Showing posts with label Law. Show all posts
Showing posts with label Law. Show all posts

Amy's Hail Mary

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.

Ritz on the fritz and my interview with Charlie Brennan

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

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

Bombs damage home of law partners

Published: October 1, 2010

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.

Eminent domain suit seeks five McKee properties

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

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

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

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

Jury finds for defense in roof collapse case

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 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.


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