By Danny Wicentowski
By Lindsay Toler
By RFT Staff
By Lindsay Toler
By Allison Babka
By Lindsay Toler
By Lindsay Toler
By Ray Downs
Citing this e-mail and others, Kalishman requested and received a notice of right to sue from the Missouri Commission on Human Rights in May 2009. He filed a second civil action against Elbring on June 22, alleging employment discrimination.
Kalishman complained he'd been fired in part because of his Jewish ethnicity — from a company in which he was co-owner and by far the biggest investor.
Elbring is no anti-Semite, asserts Ted Briscoe, the CEO who witnessed the company's demise. His former colleague's e-mail slurs were "unprofessional and unfortunate," Briscoe concedes, "but it's a red herring." In any case, removing Kalishman from day-to-day operations was a move he supported.
"I probably would've made the same decision," Briscoe says.
Regardless, Elbring now found himself in an absurd position, insisting that Kalishman wasn't technically an employee, even after boasting of firing him.
Jobless and faced with two lawsuits in the spring of 2009, Elbring ran out of money. He couldn't pay his first attorney, who jumped ship. But a second one, Michael Quinlan, learned of Elbring's predicament by word of mouth.
"I was incensed by it," says Quinlan. Former counsel for Emerson Electric, he chafed at corporate culture and resigned. After beating back cancer, he carved out a solo practice. He has represented Elbring for the last sixteen months without pay.
"This is the only way I can practice law," says Quinlan. "I've got to believe in the case."
The legal duel between Quinlan and Kalishman's lawyer, Gary Smith, has become a proxy war that's interesting in its own right. Smith is fine-haired, slight and calm. The scrubby-haired Quinlan has the build of a 1950s football player and is given to impassioned bursts of advocacy.
Smith enjoys all the support of a downtown law firm, including a secretary and an associate. Quinlan runs a one-man shop near a Des Peres movie theater. Smith's filings are error-free and timely, while Quinlan's are sprinkled with typos (he once missed a deadline, resulting in a default judgment that he had to beg the judge to set aside).
And yet Quinlan has held his own, chalking up big procedural victories against a resourceful opponent. Even when he doesn't win, his pleadings are vivid.
In the discrimination case, he recently wrote that the "ugly divorce" that ended SecureAxis is no excuse for treating the Missouri Human Rights Act as "an instrument for a bitter ex-business partner to bludgeon his adversary."
Kalishman's lawyer, Gary Smith, has declined comment to the RFT.
Quinlan believes Lewis Rice, and Gary Smith in particular, have dishonored his profession. "As a member of the bar, I can't allow something like this to go on," he says. "It frosts me!"
After the indictment was handed down, the government began bargaining with Elbring behind the scenes. Several times, the prosecutor, Reap, offered pretrial diversion: If Elbring would admit to wrongdoing, plead guilty to one felony and possibly pay restitution, the felony would disappear from the record as long as he kept his nose clean for a year.
Pleading to a felony "would have limited my ability to come after these guys," he says of Kalishman and Smith. "And I couldn't look myself in the mirror. Lying and saying I did something I didn't do — emotionally, it would've broken me."
Instead, Elbring agreed to a plea bargain on November 3, 2010. He admitted to a single misdemeanor charge of failing to file proper tax returns and thus owed the government $24,000 in back taxes — a sum he cleared with the IRS and swiftly repaid.
In exchange, Reap agreed to drop all of the felony charges.
"In no way was the dismissal of the felony indictment an acknowledgment of a mistake," Reap would later write to the judge. The unwritten implication: The Kalishmans hadn't fooled him into taking the case.
But former U.S. Attorney Matt Schelp, who defended Elbring in criminal court, avers that the case against his client "had problems."
"I don't think the government gave a misdemeanor to a guy charged with felony wire fraud and stealing $150,000 because the case was a slam dunk," he says.
Reap does admit to feeling remorse in one respect, though.
He'd made a gentleman's agreement with Elbring not to ask for prison time. However, at sentencing, U.S. District Court Judge Stephen N. Limbaugh (cousin of pundit Rush Limbaugh) asked Reap three different ways what he recommended for punishment.
In the first two instances, Reap waffled. On the third, he said, "Frankly...and since you asked, I think he ought to serve a little time."
Suddenly, Elbring was at risk of being locked up; judges often defer to prosecutors in plea bargain cases.
Then Elbring rose to speak. He explained how he'd borrowed money from his parents to pay the IRS what he owed. He recounted the depression he'd suffered and the toll the case had taken on his family. He accepted responsibility, even while referring to his situation as a "tragedy."
"Mr. Elbring, this is a tragedy indeed," Limbaugh said. "Your presentation to the court was one of the three or four most compelling presentations I've heard from a criminal defendant out of many, many hundreds of cases that I've had."