Brewer Firm Congratulates NRA on Historic Victory in NYAG Litigation

December 11, 2024 – Brewer, Attorneys & Counselors commented today on the NRA’s historic resolution of a multi-year legal battle with New York Attorney General Letitia James. Brewer has represented the NRA since 2018, in connection with the NYAG’s efforts to “eliminate the Association” – which today’s judgment favorably resolves. 

Alongside a unanimous Supreme Court victory this summer, this final judgment marks another high-profile, historic victory in the firm’s representation of the gun group. 

Following a year-long investigation, NYAG James sued to dissolve the Association and seize its assets in August 2020. After the NRA defeated the NYAG’s “corporate death penalty” claim, James sought a court-appointed monitor to oversee the gun group. The court rejected that request this summer. Today, a final judgment was entered that is tailored to compliance and governance measures in the NRA’s interest – many proposed by the NRA itself, and several of which were already underway at the Association. 

The NRA pays no fines or penalties under today’s judgment. Instead, the judgment entitles the NRA to collect millions of dollars from two former executives found to have breached their duties. In sum, following over a month of trial proceedings, Justice Joel Cohen denied all invasive relief sought by the government.

“It was a privilege to be part of this historic, multi-year defense of freedom,” says NRA counsel William A. Brewer III. “Board leaders confronted the ultimate challenge and threat. They deserve credit for standing firm to protect the Association, its mission to defend constitutional freedoms, and the rights of millions of members. The goal from day one was that the NRA remain free to chart its course.”

The judgment caps a six-year saga during which the firm defended the NRA against a barrage of other blue-state regulatory actions, sweeping congressional inquiries, and a debanking effort by New York officials that became the subject of a blockbuster Supreme Court decision in June.  In that case, NRA v. Vullo, all nine justices backed the Association’s First Amendment claims. The Brewer firm served as lead counsel in the Vullo case, and co-counsel with the ACLU before the Supreme Court. 

“When we undertook this representation, we committed to keep the NRA safe and secure,” Brewer says. “The effort involved not only our lawyers but business professionals, investigators, and crisis communications experts. Today’s decision marks the exclamation point on our collective advocacy and vision.”

Joining Brewer in representing the NRA were firm partners Sarah B. Rogers, Svetlana M. Eisenberg, and Noah Peters, and associate Josh Dillon.

Despite Injunction, Biote Continues to Misappropriate Name, Image or Likeness of Actress Cindy Latch

December 10, 2024, Dallas, Texas – A Dallas County court entered an injunction today prohibiting Biote Medical, LLC and its affiliated practitioners from using the name, image, or likeness (“NIL”) of actress Cindy Latch without her consent. Brewer, Attorneys & Counselors sought the injunction after filing a lawsuit on behalf of Latch regarding Biote’s repeated unauthorized use of Latch’s NIL. 

Entered by the 101st Judicial District, Dallas County, Texas, Judge Staci Williams finds that Latch made a threshold showing that she “suffers immediate and irreparable injury” due to Biote’s misappropriation of her NIL.

During a hearing on December 9, Latch introduced evidence that dozens of practitioners continue to misappropriate her NIL on their websites even after her contract with Biote ended in February 2021. These sites are engaged in the continued “impermissible use” of her image and likeness. The order states, “…the Court finds the existence of a wrongful act on behalf of Biote, and the presence of imminent harm flowing from Biote’s invasion of Plaintiff’s privacy by misappropriation of Plaintiff’s image.”

The court previously entered a Temporary Restraining Order on November 25. However, since that date, Biote has failed to protect Latch’s personal brand or compensate her for Biote’s continued unauthorized use of her NIL. With Latch as a centerpiece of Biote’s national marketing effort, the company recently reported annual revenue of approximately $200 million.

“The evidence continues to mount in support of Ms. Latch’s claims:  Biote and its affiliates continue to misappropriate Latch’s name, image or likeness in violation of her rights,” says William A. Brewer III, counsel to Ms. Latch. “This case is a beacon for those victimized by the cavalier misappropriation of their personal brand.”

The Lawsuit

Filed on November 15, 2024, in Dallas County, the lawsuit alleges breach of contract, invasion of privacy by misappropriation, negligence, and violation of the Texas Deceptive Trade Practices Act, among other violations of various state acts protecting Latch’s right to control her NIL. Latch seeks injunctive relief as well as damages exceeding $10 million.

Latch, a highly regarded actress and infomercial host, has appeared in commercials for many major brands, including Chase Bank, AT&T, and American Airlines.  According to the lawsuit, “Plaintiff, like all other actresses, does not allow her image and likeness to be used for free.” Latch asserts that, “[w]ithout strict enforcement of her contractual agreements and privacy rights, [Latch] knows that her brand loses its value.”

The lawsuit alleges that Latch filmed her Biote commercials in 2013. At that time, she entered into an Image Usage Contract with Biote detailing the cost of using her NIL. The contract automatically renewed annually and Latch was paid from 2013 through 2021. 

According to Latch, in 2021 Biote refused to honor the contract terms, while continuing to use her image and likeness in its national corporate marketing. In March 2021, Latch sent Biote CEO Terry Weber an invoice, as well as links to Biote-affiliated websites, confirming Biote’s continued use of her image. Two months later, Biote Chief Digital Officer Kevin Key told Latch that Biote was no longer using her likeness and that any continued use by others was not the company’s responsibility.  

In September 2024, Latch again contacted Weber and asked Biote to cease use of her image. However, in blatant disregard of Latch’s repeated requests, she continues to play a starring role in Biote corporate marketing to this day. During the December 9 hearing, Latch introduced exhibits that illustrate the national reach of these violations.

The lawsuit states that, “While in breach, Biote evaded Ms. Latch’s requests to remove her image from Biote affiliated websites. Further, Biote refused Ms. Latch payment for the use of her image in accordance with the renewal terms of the contract.”

Brewer confirmed that at least 75 practitioners continue to use Latch’s NIL in promotional materials. This continues despite the TRO issued in November.

“We suspect there could be thousands of Biote partners continuing to use her image and likeness,” says William Brewer. “Our client’s brand is her currency, and she will pursue all remedies to which she is entitled.” 

In addition to Mr. Brewer, Latch is represented by Brewer associates Joshua Harris and Nicholas Cacciarelli.

New York Times Reports on NRA, Legal Advocacy

December 5, 2024 – The New York Times reports today, in part, about the National Rifle Association of America (NRA) and its “advocacy” in defense of its independence. As many of you know, in August 2020 the New York Attorney General (NYAG) filed a “dissolution lawsuit” against Brewer client the NRA.

Amid questions about the NRA’s legal strategy, firm partner William A. Brewer III noted that Brewer, with the support of NRA leadership, helped the Association successfully “confront a barrage of blue-state regulatory investigations,” including an effort by New York regulators to eliminate the group. The NYAG’s dissolution claims against the NRA were dismissed, and her bid for a court-appointed monitor was rejected by the court earlier this year.

 Brewer told The Times:

“My firm handles bet-the-company, life or death advocacy. The NRA called and we helped them confront a barrage of blue-state regulatory investigations, a promised ‘corporate death penalty’ dissolution effort in New York, sweeping Russia-gate congressional inquiries, and a debanking effort condemned by the entire Supreme Court. Today, more than six years later, the NRA still stands – independent and free. We’re proud of that outcome, which we count as a win."

Read more here.

Brewer, Volokh Comment on First Amendment Case

November 26, 2024 – Firm Partner William A. Brewer and First Amendment scholar Eugene Volokh posted an update on the NRA’s First Amendment lawsuit against former New York financial regulator Maria T. Vullo. The report appears on REASON, as a segment of Professor Volokh’s blog, “The Volokh Conspiracy.”

In setting the stage for a successful appeal to the U.S. Supreme Court, the two write, “We were joined by the American Civil Liberties Union (ACLU), as the NRA appealed this ruling to the United States Supreme Court for the NRA. In a rebuke from a unanimous Court, Justice Sonia Sotomayor revived the NRA's claims this past June, emphasizing decades of precedent that "[a] government official cannot coerce a private party to punish or suppress disfavored speech on her behalf." Moreover, the Court said, Vullo's alleged conduct struck at the heart of this prohibition. In light of the Court's guidance on the First Amendment merits of the NRA's allegations, Sotomayor added, the Second Circuit was free to reconsider the issue of qualified immunity, i.e., whether Vullo's alleged violations were such that the NRA should be able to sue her individually for damages.”

Read the report here.

Law360 Reports on Lawsuit Brought by Actress Against Biote

November 25, 2024 – Law360 reports that Brewer client and commercial actress Cindy Latch accused the Biote hormone treatment company and its affiliates of improperly using her image and likeness in promotional materials promoting its therapy.

 The article, “Hormone Therapy Co. Jilted Actress Over Image Use, Suit Says,” reports that Latch had an image use contract that automatically renewed from 2013 through 2021, but that Biote stopped paying her in 2021 as affiliates continue to her use her image to sell products. The complaint stated that, “Defendant blatantly misappropriated plaintiff's image and likeness—using her personal brand to sell products, cultivate customer relationships, and promote its corporate brand,"

William A. Brewer III, counsel for Latch, said in a statement her "currency is her personal brand."

"As is customary, she entered into an agreement to allow Biote to use her image and likeness," Brewer said. "Unfortunately, Biote continues to use plaintiff's personal brand while simultaneously denying her just compensation."

In addition to Brewer, Latch is represented by Brewer associates Joshua Harris and Nicholas Cacciarelli.

Read more here.

Biote Faces Claims for Misappropriating Name, Image or Likeness of Actress

Dallas, TX…November 21, 2024 – A lawsuit filed by Brewer, Attorneys & Counselors client and actress Cindy Latch in Dallas County court alleges that Biote Medical, LLC and its affiliated practitioners used Latch’s name, image, or likeness (“NIL”) to promote the company without Latch’s consent.

The case, which provides insights into often misunderstood NIL arrangements, is the latest in a string of high-profile lawsuits involving Biote and its executives. The complaint alleges that Biote continues to leverage Latch’s NIL to promote the company’s hormone therapy products without compensating her and in violation of her legal rights.

Filed on November 15, 2024, in Dallas County, the lawsuit alleges breach of contract, invasion of privacy by misappropriation, negligence, and violation of the Texas Deceptive Trade Practices Act, among other violations of various state acts protecting Latch’s right to control her NIL. Plaintiff seeks injunctive relief to restrain Biote, its affiliates, and practitioners from using her likeness to further the company’s business. The lawsuit also seeks damages in excess of $10 million.

Latch, a highly regarded actress, has worked as an infomercial host, appearing in commercials for many major brands, including Chase Bank, AT&T, and American Airlines. According to the complaint, Latch notified Biote that it was improperly using her likeness even though its right to do so had expired.

“Our client’s currency is her personal brand,” says William A. Brewer III, partner at Brewer and counsel to Ms. Latch. “As is customary, she entered into an agreement to allow Biote to use her image and likeness. Unfortunately, Biote continues to use Plaintiff's personal brand while simultaneously denying her just compensation.”

The lawsuit says, “Plaintiff, like all other actresses, does not allow her image and likeness to be used for free.” Latch seeks to ensure that Biote abides by its agreements and concludes that, “Without strict enforcement of her contractual agreements and privacy rights, Plaintiff knows that her brand loses its value.”

The lawsuit alleges that Latch filmed the Biote appearance in 2013. She entered into an Image Usage Contract with Biote, laying out terms that include the cost of use. The contract was automatically renewed, and Latch was paid from 2013 through 2021. According to the complaint, this is when the trouble began.

Latch alleges that in 2021, Biote began refusing to honor the contract terms, and yet continued to use her image and likeness in its corporate marketing. In March 2021, Latch sent Biote CEO Terry Weber an invoice and links to Biote-affiliated websites – to confirm the continued to use her image.

According to the lawsuit, two months later, in May 2021, Biote Chief Digital Officer Kevin Key told Latch, untruthfully, that Biote was no longer using her likeness and that any continued use was not the company’s responsibility.

Key wrote to Latch that, “You’ve been erased from existence inside the Biote walls, your image or any likeness thereof has been permanently deleted.”

In September 2024, Latch again contacted Weber and asked Biote to cease use of her image. As of today, several certified Biote providers and practitioners are still using Latch’s NIL to promote the sale of Biote’s products. Plaintiff plays a visible and starring role in Biote corporate marketing:  the lawsuit includes links to footage of the commercial branding in question. 

The lawsuit states that, “While in breach, Biote evaded Ms. Latch’s requests to remove her image from Biote affiliated website. Further, Biote refused Ms. Latch payment for the use of her image in accordance with the renewal terms of the contract.”

Miami Herald Reports on Lawsuit by BAC Client Lourdes Castillo Against Dori Foster-Morales

November 1, 2024 – The Miami Herald reports today on a lawsuit by Brewer client Lourdes Castillo against former Florida Bar President Dori Foster-Morales and her law firm. As reported, Castillo alleges that the firm’s legal malpractice, breach of contract and breach of fiduciary duty in connection with her divorce proceedings cost her more than $1 million.

“The complaint says it all: when our client’s divorce proceedings became complex and contentious, she retained defendants to protect her interests,” said Brewer partner William A. Brewer III. “Unfortunately, defendants were regularly unprepared for key court and arbitration events, caused Ms. Castillo to unwittingly waive substantial rights, and abandoned her during the most important time of her life.”

Brewer told the Herald, “defendants do not appear to dispute any of the claims and allegations against them – choosing instead to peddle a false narrative about fee arrangements involving a former client. Ms. Castillo is shocked by the conduct and the notion that a law firm would so blatantly disregard its professional obligations.”

Law360 Reports on Lawsuit Against Former Florida Bar President

October 21, 2024 — Law360 reports on a lawsuit by Brewer client Lourdes M. Castillo against Dori Foster-Morales and her law firm in an article titled, "Ex-Florida Bar Prez Accused of Malpractice in Divorce Case." As reported, Castillo is a former Foster-Morales' client who alleges Foster-Morales "breached her duty by dragging out the proceeding and causing damages stemming from a disagreement over a marital residence."

Filed in Miami-Dade County Civil Court, the four-count complaint accuses Ms. Foster-Morales, a former Florida Bar president of breach of contract, breach of duty, malpractice, and breach of implied covenant of good faith and fair dealing. 

Brewer Managing Partner William A. Brewer III told Law360 that the defendants failed to protect his client's rights.

"The complaint says it all: when our client's divorce proceedings became increasingly complex and contentious, she retained defendants to protect her interests," Brewer said. "Unfortunately, they were regularly unprepared for key court and arbitration events, caused Ms. Castillo to unwittingly waive substantial rights, and abandoned her during the most important time of her life."

To read the full report (subscription required), click here.