Mandell Menkes Defeats Bomb Bystanders’ Claims

Mandell Menkes successfully defended Discovery Communications, LLC’s Investigation Discovery Network in connection with a lawsuit arising from the “Wicked Attraction” docudrama series. The series features the true stories of seemingly ordinary people who, as a result of some wicked attraction, join together to commit heinous crimes. Specifically, the “Lust for Life” episode that sparked litigation recounted the wicked attraction between Lisa Toney, the estranged wife of Chicago janitor Marcus Toney, and her con artist lover, Sienky Lallemand.


Using his good looks and charm, Lallemand lured Lisa Toney into disclosing her husband’s personal information which Lallemand used to steal Marcus Toney’s identity and make over $200,000 in fraudulent purchases including expensive trinkets, hotel stays and a luxury car.

Shortly after Marcus Toney discovered that someone had stolen his identity, he received a suspicious Valentine’s Day package. In the days that followed, he received numerous taunting voicemails from the undisclosed sender, Sienky Lallemand, urging him to open the package.

Distraught over the credit fraud and threatening messages, Marcus Toney reached out to his friend Alphonso Butler. The men were talking at Toney’s home after an evening out when Butler asked Toney about the unopened package on the cocktail table in the living room. Toney speculated that the package probably contained a VCR with a sex tape sent by his wife and her new lover. In the “Lust for Life” reenactment scene, Alphonso Butler says to Marcus Toney, “[l]et’s open it, I’m going to open it,” referring to the mysterious package. Then, the actor portraying Toney rushes in front of Butler, and opens the package himself, triggering the explosion of a hidden pipe bomb. Butler staggers out of the burning home, but his friend Marcus Toney is dead.

The “Lust for Life” episode aired in the summer of 2012. Shortly thereafter, Alphonso Butler filed suit against Discovery in the United States District Court for the Northern District of Illinois claiming violation of the Illinois Right Of Publicity Act (IRPA), defamation, reckless and negligent infliction of emotional distress. Specifically, Butler claimed he never gave permission to use his identity in connection with the episode and that the reenacted scene “portrayed [Butler] as having encouraged Mr. Toney to open the package . . . [which] placed [Butler] in the light of having been the direct impetus behind his best friend’s death.” Butler amended his complaint following Discovery’s motion to dismiss, dropping the IRPA and reckless infliction of emotional distress claims and adding a claim for false light invasion of privacy.


Discovery moved to dismiss Butler’s amended complaint attaching both a video of the episode and a transcript of Butler’s witness testimony from Lisa Toney and Sienky Lallemand’s criminal trial. Discovery argued that the episode was a substantially true portrayal of events Butler recounted in his sworn testimony.

On May 9, 2013, the court granted Discovery’s motion to dismiss. The memorandum opinion held that the episode’s portrayal of Butler saying to Toney “something akin to ‘go ahead and open it or I will” is not substantially different from Butler’s testimony that “Toney [said] to Butler ‘Go ahead, tear it open,’ when both Butler’s testimony from the criminal trial and the reenactment scene show Butler starting to open the package and Toney stepping in to finish opening it.” The court also found that the absence of any suggestion in the episode that Butler knew the package contained a bomb precludes Butler’s characterization of the scene as falsely suggesting that he caused Toney’s death. Finally, the court concluded that Discovery owed Butler no duty to investigate the underlying facts by contacting Butler because Discovery had no reason to doubt the accuracy of the reenactments scene.