is creating an unwholesome, or unsavory, or degrading association,” Fleischut said.

In the courts, associations have traditionally had to be a little more salacious than your run-of-the-mill butt to be considered tarnishing.

“The question is, ‘Is a butt something that qualifies as something that’s making an unwholesome, or unsavory or degrading association?’ Fleischut said. “My gut reaction is that would not qualify.”

Fleischut cites another case dealing with rear ends, Jordache v. Lardashe. In the 1987 case, a plus-size jeans company successfully defended their fatty name and pig logo against Jordache’s dilution claims. Lardashe, the court decided, is not unwholesome, unsavory or degrading.

The caselaw is not consistent, however, as another case with St. Louis roots showed. Anheuser-Busch prevailed over both adolescent humor and a company selling T-shirts with a “Buttwiser” slogan in 1996.

Watkins called the idea that South Butt could be found to tarnish the North Face brand “sheer folly.”

Folly or otherwise, some attorneys think the commercial aspect of South Butt is more compromising than the content of its parody.

Bunning-Stevens said that some recent cases do not look kindly on parodies that make a profit by getting a laugh at the expense of large, established brands. She said the fact that South Butt has been selling T-shirts, fleece jackets and sweatshirts similar in appearance to North Face’s, has twice applied for a trademark and even offered at one point to sell-out to North Face for $1 million paints it as a commercial venture riding the coattails of a well-established company.

“If it weren’t for the equity they [North Face] developed, this venture would be going nowhere,” she said.

Rudy Telscher is a partner at the intellectual property firm of Harness Dickey in St. Louis. He agreed with Bunning-Stevens’ read.

“The more commercial in nature your parody is, the less protection you have.”

But less protection doesn’t mean no protection.

“So if I’m taking on this case,” posited Telscher, “I certainly want to emphasize that just because a product is sold for money doesn’t strip it of First Amendment rights. … He is not only poking fun at North Face and poking fun at all of his classmates at Chaminade who felt they had to wear a North Face sweatshirt, he was making some sort of social or political statement about American’s reliance on brands. … I’d push the social commentary aspect of the case.”

Still, Telscher said the odds aren’t good for South Butt.

“If I were gonna bet a paycheck, I would bet this guy’s gonna lose. Love [North Face] or not, they’ve worked hard, done a lot of advertising, built a popular brand. It really starts to favor the company.”

Fleischut disagreed and said the commercial aspect is not the controlling issue.

“North Face has the right to prevent others from causing confusion, but there is no right not to be made fun of.”

Biller also said he thinks the law is on South Butt’s side. He said North Face has done more to harm its own brand by filing the lawsuit.

“I think North Face has shown itself to have particularly thin skin. … They’ve created this monster by giving it national exposure.”

And what about the old spend-them-into-the-ground approach common to David and Goliath lawsuits?

Watkins said he and Winkleman have nothing to lose.

“The odds of them outspending us is 100 percent,” said Watkins. “I received my fee and I drank it last night.”

Lead plaintiff attorney David A. Roodman declined to comment on the case.

Anna Vitale Resume

2010-01-12T13:17:00.000-08:00

St. Louis Civic Orchestra Newsletter

2009-11-25T09:21:00.000-08:00

So I've been dabbling in content writing a bit lately...

In addition to helping a friend with his web content (which I'll be sure to link to once we have a finished product), this newsletter is for the civic orchestra I recently joined. The content itself was pretty easy-peasy, but let me tell you designing on Microsoft Word is not fun. Oh, for want of my very own Creative Suite!

Here's to running away and joining the circus!

2009-11-17T22:10:00.000-08:00

I'm telling you what: Circus Harmony wowed me. And I'm not easily wowed. First of all, this group defines labor of love. From the former professional Mongolian contortionist (who trains and makes the costumes) to the guy who used to get shot out of a cannon and now teaches tumbling to the artistic director Jessica who is more like a professional mom - everyone is just giving their hearts to this thing. Secondly, the time and energy the kids put into their training is so infused in every stunt while they're performing. I was literally holding my breath at multiple points during the show. And once again, I don't hold my breath for much.

Go to their show. Read this first, then go.

One Man, His Plants, and Why He Must Save Them

2009-11-02T21:04:00.000-08:00

The Best Necklaces & Pendants

2009-10-20T09:48:00.000-07:00

31 days to get more business

2009-10-07T10:15:00.000-07:00

Working on this article for Missouri Lawyers Weekly proved the benefit of reporting on topics that interest you. Or, in this case, on topics that will help you build contacts and increase your earning power. Although these marketing tips were written with legal professionals in mind, they translate easily to many professions (including that of self-employed freelance writer!).

Women's Chess Championship

2009-10-03T16:02:00.000-07:00

St. Louis Public Radio: Governor Nixon suspends Department of Natural Resources Director

2009-09-30T15:15:00.000-07:00

I wrote this story after participating in and recording a press conference call for the first time. At first I was nervous to jump in and ask a question, but I'm so glad I did! The question I asked was how the Lake of the Ozarks got so E.coli-infested in the first place. Turns out, agriculture is (no surprise here) partly to blame.

This isn't in the story, but much of the E.coli problem at Lake of the Ozarks is from agricultural animals' run-off - that's right, poop. What's sad is that what's happening at the Lake is just the teensy-tiny tip of the iceberg when it comes to agricultural pollution in the U.S. It's not the sexiest topic by any stretch, and I know most people are to the point where they're tuning out "green" issues. If things don't change within the agricultural system though, shitty situations like this one at the Lake will occur with increasing frequency. And no amount of suspending government officials will change that.

Love Dependancy In Relationships

2009-09-29T09:57:00.000-07:00

Would You Wear These Watches?

2009-09-29T09:50:00.000-07:00

Hijabs & High Heels

2009-09-25T21:09:00.000-07:00

Featured Story: NCAA Regionals in St. Louis

2009-09-21T20:20:00.000-07:00

What Your Desk Says About You

2009-09-16T22:53:00.000-07:00

Brides Want more Bling for the Buck

2009-09-16T08:58:00.001-07:00

Texas Food Product Blurbs

2009-09-16T08:51:00.000-07:00

Mini-profile of Washington University's Entrepreneurial Guru

2009-09-16T08:44:00.000-07:00

Silk-Screened Concert Posters

2009-09-16T08:41:00.000-07:00

Benjamin Edwards Obituary

2009-09-15T21:46:00.000-07:00

St. Louis WeCar Debut

2009-09-15T21:18:00.000-07:00

Left Bank Books Celebrates 40 Years

2009-09-15T21:12:00.000-07:00

$25,000 Settlement

2009-09-15T21:00:00.000-07:00

Feminine Favourites

2009-09-15T20:53:00.001-07:00

Cooking at the Owl's Nest Inn

2009-03-16T15:10:00.000-07:00

Delicious Wickles Pickles

2009-03-16T15:06:00.000-07:00

Healthful Recipes at the Happy Kitchen

2009-03-16T15:04:00.000-07:00

Cruelty-Free, All-Natural Beauty Products by Cactus & Ivy

2009-03-16T15:01:00.000-07:00

Hip Clothes and Accessories by the Austin Craft Mafia

2009-03-16T14:59:00.000-07:00

Ashdown Roses

2009-03-16T14:55:00.000-07:00