March 30, 2017

Boutique Bests Biglaw In Booze-Bottle Battle

A jury trial, pitting one of Biglaw’s biggest names against an elite boutique. A celebrity client — who takes the stand. And booze, lots of booze. Do I have your attention yet?

In this age of settlement and alternative dispute resolution, jury trials are rare — perhaps one percent of federal cases. So it’s great, at least for aficionados of courtroom drama and war stories, to see a case go all the way to a jury verdict — with some crazy twists and turns along the way. From Law360:

A tequila company ripped off the distinctive skull-shaped bottle of comedy legend Dan Aykroyd’s Crystal Head Vodka, a California federal jury found on Wednesday, handing Crystal Head a win in its trade dress infringement suit.

After roughly four hours of deliberations in downtown Los Angeles, the eight-person jury on Wednesday delivered a unanimous verdict in favor of Crystal Head maker Globefill Inc., finding that defendants Elements Spirits Inc. and its founder Kim Brandi had intentionally infringed Globefill’s trade dress by making and selling KAH brand tequila. The jury found that KAH, which comes in Day of the Dead-inspired skull-shaped bottles, was likely to confuse ordinary consumers into thinking it was made by, or affiliated with, Crystal Head, and had been designed with this objective in mind.

Globefill and Crystal Head co-founder Dan Aykroyd were represented by David Berg — one of the nation’s top trial lawyers, described by one grateful client as “the St. Jude for bet-the-company cases” — and his colleagues from Berg & Androphy. Elements was represented by one of Biglaw’s best: Cravath, Swaine & Moore, with partners Thomas G. Rafferty and Keith R. Hummel leading the team.

How do you vanquish Cravath in the courtroom? Calling a rebuttal witness who appears at the end of trial and demolishes the other side’s case certainly helps (emphasis added):

Globefill called to the stand tattoo artist and occasional sculptor Walter “Buddy” Szymoniak.

Under questioning by Globefill attorney David Berg of Berg & Androphy, Szymoniak testified that he had met Elements founder Kim Brandi in 2009, when he was tattooing her then-boyfriend, and Brandi told him she was trying to launch a tequila that would be contained in bottles that resembled Mexican Day of the Dead sugar skulls, or calaveras. Szymoniak said that he told Brandi he had experience with sculpting, casting and molding, and he was then hired to help her improve on her first clay prototype.

Szymoniak testified that Brandi wasn’t happy with what she had come up with and actually gave him one of Crystal Head’s glass skull-shaped bottles for him to make a cast of, and that he then used clay and tools to modify that copy to produce the version that Brandi ultimately accepted.

Considering that Brandi had previously testified that she had never seen the Crystal Head bottle before making the KAH Tequila bottle, Szymoniak’s testimony was… less than helpful for Elements.

And wait, it gets worse (again, emphasis added):

Szymoniak said that he hadn’t heard from Brandi since 2010 — until last Tuesday, when she contacted him via Facebook. Szymoniak said she asked him to come over, saying she wanted to give him a check for $10,000 to make up for his not receiving royalties he had been promised for his work. Once he got to Brandi’s place of business, however, she focused on the lawsuit, asking Szymoniak for help finding differences between the bottles and telling him she had been lying when she told the jury she hadn’t even heard of Crystal Head when she made her own bottle.

“She just said, ‘I lied under oath and said I had never seen the crystal skull bottle, but I handed it you, the frickin, the effing bottle,’” he said.

That’s Perry frickin’ Mason. As Berg & Androphy partner Jenny Kim told me, “Unbelievable case. First time in David’s 50 years where we found a rebuttal witness who said that defendants admitted to lying on the stand and paid $10K in hush money. It’s a good story of how old-fashioned, boots-on-the-ground investigative work is an essential part of any trial.”

A good story indeed — which David Berg shared with me when we spoke yesterday, shortly after the jury handed down its verdict.

The Berg & Androphy team hadn’t reached out to Buddy Szymoniak, designer of the KAH Tequila bottle; they assumed that he was a very good friend of Elements founder Kim Brandi, and that he would not be helpful. But this past weekend, two Berg & Androphy associates, Victoria Mery and Zenobia Bivens, said they really wanted to try and speak with him.

On Saturday night, Mery and Bivens called upon Szymoniak. He was unwilling to speak with them — but hinted that he might be willing to talk to Dan Aykroyd, co-founder of Crystal Head with artist John Alexander. (Celebrity has its privileges.)

On Sunday night, Dan Aykroyd, David Berg, and local counsel Hernán Vera of Bird Marella dropped by to see Szymoniak at his tattoo parlor. He was still reluctant to talk, saying he was afraid of being sued for his involvement in sculpting the KAH Bottle for Kim Brandy.

Berg explained that the only people who could sue him for that would be, well, Globefill and Aykroyd — and that they wouldn’t do that. After Berg and Aykroyd gave Szymoniak a signed release, protecting him from being sued for his role in designing the KAH Bottle, he told them the whole story — the same story he would later share in open court, to devastating effect.

I asked Berg: was this the most dramatic, “gotcha”-style episode in his long career as a trial lawyer? He shared this story with me:

I had one trial like this, where I had something this dramatic, decades ago. But not since.

It’s 1971. I’m in a criminal trial in Harris County, Texas, representing the defendant.

The next witness for the state is seated, reviewing something in his lap. Then he gets on the stand. I say to him, “I saw you looking at some notes over the break. Did you use those to refresh your recollection?” He says yes, so I get to see the notes.

They’re on a white legal pad. On the left side, there’s a lot of writing, inside a big circle. On the right side, there’s an arrow pointing to the circle, and writing that says, “LIE ABOUT THIS.”

The jury was out for 14 minutes. They didn’t even need that much time — they tried to return a verdict while still in the jury box.

The jury in the Crystal Head case took a bit longer, but not very long — about four hours, returning after breakfast.

“I had no doubt that we’d have a verdict afterward,” Berg told me. “Most juries like to have one last meal on the government.”

The jury delivered a unanimous verdict in favor of Globefill, i.e., Crystal Head and Dan Aykroyd. Judge Consuelo B. Marshall will now decide on remedy — how much Elements will have to pay to Globefill, plus injunctive relief in Globefill’s favor.

I was curious: did Dan Aykroyd’s celebrity play a role in the case?

“In the prior trial [in 2013], his celebrity hurt him — it was sort of a ‘David and Goliath’ story,” Berg explained. “This time, Danny was so human, and so good when on the stand, that the jurors really warmed to him.”

Speaking of “David [Berg] versus Goliath” stories, as a Biglaw fanboy I couldn’t resist asking Berg: what was it like going up against the well-oiled machine that is Cravath?

“They’re friends, they’re wonderful lawyers, and they did a great job,” Berg said. “We just had the facts on our side.”

Very true, and a nice reminder of the greatness of the American justice system. You can go out and hire the best lawyers money can buy — a top-flight Biglaw firm like Cravath, or a powerhouse boutique like Berg & Androphy. But so much of the time — not all the time, but probably more often than in most other nations’ justice systems — the law and the facts will prevail.

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