I first became involved in this matter in the summer of 2006, when Jonathan Polak, an intellectual property attorney with the Indiana law firm of Sommer Barnard, asked me to serve as local counsel on a unique motion—a motion to try to acquire O.J. Simpson’s “right of publicity” in an attempt to satisfy the judgment. The motion was the idea of one of Jonathan’s clients, Karl Manders of Continental Enterprises. It was a novel idea.
The right of publicity is a transferable property right. It is the right of an individual to control the commercial use of his name, image, and likeness. There are essentially two aspects of this right: the right to profit and the right to control. The right to control is an extension of the right to privacy, which gives one the right to prevent the use of their name, image, or likeness in association with commercial endeavors they do not like. For example, former baseball pitcher Don Newcombe did not want his likeness used to promote the sale of beer. With the rise of media and increased commercialization, however, the right to be paid for the use of one’s name, image, and likeness has outgrown the privacy right. These days, celebrities tend to be more concerned with compensation than prevention.
In theory, if we could somehow acquire or control Simpson’s right to profit from the use of his name, image, or likeness, then the proceeds from that right could be used to partially satisfy the judgment. Those currently using Simpson’s name, image, or likeness would have to pay for such use. We could license such a use, for a price.
But such a motion would be difficult to win, if not impossible. And sure enough, it failed. The Law currently does not provide for the wholesale, involuntary assignment of an intangible right, although some day it might, under certain circumstances. We filed our motion in early September 2006, and on October 31, 2006, it was formally denied. Among other things, the Court was understandably concerned about the inherent right of a human being (even Simpson) to prevent the use of his name, image, or likeness. The Court also emphasized that California has a comprehensive statutory judgment collection scheme, and that scheme does not allow for the assignment or transfer of intangible property rights. The scheme essentially allows for the collection of money and the liquidation of assets into money, nothing less and nothing more.
Shortly after we lost our motion, I appeared on Nancy Grace’s television show. A woman called in and was put on the air. She lived in another state, and she could not understand how Simpson could get away with not paying the judgment. She insisted that in her state, a Judge would simply throw someone like that in jail for “contempt” of Judgment. But that is not the Law. Generally, a judge can hold someone in contempt for willfully violating a court order, but not a final judgment. A civil judgment marks the end of a civil lawsuit, and it typically reflects a final determination that a debt is owed. Like all debts, it is up to the judgment holder, what we call judgment creditor, to enforce and collect debt from the judgment debtor. The judgment debtor, however, cannot be forced to work to pay off his debts (involuntary servitude), nor can he be thrown in jail for failing to pay them (debtor’s prison). That is the Law.
In October of 2006, while our motion was pending, the National Enquirer reported that Simpson was paid over a million dollars for a book and television interview project entitled “If I Did It,” which was described as Simpson’s own hypothetical account of how and why he committed the murders “if” he had committed them. In response to the Enquirer report, Jonathan Polak told me that he asked Simpson’s long-time lawyer, Yale Galanter, if the report was true. Galanter assured Polak there was no truth to the report.
Just after our motion was denied, we found out the reports were true. Fox News advertised a series of interviews with Simpson and the publisher of the book, Judith Regan of HarperCollins Publishers, Inc. Galanter later apologized to Polak for being mistaken. Apparently, Galanter said he had not known about the book. If Galanter had not known about the book before, he was going to learn a lot more about it. From that point on, Galanter seemed committed to preventing the Goldmans from ever getting the book.
The news of the book and television interviews with Simpson shocked and angered the Goldmans. Fred and Kim had an instant visceral reaction. How could they react otherwise? Simpson was bragging about the murders, and he was being promoted and paid by others, namely a major television network, Fox; a major publisher, Judith Regan of HarperCollins; and all of it under the corporate umbrella of News Corporation and Rupert Murdoch. And they were all seemingly profiting from it. Of course Kim and Fred were disgusted. Anyone in their position would have been disgusted, and clearly they were not alone. The public outcry was immense.
Despite the public outcry, when I first heard about the book, I felt that it could only be a confession and its contents would only make Simpson look bad. Simpson’s whole life was derailed by the murders. He lost his immense fame and goodwill in exchange for infamy. He was forced out of his demigod kingdom, Los Angeles, the home of his past collegiate glory and his shining Hollywood career. He lost his job as a television football commentator, and nobody wanted him in any more movies or commercials. Simpson was accused of savagely killing Ron Goldman, an innocent stranger, and of butchering his own wife, the mother of his children, and then leaving her decapitated corpse on the doorstep for those same children to find. Simpson had it all, but after the murders he was running for his life in a white Bronco and writing something that sounded like a suicide note. He went through an excruciating double-murder prosecution, which carried a potential death penalty. Those are moments that drive an accused person to their knees and make them pray for a miracle. The relief that swept over Simpson’s face when he heard the not-guilty verdict: that was the face of man who narrowly escaped the prospect of death. After going through all of that, no innocent man would write such a book.
And behind the book, many people were working with Simpson in a collective and clandestine effort to jointly profit from the project, and they were all doing so with knowledge that Simpson owed the victims’ families millions of dollars for murdering their loved ones. No one asked Fred or Kim how they felt about any of this until the books were on the pallets ready to be shipped, and the television interviews with Simpson were taped and ready to be aired, and all of it was being trumpeted and advertised in the press.
The book and television project were announced in mid-November of 2006, and they were scheduled to hit bookshelves and television screens later that month. Legally speaking, there was nothing we could do about that. But sometimes, the highest court in the land is the Court of Public Opinion, and that court can intervene quickly and decisively. The public outcry was loud, and the project was cancelled. Judith Regan later lost her job, and Rupert Murdoch described the whole project as “ill-conceived.”
Now what could we do? We were told that Simpson had been paid handsomely for the book, but that he had immediately spent the money. We also knew that the book was still out there, and it was a potential asset of unknown value. And we knew that if we did nothing, then in all likelihood Simpson would simply wait and probably try to publish the book again for profit.
I had originally signed on with Goldmans for a very limited purpose, to try to acquire Simpson’s right of publicity. Now, the Goldmans’ legal team was being asked to try to collect the monies that Simpson had been paid for the book. I knew only a little about collection matters. On another Nancy Grace show, she asked me point blank what we were doing. All I could say was that we were considering different options. “Excuse me,” she said. “He’s out there spending money, and you are thinking about what to do?” I said the only thing I could, the truth. “I don’t know how to collect money that has already been spent.” Indeed, we could never collect that money.
Shortly thereafter, we met David J. Cook, a judgment and debt collection specialist in San Francisco. He has his own firm, Cook Collection Attorneys, which actively markets the slogan, “Winning is Nothing. Collecting is Everything.” The firm has a website called SqueezeBloodFromTurnip.com “You need me,�
�� David told us. He was right.
David liked to tell a story about how, as a young man, he had a job delivering roasted chickens. Apparently, one rainy night, young David could not get his rear-wheel drive delivery car up a muddy road, and he was just sitting there in his car, overwhelmed by the storm and the smell of chicken. So he turned the car around and backed it up the road. David is a force to be reckoned with, and over the next several months, he and I worked closely together, along with the rest of the legal team, to try to rip the book out of Simpson’s hands.
Before I met David, I had a telephone conversation with Simpson’s former manager, Mike Gilbert. Gilbert indicated that Simpson essentially engaged in what I would describe as shell games. Apparently, Simpson would go to cities and make appearances at autograph signings. A promoter supposedly would give a satchel of cash to a member of Simpson’s entourage. The bag allegedly would pass from hand to hand, and eventually it would end up with Simpson before he left town. On at least one occasion, as I understood it, Simpson received his little bag moments before boarding a plane to return home. If anyone was ever asked if Simpson had been paid, the response would be no. The monies had been handed to a member of his entourage, not to Simpson himself. That is what I had been led to believe, but it did not matter. We simply could not afford to travel all over the country chasing duffel bags that might be filled with cash.
But Simpson was definitely playing a shell game on the If I Did It deal. We learned that a friend of Simpson’s, a Miami attorney named Leonardo Davinci Starke, had created a sham corporation entitled Lorraine Brooke Associates, Inc. (LBA). LBA’s address was a home in Miami that appeared to be owned by Starke’s mother-in-law. Starke appeared to use the home’s address for multiple entities that he created. The home actually had two different addresses, because it was located where one street turned into another street, and Starke used both addresses to create the illusion of separate locations.
It was our understanding that “Lorraine” and “Brooke” were the middle names of two of Simpson’s children, his daughters Arnelle and Sydney. Arnelle is Simpson’s oldest child by his first wife. Sydney is Nicole’s daughter. With Starke’s help, Simpson assigned his own publicity rights to LBA, and then LBA entered into the deal with HarperCollins to do the If I Did It project. LBA entered into that deal by and through an exclusive agent and representative based in Santa Monica. All monies from HarperCollins passed to the Santa Monica agent (who took a 15% commission), then to LBA, and then to Simpson. LBA eventually received some $663,000 in advance payments for If I Did It. Of this sum, at least $630,000 went to Simpson. It was all a fraudulent conduit designed to funnel monies to Simpson beyond the reach of the Goldmans.
Incidentally, if you owe people a lot of money, and you create a corporation to shelter your assets, and that corporation is owned and operated by your children, the Law tends to view that as a badge of fraud upon your creditors. Simpson has four children. Two of them, Sydney and Justin, are his children with Nicole. Each of his children was a 25% owner and shareholder of LBA. Simpson later claimed that he was going to use the book proceeds to help his children. But his children got nothing. Simpson used it all to pay his bills.
When I later questioned Arnelle in her deposition, she indicated that all the Simpson children lived with their father, they all knew about the contents of the book, and they were all promised some of the proceeds:
ARNELLE: Out of that, you know, I know they’re dealing with big money, a lot of money. Not only that, we’re dealing as a family with a lot of different issues that would be going on in regards to this book.
Q: Did your brothers and sisters know that this was the book that was going to be published?
ARNELLE: Yes. They knew about the book and the content of the book, yes.
Q: And they knew about it from when you formed the corporation back in March 2006; is that right?
ARNELLE: Well, they knew that I was considering—not considering—that I was negotiating this deal. And because of that, the money that’s coming, I wanted it to—if it’s going to come through me—basically, I was going to share it with them, and through that start this corporation, to make it legal and legit, basically. Not just, “Here I am taking a check,” and so forth and so on, because I don’t know how to do that. I don’t.
It is my understanding that Sydney and Justin are the beneficiaries of Nicole’s estate and the beneficiaries of the civil judgment against their father for the murder of their mother. So Sydney and Justin are the effective holders of the Brown judgment. I cannot imagine what those children must think and feel every day. But according to Arnelle Simpson’s testimony, they knew about the contents of the book.
When we were pursuing the book, we heard criticisms that publishing the book would hurt these children. Simpson’s children obviously depend on him for support, and he is their father. Do I feel sorry for them? Yes, absolutely, without a doubt. But I have never heard anything that would compel me to turn to Fred and Kim Goldman and say, “I don’t think you should pursue your judgment collection efforts because it might hurt Simpson’s children.”
David Cook had many strategies for pursuing the judgment, but his basic tactic was simple: attack, attack, and attack; quickly, quickly, quickly. Repeat as needed. He spoke of trying to create a cascade of events, of putting Simpson and his camp on the run. That proved to be a very good tactic.
For more than a decade, Simpson felt like he was beyond anyone’s reach, ensconced in his untouchable Miami home and living off his sacrosanct pensions and his under-the-table appearance money. Now he had an asset, the book, which could conceivably be taken from him. I think he was convinced that we would never be able to take it away. I know he did not want us to. He and his lawyers fought us every step of the way.
David filed a lawsuit in federal court in Los Angeles to try to unwind or set aside the fraudulent transactions with LBA. The judge dismissed our case and told us to go to Miami. Simpson’s lawyers repeatedly dared us to go there. They believed that we would never take the legal battle into Florida. That same day, we lost another motion in state court. Yale Galanter, Simpson’s attorney, was quoted as saying that he had “kicked” us “to the curb.” Later, he was also quoted as saying that Fred Goldman was a “greedy pig.”
David was unfazed and undeterred by our initial court losses. David’s job as a lawyer is to make deadbeats pay their debts. Now he was trying to squeeze one of the biggest deadbeats of them all, Simpson. At the end of the day when we lost both motions, I watched and listened to David speak in front of a bank of microphones at the Santa Monica courthouse. He said that his legal practice was a “fanatical” one, and that he himself was a “fanatic,” and that he would never give up. I remember that Kim Goldman and I both looked silently at each other with wide eyes and raised eyebrows. Cook meant every word of it. If he could not drive up the muddy hill, then he would turn the car around and back up.
HarperCollins had provided us with a copy of their If I Did It contract with LBA. After the book got shelved, HarperCollins was fairly cooperative, at least as much as they could have been under the circumstances. The contract indicated that HarperCollins had the rights to the book, but LBA had the ability to reclaim the book rights if HarperCollins did not publish the book. HarperCollins repeatedly stated that it was not going to publish the book. So at some point, the book rights would revert back to LBA, and from LBA to Simpson. That much seemed certain.
David issued a written levy on HarperCollins for the book rights. The levy was issued out of the same California court that awarded the original judgment, and the effect of the levy was to assert that we owned the book rights, because they were an asset of Simpson and Simpson owed the Goldmans a lot of money on the judgment. By way of the levy, we asserted a secured claim to the book rights, much like a bank’s security interest in a home. This secured claim proved to be pivotal. We could not seize the monies paid for the book project, because they were long gone. But we could go after any
and all future monies that the book might earn, and we could also ask the Court to order a sheriff’s sale of all of right, title, and interest in the book. Much like a home foreclosure, we could ask the Court to sell those rights, whatever those rights might be worth, to the highest bidder, and then we could use the monies from the sale to partially satisfy the judgment.
It was a memorable day in March of 2007 when the Los Angeles Superior Court, the Hon. Gerald Rosenberg, heard and considered our motions regarding the If I Did It book. We made several requests that day, but the most important proved to be our request to have the Court order a sheriff’s sale of all of Simpson’s and LBA’s rights, titles, and interests in the book. At the time, LBA was still treated as a distinct legal entity, separate and apart from Simpson, and our judgment was only against Simpson.
Judge Rosenberg had the patience of a saint. He listened carefully and at great length to everything that everyone had to say. Simpson and his lawyers, including Galanter, vehemently argued that the Court had no authority to interfere with LBA, which effectively had all legal right, title, and interest in the book. If we could not reach LBA, then any victory over Simpson would be hollow, and his artifice of a fraudulent corporate shell would succeed. We had to show that LBA was merely a corporate veil under which Simpson (and only Simpson) was operating. The debate was extensive, and then the Judge adjourned the hearing and took the matter under submission. At the time, it seemed clear that he would give us our requested relief as to Simpson, but it was not clear at all that he would grant our request as to LBA. Courts are reluctant to “pierce the corporate veil” and disregard the existence of a corporation, because it destroys one of the primary reasons for creating a corporation, to create a separate legal entity. But Courts will do so if it appears that a corporation is merely a fraud.
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