(Courtesy of Toys for Tots)
A Philadelphia law firm’s alleged misconduct may lead to dismissal of a defamation suit by Toys for Tots volunteers against news media that reported they were caught stealing donated toys from a Walgreens collection bin.
A federal judge in Camden, N.J., has called Richman Berenbaum & Associates on the carpet to explain why the complaint it filed last December bears the signature of a New Jersey-admitted associate who had left the firm months earlier.
U.S. District Judge Joseph Rodriguez, in a May 6 order to show cause that gave the firm 10 days to explain why the suit should not be dismissed, said he was acting in response to a letter from Justin Cohen, who is identified on the complaint as the lawyer who filed it.
Cohen, now with Adam Kotler’s law office in Cherry Hill, wrote to Rodriguez on May 1, saying he had just learned of the complaint, which purported to be signed by him “but which I did not sign.” He said he had left the firm last July, five months before it was filed.
Cohen also told Rodriguez he was notifying New Jersey legal ethics authorities about the situation.
“Perhaps this is an administrative error, but I believe that I have the affirmative obligation to report this issue” under Rule of Professional Conduct 8.3, wrote Cohen.
The letter indicates that a copy was sent to John Palm, the secretary to the District IV Ethics Committee, for Camden and Gloucester counties. Palm, a Gibbsboro solo, did not return a call.
The suit, Newbill v. Walgreens, names as defendants three TV stations that aired a surveillance video of the supposed toy heist at a Cherry Hill store and slammed those responsible for the crime as “The Grinch Who Stole Christmas.”
The 19-count complaint includes claims for defamation, false light invasion of privacy, false imprisonment, infliction of emotional distress and federal and state constitutional violations.
The defendants—Cherry Hill and its police department; Walgreens; the Gannett newspaper chain; CBS Corp.; Comcast, as owner of NBC; Walt Disney, as owner of ABC; and Twenty First Century Fox—were not served until April and only started to appear at the end of the month.
Walt Disney lawyer Gayle Sproul, of Levine, Sullivan Koch & Schulz in Philadelphia, asked the court for more time to answer on May 1, the same day Cohen sent his letter.
Sproul’s papers described her efforts to reach Cohen at the Richman firm so she could get him to replace Walt Disney with ABC as a defendant.
On her first call, on April 24, a receptionist/paralegal said Cohen had left but the firm still had the case and partner Blake Berenbaum would call her back, which did not happen, she informed the court.
When she tried again on April 29, she got a recording that the number was temporarily disconnected.
A Google search for Cohen found him at his new firm, so she called him there, she said. He allegedly told her that he had been the only lawyer at the firm admitted in New Jersey, that he left the Richman firm months before the complaint was filed and that he did not authorize use of his signature.
On May 6, the lawyer for CBS and Comcast, Bruce Rosen of McCusker Anselmi Rosen & Carvelli in Florham Park, wrote to the court about his own efforts to reach Cohen so he could ask him to withdraw the claims against his clients as barred by the fair-report privilege, which shields journalists from liability for writing accurately about government action.
Rosen said he kept getting a paralegal who told him Cohen was out of the office. After reading Sproul’s motion, Rosen called the Richman firm again and was again told that Cohen was still there and that he could leave a message. But the paralegal “started backing away” when Rosen informed her what Sproul had found, saying Cohen was still connected to the firm “as far as she knew” but she was “pretty new here” and she would have someone get back to him. That did not happen, Rosen said.
Subsequently, Rosen obtained a copy of Cohen’s letter and reached Cohen at his current firm, he said.
Rosen’s May 6 letter said that Cohen’s signature on the letter is not the same as the one on the complaints, that the legitimacy of the complaint was in question and that the circumstances presented “a cloud of at very least a misrepresentation to this court.”
He asked for a stay of all answers and responses until the court was satisfied and the defendants were assured the complaint was properly filed. Rodriguez issued his order that same day.
Rosen and Sproul declined comment on the case.
Cohen and Thomas Cafferty, of Gibbons in Newark, who represents Gannett, did not return calls.
No one answered at the Richman firm and a voicemail could not be left for Berenbaum because his mailbox was full. One left for another lawyer at the firm, Jacob Snyder, was not returned.
Calling in the Marines
It allegedly took a phone call to retired U.S. Marine Corps Major General Keith Walker, chair of the Camden County Toys for Tots program, to clear up the misunderstanding that led police to charge the plaintiffs with theft.
Plaintiff Desmond Newbill was the Camden County coordinator for the program, which under the Marine Corps Reserve’s auspices collects toys from October to December each year and distributes them to needy children as Christmas gifts. His wife, Mary Burton-Newbill and Shawna Joyce were long-time volunteers.
On Dec. 12, 2012, Newbill and Bryce showed up at the Route 70 Walgreens in Cherry Hill to pick up toys from its donation bin. They claim they had been doing so for years at the store, were familiar with the managers and some personnel and had already made several such visits since October.
They claim they had a practice of announcing their presence when they arrived and did so on the day in question.
A pharmacist in the back of the store, however, spotted them on a security camera, thought they were stealing and called police. When the officers arrived, they spoke with the pharmacist, were given the video and decided that a theft had occurred, the plaintiffs allege.
The police department posted the video on its Facebook page and also provided it to local TV stations—ABC (WPVI-TV 6), CBS (KWY-TV 3), and NBC (WCAU-TV 10)—which broadcast the story, complete with “Grinch” references, to millions of households, as did Fox News (WTXF-TV 29). The Courier-Post of Cherry Hill ran a story.
Newbill claims that he went to the police station after he began receiving harassing phone calls from people who recognized him from the video and that police did not believe him at first but instead interrogated him, threatened him and humiliated him.
Even after the police retracted the accusation, the effects continued, say the plaintiffs, who note that the police falsely blamed the misunderstanding on the failure by Newbill and Bryce to identify themselves when they arrived at the Walgreens.
The Newbills, both school attendance officers for the Camden city school district, were directed to take some time off while the situation was sorted out, and Newbill, a volunteer Little League coach, was taunted at practice and urged by fellow coaches to take a break until things simmered down, according to the complaint.
A teacher at an Early Child Development Center in Camden—the one attended by the Newbills own children—allegedly rejected a toy delivery, telling Mary the children did not want stolen toys, according to the complaint.
The plaintiffs seek compensatory and punitive damages.
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