Keel v. Axelrod

148 F. Supp. 3d 411, 117 U.S.P.Q. 2d (BNA) 1246, 2015 U.S. Dist. LEXIS 160725, 2015 WL 7733973
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 1, 2015
DocketCIVIL ACTION NO. 15-1507
StatusPublished
Cited by2 cases

This text of 148 F. Supp. 3d 411 (Keel v. Axelrod) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keel v. Axelrod, 148 F. Supp. 3d 411, 117 U.S.P.Q. 2d (BNA) 1246, 2015 U.S. Dist. LEXIS 160725, 2015 WL 7733973 (E.D. Pa. 2015).

Opinion

MEMORANDUM OPINION

Goldberg, District Judge

This case centers around a short passage in a book authored by David Axelrod, titled Believer: My Forty Years in Politics. Plaintiff Frank Keel (“Keel”), a Pennsylvania based political and media consultant, initiated this lawsuit against Defendants Axelrod and Penguin Random House, LLC (“Penguin”) pursuant to 15 U.S.C. § 1125(a) of the Lanham Act and Pennsylvania’s law on unfair competition.1 The passage in question describes a political strategy devised and implemented during the 2003 reelection campaign of former Philadelphia Mayor John F. Street. Keel alleges that Axelrod falsely took credit for the political consulting services described in that passage, which Keel asserts he developed himself, without any input from Axelrod-Keel explains that Axelrod has caused potential clients to believe that the political consulting services described in Believer were devised by. Axelrod and that this misrepresentation caused- and will continue to-cause Keel to lose business. Keel also claims that Penguin, as the publisher of Believer, is vicariously and/or contributorily liable for Axelrod’s false representation in the passage.

Before me is Defendants’ motion to dismiss Keel’s complaint. Because Keel has not pled a plausible claim under the Lan-ham Act or the accompanying state law claim, I will grant Defendants’ motion.

I. FACTUAL BACKGROUND

When deciding a motion to dismiss for failure to state a claim brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court must assume the veracity of all well-pleaded facts found in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Viewed in that light, the complaint centers around two political consultants — Philadelphia-area public relations consultant Frank Keel, and David Axelrod, a “campaign and media strategist for Democratic candidates seeking public office at the national, state, and local levels.” Keel credits his success as a political consultant to the services he provided as a “spokesman, media advisor, and crisis manager” for numerous. Democratic hopefuls across Pennsylvania since the early 1990s.2 Keel claims that perhaps the most pivotal moment in his consulting [414]*414career was the 2003 reelection campaign of former Philadelphia Mayor Street, which included both Keel and Axelrod as consultants tasked to keep Street in office. The complaint describes" Keel’s successful, strategic management of the beleaguered Street campaign as Keel’s “watershed career moment.” (Compl. ¶¶ 7, 14, 17-19.)

The complaint goes on to allege the following facts regarding the Street campaign: The incumbent Street was in a close race with Republican challenger Sam Katz in the weeks leading up to the election. On October 7, 2003, members of the Philadelphia Police Department discovered an FBI listening device in Mayor Street’s City Hall office, reportedly placed there as part of a “federal investigation into City Hall corruption.” The discovery of the listening device prompted concerns from the media, who wanted to know why Street was the target of an FBI investigation. On the evening of October 7, 2003, Street held an impromptu press conference, where he assured the public he had “done nothing wrong.”' (Id. ¶¶ 17, 20-24; see also Ex. 3.)

Keel alleges that in the hours after this press conference, h¿ proposed, “[a]s part of the consulting services he was providing to Mayor [Street],” that the campaign “publicly announce that the bug was part of a ’Republican dirty-trieks’ strategy.” Keel claims-that he suggested that Street’s campaign should publicly represent that the listening device scheme originated high in the George W. Bush administration, and was placed to swing Philadelphia and Pennsylvania for the Republican Party in the upcoming 2004 presidential election. Keel" states that he was authorized by Street’s campaign Manager Shawn Ford-ham (“Fordham”) to implement the “Republicans Did It” strategy on the morning of October 8, 2003 at a civic event, where Keel announced that instrumental members of the national Republican Party were the likely origin of the1 listening device. According to Keel, Fordham corroborated his role as the “lead” in the campaign’s effort to “fight back ’the bug,”’ and, during the relevant time, Keel allegedly spoke to reporters to reinforce the new campaign strategy. Finally, Keel’s complaint states that he “conceived and implemented” the “Republicans Did It” strategy on his own, without any “input or involvement” from Axelrod. (Compl. ¶¶ 25-38.)

Based on this background, Keel asserts that a single passage of Axelrod’s 488-page book Believer violates the Lanham Act. The short excerpt at issue states:

As we approached the final month of the campaign, I got a call from George Bur-rell, Street’s savvy political deputy at City Hall.
“I think we have a problem.”
“Problem?” I asked warily.
‘Yes, it seems we’ve found a bug in the mayor’s office.” “A bug?”
‘Yes, a listening device.”
“And who do we think this bug belongs to?” I said. I really didn’t have to ask, but was hoping against hope for an unexpected explanation.
“It appears to belong to the -United States government,” Burrell said, slamming the door on my wishful thinking. Four weeks before the election, the news would be filled with headlines about a federal investigation of the may- or ánd his administration. It struck me, as I thought about it, that this was our problem'- but also our opportunity. In an overwhelmingly Democratic town, a probe launched by the Republican Justice Department in Washington would surely be greeted with skepticism, perhaps even outrage. I called Burrell back. “We need to hold a press conference on the steps of City Hall and accuse John Ashcroft of trying to steal this election.”
[415]*415(Attorney General’ Ashcroft, a well-known conservative ideologue, was highly unpopular among Democrats.) When Street confronted reporters, frantic over the news, he came armed with a .line I had written for him: “I’m happy to speak into a microphone I can see!”

(Id. ¶¶ 44-46; Ex. 7 at 141-42.)

Keel asserts that readers of the Believer excerpt would believe that Axelrod, rather than Keel, actually advised the Street campaign to implement the “Republicans Did It” strategy. Keel’s complaint goes on to explain that one day after the initial press conference where he announced that the Republicans were behind the listening device, Axelrod emphasized that “[t]he worst thing we can do in a situation like this is make rash decisions based on the politics of the moment.....There’s a lot we don’t know about this ” According to Keel, Axel-rod demanded that he “immediately” stop implementing the “Republicans- Did It” strategy. In short, Keel claims that the Believer excerpt misappropriates Keels-public relations services, by falsely crediting those services to Axelrod. (Compl. ¶¶ 42, 48-49, 52; Ex. 8.)

In asserting that

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148 F. Supp. 3d 411, 117 U.S.P.Q. 2d (BNA) 1246, 2015 U.S. Dist. LEXIS 160725, 2015 WL 7733973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keel-v-axelrod-paed-2015.