Sheppard Mullin's John Keville: 'Credibility' Key to $71.4M Verdict in OMG Girlz Trial
Sheppard Mullin Houston Office Managing Partner John Keville's team scored a victory for the Atlanta-based pop group in the case's third trial over trade dress infringement.
October 01, 2024 at 10:09 AM
By Michelle Morgante
What You Need to Know
- The OMG Girlz argued their likenesses had been used by toymaker MGA Entertainment.
- A 2023 trial ended in a mistrial; a second favored MGA.
- Keville credited his team's success to focusing on the strongest points and credibility.
After enduring three trials over nearly four years, creators of the Atlanta pop group OMG Girlz are celebrating after a California jury agreed their likenesses had been stolen by a toy manufacturer and awarded them $71.4 million.
John Keville, Rob Green and Chante Westmoreland of Sheppard, Mullin, Richter & Hampton led the trial team that secured the Sept. 23 verdict in the U.S. District Court for the Central District of California.
Navigating the case's complex journey, which saw one mistrial and one victory for toymaker MGA Entertainment, was a challenge—but one that gave the Sheppard Mullin team an opportunity to focus on their case's strongest elements and to underscore the credibility of their witnesses before the jury, said Keville, who is the firm's office managing partner in Houston and a partner in the intellectual property practice group.
"Trials are won and lost on credibility. So, your witnesses have to be prepared and be honest," he told The Recorder in a phone interview on Sept. 25. "I think our witnesses had a lot of credibility."
The case centered on a series of dolls that were created by MGA Entertainment, based in Chatsworth, California, and sold as LOL Surprise! OMG fashion dolls. Creators of the OMG Girlz pop group, including rapper Clifford "T.I." Harris and his wife, singer-songwriter Tameka "Tiny" Harris, said the dolls and their colorful styles were based on the performers' likenesses.
Representatives of the group sent a cease-and-desist letter to MGA on Dec. 8, 2020, which prompted MGA to file the dispute's original complaint later that month. In it, the company argued "no reasonable consumer would mistake an LOL Surprise! OMG fashion doll as a derivative work of the OMG Girlz group." It sought a declaratory judgment that its products did not infringe on the group's marks.
In a response and counterclaim filed in October 2021, OMG Girlz LLC and other defendants said MGA, in December 2010, had publicly announced its intention to launch a line of dolls modeled after the performers. Defendants said they entered into good faith negotiations with the company, but were unable to reach an agreement.
In 2019, it said, MGA released a line of OMG dolls that were "strikingly similar" to the performers' physical appearance, hairstyles and clothing. When the defendants pressed for a licensing agreement, "MGA instead pre-emptively filed a lawsuit claiming that they alone created and owned the name and image of the OMG dolls," it said.
MGA denied any wrongdoing in its response filed in November 2021.
The first trial, held in January 2023, was cut short when District Judge James Selna declared a mistrial. A second trial ended in May 2023 with jurors ruling in favor of MGA.
Keville, who joined the case shortly before the second trial, said that proved to be "like the most expensive mock trial you can ever have."
The Sheppard Mullin team gathered feedback from jurors and took apart the case to learn from it and design a strategy that would deliver a win, asking themselves, "Where were things that we didn't see that we could have improved?" he said.
Originally, dozens of dolls were involved, said Keville. A complaint about the trademark went out on a summary judgment, narrowing the dispute to a trade dress case involving 32 dolls. After the second trial, the team decided to focus on the dolls that would allow them to make the strongest argument for misappropriation, narrowing the matter to just seven dolls.
"The seven that we ended up going to trial on were ones that were tied to either a very specific event where you could say, 'You know, here was this specific tour or this specific show where they wore a particular outfit that comes remarkably close to what's on this doll,'" he said.
"That's really where we put the focus. There were a few others that we probably could have put in the mix, but it was really just trying to, at the end, really get it to where we were focused on the ones that you looked at them and you said, 'Wow, those can't all be a coincidence, right?'"
Keville said his team's witnesses had a lot of credibility before the jury in that they were able to point to specific examples of outfits worn at specific moments that were just "too similar" to those sold with the dolls. "One of our witnesses said 'You can look at them with your own eyes. You'll see it,'" he said.
The other side, however, failed to convince the jury when it tried to say it was simply a coincidence that several dolls were dressed in iconic looks made famous by celebrities like Audrey Hepburn and Elton John, Keville said. "You lose so much credibility when that happens," he said.
"I felt all along that our witnesses stood up there and were credible, and their witnesses took positions that you kind of had to shake your head at," he said.
Paul Loh, a Willenken partner who represented MGA at the trial, declined to comment on the case because the proceedings have not concluded. MGA did not respond to a request for comment.
According to Sheppard Mullin, District Judge James Selna is still considering possible enhancement of damages based on the jury finding of willful trade dress infringement. The Sheppard Mullin team has asked that any hearing on the matter be scheduled within 30 days, but a date has not yet been set.
Keville said the jury's decision rewarded his clients' determination to stand up for artists and the protection of their creative works. The Harrises and members of the group "all felt very strongly" about the importance of their case.
Group member Bahja Rodriguez said in a social media post, "This is for creatives everywhere. No longer will we be bullied into silence when it comes to others profiting off of our ideas and creativity."
Messages sent to the group were not immediately answered.
As for the secret behind the Sheppard Mullin team's success, Keville said it's essential to start hard in discovery and "really dig in early on to find where things really came from."
Secondly, he said, "You have to really believe in a case like this. When you're David and you're out fighting Goliath … you have to really believe in your case and you have to have clients that feel strongly and believe in it as well. And they did."
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