Milbank LLP is representing an individual accused of criminally possessing stolen handwritten lyrics to songs from the Eagles’ 1976 album “Hotel California.” In July 2022, the Manhattan DA charged Edward Kosinski, the owner of an online auction website for rock and roll memorabilia, and two other defendants, with criminal possession and conspiracy. On September 7, 2022, the Milbank team, led by Litigation & Arbitration partner Antonia Apps, filed motions to dismiss in New York Supreme Court, arguing that the DA’s case was legally insufficient, that the charges were untimely based on the statute of limitations and due process grounds, and that the integrity of the Grand Jury proceedings was impaired by improper expert testimony.
Mr. Kosinski purchased the handwritten lyrics from a reputable bookseller in 2012, and was told that the materials had been originally obtained in the 1970s by Ed Sanders, a journalist who was writing a biography of the band. Mr. Sanders sent an email to Mr. Kosinski confirming the provenance of the materials. When Mr. Kosinski posted some of the lyrics for sale on a public auction site, Don Henley claimed they had been stolen, but he never substantiated the claim and instead agreed to purchase a handful of pages back from Mr. Kosinski. These charges were brought over 10 years later.
In her motions, Ms. Apps referenced a 2019 interview between the biographer and DA’s investigators, in which the lead investigator repeatedly assured the author that he did nothing wrong, would not be arrested, and agreed that his conduct was “above board.” “If the People’s view is that [the author] is not a thief,” she wrote, “the Court should dismiss the Indictment in its entirety, because the gravamen of the crime of criminal possession of stolen property is that the property being possessed was in fact stolen.”
Ms. Apps also made reference to the six-year delay since the DA first learned of the matter, an “unreasonable” wait that exceeds the statute of limitations and violates her client’s constitutional right to due process. “This case was brought to the Grand Jury some six years after the DA was first aware of the core allegation,” Ms. Apps wrote. “The allegations concern conduct that took place nearly 50 years ago, and the individual who claims the property belongs to him, Mr. Henley, has known about the alleged theft of the lyrics since at least 2012.” “These circumstances should have spurred the DA to action rather than drag its feet. There is unquestionably undue prejudice to the defense given the challenge of faded memories and other lost evidence, particularly since a key witness in the case [Ed Sanders] is 82 years old.”
Ms. Apps also argued that the charges against Mr. Kosinski should be dismissed due to legal insufficiency and improper expert testimony.
A former federal prosecutor and nationally recognized trial attorney, Ms. Apps has tried over 15 criminal and civil cases and has a reputation as a formidable litigator. She is a Fellow of the American College of Trial Lawyers (ACTL), one of the premier legal associations in North America. She is ranked in Chambers (Band 2), and has been named in Lawdragon’s “500 Leading Lawyers in America” each year since 2014. The Milbank team also includes Litigation & Arbitration associates Griselda Cabrera, Isabel Pitaro, and Arman Ramnath.
