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June 23, 2010 2:21 PM

Nixon Peabody, K&L Gates Spar Over Wrestling Widow's Suit Against WWE and Senate Candidate

Posted by Zach Lowe

Our days as a wrestling die-hard ended sometime in the Hulk Hogan era, but we still remember--quite vividly--hearing about Owen Hart's tragic death in 1999, when he fell 80 feet to his death from a zip cord apparatus in front of a live World Wrestling Entertainment (then World Wrestling Federation) audience. It's hard to forget an event like that. Hart's widow, Martha, filed wrongful death claims against WWE for $18 million a decade ago. But she retained Nixon Peabody to file a new suit on Tuesday accusing WWE and former company CEO Linda McMahon--who happens to be running for the U.S. Senate--of misusing Owen Hart's name and likeness in promoting DVDs and other properties, according to court records and the Hartford Courant

Regular WWE outside counsel Jerry McDevitt of K&L Gates will defend the company in the case. He told us Wednesday his firm will be filing a motion to dismiss soon. McDevitt has been advising the WWE or its predecessors since 1987, when he got Jim "The Anvil" Neidhart acquitted of charges of attacking a flight attendant in a drunken brawl. The firm has since represented WWE and owner Vince McMahon in trademark cases, the company's IPO, and the government's famously ill-fated steroids prosecution of WWE and McMahon. 

Martha Hart found Nixon Peabody through the Canadian firm Cassels Brock, says Gregg Rubenstein, one of the Nixon partners on the matter. Cassels advised Hart in filing a similar suit against WWE in Canada in March in which she sought an injunction preventing the sale of a video featuring Owen Hart's name and likeness. (The judge dismissed the case and ordered Hart to pay WWE's attorneys' fees.) Nixon Peabody did not work on prior litigation related to Owen Hart's death, Rubenstein says.

The new complaint claims that Hart's contract with WWE called for the rights to his name and likeness to revert to Hart or his estate upon the termination of the contract. That clause relates only to intellectual property that existed before Hart signed with WWE, Rubenstein says. WWE disputes Hart's interpretation of the clause, saying the company also has the right to "tell Owen's story," according to K&L Gates's McDevitt. WWE retains the right to characters it created for Hart and other similar IP in perpetuity, though Martha Hart's suit claims the company is not paying royalties as called for in Hart's contract. "She has never received one check for royalties," Rubenstein says. McDevitt wouldn't address the claims about the unpaid royalties, but he says he will move to have the entire complaint dismissed shortly. 

McDevitt also says Hart has obvious political motives, given that the company heard nothing from her for ten years before she filed her suit Tuesday naming the company and the McMahons as individuals. That last tidbit is key, McDevitt says, noting that Hart did not name Linda McMahon in the Canadian litigation.

Rubenstein says the new suit's timing is not related to McMahon's run for Senate. McMahon recently won the Republican endorsement and will likely challenge Connecticut's attorney general, Richard Blumenthal, in the general election. Hart was spurred to file the Canadian and U.S. suits after recently learning of a WWE-produced DVD about the Hart family's deep legacy in professional wrestling, according to Rubenstein.

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