M W MOODY LLC

Attorneys for Plaintiff

By: Mark Warren Moody

25 Peck Slip, #2
New York, New York 10038
ph: 917-414-7886
e: mwm@mwmoody.com
MWM 3742

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------X Case No.
FRANK OWEN,

Plaintiff, COMPLAINT
JURY TRIAL
DEMANDED
-against-

GERALD L. POSNER, SIMON &

SCHUSTER, INC., and JOHN DOES 1-50,

Defendants.
----------------------------------------------------------X

Plaintiff FRANK OWEN, by his counsel, M W MOODY LLC, as and

for his Complaint against defendants GERALD L. POSNER, SIMON &

SCHUSTER, INC., and JOHN DOES 1-50, alleges as follows:

PRELIMINARY STATEMENT

1. This is an action for, inter alia, Gerald L. Posner‟s willful and

admitted copyright infringement in Posner‟s book “Miami Babylon: Crime,

Wealth, and Power – A Dispatch from the Beach” (hereinafter “MB”).1

2. Without authorization, Posner copied portions of “Clubland:

The Fabulous Rise and Murderous Fall of Club Culture.” (hereinafter

“Clubland”).

3. Clubland was investigated and written by Plaintiff Frank Owen.

4. Not only did Posner engage in numerous examples of

word-for-word copying from Clubland, but he stole, inter alia, Frank Owen‟s

investigative work, selection, and sequencing.

5. In relevant part, MB is little more than a frequently verbatim

précis of significant portions of Clubland, a verbal reduction sauce in which

30,000 words are reduced down to approximately 10,000 and yet the flavor

remains the same – Clubland flavor.

6. Posner also stole from numerous other sources to create

MB2 (and as of this date is no stranger to claims of plagiarism in connection

with many of his other works).

7. Posner has confirmed, in connection with his copyright

infringement, that he is “a thieving c---sucker.”

1
MB has copyright registration TX0007058686, and was registered on October 20,
2009.
2
For example, Posner stole from Michele McPhee‟s “Mob Over Miami”, Francisco
Alvarado‟s “Beating Whitey”, as well as articles in The New York Times including
verbatim expression from Alan Feuer‟s July 3, 2000 article “In Miami, an Imported Mob
Scene”.

2
 8. Upon admitting his theft, Posner blamed numerous spurious

excuses – including his wife Trisha, and an incomprehensible theory about

“trailing end-notes” – for his indisputably intentional misconduct.

9. Trisha, who apparently worked closely with Posner on MB,

has claimed to have been literally “sick over” her husband‟s theft, and

described her husband as “horrified” at his misdeeds.

10. Upon information and belief, Posner‟s horror was at getting

caught. Genuine horror at his conduct would have prevented his conduct;

conduct that is in derogation of all known ethical and legal standards for

basic journalism.

11. Simon & Schuster, Inc. (“SS” or “Simon & Schuster”) which

publishes MB, in spite of alleged repeated requests for comment, has been

publically silent, although it continues to profit from sales of MB and has

not denounced Posner or MB as unacceptable theft.

12. Upon information and belief, SS has conducted an internal

investigation of Posner‟s copyright infringement in MB, but has not released

the results.

13. If SS has not conducted such an internal investigation, it should

have done.

3
 PARTIES

14. Posner is an attorney currently registered in, and licensed to

practice law in, New York State.

15. Upon information and belief, Posner resides in Miami Beach,

Florida.

16. Upon information and belief, SS is a domestic business

corporation organized and existing under the laws of the State of New York.

17. Upon information and belief, SS headquarters are located in

New York, New York at 1230 Avenue of the Americas.

18. Simon & Schuster is, according to it, a “global leader” in book

publishing, “dedicated” to providing “quality books” which “prides itself on

its culture of innovation”.

19. At all relevant times, SS published, sold and marketed MB, and

continues to do so to this day.

20. SS has published, sold, and marketed MB nationally.

21. Upon information and belief, SS has published, sold, and

marketed MB internationally, including through SS‟s website.

22. MB has been sold in numerous bookstores throughout New

York City and New York State.

23. Frank Owen resides in Miami Beach, Florida.

4
 24. Mr. Owen owns copyright registration TX0005717964 for

Clubland, registered with the United States Copyright office on April 18,

2003.

25. JOHN DOES 1-50, upon information and belief, are individuals

and/or entities, related to the facts, allegations and causes of action,

presently unnamed but who may be named as additional defendants as a

result of discovery, investigation or other legal endeavors directed at, inter

alia, the assessment of their respective or joint liabilities.

JURISDICTION AND VENUE

26. This action arises under 17 U.S.C. § 101, et seq. for

defendants‟ authorship, publication, and sale of MB in violation and

infringement of plaintiff‟s copyright in Clubland.

27. Injunctive relief, profits and actual damages or statutory

damages are sought pursuant to 17 U.S.C. §§ 502-504.

28. Costs and plaintiff‟s attorneys‟ fees are sought pursuant to 17

U.S.C. § 505.

29. The court has jurisdiction of this action pursuant to 28 U.S.C. §

1331.

30. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(b).

5
 FACTUAL BACKGROUND TO THIS ACTION

A. Miami Babylon Steals Clubland’s Heart, And The Press Praises

Posner for Mr. Owen’s Writing.

31. Clubland‟s heart is its treatment and portrayal of Chris Paciello,

the notorious movie star-like gangster – who occupies approximately one

quarter (1/4) of Clubland, and provides a conclusion for the book.

32. Chris Paciello‟s extensive and substantial treatment in MB

(indeed, MB‟s dust-jacket highlights Chris Paciello‟s importance to MB,

stating: “the Staten Island thug who became king of the South Beach

nightclubs only to have his empire unravel”) was – almost entirely – copied

from Clubland.

33. Not coincidentally, while Miami Babylon received generally

poor reviews from the critics, Posner‟s treatment of Chris Paciello has

received critical acclaim.

34. It was almost all Mr. Owen‟s writing.

35. In a December 24, 2009 New York Times review, Bryan

Burrough described MB as only able, in part, to “keep one‟s attention for a

bit”.

36. Mr. Burrough decries the lack of a “single protagonist”, stating

that “Characters revolve through [MB‟s] pages as if in turnstiles”, rendering

Miami Babylon devoid “of any real drive”.

6
 37. Nonetheless, finding some pleasure in MB, Mr. Burrough states

that the stories of the Northeastern Mafiosi are “among the book‟s finest”,

and then that “Posner is especially good on the „Staten Island wannabe

gangster‟ Chris Paciello.”

38. It was not, however, Posner that was especially good on Mr.

Paciello; it was Mr. Owen.3

39. Posner used Mr. Owen‟s portrayal of Chris Paciello because he

believed that Mr. Owen‟s work was the best on the subject.

40. Apparently Posner believed Mr. Owen‟s work to be better

than his own.

41. Mr. Owen‟s creativity, organization, writing, verbiage, syntax,

quotation selection, and work brought Mr. Paciello to life in MB, not Posner

– who chose the easy way out, and stole to make a quick buck.

B. Mr. Owen Did An Enormous Amount of Work Creating Chris

Paciello.

42. Clubland was the product of five years of intensive journalistic

3
Posner has been – at least according to Barnes & Noble (.com) which is trying to
sell Miami Babylon – roundly praised for his "exhaustive research techniques" by The
New York Times, and by The Boston Globe who described Posner as "an investigative
journalist whose work is marked by his thorough and meticulous research." Similarly,
The Dallas Morning News described Posner as "A resourceful investigator and skillful
writer". Posner has bathed in this entirely misplaced and inaccurate praise. Describing
Posner as a skilled investigative journalist is like describing a jewelry thief as a great
jewelry designer when his spoils are sold off as his own. This truth is borne out by the
fact that MB‟s dust-jacket describes Posner as “chief investigative reporter for The Daily
Beast”, a post that Posner no longer holds – he “resigned” due to his plagiarism.

7
investigation by Mr. Owen. He literally put his life at risk for his art (and his

profit).

43. Mr. Owen was followed in the street on at least two occasions,

and received a number of death threats.

44. He first heard the name Chris Paciello – as a Mafia-connected

protector of the drug trade at the Limelight club – during the summer of

1994 after a massive brawl at New York nightclub Sound Factory.

45. Thereafter Mr. Owen relentlessly pursued information about

Paciello.

46. Paciello was by far the hardest of Clubland‟s characters to

create. Such was Paciello‟s fearsome reputation, people were afraid to talk.

Eventually, through Mr. Owen‟s aggressive reporting4, he managed to gain

the co-operation of two junior mobsters who had committed crimes with

Paciello as members of the Bath Avenue Crew, a gang controlled by the

Bonanno crime family.

47. Additional aspects of Chris Paciello‟s character in Clubland

came from a highly placed Miami Beach socialite who was a close friend of

Paciello and provided information about Paciello‟s personal life to Mr.

Owen that ended up in MB – having been copied directly from Clubland.

4
“Owen is a tireless reporter,” The NY Times said in its review of Clubland.

8
 48. This was all work that Posner stole without regard or respect for

the sweat of Mr. Owen‟s brow, nor for the eloquence of his quill.

C. An Isolated Selection of Gerald Posner’s Theft from Mr. Owen.

49. Posner stated, in connection with the New York Court of

Appeals‟ decision in Tasini v. The New York Times:

“The words I write are my principle asset. By affirming that I own

what I have created, the court has increased the economic value of my
work, and eased the path to independent writing, research, and
scholarship.”

50. As is illustrated by the following side-by-side comparison of

Mr. Owen‟s words and “Posner‟s” words, Posner has not lived up to those

fundamental purposes of copyright law that he once lauded:

CLUBLAND MIAMI BABYLON

(i) [Ingrid Casares] needed a [Ingrid Casares] realized that she
substantial profession to prove she „needed a substantial profession to
was more than just a drug-addled prove I was more than just a drug-
sycophant. addled sycophant.‟6
P.1145 P.286
(ii) By the early summer of 1999, By the early summer of 1999, Chris
Chris Paciello was convinced that he Paciello wanted an extra edge to
needed an extra edge to crush his crush his nightclub rivals.
rivals.
P.276 P.322

5
“P._” is a reference to page numbers in the hardback copies of Clubland and MB
respectively.
6
This is one of many examples of Posner attempting to nefariously hide his
infringement. The quote attributed to Ingrid Casares is falsified by Posner (like many of
his other „facts‟). The language Posner credits to Ms. Casares was actually Clubland
language, and is just one more example of Posner stealing from Clubland.

9
(iii) Three other gangster buddies that
Caruso betrayed were Robert
Gordon, Frankie „The Baker‟
Romano, and Paul Torres.
Unbeknownst to them, he had
fingered the trio to the government as
the key lieutenants who helped run
the Limelight‟s violent drug ring.
Following the law enforcement
crackdown on the Limelight, Gordon,
Torres and Romano had relocated to
Miami Beach, where they were hired
by Chris Paciello to work at Liquid,
which they quickly dubbed
„Limelight South‟.
P.227
(iv) [T]he crew didn‟t resume selling
drugs. But they did continue to
commit armed robberies of rival dope
peddlers, often acting on information
they‟d heard around the club. In early
1997, the trio got a tip. A major drug
dealer had $50,000 stashed in his
beach front apartment. They went to
his place posing as delivery men.
P.227
(v) After getting the victim to let
them out, they fled empty- handed.
P.227
7
The phrase “the dealer freed himself” is also a phrase in the same section copied
by Posner from Clubland. Mr. Owen wrote that the dealer “ran onto the balcony
screaming”.
10
Robert Gordon, Frankie „The Baker‟
Romano and Paul Torres, Lord
Michael‟s key lieutenants for his
Limelight Ecstasy ring, had moved
to South Beach when the police had
closed Limelight, Paciello hired
them at Liquid, which they dubbed
„Limelight South‟.
P.322
They did not resume selling drugs,
but using information picked up
around the club, they ripped off drug
traffickers. In 1997, the trio got a tip
that a local dealer had stashed
$50,000 at his beach front apartment.
Posing as delivery men, they went to
his place, tied him up and hunted for
the money.
P.322
When the dealer freed himself and
ran to the balcony, screaming for
help7, they fled empty-handed.
P.322
(vi) [A]fter the Voice revealed After The Village Voice published a
Paciello‟s mob connections, and the story about Paciello‟s criminal
New York Post columnist Jack history and links to mobsters, and
Newfield followed up with series of New York Post columnist Jack
columns praising the grass-roots Newfield wrote a series of columns
effort to deny Paciello and Casares a praising the grass-roots effort to
liquor license, the deal was taken off deny Paciello and Casares a liquor
the table. license, the deal was dead.
P.321
P.230
(vii) The deputy mayor vowed that The deputy mayor vowed that he
he would oppose a Liquid anywhere would oppose a Liquid anywhere in
else in the city. „I can‟t believe those the city. „I can‟t believe those
fuckers said no to me,‟ Casares fuckers said no to me,‟ Ingrid
complained. „We were the victims of complained. „We were the victims of
bad press.‟ bad press.‟
P.230 P.320-321
(viii) Paciello was aware that behind He didn‟t mind that some of his
his back, his fabulous friends friends thought of him as a
whispered that he was a movie star Hollywood gangster come to life --
gangster come to life. Madonna was Madonna sang to him, Marilyn
rumored to have called him on his Monroe-style, „Happy Birthday,
last birthday and sung, Marilyn Dear Mobster‟ over the telephone.‟
Monroe-style, „Happy birthday, dear
mobster‟ down the phone.‟
P.264 P.321
(ix) The upscale Bar Room, with its The exclusive Bar Room, with its
strict dress code and tight guest list,
strict dress code and short guest list,
was Paciello‟s way of finally saying was Paciello‟s way of finally saying
good-bye to all the goombahs. good-bye to his street-tough
Brooklyn friends.
P.266 P.321
(x) One time he confessed to Dohler, One time he confessed, „Some of my
„Some of my buddies got locked up buddies got locked up back in New
back in New York. I used to pull a York. I used to pull a few jobs with
few jobs with them. I hope they don‟t them. I hope they don‟t rat me out.
rat me out. I‟m not going to go down I‟m not going to go down like John
like John Gotti, no way.‟ Paciello Gotti, no way.‟ Paciello knew that
knew that some of his Bath Avenue some of his Bath Avenue Crew

11
Crew associates who had participated
in the Shemtov murder had been
arrested by the FBI on racketeering
charges.
"You know Sammy the Bull?”
Paciello continued, working himself
up into a full-tilt rage. „They should
kill him and his whole family.‟
According to the feds, not long after
this conversation with Dohler,
Paciello paid $10,000 to a Mafia leg-
breaker to threaten a family member
of an unnamed source who Paciello
presumed was snitching on him to
the FBI. If the witness continued to
cooperate, the family member was
told, „Everybody is dead‟.
P.277
(xi) Paciello introduced him to high-
powered don Alphonse „Allie Boy‟
Persico, the personable but deadly
boss of the Colombo crime family.
According to the government,
Persico had recently ordered the
slaying of underboss and archrival
William „Wild Bill‟ Cutolo.
P.278
(xii) Before Cutolo was killed,
Paciello was reportedly paying him
$10,000 a week in tribute money that
now went to Persico.
P.278
12
associates back in Brooklyn -- who
all participated in the Shemtov
robbery had recently been arrested
by the FBI on racketeering charges.
He was nervous that one might try to
cut a deal.
„You know Sammy the Bull?‟
Paciello told Dohler, working
himself up into a full-tilt rage. „They
should kill him and his whole
family.‟ According to the Feds, not
long after that conversation with
Dohler, Paciello paid $10,000 to a
Mafia enforcer to threaten a family
member of someone Paciello
suspected was snitching about him to
the FBI. If the witness cooperated,
the family was told, „Everybody is
dead.‟
P.322-323
Paciello introduced the undercover
cop to Alphonse „Allie Boy‟ Persico,
the Columbo crime family don, who
had recently ordered the slaying of
underboss and arch-rival William
„Wild Bill‟ Cutolo.
P.323
Before Cutolo was killed, Paciello
was reportedly paying him $10,000 a
week in tribute money that Persico
now wanted.
P.323
(xiii) On November 23, 1999, a
federal grand jury in Brooklyn
returned a sealed indictment against
Paciello and eight other defendants,
all of them connected to the Bonanno
crime family. They were charged
with numerous murder, robbery, and
racketeering counts. Later the same
day, at around seven in the evening,
Bonanno captain Anthony Graziano
called Paciello"
„I‟m glad I got hold of you; I
gotta talk to you,‟ said Graziano.
„Could you do me a favor? Could
you put a kid on the list?‟
„Yeah, sure,‟ replied Paciello.
P.284
(xiv) On the first day of December,
Paciello was making last-minute
inspections of Liquid Lounge -- the
sprinkler system worked, there was
enough booze, the sound system had
been correctly balanced -- when he
noticed two hulking strangers
striding toward him. Paciello realized
that they had come to bust him. The
club owner turned on his heels,
quickly walked out the back door,
and fled the scene in his new Range
Rover. The agents dialed the
suspect‟s cell phone.
P.288
13
On November 23, 1999, a federal
grand jury in Brooklyn returned a
sealed indictment against Paciello
and eight other defendants, all
connected to the Bonanno crime
family, charging them with multiple
counts of murder, robbery, and
racketeering. Later that same
evening, Bonanno captain Anthony
Graziano telephoned Paciello.
„I‟m glad I got hold of you; I
gotta talk to you,‟ said Graziano.
„Could you do me a favor? Could
you put a kid on the list?‟
„Yeah, sure,‟ replied Paciello.
P.321
On December 1, Paciello was
inspecting the construction at Liquid
Lounge, his new club in West Palm
Beach, when two well-built strangers
came into the club. They looked like
cops. Paciello quickly went out of
the back door and sped away in his
Range Rover. The men were FBI
agents and they dialed his cell
phone.
P.326
(xv) „I‟m driving to my lawyer‟s
office. I‟ll talk to you from there,‟
Paciello reportedly told the agents.
Later that day, escorted by his
lawyer, Roy Black -- best known for
defending celebrity clients like Marv
Albert and William Kennedy Smith -
- he turned himself in to federal
authorities.
P.288
(xvi) At the December 15 bail
hearing, white limousines pulled up
outside the peeling Art Deco building
that houses the Miami Federal
courthouse. Out poured Paciello‟s
black-clad supporters.
P.290
(xvii) Paciello was flown to New
York and locked up in the high-
security Metropolitan Detention
Center, a windowless complex
located in an industrial
neighborhood, tucked under the
Brooklyn-Queens Expressway, not
far from Paciello's old stomping
ground.
P.294-295
„I‟m driving to my lawyer‟s office.
I‟ll talk to you from there,‟ he told
them. Later that day, one of Florida‟s
best hired guns, Roy Black,
accompanied Paciello when he
turned himself in at the U.S.
Marshall‟s office in downtown
Miami.8
P.326
At Chris‟s December 15 bail
hearing, a dozen limousines pulled
up outside the Miami Federal
courthouse. Out poured Paciello‟s
supporters.
P.326-327
Paciello was flown to New York and
was locked up in the high-security
Metropolitan Detention Center, a
windowless complex tucked under
the Brooklyn-Queens Expressway,
not far from his old stomping
grounds.
P.326

8
This section is included as an example of another feature of Posner‟s copyright
infringement. In addition to the verbatim, and near-verbatim copying evidenced above
and below, this example shows how Posner stole many of Mr. Owen‟s authorial choices
and decisions. Through approximately 10,000 words of Miami Babylon, Posner almost
exactly copied Mr. Owen‟s sequencing of events (even when not purely chronological);
Mr. Owen‟s use of third party sources; Mr. Owen‟s factual sequencing; Mr. Owen‟s use
of quotations and the emphasis provided by such quotations. In short, Posner‟s theft of
Mr. Owen‟s protected expression was not only by verbatim copying.

14
(xviii) To help finance Paciello's
legal defense, both Bar Room and
Liquid in Palm Beach were sold,
along with his yacht and Flamingo
Drive home. Paciello's empire was in
tatters.
P.299
(xix) Paciello spent the summer
under strict house arrest, under
twenty-four-hour guard at his
mother's humble house.
P.299
To help finance Paciello's legal
defense, both the Bar Room and
Liquid in West Palm Beach were
sold, along with his yacht and
Flamingo Drive home. His empire
was in tatters.
P.327
Paciello spent the summer under
twenty-four-hour guard and house
arrest at his mother's simple
Brooklyn home.
P.327

51. There are numerous other examples of Posner‟s theft of

Mr. Owen‟s protected expression contained in MB.

D. Miami Babylon was Designed by Simon & Schuster For A

Specific Opportunity Simon & Schuster Perceived in the
Marketplace.

52. In 2009, Posner gave a speech at the Miami Book Fair

during which he explained that Simon & Schuster proposed that he write a

book about Miami when Posner pitched a proposed book about the Vatican

to Simon & Schuster.

53. Upon information and belief, Simon & Schuster wanted Posner

to write a book about Miami in order to compete with the then recently

announced upcoming publication of Steven Gaines‟ book about Miami.

E. Gerald Posner Is Eligible For The Guinness Book of World

Records for Copyright Infringement.

15
 54. On or about February 11, 2010, having been suspended from

his post as The Daily Beast‟s „chief investigative reporter‟ for plagiarism,

Posner “resigned” his position.

55. Posner weakly justified his resignation and his theft in

connection with Daily Beast articles on the ground that the “warp speed” of

the internet made him do it.

56. That excuse is as poor, and indicative of willfulness, as

Posner‟s excuses for stealing Frank Owen‟s work.

57. Posner has claimed that he violated his own self-described,

uncorroborated, and heavily disputed “high standards”, yet his plagiarism

was not related solely to his authorship of articles for websites – as MB

proves.

58. Astonishingly, Posner even admits that his copyright

infringement was part of a career strategy.

59. In the vein of Doris Kearns Goodwin9 (unsurprisingly and

uncoincidentally, Simon & Schuster also published and publically defended

Ms. Kearns Goodwin‟s copyright infringement), Posner plans to be

able to emerge from his thievery in a couple of years and come back “with a

9
Doris Kearns Goodwin famously lifted a significant portion of three other books
in her book The Fitzgeralds and the Kennedys, retreated from book writing, and then
returned with a best-seller.

16
bulletproof, superb book” in which “he didn‟t put together two words from

anyone.”

60. Gawker.com has variously described Posner as an

“extraordinarily active plagiarist” and a “world class plagiarist” and the

number of then known instances of Posner‟s plagiarism as “comically high”.

61. Indeed, Gawker.com also opined that “Gerald Posner May Set

World Plagiarism Record.”

AS AND FOR A FIRST CAUSE OF ACTION

(Copyright Infringement)

62. Plaintiff repeats and realleges all of the foregoing allegations as

if fully set forth herein.

63. Frank Owen owns a registered copyright in Clubland.

64. Mr. Owen owns the exclusive rights to Clubland, and has not

transferred any such rights to any individual or entity.

65. Posner stole a substantial portion of Clubland for MB, as is

partially set forth above.

66. SS published, marketed, and sold MB in New York City and

State as well as nationally.

67. Posner‟s theft was obvious.

68. He copied entire sections of Mr. Owen‟s original work in

Clubland, sometimes in paragraph long passages.

17
 69. In some instances, Posner‟s copying of Mr. Owen‟s

original work in Clubland was garden variety verbatim cut and paste –

stealing Mr. Owen‟s verbatim expression.

70. In some instances, Posner‟s copying of Mr. Owen‟s

original work in Clubland constituted rearranging a few words and excising

a few expressions.

71. In some instances, Posner‟s copying of Mr. Owen‟s

original work in Clubland constituted lifting Clubland‟s order and sequence

of events.

72. In some instances, Posner‟s copying of Mr. Owen‟s

original work in Clubland constituted Posner‟s impossibly accidental

selection of quotes lifted from Mr. Owen‟s meticulous review of hundreds of

articles concerning his subject, passing such work off as his own.

73. By way of stark example, Posner finishes his section on

Paciello in identical fashion to the climax of Clubland. Posner copied Mr.

Owen‟s decision to conclude with a quotation from Michael Capponi, and

equally indicative of infringement, Posner used the same quote: “Party

people will forgive anything for a good time.”

74. In all instances of Posner‟s copyright infringement, he was

stealing from the heart of Mr. Owen‟s work Clubland.

18
 75. None of Posner‟s copying was done with Mr. Owen‟s

permission.

76. Taken collectively, Posner‟s copying constitutes a gross

and willful violation of Mr. Owen‟s copyright.

77. As a direct and proximate result of defendants‟ conduct, Mr.

Owen has been damaged in an amount to be determined at trial. In addition

to actual damages and profits or statutory damages, Mr. Owen is entitled to

recover the costs and reasonable attorneys‟ fees incurred in this action.

78. Posner and Simon & Schuster should additionally be

permanently enjoined from selling Miami Babylon.

AS AND FOR A SECOND CAUSE OF ACTION

(Unfair Competition)

79. Plaintiff repeats and realleges all of the foregoing allegations as

if fully set forth herein.

80. Posner has attempted through his selective and entirely

insufficient efforts at attribution in MB to pass Mr. Owen‟s investigative

journalism off as his own.

81. Posner attempted to increase and augment his own standing as

an investigative journalist by stealing Mr. Owen‟s investigative journalism.

82. Posner misappropriated five years of Mr. Owen‟s life –

including threats on Mr. Owen‟s life – and attempted to pass this work off as

19
his own.

83. Posner is widely publicized as an investigative reporter, and

indeed, the back cover of MB states that he is “chief investigative reporter

for The Daily Beast” – a post he now longer holds because of his theft of

other peoples‟ work.

84. Posner also states in MB that “every conversation in this book

that does not have a source note is the result of an interview conducted by

the author and his wife Trisha.”

85. That statement is false.

86. There are numerous conversations stolen from Clubland, some

of which are set forth above at ¶50 which have no „source note‟.

87. Posner‟s theft of Mr. Owen‟s work was done in bad faith, and

he has attempted to exploit a commercial advantage which belonged

exclusively to Mr. Owen.

88. Posner has lied about his conduct consistently. He lied in MB,

and he lied when he was caught stealing.

89. On March 17, 2010, Posner lied again when he stated: “If you

use something from another book, a statement from another book, it needs to

be in quotations, or if you take something and put it in your own syntax and

grammar, you still need to cite it. I do think that the Frank Owen situation

20
may be unique for me. Without going through every line I can't be 100 per

cent sure, but I think that is the only case.”

90. Except, as is made clear herein, the “Frank Owen situation” was

not unique, and Mr. Posner knew it when he said it.

91. Posner has also lied directly to Mr. Owen, to his audience, and

to the public generally.

92. As a direct and proximate result of the foregoing, Mr. Owen has

been damaged in an amount to be proven at trial.

93. Mr. Owen is further entitled to an award of exemplary damages

as Posner‟s conduct evidences such willful disregard of Mr. Owen‟s rights

as to suggest a criminal indifference, particularly since Posner knew better.

WHEREFORE, plaintiff Frank Owen demands judgment against the

defendants Gerald L. Posner and Simon & Schuster, Inc. as follows:

a) on the First Cause of Action in an amount to be determined and

proven at trial, together with a permanent injunction enjoining the sale
of Miami Babylon, plus the attorneys‟ fees and costs incurred in this
action; and

b) on the Second Cause of Action in an amount to be determined

and proven at trial, together with exemplary damages in an amount to
be proven and determined at trial; and

c) granting to plaintiff such other and further relief as to this Court

seems just and proper, together with costs and disbursements of this
action and reasonable attorneys‟ fees.

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Dated: New York, New York
September 7, 2010

Respectfully submitted,

_______________________
M W MOODY, LLC
By: Mark Warren Moody
(MWM 3742)
Attorneys for Plaintiff
25 Peck Slip, #2
New York, New York 10038
t. (917) 414-7886
e. mwm@mwmoody.com

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