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Case No. ________
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
IN RE THE CENTER FOR MEDICAL PROGRESS; BIOMAX
PROCUREMENT SERVICES, LLC; and DAVID DALEIDEN
THE CENTER FOR MEDICAL PROGRESS; BIOMAX PROCUREMENT
SERVICES, LLC; DAVID DALEIDEN,
Defendants-Petitioners,
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, Respondent,
NATIONAL ABORTION FEDERATION, Plaintiff-Real Party in Interest
From the United States District Court
Northern District of California
The Honorable William H. Orrick, III, Presiding
Case No. 3:15-cv-3522 (WHO)
PETITION FOR WRIT OF MANDAMUS
D. John Sauer
James Otis Law Group, LLC
231 South Bemiston Ave., Suite 800
St. Louis, Missouri 63105
(314) 854-1372
[email protected]
Attorneys for Defendants and
Petitioners The Center For Medical
Progress, Biomax Procurement
Services, LLC, and David Daleiden
Catherine W. Short; SBN 117442
Post Office Box 1313
Ojai, California 93024-1313
Tel: (707) 337-6880
Fax: (805) 640-1940
[email protected]
Additional counsel listed on signature
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CORPORATE DISCLOSURE STATEMENTS
Petitioner Center for Medical Progress is a nonprofit public benefit
corporation organized under the laws of California. It does not have any parent
corporation, and no publicly held corporation owns ten percent or more of its stock.
Petitioner Biomax Procurement Services, LLC, is a privately held limited
liability company. It does not have any parent corporation, and no publicly held
corporation owns ten percent or more of its stock.
STATEMENT OF RELATED CASES
Petitioners are not aware of any related cases pending in this Circuit.
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
ISSUE PRESENTED ...................................................................................................................... 1
RELIEF SOUGHT .......................................................................................................................... 2
FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 2
ARGUMENT .................................................................................................................................. 5
I.
Petitioners Have No Other Means to Obtain Their Desired Relief. ................................... 5
II.
Absent Mandamus Relief, Petitioners Will Be Damaged and Prejudiced in Ways
That Cannot Be Corrected on Direct Appeal. ..................................................................... 5
III. There Is No Cause to Conduct Any Discovery on the Motion for Preliminary Injunction,
Because Any Injunctive Relief Would Violate the First Amendment’s Prohibition on
Prior Restraints.................................................................................................................... 7
A.
Any injunctive relief in this case constitutes an unconstitutional prior restraint on
CMP’s ability to speak publicly on matters of paramount public interest and
importance..................................................................................................................... 8
B.
Any putative “waiver” of CMP’s First Amendment rights would be unenforceable
as a matter of public policy. ........................................................................................ 12
IV. The District Court Had No Authority to Order Discovery Because CMP’s Anti-SLAPP
Motion Stayed All Discovery. .......................................................................................... 16
V.
A.
Under Erie, the anti-SLAPP statute’s mandatory discovery stay applies in federal
court when the anti-SLAPP motion contests only the legal sufficiency of the
allegations in the Complaint, as would a motion to dismiss under Rule 12(b)(6). ..... 16
B.
Petitioners’ anti-SLAPP motion contested only the legal sufficiency of the
allegations in NAF’s Complaint, and thus the discovery stay applies under Erie. ..... 19
C.
The district court’s discovery order has no effect on the Erie analysis. ..................... 25
D.
The anti-SLAPP statute does not directly collide with Rule 26. ................................ 26
This Case Presents a New and Important Issue; Resolving That Issue Will Assist the
District Courts in Properly Applying This Court’s Precedents. ....................................... 28
CONCLUSION ............................................................................................................................. 30
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TABLE OF AUTHORITIES
CASES
Alexander v. United States, 509 U.S. 544 (1993).....................................................8
A.M.P. v. Hubbard Broad., Inc., 216 F. Supp. 2d 933 (D. Minn. 2001) ................10
Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988) .......................24
Bartnicki v. Vopper, 532 U.S. 514 (2001) ................................................................9
Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ........................................................6
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)............................................18
Bernardo v. Planned Parenthood Fed’n of Am., 115 Cal. App.4th 322 (2004).....24
Block v. eBay, Inc., 747 F.3d 1135 (9th Cir. 2014) ................................................23
Britts v. Superior Court, 145 Cal.App.4th 1112 (2006) ..................................passim
Burlington N. & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142
(9th Cir. 2005) ..............................................................................................29
CBS, Inc. v. Davis, 510 U.S. 1315 (1994).........................................................10-12
Cortez v. Skol, 776 F.3d 1046 (9th Cir. 2015)........................................................16
Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390 (9th Cir. 1991)...14-15
Doe v. Gangland Prods., Inc., 730 F.3d 946 (9th Cir. 2013) ...........................24, 25
First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978) .................................15-16
Garcia v. Google, Inc., 786 F.3d 727 (9th Cir. 2015) ......................................12, 13
Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015).......................................13-14
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996) ...........................16, 27
Greater L.A. Agency on Deafness v. CNN, Inc., 742 F.3d 414 (9th Cir. 2014)..... 24
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Hanna v. Plumer, 380 U.S. 460 (1965) ..................................................................26
In re Cement Antitrust Litig., 688 F.2d 1297 (9th Cir. 1982).................................29
In re Lombardi, 741 F.3d 888 (8th Cir. 2014)..........................................................7
Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827 (9th Cir. 2006)... 17, 25, 26
Leonard v. Clark, 12 F.3d 885 (9th Cir. 1994)..................................................12-13
Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138 (2d Cir. 2013)...... 6, 17, 27
Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156 (2003).......................24
Makaeff v. Trump Univ., LLC, 736 F.3d 1180 (9th Cir. 2013) ..................27, 28, 30
Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, 99 Cal.App.4th 1179
(2002) .............................................................................................................6
Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) ......................19, 25
Moser v. Triarc Cos., No. 05cv1742-JLS, 2007 WL 3026425 (S.D. Cal. Oct.
16, 2007) ................................................................................................18, 29
Navellier v. Sletten, 29 Cal.4th 82 (2002) ........................................................17, 25
Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976)................................................8, 10
N.Y. Times Co. v. United States, 403 U.S. 713 (1971) .............................................9
Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) .......................................8, 9
Pansy v. Stroudsburg, 23 F.3d 772 (3d Cir. 1994) .................................................15
Perricone v. Perricone, 292 Conn. 187 (2009) ......................................................13
Perry v. Schwarzenegger, 591 F.3d 1126 (9th Cir. 2009)..............................5, 7, 28
Price v. Stossel, 620 F.3d 992 (9th Cir. 2010) .......................................................16
Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) .............8
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Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729 (9th Cir. 1987) .............18
Saad v. Am. Diabetes Ass’n, Case No. 15-10267, 2015 WL 751295 (D. Mass.
Feb. 23, 2015) ...........................................................................................9-10
San Jose Mercury News, Inc. v. United States Dist. Court, 187 F.3d 1096 (9th
Cir. 1999) .......................................................................................................7
Schwartz v. At the Cove Mgmt. Corp., No. 12cv3077-GPC, 2013 WL 1103479,
(S.D. Cal. Mar. 14, 2013).......................................................................18, 29
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ...........................................10
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393
(2010) ................................................................................................16-17, 27
Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005 (9th Cir. 2012) .............22, 23
Smith v. Payne, No. C-12-01732-DMR, 2012 WL 6712041 (N.D. Cal. Dec.
26, 2012).................................................................................................18, 29
Stutzman v. Armstrong, No. 2:13-cv-0116-MCE, 2013 WL 3992416 (E.D.
Cal. Aug. 2, 2013) ..................................................................................18, 29
Terminiello v. City of Chi., 337 U.S. 1 (1949) .......................................................15
Thomas v. Quintero, 126 Cal.App.4th 635 (2005) .................................................28
Thompson v. Hayes, 748 F. Supp. 2d 824 (E.D. Tenn. 2010) ..................................9
United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d
963 (9th Cir. 1999) .................................................................................17, 27
Varian Med. Sys., Inc. v. Delfino, 35 Cal.4th 180 (2005) ........................................6
Z.F. v. Ripon Unified Sch. Dist., 482 F. App’x 239 (9th Cir. 2012) ................18, 20
STATUTES AND RULES
1 U.S.C. § 8.............................................................................................................. 2
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18 U.S.C. § 1531 ......................................................................................................2
28 U.S.C. § 1652 ..............................................................................................16, 26
42 U.S.C. § 289 ........................................................................................................2
Cal. Civ. Pro. Code § 425.16...........................................................................passim
Cal. Civ. Pro. Code § 2017.010..............................................................................28
Cal. Civ. Pro. Code § 2017.020 ..............................................................................28
Cal. Civ. Pro. Code § 2019.010-.040 .....................................................................28
Fed. R. Civ. P. 12...........................................................................................3, 16, 18
Fed. R. Civ. P. 26 ...................................................................................................27
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INTRODUCTION
This case involves an extraordinary gag order, followed by an equally
extraordinary discovery order. On July 31, 2015, the district court entered an
unprecedented temporary restraining order, prohibiting Defendants/Petitioners
Center for Medical Progress, Biomax Procurement Services, LLC, and David
Daleiden (collectively, “CMP”) from speaking publicly on matters of paramount
public interest that have dominated national headlines for weeks. Shortly thereafter,
the district court ordered CMP to participate in burdensome and intrusive discovery
relating to a motion for preliminary injunction, even though CMP had filed an antiSLAPP1 motion requiring a stay of all discovery proceedings in the case. This Court
should hold that the district court’s order compelling CMP to participate in discovery
must be dissolved for two independent reasons: (1) no discovery is necessary to
resolve the pending motion for preliminary injunction, because any injunction in this
case would manifestly violate the First Amendment’s ironclad prohibition on prior
restraints on free speech; and (2) California law, applicable in federal court under
Erie, requires the district court to rule on the anti-SLAPP motion prior to conducting
discovery in the case.
ISSUE PRESENTED
Whether the district court clearly erred in ordering Petitioners to participate
in preliminary-injunction-related discovery when Petitioners had filed an antiSLAPP motion that stayed discovery by operation of law, and no discovery was
“SLAPP” stands for “strategic lawsuit against public participation.” U.S. ex rel.
Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 965 n.2 (9th Cir. 1999).
California’s “anti-SLAPP” statute is codified at Cal. Civ. Pro. Code § 425.16.
1
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necessary to resolve the preliminary injunction because any injunctive relief would
plainly violate the First Amendment’s prohibition on prior restraints of speech.
RELIEF SOUGHT
Petitioners seek a writ of mandamus directing the district court stay all
discovery in the proceedings below pending ruling on Petitioners’ motion to strike
or dismiss the Complaint under California’s anti-SLAPP law, and to rule on the
pending motion for preliminary injunction without conducting discovery.
FACTUAL AND PROCEDURAL BACKGROUND
As is widely known, CMP conducted a thirty-month undercover investigation
of the practice of buying and selling fetal tissue within the abortion industry. Their
investigation revealed evidence of widespread criminal practices in the industry,
including the selling of fetal tissue for profit, the alteration of abortion methods to
procure better fetal tissue specimens, the collection of intact fetuses born with
beating hearts for research purposes, and the procurement of fetal tissue for research
without patients’ knowledge and consent. Each of these practices is a crime under
federal law, as well as many analogous state laws. See, e.g., 1 U.S.C. § 8; 18 U.S.C.
§ 1531; 42 U.S.C. §§ 289g-1, 289g-2. The undercover videos taken during CMP’s
investigation have dominated national and international headlines for months,
sparked state and congressional investigations of industry participants, and triggered
debates over public funding of abortion-providing entities in the U.S. Congress.
Plaintiff-Respondent National Abortion Federation (“NAF”) is a trade
association of abortion providers that holds an annual conference. On Friday, July
31, 2015, NAF filed a sixty-page Complaint against CMP and other defendants in
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federal court, alleging one federal cause of action and twelve state-law causes of
action. Complaint, Doc. 1, A117. NAF also applied for a temporary restraining
order seeking to enjoin CMP from speaking about or publishing undercover videos
allegedly recorded during NAF’s annual meetings in 2014 and 2015.
On Friday, July 31, 2015, the district court granted NAF’s application for an
ex parte restraining order, forbidding CMP to disclose any information received
during NAF’s annual meetings. Doc. 15, A114. On Monday, August 3, 2015—the
next business day—the district court extended the temporary restraining order
pending the court’s ruling on NAF’s motion for preliminary injunction. Doc. 27,
A111. The extended TRO continued to impose a prior restraint on CMP’s ability to
speak on matters of paramount public importance. Id. at 1, A111. The district court
also granted NAF’s motion for expedited discovery relating to the preliminary
injunction, setting an aggressive timetable for preliminary injunction-related
discovery. Id. at 3, A113.
On August 17, 2015, CMP filed a motion to strike or dismiss the Complaint
pursuant to California’s anti-SLAPP law, Cal. Civ. Pro. Code § 425.16, and Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 66-1, A29.
CMP filed its anti-SLAPP motion less than three weeks after the Complaint was
filed, before the parties had exchanged any discovery. Id. CMP’s anti-SLAPP
motion was “based solely on the adequacy of Plaintiff’s pleading” and challenged
only the sufficiency of the allegations in the Complaint. Doc. 66-1, at 1, A29.
Among other things, CMP’s anti-SLAPP motion raised grave questions about
the district court’s subject matter jurisdiction. The motion highlighted clear pleading
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deficiencies in NAF’s sole federal cause of action—its civil RICO claim—and noted
that NAF had failed to properly allege diversity jurisdiction, so there was no basis
for federal jurisdiction. See Doc. 66-1, at 5-17, A45-57.
On August 19, 2015, the parties filed a joint discovery letter with the district
court. Doc. 74, A23. In the letter, CMP claimed that the filing of its anti-SLAPP
motion had effected a mandatory stay of all discovery pursuant to Cal. Civ. Proc.
Code § 425.16(g). Id. at 10-14, A24-28. This stay of discovery should have shielded
CMP from the burdens of discovery until the district court could rule on whether
NAF had stated any valid claims for relief, or if the court even had jurisdiction of
the case. See id. CMP noted that, because the temporary restraining order would
remain in effect pending the court’s ruling on the anti-SLAPP motion, there could
be no prejudice to NAF from the discovery stay. Id. at 12-13, A26-27.
On August 21, 2015, the district court held a discovery hearing. The district
court announced from the bench that it would not stay discovery pursuant to the antiSLAPP motion and ordered the parties to meet and confer regarding discovery
immediately. Aug. 21, 2015 Tr. of Hrg, at 4-5, A19-20. Counsel for CMP orally
moved the district court to stay its ruling on the discovery issue pending application
for a writ of mandamus from this Court. Id. at 18, A21. The district court denied
the oral motion and indicated that a written order would follow. Id. at 18-19, A2122. On August 27, 2015, the district court entered a fifteen-page order denying
CMP’s request for a stay of discovery pending ruling on the anti-SLAPP motion.
Doc. 95, A1.
The discovery schedule, however, was temporarily stayed by
agreement of the parties until hearing on September 18 on disputed privilege issues.
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ARGUMENT
When considering whether to grant mandamus relief, this Court looks to five
primary factors:
(1) whether the petitioner has no other means, such as a
direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in any way not
correctable on appeal; (3) whether the district court’s order
is clearly erroneous as a matter of law; (4) whether the
district court’s order is an oft repeated error or manifests a
persistent disregard of the federal rules; and (5) whether
the district court’s order raises new and important
problems or issues of first impression.
Perry v. Schwarzenegger, 591 F.3d 1126, 1136 (9th Cir. 2009). Here, these factors
support granting mandamus relief and requiring the district court to stay discovery.
I.
Petitioners Have No Other Means to Obtain Their Desired Relief.
Because discovery orders are not final orders and thus cannot be appealed
directly, “[m]andamus is appropriate to review discovery orders when particularly
important interests are at stake.” Perry, 591 F.3d at 1136 (quotation omitted). This
case undoubtedly implicates “particularly important interests.” Id. And because the
purpose of the discovery stay is to protect SLAPP defendants from having to submit
to discovery at all before a ruling on their motion to strike, review of a final judgment
in this case after discovery will not provide an adequate means of relief.
II. Absent Mandamus Relief, Petitioners Will Be Damaged and Prejudiced
in Ways That Cannot Be Corrected on Direct Appeal.
Absent mandamus relief, Petitioners will irretrievably lose their substantive
rights under California law to receive the court’s ruling on the motion to strike before
being subjected to the burdens and intrusion of discovery. California’s anti-SLAPP
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statute “protect[s] defendants from the burden of traditional discovery pending
resolution of the [anti-SLAPP] motion.” Britts v. Superior Court, 145 Cal.App.4th
1112, 1124 (2006) (quotation omitted). The “point of the anti-SLAPP statute is that
you have a right not to be dragged through the courts because you exercised your
constitutional rights.” Varian Med. Sys., Inc. v. Delfino, 35 Cal.4th 180, 193 (2005)
(quotation omitted; emphasis in original); see also Liberty Synergistics Inc. v.
Microflo Ltd., 718 F.3d 138, 148 (2d Cir. 2013) (“California’s anti-SLAPP rule
reflects a substantive policy favoring the special protection of certain defendants
from the burdens of litigation because they engaged in constitutionally protected
activity.”). “[N]ot only did the Legislature desire early resolution to minimize the
potential costs of protracted litigation, it also sought to protect defendants from the
burden of traditional discovery pending resolution of the motion.” Mattel, Inc. v.
Luce, Forward, Hamilton & Scripps, 99 Cal.App.4th 1179, 1190 (2002).
For similar reasons, this Court has held that a defendant can appeal the denial
of an anti-SLAPP motion immediately under the collateral order doctrine. Batzel v.
Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003). “If the defendant were required to
wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion,
a decision by this court reversing the district court’s denial of the motion would not
remedy the fact that the defendant has been compelled to defend against a meritless
claim brought to chill rights of free expression.” Id. at 1025.
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III. There Is No Cause to Conduct Any Discovery on the Motion for
Preliminary Injunction, Because Any Injunctive Relief Would Violate the
First Amendment’s Prohibition on Prior Restraints.
The third—and perhaps most important—mandamus factor is “whether the
district court’s order is clearly erroneous as a matter of law.” Perry, 591 F.3d at
1136. “[T]he necessary ‘clear error’ factor does not require that the issue be one as
to which there is established precedent.” Id. at 1138. And “[w]here a petition for
mandamus raises an important issue of first impression, . . . a petitioner need show
only ordinary (as opposed to clear) error.” San Jose Mercury News, Inc. v. United
States Dist. Court, 187 F.3d 1096, 1100 (9th Cir. 1999) (quotation omitted). Here,
the district court’s denial of a stay of discovery was clearly erroneous for two
reasons: (1) no discovery is necessary to resolve NAF’s motion for preliminary
injunction, because any injunctive relief would violate the First Amendment’s
prohibition on prior restraints; and (2) CMP’s anti-SLAPP motion stayed all
discovery, so the district court had no authority to order discovery to continue.
First, any injunctive relief necessarily will violate the First Amendment’s
near-absolute prohibition on prior restraints. A writ of mandamus is appropriate to
prevent a discovery order when “it is clear and indisputable that the discovery
ordered by the district court is not relevant to any claim that should survive a motion
to dismiss.” In re Lombardi, 741 F.3d 888, 895 (8th Cir. 2014) (en banc). In this
case, the First Amendment mandates that NAF’s claim for injunctive relief should
be dismissed as a matter of law. See Doc. 66-1, at 18-26, A58-66. It would be “a
clear abuse of discretion for the district court to allow the claim to proceed and to
order on that basis discovery of sensitive information.” Lombardi, 741 F.3d at 896.
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A. Any injunctive relief in this case constitutes an unconstitutional prior
restraint on CMP’s ability to speak publicly on matters of paramount
public interest and importance.
“[P]rior restraints . . . are the most serious and the least tolerable infringement
on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).
“Prior restraints are the essence of censorship, and our distaste for censorship
reflecting the natural distaste of a free people is deep-written in our law.” Id. at 589
(Brennan, J., concurring) (internal citations and punctuation omitted). “Any prior
restraint on expression comes to [the court] with a heavy presumption against its
constitutional validity.” Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)
(internal quotation marks omitted). “Indeed, the Supreme Court has never upheld a
prior restraint, even faced with the competing interest of national security or the
Sixth Amendment right to a fair trial.” Proctor & Gamble Co. v. Bankers Trust Co.,
78 F.3d 219, 227 (6th Cir. 1996).
NAF’s requested injunctive relief constitutes a textbook example of prior
restraint on speech. “Temporary restraining orders and permanent injunctions—i.e.,
court orders that actually forbid speech activities—are classic examples of prior
restraints.” Alexander v. United States, 509 U.S. 544, 550 (1993). NAF asserts no
interest that could meet the exacting standard required to justify a prior restraint.
The First Amendment tolerates a prior restraint on speech only to advance the
most fundamental, weighty, and immediate interests. A prior restraint must relate
to speech that “threaten[s] an interest more fundamental than the First Amendment
itself.” Proctor & Gamble Co., 78 F.3d at 227. “[P]rior restraints even within a
recognized exception to the rule against prior restraints will be extremely difficult to
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justify.” Neb. Press Ass’n, 427 U.S. at 592 (Brennan, J., concurring).
Courts have consistently rejected interests like those asserted by NAF as
insufficient to justify a prior restraint on speech. In N.Y. Times Co. v. United States,
403 U.S. 713 (1971), the Supreme Court held that serious threats to national security,
foreign relations, and the lives of American troops in Vietnam could not justify an
injunction preventing the publication of stolen classified documents. Id. at 714. As
Justice Blackmun’s dissent observed, the disclosures at issue threatened “the death
of soldiers, the destruction of alliances, . . . prolongation of the [Vietnam] war and
of further delay in the freeing of United States prisoners.” Id. at 763 (Blackmun, J.
dissenting) (internal quotation marks omitted). Yet the Court held that those most
compelling interests still could not justify a prior restraint on the publication of
stolen classified documents. Id. at 714.
Courts also have held that interests in personal privacy and reputation do not
warrant prior restraints on speech. For example, in Organization for a Better Austin
v. Keefe, the court rejected the notion that “an invasion of privacy” could justify a
prior restraint against circulating pamphlets claiming that a real-estate agent was
facilitating de facto segregation. 402 U.S. at 419-20. Moreover, under the First
Amendment, “[t]he right of privacy does not prohibit any publication of matter
which is of public or general interest.” Bartnicki v. Vopper, 532 U.S. 514, 534
(2001) (internal quotation marks omitted).
In addition, reputational harm cannot justify prior restraints on speech. See,
e.g., Thompson v. Hayes, 748 F. Supp. 2d 824, 831 (E.D. Tenn. 2010) (holding that
“plaintiffs’ business interests and their reputations” were insufficient interests to
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warrant injunction against speech); Saad v. Am. Diabetes Ass’n, Case No. 15-10267,
2015 WL 751295, at *2 (D. Mass. Feb. 23, 2015) (“Whatever interest Dr. Saad has
in preserving his professional reputation, it is not enough to overcome the heavy
presumption against [a prior restraint’s] validity.”). And courts have rejected the
threat of emotional distress as justifying prior restraints on speech. See A.M.P. v.
Hubbard Broad., Inc., 216 F. Supp. 2d 933, 935 (D. Minn. 2001).
NAF alleges that CMP obtained any information unlawfully—a contention
that CMP vigorously disputes. See Doc. 66-1, A29. But even if NAF could show
unlawful activity in the collection of information, that would not justify a prior
restraint. “If [Petitioners have] breached [their] state law obligations, the First
Amendment requires that [NAF] remedy its harms through a damages proceeding
rather than through suppression of protected speech.” CBS, Inc. v. Davis, 510 U.S.
1315, 1318 (1994) (Blackmun, J., in chambers). “[A] free society prefers to punish
the few who abuse rights of speech after they break the law than to throttle them . . .
beforehand.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). “The First
Amendment thus accords greater protection against prior restraints than it does
against subsequent punishment for a particular speech.” Neb. Press Ass’n, 427 U.S.
at 589 (1976) (Brennan, J., concurring).
For example, in CBS v. Davis, CBS News acquired video footage of meatpacking plants by placing an undercover camera on an employee. CBS, 510 U.S. at
1315. The meat-packing company sued and obtained an injunction preventing CBS
from broadcasting the footage on television, based on a judicial finding that the
footage had been obtained through “calculated misdeeds.” Id. at 1316. These
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alleged misdeeds included claims that arose under contract law, as well as statutory
violations and torts. See id. at 1316. Noting that “the gagging of publication has
been considered acceptable only in ‘exceptional cases,’” id. at 1317, Justice
Blackmun held that the injunction against the broadcast was an unconstitutional
prior restraint, id. at 1318. “Subsequent civil or criminal proceedings, rather than
prior restraints, ordinarily are the appropriate sanction for calculated defamation and
other misdeeds in the First Amendment context.” Id. at 1318. “If [a defendant] has
breached its state law obligations, the First Amendment requires that [the plaintiff]
remedy its harms through a damages proceeding rather than through suppression of
protected speech.” Id.
Likewise, NAF’s assertion of risk of physical harms to its members is
insufficient to justify a prior restraint as a matter of law. NAF has not alleged
concrete or imminent threats of physical harm, only speculative possibilities that it
might suffer harm from unidentified third parties as a result of reputational damage.
See Complaint, Doc. 1, ¶¶ 32, 34, 37, 40, 87-89, 91-92, A130-33, A151-53. But the
First Amendment permits prior restraints “only where the evil that would result from
the reportage is both great and certain.” CBS, 510 U.S. at 1317 (emphasis added).
“[T]he First Amendment tolerates absolutely no prior judicial restraints of the press
predicated upon surmise or conjecture that untoward consequences may result.”
N.Y. Times Co., 403 U.S. at 725-26 (Brennan, J., concurring). NAF has alleged only
the possibility of future harm, not the certainty of imminent harm. And that showing
fails to satisfy the First Amendment’s stringent demands. See CBS, 510 U.S. at 1318
(“[W]e previously have refused to rely on such speculative predictions as based on
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‘factors unknown and unknowable’”) (quoting Neb. Press Ass’n, 427 U.S. at 563).
In fact, NAF effectively seeks to hold CMP’s speech hostage to the hyperbolic
comments of anonymous Internet commenters who are strangers to the lawsuit. See
Doc. 1, ¶¶ 32-37; A130-32. Because CMP’s speech addresses a controversial topic
of paramount public importance, NAF cannot hold CMP’s First Amendment rights
hostage to anonymous hecklers.
This violates fundamental First Amendment
principles. “It is remarkable that this late in our history we have still not learned that
the First Amendment prohibits us from banning free speech in order to appease
terrorists, religious or otherwise, even in response to their threats of violence.”
Garcia v. Google, Inc., 786 F.3d 727, 730 (9th Cir. 2015) (Reinhardt, J., dissenting
from initial denial of emergency rehearing en banc) (“Garcia I”).
B. Any putative “waiver” of CMP’s First Amendment rights would be
unenforceable as a matter of public policy.
Against the near-ironclad presumption against prior restraints, NAF relies
heavily on its argument that CMP “waived” its First Amendment rights by signing
putative non-disclosure agreements with NAF before attending NAF conventions.
But this argument is insufficient to justify any prior restraint in this case, because
even if a “waiver” of CMP’s First Amendment rights had occurred, the waiver would
be plainly unenforceable as a matter of public policy.
“[E]ven if a party is found to have validly waived a constitutional right, we
will not enforce the waiver if the interest in its enforcement is outweighed in the
circumstances by a public policy harmed by enforcement of the agreement.”
Leonard v. Clark, 12 F.3d 885, 890 (9th Cir. 1994) (internal quotation marks
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omitted). The court must “balance the public policies favoring enforcement of the
[constitutional] waiver against those favoring non-enforcement.” Id. at 891.
Where a private waiver of First Amendment rights interferes with the public’s
ability to access information of critical public interest and importance, the “balance
of the public policies,” id., shifts decisively in favor of disclosure. Regardless of the
private rights among the parties, any gag order in this case violates “the public’s
First Amendment right to view . . . film[s] of immense significance and public
interest.” Garcia I, 786 F.3d at 730 (emphasis added). “The Constitution protects
the right to receive information and ideas, and that protection is a necessary predicate
to the recipient’s meaningful exercise of his own rights of speech, press, and political
freedom.”
Id. (internal citation and punctuation omitted) (quoting Stanley v.
Georgia, 394 U.S. 557, 564 (1969), and Bd. of Educ., Island Trees Union Free Sch.
Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982)). “Factors that have weighed against
the enforcement of contractual waivers [of free-speech rights] include the critical
importance of the right to speak on matters of public concern . . . and the fact that
the agreement requires the suppression of criminal behavior.”
Perricone v.
Perricone, 292 Conn. 187, 220 (2009) (quotation marks omitted).
Garcia involved a challenge to the publication of Innocence of Muslims, an
Internet video blamed for the September 11, 2012 attacks on the U.S. Embassy in
Benghazi, Libya, that resulted in the death of the U.S. Ambassador. The challenge
was brought by an actress who “was bamboozled when a movie producer
transformed her five-second acting performance into part of a blasphemous video
proclamation against the Prophet Mohammed.” Garcia v. Google, Inc., 786 F.3d
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733, 736 (9th Cir. 2015) (en banc) (“Garcia II”). Though she had participated
unknowingly and unwillingly in the project, “an Egyptian cleric issued a fatwa
against anyone associated with Innocence of Muslims,” and the actress “received
multiple death threats.” Id. at 738. This Court, sitting en banc, dissolved an
injunction against the continued publication of Innocence of Muslims on
YouTube.com. Id. at 747. In so ruling, this Court observed that the injunction “gave
short shrift to the First Amendment values at stake.” Id. “The mandatory injunction
censored and suppressed a politically significant film . . . . In so doing, the panel
deprived the public of the ability to view firsthand, and judge for themselves, a film
at the center of an international uproar.” Id. This Court noted that the “takedown
order of a film of substantial interest to the public is a classic prior restraint of
speech,” and “[p]rior restraints pose the ‘most serious and least tolerable
infringement on First Amendment rights.’” Id. (quoting Hunt v. NBC, 872 F.2d 289,
293 (9th Cir. 1989)).
Similarly, in Davies v. Grossmont Union High School District, 930 F.2d 1390
(9th Cir. 1991), this Court declined to enforce a waiver in a settlement agreement
that would have prevented the signer from running for public elective office. Id. at
1392. Davies signed a settlement agreement with the school district in which he
agreed not to seek “any employment, position, or office” with the school district. Id.
A year later, he ran for and was elected to the school board. Id. The school district
sued to prohibit him from taking office under the settlement agreement. Id. at 13923. This Court held that the waiver of his right to hold elected office with the school
district was void for public policy, in large part because enforcement would violate
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the right of the public to elect the candidate of their choice. See id. at 1396 (holding
that “enforcement would violate . . . the constitutional right of the voters to elect”
Davies).
Davies’ election “involves the most important political right in a
democratic system of government: the right of the people to elect representatives of
their own choosing to public office.” Id. at 1397; see also Pansy v. Stroudsburg, 23
F.3d 772, 788 (3d Cir. 1994) (holding that, in considering whether to enforce a
confidentiality agreement, “the district court should consider whether the case
involves issues important to the public,” and if it “involves matters of legitimate
public concern, that should be a factor weighing against entering or maintaining an
order of confidentiality”).
Likewise, in this case, the public’s First Amendment right to receive
information on issues of paramount public importance necessarily outweighs any
private interests asserted by NAF. As in Davies, few interests hold a more revered
place in our constitutional order than does the right to free expression. “The vitality
of civil and political institutions in our society depends on free discussion.”
Terminiello v. City of Chi., 337 U.S. 1, 4 (1949). “The right to speak freely and to
promote diversity of ideas and programs is therefore one of the chief distinctions
that sets us apart from totalitarian regimes.” Id.
Critically, as in Davies, the interests opposing enforcement of any putative
waiver belong not only to CMP, but to society at large. “[T]he First Amendment
goes beyond protection of the press and the self-expression of individuals to prohibit
government from limiting the stock of information from which members of the
public may draw.” First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978).
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IV. The District Court Had No Authority to Order Discovery Because CMP’s
Anti-SLAPP Motion Stayed All Discovery.
Moreover, the district court’s discovery order was clearly erroneous for
another reason—the filing of CMP’s anti-SLAPP motion stayed all discovery until
the district court ruled on the anti-SLAPP motion. This Court has “repeatedly held
that California’s anti-SLAPP statute can be invoked by defendants who are in federal
court.” Price v. Stossel, 620 F.3d 992, 999 (9th Cir. 2010). Under the anti-SLAPP
statute, “[a]ll discovery proceedings in the action shall be stayed upon the filing of
a notice of motion made pursuant to [the statute].” Cal. Civ. Pro. Code § 425.16(g).
This mandatory discovery stay plays an integral role in the anti-SLAPP framework.
See Britts, 145 Cal.App.4th at 1124.
A. Under Erie, the anti-SLAPP statute’s mandatory discovery stay
applies in federal court when the anti-SLAPP motion contests
only the legal sufficiency of the allegations in the Complaint, as
would a motion to dismiss under Rule 12(b)(6).
The discovery requests at issue here all relate to three state-law causes of
action. “Under the Erie doctrine, federal courts sitting in diversity apply state
substantive law and federal procedural law.” Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 427 (1996); see also 28 U.S.C. § 1652 (Rules of Decision Act). The
same rule applies when a federal court considers state-law claims pursuant to its
supplemental jurisdiction. Cortez v. Skol, 776 F.3d 1046, 1054 n.8 (9th Cir. 2015).
When presented with an Erie issue, a federal court “must first determine
whether [a Federal Rule of Civil Procedure or a federal statute] answers the question
in dispute.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.
393, 398 (2010). Courts often have framed this inquiry as whether there is a
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“conflict” or “direct collision” between a Federal Rule and a state rule. See, e.g.,
United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972
(9th Cir. 1999). If the court concludes that no Federal Rule answers the question,
then the court must proceed to determine whether the state rule is “substantive”—in
which case it applies—or “procedural”—in which case it does not apply. See
Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827, 830-31 (9th Cir. 2006).
This Court has held that California’s anti-SLAPP statute creates critical
substantive rights. See Newsham, 190 F.3d at 973; see also Liberty Synergistics Inc.
v. Microflo Ltd., 718 F.3d 138, 148 (2d Cir. 2013) (“California’s anti-SLAPP rule
reflects a substantive policy favoring the special protection of certain defendants
from the burdens of litigation because they engaged in constitutionally protected
activity.”). Thus, when considering whether to apply the anti-SLAPP statute under
Erie, the sole question is whether the statute conflicts with any Federal Rule.
Whether the anti-SLAPP statute conflicts with a Federal Rule depends on
whether the defendant’s anti-SLAPP motion contests the legal sufficiency of the
complaint, or instead contests the sufficiency of plaintiff’s evidence.
Under
California’s anti-SLAPP regime, a defendant can seek dismissal of a lawsuit if the
plaintiff’s complaint fails to allege legally sufficient claims, or if the plaintiff cannot
provide sufficient evidence to support those claims. See Navellier v. Sletten, 29
Cal.4th 82, 88-89 (2002). For Erie purposes, where an anti-SLAPP motion contests
the legal sufficiency of the Complaint, courts must treat the motion as a motion to
dismiss under the Rule 8 and 12 standards. See Z.F. v. Ripon Unified Sch. Dist., 482
F. App’x 239, 240 (9th Cir. 2012). In contrast, an anti-SLAPP motion contesting
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the plaintiff’s evidentiary showing must be treated like a Rule 56 motion for
summary judgment. Id.
Under Erie, § 425.16(g)’s mandatory discovery stay applies in federal court
if the anti-SLAPP motion contests the legal sufficiency of the Complaint. The
Federal Rules do not guarantee discovery prior to the resolution of a motion to
dismiss under Rule 12. Quite the contrary, the Federal Rules implement a strong
policy against such discovery. “The purpose of F. R. Civ. P. 12(b)(6) is to enable
defendants to challenge the legal sufficiency of complaints without subjecting
themselves to discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729,
738 (9th Cir. 1987). As the Supreme Court has explained, Rule 12(b)(6) plays a
critical role in preventing plaintiffs from using the threat of costly and invasive
discovery to force settlement or capitulation, even when the plaintiff’s claims lack
legal merit. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 559 (2007). Thus,
when an anti-SLAPP motion contests the sufficiency of the Complaint as would a
Rule 12 motion, the anti-SLAPP statute does not conflict with any Federal Rules,
and it applies under Erie. See, e.g., Stutzman v. Armstrong, No. 2:13-cv-0116-MCE,
2013 WL 3992416, at *6-7 (E.D. Cal. Aug. 2, 2013); Schwartz v. At the Cove Mgmt.
Corp., No. 12cv3077-GPC, 2013 WL 1103479, at *1-2 (S.D. Cal. Mar. 14, 2013);
Smith v. Payne, No. C-12-01732-DMR, 2012 WL 6712041, at *4 n.7 (N.D. Cal.
Dec. 26, 2012); Moser v. Triarc Cos., No. 05cv1742-JLS, 2007 WL 3026425, at *34 (S.D. Cal. Oct. 16, 2007).
In contrast, where an anti-SLAPP motion contests the plaintiff’s evidence,
§ 425.16(g)’s mandatory discovery stay does not apply under Erie. In Metabolife
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International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001), the Court explained
that “if [the anti-SLAPP statute’s] expedited procedure were used in federal court to
test the plaintiff’s evidence before the plaintiff has completed discovery, it would
collide with Federal Rule of Civil Procedure 56.” Id. at 846 (internal punctuation
omitted; emphasis added). Applying this principle, this Court reversed the grant of
an anti-SLAPP motion premised on the plaintiff’s failure to present adequate
evidence to support its claims, where the discovery stay prevented the plaintiff from
presenting evidence to support its claims. Id. at 840, 850. The Court recognized
that the stay of discovery directly conflicted with what is now Rule 56(d), which
requires that, in the summary-judgment context, the district court allow “discovery
‘where the nonmoving party has not had the opportunity to discover information that
is essential to its opposition.’” Id. at 846 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 n.5 (1986)). Thus, as the district court acknowledged, where an
anti-SLAPP motion contests only the legal sufficiency of the complaint, the
discovery stay applies. Doc. 95, at 5, A5 (Discovery Order) (“If an anti-SLAPP
motion is founded on ‘purely legal arguments,’ then the analysis of Rules 8 and 12
applies, section 425.16(g) does not conflict with the federal rules, and discovery
must be stayed pursuant to that statute.” (quoting Z.F., 482 F. App’x at 240)).
B. Petitioners’ anti-SLAPP motion contested only the legal sufficiency of
the allegations in NAF’s Complaint, and thus the discovery stay
applies under Erie.
Petitioners’ anti-SLAPP motion contested only the legal sufficiency of NAF’s
Complaint, and thus the District Court should have applied § 425.16(g)’s mandatory
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discovery stay under Erie. The anti-SLAPP motion argued only that the allegations
in the Complaint are legally insufficient, not that NAF has failed to present sufficient
evidence.
See generally Doc. 66-1, A29.
The motion contained ubiquitous
references to the allegations in the Complaint, and no references to evidentiary
matters. Id. Indeed, CMP combined its anti-SLAPP motion with a motion to dismiss
under Rule 12(b)(6). Id. There can be no serious question that the anti-SLAPP
motion contested only the legal sufficiency of the Complaint and thus must be
treated as a motion under Rules 8 and 12. Z.F., 482 F. App’x at 240.
Nevertheless, the district court did treat the motion as one contesting NAF’s
evidentiary showing. But none of its reasons for doing so was persuasive. First, the
district court erroneously concluded that, because (in its view) CMP’s motion
demanded more factual matter from the Complaint than the Twombly-Iqbal standard
requires, the motion necessarily constituted a Rule 56 motion rather than a Rule 12
motion. Doc. 95, at 10-13, A10-13. But a district court cannot convert a motion to
dismiss into a motion for summary judgment merely because it finds the defendant’s
arguments for dismissal unpersuasive, or because it believes that the complaint
contains sufficient factual allegations to state a claim.
The district court here did not identify any instances in which the anti-SLAPP
motion relied on any materials other than the allegations in NAF’s Complaint, and
there are none. For example, the anti-SLAPP motion asserts that “Plaintiff cannot
raise its promissory-fraud claim, because it has reaffirmed its agreements with
Defendants rather than rescinding them.” Doc. 66-1, at 30, A29. The district court
held that “[t]he determination of whether NAF reaffirmed or rescinded agreements
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is a factual one.” Doc. 95, at 11, A11. But this holding mischaracterizes CMP’s
argument—CMP clearly argued that NAF had reaffirmed its contracts by suing for
breach of them in the Complaint: “Plaintiff’s Fifth and Sixth Causes of Action allege
breaches or anticipated breaches of the Exhibitor Agreement and the Confidentiality
Agreements . . . . These are the same agreements that underlie NAF’s promissoryfraud claim.” Doc. 66-1, at 30-31, A70-71. In other words, CMP plainly argued
that NAF’s reaffirmation of the agreements appeared on the face of the Complaint.
Id. If the district court disagreed, the proper course would have been to deny that
portion of the motion to dismiss, not to recharacterize it as a Rule 56 motion.
The same error underlies the other instances in which the district court
discerned factual disputes in the anti-SLAPP motion. The district court held that the
question of proximate cause on the promissory-fraud claim requires “a factual
determination, and one that cannot be made at the pleading stage.” Doc. 95, at 11,
A11. Again, the anti-SLAPP motion merely contended that NAF had failed to plead
sufficient facts to raise a plausible inference of proximate cause. See Doc. 66-1, at
32, A72 (“NAF has failed to plead adequately that Defendants breached the [putative
agreements]. Because NAF’s Complaint fails to allege that Defendants breached
their contracts with NAF, any promissory misrepresentations by Defendants could
not have proximately caused the harm allegedly sustained by NAF.”). Similarly, the
district court held that “any argument that NAF did not adequately allege fraud
amounts to a factual attack, or is baseless.” Doc. 95, at 11, A11. The anti-SLAPP
motion plainly argued that the fraud allegations should be dismissed for failure to
state a claim, based solely on the sufficiency of the allegations in the Complaint.
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Doc. 66-1, at 32-34, A72-74. If the district court believed that these arguments were
“baseless,” it should have denied this portion of the motion, not recharacterized it as
a summary-judgment motion.
In sum, the district court held that “the motion to strike frequently posits that
the Complaint lacks certain factual details that are required to state a claim.
However, few of the cases cited to support this position held that such facts were
required at the pleading stage.” Doc. 95, at 12, A12. If the district court believed
that CMP’s arguments lacked merit “at the pleading stage,” the proper recourse was
simply to deny them, not to recast the motion as a summary-judgment motion. This
would have allowed CMP the benefit of its substantive right to receive a ruling on
its anti-SLAPP motion testing the claims’ legal sufficiency, prior to discovery.
Second, the district court claimed that the case could not be resolved without
discovery because it involves questions of contractual interpretation. Doc. 95, at 13,
A13. Without identifying any potentially ambiguous provisions in the relevant
contracts, the district court nevertheless concluded that discovery is necessary
because some unspecified extrinsic evidence might affect the interpretation of those
agreements. Id. Where the court does not identify any ambiguous provisions in a
contract, the interpretation of the contract is appropriate for a 12(b)(6) motion. See
Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1017-18 (9th Cir. 2012); see
also id. at 1017 n.11 (citing Hervey v. Mercury Cas. Co., 185 Cal.App.4th 954
(2010)). Under the district court’s view, a court could never grant a 12(b)(6) motion
that implicates the interpretation of a contract governed by California law; yet this
Court affirms such dismissals routinely. See, e.g., id.; Block v. eBay, Inc., 747 F.3d
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1135, 1138-40 (9th Cir. 2014). And if the district court believed that the contracts
in question were ambiguous and required extrinsic evidence to interpret, the proper
course would have been simply to deny the motion to dismiss on this point.
Third, the district court held that discovery was necessary to determine
whether NAF’s claims arise from CMP’s protected activity. Doc. 95, at 9-10, A910. This holding was clearly erroneous, because the applicability of the anti-SLAPP
law appears on the face of the Complaint. The anti-SLAPP statute applies to, among
other things, any claims that arise from “any written or oral statement or writing
made in a place open to the public or a public forum in connection with an issue of
public interest,” as well as “any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” Cal. Civ. Pro. Code § 425.16(e)(3)(4). NAF’s Complaint alleges that CMP recorded conversations with NAF members
and/or presentations at NAF meetings, and that NAF believes CMP will publish
these videos. See, e.g., Doc. 1, ¶¶ 93, 121-22, 137, 143-44; A153, A161, A164-65.
The Complaint further alleges that CMP previously released similar recordings, and
that those recordings attracted significant media attention and generated
considerable public discussion and debate. Id., ¶¶ 84-85, A150; see also id., ¶ 34,
A131. The Complaint specifically alleges that CMP’s conduct involved speaking to
and through the national media on the issues of abortion and the propriety of humantissue purchasing. See id., ¶¶ 2, 3; A118-19. These allegations conclusively bind
NAF. See Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).
Both this Court and California courts have held consistently that similar
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conduct falls within the scope of the anti-SLAPP statute. “California courts have
held that pre-publication or pre-production acts such as investigating,
newsgathering, and conducting interviews constitute conduct that furthers the right
of free speech.” Doe v. Gangland Prods., Inc., 730 F.3d 946, 953 (9th Cir. 2013).
Applying this rule, this Court has held that investigative filming and the publication
thereof falls under the anti-SLAPP statute. See, e.g., id. (“Plaintiff’s claims are based
on Defendants’ acts of interviewing Plaintiff for a documentary television show and
broadcasting that interview. These acts were in furtherance of Defendants’ right of
free speech.”); Greater L.A. Agency on Deafness v. CNN, Inc., 742 F.3d 414, 423
(9th Cir. 2014) (holding that claims implicated protected conduct because plaintiff’s
“action arises directly from CNN’s decision to publish . . . [and plaintiff] would have
no reason to sue CNN absent the news videos on CNN.com”). Similarly, California
courts have held that allegedly unlawful undercover investigative recordings of a
doctor fall within the scope of the anti-SLAPP statute.
Lieberman v. KCOP
Television, Inc., 110 Cal.App.4th 156, 166 (2003). And there can be no meaningful
doubt that speech regarding illegal fetal tissue procurement relates to “an issue of
public interest.” Cal. Civ. Pro. Code § 425.16(e)(3), (4); Bernardo v. Planned
Parenthood Fed’n of Am., 115 Cal. App.4th 322, 358 (2004) (holding that speech
regarding abortion fell within anti-SLAPP statute because “abortion is one of the
most controversial political issues in our nation”). The Complaint itself shows that
NAF’s claims arise from activity covered by the anti-SLAPP statute.
The district court seemed to focus primarily on the possibility that Petitioners
had waived their First Amendment rights by executing certain agreements. Doc. 95,
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at 9-10, A9-10. But the District Court’s analysis rests on the false premise that, if
the First Amendment would not protect Petitioners’ conduct (because of waiver), the
anti-SLAPP statute would not apply. Id. at 9, A9. In fact, the anti-SLAPP statute
applies more broadly than the First Amendment does. “By its terms, the anti-SLAPP
statute includes not merely actual exercise of free speech rights but also conduct that
furthers such rights.” Doe, 730 F.3d at 953 (internal punctuation omitted); see also
Cal. Civ. Pro. Code § 425.16(e). To invoke the anti-SLAPP statute, a defendant
need not “first establish her actions are constitutionally protected under the First
Amendment as a matter of law.” Navellier v. Sletten, 29 Cal.4th 82, 95 (2002).
Instead, the Complaint made clear that CMP’s alleged conduct fell within the
protection of the anti-SLAPP statute.
C. The district court’s discovery order has no effect on the Erie analysis.
The district court also refused to apply § 425.16(g)’s stay of discovery on the
ground that it would conflict with the district court’s August 3, 2015 order
authorizing expedited discovery. Doc. 95, at 6-7, A6-7. But under Erie, a court
looks to whether a Federal Rule of Civil Procedure or a federal statute governs the
precise issue in dispute, not whether the district court has entered an order relevant
to the issue. See, e.g., Kohlrautz, 441 F.3d at 831 (looking to whether “there is an
applicable federal rule of civil procedure”); Metabolife, 264 F.3d at 845 (looking to
whether applying a state rule “would result in a ‘direct collision’ with a Federal Rule
of Civil Procedure”); Hanna v. Plumer, 380 U.S. 460, 471 (1965) (looking to
whether “a situation is covered by one of the Federal Rules”). If no Federal Rule or
statute directly answers the precise issue in dispute, then the state rule governs if it
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is “substantive.” Kohlrautz, 441 F.3d at 830-31. No stage of the Erie analysis
inquires whether the state rule conflicts with a prior order of the district court.
Several factors support this conclusion. First, were the contrary true, a judge
almost always could circumvent Erie by issuing an order conflicting with a
disfavored state rule early in the case, and then declining to apply the state rule based
on that conflict. Erie’s fundamental principles cannot be evaded so easily. Second,
the Rules of Decision Act provides that state law applies “except where the
Constitution or treaties of the United States or Acts of Congress otherwise require
or provide.” 28 U.S.C. § 1652. A district court’s order is not an Act of Congress, a
treaty, or a constitutional provision and cannot displace state law under the Act. Id.
Third, the Federal Rules hold an exalted position under the Erie framework largely
because they have received the imprimatur of “the Advisory Committee, [the
Supreme] Court, and Congress.” Hanna, 380 U.S. at 471. A district court order has
not run this three-part gauntlet. Thus, a district court cannot decline to apply a state
rule merely because the rule purportedly conflicts with its own prior order.
D. The anti-SLAPP statute does not directly collide with Rule 26.
There also is no direct collision between the anti-SLAPP statute’s discovery
stay and Rule 26. First, as explained above, Rule 26 does not authorize NAF’s
requested discovery, because the Complaint does not forecast any set of facts under
which the First Amendment would tolerate NAF’s requested preliminary injunction.
Several additional factors demonstrate that § 425.16(g) does not “directly
collide” with Rule 26. First, the text of Rule 26 does not guarantee any discovery
prior to the resolution of a motion contesting the legal sufficiency of the Complaint.
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See Fed. R. Civ. P. 26(d)(1). The first stage of the Erie analysis requires a careful
“textual analysis” of the relevant Federal Rules. Makaeff v. Trump Univ., LLC, 736
F.3d 1180, 1182 (9th Cir. 2013) (Wardlaw and Callahan, JJ, concurring in the denial
of rehearing en banc). The plain text of the Rule does not conflict with the antiSLAPP statute, and thus federal courts can apply both the state rule and the Federal
Rule side by side. See Newsham, 190 F.3d at 972 (applying anti-SLAPP statute
because it could “exist side by side” with Federal Rules).
Second, California’s strong substantive interests reflected in the anti-SLAPP
statute counsel against reading Rule 26 so broadly as to find a conflict with
§ 425.16(g). When engaging in Erie analysis, federal courts must interpret the
Federal Rules “with sensitivity to important state interests and regulatory policies.”
Gasperini, 518 U.S. at 427 n.7. Federal courts generally must avoid interpretations
of the Federal Rules that would impinge on substantive rights under state law. See
Shady Grove, 559 U.S. at 422-23 (Stevens, J., concurring in the judgment).
“California’s interest in securing its citizens’ free speech rights also cautions against
finding a direct collision with the Federal Rules.” Makaeff, 736 F.3d at 1183-84
(Wardlaw and Callahan, JJ, concurring in the denial of rehearing en banc); see also
Newsham, 190 F.3d at 973 (noting that California’s anti-SLAPP statute advances
“important, substantive state interests”); Liberty Synergistics, 718 F.3d at 148. The
discovery stay is an essential component of the substantive rights established by the
statute. See Britts, 145 Cal.App.4th at 1124. Thus, this Court should avoid
construing Rule 26 to conflict with substantive rights under the anti-SLAPP statute.
Third, § 425.16(g)’s discovery stay operates harmoniously alongside state
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procedural rules that substantially mirror Rule 26. The fact that the anti-SLAPP
statute works alongside California’s “statutory equivalent to Rule 56” suggests that
there is no conflict between them. Makaeff, 736 F.3d at 1183 (Wardlaw and
Callahan, concurring in the denial of rehearing en banc). California similarly has
statutory equivalents to Rule 26, see Cal. Civ. Pro. Code §§ 2017.010, 2017.020,
2019.010-.040, and California courts apply these rules in tandem with the antiSLAPP statute, even when, for example, a plaintiff seeks preliminary-injunctive
relief. See, e.g., Thomas v. Quintero, 126 Cal.App.4th 635, 650 (2005) (explaining
that “the norm would have both the hearings on the petition [for a preliminary
injunction] and the special motion to strike proceed without discovery”). That the
California analogues to Rule 26 function harmoniously alongside the anti-SLAPP
statute further emphasizes that the statute does not conflict with Rule 26.
V. This Case Presents a New and Important Issue; Resolving That Issue Will
Assist the District Courts in Properly Applying This Court’s Precedents.
The fifth factor supporting mandamus relief is that “the district court’s order
raises new and important problems or issues of first impression.” Perry, 591 F.3d
at 1136.2 This case raises both “new and important problems” and “issues of first
impression,” id., so it is a proper candidate for mandamus relief.
First, until this case, every district court to confront the issue had concluded
The fourth mandamus factor—“an oft repeated error or [one which] manifests a
persistent disregard of the federal rules”—likely does not apply here. Perry, 591
F.3d at 1136. However, as this Court has noted, “[n]ot every factor need be present
at once; indeed the fourth and fifth will rarely be present at the same time.”
Burlington N. & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1146 (9th
Cir. 2005); see also San Jose Mercury News, 187 F.3d at 1103 (noting that the fourth
and fifth factors “are often mutually exclusive”).
2
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that the stay of discovery does apply under Erie when the anti-SLAPP motion
challenges only the sufficiency of the complaint. See, e.g., Schwartz, No. 12cv3077GPC, 2013 WL 1103479, at *1-2; Stutzman, No. 2:13-cv-0116-MCE, 2013 WL
3992416, at *6-7; Smith, No. C-12-01732-DMR, 2012 WL 6712041, at *4 n.7;
Moser, No. 05cv1742-JLS, 2007 WL 3026425, at *3-4. An unpublished decision
by this Court suggests the same. Z.F., 482 F. App’x at 240. The district court’s
departure from these authorities in this case invites conflicts among the district
courts, which inevitably would result in disparate and inequitable outcomes between
similarly situated litigants. Thus, resolving the issue presented by this case will
“have a substantial impact on the administration of the district courts.” In re Cement
Antitrust Litig., 688 F.2d 1297, 1307 (9th Cir. 1982).
Second, the district court’s holding undermines California’s anti-SLAPP
statute by removing the central mechanism for protecting litigants. Without the stay,
the anti-SLAPP statute cannot effectively shield defendants from abusive litigation
tactics. “[P]rotect[ing] defendants from the burden of traditional discovery pending
resolution of the [anti-SLAPP] motion” constitutes a core component of the antiSLAPP regime. Britts, 145 Cal.App.4th at 1124 (quotation omitted).
Third, declining to enforce key components of the anti-SLAPP statute in
federal court will encourage enterprising plaintiffs to bring SLAPP claims in federal
court rather than state court. “Without anti-SLAPP protections in federal courts,
SLAPP plaintiffs would have an incentive to file or remove to federal courts
strategic, retaliatory lawsuits that are more likely to have the desired effect of
suppressing a SLAPP defendant’s speech-related activities.” Makaeff, 736 F.3d at
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1187 (Wardlaw and Callahan, JJ., concurring in the denial of rehearing en banc).
CONCLUSION
For these reasons, this Court should grant Petitioners mandamus relief and
order the district court to apply the mandatory stay of discovery prescribed by Cal.
Civ. Pro. Code. § 425.16(g), and to rule on the pending motion for preliminary
injunction without conducting discovery.
Dated: September 14, 2015
Respectfully Submitted,
Catherine W. Short, Esq.; SBN 117442
Post Office Box 1313
Ojai, California 93024-1313
Tel: (707) 337-6880
Fax: (805) 640-1940
[email protected]
/s/ D. John Sauer
D. John Sauer
James Otis Law Group, LLC
231 S. Bemiston Avenue, Suite 800
St. Louis, Missouri 63105
Tel: (314) 854-1372
[email protected]
Thomas Brejcha
Corrine Konczal
Thomas More Society
19 La Salle St., Ste. 603
Chicago, Illinois 60603
(312) 782-1680
[email protected]
Attorneys for Defendants/Petitioners The Center for Medical Progress, Biomax
Procurement Services, LLC, and David Daleiden.
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CERTIFICATE OF SERVICE
I hereby certify that, on September 14, 2015, I caused the foregoing Petition
for Writ of Mandamus with attached Appendix to be served by electronic mail and
first-class mail upon the following counsel of record for the parties:
Linda E. Shostak
Derek F. Foran
Nicholas S. Napolitan
Christopher L. Robinson
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
[email protected]
[email protected]
[email protected]
[email protected]
Brian R. Chavez-Ochoa
CHAVEZ-OCHOA LAW OFFICES, INC.
4 Jean Street, Suite 4
Valley Springs, CA 95252
[email protected]
Vladamir F. Kozina
MAYALL HURLEY, P.C.
2453 Grand Canal Boulevard
Stockton, California 95207
[email protected]
Jay Alan Sekulow
Stuart J. Roth
Andrew J. Ekonomou
Cecilia N. Heil
Carly F. Gammill
Abigail A. Southerland
Joseph Williams
AMERICAN CENTER FOR LAW & JUSTICE
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201 Maryland Avenue, NE
Washington, DC 20002
[email protected]
Edward L. White III
Erik M. Zimmerman
AMERICAN CENTER FOR LAW & JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, Michigan 48105
[email protected]
/s/ D. John Sauer
D. John Sauer
Counsel for Petitioners
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APPENDIX:
RECORD EXCERPTS
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INDEX
Order Denying Motion To Stay Discovery Pursuant To California Code Of
Civil Procedure Section 425.16(g) (Doc. 95) ..................................................A1
Transcript of Proceedings, August 21, 2015 (excerpted) ...................................A16
Joint Discovery Letter (excerpted) (Doc. 74) .....................................................A23
Defendants’ Motion To Strike The Complaint Under California’s AntiSLAPP Law And To Dismiss The Case Under Rules 12(b)(1) And
12(b)(6) Of The Federal Rules Of Civil Procedure (Doc. 66-1) ...................A29
Joint Stipulation And [Proposed] Order Regarding Extending Temporary
Restraining Order; Extending Scheduling Order Regarding Discovery
And Preliminary Injunction; And Extending Deadline To Answer
Complaint (Doc. 34) ....................................................................................A106
Order Keeping Temporary Restraining Order In Effect Until Resolution
Of Request For Preliminary Injunction (Doc. 27) .......................................A111
Temporary Restraining Order And Order To Show Cause In Support Of
Plaintiff’s Application For Temporary Restraining Order (Doc. 15) ..........A114
Complaint For Injunctive Relief And Damages (Doc. 1) .................................A117
Exhibits A-F Of Complaint (Doc. 1-1) ............................................................A177
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1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
NATIONAL ABORTION FEDERATION,
Case No. 15-cv-03522-WHO
Plaintiff,
8
v.
9
10
CENTER FOR MEDICAL PROGRESS, et
al.,
Defendants.
11
United States District Court
Northern District of California
ORDER DENYING MOTION TO STAY
DISCOVERY PURSUANT TO
CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 425.16(G)
12
This Order explains that the anti-SLAPP motion filed by the Center for Medical Progress,
13
Biomax Procurement Services, LLC, and David Daleiden (“defendants”) did not entitle them to a
14
stay of discovery under California Code of Civil Procedure section 425.16(g) because a stay
15
would conflict with Federal Rules of Civil Procedure 56 and 26. Among other reasons, there are
16
factual issues that need to be resolved to decide that motion and (as I already ruled) plaintiff
17
National Abortion Federation’s (“NAF”) motion for a preliminary injunction. Before the
18
discussing the merits of that argument in greater detail, it is worth recapping the litigation to date.
19
LITIGATION BACKGROUND
20
NAF is a non-profit, professional association of abortion providers. Compl. ¶ 8 (Dkt. No.
21
1). It filed this lawsuit, along with a motion for a temporary restraining order (“TRO”) and
22
preliminary injunction and a motion for expedited discovery, on July 31, 2015, after defendants
23
issued allegedly misleading videotapes of NAF members that they had obtained by false pretenses.
24
See id. ¶¶ 2-3.
25
According to NAF, defendants engaged in a sophisticated scheme to infiltrate its meetings.
26
Id. ¶¶ 1-3. They created a sham company, Biomax Procurement Services, that purported to be a
27
fetal tissue procurement organization. Id. ¶ 1. The individual defendants assumed false identities
28
and made fake drivers’ licenses. Id. ¶¶ 16-19. Under these pretenses, defendants obtained access
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1
to NAF meetings and gathered information about its members. Id. ¶ 1, 19. Using their false
2
identities, the individual defendants signed “Exhibitor Agreements” and “Non-Disclosure
3
Agreements” (collectively, “confidentiality agreements”) before attending all NAF meetings. Id.
4
¶¶ 141-42. In signing these confidentiality agreements, defendants promised, among other things,
5
that they “would not disclose any information learned at NAF’s annual meetings to third parties
6
absent NAF’s consent, and that they would only use information learned at NAF’s annual
7
meetings in order to enhance the quality and safety of services provided by NAF members and
8
other annual meeting participants.” Id. They also agreed that NAF would be entitled to injunctive
9
relief in the event they breached the Exhibitor Agreement. Id. ¶ 52.
United States District Court
Northern District of California
10
Defendants attended both the 2014 and 2015 NAF annual meetings. Id. ¶¶ 64, 79. NAF
11
alleges that they secretly taped conversations with other attendees, recorded panel discussions, and
12
obtained identifying information about members. Id. ¶¶ 70-71, 82. NAF does not know exactly
13
what or how much defendants recorded. In addition, it asserts that defendants surreptitiously
14
videotaped NAF members after the first annual meeting, using information and contacts that they
15
had obtained at the meeting. Id. ¶¶ 72-74.
16
On July 14, 2015, defendants began releasing videos that they had taped of NAF members,
17
stating that the videos were proof of NAF members’ illegal activities. Id. ¶¶ 84-85. Defendants
18
took the position that their work was “investigative journalism.” Id. ¶ 85. They indicated that
19
more videos and information would be released in the future. Id. ¶ 85.
20
The Complaint asserts thirteen causes of action, including breach of contract, promissory
21
fraud, and fraudulent misrepresentation. NAF requested a TRO in order to enjoin defendants from
22
releasing further information about its members, stating that defendants’ action would result in
23
death threats, harassment, and reputational harm to its members. Id. ¶ 5. The Complaint cites the
24
history of violence against providers of abortion care, as well as specific acts of intimidation
25
against NAF members caused by defendants’ recent videos. Id. ¶¶ 24-38. For example, internet
26
comments stated that “I’ll pay ten large to whomever kills [the doctor who was the subject of
27
defendants’ first video],” and that she “should die, today.” Id. ¶ 37. Similar comments were made
28
about the other individuals who were videotaped by defendants. Id.
2
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United States District Court
Northern District of California
1
I granted the request for a TRO on July 31, 2015. Dkt. No. 15. At the hearing on the
2
motion, I determined that defendants had clearly breached their agreements with NAF, and that
3
NAF had established both a likelihood of success on the merits of its claims and a threat of
4
irreparable injury. Dkt. No. 27.
5
I also found that there was good cause supporting NAF’s request to expedite discovery,
6
and I granted that motion. Tr. 17:16-19 (Dkt. No. 25); Dkt. No. 27. I stated that discovery was
7
essential to determining the scope of the preliminary injunction, directed that discovery be
8
targeted, and acknowledged that discovery disputes were likely to arise. Id. at 17:10-18:15. I set a
9
hearing to resolve any disputes, stressing that a “critical piece of the next hearing” would focus on
10
the information that defendants obtained at NAF meetings and whether it fell within the scope of
11
the confidentiality agreements. Tr. 17:14.
12
The TRO and briefing schedule were subsequently extended by stipulation of the parties.
13
Dkt. No. 34. Two days before the discovery hearing, the parties submitted a discovery letter to the
14
Court in accordance with the Court’s Order. Disc. Letter (Dkt. No. 74). But instead of describing
15
disputes that arose in the course of discovery, the letter indicated that no discovery had
16
commenced because defendants asserted that their anti-SLAPP motion (which they had filed two
17
days before they submitted the letter) automatically stayed all discovery. Id. at 10. At the
18
discovery hearing on August 21, 2015, defendants moved for a stay of discovery pursuant to
19
California Code of Civil Procedure section 425.16(g). Tr.(2) 18:13-18 (Dkt. No. 80).
20
I denied that motion, for the reasons I explain below. Because the parties had not agreed to
21
any specific dates for responses to discovery or depositions, I ordered that the parties immediately
22
meet and confer in the courthouse and return to my courtroom when they had finished, either to
23
announce agreement or to identify any issues that I needed to resolve. Id. at 5:8-13.
24
After the meet and confer, the parties returned. Defendants announced their intent to
25
invoke their Fifth Amendment rights against self-incrimination. Id. at 20:2-6. Both parties agreed
26
to a briefing schedule to address whether or to what extent the corporate entities may assert Fifth
27
Amendment rights. Dkt. No. 84. The parties also agreed to a protective order. They stipulated to
28
extend the TRO once more and to take the preliminary injunction motion, the motion to strike, and
3
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the motion to dismiss off calendar pending resolution of the Fifth Amendment issue. Id. Still
2
pending for hearing are two motions that defendants filed for clarification of the TRO that I issued
3
on July 31, 2015; NAF’s motion for an order to show cause why the defendants should not be held
4
in contempt for alleged violations of the TRO; and the parties’ disagreements arising from the
5
assertion of defendants’ Fifth Amendment rights. See Dkt. Nos. 58, 60, 61.
6
7
LEGAL STANDARD
8
California Code of Civil Procedure 425.16 “was enacted to allow early dismissal of
9
United States District Court
Northern District of California
With that background, I proceed to the discovery issue.
meritless first amendment cases aimed at chilling expression through costly, time-consuming
10
litigation.” Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001). These lawsuits
11
are also known as “Strategic Lawsuits Against Public Participation,” or “SLAPPs.” Makaeff v.
12
Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). Under section 425.16, a party may file an
13
“anti-SLAPP motion” to strike “a cause of action based on an act in furtherance of [the] right to
14
petition or free speech.” Metabolife, 264 F.3d at 840 (internal quotations omitted). If the party
15
prevails on the motion, it is entitled to attorneys’ fees. CAL. CIV. PROC. CODE § 425.16(c)(1).
16
In ruling on an anti-SLAPP motion, a court must engage in a two-step process. Equilon
17
Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002). First, the moving party must
18
make a prima facie showing that the lawsuit arises from an act in furtherance of its First
19
Amendment right to free speech. Makaeff, 715 F.3d at 261; see also Equilon, 29 Cal. 4th at 67. In
20
evaluating this requirement, courts look to “what activities form the basis for each of Plaintiffs’
21
causes of action,” then “ask whether those activities are ‘protected.’” Graham-Sult v. Clainos, 756
22
F.3d 724, 735 (9th Cir. 2014). “An act is in furtherance of the right of free speech if the act helps
23
to advance that right or assists in the exercise of that right.” Greater Los Angeles Agency on
24
Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 422 (9th Cir. 2014).
25
If the moving party satisfies the first inquiry, the burden shifts to the non-moving party to
26
establish a reasonable probability that it will prevail on its claim. Makaeff, 715 F.3d at 261. “For
27
a plaintiff to establish a probability of prevailing on a claim, he must satisfy a standard comparable
28
to that used on a motion for judgment as a matter of law.” Price v. Stossel, 620 F.3d 992, 1000
4
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(9th Cir. 2010). This standard requires that a claim be dismissed if the plaintiff presents an
2
insufficient legal basis, or if no reasonable jury would find in its favor. Metabolife, 264 F.3d at
3
840; see also Price, 620 F.3d at 1000 (an anti-SLAPP motion will be granted if the plaintiff
4
“presents an insufficient legal basis for the claims or when no evidence of sufficient substantiality
5
exists to support a judgment for the plaintiff.”) (internal quotations omitted).
Section 425.16(g) provides that all discovery proceedings should be stayed “upon the filing
6
7
of a notice of motion made pursuant to this section.” CAL. CIV. PROC. CODE § 425.16(g). “The
8
stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The
9
court, on noticed motion and for good cause shown, may order that specified discovery be
10
conducted notwithstanding this subdivision.” Id.
Section 425.16 will only apply in federal court if it does not conflict with other federal
United States District Court
Northern District of California
11
12
rules. Metabolife, 264 F.3d at 845. In Metabolife, the court summarized the applicable law,
13
stating that “[p]rocedural state laws are not used in federal court if to do so would result in a
14
‘direct collision’ with a Federal Rule of Civil Procedure.” Id. It found that a stay of discovery
15
under section 425.16(g) would conflict with Federal Rule of Civil Procedure 56, which requires
16
that the nonmoving obtain discovery of information that is “essential to its opposition. ” Id. at
17
846.
18
At the same time, section 425.16(g) does not always conflict with the federal rules, and
19
courts engage in a “threshold inquiry” to determine whether it should apply in each case. Z.F. v.
20
Ripon Unified Sch. Dist., 482 F. App’x 239, 240 (9th Cir. 2012). If an anti-SLAPP motion is
21
“founded on purely legal arguments,” then the analysis of Rules 8 and 12 applies, section
22
425.16(g) does not conflict with the federal rules, and discovery must be stayed pursuant to that
23
statute. Id. If, by contrast, the anti-SLAPP motion involves a factual challenge, “the motion must
24
be treated as though it were a motion for summary judgment and discovery must be permitted.”
25
Id. A motion to strike brought under Rule 12(b)(6) may involve either purely legal arguments or a
26
factual challenge. See, e.g., Davis v. Elec. Arts Inc., No. C-10-03328 RS DMR, 2011 WL
27
2621626, at *3 (N.D. Cal. July 5, 2011). Therefore, courts must look to the anti-SLAPP motion at
28
issue in deciding whether to apply Rule 12 or Rule 56, and whether the discovery stay of section
5
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425.16(g) should be imposed.
DISCUSSION
2
3
I. A DISCOVERY STAY WOULD CONFLICT WITH MY PRIOR ORDER
When I granted NAF’s motion for a TRO on August 3, I also granted NAF’s motion to
4
5
expedite discovery under Rule 26 so that the parties could address certain limited factual matters
6
that are critical to this case, such as the scope of the defendants’ potential First Amendment
7
waiver.
8
United States District Court
Northern District of California
9
Although there is no federal rule that gives parties a right to discovery pending a motion
for preliminary injunction, a party may obtain expedited discovery if it establishes that it has
10
“good cause” to proceed with its requested discovery. Semitool, Inc. v. Tokyo Electron Am., Inc.,
11
208 F.R.D. 273, 276 (N.D. Cal. 2002); Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066
12
(C.D. Cal. 2009). “In considering whether good cause exists, factors courts may consider include:
13
(1) whether a preliminary injunction is pending; (2) the breadth of the discovery request; (3) the
14
purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with
15
the requests; and (5) how far in advance of the typical discovery process the request was made.”
16
Am. LegalNet, 673 F. Supp. 2d at 1067 (internal quotations omitted); see also Facebook, Inc. v.
17
Various, Inc., No. C-11-01805-SBA DMR, 2011 WL 2437433, at *2 (N.D. Cal. June 17, 2011).
18
Allowing the defendants to postpone discovery on this matter by filing an anti-SLAPP
19
motion would conflict with my prior Order and with Rule 26. The anti-SLAPP motion and the
20
motion for a preliminary injunction undoubtedly have some overlap in law and fact, and both
21
require an inquiry into whether the NAF can establish a likelihood of success on the merits of its
22
Complaint. I have already evaluated the merits of the NAF’s Complaint in granting the TRO. I
23
also determined that more facts are necessary to fully resolve the motion for a preliminary
24
injunction. For the reasons discussed in this Order and at the prior hearing, discovery is merited
25
because it is necessary to NAF’s motion for a preliminary injunction. This outweighs any burden
26
or prejudice on defendants, and satisfies the “good cause” standard for expedited discovery, as I
27
have already ruled. See Lilith Games (Shanghai) Co. v. uCool, Inc., No. 15-CV-01267-SC, 2015
28
WL 3523405, at *2-3 (N.D. Cal. June 4, 2015) (granting limited discovery pending preliminary
6
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injunction, stating that “[g]ood cause may be found where the need for expedited discovery, in
2
consideration of the administration of justice, outweighs the prejudice to the responding party.”);
3
cf. Rovio Entm’t Ltd. v. Royal Plush Toys, Inc., 907 F. Supp. 2d 1086, 1099 (N.D. Cal. 2012)
4
(denying discovery where “Plaintiff has ascertained the identities of the entities and the individual
5
allegedly responsible for the conduct it seeks to enjoin and has not articulated any specific missing
6
evidence essential for injunctive relief.”).
7
II. A DISCOVERY STAY WOULD CONFLICT WITH FEDERAL RULE OF CIVIL
PROCEDURE 56
8
Besides the conflict with my prior order, the critical issue related to the defendants’ motion
9
for discovery is whether the anti-SLAPP motion may be resolved as a matter of law, or whether it
10
raises factual issues that convert it to a Rule 56 motion. If the motion does not raise only legal
11
United States District Court
Northern District of California
issues, the automatic discovery stay of section 425.16(g) is improper because it conflicts with the
12
Federal Rules of Civil Procedure. See Flores v. Emerich & Fike, No. 1:05CV0291 OWWDLB,
13
2006 WL 2536615, at *10 (E.D. Cal. Aug. 31, 2006) (“Both Metabolife and Verizon [Delaware,
14
Inc. v. Covad Communications Co.] suggest that a federal court should hesitate to hear and decide
15
an anti-SLAPP motion to strike prior to affording a plaintiff an opportunity to amend or pursue
16
discovery.”).
17
18
A. Federal Cases Discussing Stay of Discovery Pursuant to Section 425.16(g)
Since Metabolife, many district courts have addressed whether to apply the automatic stay
19
provision of section 425.16(g) in federal cases involving an anti-SLAPP motion. In Aeroplate
20
Corp. v. Arch Insurance Co., the court described the general rule derived from Metabolife as
21
follows:
22
23
24
25
26
27
[T]he discovery-limiting provisions of section 425.16, subdivisions
(f) and (g), collide with the discovery-permitting provisions of Rule
56, and therefore are not available in federal court unless either: (1)
the factual basis of the case has been developed through discovery
or similar prior proceedings to the extent a motion for summary
judgment would be appropriate; (2) the parties agree that further
discovery is not necessary; or (3) the only issue presented by the
motion is an issue of law and the motion is suitable for decision as a
motion to dismiss pursuant to Rule 12(b)(6).”
No. CVF061099AWISMS, 2006 WL 3257487, at *9 (E.D. Cal. Nov. 9, 2006) (internal citations
28
7
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omitted) (emphasis added). Other courts have focused on whether discovery is “essential to [the
2
plaintiff’s] opposition” under Rule 56. See, e.g., New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090,
3
1101 (C.D. Cal. 2004); Price v. Stossel, 590 F. Supp. 2d 1262, 1269 (C.D. Cal. 2008) (collecting
4
cases); see also Flores, 2006 WL 2536615, at *9 (applying Metabolife “narrowly only to
5
situations where a plaintiff asserts prior to decision on an anti-SLAPP motion that discovery might
6
influence the outcome of the motion to strike.”)
7
In Davis v. Elec. Arts Inc., the plaintiffs alleged that the defendant unlawfully used their
8
likenesses in its video game franchise. 2011 WL 2621626, at *1. The defendant argued that its
9
anti-SLAPP motion raised only issues of law because it “identifies legal defects in the complaint
10
while accepting its factual allegations as true and does not rely on evidence outside the
11
complaint.” Id. at *3. The court disagreed, finding that the defendant’s issues were not limited to
12
issues of law. Id. at *4. It reasoned that “in order for Plaintiffs to make their required showing at
13
the second step of the anti-SLAPP analysis, Plaintiffs must meet an evidentiary burden, not a
14
pleading requirement.” Id. (internal quotations omitted). It concluded that “[a]ssuming that [the
15
defendant] is able to meet its initial burden of establishing that the challenged causes of action
16
arise from protected free speech activity, the Court necessarily must engage in some factual
17
evaluation at the second step of the anti-SLAPP process in order to determine whether Plaintiffs
18
have demonstrated a probability of prevailing on their claims. ” Id.
19
The cases cited by defendants all illustrate that district courts will only impose the
20
requirements of 425.16(g) where the issues raised in an anti-SLAPP motion are clean legal issues
21
that render discovery irrelevant to the resolution of the motion. In Moser v. Triarc Companies,
22
Inc., the court denied discovery where it was clear that the only issues were ones of law: “To
23
resolve these [two] issues, the Court must read the complaint, take judicial notice of the Form S-1,
24
and interpret the relevant statutes: there is no need to consider other evidence beyond the
25
pleadings.” No. 05CV1742JLSWMC, 2007 WL 3026425, at *3 (S.D. Cal. Oct. 16, 2007). In
26
Smith v. Payne, the court denied discovery because it could resolve the motion on grounds of res
27
judicata. No. C 12-01732 DMR, 2012 WL 6712041, at *5-6 (N.D. Cal. Dec. 26, 2012) aff’d, 594
28
F. App’x 397 (9th Cir. 2015). In Stutzman v. Armstrong, the court denied a motion to compel in
8
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deference to the district judge’s decision on discovery. No. 2:13-CV-0116-MCE-KJN, 2013 WL
2
3992416, at *7 (E.D. Cal. Aug. 2, 2013). At the same time, it stated that “the above discussion
3
[that discovery is not merited] necessarily assumes that defendants’ motions do not present any
4
evidentiary issues, issues of proof, or issues of disputed fact.” Id.1
5
B. The First Step of the Anti-SLAPP Analysis Should be Treated as a Rule 56 Motion
In order to prevail on the anti-SLAPP motion, defendants must first establish that their
United States District Court
Northern District of California
6
7
actions were in furtherance of their First Amendment rights and thus protected under section
8
425.16.2 I look to whether this question can be decided on purely legal grounds.
9
The Complaint alleges that defendants signed the Exhibitor Agreement and the Non-
10
Disclosure Agreement, prohibiting them from making videos or other recordings at the NAF
11
meetings and from disclosing any such information. Compl. ¶¶ 110, 135-37. This allegation
12
raises a factual question of whether and to what extent defendants executed a valid waiver of their
13
First Amendment rights. At the TRO hearing, I found that NAF had made a prima facie showing
14
of such a waiver.
Unlike many cases where discovery is not necessary to determine whether a defendant’s
15
16
activity was protected, here it is not even clear what the defendants’ protected activity is.
17
Defendants’ motion to strike does not contain even a cursory argument that their actions are
18
“protected” under section 425.16. See Mot. Strike (Dkt. No. 68). If defendants waived their First
19
Amendment rights, then at least some of their activity at issue is not protected. See Navellier v.
20
Sletten, 29 Cal. 4th 82, 94 (2002) (“as the statute is designed and as we have construed it, a
21
defendant who in fact has validly contracted not to speak or petition has in effect ‘waived’ the
22
right to the anti-SLAPP statute’s protection in the event he or she later breaches that contract.”).
23
Defendants may contend that none of the activity covered by the Complaint falls within the First
24
1
25
26
27
28
The other cases cited by the defendants in the discovery letter do not support their position. For
example, in Schwartz v. At The Cove Mgmt. Corp., the court granted the defendants’ motion to
stay discovery because “[p]laintiff agrees that further discovery is not necessary.” No.
12CV3077-GPC WVG, 2013 WL 1103479, at *2 (S.D. Cal. Mar. 14, 2013).
2
Although courts often analyze constitutional waiver in the second prong of an anti-SLAPP
analysis in discussing the merits of the lawsuit, see Navellier v. Sletten, 29 Cal. 4th 82, 94 (2002),
for the purposes of this motion I find that waiver is also relevant to determining whether
defendants were engaged in protected speech to begin with. See Davis, 2011 WL 2621626, at *7.
9
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Amendment waiver, or they may contend that the waiver is not valid at all. In either case, the
2
parties must address the factual context of the conduct in dispute.
I cannot conceive of any way for these questions to be resolved as a matter of law, and
3
4
defendants have not presented any in their briefing. For these reasons, a stay of discovery would
5
conflict with Rule 56. See Davis, 2011 WL 2621626, at *7 (“discovery related to the issue of
6
whether Defendant waived its First Amendment rights is essential to Plaintiffs’ opposition to the
7
anti-SLAPP motion”).
United States District Court
Northern District of California
8
C. The Second Step of the anti-SLAPP Motion Should be Treated as a Rule 56 Motion
9
Defendants argue that they will prevail on the merits of this case because the Complaint
10
fails to state a claim upon which relief can be granted under Rule 12(b)(6), and assert that their
11
motion raises purely legal issues because it attacks the sufficiency of the pleadings and not the
12
plaintiff’s proof. Mot. Strike at 1. This argument lacks merit.
Although defendants brush aside the factual questions in this case by framing the anti-
13
14
SLAPP motion as a Rule 12(b)(6) motion, the Complaint is not so readily dismissed. It describes
15
a detailed factual scenario. Defendants are alleged to have conspired to obtain information about
16
NAF and its members by creating a fake company, assuming false identities, and signing
17
confidentiality agreements with the intent of breaching them. The Complaint is 60 pages long,
18
includes 13 causes of action, and by the defendants’ own admission “raises complex issues about
19
the Court’s jurisdiction, constitutional issues, and the availability of remedies.” Dkt. No. 66.3 The
20
defendants have filed two requests to clarify the TRO and identify its scope, reflecting the
21
difficulty in determining the scope of a potential injunction without any discovery.
I have reviewed defendants’ motion to strike and motion to dismiss thoroughly.
22
23
Defendants have not met their burden to establish that there is a purely legal issue that can dispose
24
of either the anti-SLAPP motion or the motion for a preliminary injunction. The anti-SLAPP
25
motion is riddled with factual determinations that must be resolved. For example:

26
Defendants assert that NAF’s promissory fraud claim must be dismissed because
27
28
3
This document has since been withdrawn, but the admission remains.
10
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“it has re-affirmed the purported agreements . . . rather than rescinding them.”
2
Mot. Strike at 2. In support, it cites to a case that ruled on summary judgment. See
3
Goldman v. Seawind Grp. Holdings Pty Ltd, No. 13-CV-01759-SI, 2015 WL
4
433507, at *1 (N.D. Cal. Feb. 2, 2015). The determination of whether NAF re-
5
affirmed or rescinded the agreements is a factual one. Defendants also assert that
6
this claim fails because any misrepresentations could not have proximately caused
7
the harm sustained.4 Mot. Strike at 3. Again, this is a factual determination, and
8
one that cannot be made at the pleading stage. Finally, in moving to dismiss the
9
third and fourth causes of action, defendants assert that “where a plaintiff has not
10
brought a defamation claim, it cannot seek damages from publication alone.” Mot.
11
Strike at 3, 5. But the damages in this case are not limited to those from
12
publication (for example, they include those arising from the breach of the
13
confidentiality agreements), and thus cannot be dismissed as a matter of law. See
14
Compl. ¶¶ 87-93, 123.

15
In moving to dismiss the fourth cause of action, defendants assert that NAF has not
16
adequately pleaded fraud under Rule 9(b). Mot. Strike at 4. However, considering
17
the detailed allegations of the Complaint, it is clear that any argument that NAF did
18
not adequately allege fraud amounts to a factual attack, or is baseless. The
19
Complaint includes pages of facts that describe defendants’ alleged fraudulent
20
scheme, and provides photos of defendants’ false drivers’ licenses and appearance
21
at the NAF meeting. See Compl. ¶¶ 64, 67.

22
In moving to dismiss NAF’s ninth cause of action for violations of California’s
23
Unfair Competition Law, defendants state that the Complaint “does not plausibly
24
allege any unlawful conduct by Defendants.” Mot. Strike at 16. For the same
25
reasons as above, this is flatly contradicted by the Complaint. Defendants’
26
argument amounts to a factual attack to put NAF to its proof.
27
4
28
Defendants do not actually argue that the Complaint does not plead proximate causation, see
Compl. ¶¶ 123-24, but suggest that there are not enough facts to sustain the cause of action.
11
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1

In moving to dismiss NAF’s tenth cause of action for unlawful recording of
2
confidential conversations, the motion to strike challenges what is considered a
3
“confidential conversation,” the definition of “other persons,” and discusses
4
“reasonable” expectations of being overheard. See Mot. Strike at 18. It admits that
5
the Complaint identifies specific conversations that were recorded, but argues that
6
“it provides none of the details necessary to assess whether the conversation
7
participants had an objectively reasonable expectation that the conversation [was]
8
not being overheard or recorded.” Id. (internal quotations omitted). Once again,
9
defendants mischaracterize the nature of a motion to dismiss. These determinations
10
relating to the reasonableness of expectations and what is considered “confidential”
11
are questions of fact that should not be resolved by a 12(b)(6) motion.
12
13
14

Defendants make similar “reasonableness” arguments in moving to dismiss NAF’s
eleventh and twelfth causes of action. See id. at 21-23.
As the above arguments indicate, the motion to strike frequently posits that the Complaint
15
lacks certain factual details that are required to state a claim. However, few of the cases cited to
16
support this position held that such facts are required at the pleading stage. Instead, most of the
17
cases that defendants rely on were decided at summary judgment or trial, after facts had been
18
developed through discovery. See, e.g., Kaylor v. Crown Zellerbach, Inc., 643 F.2d 1362, 1368
19
(9th Cir. 1981) (summary judgment); Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505,
20
510 (4th Cir. 1999) (post-trial); Goldman, 2015 WL 433507, at *1 (summary judgment); Vera v.
21
O'Keefe, No. 10-CV-1422-L MDD, 2012 WL 3263930, at *1 (S.D. Cal. Aug. 9, 2012) (summary
22
judgment); Turnbull v. Am. Broad. Companies, No. CV 03-3554 SJO(FMOX), 2005 WL
23
6054964, at *1 (C.D. Cal. Mar. 7, 2005) (post-trial); Hernandez v. Hillsides, Inc., 47 Cal. 4th 272,
24
278 (2009) (summary judgment); Flanagan v. Flanagan, 27 Cal. 4th 766, 771, 41 P.3d 575 (2002)
25
(trial); Cnty. of Solano v. Vallejo Redevelopment Agency, 75 Cal. App. 4th 1262, 1273 (1999)
26
(trial); Malpas v. State, 695 A.2d 588, 590 (1997) (post-trial). Defendants improperly seek to
27
impose a factual standard at the pleading stage that is applicable at a later stage of the proceedings,
28
after discovery has been conducted. Their argument that I should treat their motion as a Rule
12
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2
12(b)(6) motion instead of a Rule 56 motion is legally unsound.
Second, a substantial portion of the anti-SLAPP motion is devoted to interpreting the scope
3
of the confidentiality agreements. While contract interpretation is a matter of law, the court may
4
look to extrinsic evidence in resolving ambiguities in the contract. Brobeck, Phleger & Harrison
5
v. Telex Corp., 602 F.2d 866, 871 (9th Cir. 1979). Even if there are ultimately no ambiguities in
6
the contract, the court may look at extrinsic evidence in determining the threshold question of
7
whether or not the contract contains an ambiguity. Id. That some causes of action revolve around
8
contract interpretation does not mean that discovery of evidence that helps explain the terms of the
9
agreement should be prohibited. See Marzec v. California Pub. Employees Ret. Sys., 236 Cal.
10
App. 4th 889, 909 (2015) (“So long as the pleading does not place a clearly erroneous construction
11
upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must
12
accept as correct plaintiff’s allegations as to the meaning of the agreement . . . to survive demurrer,
13
plaintiffs need only set forth a reasonable interpretation of their . . . contracts”) (internal quotations
14
omitted); see also Lee v. Gen. Nutrition Cos., Inc., No. CV 00-13550LGB(AJWX), 2001 WL
15
34032651, at *12 (C.D. Cal. Nov. 26, 2001) (denying motion to dismiss where defendants raised
16
“issues of contract interpretation and other highly factual issues that are inappropriate for
17
resolution in a motion to dismiss.”); Intel Corp. v. Via Technologies, Inc., No. C 99-03062 WHA,
18
2001 WL 777085, at *6 (N.D. Cal. Mar. 20, 2001).
19
Although defendants argue that the Complaint does not contain sufficient information to
20
give rise to a plausible inference of breach, this argument is unpersuasive to the point of being
21
frivolous. The Complaint includes detailed factual allegations (that defendants have not yet
22
disputed) that they obtained access to NAF meetings under false pretenses and that they have
23
begun a campaign to expose what they believe to be NAF’s illegal activities. See Compl. ¶¶ 137-
24
39. This is sufficient to permit an inference under Rule 12(b)(6) that defendants breached the
25
confidentiality agreements, regardless of what the scope of the agreements is ultimately
26
determined to be. No matter how I interpret the agreements, NAF alleges that the defendants
27
breached them. Any further inquiry into these issues would transform the motion into a motion
28
for summary judgment.
13
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2
reason why discovery is necessary – one of its allegations is that certain defendants wore scarves
3
around their necks to conceal recording equipment, including at formal events. Compl. ¶¶ 67-71.
4
Even if I were to accept all of defendants’ arguments regarding the interpretation of the
5
confidentiality agreements, the factual question remains whether the defendants obtained
6
information in violation of these agreements, such as by concealing recording equipment at the
7
formal events, and whether disclosure of that information would constitute a breach. In addition,
8
several of defendants’ alternative arguments involve factual determinations, such as whether the
9
information that defendants disclosed or will disclose is “confidential” or whether it will disclose
10
11
United States District Court
Northern District of California
Although NAF lacks specific information about what the defendants recorded – that is one
“criminal activity.” See Mot. Strike at 7.
Defendants failed to identify even one discrete legal issue that would resolve any of the
12
causes of action in their favor, let alone meet their burden to show that the entire Complaint
13
should be dismissed on purely legal grounds. It is improper to address the anti-SLAPP motion as
14
a Rule 12(b)(6) motion.
15
16
D. Discovery is Essential to Allow NAF to Respond to Defendants’ Motion
A stay of discovery would also conflict with Rule 56 because discovery is essential to
17
NAF’s opposition to defendants’ anti-SLAPP motion. The motion makes clear that the crux of the
18
defense in this case involves the facts that NAF lacks or has not yet developed, including what
19
information defendants obtained, where and how they obtained it, the circumstances in which the
20
confidentiality agreements were signed, the reasonableness of various expectations, and the intent
21
of both parties and of third parties.
22
I am also persuaded by the factual questions NAF points to in the discovery letter. See
23
Discovery Letter at 4-5. What conduct of defendants, if any, was protected by the First
24
Amendment? Which the breaches of contract, if any, led to disclosures of other confidential
25
information? Without the discovery ordered on August 3, 2015, and given defendants’ assertion
26
of their Fifth Amendment right not to incriminate themselves, it is not obvious how defendants
27
can meet their burden under the first step of the anti-SLAPP analysis. If they can, it is clear that
28
discovery is necessary for the second step, and for the analysis of NAF’s motion for a preliminary
14
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2
3
injunction.
In sum, this case presents an especially compelling case for allowing discovery.
Defendants’ motion is DENIED.
CONCLUSION
4
5
6
7
8
9
10
For the above reasons, defendants’ motion to stay discovery pursuant to California Code of
Civil Procedure section 425.16(g) is DENIED.
IT IS SO ORDERED.
Dated: August 27, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
A015
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Pages 1 - 25
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Before The Honorable William H. Orrick, Judge
NATIONAL ABORTION FEDERATION,
Plaintiff,
VS.
CENTER FOR MEDICAL PROGRESS,
ET AL.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
NO. CV 15-3522-WHO
San Francisco, California
Friday, August 21, 2015
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiff:
BY:
MORRISON & FOERSTER, LLP
425 MARKET STREET - 32ND FLOOR
SAN FRANCISCO, CA 94105
LINDA E. SHOSTAK, ATTORNEY AT LAW
CHRISTOPHER ROBINSON, ATTORNEY AT LAW
DEREK FORAN, ATTORNEY AT LAW
For Defendant Troy Newman:
AMERICAN CENTER FOR LAW AND JUSTICE
188 FRONT STREET, SUITE 116-19
FRANKLIN, TN 37064
BY: CARLY F. GAMMILL, ATTORNEY AT LAW
EDWARD L. WHITE, ATTORNEY AT LAW
Reported By:
Pamela A. Batalo , CSR No. 3593, RMR FCRR
Official Reporter
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APPEARANCES CONTINUED:
For Defendants Center for Medical Progress, Biomax Procurement
Services, LLC, and David Daleiden:
D. JOHN SAUER
231 SOUTH BEMISTON AVENUE - SUITE 800
ST. LOUIS, MO 63015
BY: D. JOHN SAUER, ATTORNEY AT LAW
BY:
LIFE LEGAL DEFENSE FOUNDATION
POST OFFICE BOX 1313
OJAI, CA 93024
CATHERINE W. SHORT, ATTORNEY AT LAW
BY:
THOMAS MORE SOCIETY
19 S. LASALLE STREET - SUITE 603
CHICAGO, IL 60603
THOMAS L. BREJCHA, JR., ATTORNEY AT LAW
A017
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Friday - August 21, 2015
10:00 a.m.
2
P R O C E E D I N G S
3
---000---
4
5
6
7
8
THE CLERK:
Calling civil matter 15-3522, National
Abortion Federation vs. Center for Medical Progress, et al.
Counsel, please come forward and state your appearance.
MS. SHOSTAK:
Linda Shostak, Derek Foran, and
Christopher Robinson on behalf of the plaintiff.
9
THE COURT:
Good morning.
10
MR. SAUER:
John Sauer and Cathy Short and Tom Brejcha
11
on behalf of the defendants -- Mr. Daleiden, Center for Medical
12
Progress, and Biomax Procurement Services.
13
14
15
16
MS. GAMMILL:
Good morning, Your Honor.
Carly Gammill
and Edward L. White on behalf of defendant, Troy Newman.
THE COURT:
All right.
Good morning.
We are here on the discovery hearing, and
17
it's -- it starts off a little differently than I was expecting
18
it to, so let me just sort of summarize where we are and what
19
has to happen today.
20
On August 3rd I found good cause to grant plaintiff's
21
motion for expedited discovery because it was necessary for a
22
preliminary injunction.
23
I also confirmed my ruling from July 31st that NAF was
24
entitled to a TRO because, among other reasons, it was likely
25
to prevail on the merits.
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Instead of proceeding with discovery, the defendants have
2
filed an anti-SLAPP motion which, of course, is their right,
3
and argue that no discovery may proceed until the motion is
4
resolved, and that argument has no merit.
5
Any SLAPP motions in federal court require a stay only if
6
the motion presents purely legal issues regarding the
7
sufficiency of the pleadings.
8
Here the allegations are that the defendants created a
9
false company, assumed false identities, signed confidentiality
10
agreements with the intent of breaching them.
11
60-page Complaint with 13 causes of action.
12
have filed two requests to clarify a TRO to identify the scope
13
of the TRO, which is just an example of how fact-intensive this
14
analysis is going to be.
15
There is a
The defendants
What we have to know is what information was obtained and
16
how it was obtained to determine whether and to what extent the
17
First Amendment is implicated at all, which goes to the first
18
prong of the anti-SLAPP motion.
19
The factual disputes that were identified on pages 4 and 5
20
of the joint letter need to be fleshed out.
21
strike, which I have thoroughly reviewed, is riddled with
22
factual disputes like what's a knowing and intentional waiver
23
of the First Amendments rights of the individuals.
The motion to
24
So issuing a stay of discovery at this point not only
25
conflicts with Rule 56, but also my prior order under Rule 26,
A019
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so I'm really not very interested in argument on that issue.
What I want to do is do the discovery, which is what I set
out to do back on August 3rd.
Now, the defendants haven't provided specific objections.
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I've reviewed now the discovery that has been promulgated.
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seems narrow and appropriate, and I want it responded to and I
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want it responded to by August 25th with the documents.
8
9
It
Now, if there are specific objections that have not yet
been discussed between the parties, then you are going to
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discuss them after this hearing.
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18th floor and sit in the attorney conference room, which is a
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beautiful room, and you'll sit as long as it takes to work
13
through those objections.
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You're going to go up to the
The depositions, there are three of them.
They're going
15
to be of Mr. Newman, Mr. Daleiden, and whoever the CMP, Biomax
16
person is going to be.
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half hours.
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going to agree on that schedule upstairs.
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They're going to be for three and a
They're going to be done by September 4th.
You're
With respect to the prospective order, there are some
20
issues that I want to discuss and that's actually what I want
21
to do in this hearing, is talk about the protective order.
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And then with respect to the timing on the briefs, I will
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extend the briefs slightly so the opposition to the motion to
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dismiss and motion to strike will be now due on September 21st
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and the reply on October 1st.
And I did that -- I extended
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I understand.
MS. GAMMILL:
I guess maybe to clarify
2
my question, our concern previously had been that we might be
3
in a position of having to take depositions of witnesses prior
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to receiving documents.
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clear that it will work in the normal order.
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THE COURT:
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MS. GAMMILL:
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THE COURT:
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I just want to make sure that it's
Yeah.
I can't imagine --
I couldn't either.
-- that anybody would -- okay.
Mr. Foran, are you up for any reason?
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MR. FORAN:
I'm not, Your Honor.
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MR. SAUER:
Your Honor --
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THE COURT:
Mr. Sauer.
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MR. SAUER:
I think I know what your answer to this
14
is, but may I make an oral motion for a stay of your ruling on
15
the issue of the stay of discovery so that I can consult with
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my clients and consider whether to seek interlocutory review of
17
it on writ?
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THE COURT:
I'll consider that to be your motion.
19
understand -- I've read the papers.
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argument is.
21
through all of that.
22
the motion to strike, and I'm -- I just -- there's just too
23
many facts.
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for me to make the determinations on both of these very
25
important -- three very important motions on October 9th, I
I
I understand what the
And I tried to explain at the beginning I've gone
I've looked.
I've read the 64 pages in
This is not a pure legal argument, and in order
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need that discovery.
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determine where the interests of the First Amendment lie.
3
I need to know what happened in order to
And so I take your -- your motion is made.
I'm not going
4
to stay anything, and so you can push on to do anything that
5
you think is appropriate.
6
that you'll have something to work with.
7
I will give you a written order so
But I don't think today it's going to be useful for us to
8
spend any more time on this issue.
9
be spent on figuring out what the discovery is.
10
11
MR. SAUER:
clarity.
I think the time needs to
Understood, Your Honor.
I appreciate your
Thank you.
12
THE COURT:
13
MR. ROBINSON:
14
THE COURT:
Thank you.
All right.
Thank you, Your Honor.
So I will look forward to seeing you at
15
some point.
16
want you to leave the building until this is all resolved.
17
Okay.
Maybe you will do it before lunch, but I don't
Thanks very much.
18
(Recess taken at 10:29 a.m..m.)
19
(Proceedings resumed at 12:19 p.m.)
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THE CLERK:
Please come to order.
21
THE COURT:
Good afternoon, please be seated.
22
23
So where do we stand?
MR. FORAN:
Your Honor, you will be please to know we
24
reached agreement on a protective order.
25
be much to protect, and I will turn it over to Mr. Sauer.
There's not going to
This
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[COUNSEL LISTED ON SIGNATURE PAGE]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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NATIONAL ABORTION FEDERATION (NAF),
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Plaintiff,
Case No. 3:15-cv-3522-WHO
JOINT DISCOVERY LETTER
v.
THE CENTER FOR MEDICAL PROGRESS,
BIOMAX PROCUREMENT SERVICES LLC,
DAVID DALEIDEN (aka “ROBERT SARKIS”),
and TROY NEWMAN,
Hearing Judge: William H. Orrick
Hearing Date: August 21, 2015
Time: 10:00 a.m.
Location: Courtroom 2, Dept. 17
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Defendants.
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Date Action Filed:
Trial Date:
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July 31, 2015
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JOINT DISCOVERY LETTER
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E.
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NAF Requests That The Court Set Defendants’ Anti-SLAPP Motion And
Motion To Dismiss On The Same Schedule As NAF’s Preliminary Injunction
Motion.
NAF proposes that Defendants’ anti-SLAPP motion and motion to dismiss (Dkt. 66, 68-
4
69) be heard on the same schedule as NAF’s preliminary injunction motion. The extra time
5
would allow NAF to respond adequately to Defendants’ 64-page opening brief, which is
6
significantly longer than allowed by the Civil Local Rules. NAF’s answering brief would be due
7
September 28, 2015 (instead of September 8). Defendants’ reply would be due October 5, 2015
8
(instead of September 18). This would also allow NAF adequate time to collect and review
9
discovery, which — as explained above — is relevant to responding to Defendants’ anti-SLAPP
10
motion, as well as the preliminary injunction motion.
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CMP’S SEPARATE STATEMENT
12
13
A.
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Defendants the Center for Medical Progress, Biomax Procurement Services, LLC, and
Summary Of Discovery Communications.
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David Daleiden (“Defendants”) incorporate by reference the summary of the parties’ discovery
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communications provided by counsel for co-defendant Troy Newman. Defendants also join in
17
the statement of co-defendant Newman with respect to the proposed Protective Order.
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B.
The Filing Of Defendants’ Anti-SLAPP Motion On August 17, 2015 Effected
An Automatic Stay Of Discovery.
On August 17, 2015, Defendants the Center for Medical Progress, Biomax Procurement
Services, LLC, and David Daleiden (collectively, “Defendants”) filed a motion to strike or
dismiss the Complaint under California’s anti-SLAPP law, Cal. Civ. Pro. Code § 425.16. Doc.
66-1. Section 425.16(g) of the anti-SLAPP law provides: “All discovery proceedings in the
action shall be stayed upon the filing of a notice of motion made pursuant to this section.”
Accordingly, the filing of the anti-SLAPP motion implemented an automatic stay of discovery in
this case. No further discovery can be conducted until a ruling on the anti-SLAPP motion: “The
stay of discovery shall remain in effect until notice of entry of order ruling on the motion.” Id.
The Court may provide for limited additional discovery after the filing of an anti-SLAPP motion,
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but only “upon noticed motion and for good cause shown.” Id. Moreover, any such additional
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discovery requested must be “essential” to plaintiff’s opposition to the anti-SLAPP motion.
3
Davis v. Elec. Arts, Inc., No. C-10-03328 RS (DMR), 2011 WL 2621626, at *5 (N.D. Cal. July 5,
4
2011).
5
Where, as here, the anti-SLAPP motion challenges only the sufficiency of the pleadings,
6
the automatic stay of § 425.16(g) applies in federal court. There are two kinds of possible anti-
7
SLAPP motions—(1) those that solely challenge the adequacy of the pleadings, akin to Rule
8
12(b)(6) motions; and (2) those that challenge the adequacy of plaintiff’s proof, akin to expedited
9
summary-judgment motions. “[S]ince Metabolife, courts have recognized the distinction between
10
an anti-SLAPP motion that is in the nature of a Rule 12(b)(6) motion to dismiss and one that
11
presents issues of fact, akin to a Rule 56 summary judgment motion, for purposes of determining
12
whether the discovery stay applies.” Schwartz v. At the Cove Management Co., No. 12cv3077-
13
GPC, 2013 WL 1103479 (S.D. Cal. March 14, 2013). The automatic stay of discovery applies to
14
the former type of anti-SLAPP motion, where “the only issue presented by the motion is an issue
15
of law and the motion is suitable for decision as a motion to dismiss pursuant to Rule 12(b)(6).”
16
See id. at *1-2. Where the anti-SLAPP motion tests the adequacy of the pleadings, there is no
17
“collision” between the anti-SLAPP statute and the federal rules. See Moser v. Triarc Cos., Inc.,
18
No. 05cv1742-JLS, 2007 WL 3026425, at *4 (S.D. Cal. Oct. 16, 2007) (holding that plaintiff
19
could not conduct discovery because the anti-SLAPP motion was “akin to a Rule 12(b)(6) motion
20
rather than a summary judgment motion”).
21
Numerous federal judicial decisions in California have agreed with this conclusion, i.e.,
22
that an anti-SLAPP motion that solely tests the adequacy of the pleadings institutes an automatic
23
stay of discovery in federal court. See Stutzman v. Armstrong, No. 2:13-cv-0116-MCE, 2013 WL
24
3992416, at *6-7 (E.D. Cal. Aug. 2, 2013) (denying a motion to compel discovery in part because
25
anti-SLAPP motion challenged adequacy of allegations in complaint); Smith v. Payne, No. C-12-
26
01732-DMR, 2012 WL 6712041, at *4 n.7 (N.D. Cal. Dec. 26, 2012) (finding no collision
27
between § 425.16(g) and the Federal Rules because the “anti-SLAPP motion challenges the legal
28
sufficiency of Plaintiffs’ claims, and thus is in the nature of a Rule 12(b)(6) motion to dismiss”);
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Aeroplate Corp. v. Arch Ins. Co., No. 06–1099 AWI SMS, 2006 WL 3257487, at *9 (E.D.Cal.
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Nov.9, 2006) (noting that the “discovery-limiting provisions” of the anti-SLAPP statute apply in
3
federal court where “the only issue presented by the motion is an issue of law and the motion is
4
suitable for decision as a motion to dismiss pursuant to Rule 12(b)(6)”).
5
Thus, the law is clear that the filing of an anti-SLAPP motion that solely tests the
6
adequacy of the pleadings, like a Rule 12(b)(6) motion, executes an automatic stay of discovery
7
when it is filed in federal court. As the court stated in Moser: “the Court denies plaintiff’s
8
discovery request because the Court finds that defendant’s underlying anti-SLAPP motion
9
challenges the legal sufficiency of plaintiff’s complaint, rather than the sufficiency of plaintiff’s
10
evidence.” Moser, 2007 WL 3026425, at *3. The automatic stay of discovery applies where
11
“there is no need to consider other evidence beyond the pleadings.” Id.
12
The sole case relied upon by Defendant, Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832,
13
846 (9th Cir. 2001), is not to the contrary. That case involved an anti-SLAPP motion that tested
14
the sufficiency of the plaintiff’s evidence, not the sufficiency of the pleadings, and was therefore
15
akin to a motion for summary judgment. See id. at 837-38. As Schwartz noted, “since
16
Metabolife, courts have recognized the distinction between an anti-SLAPP motion that is in the
17
nature of a Rule 12(b)(6) motion to dismiss and one that presents issues of fact, akin to a Rule 56
18
summary judgment motion, for purposes of determining whether the discovery stay applies.”
19
Schwartz, 2013 WL 1103479, at *1. Plaintiff has not identified any provision of the Federal
20
Rules that purportedly “collides” with the mandatory stay of § 425.16(g) in this context.
21
Contrary to Plaintiff's assertions herein, Defendants’ anti-SLAPP motion, Doc. 66-1,
22
solely addresses the adequacy of the pleadings. It submits no evidence of its own, and it does not
23
challenge the sufficiency of Plaintiff’s evidence. See generally Doc. 66-1. To Defendants’
24
knowledge, every court to consider this issue has stated that such an anti-SLAPP motion executes
25
a stay of “all discovery proceedings pending in the action.” Cal. Civ. Pro. Code § 425.16(g).
26
This automatic stay of discovery imposes no prejudice on the Plaintiff. The Plaintiff’s
27
asserted interests relating to injunctive relief are fully protected by the Temporary Restraining
28
Order while the stay of discovery is in effect. See Doc. 34, at 3. Defendants acknowledge that
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the Temporary Restraining Order will remain in effect while the anti-SLAPP motion is under this
2
Court’s consideration.
3
By contrast, lifting the stay of discovery would deprive Defendants of important
4
substantive rights clearly granted to them by California law, including the right to test the
5
sufficiency of Plaintiff’s Complaint without having to submit to the burdens and intrusion of
6
discovery. Indeed, § 425.16(g) directly advances the core purpose of Rule 12(b)(6): “The
7
purpose of F. R. Civ. P. 12(b)(6) is to enable defendants to challenge the legal sufficiency of
8
complaints without subjecting themselves to discovery.” Rutman Wine Co. v. E. & J. Gallo
9
Winery, 829 F.2d 729, 738 (9th Cir. 1987).
10
This Court’s order of August 18, 2015 (Doc. 70) stated that “[t]he discovery previously
11
ordered by the Court in connection with the preliminary injunction motion is unaffected by the
12
filing of defendants’ [anti-SLAPP] motions.” Doc. 70, at 1. The same order, however, stated that
13
the Court “ha[d] not had the opportunity to review any of those motions in detail.” Id.
14
Accordingly, it appears that the Court had not had the opportunity to review Defendants’ anti-
15
SLAPP motion to verify whether it tests the adequacy of the pleadings like a 12(b)(6) motion, and
16
thus effects a mandatory stay of discovery in federal court. See Cal. Civ. Pro. Code § 425.16(g).
17
To the extent that this Court’s Order reflected that the filing of the anti-SLAPP motion did not
18
effect an automatic stay of discovery, Defendants respectfully request that this Court reconsider
19
this holding, for the reasons stated above.
20
Because the filing of the anti-SLAPP motion instituted a mandatory stay of discovery, no
21
further discovery proceedings should be held in this cause until the Court rules on the anti-SLAPP
22
motion, unless the plaintiff files a noticed motion showing good cause for discovery. Cal. Civ.
23
Pro. Code § 425.16(g). Because the anti-SLAPP motion raises purely legal issues regarding the
24
sufficiency of the pleadings, moreover, there is no basis for any specific discovery to be ordered
25
on the anti-SLAPP motion.
26
For these reasons, Defendants respectfully request that this Court order that all discovery
27
proceedings are stayed pending decision on Defendants’ anti-SLAPP motion. Defendants
28
respectfully reserve all their rights regarding objections to pending discovery requests, notices,
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scheduling issues, and other discovery-related issues, until such time as discovery in this matter
2
may resume.
3
C.
4
In its August 18, 2015 Order, Doc. 70, this Court adopted a briefing and hearing schedule
Briefing Schedule On Defendants’ Anti-SLAPP Motion.
5
on Defendants’ anti-SLAPP motion, providing for Plaintiff’s response to be filed on September 8,
6
2015; Defendants’ reply to be filed on September 18, 2015; and the hearing to be held on October
7
9, 2015. Defendants have no objection to this briefing schedule. Plaintiff requests an alternative
8
briefing schedule, with the response due on September 28 and the reply due on October 5.
9
Defendants object to this proposed briefing schedule on the ground that it allows Defendants too
10
little time to prepare a reply brief, and allows the Court too little time to consider the briefs before
11
the hearing. The original briefing schedule ordered by the Court is more appropriate.
12
D.
13
Plaintiff has, at various times, accused Defendants of not participating in discovery
14
conferences in good faith. This is incorrect. Between August 10 and August 12, Defendants had
15
a change of counsel. Defendants’ new counsel participated in the discovery conference on
16
August 12 when they were just getting up to speed in the case. In that discovery conference,
17
Defendants promptly notified Plaintiff that they might pursue a stay of discovery in the case, and
18
that they would notify all parties as soon as possible if they were to do so. Defendants notified
19
Plaintiff of this again on Friday, August 14, 2015. Through the weekend of August 15-16, 2015,
20
Defendants’ counsel worked diligently to ensure that their extensive analysis of the basis for the
21
anti-SLAPP motion would be complete. On Monday morning, August 17, 2015, Defendants
22
notified Plaintiff that they would be filing an anti-SLAPP motion. The motion was filed a day
23
before the parties had informally agreed to exchange written discovery responses, and therefore
24
there was no prejudice to the Plaintiff or any other party. In other words, Defendants notified
25
Plaintiff at the earliest possible opportunity that discovery might be stayed, and worked extremely
26
diligently to ensure that the anti-SLAPP motion would be filed as early during discovery
27
proceedings as possible.
28
Good Faith of Defendants’ Participation in Discovery Conferences.
Plaintiff’s argument that Defendants have “waived” their objections to discovery requests
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Catherine W. Short, Esq.; SBN 117442
1 LIFE LEGAL DEFENSE FOUNDATION
2 Post Office Box 1313
Ojai, California 93024-1313
3 Tel: (707) 337-6880
[email protected]
4
5 D. John Sauer*
James Otis Law Group, LLC
6 231 South Bemiston Ave., Suite 800
7 St. Louis, Missouri 63105
(314) 854-1372
8 [email protected]
9
Thomas Brejcha*
10 Thomas More Society
19 La Salle St., Ste. 603
11 Chicago, IL 60603
12 (312) 782-1680
[email protected]
13
14
*Pro Hac Vice
15 Attorneys for Defendants
THE CENTER FOR MEDICAL PROGRESS,
16 BIOMAX PROCUREMENT SERVICES, LLC,
17
18
19
AND DAVID DALEIDEN
UNITED STATES DISTRICT COURT,
NORTHERN DISTRICT OF CALIFORNIA
20 NATIONAL ABORTION FEDERATION
Case No. 3:15-cv-3522 (WHO)
21
Judge William H. Orrick, III
22
23
24
25
26
27
28
)
)
(NAF),
)
)
Plaintiff,
)
vs.
)
)
THE CENTER FOR MEDICAL
)
PROGRESS; BIOMAX PROCUREMENT
SERVICES, LLC; DAVID DALEIDEN (aka )
)
“ROBERT SARKIS”); and TROY
)
NEWMAN,
)
)
Defendants.
DEFENDANTS’ MOTION TO STRIKE
THE COMPLAINT UNDER
CALIFORNIA’S ANTI-SLAPP LAW
AND TO DISMISS THE CASE UNDER
RULES 12(b)(1) AND 12(b)(6) OF THE
FEDERAL RULES OF CIVIL
PROCEDURE
Hearing Date: Sept. 23, 2015
Time: 3:00 p.m.
DEF.S’ MOT TO STRIKE COMPL. UNDER CALI. ANTI-SLAPP
LAW AND TO DISMISS – 3:15-CV-3522 (WHO)
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TABLE OF CONTENTS
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NOTICE OF MOTION................................................................................................................... 1
INTRODUCTION .......................................................................................................................... 1
LEGAL STANDARDS .................................................................................................................. 3
ARGUMENT .................................................................................................................................. 5
I. Plaintiff’s Sole Federal Cause of Action for Violation of the Civil RICO Statute
Fails to State a Claim for Relief, and Plaintiff Has Failed to Plead Diversity
Jurisdiction. The Federal Claim Should Be Dismissed With Prejudice and the
Remaining Claims Should Be Dismissed for Lack of Subject Matter Jurisdiction.
5
A. The First Amendment bars Plaintiff’s claims for damages and
injunctive relief in its civil RICO claim. ...................................................................... 6
B. Plaintiff fails to allege a viable predicate act of mail or wire fraud. ...................... 6
C. Plaintiff fails to allege a violation of 18 U.S.C. § 1028.......................................... 9
D. Plaintiff fails to allege facts that will support RICO standing, and it
fails to allege facts that would demonstrate proximate cause for any
RICO injuries. ............................................................................................................. 12
E. Because Plaintiff fails to allege a civil RICO claim, and fails to
properly plead diversity jurisdiction, Plaintiff’s complaint must be
dismissed for lack of federal subject matter jurisdiction. ........................................... 17
II. Plaintiff Fails to Plead Facts to Support Any Claim for Injunctive Relief Against
Disclosure of the NAF Videos, Because An Injunction Would Violate the First
Amendment’s Prohibition against Prior Restraints. ......................................................... 18
A. The injunctive relief sought by NAF constitutes a quintessential prior
restraint under the First Amendment. ......................................................................... 18
B. NAF does not plead a sufficiently significant or concrete interest to
justify a prior restraint on speech................................................................................ 20
C. Even if Defendants had obtained the alleged recordings unlawfully or
tortiously, that would not justify a prior restraint on speech. ..................................... 22
D. Neither the Exhibitor Agreements Nor the Confidentiality
Agreements Waived Defendants’ First Amendment Rights Against Prior
Restraints on Speech. .................................................................................................. 23
1. The Non-Disclosure Agreements do not prohibit the disclosure of any
allegedly recorded informal conversations, or any recordings involving
evidence of a crime. ..............................................................................................23
i
DEF.S’ MOT TO STRIKE COMPL. UNDER CALI. ANTI-SLAPP
LAW AND TO DISMISS – 3:15-CV-3522 (WHO)
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2. NAF pleads no facts that would support an inference that Defendants
knowingly, voluntarily, and intelligently waived any First Amendment rights
in the alleged recordings. ......................................................................................24
3. Even if Defendants had waived some First Amendment rights, the Court
should not enforce the waiver, because the balance of public policies counsels
against enforcement. ..............................................................................................25
III. Plaintiff Fails to State a Claim for Damages Arising from the Publication of Any
Recordings, Because It Has Not Alleged Actual Disclosure of Any Recordings of
NAF Meetings, and It Has Not Made Any Defamation Claim. ....................................... 26
IV. Plaintiff’s Second Cause of Action for Civil Conspiracy Fails to State a Claim for
Relief................................................................................................................................. 29
V. Plaintiff’s Third Cause of Action for Promissory Fraud Fails to State a Claim for
Relief................................................................................................................................. 30
A. NAF’s promissory-fraud claim is legally barred, because NAF has not
rescinded its agreements with Defendants but instead has reaffirmed them by
suing Defendants for breach of contract. .................................................................... 30
B. NAF’s Complaint fails to show that Defendants breached their contracts with
NAF, and thus any promissory misrepresentations by Defendants could not have
proximately caused the harm allegedly sustained by NAF. ....................................... 31
C. NAF cannot seek publication damages through a promissory-fraud claim
when it has not brought a defamation claim. .............................................................. 32
VI. Plaintiff’s Fourth Cause of Action for Fraudulent Misrepresentation Fails to State
a Claim for Relief. ............................................................................................................ 32
A. Plaintiff’s Fourth Cause of Action fails to comply with the heightened
pleading requirements of Fed. R. Civ. P. 9(b). ........................................................... 32
B. The fraudulent misrepresentation claim fails because it relies entirely on
allegations of promissory fraud, which are legally barred by Plaintiff’s attempt to
enforce the contract..................................................................................................... 33
C. NAF cannot seek publication damages through a fraudulent-misrepresentation
claim when it has not brought a defamation claim. .................................................... 34
VII. Plaintiff’s Fifth Cause of Action Fails to State a Claim for Breach of Contract. ..... 35
A. The Complaint has not plausibly alleged that any actual or potential
disclosures of information would violate the applicable agreements. ........................ 35
1. The Exhibitor Agreement applies only to information disclosed through
formal proceedings or formal contexts at NAF meetings. ....................................35
2. The Exhibitor Agreement applies only to information disclosed by NAF,
not other attendees. ................................................................................................38
3. The Exhibitor Agreement does not limit the disclosure of information that
is publicly available. ..............................................................................................39
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2
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5
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7
4. The Confidentiality Agreement likewise applies only to information
disclosed through formal proceedings or formal contexts at NAF meetings. .......39
5. The Complaint fails to allege the disclosure of any information obtained
by Defendants through any formal means or proceedings at an NAF meeting.
............................................................................................................................. 41
B. NAF has not plausibly alleged that any recording that occurred at the NAF
meetings violated the applicable agreements. ............................................................ 42
C. NAF has not plausibly alleged that Defendants used NAF Conference
Information in a manner inconsistent with enhancing the quality and safety of
abortion services. ........................................................................................................ 43
8
VIII. Plaintiff’s Sixth Cause of Action Fails to State a Claim for Anticipatory Breach
of Contract. ....................................................................................................................... 44
9
IX. Plaintiff’s Claim for Trespass Fails to State a Claim for Relief. ................................ 45
10
X. Plaintiff’s Eighth Cause of Action Fails to State a Claim for Relief Under
California’s False Advertising Law. ................................................................................. 46
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
A. To the extent that NAF’s FAL claim relates to public statements or disclosures
regarding NAF and its members, or the services that they provide, NAF has failed
to plead that it relied on Defendants’ statements or disclosures. ................................ 47
B. To the extent that NAF’s FAL claim relates to representations allegedly made
by Defendants to NAF, NAF’s claim must be dismissed, because NAF cannot
recover any relief authorized by the FAL. .................................................................. 48
C. NAF has failed to allege that Defendants have made or will make public
statements or disclosures with the intent to dispose of property, perform services,
or induce the public to enter into an obligation concerning property or services. ...... 50
XI. Plaintiff’s Ninth Cause of Action Fails to State a Claim Under California’s Unfair
Competition Law. ............................................................................................................. 50
A. NAF’s Complaint does not plausibly allege any unlawful conduct by
Defendants, and thus NAF has not satisfied the “unlawful” prong of the UCL. ........ 51
B. NAF’s Complaint does not allege any “unfair” conduct by Defendants, and
thus NAF has not satisfied the “unfair” prong of the UCL. ....................................... 51
C. NAF’s UCL claim under the “fraudulent” prong fails for the same reasons that
its Eighth Cause of Action does.................................................................................. 52
XII. . Plaintiff’s Claim for Violation of California Penal Code § 632 Fails to State a Claim
for Relief. .......................................................................................................................... 53
A. The allegations in NAF’s Complaint do not give rise to a plausible inference
that the allegedly recorded conversations constituted “confidential
communications” under Penal Code § 632. ................................................................ 53
27
28
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B. Even if the original recordings violated California Penal Code § 632, this
Section does not prohibit disclosure of unlawful recordings. Thus, NAF’s § 632
claim—including its request for injunctive relief—must be dismissed to the extent
that it relates to any post-recording conduct or disclosure. ........................................ 57
XIII. Plaintiff’s Eleventh Cause of Action for Violation of the Maryland Wiretapping
and Electronic Surveillance Act Fails to State a Claim for Relief. .................................. 58
A. Plaintiffs fail to identify a protected “private” oral communication. ................... 58
B. Plaintiff has no general expectation of privacy in all communications that took
place at the Maryland Conference. ............................................................................. 59
XIV. Count Twelve of the Complaint Fails to State a Plausible Claim for Intrusion
into Seclusion.................................................................................................................... 60
XV. Count Thirteen of the Complaint Fails to State a Plausible Claim for False
Light. ................................................................................................................................. 63
10 CONCLUSION............................................................................................................................. 64
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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TABLE OF AUTHORITIES
1
2 Cases
3 AB Grp. v. Wertin, 59 Cal. App. 4th 1022 (1997) ........................................................................40
4 A.H.D.C. v. City of Fresno, No. CV-F-5498, 2000 WL 35810723 (E.D. Cal. Aug. 31, 2000)
5
............................................................................................................................................24, 25
6 Alderson v. United States, 718 F. Supp. 2d 1186 (C.D. Cal. 2010) ..............................................37
7 Alexander v. United States, 509 U.S. 544 (1993) ..........................................................................18
8 A.M.P. v. Hubbard Broad., Inc., 216 F. Supp. 2d 933 (D. Minn. 2001) .......................................21
9 Anuziato v. eMachines, Inc., 402 F. Supp. 2d 1133 (C.D. Cal. 2005) .....................................46, 50
10 Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006) ..........................................................15, 16
11 Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 454 (1994) .....................................29
12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................................passim
13 Barrows v. Jackson, 346 U.S. 249 (1953) ....................................................................................19
14 Bartnicki v. Vopper, 532 U.S. 514 (2001) ..........................................................................20-21, 61
15 Baugh v. CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993) ..........................................................45-46
16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................63-64
17 Black v. Bank of Am., 30 Cal. App. 4th 1 (1994) ....................................................................29-30
18 Blue Shield of Cal. Life & Health Ins. Co. v. Superior Court, 192 Cal. App. 4th 727 (2011)
19
...........................................................................................................................................36, 40
20 Boland, Inc. v. Rolf C. Hagen (USA) Corp., 685 F. Supp. 2d 1094 (E.D. Cal. 2010) ..................51
21 Branzburg v. Hayes, 408 U.S. 665 (1972) ....................................................................................37
22 Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001)......................19
23 Canyon Cnty. v. Syngenta Seeds, Inc., 519 F.3d 969 (9th Cir. 2008) ......................................12-13
24 Carpenter v. United States, 484 U.S. 19 (1987) .............................................................................7
25 CBS, Inc. v. Davis, 510 U.S. 1315 (1994) ...........................................................................2, 21-23
26 Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083 (9th Cir. 2002) ...........................................13, 15
27 Choose Energy, Inc. v. Am. Petroleum Inst., 2015 WL 1737992 (N.D. Cal. April 8, 2015)...........5
28
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LAW AND TO DISMISS – 3:15-CV-3522 (WHO)
A034
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1 Choudhuri v. Wells Fargo Bank, N.A., No. C11-00518-SBA, 2011 WL 5079480 (N.D. Cal.
2
Oct. 25, 2011) ..........................................................................................................................13
3 Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946 (9th Cir. 2013) ..........................10
4 City of Chi. Heights v. Lobue, 914 F. Supp. 279 (N.D. Ill. 1996) ................................................13
5 Clark v. Conahan, 737 F. Supp. 2d 239 (M.D. Pa. 2010) .............................................................13
6 Cleveland v. United States, 531 U.S. 12 (2000) .............................................................................6
7 Cnty. of Solano v. Vallejo Redevelopment Agency, 75 Cal. App. 4th 1262 (1999) ................44, 45
8 Cobb v. Brede, No. C10-03907-MEJ, 2012 WL 33242 (N.D. Cal. Jan. 6, 2012) .........................13
9 Coulter v. Bank of Am., 28 Cal. App. 4th 923 (1994) ...................................................................57
10 Cuviello v. Feld Ent., Inc., 304 F.R.D. 585 (N.D. Cal. 2015) ......................................................55
11 Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967) ...........................................................................24
12 Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390 (9th Cir. 1991) ..............................25
13 De la Cerra v. Molina, 2011 WL 6187168 (Cal. App. Dec. 14, 2011) ........................................54
14 Desnick v. Am. Broad. Co., Inc., 44 F.3d 134 (7th Cir. 1995) .............................................8, 28, 46
15 Diaz v. Gates, 420 F.3d 897 (9th Cir. 2005) ............................................................................14, 15
16 Doe v. Roe, 958 F.2d 763 (7th Cir. 1992) .....................................................................................14
17 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677 (9th Cir. 2009) ......................................................12
18 E.I. Dupont de Nemours & Co., 431 F.3d 353 (9th Cir. 2005) ...............................................12, 14
19 Elite Show Servs., Inc. v. Staffpro, Inc., 119 Cal. App. 4th 263 (2004) ........................................44
20 First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978) .............................................................26
21 Flanagan v. Flanagan, 27 Cal. 4th 766 (2002)...................................................................... passim
22 Fomby-Denson v. Dep’t of Army, 247 F.3d 1366 (Fed. Cir. 2001) ..............................................37
23 Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) ..........................passim
24 Frenzel v. AliphCom, Case No. 14-cv-035587-WHO, 2014 WL 7387150 (N.D. Cal. Dec.
25
29, 2014) ......................................................................................................................48, 49, 52
26 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) .................49
27 Fuentes v. Shevin, 407 U.S. 67 (1972) ..........................................................................................24
28
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1 Gathright v. City of Portland, 439 F.3d 573 (9th Cir. 2006).........................................................19
2 Goldman v. Seawind Grp. Holdings Ptd Ltd., Case No. 13-cv-01759, 2015 WL 433507
3
(N.D. Cal. Feb. 2, 2015) ....................................................................................................30-31
4 Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d 1257 (C.D. Cal. 2010) .................................30
5 Haberg v. Cal. Fed. Bank FSB, 32 Cal. 4th 350 (2004) ..................................................................3
6 Hambrick v. Healthcare Partners Med. Grp., Inc., 238 Cal. App. 4th 124 (2015) ......................48
7 Hamm v. Rhone–Poulenc Rorer Pharms., Inc., 187 F.3d 941 (8th Cir. 1999) .............................13
8 Hammerschmidt v. United States, 265 U.S. 182, 188 (1924) ......................................................6-7
9 Hassanally v. JRAM Enters., Inc., 2007 WL 1990385 (Cal. App. 2d Dist. July 11, 2007) .........31
10 Hentzel v. Singer Co., 138 Cal. App. 3d 290 (1982) ....................................................................37
11 Hemi Grp., LLC v. City of New York, 559 U.S. 1 (2010) ........................................................15, 16
12 Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009).............................................................. 60, 62
13 Holmes v. Secs. Investor Protection Corp., 503 U.S. 258 (1992)..................................... 14, 15, 16
14 Hornberger v. Am. Broad. Co., Inc., 351 N.J. Super. 577 (2002) .................................................28
15 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) .................................................................29
16 In re Apple & AT&T iPad Unlimited Data Plan Litig., 802 F. Supp. 2d 1070 (N.D. Cal. 2011)
17
......................................................................................................................................48-49, 52
18 In re Sony Gaming Litig., 903 F. Supp. 2d 942 (S.D. Cal. 2012) .................................................49
19 In re Teledyne Def. Contracting Derivative Litig., 849 F. Supp. 1369 (C.D. Cal. 1993) .............13
20 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ...........................................................................50
21 Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002) ............................................................................46, 50
22 Kaylor v. Crown Zellerbach, Inc., 643 F.2d 1362 (9th Cir. 1981) ..........................................31-32
23 K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc., 171 Cal. App. 4th 939 (2009) ..51
24 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ..........................................................32
25 Kenne v. Stennis, 230 Cal. App. 4th 953 (2014) ...........................................................................29
26 Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011) .........................................................57, 58
27 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) ........................................49
28
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1 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) .................................................47, 48, 49
2 Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850 (10th Cir. 1972)................................ 37
3 L.A. Taxi Coop., Inc. v. Uber Techs., Inc., No. 15-cv-01257-JST, 2015 WL 4397706 (N.D.
4
Cal. July 17, 2015) .......................................................................................................47, 48, 52
5 Lazar v. Superior Court, 12 Cal. 4th 631 (1996)....................................................................passim
6 Leonard v. Clark, 12 F.3d 885 (9th Cir. 1993) ........................................................................24, 25
7 Levitt v. Yelp! Inc., 765 F.3d 1123 (9th Cir. 2014)........................................................................ 51
8 Levy v. State Farm Mut. Auto. Ins. Co., 150 Cal. App. 4th 1 (2007)...................................... 35, 43
9 Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156 (2003) .....................................passim
10 Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007) ...........................................50
11 Malpas v. State, 695 A.2d 588 (Md. 1997) ........................................................................58-59, 60
12 Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ....................................................51
13 McNally v. United States, 483 U.S. 350 (1987) .............................................................................6
14 Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806 (9th Cir. 2002) ..................61, 62
15 Moncada v. W. Coast Quartz Corp., 221 Cal. App. 4th 768 (2013). .......................................43-44
16 Moser v. Triarc Cos., Inc., No. 05cv1742-JLS, 2007 WL 3026425 (S.D. Cal. Oct. 16, 2007)…...4
17 Nat’l Ass’n of Realtors v. Nat’l Real Estate Ass’n, 894 F.2d 937 (7th Cir. 1989).........................17
18 Navellier v. Sletten, 29 Cal. 4th 82 (2002) .......................................................................................5
19 Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976)..........................................................17-18, 20, 22
20 N.Y. Times Co. v. United States, 403 U.S. 713 (1971) ........................................................2, 20, 21
21 Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011) ..........................................................35
22 Ohno v. Yasuma, 723 F.3d 984 (9th Cir. 2013) .............................................................................19
23 Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ...........................................................18, 20
24 Paul v. Watchtower Bible & Tract Soc’y, 819 F.2d 875 (9th Cir. 1987) ......................................20
25 Penney v. NDEX West LLC, No. 2:11-cv-5567, 2013 WL 569176 (C.D. Cal. Feb. 13, 2013). ....33
26 People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., 107 Cal. App. 4th 516 (2003) ..................42
27 Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) ............................18, 20
28
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1 Rain CII Carbon, LLC v. Kurczy, Civ. Action No. 12-2014, 2012 WL 3577534 (E.D. La.
2
Aug. 20, 2012) .........................................................................................................................21
3 Rebolledo v. Tilly’s, Inc., 228 Cal. App. 4th 900 (2014) ...................................................38, 39, 41
4 Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986) ..............................................8
5 Roden v. AmerisourceBergen Corp., 186 Cal. App. 4th 620 (2010) .......................................36, 38
6 Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) ..............................4
7 Saad v. Am. Diabetes Ass’n, Case No. 15-10267, 2015 WL 751295 (D. Mass. Feb. 23, 2015) ...21
8 Sanford v. Memberworks, Inc., 625 F.3d 550 (9th Cir. 2010) ........................................................8
9 Schwartz v. At the Cove Mgmt. Corp., No. 12cv3077-GPC, 2013 WL 1103479 (S.D. Cal.
10
March 14, 2013) ………………………...……………………………………………………..4
11 Serv. by Medallion, Inc. v. Clorox Co., 44 Cal. App. 4th 1807 (1996) .........................................31
12 Shelley v. Kraemer, 334 U.S. 1 (1948) ..........................................................................................19
13 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 (9th Cir. 2010) ...........................51
14 Shulman v. Grp. Prods., Inc., 18 Cal. 4th 207 (1998) ..................................................61, 62-63, 64
15 Silvaco Data Sys. v. Intel Corp., 184 Cal. App. 4th 210 (2010) .....................................................8
16 Smith v. Payne, No. C-12-01732-DMR, 2012 WL 6712041 (N.D. Cal. Dec. 26, 2012) …………4
17 Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002) ................................................................63
18 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ...................................................22
19 Sparling v. Hoffman Constr. Co., 864 F.2d 635 (9th Cir. 1988) ...................................................14
20 Stephenson v. Drever, 16 Cal. 4th 1167 (1997) .......................................................................42, 43
21 Stutzman v. Armstrong, No. 2:13-cv-0116-MCE, 2013 WL 3992416 (E.D. Cal. Aug. 2, 2013)....4
22 SunPower Corp. v. SolarCity Corp., 2012 WL 6160472 (N.D. Cal. Dec. 11, 2012)...................... 8
23 Terminiello v. City of Chi., 337 U.S. 1 (1949) ..............................................................................25
24 Thomas v. Baca, 308 F. App’x 87 (9th Cir. 2009) ..................................................................13, 15
25 Thompson v. Hayes, 748 F. Supp. 2d 824 (E.D. Tenn. 2010) .......................................................21
26 Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015) ...............................................................................10
27 Turnbull v. Am. Broad. Cos., 2005 WL 6054964 (C.D. Ca. Mar. 7, 2005)...................................56
28
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1 Uniroyal Goodrich Tire Co. v. Hudson, 1996 WL 520789 (6th Cir. Sept. 12, 1996) ..................39
2 United States v. Hedaithy, 392 F.3d 580 (3d Cir. 2004) .................................................................7
3 United States v. Olano, 507 U.S. 725 (1993) ................................................................................24
4 United States v. Rohn, 964 F.2d 310 (4th Cir. 1992) .......................................................................9
5 United States v. Shotts, 145 F.3d 1289 (11th Cir. 1998) .................................................................7
6 Vera v. O’Keefe, Civ. Case No. 10-cv-1422-L(MDD), 2012 WL 3263930 (S.D. Cal. Aug. 9,
7
2012)........................................................................................................................................ 56
8 Valvoline Instant Oil Change Franchising, Inc. v. RFG Oil, Inc., No. 12-cv-2079, 2013 WL
9
4027858 (S.D. Cal. Aug. 5, 2013) ............................................................................................8
10 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ..............................................32-33
11 Walker v. Gates, No. CV 01–10904, 2002 WL 1065618 (C.D. Cal. May 28, 2002) ....................13
12 Wilkins v. Nat’l Broad. Co., 71 Cal. App. 4th 1066 (1999) ....................................................61, 62
13 Williams v. Alabama, 341 F.2d 777 (5th Cir. 1965) ......................................................................24
14
15 Statutes and Laws
16 18 U.S.C. § 1028….................................................................................................................passim
17 18 U.S.C. § 1341 ..............................................................................................................................6
18 18 U.S.C. § 1343 ..............................................................................................................................6
19 18 U.S.C. § 1961 ............................................................................................................................11
20 18 U.S.C. § 1964 .......................................................................................................................5, 12
21 Cal. Bus. & Prof. Code § 17200 ....................................................................................................50
22 Cal. Bus. & Prof. Code § 17500 ..............................................................................................46, 50
23 Cal. Bus. & Prof. Code § 17535 ....................................................................................................48
24 Cal. Civ. Pro. Code § 425.16 ..................................................................................................passim
25 Cal. Civ. Code § 47 ..........................................................................................................................3
26 Cal. Civ. Code § 1643...............................................................................................................37-38
27 Cal. Civ. Code § 3426.1 ...................................................................................................................7
28
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1 Cal. Penal Code § 632 ..................................................................................................52-53, 55, 57
2 Cal. Penal Code § 637.2 ..........................................................................................................53, 85
3 FED. R. CIV. P. 9(b) ....................................................................................................................8, 32
4 FED. R. CIV. P. 12(b)(1)..............................................................................................................1, 64
5 FED. R. CIV. P. 12(b)(6)..........................................................................................................1, 4, 64
6 Md. Code Ann., Cts. & Jud. Proc. § 10-401 ..................................................................................58
7 Md. Code Ann., Cts. & Jud. Proc. § 10-402 ..................................................................................58
8
9 Secondary Sources
10 Ayres & Klass, Promissory Fraud Without Breach, 2004 WISC. L. REV. 507 .............................31
11 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 954 (3d ed. 2006) ......63
12 Thomas I. Emerson, The Doctrine of Prior Restraint, 20 L. & CONTEMP. PROBS. 648 (1955).... .19
13 RESTATEMENT (SECOND) OF TORTS, § 652A..................................................................................61
14 WEBSTER’S THIRD NEW INT’L DICTIONARY, UNABRIDGED 476 (2002).........................................39
15 1 WILLISTON ON CONTRACTS § 4:18 (4th ed. 1990) .....................................................................44
16
17
18
19
20
21
22
23
24
25
26
27
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NOTICE OF MOTION
1
2
TO NATIONAL ABORTION FEDERATION AND THEIR ATTORNEY(S) OF
3 RECORD:
4
PLEASE TAKE NOTICE THAT on September 23, 2015, in Courtroom 2 of the Honorable
5 William H. Orrick at the United States District Court for the Northern District of California, 17th
6 Floor, 450 Golden Gate Ave., San Francisco, CA 94102, the Center for Medical Progress (“CMP”),
7 Biomax Procurement Services, LLC (“Biomax”), and David Daleiden (“Daleiden”) (together,
8 “Defendants”) respectfully bring Defendants’ Motion To Strike The Complaint Under California’s
9 Anti-SLAPP Law And To Dismiss The Case Under Rules 12(b)(1) And 12(b)(6) Of The Federal
10 Rules Of Civil Procedure.
11
Pursuant to Cal. Civ. Pro. Code § 425.16 and Rules 12(b)(6) and 12(b)(1) of the Federal
12 Rules of Civil Procedure, Defendants respectfully request that this Court strike and/or dismiss the
13 Complaint of Plaintiff National Abortion Federation (“Plaintiff” or “NAF”), for the following
14 reasons, all based solely on the adequacy of Plaintiff’s pleading: (1) Plaintiff’s lone federal cause of
15 action, alleging violations of the civil RICO statute, fails to state a claim for relief, and Plaintiff has
16 failed to properly allege diversity jurisdiction. Accordingly, this Court lacks federal subject-matter
17 jurisdiction. (2) Plaintiff has failed to allege facts that could justify an award of either injunctive
18 relief or monetary damages under the First Amendment, so virtually all of Plaintiff’s claims should
19 be dismissed. (3) Plaintiff’s lone federal claim and its twelve state-law causes of action fail to state
20 plausible claims for relief, so the Complaint should be dismissed. Defendants therefore request that
21 this Court strike and/or dismiss Plaintiff’s Complaint under Cal. Civ. Pro. Code § 425.16 and Rules
22 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and dissolve the unconstitutional
23 prior restraint of Defendants’ freedom of speech.
24
25
INTRODUCTION
This case constitutes a remarkable attempt by Plaintiff the National Abortion Federation
26 (“NAF”) to suppress evidence of criminal activity by its members, including the sale of fetal tissue
27 for profit and other crimes, and to keep this evidence from government investigators and from the
28
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1 public eye. As is widely known, Defendants David Daleiden and the Center for Medical Progress
2 have conducted a years-long undercover investigation into the procurement and sale of fetal tissue
3 for profit, among other crimes. They have released extensive video footage of individuals in the
4 industry openly discussing criminal practices such as profiting from the sale of fetal tissue. These
5 revelations have generated tremendous, and legitimate, public interest across the nation.
6
Plaintiff NAF raced into federal court and filed a lengthy Complaint with 60 pages of
7 allegations, largely devoted to the anticipated actions of third parties who are strangers to this
8 lawsuit. See Doc. 1. Even though there was no valid basis for federal jurisdiction, Plaintiff then
9 obtained, on one business day’s advance notice, an extraordinary prior restraint against the
10 Defendants’ freedom of speech. See Doc. 27. This prior restraint is based almost entirely on
11 allegations that Defendants signed contracts of adhesion before attending NAF meetings where
12 undercover filming allegedly occurred. Plaintiff has cited no authority holding that a putative state
13 contractual obligation is sufficient to abrogate the Supreme Court’s near-ironclad rule against prior
14 restraints on free speech, especially on matters of maximal public concern, including criminal
15 activity. Plaintiff’s interest in enforcing this putative contract pales in comparison to the weighty
16 interests that the Supreme Court and other courts have held do not warrant prior restraints, such as
17 national security and protecting the lives of U.S. soldiers. See N.Y. Times Co. v. United States, 403
18 U.S. 713 (1971); CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers).
19
Moreover, NAF’s putative contract contains an even more extraordinary provision. The
20 contract of adhesion purported to require its signers to “notify” NAF of the receipt of any
21 subpoenas or requests for records of documents from NAF meetings in any “investigation” of
22 NAF, and to “cooperate” with NAF to “resist or narrow” compliance with such subpoenas, “by any
23 lawful means.” See Doc. 1-3; 1-6. This provision is plainly illegal, since California law makes
24 perfectly clear that communications with law enforcement enjoy an absolute privilege, and any
25 putative contractual obligation interfering with one’s right to freely communicate with law
26 enforcement agencies is void and unenforceable. See Cal. Civ. Code § 47(b); Haberg v. Cal. Fed.
27 Bank FSB, 32 Cal. 4th 350, 360 (2004).
28
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1
In short, this lawsuit is a textbook example of a Strategic Lawsuit Against Public
2 Participation, or “SLAPP.” Plaintiff’s actions make abundantly clear that the purpose of this
3 lawsuit is (1) to suppress Defendants’ ability to speak publicly on issues of paramount public
4 concern concerning widespread criminal activity in a major industry, in violation of core First
5 Amendment principles; and (2) to interfere with Defendants’ ability to cooperate in civil and
6 criminal investigations of Plaintiff and its members.
7
California law, fully applicable in federal court, provides victims of such SLAPPs with
8 clear procedural rights. Cal. Civ. Pro. Code § 425.16. They are entitled to file a motion to strike
9 the complaint, and they are entitled to a prompt resolution of the merits without submitting to the
10 burdens, costs, and intrusion of discovery. Id. § 425.16(b)(1), (g). The defendants are entitled to
11 immediate interlocutory review of their motion to strike, and they are entitled to attorneys’ fees if
12 they prevail. Id. § 425.16(f), (i).
LEGAL STANDARDS
13
14
California’s “Anti-SLAPP” law provides that “[a] cause of action against a person arising
15 from any act of that person in furtherance of that person’s right of petition or free speech under the
16 United States Constitution or the California Constitution in connection with a public issue shall be
17 subject to a special motion to strike, unless the court determines that the plaintiff has established
18 that there is a probability that the plaintiff will prevail on the claim.” Cal. Civ. Pro. Code
19 § 425.16(b)(1).
20
There is no doubt that this lawsuit falls under the anti-SLAPP statute. See id. The statute
21 broadly defines “act in furtherance of a person’s right of petition or free speech under the United
22 States or California Constitution in connection with a public issue,” to include “any written or oral
23 statement or writing made in a place open to the public or a public forum in connection with an
24 issue of public interest,” and/or “any other conduct in furtherance of the exercise of the
25 constitutional right of petition or the constitutional right of free speech in connection with a public
26 issue or an issue of public interest.” Id. § 425.16(e). As described above, Defendants’ prior and
27 anticipated public statements and statements to law enforcement on matters of paramount public
28
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1 interest are the focus of this lawsuit. See Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th
2 156, 164-65 (2003) (holding that a lawsuit filed in retaliation for the publication of undercover
3 videos taken at a medical practice was subject to an anti-SLAPP motion).
4
The anti-SLAPP statute calls for expedited consideration and ruling on the special motion
5 to strike. See Cal. Civ. Pro. Code § 425.16(f). It further provides that “all discovery proceedings in
6 the action shall be stayed upon the filing of a notice of motion made pursuant to this section.” Id.
7 § 425.16(g). And it provides that “a prevailing defendant on a special motion to strike shall be
8 entitled to recover his or her attorney’s fees and costs.” Id. § 425.16(c)(1).
9
Where, as here, the anti-SLAPP motion solely is based on the adequacy of the pleadings,
10 the filing of the motion also stays all pending discovery in federal court. Schwartz v. At the Cove
11 Mgmt. Corp., No. 12cv3077-GPC, 2013 WL 1103479, at *1 (S.D. Cal. March 14, 2013). In such
12 cases, there is no “collision” between the anti-SLAPP statute and the federal rules, and thus
13 § 425.16(g)’s discovery stay applies under Erie. See, e.g., id. at *1-2 (staying discovery because
14 anti-SLAPP statute tested adequacy of pleadings as would a Rule 12(b)(6) motion); Stutzman v.
15 Armstrong, No. 2:13-cv-0116-MCE, 2013 WL 3992416, at *6-7 (E.D. Cal. Aug. 2, 2013) (denying
16 motion to compel discovery because anti-SLAPP motion challenged adequacy of allegations in
17 complaint); Smith v. Payne, No. C-12-01732-DMR, 2012 WL 6712041, at *4 n.7 (N.D. Cal. Dec.
18 26, 2012) (finding no collision between § 425.16(g) and the Federal Rules because the “anti19 SLAPP motion challenges the legal sufficiency of Plaintiffs’ claims, and thus is in the nature of a
20 Rule 12(b)(6) motion to dismiss”); Moser v. Triarc Cos., Inc., No. 05cv1742-JLS, 2007 WL
21 3026425, at *4 (S.D. Cal. Oct. 16, 2007) (holding that plaintiff could not conduct discovery
22 because anti-SLAPP motion was “akin to a Rule 12(b)(6) motion rather than a summary judgment
23 motion”). Indeed, § 425.16(g) directly advances the core purpose of Rule 12(b)(6): “The purpose
24 of F. R. Civ. P. 12(b)(6) is to enable defendants to challenge the legal sufficiency of complaints
25 without subjecting themselves to discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d
26 729, 738 (9th Cir. 1987).
27
28
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Under the anti-SLAPP law, the plaintiff must demonstrate that the complaint is both legally
1
2 sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable
3 judgment if the evidence submitted by the plaintiff is credited.” Navellier v. Sletten, 29 Cal. 4th 82,
4 88-89 (2002)) (internal quotation marks omitted). “If Plaintiffs cannot plead a plausible cause of
5 action under the Fed. R. Civ. P. 12(b)(6) standard, then Plaintiffs as a matter of law cannot meet the
6 probability of success on the merits standard under C.C.P. § 425.16.” Choose Energy, Inc. v. Am.
7 Petroleum Inst., 2015 WL 1737992, at *5 (N.D. Cal. April 8, 2015) (quoting Xu v. Yamanaka,
8 2014 WL 342271, at *4 (N.D. Cal. Jan. 30, 2014)) (internal punctuation omitted). “If a defendant
9 makes a special motion to strike based on alleged deficiencies in the plaintiff’s complaint, the
10 motion must be treated in the same manner as a motion under Rule 12(b)(6) except that the
11 attorney’s fee provision of § 425.16(c) applies.” Rogers v. Home Shopping Network, Inc., 57 F.
12 Supp. 2d 973, 983 (C.D. Ca. 1999).
13
ARGUMENT
14
Defendants’ Motion to Strike or Dismiss should be granted because Plaintiff’s sole federal
15
16 cause of action fails to state a claim for relief, and Plaintiff fails to properly plead diversity
17 jurisdiction, so there is no basis for federal subject matter jurisdiction. In addition, Plaintiff fails to
18 plead facts that could support an award of either money damages or injunctive relief under the First
19 Amendment. Further, all of Plaintiff’s twelve state-law causes of action fail to state plausible
20 claims for relief. The Complaint should be dismissed in toto.
21
23
Plaintiff’s Sole Federal Cause of Action for Violation of the Civil RICO Statute Fails
to State a Claim for Relief, and Plaintiff Has Failed to Plead Diversity Jurisdiction.
The Federal Claim Should Be Dismissed With Prejudice and the Remaining Claims
Should Be Dismissed for Lack of Subject Matter Jurisdiction.
24
In its First Cause of Action, Plaintiff alleges violations of 18 U.S.C. § 1964 (“civil RICO
22
I.
25 claim”). Doc., 1, ¶¶ 93-108. This claim should be dismissed because (1) Plaintiff’s claims for both
26 damages and injunctive relief should be dismissed under the First Amendment, for the reasons
27 stated below; (2) Plaintiff fails to allege mail or wire fraud as a valid RICO predicate; (3) Plaintiff
28
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1 fails to allege any violation of 18 U.S.C. § 1028 as a valid RICO predicate; and (4) Plaintiff lacks
2 RICO standing to bring this claim. Further, (5) because Plaintiff fails to properly allege diversity
3 jurisdiction, the deficient civil RICO claim is Plaintiff’s only basis for federal jurisdiction, so the
4 entire lawsuit must be dismissed for lack of subject-matter jurisdiction.
5
6
7
A. The First Amendment bars Plaintiff’s claims for damages and injunctive relief
in its civil RICO claim.
First, Plaintiff’s civil RICO claim requests money damages and injunctive relief.
8 Complaint, at 58-59. For the reasons stated below, infra Parts II-III, the First Amendment bars
9 plaintiff’s claim for injunctive relief, which would constitute an unconstitutional prior restraint; and
10 the First Amendment bars plaintiff’s claim for money damages for any alleged injuries arising from
11 the publication of any recordings under Hustler Magazine and Food Lion.
12
13
B. Plaintiff fails to allege a viable predicate act of mail or wire fraud.
Plaintiff’s complaint alleges two kinds of RICO predicate acts: (1) putative violations of the
14 federal mail and/or wire fraud statutes, 18 U.S.C. §§ 1341, 1343; and (2) putative violations of the
15 federal identity-theft statute, 18 U.S.C. § 1028. See Doc. 1, ¶¶ 103, 106. Plaintiff fails to allege
16 facts supporting the mail and wire fraud violations, because it does not and cannot allege that
17 Defendants sought to obtain money or property from them under false pretenses.
18
First, both the mail and wire fraud statutes require proof that the defendant sought to
19 “obtain[] money or property” from the victim “by means of false or fraudulent pretenses,
20 representations, or promises.” 18 U.S.C. §§ 1341, 1343. It is axiomatic that “the federal mail fraud
21 statute is limited in scope to the protection of property rights.” Cleveland v. United States, 531
22 U.S. 12, 18 (2000) (internal quotation marks omitted). “[Section] 1341 protects property rights
23 only.” Id. at 19. This interpretation is based on the “common understanding that the words ‘to
24 defraud’ commonly refer to wronging one in his property rights.” Id. (internal quotation marks
25 omitted); see also McNally v. United States, 483 U.S. 350, 356 (1987) (“[T]he original impetus
26 behind the mail fraud statute was to protect the people from schemes to deprive them of their
27 money or property.”), superseded by in part statute, 18 U.S.C. § 1364.
28
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1
In fact, the rule that “fraud” requires the intent to deprive a victim of money or property has
2 fundamental roots in the common law. The words “‘to defraud’ . . . usually signify the deprivation
3 of something of value . . . . They refer to wronging one in his property rights by dishonest methods
4 or schemes.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924) (emphasis added).
5
Plaintiff’s complaint fails to allege that Defendants intended to acquire or did acquire any
6 “money or property” from the Plaintiff. Rather, it alleges that Defendants secretly recorded
7 members of Plaintiff’s organization and that Defendants may publish such recordings on the
8 internet. In fact, the only supposed “property” rights that the civil RICO claim alleges Defendants
9 obtained are NAF’s alleged “right to exclude from its annual meetings fraudsters and anti-abortion
10 extremists whose goals are not consistent with those of the NAF,” Doc. 1, ¶ 97, and NAF’s
11 “exclusive use and control of . . . the location and dates of its next two U.S. meetings,” id. ¶ 107.
12
Though certain intangible property rights constitute “property” under the mail and wire
13 fraud statutes, see Carpenter v. United States, 484 U.S. 19, 26 (1987), these two allegations are
14 plainly insufficient to identify a “property” right.
Whether an intangible interest constitutes
15 property under the mail and wire fraud statutes depends on whether applicable state law considers
16 them property. See, e.g., United States v. Shotts, 145 F.3d 1289, 1293 (11th Cir. 1998). Trade
17 secrets are recognized as “property” for purposes of mail and wire fraud. See United States v.
18 Hedaithy, 392 F.3d 580, 594 (3d Cir. 2004) (noting that certain information constitutes “property”
19 and “[s]uch information includes trade secrets”).
20
California’s definition of “trade secrets” clearly forecloses Plaintiff’s asserted interests as
21 “property” rights. California law defines a “trade secret” as “information, including a formula,
22 pattern, compilation, program, device, method, technique, or process that: (1) Derives independent
23 economic value, actual or potential, from not being generally known to the public or to other
24 persons who can obtain economic value from its disclosure or use . . . .”
Cal. Civ. Code
25 § 3426.1(d). Neither of the two alleged interests constitutes a “formula, pattern, compilation,
26 program, device, method, technique, or process.” Id. Further, the right to exclude pro-life activists
27 from one’s conventions, and the dates and places of future NAF meetings, are plainly not things
28
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1 that “derives independent economic value . . . from not being generally known to the public,” and
2 there are no “other persons who can obtain economic value from its disclosure or use.” Id. NAF
3 has failed to allege how any of its purportedly confidential information confers on it a “commercial
4 advantage,” and thus it has not identified any protectable trade secrets. Religious Tech. Ctr. v.
5 Wollersheim, 796 F.2d 1076, 1090 (9th Cir. 1986).
6
Moreover, if an intangible asset is not a “trade secret” under California law, it is not a
7 property right that may be subject to misappropriation at all. Courts generally have held that the
8 California Uniform Trade Secret Act (“CUTSA”) “supersedes claims based on the
9 misappropriation of information that does not satisfy the definition of trade secret under CUTSA.”
10 SunPower Corp. v. SolarCity Corp., 2012 WL 6160472, at *6 (N.D. Cal. Dec. 11, 2012) (collecting
11 cases); see also Silvaco Data Sys. v. Intel Corp., 184 Cal. App. 4th 210, 239 n.22 (2010)
12 (disapproved of on other grounds by Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011)).
13 “[T]he CUTSA supersedes other civil remedies where the claim for relief is based on the
14 misappropriation of confidential or proprietary information, even if such information fails to
15 qualify as a trade secret under the CUTSA.” Valvoline Instant Oil Change Franchising, Inc. v.
16 RFG Oil, Inc., No. 12-cv-2079, 2013 WL 4027858, at *7 (S.D. Cal. Aug. 5, 2013).
In other
17 words, if an intangible interest is not a “trade secret” under Civil Code § 3426.1(d), it is not a
18 recognizable property right that may be defrauded under California law.
19
Nothing in the Complaint, therefore, identifies a cognizable “property” interest of Plaintiff
20 that was allegedly defrauded. The Complaint fails to plead a predicate act of mail or wire fraud.
21 Simply put, investigative journalism for the purpose of publicizing evidence of criminal activity is
22 not “fraud.” Compare Desnick v. American Broad. Co., Inc., 44 F.3d 1345, 1354-55 (7th Cir.
23 1995) (dismissing a claim of fraud based on alleged misrepresentations made by investigative
24 journalists in the course of an undercover filming campaign targeted at a medical practice).
25
Further, like other forms of fraud, mail fraud and wire fraud as civil RICO predicates must
26 be pled with particularity. See FED. R. CIV. P. 9(b); Sanford v. Memberworks, Inc., 625 F.3d 550,
27
28
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1 557-58 (9th Cir. 2010). For the reasons stated below regarding Plaintiff’s Third Cause of Action,
2 Plaintiff fails to plead fraud with particularity.
3
4
5
6
7
8
9
10
C. Plaintiff fails to allege a violation of 18 U.S.C. § 1028.
The only other RICO predicates alleged in the complaint are putative violations of 18
U.S.C. § 1028, the federal identity-theft statute. See Doc. 1, ¶ 106. Other than a mere recital of the
statutory standard, however, the Complaint alleges only that Defendant Daleiden and others
possessed false identification documents and used them to access NAF’s annual meetings. Id. ¶¶
64-65, 79, 106. These allegations are legally insufficient to assert a violation of 18 U.S.C. § 1028
for at least two reasons: (1) mere possession and use of a false identification document does not
violate 18 U.S.C. § 1028; and (2) in any event, the Complaint does not allege that any Defendant,
11
in accessing the Baltimore NAF conference, actually used an “identification document,
12
authentication feature, or a false identification document” within the statute’s meaning. 18 U.S.C.
13
14
15
16
§ 1028(a)(1).
All of the Complaint’s factual allegations relating to its claim that Defendants violated
§ 1028 are contained in Paragraphs 64, 65, 79, and 106. See Doc. 1, ¶¶ 64, 65, 79, 106. Plaintiff
alleges that (1) on April 5, 2014, David Daleiden and Susan Tennenbaum presented false California
17
drivers’ licenses to gain access to the NAF conference in San Francisco, id. ¶¶ 64-65; and (2) on
18
March 25, 2015, Daleiden and three others “presented fake identification to NAF registration
19
personnel to gain access” to the Baltimore NAF conference, id. ¶ 79.
20
21
22
23
24
25
26
27
28
These allegations plainly fail to state a violation of 18 U.S.C. § 1028. Merely to possess a
false identification, and to present a false identification to gain access to a conference, does not
violate § 1028.
Otherwise, every teenager who purchased alcohol with a fake ID would be
committing a federal felony.
“Congress could have criminalized mere possession of false
identifications. It did not, however, write the statute in this way.” United States v. Rohn, 964 F.2d
310, 312 (4th Cir. 1992).
Section 1028 sets forth eight specific ways in which the statute can be violated, all of which
relate to trafficking in falsified documents and identity theft, and none of which are alleged in the
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1 Complaint: (1) First, § 1028(a)(1) prohibits the production of “an identification document,
2 authentication feature, or a false identification document” without lawful authority. 18 U.S.C. §
3 1028(a)(1).
Plaintiff alleges no facts indicating that Daleiden or anyone else involved in
4 undercover filming actually produced any “false identification document,” and no alleged facts
5 create any inference of production.
6
(2) Section 1028(a)(2) prohibits the transfer of false identification documents, knowing that
7 they were produced without lawful authority. Again, the Complaint makes no specific allegation
8 that Daleiden or any other transferred any identification to another, knowing it was falsified.
9
(3) Section 1028(a)(3) prohibits possession with intent to use unlawfully five or more
10 identification documents. The Complaint does not allege that any person possessed more than one,
11 and it fails to allege “unlawful” use, for the reasons stated elsewhere herein. If the mere possession
12 of a single identification constituted a violation of § 1028, then § 1028(a)(3)—criminalizing
13 possession of five or more identifications for particular purposes—would be wholly superfluous.
14 “It is a well-established rule of statutory construction that courts should not interpret statutes in a
15 way that renders a provision superfluous.” Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710
16 F.3d 946, 966 (9th Cir. 2013).
17
(4) Section 1028(a)(4) prohibits possession of false identification documents with intent to
18 defraud the United States. The Complaint makes no such allegation.
19
(5) Section 1028(a)(5) prohibits the possession of forging equipment, i.e. “a document-
20 making implement or authentication feature,” with the intent that it will be used in the production
21 of false identifications. The Complaint alleges no facts raising any allegation that any defendant
22 possessed forging equipment or engaged in the production of fake identifications.
23
(6) Section 1028(a)(6) prohibits possessing false or stolen federal identifications, knowing
24 they were stolen or produced without lawful authority. The Complaint makes no such allegation.
25 Again, because § 1028(a)(6) expressly prohibits the mere knowing possession of a federal
26 identification, this implies that the mere possession of a state identification does not violate the
27 statute. “Where Congress includes particular language in one section of a statute but omits it in
28
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1 another section of the same Act, it is generally presumed that Congress acts intentionally and
2 purposely in the disparate inclusion or exclusion.” Toor v. Lynch, 789 F.3d 1055, 1062 (9th Cir.
3 2015) (quotation omitted).
4
(7) Section 1028(a)(7) prohibits the transfer, possession, or use of “a means of identification
5 of another person” with the intent to commit a federal crime or state felony. The Complaint does
6 not allege that any fake ID used by Daleiden or others was “of another person.” On the contrary, it
7 alleges the opposite—that Robert Sarkis, Susan Tennenbaum, and the other identities alleged were
8 wholly fictitious. And because the Complaint fails to allege mail fraud, see supra, it fails to allege
9 that any false identifications were used in any federal crime or state felony.
10
Finally, (8) Section 1028(a)(8) prohibits trafficking in “false or actual authentication
11 features for use in false identification documents, document-making implements, or means of
12 identification.” Id. § 1028(a)(8). The statute defines “traffic” as transporting, transferring, or
13 disposing of such documents “as consideration for anything of value.” Id. § (d)(12)(A). Any such
14 allegations are wholly absent from the Complaint.
15
In short, the Complaint alleges only that Daleiden and three others possessed false
16 identifications and used them to access the NAF conferences. Even if true, such allegations would
17 not amount to a violation of 18 U.S.C. § 1028. Further, as to the Baltimore conference, the
18 Complaint does not even allege that Daleiden or any other person used or possessed an
19 “identification document” or “false identification document” at all. Id. § 1028(a)(1). The statute
20 defines “identification document” as “a document made or issued by or under the authority of the
21 United States Government, a State, political subdivision of a State,” or similar state entities. Id.
22 § 1028(d)(3).
The Complaint alleges that Daleiden and others, at the Baltimore conference,
23 “presented fake identification.”
Doc. 1, ¶ 79.
It does not allege that they presented false
24 identification documents that were issued by any state or governmental authority, as required by 18
25 U.S.C. § 1028(d)(3). Thus, Plaintiff only alleges one instance of using of “false identification
26 documents” of any kind—i.e. to access the San Francisco convention, on April 5, 2014. A single
27 instance is not a “pattern” of RICO predicates as required by 18 U.S.C. § 1961(5).
28
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Aside from its allegations about the presentation of identification documents to gain access
1
2 to the NAF conferences, the Complaint merely asserts a generic allegation parroting the statutory
3 standard (which it misquotes): “On information and belief, Daleiden (Sarkis) and his co4 conspirators . . . transferred, produced, and caused to produce1 identification documents or false
5 identification documents . . . and possessed a document-making implement . . . used to produce the
6 fake identification . . . .” Doc. 1, ¶ 65; see also id. ¶¶ 79, 109. These allegations are plainly
7 insufficient to state a violation of 18 U.S.C. § 1028. Merely reciting a statutory standard, without
8 alleging any supporting facts, falls short of basic pleading requirements. See Ashcroft v. Iqbal, 556
9 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere
10 conclusory statements, do not suffice.”).
And the mere allegation that someone possessed
11 something does not demonstrate that the person also “produced” or “transferred” it; the vast
12 majority of fake ID owners do not “produce” their own IDs. Doe I v. Wal-Mart Stores, Inc., 572
13 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks omitted) (holding that courts “are not
14 required to indulge unwarranted inferences” in considering a motion to dismiss).
15
16
D. Plaintiff fails to allege facts that will support RICO standing, and it fails to
allege facts that would demonstrate proximate cause for any RICO injuries.
17
In addition, NAF also fails to allege facts sufficient to support standing to assert a civil
18 RICO claim. “Financial losses, in and of themselves, are insufficient to confer standing under
19
20
RICO.” E.I. Dupont de Nemours & Co., 431 F.3d 353, 364 (9th Cir. 2005). “A civil RICO
‘plaintiff only has standing if, and can only recover to the extent that, he has been injured in his
21
22
business or property by the conduct causing the violation.’” Canyon Cnty. v. Syngenta Seeds, Inc.,
23 519 F.3d 969, 975 (9th Cir. 2008) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496
24 (1985)); see also 18 U.S.C. § 1964(c) (authorizing a private party may bring a civil RICO claim
25
1
It is not a crime to “cause to produce” an identification document under 18 U.S.C. § 1028, since
the statute nowhere prohibits “causing [someone] to produce” anything. See 18 U.S.C. §
27 1028(a)(1)-(8).
26
28
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1
only if that person is “injured in his business or property by reason of a violation of section 1962 of
2 this chapter”). “Without a harm to a specific business or property interest—a categorical inquiry
3 typically determined by reference to state law—there is no injury to business or property within the
4 meaning of RICO.” Canyon Cnty, 519 F.3d at 975 (quotation omitted). Here, none of NAF’s
5 alleged injuries constitutes business or property injuries cognizable under RICO, and thus NAF
6
7
lacks standing to bring its RICO claim.
All of the alleged injuries on which NAF’s RICO claim rely either constitute reputational or
8
9
personal injuries not cognizable under RICO, derive directly from such non-cognizable injuries, or
10 are non-concrete losses that cannot support RICO standing. See Doc. 1, ¶ 107. It is widely
11 recognized that reputational harm does not constitute an injury to business or property sufficient to
12 support RICO standing. See, e.g., In re Teledyne Def. Contracting Derivative Litig., 849 F. Supp.
13
14
1369, 1372 n. 1 (C.D. Cal. 1993) (noting injuries to “business reputation” are not cognizable under
RICO); Hamm v. Rhone–Poulenc Rorer Pharms., Inc., 187 F.3d 941, 954 (8th Cir. 1999)
15
16
17
(“Damage to reputation is generally considered personal injury and thus is not an injury to
‘business or property’ within the meaning of 18 U.S.C. § 1964(c).”); Cobb v. Brede, No. C10-
18 03907-MEJ, 2012 WL 33242, at *3 (N.D. Cal. Jan. 6, 2012); Choudhuri v. Wells Fargo Bank, N.A.,
19 No. C11-00518-SBA, 2011 WL 5079480, at *10 (N.D. Cal. Oct. 25, 2011); Clark v. Conahan, 737
20 F. Supp. 2d 239, 255 (M.D. Pa. 2010); Walker v. Gates, No. CV 01–10904, 2002 WL 1065618, at
21
22
*7 (C.D. Cal. May 28, 2002); City of Chi. Heights v. Lobue, 914 F.Supp. 279, 285 (N.D. Ill. 1996)
(holding that damage to city’s business reputation was not injury to “business or property”
23
24
compensable under § 1964(c)). Such reputational harms are not “concrete financial loss[es],” but
25 at most “injur[ies] to a valuable intangible property interest.” Chaset v. Fleer/Skybox Int’l, LP, 300
26 F.3d 1083, 1087 (9th Cir. 2002) (quotation omitted); Thomas v. Baca, 308 F. App’x 87, 88 (9th
27
28
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1
Cir. 2009). To the extent that NAF’s RICO claim relates to reputational harm, it does not support
2 RICO standing.
3
Similarly, injuries relating to emotional distress, harassment or intimidation, and loss of
4 security and peace of mind do not constitute property or business injuries cognizable under RICO.
5 Such injuries constitute “personal injuries which are not compensable under RICO.” Diaz v. Gates,
6
7
420 F.3d 897, 900 (9th Cir. 2005) (en banc) (quotation omitted). Diaz approvingly cited numerous
cases holding that “loss of security and peace of mind,” “harassment and intimidation of litigants,”
8
9
“physical injury,” and “emotional distress” simply do not support RICO standing. Id. (collecting
10 cases). Defendants also observe that NAF’s RICO standing cannot be premised on alleged harms
11 sustained by another person, such as NAF members. See Holmes v. Secs. Investor Protection
12 Corp., 503 U.S. 258, 268-69 (1992); compare Sparling v. Hoffman Constr. Co., 864 F.2d 635, 64013
14
41 (9th Cir. 1988) (holding that shareholders lacked RICO standing based on injury to corporation).
Thus, to the extent that NAF’s RICO claim relates to the sorts of personal injuries described above,
15
16
17
it does not support RICO standing.
NAF seemingly attempts to boot-strap RICO standing from the foregoing non-RICO
18 injuries by alleging that it made various financial expenditures as a result of the reputational or
19 personal injuries. See Doc. 1, ¶ 107. But “[f]inancial losses, in and of themselves, are insufficient
20 to confer standing under RICO.” E.I. Dupont, 431 F.3d at 364. Those financial losses must result
21
22
from injury to a business or property interest. “Without a harm to a specific business or property
interest . . . there is no injury to business or property within the meaning of RICO.” Diaz, 420 F.3d
23
24
897, 900 (9th Cir. 2005) (en banc) (relying on Doe v. Roe, 958 F.2d 763 (7th Cir. 1992)). Where
25 financial losses or expenditures “are plainly derivatives of” injuries not cognizable under RICO
26 (that is, neither business nor property interests), those losses cannot themselves support RICO
27 standing. Doe, 958 F.2d at 770 (holding that the plaintiff’s claim for “expenses for increased
28
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personal security,” “loss of earnings,” and “purchase of a security system” after being threatened
2 by the defendant did not support RICO standing because they derived from “personal injuries
3 which are not compensable under RICO”). Here, the financial losses alleged by NAF all flow from
4 reputational or personal injuries that are not cognizable under RICO, and thus these financial losses
5 cannot support RICO standing.
6
7
Finally, NAF claims that it has “lost the exclusive use and control of confidential and
proprietary information, including the location and dates of its next two U.S. meetings.” Doc. 1,
8
9
¶ 107. This allegation invokes precisely the sort of “injury to a valuable intangible property
10 interest” that the Ninth Circuit has held does not support RICO standing. Chaset, 300 F.3d at 1087;
11 Thomas, 308 F. App’x at 88. Moreover, as described in Part I.B above, NAF has failed to allege
12 that any of the information at issue in this case constitutes property under California law. Compare
13
14
Diaz, 420 F.3d at 900 (explaining that RICO standing requires injury to a business or property
interest recognized under state law). Thus, none of the injuries that NAF alleged it sustained
15
16
17
support RICO standing.
Moreover, in addition to NAF’s failure to allege any injuries that could support RICO
18 standing, NAF also has failed to allege that Defendants’ alleged commission of predicate violations
19 proximately caused its alleged injuries. RICO imposes liability only if the defendant’s conduct is
20 both the but-for cause and the proximate cause of the plaintiff’s RICO injuries. Holmes v. Secs.
21
22
Investor Protection Corp., 503 U.S. 258, 268-69 (1992).
This proximate-cause requirement
demands that there be a “direct relation between the injury asserted and the injurious conduct
23
24
alleged.” Id. at 268. “The proper referent of the proximate-cause analysis” is the predicate
25 violation. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 458 (2006). “[T]he compensable injury
26 flowing from a RICO violation necessarily is the harm caused by the predicate acts.” Hemi Grp.,
27 LLC v. City of N.Y., 559 U.S. 1, 13 (2010) (quotation and internal punctuation omitted).
28
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1
Here, NAF alleges a complex causal chain between Defendants’ alleged predicate
2 violations and the injuries that NAF allegedly sustained: (1) Defendants allegedly produced fake
3 identifications and communicated by mail or wire, (2) which induced NAF to admit Defendants to
4 NAF annual meetings, (3) at which Defendants recorded unspecified events occurring at those
5 conferences, (4) and later Defendants published (or may publish) those recordings, (5) causing
6
NAF to anticipate that third parties either might have a diminished view of NAF’s reputation or
7
might engage in conduct otherwise harmful to NAF. See generally Doc. 1, ¶¶ 94-108.
8
9
Merely to state this daisy-chain of alleged causes is to demonstrate that it does not
10 constitute a “direct relation between the injury asserted and the injurious conduct alleged.”
11 Holmes, 503 U.S. at 268. Numerous critical steps fall between the alleged predicate violations and
12 the alleged harms.
13
14
Both Defendants and unidentified third parties would have to engage in
numerous intervening acts. Where a plaintiff’s injuries do not flow directly from a defendant’s
predicate violations, but rather from subsequent conduct by the same defendant, the plaintiff has
15
16
17
failed to show proximate cause, and the plaintiff’s RICO claim must fail. Anza, 547 U.S. at 458
(rejecting RICO claim where plaintiff’s injury flowed from conduct by defendant separate from the
18 predicate violations); see Hemi Grp., 559 U.S. at 11 (explaining that, in Anza, there was no
19 proximate cause even though “the same party—National Steel—had both engaged in the harmful
20 conduct and committed the fraudulent act”). Likewise, most of NAF’s anticipated or feared
21
injuries involve the possible conduct of third parties wholly unrelated to Defendants. See, e.g.,
22
Doc. 1, ¶ 107; id. ¶¶ 29, 37, 40, 42. The involvement of these third parties decisively defeats
23
24
proximate causation. See Hemi Grp., 559 U.S. at 11 (holding that plaintiff had not established
25 proximate causation where its “theory of liability rests not just on separate actions, but separate
26 actions carried out by separate parties” (emphasis in original)). Thus, NAF has failed to establish
27
28
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1
that Defendants’ alleged predicate acts caused the injuries alleged by NAF, and thus NAF’s RICO
2 claim must fail.
3
4
5
6
E. Because Plaintiff fails to allege a civil RICO claim, and fails to properly plead
diversity jurisdiction, Plaintiff’s complaint must be dismissed for lack of
federal subject matter jurisdiction.
Because Plaintiff’s First Cause of Action fails to state a civil RICO claim, it must be
7 dismissed. Moreover, this claim is the only one of Plaintiff’s thirteen claims that arises under
8 federal law. The remainder are state-law claims that cannot support federal jurisdiction under 28
9 U.S.C. § 1331.
10
Plaintiff pleads diversity of citizenship under 28 U.S.C. § 1332 as an alternative basis for
11 jurisdiction. See Doc. 1, ¶ 21 (“[E]very Defendant is a citizen of a different state than Plaintiff
12 NAF.”). But, in multiple other places in the Complaint, NAF pleads associational standing,
13 purporting to advance several claims on behalf of its members. See, e.g., id. ¶¶ 174, 180, 186, 192.
14 In such cases of associational standing, where the real parties in interest are the members of the
15 association, it is the citizenship of the members whose interests are asserted that matters for
16 diversity jurisdiction purposes. See Nat’l Ass’n of Realtors v. Nat’l Real Estate Ass’n, 894 F.2d
17 937, 940 (7th Cir. 1989) (“Since it is the members of [the trade association] who are the real parties
18 in interest so far as the claim for damages on their behalf is concerned, it is their citizenship that
19 counts for diversity purposes.”). Plaintiff does not (and cannot) plead that it has no members who
20 are citizens of California or Kansas, the states of which Plaintiff alleges the Defendants are citizens.
21 See Doc. 1, ¶¶ 10, 15-17. Thus, Plaintiff fails to plead diversity jurisdiction. Because the civil
22 RICO count fails to state a claim, and there is no other basis for federal jurisdiction, this case
23 should be dismissed for lack of subject matter jurisdiction.
24
For all these reasons, Plaintiff’s First Cause of Action, the civil RICO claim, should be
25 dismissed, and the entire suit should be dismissed for lack of federal jurisdiction.
26
27
28
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2
Plaintiff Fails to Plead Facts to Support Any Claim for Injunctive Relief Against
Disclosure of the NAF Videos, Because An Injunction Would Violate the First
Amendment’s Prohibition against Prior Restraints.
3
No legal principle finds more unanimous and ardent support in our constitutional order than
1
II.
4 the First Amendment’s prohibition against prior restraints on speech. “[P]rior restraints are the
5 most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v.
6 Stuart, 427 U.S. 539, 559 (1976). “Prior restraints are the essence of censorship, and our distaste
7 for censorship reflecting the natural distaste of a free people is deep-written in our law.” Id. at 589
8 (Brennan, J., concurring) (internal citations and punctuation omitted). “Any prior restraint on
9 expression comes to [the court] with a heavy presumption against its constitutional validity.”
10 Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (emphasis added) (internal quotation
11 marks omitted).
12
As described below, the Supreme Court has time and again held that the First Amendment’s
13 proscription on prior restraints will not yield even to fundamental interests such as national
14 security, international alliances, and due process of law—let alone less compelling interests such as
15 personal privacy and reputation. “Indeed, the Supreme Court has never upheld a prior restraint,
16 even faced with the competing interest of national security or the Sixth Amendment right to a fair
17 trial.” Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996).
18
In the face of this strong presumption of invalidity, NAF’s Complaint asks this Court to
19 silence Defendants’ speech on a matter of intense and legitimate public interest. As described
20 below, this demand has no support in the law and no place in our constitutional system. Plaintiff
21 has failed to plead facts that can warrant any award of injunctive relief in this case.
22
23
24
A. The injunctive relief sought by NAF constitutes a quintessential prior restraint
under the First Amendment.
NAF’s requested injunctive relief would constitute a textbook example of prior restraint on
25 speech. “Temporary restraining orders and permanent injunctions—i.e., court orders that actually
26 forbid speech activities—are classic examples of prior restraints.” Alexander v. United States, 509
27 U.S. 544, 550 (1993).
28
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1
In contending that an injunction would not be a prior restraint, NAF has asserted that an
2 injunction enforcing “private confidentiality agreements does not involve ‘state action’ giving rise
3 to First Amendment concerns because the state is not imposing obligations on the parties beyond
4 those they voluntarily assumed.” Doc. 3, at 16-17 n.1. This assertion misses the mark for at least
5 three reasons.
6
First, a court-issued injunction constitutes state action even if premised on a purported
7 breach of contract.
“[A]n injunction constitutes state action” and thus necessitates “a First
8 Amendment analysis.” Gathright v. City of Portland, 439 F.3d 573, 576 n.2 (9th Cir. 2006).
9 “Injunctions directly compel or forbid a party’s actions, and thus may be seen as placing the
10 [enjoining] court’s imprimatur behind the substance of the [contract] to that extent.” Ohno v.
11 Yasuma, 723 F.3d 984, 1000 (9th Cir. 2013). “Also, enforcement of injunctions implies the
12 authority to exercise contempt and modification powers after the injunction issues; the exercise of
13 such authority may entangle the enforcing could in the merits of the underlying dispute.” Id. Even
14 where an injunction merely requires a party to comply with obligations that party voluntarily
15 assumed, the injunction “results from the State’s exercise of coercive power,” Brentwood Acad. v.
16 Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001) (internal quotation marks omitted),
17 and is “supported by the full panoply of state power,” Shelley v. Kraemer, 334 U.S. 1, 19 (1948).
18 Thus, for example, in Shelley v. Kraemer, the Supreme Court held that a court order specifically
19 enforcing a racially discriminatory restrictive covenant constituted state action, even though the
20 covenant was a private contract. Id. at 19-21; see also Barrows v. Jackson, 346 U.S. 249, 258
21 (1953) (holding that court award of damages for breach of racially discriminatory restrictive
22 covenant constituted state action).
23
Second, the Ninth Circuit has observed that, even if the underlying cause of action in a case
24 might not implicate state action, the court “procedures themselves or their application” can
25 constitute state action. Ohno, 723 F.3d at 997. The constitutional prohibition on prior restraints
26 deals primarily with procedure—when and by what means may speech be restricted—rather than
27 with substance. “[T]he doctrine deals with limitations of form rather than of substance. The issue
28
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1 is not whether the government may impose a particular restriction of substance in an area of public
2 expression . . . but whether it may do so by a particular method . . . .” Thomas I. Emerson, The
3 Doctrine of Prior Restraint, 20 L. & CONTEMP. PROBS. 648, 648 (1955). As Ohno observed,
4 challenges to court procedures and their applications implicate state action, even if the underlying
5 merits of the claim do not. Ohno, 723 F.3d at 997.
6
Third, NAF’s request for injunctive relief based on its non-contract claims plainly involves
7 state action. The enforcement of tort or common-law remedies against a party constitute state
8 action. See Paul v. Watchtower Bible & Tract Soc’y, 819 F.2d 875, 880 (9th Cir. 1987). Because
9 NAF seeks injunctive relief based on non-contractual claims, it plainly requests state action.
10
11
12
B. NAF does not plead a sufficiently significant or concrete interest to justify a
prior restraint on speech.
The First Amendment tolerates a prior restraint on speech only to advance the most
13 fundamental, weighty, and immediate interests.
A prior restraint must relate to speech that
14 “threaten[s] an interest more fundamental than the First Amendment itself.” Proctor & Gamble
15 Co., 78 F.3d at 227. “[P]rior restraints even within a recognized exception to the rule against prior
16 restraints will be extremely difficult to justify[.]” Neb. Press Ass’n, 427 U.S. at 592 (Brennan, J.,
17 concurring).
18
Courts have consistently rejected the interests pleaded by NAF and other similar interests as
19 sufficient to justify a prior restraint on speech. In N.Y. Times Co. v. United States, 403 U.S. 713
20 (1971), the Supreme Court held that serious threats to national security, foreign relations, and the
21 physical safety of American troops on the ground could not justify an injunction preventing the
22 publication of stolen classified documents. Id. at 714. As Justice Blackmun’s dissent observed, the
23 disclosures at issue threatened “the death of soldiers, the destruction of alliances, . . . prolongation
24 of the [Vietnam] war and of further delay in the freeing of United States prisoners.” Id. at 763
25 (Blackmun, J. dissenting). Yet the Court held that those most compelling interests still could not
26 justify a prior restraint. Id. at 714.
27
28
Courts also have held that interests in personal privacy and reputation do not warrant prior
20
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1 restraints on speech. For example, in Organization for a Better Austin v. Keefe, the court rejected
2 the notion that “an invasion of privacy” could justify a prior restraint against circulating pamphlets
3 claiming that a real-estate agent was facilitating de facto segregation.
402 U.S. at 419-20.
4 Moreover, under the First Amendment, “[t]he right to privacy does not prohibit any publication of
5 matter which is of public or general interest.” Bartnicki v. Vopper, 532 U.S. 514, 534 (2001)
6 (internal quotation marks omitted).
Here, the restrained communications involve matters of
7 maximal public interest, and thus the asserted privacy interests do not support NAF’s requested
8 injunction.
9
In addition, courts routinely have rejected arguments that reputational harm can justify prior
10 restraints on speech. See, e.g., Thompson v. Hayes, 748 F. Supp. 2d 824, 831 (E.D. Tenn. 2010)
11 (holding that “plaintiffs’ business interests and their reputations” were insufficient interests to
12 warrant injunction against speech); Saad v. Am. Diabetes Ass’n, Case No. 15-10267, 2015 WL
13 751295, at *2 (D. Mass. Feb. 23, 2015) (“Whatever interest Dr. Saad has in preserving his
14 professional reputation, it is not enough to overcome the heavy presumption against [a prior
15 restraint’s] validity.”).
16
Courts also have rejected the notion that the protection of trade secrets rises to the level of
17 constitutional importance so as to justify a prior restraint on speech. See Rain CII Carbon, LLC v.
18 Kurczy, Civ. Action No. 12-2014, 2012 WL 3577534, at *3-4 (E.D. La. Aug. 20, 2012) (collecting
19 cases). And courts have rejected the threat of emotional distress as justifying prior restraints on
20 speech. See A.M.P. v. Hubbard Broad., Inc., 216 F. Supp. 2d 933, 935 (D. Minn. 2001).
21
The contractual, reputational, and privacy interests asserted by NAF in its Complaint fall far
22 short of what is required to justify any prior restraint. NAF has not alleged concrete or imminent
23 threats of physical harm, only speculative possibilities that it might suffer harm from third parties
24 as a result of reputational damage. See Doc. 1, ¶¶ 32, 34, 37, 40, 87-89, 91-92. But the First
25 Amendment permits prior restraints “only where the evil that would result from the reportage is
26 both great and certain.” CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in
27 chambers) (emphasis added).
28
“[T]he First Amendment tolerates absolutely no prior judicial
21
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1 restraints of the press predicated upon surmise or conjecture that untoward consequences may
2 result.” N.Y. Times Co., 403 U.S. at 725-26 (Brennan, J., concurring). NAF has identified only the
3 possibility of future harm, not the certainty of imminent harm. And that showing fails to satisfy the
4 First Amendment’s stringent demands. See CBS, 510 U.S. at 1318 (“we previously have refused to
5 rely on such speculative predictions as based on ‘factors unknown and unknowable’”) (citing N.Y.
6 Times Co., 403 U.S. 713).
7
8
9
C. Even if Defendants had obtained the alleged recordings unlawfully or
tortiously, that would not justify a prior restraint on speech.
The prior-restraint doctrine does not dissipate merely because the speaker obtained the
10 information to be disclosed unlawfully.
“If [Defendants have] breached [their] state law
11 obligations, the First Amendment requires that [NAF] remedy its harms through a damages
12 proceeding rather than through suppression of protected speech.” CBS, 510 U.S. at 1318 (staying
13 preliminary injunction prohibiting broadcast of secretly filmed footage of a meat-packing plant that
14 news service allegedly obtained illegally). “[A] free society prefers to punish the few who abuse
15 rights of speech after they break the law than to throttle them . . . beforehand.” Southeastern
16 Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). “The First Amendment thus accords
17 greater protection against prior restraints than it does against subsequent punishment for a
18 particular speech.” Neb. Press Ass’n, 427 U.S. at 589 (1976) (Brennan, J., concurring).
19
Justice Blackmun’s in-chambers opinion in CBS v. Davis controls in this case. In CBS,
20 CBS News acquired video footage of meat-packing plants by placing an undercover camera on an
21 employee. CBS, 510 U.S. at 1315. The meat-packing company sued and obtained an injunction
22 preventing CBS from broadcasting the footage on television, based on a judicial finding that the
23 footage had been obtained through “calculated misdeeds.” Id. at 1316. These alleged misdeeds
24 included claims that arose under contract law, as well as statutory violations and torts. See id. at
25 1316 (noting that the meat-packing company alleged “breach of the duty of loyalty,” which arises
26 from an employee’s employment contract). Noting that “the gagging of publication has been
27 considered acceptable only in ‘exceptional cases,’” id. at 1317 (citation omitted), Justice Blackmun
28
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1 held that the injunction against the broadcast was an unconstitutional prior restraint. Id. at 1318.
2 “Subsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate
3 sanction for calculated defamation and other misdeeds in the First Amendment context.” Id. at
4 1318. “If [a defendant] has breached its state law obligations, the First Amendment requires that
5 [the plaintiff] remedy its harms through a damages proceeding rather than through the suppression
6 of protected speech.” Id.
7
8
9
D. Neither the Exhibitor Agreements Nor the Confidentiality Agreements Waived
Defendants’ First Amendment Rights Against Prior Restraints on Speech.
In its TRO briefing, NAF asserted that Defendants had waived any First Amendment rights
10 in the alleged recordings from NAF meetings by entering into Exhibitor Agreements and
11 Confidentiality Agreements (together, the “Non-Disclosure Agreements”). See Doc. 3, at 16 n.1.
12 For the reasons stated above, a breach of contract claim does not warrant the imposition of a prior
13 restraint on matters of maximal public interest, even if the signer purportedly agreed to injunctive
14 remedies. See CBS, 510 U.S. at 1318. Moreover, this argument fails for at least three additional
15 reasons. First, by their plain terms, the Non-Disclosure Agreements do not cover the alleged
16 recordings whose disclosure NAF seeks to enjoin and thus could not waive any First Amendment
17 rights in those recordings. Second, NAF fails to plead any facts supporting the inference that the
18 purported waiver of constitutional rights was knowing, voluntary, and intelligent. Third, even if
19 Defendants did enter into a valid waiver of First Amendment rights, the balance of public-policy
20 considerations weighs against enforcing that waiver.
21
22
23
24
25
26
27
28
1. The Non-Disclosure Agreements do not prohibit the disclosure of any
allegedly recorded informal conversations, or any recordings involving
evidence of a crime.
As described in Part VII below, the objective terms of the Non-Disclosure Agreements
apply only to information provided by NAF or by other attendees through formal presentations,
workshops, and written materials associated with them. The Non-Disclosure Agreements do not
apply to the sorts of informal conversations with other attendees that NAF claims were recorded,
nor do they apply to other information (such as the names of other attendees) acquired informally.
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Moreover, as described in Part VII below, the Non-Disclosure Agreements would be
1
2 unenforceable as against public policy to the extent that they relate to any criminal activity or
3 alleged criminal activity. To the extent that Plaintiff seeks to enjoin speech about criminal activity,
4 the censorship of any allegedly “confidential” information is unenforceable.
5
2. NAF pleads no facts that would support an inference that Defendants
knowingly, voluntarily, and intelligently waived any First Amendment
rights in the alleged recordings.
6
7
Even if the Court were to interpret the Non-Disclosure Agreements to cover the alleged
8
recordings at issue here, NAF fails the plead any facts raising the inference that the purported
9
waiver of First Amendment rights was knowing, voluntary, and intelligent. “First Amendment
10
rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary
11
12
and intelligent.” Leonard v. Clark, 12 F.3d 885, 889 (9th Cir. 1993). A finding that a party has
waived its First Amendment rights must be “clear and compelling.” Curtis Publ’g Co. v. Butts, 388
13
U.S. 130, 145 (1967). Plaintiff alleges no facts that could support such a showing.
14
15
16
17
“[I]n the civil no less than the criminal area, courts indulge every reasonable presumption
against waiver [of constitutional rights].” Fuentes v. Shevin, 407 U.S. 67, 94 n.31 (1972) (internal
quotation marks omitted). “As the Supreme Court has often cautioned, waiver of a constitutional
right must be construed narrowly.” Williams v. Alabama, 341 F.2d 777, 781 (5th Cir. 1965).
18
19
20
21
First, the language used in the purported waivers is, at best, ambiguous and unclear. “For a
waiver of constitutional rights in any context must, at the very least, be clear.” Fuentes, 407 U.S. at
95.
“To be enforceable, the waiver provision[’s] . . . language must be unambiguous and
unequivocal, leaving no room for doubt as to the intention of the parties.” A.H.D.C. v. City of
22
Fresno, No. CV-F-5498, 2000 WL 35810723, at *6 (E.D. Cal. Aug. 31, 2000) (internal punctuation
23
omitted). As discussed below, there are compelling reasons to believe that the Non-Disclosure
24
Agreements do not apply disputed information, especially as to informal conversations at NAF
25
meetings. See infra, Part VII. At a minimum, the relevant contractual language is too uncertain
26
and ambiguous to effect any waiver of First Amendment rights. See United States v. Olano, 507
27
28
U.S. 725, 733 (1993) (defining waiver as “the intentional relinquishment or abandonment of a
24
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1 known right”) (emphasis added) (internal quotation marks omitted).
2
Second, the Non-Disclosure Agreements constitute contracts of adhesion. See Doc. 1,
3 ¶¶ 50, 67. Courts generally will not enforce purported waivers of constitutional rights in “where
4 the contract is one of adhesion.” Fuentes, 407 U.S. at 95 (internal quotation marks omitted); see
5 also A.H.D.C., 2000 WL 35810723, at *7.
6
Third, Plaintiff’s allegations indicate that Defendants had no opportunity to consult with
7 counsel before executing the Confidentiality Agreements. See Doc. 1, ¶ 67. Courts often have
8 looked to involvement of counsel as an important indicium of a waiver of constitutional rights
9 being “knowing” and “intelligent.” See, e.g., Leonard, 12 F.3d at 890 (noting that party “was
10 advised by competent counsel during the negotiations”); Davies v. Grossmont Union High Sch.
11 Dist., 930 F.2d 1390, 1395 (9th Cir. 1991) (finding waiver enforceable because of party’s
12 representation by counsel during negotiation of agreement). Here, NAF presented Defendants with
13 Confidentiality Agreements at the door. Doc. 1, ¶ 66.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. Even if Defendants had waived some First Amendment rights, the Court
should not enforce the waiver, because the balance of public policies
counsels against enforcement.
The Ninth Circuit recognizes that even when a party has waived its constitutional rights,
policy considerations still may require that the Court decline to enforce the waiver. “[E]ven if a
party is found to have validly waived a constitutional right, we will not enforce the waiver if the
interest in its enforcement is outweighed in the circumstances by a public policy harmed by
enforcement of the agreement.” Leonard, 12 F.3d at 890 (internal quotation marks omitted).
The
court must “balance the public policies favoring enforcement of the [constitutional] waiver against
those favoring non-enforcement.” Id. at 891.
Here, the balance of policies favors non-enforcement of the purported waiver of
constitutional rights. Few interests hold a more revered place in our constitutional order than does
the right to free expression. “The vitality of civil and political institutions in our society depends
on free discussion.” Terminiello v. City of Chi., 337 U.S. 1, 4 (1949). “The right to speak freely
and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us
25
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1 apart from totalitarian regimes.” Id. Thus, some of the weightiest interests in our constitutional
2 system militate against finding a waiver of Defendants’ First Amendment rights. Compare Davies,
3 930 F.2d at 1399-1400 (refusing to enforce waiver of First Amendment right to run for political
4 office).
Critically, the interests opposing enforcement of any putative waiver belong not only to
5
6 Defendants, but to society at large. “[T]he First Amendment goes beyond protection of the press
7 and the self-expression of individuals to prohibit government from limiting the stock of
8 information from which members of the public may draw.” First Nat’l Bank of Bos. v. Bellotti,
9 435 U.S. 765, 783 (1978). Here, in addition to harming Defendants, any requested injunction
10 would also significantly harm the public and the political branches by depriving them of
11 information regarding the sale of human tissue for profit and related crimes, matters of legitimate
12 public interest.
For all these reasons, NAF has not pled facts sufficient to support any claim for injunctive
13
14 relief against any future speech by Defendants.
15 III.
16
Plaintiff Fails to State a Claim for Damages Arising from the Publication of Any
Recordings, Because It Has Not Alleged Actual Disclosure of Any Recordings of NAF
Meetings, and It Has Not Made Any Defamation Claim.
17
Except for the claim for statutory damages under Cal. Penal Code § 632, virtually all of the
18
damages claimed by NAF allegedly result from the publication of the videos, not the recording of
19
the videos. See, e.g., Doc. 1, ¶¶ 29, 37, 40, 42, 107. These allegations fail to state a viable claim
20
for damages, for at least two reasons. First, NAF does not allege that any videos that were
21
supposedly illegally taken during NAF meetings have actually been disclosed yet, so it cannot
22
claim damages from events that have not yet happened. Second, because the Complaint does not
23
claim defamation, damages from the publication of any videos are not recoverable under the First
24
Amendment.
25
First, the Complaint alleges that several videos of abortion providers and fetal tissue
26
procurement personnel have been publicly disclosed. But it does not allege that any of these videos
27
were taken at NAF meetings, it does not allege that any of the already-disclosed videos was taken
28
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1 illegally, and it does not allege that it has standing to assert the rights of the parties in these videos.
2 Accordingly, NAF cannot state a claim for damages arising from the publication of these videos.
Second, NAF does not make any claim of defamation.2
3
It does not allege that the
4 publication of any recording has contained any false statement, or has been or would be
5 defamatory. Indeed, NAF has no plausible basis to make any such allegation, not least because it
6 does not allege that any NAF videos have yet been released. Because NAF does not claim
7 defamation, but rather challenges only the manner in which the videos were taken, the First
8 Amendment bars any claim for damages arising from the publication of the videos. See Food Lion,
9 Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 522 (4th Cir. 1999) (citing Hustler Magazine, Inc. v.
10 Falwell, 485 U.S. 46 (1988)).
In Food Lion, the ABC program Prime Time Live sent two undercover reporters to infiltrate
11
12 and secretly film Food Lion’s meat-handling practices. The reporters obtained jobs at Food Lion
13 under false pretenses, using fake identifications and making false representations on the job
14 applications. They secretly filmed Food Lion employees handling meat, and the films were
15 broadcast on Prime Time Live. See id. at 510-11. In bringing claims against ABC, “Food Lion did
16 not sue for defamation, but focused on how ABC gathered its information through claims for fraud,
17 breach of duty of loyalty, trespass, and unfair trade practices.” Id. at 510. The Fourth Circuit held
18 that, because Food Lion did not claim defamation, Food Lion could not recover any damages for
19 injuries attributable to the publication of the videos, rather than the filming itself. Id. at 522.
“[A]n overriding (and settled) First Amendment principle precludes the award of
20
21 publication damages . . . . Food Lion attempted to avoid the First Amendment limitations on
22 defamation claims by seeking publication damages under non-reputational tort claims.” Id. “Food
23 Lion attempted to avoid the First Amendment limitations on defamation claims by seeking
24 publication damages under non-reputational tort claims, while holding to the normal state law proof
25
26
2
NAF does allege false light invasion of privacy, but these allegations manifestly fail to state a
claim
for relief. See infra, Part XV.
27
28
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1 standards for these torts. This is precluded by Hustler Magazine v. Falwell.” Id. (internal citations
2 omitted).
3
In other words, the Fourth Circuit held that Food Lion’s attempt to recover for alleged
4 reputational injuries without pleading defamation would constitute an end-run around the First
5 Amendment: “Notwithstanding the nature of the underlying act, the Court held that satisfying New
6 York Times [v. Sullivan] was a prerequisite to the recovery of publication damages. . . . Food Lion
7 could not bypass New York Times standard if it wanted publication damages.” Id. at 524. The
8 holding of Hustler—that the New York Times standard applies to non-reputational torts—
9 compelled this result. See id.
10
Other cases are in accord with Food Lion. For example, in Hornberger v. American
11 Broadcasting Co., Inc., 351 N.J. Super. 577 (2002), the ABC show Prime Time Live secretly
12 videotaped police officers conducting traffic stops of young African-American males and broadcast
13 the videotapes. Id. at 585-86. The officers sued, claiming damages to their reputation. Id. Citing
14 Food Lion, the New Jersey court of appeals held that the plaintiffs could not recover any damages
15 arising from the publication of the recordings absent a valid claim for defamation: “Under Hustler
16 and Food Lion, plaintiffs are not entitled to . . . reputational and emotional distress damages,
17 resulting from a publication, without showing that the publication contained a false statement of
18 fact that was made with actual malice.” Id. at 630 (internal citations omitted); see also, e.g.,
19 Desnick v. Am. Broad. Co., Inc., 44 F.3d 1345, 1355 (7th Cir. 1995) (“[I]nvestigative television
20 reportage . . . is entitled to all the safeguards with which the Supreme Court has surrounded liability
21 for defamation. And it is entitled to them regardless of the name of the tort, and, we add,
22 regardless of whether the tort suit is aimed at the content of the broadcast or the production of the
23 broadcast.”) (internal citations omitted) (citing Hustler Magazine, Inc., 485 U.S. 46 (1988)).
24
Plaintiff’s complaint suffers from the very same deficiency as in Food Lion and similar
25 cases. With the exception of the claim for statutory damages under California Penal Code § 632,
26 all of Plaintiff’s claimed damages arise from the publication (or anticipated publication) of the
27 videos. See Doc. 1, ¶¶ 32, 34, 37, 40, 87-89, 91-92. But nowhere does Plaintiff allege that the
28
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1 publication of these videos would or will involve any untruthful information, which is a basic
2 constitutional prerequisite to recovering damages under the First Amendment.
See Hustler
3 Magazine, Inc., 485 U.S. at 56 (requiring a showing that “the publication contains a false statement
4 of fact” to permit damages due to publication under the First Amendment). Absent any allegation
5 of a false statement of fact, of course, no defamation claim is possible, and Plaintiff has failed to
6 make that requisite allegation. Thus, except for Plaintiff’s claim for statutory damages under
7 California Penal Code § 632 (which is meritless for the reasons stated below), all of Plaintiff’s
8 claims for damages arising from the publication of any video(s) must be dismissed.
9 IV.
10
11
Plaintiff’s Second Cause of Action for Civil Conspiracy Fails to State a Claim for
Relief.
In addition, Plaintiff’s twelve state-law causes of action (Counts Two through Thirteen) all
12 fail to state plausible claims for relief.
13
First, Plaintiff’s Second Cause of Action fails to state a claim for civil conspiracy for two
14 independent reasons. First, as described in the rest of this Memorandum, NAF has failed to allege
15 plausibly that Defendants committed any other underlying tort. “Conspiracy is not a cause of
16 action, but a legal doctrine that imposes liability on persons who, although not actually committing
17 a tort themselves, share with the immediate tortfeasors a common plan or design in its
18 perpetration.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 454, 510-11 (1994).
19 Thus, absent a showing that an underlying tort occurred, there can be no actionable civil
20 conspiracy. Id.; Kenne v. Stennis, 230 Cal. App. 4th 953, 968-69 (2014) (holding that the failure to
21 establish an underlying tort defeated civil-conspiracy claim).
22
NAF’s civil-conspiracy claim also fails for a second reason. “It is basic in the law of
23 conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot
24 conspire with itself any more than a private individual can, and it is the general rule that the acts of
25 the agent are the acts of the corporation.” Black v. Bank of Am., 30 Cal. App. 4th 1, 6 (1994)
26 (quotation omitted). Here, NAF alleges that all of the individuals who participated in the alleged
27 conduct acted as agents of Biomax and/or CMP. See, e.g., Doc. 1, ¶¶ 11, 30, 59, 80, 83, 101(b).
28
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1 “When a corporate employee acts in the course of his or her employment, on behalf of the
2 corporation, there is no entity apart from the employee with whom the employee can conspire.”
3 Black, 30 Cal. App. 4th at 6. In addition, NAF has alleged that CMP and Biomax do not have
4 separate corporate identities, but rather that they are one and the same. See Doc. 1, ¶ 20. But “[a]
5 corporation cannot conspire with itself.” Black, 30 Cal. App. 4th at 6. Thus, the Complaint fails to
6 allege a civil conspiracy between more than one legally distinct person.
7
8
9
V.
Plaintiff’s Third Cause of Action for Promissory Fraud Fails to State a Claim for
Relief.
Plaintiff’s Third Cause of Action fails to state a plausible claim for promissory fraud under
10 California law. “To plead promissory fraud, a plaintiff must plead the same elements as he would
11 if asserting a general fraud claim.” Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d 1257, 1271
12 (C.D. Cal. 2010).
Thus, a claim for promissory fraud requires “(a) misrepresentation (false
13 representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to
14 defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Lazar v.
15 Superior Court, 12 Cal. 4th 631, 638 (1996) (quotation omitted). In a promissory-fraud claim, the
16 “misrepresentation” occurs when the defendant enters into a contract which it does not intend to
17 perform. Id. (“A promise to do something necessarily implies the intention to perform; hence,
18 where a promise is made without such intention, there is an implied misrepresentation of fact that
19 may be actionable fraud.”).
20
Here, NAF claims that when Defendants entered into the Exhibitor Agreement and
21 Confidentiality Agreement, Defendants did not intend to fulfill the obligations under those
22 agreements. This claim fails for at least three reasons.
23
24
25
26
27
28
A. NAF’s promissory-fraud claim is legally barred, because NAF has not
rescinded its agreements with Defendants but instead has reaffirmed them by
suing Defendants for breach of contract.
Plaintiff cannot raise its promissory-fraud claim, because it has reaffirmed its agreements
with Defendants rather than rescinding them as required under California law. Plaintiffs’ Fifth and
Sixth Causes of Action allege breaches or anticipated breaches of the Exhibitor Agreement and the
30
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1 Confidentiality Agreements between NAF and Defendants. See Doc. 1, at 47-50. These are the
2 same agreements that underlie NAF’s promissory-fraud claim. See id., ¶¶ 116-118. However, “[a]
3 party may not sue in fraud for damages caused by the fraudulent inducement of a contract without
4 first rescinding the contract.” Goldman v. Seawind Grp. Holdings Ptd Ltd., Case No. 13-cv-01759,
5 2015 WL 433507, at *11 (N.D. Cal. Feb. 2, 2015) (citing Vill. Northridge Homeowners Ass’n, 50
6 Cal. 4th 913, 922 (2010)). Thus, for example, in Goldman, this Court held that the plaintiffs’
7 promissory-fraud claim was “legally precluded” because “plaintiffs have not rescinded the
8 [contract] and instead have affirmed it twice by suing to enforce it, and therefore they cannot sue
9 for promissory fraud.” Goldman, 2015 WL 433507, at *11. Here, NAF has not rescinded its
10 agreements with Defendants but instead has reaffirmed them by bringing Counts Five and Six of
11 this case. Thus, Plaintiff’s Third Cause of Action is “legally precluded.” Id.
12
14
B. NAF’s Complaint fails to show that Defendants breached their contracts with
NAF, and thus any promissory misrepresentations by Defendants could not
have proximately caused the harm allegedly sustained by NAF.
15
Under California law, a claim for fraud requires that the plaintiff plead damages that were
13
16 proximately caused by the fraudulent misrepresentation. Serv. by Medallion, Inc. v. Clorox Co., 44
17 Cal. App. 4th 1807, 1818 (1996). A fraud that does not proximately cause the plaintiff’s injuries is
18 not actionable. See id. at 1818-19. “If the promisor performs [a contract] or has not yet broken her
19 promise, then any damages the claimant suffers are not the proximate result of the promisor’s
20 misrepresentation, and there is no action for promissory fraud.” Ayres & Klass, Promissory Fraud
21 Without Breach, 2004 WISC. L. REV. 507, 509-10 (emphasis in original). Thus, for example, in
22 Service by Medallion, the court considered a promissory-fraud claim where the parties had
23 performed under a contract for several months, before the defendant terminated the contract. 44
24 Cal. App. 4th at 1818-19. The court rejected the promissory-fraud claim, explaining that “it was
25 the termination, not the misrepresentation [of an intent to perform the contract], that resulted in the
26 alleged harm.” Id. at 1819; see also Hassanally v. JRAM Enters., Inc., 2007 WL 1990385, at *9
27 (Cal. App. 2d Dist. July 11, 2007) (rejecting a promissory-fraud claim because the defendant had
28
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1 complied with its contractual obligations); Kaylor v. Crown Zellerbach, Inc., 643 F.2d 1362, 1368
2 (9th Cir. 1981) (holding that a party’s “initial performance in accordance with its promises negates
3 any possible inference of fraud”).
As described in Part VII below, NAF has failed to plead adequately that Defendants
4
5 breached the Exhibitor Agreement or the Confidentiality Agreement. Because NAF’s Complaint
6 fails to allege that Defendants breached their contracts with NAF, any promissory
7 misrepresentations by Defendants could not have proximately cause the harm allegedly sustained
8 by NAF.
9
10
C. NAF cannot seek publication damages through a promissory-fraud claim when
it has not brought a defamation claim.
11
All of the damages alleged in NAF’s promissory-fraud claim arise from the publication of
12 information allegedly obtained at NAF meetings. See Doc. 1, ¶ 123. But as described in Part III
13 supra, where a plaintiff has not brought a defamation claim, it cannot seek damages from
14 publication alone. See Food Lion, 194 F.3d at 522-24. Damages constitute an essential element of
15 a claim for fraud. Lazar, 12 Cal. 4th at 638. Thus, NAF has failed to state a claim for promissory
16 fraud.
17
18
Plaintiff’s Fourth Cause of Action for Fraudulent Misrepresentation Fails to State a
Claim for Relief.
19
Similarly, Plaintiff’s Fourth Cause of Action for fraudulent misrepresentation fails to state a
VI.
20 claim for relief, for three reasons: (1) it fails to plead fraud with particularity under Rule 9(b); (2) it
21 is duplicative of the promissory-fraud claim, which is deficient for the reasons stated above; and (3)
22 Plaintiff cannot recover damages, an essential element of fraud.
23
24
25
A. Plaintiff’s Fourth Cause of Action fails to comply with the heightened pleading
requirements of Fed. R. Civ. P. 9(b).
Federal Rule of Civil Procedure 9(b) requires that, “[i]n alleging fraud . . ., a party must
26 state with particularity the circumstances constituting fraud.” FED. R. CIV. P. 9(b). “Averments of
27 fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.”
28
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1 Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quotation omitted). In particular,
2 for each allegedly false statement, “[t]he plaintiff must set forth what is false or misleading about a
3 statement, and why it is false.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.
4 2003) (quotation omitted).
Here, Count Four fails to “set forth what is false or misleading about [the relevant
5
6 representations], and why [they are] false.” Id. The Complaint identifies eight representations
7 underlying Count Four. Doc. 1, ¶¶ 126-127. The Complaint then alleges in the most general
8 terms: “These representations were false. Defendants created a fictitious company and presented
9 fake identifications to infiltrate and gain access to Plaintiff’s 2014 and 2015 annual meetings.” Id.,
10 ¶ 128.
11
This generic allegation of falsity falls short of Rule 9(b)’s particularity requirement. The
12 cursory statements in Paragraph 128 leave Defendants to speculate precisely which specific
13 statements of Defendants were allegedly false, and how the alleged representations are false.
14 Count Four simply does not “set forth what is false or misleading about [the] statement[s], and why
15 [they are] false.” Vess, 317 F.3d at 1106. Thus, Count Four fails to satisfy Rule 9(b) and should be
16 dismissed. Id.
17
18
19
B. The fraudulent misrepresentation claim fails because it relies entirely on
allegations of promissory fraud, which are legally barred by Plaintiff’s attempt
to enforce the contract.
As noted above, promissory fraud (the tort raised in Count Three) is a “subspecies” of
20
fraud, not a tort distinct from fraudulent misrepresentation. Lazar, 12 Cal. 4th at 638. Thus,
21
22
“promissory fraud” and “fraudulent misrepresentation” share identical elements. See id; Penney v.
NDEX West LLC, No. 2:11-cv-5567, 2013 WL 569176, at *7 (C.D. Cal. Feb. 13, 2013) (“The
23
elements a plaintiff must satisfy to establish fraudulent misrepresentation are the same as
24
25
26
promissory fraud.”).
Though Plaintiff has failed to comply with Rule 9(b)’s particularity requirement, it appears
that all of Plaintiff’s allegations of fraudulent misrepresentation are based on Defendants’ alleged
27
representations to NAF made in the Exhibitor Agreement and Confidentiality Agreement. The
28
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1 allegations of misrepresentation in Paragraph 126 of the Complaint simply paraphrase the language
2 of Paragraphs 2, 15, and 17 of the Exhibitor Agreements. Compare Doc. 1, ¶ 126, with Doc. 1-1,
3 ¶¶ 2, 15, 17. Likewise, the allegations of misrepresentation in Paragraph 127 simply paraphrase the
4 language of Paragraphs 1, 2, and 3 of the Confidentiality Agreements. Compare Doc. 1, ¶ 127,
5 with Doc. 1-2, ¶¶ 1, 2, 3. In addition, Count Four alleges that the putative misrepresentations
6 occurred on the same four dates that it alleges the Exhibitor and Confidentiality Agreements were
7 signed. See also Doc. 1, ¶¶ 126 (alleging that putatively false representations occurred on February
8 5, 2014 and March 25, 2015); id. ¶¶ 62, 77 (alleging that the Exhibitor Agreements were executed
9 on February 5, 2014 and March 25, 2015); id. ¶ 127 (alleging that putatively false representations
10 occurred on April 5, 2014 an April 18, 2015); id. ¶¶ 66, 80 (alleging that the Confidentiality
11 Agreements were executed on April 5, 2014 and April 18, 2015). There are no other allegations of
12 misrepresentation separate from contractual representations pled with any particularity in the
13 Fourth Cause of Action.
14
In other words, Plaintiff’s Fourth Cause of Action for fraudulent misrepresentation fails to
15 allege a distinct cause of action from the Third Cause of Action for promissory fraud, because all of
16 the alleged misrepresentations were made as part of the alleged contracts, which Plaintiff has never
17 rescinded. Because Counts Three and Four plead in essence the same cause of action, Count Four
18 is deficient for the same reasons as Count Three, which is “legally barred” due to Defendant’s
19 attempt to enforce the contract. See supra, Part V.
20
21
22
C. NAF cannot seek publication damages through a fraudulent-misrepresentation
claim when it has not brought a defamation claim.
All of the damages alleged in NAF’s fraudulent-misrepresentation claim arise from the
23 publication of information allegedly obtained at NAF meetings.
See Doc. 1, ¶ 132. But as
24 described in Part III above, where a plaintiff has not brought a defamation claim, it cannot seek
25 damages from publication alone. See Food Lion, 194 F.3d at 522-24. Damages constitute an
26 essential element of a claim for fraud. Lazar, 12 Cal. 4th at 638. Thus, NAF has failed to state a
27 claim for fraudulent misrepresentation.
28
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1
2
VII.
Plaintiff’s Fifth Cause of Action Fails to State a Claim for Breach of Contract.
NAF claims that Defendants have breached the Exhibitor Agreement (Doc. 1-1) and
3 Confidentiality Agreements (Doc. 1-2). Specifically, NAF claims Defendants have breached these
4 agreements by: (1) failing to represent Biomax’s identity and/or services truthfully; (2) disclosing
5 information obtained at NAF annual meetings without NAF’s consent; (3) making recordings at
6 NAF annual meetings; and (4) using information obtained at NAF meetings for purposes other than
7 to enhance the quality and safety of abortion services. See Doc. 1, ¶ 137. All these claims are
8 based on the anticipated publication of recordings from the NAF conferences. See id. The breach9 of-contract claim fails to state a claim for relief as to the recording or disclosure of recordings of
10 informal conversations that occurred among conference attendees, and the Complaint fails to allege
11 the recording or disclosure of recordings of any formal presentations.
12
“[T]he elements of a cause of action for breach of contract are (1) the existence of a
13 contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4)
14 the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821
15 (2011). “Facts alleging a breach, like all essential elements of a breach of contract cause of action,
16 must be pleaded with specificity.” Levy v. State Farm Mut. Auto. Ins. Co., 150 Cal. App. 4th 1, 5
17 (2007). Here, NAF’s Complaint fails to plead adequately that Defendants’ conduct breached the
18 relevant agreements, and thus NAF has not stated a claim for breach of contract.
19
20
21
22
23
24
25
A. The Complaint has not plausibly alleged that any actual or potential
disclosures of information would violate the applicable agreements.
NAF’s Complaint fails to allege that any of Defendant’s actual or potential disclosures
violate any agreement between the parties. NAF alleges that Defendants entered into two sets of
agreements with NAF: an “Exhibitor Agreement,” Doc. 1-1; and a “Confidentiality Agreement,”
Doc. 1-2. See also Doc. 1-3, 1-4, 1-5, 1-6 (other versions of the same putative agreements).
1. The Exhibitor Agreement applies only to information disclosed through
formal proceedings or formal contexts at NAF meetings.
26
27
28
The Exhibitor Agreement restricts the disclosure of information only if that information was
furnished formally.
It does not cover information disclosed in informal conversations.
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1 Exhibitor Agreement provides, in pertinent part, that:
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In connection with NAF’s Annual Meeting, Exhibitor understands
that any information NAF may furnish is confidential and not
available to the public. Exhibitor agrees that all written information
provided by NAF, or any information which is disclosed orally or
visually to Exhibitor, or any other exhibitor or attendee, will be used
solely in conjunction with Exhibitor’s business and will be made
available only to Exhibitor’s officers, employees, and agents. Unless
authorized in writing by NAF, all information is confidential and
should not be disclosed to any other individual or third parties.
Doc. 1-1, ¶ 17.
In this contract, the phrases “information NAF may furnish,” and “written
information provided by NAF, or any information which is disclosed orally or visually to
Exhibitor, or any other exhibitor or attendee,” must be interpreted to refer to material provided in
presentations and workshops, not in informal conversations between conference attendees.
First, under California law, courts must interpret contractual language consistent with “the
doctrine of noscitur a sociis,” which mandates “that a word takes its meaning from the company it
keeps.” Blue Shield of Cal. Life & Health Ins. Co. v. Superior Court, 192 Cal. App. 4th 727, 740
(2011). “Under this principle, courts will adopt a restrictive meaning of a listed item if acceptance
of a broader meaning would make other items in the list unnecessary or redundant, or would
otherwise make the item markedly dissimilar to the other items in the list.” Id.
Applying that principle here, the phrase “written information provided by NAF” informs
the interpretation of the immediately following phrase “or any information which is disclosed
orally or visually.”
Doc. 1-1, ¶ 17; see Blue Shield, 192 Cal. App. 4th at 740.
Providing
information in a written medium connotes formality, such as through brochures, agendas, lecture
notes, presentations, and similar materials. Thus, the Exhibitor Agreement refers to formal oral and
visual disclosures, such as disclosures in workshops and presentations—not informal conversations
with conference attendees.
Second, under California law, courts “must interpret a contract in a manner that is
reasonable and does not lead to an absurd result.” Roden v. AmerisourceBergen Corp., 186 Cal.
App. 4th 620, 651 (2010); see also Cal. Civ. Code § 1643 (requiring that a contract receive “such
an interpretation as will make it . . . reasonable”). Interpreting the phrase “information which is
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1 disclosed orally or visually” to include every informational statement made at NAF meetings—
2 both formal and informal, both professional as well as private or personal—would lead to
3 unreasonable and untenable results.
4
In essence, NAF claims that before repeating any statement made by anyone at an NAF
5 conference, one must first obtain NAF’s written consent. This requirement would stifle and unduly
6 hamper business and networking between conference attendees. For example, if a conference
7 participant met a vendor and discussed the vendor’s services, the information exchanged in the
8 conversation would fall within the scope of the agreement. To disclose the content of the
9 conversation to a third party (such as investors or a bank who would finance a business deal
10 between the participant and the vendor), the parties would first need to obtain NAF’s written
11 consent. This interpretation is plainly unreasonable.
12
Moreover, NAF’s proposed interpretation also would cover any informal conversations in
13 which one attendee admitted the commission of a crime or regulatory violation to another attendee.
14 But case law and other authorities are clear that an agreement not to report potential criminal
15 activity is unenforceable. See, e.g., Fomby-Denson v. Dep’t of Army, 247 F.3d 1366, 1376 (Fed.
16 Cir. 2001) (“[C]ontracts barring the reporting of crimes are held to be unenforceable.”); id. at 1377
17 n.9 (collecting secondary sources); Branzburg v. Hayes, 408 U.S. 665, 696 (1972) (“[I]t is obvious
18 that agreements to conceal information relevant to commission of crime have very little to
19 recommend them from the standpoint of public policy.”); Lachman v. Sperry-Sun Well Surveying
20 Co., 457 F.2d 850, 853 (10th Cir. 1972) (“The criminal nature of the offense . . . gives the state a
21 clear and separate interest in voiding a contract which conceals the crime, and hampers the
22 punishment of the offender.”); Hentzel v. Singer Co., 138 Cal. App. 3d 290, 295-97 (1982) (holding
23 that public policy permits an employee to report information that may lead to criminal prosecution,
24 irrespective of confidentiality obligations); see also Alderson v. United States, 718 F. Supp. 2d
25 1186, 1200 (C.D. Cal. 2010) (“Courts have consistently refused to enforce post-employment
26 confidentiality agreements that sought to prevent a former employee from revealing harmful
27 information about the employer’s illegality.”). Courts must give a contract “such an interpretation
28
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1 as will make it lawful, operative, . . . and capable of being carried into effect.” Cal. Civ. Code
2 § 1643. Because the broad interpretation attributed to the non-disclosure provision by NAF would
3 render the agreement at least partially unenforceable, the Court should decline to adopt that
4 interpretation.
5
In addition, NAF drafted the Exhibitor Agreement, without any input from or negotiation
6 with Defendants. Under the contra proferentem canon, courts ordinarily construe an ambiguous
7 agreement against the drafter of the contract, especially in standard-form contracts like this one.
8 Rebolledo v. Tilly’s, Inc., 228 Cal. App. 4th 900, 913 (2014) (internal quotation marks omitted)
9 (“[A]mbiguities in standard form contracts are to be construed against the drafter.”). Thus, the
10 Court should resolve any uncertainty as to the scope of the Exhibitor Agreement in favor of
11 Defendants, and interpret the Exhibitor Agreement to apply only to disclosures made during formal
12 conference proceedings, not to informal conversations.
13
14
15
2. The Exhibitor Agreement applies only to information disclosed by NAF,
not other attendees.
The Exhibitor Agreement also applies only to disclosures by NAF, not those made by other
16 attendees. First, under the doctrine of noscitur a sociis, the phrase “written information provided
17 by NAF” must inform the interpretation of the immediately following phrase “or any information
18 which is disclosed orally or visually.” Doc. 1-1, ¶ 17. Thus, the Court should interpret the
19 provision to apply only to information provided by NAF, whether in writing, orally, or visually.
20
Second, interpreting the provision to apply to information disclosed by other attendees
21 would yield unreasonable results. See Roden, 186 Cal. App. 4th at 651; Cal. Civ. Code § 1643. In
22 addition to the unreasonable results identified in Part VII.A.1 above, NAF’s proposed interpretation
23 would create an inexplicable disparity between information provided by third parties in written
24 form and information provided in oral or visual form. The former would receive no protection
25 under the Exhibitor Agreement, because the clause covers only “written information provided by
26 NAF.”
Doc. 1-1, ¶ 17.
On the other hand, under NAF’s interpretation, oral or visual
27 communications would receive full protection.
28
No principled basis supports this differential
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1 treatment, and thus the Court should avoid an interpretation that yields this unreasonable result.
2
Finally, because NAF drafted the Exhibitor Agreement, the Court should resolve any
3 uncertainties in favor of Defendants and in favor of narrowing the scope of the agreement. See
4 Rebolledo, 228 Cal. App. 4th at 913.
5
3. The Exhibitor Agreement does not limit the disclosure of information
that is publicly available.
6
7
The Exhibitor Agreement also does not limit the disclosure of information that is publicly
8 available. The first and last sentences of the non-disclosure provision explain that the information
9 covered by the provision is “confidential.” Doc. 1-1, ¶ 17. But information is “confidential” only
10 if it is “known only to a limited few” and “not publicly disseminated.” WEBSTER’S THIRD NEW
11 INT’L DICTIONARY, UNABRIDGED 476 (2002). Any information that is publicly known plainly is
12 not “confidential.” “[O]nce confidential information is placed in the public realm, it is no longer
13 confidential . . . .” Uniroyal Goodrich Tire Co. v. Hudson, 1996 WL 520789, at *9 (6th Cir. Sept.
14 12, 1996) (unpublished per curiam).
Thus, the Exhibitor Agreement plainly does not cover
15 publicly available information.
16
4. The Confidentiality Agreement likewise applies only to information
disclosed through formal proceedings or formal contexts at NAF
meetings.
17
18
19
20
Like the Exhibitor Agreement, the Confidentiality Agreement limits disclosure only of
information provided in a formal manner, such as in presentations, workshops, and similar formal
contexts. The Confidentiality Agreement provides that:
21
22
23
24
25
26
27
28
NAF Conference Information includes all information distributed or
otherwise made available at this conference by NAF or any
conference participants through all written materials, discussions,
workshops, or other means. NAF Conference Information is
provided to Attendees to help enhance the quality and safety of
services provided by NAF members and other participants.
Attendees may not use NAF Conference Information in any manner
inconsistent with these purposes.
Doc. 1-2, ¶ 2.
The agreement further provides that “Attendees may not disclose any NAF
Conference Information to third parties without first obtaining NAF’s express written consent,
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1 which will not be unreasonably withheld.” Id., ¶ 3.
2
The phrase “all information distributed or otherwise made available at this conference by
3 NAF or any conference participants through all written materials, discussions, workshops, or other
4 means,” id., should not be interpreted to refer to informal conversations among conference
5 participants. Like the Exhibitor Agreement’s non-disclosure provision, these provisions apply only
6 to information provided in formal proceedings or contexts. NAF’s interpretation conflicts with
7 basic principles of contractual interpretation.
8
First, under the doctrine of noscitur a sociis, the terms “written materials” and “workshops”
9 inform the interpretation of “discussions” and “other means.” Blue Shield, 192 Cal. App. 4th at
10 740.
The terms “workshops” and “written materials,” as well as the phrase “information
11 distributed,” plainly refer to formal disclosures through meeting handouts, formal presentations,
12 formal workshops, and similar events. These implications of formality also apply to the other
13 items in the same list, that is, “discussions” and “other means.”
Thus, the Confidentiality
14 Agreement applies only to formal disclosures of information.
15
Second, interpreting the Confidentiality Agreement to apply to all private or informal
16 conversations that occur at NAF meetings would yield the same unreasonable or absurd results as
17 would interpreting the Exhibitor Agreement to apply that broadly. See Part VII.A.1.
18
Third, the second sentence in Paragraph 2 of the Confidentiality Agreement suggests that
19 the first sentence refers only to information disclosed in formal presentations, not informal
20 discussions. The second sentence states that “NAF Conference Information is provided to
21 Attendees to help enhance the quality and safety of services provided by NAF members and other
22 participants.” Doc. 1-1, ¶ 2. This would be an awkward and unnatural way to describe many of the
23 informal conversations that take place between conference participants. But it readily applies to the
24 content of formal presentations, workshops, etc. Thus, reading the two sentences together, “NAF
25 Conference Information” refers only to the content of formal presentations, not informal
26 conversations between participants. See AB Grp. v. Wertin, 59 Cal. App. 4th 1022, 1035 (1997)
27 (explaining that the various provisions of a contract must be read together).
28
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1
Finally, because NAF drafted the Confidentiality Agreement, the Court should resolve any
2 uncertainty as to the scope of the agreement in favor of Defendants. Rebolledo, 228 Cal. App. 4th
3 at 913. Thus, the Court should interpret the Confidentiality Agreement to apply only to disclosures
4 made during formal conference proceedings, not to informal conversations.
5
5. The Complaint fails to allege the disclosure of any information obtained
by Defendants through any formal means or proceedings at an NAF
meeting.
6
7
NAF’s Complaint fails to allege any facts giving rise to the plausible inference that
8
Defendants have disclosed any information from formal presentations at an NAF meeting. With
9
regard to videos that Defendants already have released, the Complaint alleges that a video refers to
10
11
12
NAF’s medical director and twelve employees of NAF members. Doc. 1, ¶ 72. NAF claims that
“[o]n information and belief, Daleiden and his cohorts learned of these individuals at NAF’s annual
meeting in San Francisco.” Id. But even if this were true, NAF has failed to allege that Defendants
13
learned of these identities through formal presentations at NAF meetings, as the relevant
14
15
agreements require. Thus, the Complaint alleges nothing “more than the sheer possibility that a
defendant has acted unlawfully,” Iqbal, 556 U.S. at 678, and such allegations fail to state a claim
16
for relief, id.
17
NAF also fails to allege that any possible videos that might be released in the future would
18
contain any information that Defendants learned through formal means at an NAF meeting. NAF
19
simply alleges that Defendants may have made some unspecified recordings at NAF meetings.
20
21
22
23
See, e.g., Doc. 1, ¶¶ 121 (“Defendants improperly and surreptitiously made video or audio
recordings at the 2014 and 2015 annual meetings”), 143 (“Defendants have breached the contracts
by . . . making video or audio recordings at the 2014 and 2015 annual meetings”). Indeed, NAF
has claimed that Defendants recorded “private” conversations. See id., ¶ 183. The closest that
24
NAF comes to alleging that Defendants even have the capability of releasing formally disclosed
25
26
information is the allegation that one presenter “is now concerned” that they will do so. Id., ¶ 70.
Taken together, these allegations plainly do not show anything “more than the sheer possibility that
27
28
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1 a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Thus, NAF has failed to state a
2 plausible breach-of-contract claim, and the Court must dismiss Count Five of the Complaint.
3
4
5
B. NAF has not plausibly alleged that any recording that occurred at the NAF
meetings violated the applicable agreements.
NAF also claims that the Exhibitor Agreement and Confidentiality Agreement created a
6 blanket ban on all recording at NAF meetings. This position lacks support in the text of the
7 agreements and in California contract law. Instead, the agreements prohibited only recordings of
8 formal proceedings at the conferences, and the photography of other vendors’ booths.
9
The Confidentiality Agreement provides that “Attendees are prohibited from making video,
10 audio, photographic, or other recordings of the meetings or discussions at this conference.” Doc. 111 2, ¶ 1 (emphasis added). The most natural reading of the term “meetings” is that it refers to formal
12 events at NAF conferences. As noted above, Paragraph 2 of the Confidentiality Agreement uses
13 the term “discussions” to refer only to formal presentations. Courts presume that contracts intend a
14 word to carry the same meaning each time that word appears in the contract. See People ex rel.
15 Lockyer v. R.J. Reynolds Tobacco Co., 107 Cal. App. 4th 516, 526 (2003) (collecting cases). Thus,
16 here too the term “discussion” refers only to formal discussions, such as panel discussions during
17 presentations. Therefore, the no-recording provision of the Confidentiality Agreement applies only
18 to formal portions of the NAF meetings, not to informal or private conversations that take place at
19 the conferences.
20
The Confidentiality Agreement’s express prohibition on filming formal “meetings or
21 discussions” indicates that the agreement does not prohibit filming all other aspects of the
22 meetings. California courts interpret contracts in light of the maxim expressio unius est exclusion
23 alterius—that the express inclusion of one thing implies the exclusion of all others. See, e.g.,
24 Stephenson v. Drever, 16 Cal. 4th 1167, 1175 (1997). Here, the express prohibition on recording
25 formal proceedings implies that there is no prohibition on recording informal conversations at the
26 conventions.
27
28
In the Exhibitor Agreement, Paragraph 13 of that agreement provides that “[p]hotography
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1 of exhibits by anyone other than NAF or the assigned Exhibitor of the space being photographed is
2 strictly prohibited.” Doc. 1-1, ¶ 13. Here again, the express prohibition on a specific form and
3 context of recording—photographing exhibitor booths—implies that the Exhibitor Agreement does
4 not prohibit recordings in other forms or contexts. See Stephenson, 16 Cal. 4th at 1175.
5
The Complaint does not allege that Defendants recorded any formal proceedings at the
6 NAF meetings. The Complaint merely makes vague claims like “Defendants improperly and
7 surreptitiously made video or audio recordings at the 2014 and 2015 annual meetings.” Doc. 1,
8 ¶ 121; see also id. ¶¶ 71, 82, 86, 89, 143, 177, 183. These allegations fail to plead a breach of
9 contract with the requisite specificity. See Levy, 150 Cal. App. 4th at 5. The Complaint also
10 alleges that one presenter “is now concerned” that Defendants recorded a formal presentation.
11 Doc. 1, ¶ 70. Even taken together, these allegations plainly do not show anything “more than the
12 sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Thus, NAF has
13 failed to state a plausible breach-of-contract claim, and the Court must dismiss Count Five of the
14 Complaint.
15
16
C. NAF has not plausibly alleged that Defendants used NAF Conference
Information in a manner inconsistent with enhancing the quality and safety of
abortion services.
17
NAF also claims that Defendants have breached their contractual obligations by using NAF
18
Conference Information in a manner inconsistent with enhancing the quality and safety of abortion
19
services. However, this claim fails for two distinct reasons.
20
The Confidentiality Agreement provides that “NAF Conference Information is provided to
21
Attendees to help enhance the quality and safety of services provided by NAF members and other
22
participants. Attendees may not use NAF Conference Information in any manner inconsistent with
23
24
25
these purposes.” Doc. 1-2, ¶ 2.
First, as explained in Part VII.A above, “NAF Conference Information” covers only
information obtained through formal proceedings or means at an NAF conference. And NAF’s
26
Complaint fails to allege plausibly that Defendants have used any specific items of information that
27
Defendants obtained through formal components of any NAF conference.
28
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1
Second, the purported obligations imposed by this provision are too indefinite to be
2 enforceable under California law. “To be enforceable, a promise must be definite enough that a
3 court can determine the scope of the duty and the limits of performance must be sufficiently
4 defined to provide a rational basis for the assessment of damages.” Moncada v. W. Coast Quartz
5 Corp., 221 Cal. App. 4th 768, 793 (2013) (internal quotation marks and alteration omitted). A
6 contractual provision is unenforceable if it “provides no rational method for determining breach or
7 computing damages.” Id. (internal quotation marks omitted); see also Elite Show Servs., Inc. v.
8 Staffpro, Inc., 119 Cal. App. 4th 263, 268 (2004); 1 WILLISTON
ON
CONTRACTS § 4:18 (4th ed.
9 1990) (“It is a necessary requirement that an agreement, in order to be binding, must be sufficiently
10 definite to enable the courts to give it an exact meaning.”).
11
Here, there is no rational way for the Court to assess whether a party’s use of NAF
12 Conference Information can be said to enhance the safety and/or quality of abortion services. This
13 purported obligation is nebulous at best, and entirely in the eye of the beholder. If anything,
14 disclosing evidence of widespread criminal activity in an industry will tend to improve the quality
15 and safety of services in that industry. Moreover, the provision provides no coherent basis for
16 assessing damages in the event of breach. This is precisely the sort of provision that is too
17 indefinite for a court to enforce.
18
Thus, NAF has not plausibly alleged a claim for breach of contract, and the Court should
19 dismiss Count Five of NAF’s Complaint.
20 VIII.
21
22
Plaintiff’s Sixth Cause of Action Fails to State a Claim for Anticipatory Breach of
Contract.
Count Six of NAF’s Complaint fails to state a claim for anticipatory breach of contract. In
23 particular, NAF claims that Defendants have anticipatorily breached their purported contractual
24 obligations by threatening to disclose additional information obtained at NAF meetings without
25 NAF’s consent. See id., ¶¶ 144, 145. “A party anticipatorily breaches a contract expressly by
26 unequivocally refusing to perform, or impliedly by conduct where the promisor puts it out of his
27 power to perform so as to make substantial performance of his promise impossible.” Cnty. of
28
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1 Solano v. Vallejo Redevelopment Agency, 75 Cal. App. 4th 1262, 1276 (1999) (quotation omitted).
NAF has failed to state a claim for anticipatory breach of contract, because it has failed to
2
3 allege that any of the potential future disclosures that Defendants might make would violate the
4 Exhibitor Agreement or the Confidentiality Agreement. As described in Part VII, above, those
5 agreements limit the disclosure only of information obtained through formal means or proceedings
6 at NAF meetings, and NAF has not alleged that Defendants have disclosed or will disclose such
7 information.
It is axiomatic that where threatened action would not breach the contract, a
8 defendant necessarily has not engaged in an anticipatory breach of the contract: a party
9 anticipatorily breaches a contract by “refusing to perform” that contract. Cnty. of Solano, 75 Cal.
10 App. 4th at 1276. If the party will perform—that is, if its threatened conduct does not violate the
11 contract—then there can be no anticipatory breach. See id.
12 IX.
Plaintiff’s Claim for Trespass Fails to State a Claim for Relief.
13
Plaintiff’s Seventh Cause of Action, for trespass under California law, fails to state a claim
14
15
for relief. See Doc. 1, ¶¶ 148-53. NAF does not dispute that it consented to the attendance of
Biomax personnel at its conventions, but it contends this consent was invalid because it was
16
“fraudulently induced,” and that Defendants “exceeded the scope of NAF’s consent by knowingly
17
and intentionally videotaping NAF members at conferences in violation of NAF’s confidentiality
18
agreement.” Id. ¶ 150.
19
Plaintiff’s trespass claim fails on both points. First, for the reasons stated above, Plaintiff
20
fails to plausibly allege that Defendants exceeded the scope of NAF’s consent as set forth in the
21
contracts. See supra Part VII. But even if it had, under California law, “in a case where consent
22
was fraudulently induced, but consent was nonetheless given, plaintiff has no claim for trespass.”
23
24
Baugh v. CBS, Inc., 828 F. Supp. 745, 757 (N.D. Cal. 1993). In Baugh, a television camera crew
entered the house of a victim of domestic violence along with the responding police officers. They
25
procured the victim’s consent to enter the home by falsely representing that they were part of a
26
victim-witness program for the District Attorney’s office, and the victim expressly imposed as a
27
28
condition of their entry that they would not publish any recording. Id. at 752 (reporting that the
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1 victim permitted the camera crew to enter only “as long as I was not going to be on anyone’s
2 television,” and that “if they had not agreed to my condition, I would not have permitted them to
3 stay”). Later, the footage was broadcast on a local television show. Id. The victim sued the
4 television station for trespass, but the court dismissed the trespass claim on the ground that the
5 victim had consented to the entry, even if the consent was fraudulently induced. Id. at 757 (“[A]s
6 with any intentional tort, consent is an absolute defense, even if improperly induced.”). The court
7 noted that the victim was actually claiming damages, not for trespass, but for publication of the
8 videos taken on her property against her authorization: “If [the camera crew] exceeded the scope of
9 Baugh’s consent, they did so by broadcasting the videotape, an act which occurred after they left
10 Baugh’s property and which cannot support a trespass claim.” Id.
Plaintiff’s trespass claim founders on Baugh. As in Baugh, the actual injury of which
11
12 Plaintiff complains is not intrusion into property beyond the scope of consent, but injury from the
13 anticipated broadcast of recordings. The only damages Plaintiff claims as a result of the trespass
14 are “being forced to divert resources to combat Defendant’s misrepresentations in highly edited
15 videos taken while trespassing on Plaintiff’s property . . . and suffering reputational harm as a
16 result of such videos.” Doc. 1, ¶ 152. As in Baugh, Plaintiff’s trespass claim arises solely from
17 “broadcasting the videotape, at act which . . . cannot support a trespass claim.” Baugh, 828 F.
18 Supp. 2d at 757; see also Desnick v. ABC, Inc., 44 F.3d 1345 (7th Cir. 1995) (holding that ABC’s
19 undercover filming of a medical practice by using actors posing as patients secretly recording their
20 conversations with doctors did not constitute trespass, because “[t]heir was no invasion in the
21 present case of any of the specific interests that the tort of trespass seeks to protect”).
22
23
24
X.
Plaintiff’s Eighth Cause of Action Fails to State a Claim for Relief Under California’s
False Advertising Law.
Plaintiff’s Eighth Cause of Action asserts a claim under California’s False Advertising Law
25 (“FAL”), California Business & Professional Code §§ 17500 et seq. The FAL proscribes false or
26 misleading advertisements made with the intent to dispose of property, perform services, or
27 “induce the public to enter into any obligation relating to” property or services. Kasky v. Nike, Inc.,
28
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1 27 Cal. 4th 939, 950 (2002) (citing Cal. Bus. & Prof. Code § 17500). “The goal of . . . the FAL is
2 the protection of consumers.” Anuziato v. eMachines, Inc., 402 F. Supp. 2d 1133, 1137 (C.D. Cal.
3 2005). Plaintiff’s Complaint, by contrast, pleads no nexus between any alleged violations of this
4 statute and the protection of consumers. See Food Lion, 194 F.3d at 519 (rejecting a claim under
5 North Carolina’s Unfair Trade Practices Act based on undercover filming of meat-packing
6 practices in part because “[t]he Act’s primary purpose is to protect the consuming public” and it
7 concerns customers “aggrieved by unfair or deceptive business practices”).
8
NAF’s FAL claim relies on two sets of allegedly false “advertisements.” First, NAF claims
9 that Defendants made a variety of false statements to NAF regarding Defendants’ business
10 activities and their intentions for future action, for the purpose of inducing NAF to contract with
11 Defendants. See Doc. 1, ¶¶ 155, 156. Second, NAF claims that Defendants have or will make
12 public statements or disclosures that falsely or misleading characterize NAF and its members, and
13 the services that they provide. Id., ¶¶ 159, 160. Because neither of these two sets of alleged
14 “advertisements” can support a claim under the FAL, the Court should dismiss Count Eight.
15
A. To the extent that NAF’s FAL claim relates to public statements or disclosures
regarding NAF and its members, or the services that they provide, NAF has
failed to plead that it relied on Defendants’ statements or disclosures.
16
17
As noted above, NAF’s FAL claim depends in part on allegations that Defendants either
18
have made or will make public statements or disclosures that misrepresent the character and quality
19
of NAF and its members, and the services that they provide. See Doc. 1, ¶ 159, 160. To the extent
20
that NAF’s FAL claim relates to these alleged statements or disclosures, NAF has failed to allege
21
that it relied on them, and the claim must be dismissed.
22
A plaintiff bringing a claim premised on a violation of the FAL must plead actual reliance
23
24
25
26
on the defendant’s purportedly false or misleading advertisement. Kwikset Corp. v. Superior
Court, 51 Cal. 4th 310, 326-27 (2011). “Reliance is proved by showing that the defendant’s
misrepresentation or nondisclosure was an immediate cause of the plaintiff’s injury-producing
conduct.”
In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009) (emphasis added; internal
27
punctuation omitted). For that reason, a plaintiff cannot bring a false-advertising claim premised
28
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1 on the reliance of a third party. See L.A. Taxi Coop., Inc. v. Uber Techs., Inc., No. 15-cv-012572 JST, 2015 WL 4397706, at *9-10 (N.D. Cal. July 17, 2015) (collecting cases).
3
Here, NAF has not alleged—and could not have alleged plausibly—that it has or will rely
4 on Defendants’ anticipated statements regarding the services provided by NAF and its members.
5 Indeed, given that NAF characterizes those statements as “false” and “likely to mislead,” NAF
6 could not conceivably rely on them. Doc. 1, ¶ 159; cf. Frenzel v. AliphCom, Case No. 14-cv7 035587-WHO, 2014 WL 7387150, at *11 (N.D. Cal. Dec. 29, 2014) (“Frenzel cannot plausibly
8 allege that he is likely to be fraudulently induced by the same representations he now claims he
9 knows are false.”).
10
Because NAF’s Complaint decisively demonstrates that NAF has not relied on any of
11 Defendants’ statements or disclosures regarding NAF and its members, or the services that they
12 provide, Count Eight fails to state a claim to the extent that it relates to these statements or
13 disclosures. Kwikset, 51 Cal. 4th at 326-27; L.A. Taxi, 2015 WL 4397706, at *9-10.
14
15
16
B. To the extent that NAF’s FAL claim relates to representations allegedly made
by Defendants to NAF, NAF’s claim must be dismissed, because NAF cannot
recover any relief authorized by the FAL.
As noted above, NAF’s FAL claim also depends in part on allegations that Defendants
17
misrepresented themselves, the nature of their business, and their intentions for future action. Doc.
18
1, ¶¶ 159, 160. To the extent that NAF’s FAL claim relates to these alleged statements, NAF
19
cannot recover any relief under the FAL, and Count Eight must be dismissed.
20
The FAL authorizes only two forms of relief for private plaintiffs—restitution and
21
injunctive relief. Hambrick v. Healthcare Partners Med. Grp., Inc., 238 Cal. App. 4th 124, 155
22
(2015); see also Cal. Bus. & Prof. Code § 17535. NAF cannot recover either of these forms of
23
relief, and thus its FAL claim must be dismissed.
24
First, the Complaint does not show that NAF is entitled to any restitution under the FAL.
25
26
27
28
“[R]estitution ‘requires both that money or property have been lost by the plaintiff, on the one
hand, and that it ha[s] been acquired by the defendant on the other.’” In re Apple & AT&T iPad
Unlimited Data Plan Litig. (“In re Apple”), 802 F. Supp. 2d 1070, 1077 (N.D. Cal. 2011) (quoting
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1 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 336 (2011) (brackets omitted). “Where ‘the
2 economic injury involves a loss by a plaintiff without any corresponding gain by defendant’ there
3 is an ‘absence of any basis for restitution.’” Id. (quoting Kwikset, 51 Cal. 4th at 336) (ellipsis
4 omitted).
5
As described in Part I above, NAF has failed to allege that Defendants obtained any “money
6 or property” from NAF. If Defendants did not obtain money or property from NAF, then NAF is
7 not entitled to restitution under California law. See Korea Supply Co. v. Lockheed Martin Corp.,
8 29 Cal. 4th 1134, 1149 (2003); Kwikset, 51 Cal. 4th at 336. Thus, NAF plainly cannot obtain
9 restitution under the FAL, as to any of the misconduct alleged in this cause of action.
10
Second, NAF also cannot obtain injunctive relief.
“A plaintiff seeking prospective
11 injunctive relief in federal court must demonstrate not only that ‘he has suffered or is threatened
12 with a concrete and particularized legal harm,’ but also that there is ‘a sufficient likelihood that he
13 will again be wronged in a similar way.’” Frenzel, 2014 WL 7387150, at *11 (quoting Bates v.
14 United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007)). NAF has not alleged that Defendants
15 will again attempt to mislead NAF regarding their involvement in fetal tissue procurement or as to
16 the nature of Biomax or any other entity. Compare Doc. 1, ¶ 156. Moreover, NAF “cannot
17 plausibly allege that [it] is likely to be fraudulent induced by the same representations [it] now
18 claims [it] knows are false.” Frenzel, 2014 WL 7387150, at *11. As such, NAF has not shown any
19 “likelihood that it will again be wronged in a similar way” and thus is not entitled to injunctive
20 relief. Id.
21
Because NAF cannot obtain any relief under the FAL, the Court must dismiss Count Eight
22 of the Complaint. See In re Sony Gaming Litig., 903 F. Supp. 2d 942, 970 (S.D. Cal. 2012)
23 (dismissing FAL claim where plaintiff had not shown entitlement to restitution or injunctive relief).
24 Quite literally, NAF’s FAL claim fails to state a claim upon which relief can be granted. See FED.
25 R. CIV. P. 12(b)(6). Moreover, because the FAL affords NAF no relief, a favorable decision on the
26 FAL claim cannot redress any of NAF’s purported injuries, defeating NAF’s standing to bring the
27
28
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1 claim. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
2 (2000). Thus, the Court should dismiss Count Eight of NAF’s Complaint.
3
5
C. NAF has failed to allege that Defendants have made or will make public
statements or disclosures with the intent to dispose of property, perform
services, or induce the public to enter into an obligation concerning property or
services.
6
Further, the FAL proscribes only false or misleading advertisements made “with intent
4
7 directly or indirectly to dispose of real or personal property or to perform services or to induce the
8 public to enter into any obligation relating thereto . . . .” Kasky, 27 Cal. 4th at 950 (quotation
9 marks and ellipsis omitted). Here, NAF has not alleged facts suggesting that any of Defendants’
10 public statements or disclosures have or will be made with the intent to dispose of property,
11 perform services, or induce the public to enter into obligations regarding property or services. On
12 the contrary, NAF has claimed that Defendants have made these alleged statements in order “to
13 achieve their stated goal of ending legal abortion care.” Doc. 1, ¶ 157. Absent the requisite
14 statutory intent, there can be no violation of the FAL. See Cal. Bus. & Prof. Code § 17500. Thus,
15 NAF has failed to state a claim under the FAL.
16 XI.
17
Plaintiff’s Ninth Cause of Action Fails to State a Claim Under California’s Unfair
Competition Law.
18
Count Nine of NAF’s Complaint claims that Defendants violated California’s Unfair
19 Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq. This claim has no merit
20 because Plaintiff does not allege that Defendants sought to “compete” with them for business in
21 any way, and it should be rejected. See Food Lion, 194 F.3d at 520 (rejecting a claim under North
22 Carolina’s Unfair Trade Practices Act based on ABC’s undercover filming at Food Lion, because
23 “ABC was not competing with Food Lion” and thus “there is no competitive or business
24 relationship that can be policed for the benefit of the consuming public”).
25
Similar to the FAL, the purpose of the UCL “is the protection of consumers.” Anuziato,
26 402 F. Supp. 2d at 1137. “The UCL defines unfair competition as ‘any unlawful, unfair or
27 fraudulent business act or practice,’” each of these is considered a separate “variet[y]” of unfair
28
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1 competition with a separate theory of liability. In re Tobacco II Cases, 46 Cal. 4th 298, 311 (2009)
2 (quoting Cal. Bus. & Prof. Code § 17200); Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718,
3 731 (9th Cir. 2007). The only types of relief available under the UCL are restitution and injunctive
4 relief.
Mazza v. Am. Honda Motor Co., 666 F.3d 581, 591 (9th Cir. 2012).
Here, NAF’s
5 Complaint fails to plead any unlawful, unfair, or fraudulent business acts or practices, and thus it
6 fails to state a claim under the UCL and plaintiff is not entitled to any relief under this law.
7
8
9
A. NAF’s Complaint does not plausibly allege any unlawful conduct by
Defendants, and thus NAF has not satisfied the “unlawful” prong of the UCL.
NAF’s Complaint does not plausibly allege any unlawful conduct by Defendants, and thus
10 NAF has not satisfied the “unlawful” prong of the UCL. “In prohibiting any unlawful business
11 practice, the UCL borrows violations of other laws and treats them as unlawful practices that the
12 unfair competition law makes independently actionable.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1130
13 (9th Cir. 2014) (internal quotation marks omitted). “A business practice is unlawful if it is
14 forbidden by any law.” K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc., 171 Cal.
15 App. 4th 939, 961 (2009) (internal quotation marks omitted). However, a breach of contract is not
16 sufficient to constitute an “unlawful” business act or practice. Shroyer v. New Cingular Wireless
17 Servs., Inc., 622 F.3d 1035, 1044 (9th Cir. 2010); Boland, Inc. v. Rolf C. Hagen (USA) Corp., 685
18 F. Supp. 2d 1094, 1110 (E.D. Cal. 2010) (“An act that breaches a contract may also breach the
19 UCL, but only when the act is unfair, unlawful o[r] fraudulent for some additional reason.”).
20
As described in the rest of this Memorandum, NAF’s Complaint has failed to allege any
21 unlawful conduct by Defendants. Absent a showing of unlawful conduct, NAF cannot satisfy the
22 unlawful prong of the UCL. See Levitt, 765 F.3d at 1136.
23
24
25
B. NAF’s Complaint does not allege any “unfair” conduct by Defendants, and
thus NAF has not satisfied the “unfair” prong of the UCL.
NAF also identifies a number of alleged actions that it contends are “unfair” under the
26 UCL. See Doc. 1, ¶ 167. Among other things, NAF claims that Defendants breached the Exhibitor
27 Agreement and the Confidentiality Agreement, and that Defendants committed trespass. Id. As
28 described in Parts VII-IX, supra, the Complaint fails to allege plausibly that Defendants breached
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1 any contracts or committed trespass. Thus, Count Nine necessarily fails to the extent that it relies
2 on these claims.
3
More generally, NAF’s unfair-prong claim relies on alleged harms to its economic interests
4 and those of its members. Where a non-consumer plaintiff invokes the “unfair” prong against
5 conduct that has harmed its economic interests, it generally must show “conduct that threatens an
6 incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because
7 its effects are comparable to or the same as a violation of the law, or otherwise significantly
8 threatens or harms competition.” Levitt, 765 F.3d at 1136 (citation and quotation marks omitted)
9 (holding that where business sued non-competitor for economic losses, plaintiff needed to show
10 “violations of antitrust principles”).
Here, the Complaint does not allege any conduct by
11 Defendants that implicates any antitrust principles. Thus, NAF cannot satisfy the “unfair” prong
12 under the UCL, and the Court should dismiss Count Nine.
13
14
15
C. NAF’s UCL claim under the “fraudulent” prong fails for the same reasons that
its Eighth Cause of Action does.
To the extent that NAF’s UCL claim relies on the “fraudulent” prong, it fails for precisely
16 the same reasons that Count Eight does. See supra Part X. To the extent that the fraudulent-prong
17 UCL claim relies on misrepresentations made to the general public, NAF fails to state a claim,
18 because it has not alleged (and cannot allege) that it actually relied on those representations. See
19 L.A. Taxi Coop., Inc. v. Uber Techs., Inc., No. 15-cv-01257-JST, 2015 WL 4397706, at *9 (N.D.
20 Cal. July 17, 2015).
To the extent that the fraudulent-prong UCL claim relies on
21 misrepresentations made to NAF, NAF cannot obtain injunctive relief, because it has not pled that
22 Defendants will make any similar false, reliance-inducing representations to NAF in the future.
23 See Frenzel v. AliphCom, Case No. 14-cv-035587-WHO, 2014 WL 7387150, at *11 (N.D. Cal.
24 Dec. 29, 2014). And NAF cannot obtain any restitution from Defendants, because Defendants did
25 not obtain any property or money from NAF. See In re Apple, 802 F. Supp. 2d 1070, 1077 (N.D.
26 Cal. 2011). Because NAF cannot obtain any relief under the “fraudulent” prong of the UCL, the
27 Court should dismiss Plaintiff’s Ninth Cause of Action.
28
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
XII.
Plaintiff’s Claim for Violation of California Penal Code § 632 Fails to State a Claim
for Relief.
Plaintiff’s Tenth Cause of Action raises a claim for unlawful recording of confidential
conversations without the consent of all participants under California Penal Code § 632. See Doc.
1, ¶¶ 179-84; see also Cal. Penal Code § 637.2 (authorizing civil suits for violations of § 632).
NAF’s Complaint fails to allege any facts showing that any allegedly recorded conversations were
“confidential,” an indispensable element of claims under § 632. Thus, the Court should dismiss
Plaintiff’s Eleventh Cause of Action.
Moreover, even if the alleged recordings had violated § 632, California law definitively
holds that subsequent disclosures of unlawfully recorded conversations do not violate § 632. Thus,
the Court should dismiss NAF’s § 632 claim to the extent that it relates to post-recording
disclosures or other conduct, including any claim to block publication of recordings.
A. The allegations in NAF’s Complaint do not give rise to a plausible inference
that the allegedly recorded conversations constituted “confidential
communications” under Penal Code § 632.
NAF’s Complaint fails to plead facts giving rise to a plausible inference that Defendants
16 have violated California Penal Code § 632. Section § 632 proscribes non-consensual recording of a
17 conversation only if that conversation constitutes a “confidential communication.” See generally
18 Cal. Penal Code § 632(a) (imposing criminal sanctions on any person who “eavesdrops upon or
19 records” any “confidential communication”). “[A] conversation is confidential under section 632 if
20 a party to that conversation has an objectively reasonable expectation that the conversation is not
21 being overheard or recorded.” Flanagan v. Flanagan, 27 Cal. 4th 766, 776-77 (2002). “[A]
22 communication is not confidential when the parties may reasonably expect other persons to
23 overhear it.” Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156, 168 (2003). “Other
24 persons” are persons other those “who listen[] with the speaker’s knowledge and intent.” Id. The
25 statute specifically provides that the category “confidential communication” “excludes a
26 communication made in a public gathering . . . or in any other circumstance in which the parties to
27 the communication may reasonably expect that the communication may be overheard or recorded.”
28
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1 Cal. Penal Code § 632(c).
2
NAF’s Complaint fails to plead facts giving rise to a plausible inference that the allegedly
3 recorded conversations fall within this definition of “confidential communications.” Indeed, the
4 lengthy Complaint fails to allege any particular circumstances of any recorded communications.
5 NAF claims that Defendants recorded unspecified conversations that took place in a large
6 conference attended by “approximately 700-850 professional attendees.” Doc. 1, ¶ 39. These
7 conferences took place in hotel exhibition halls. Id., ¶ 41, 44. Numerous outside vendors exhibited
8 at the event, including “health care product manufacturers [and] service providers.” Id., ¶ 39. (An
9 example of these exhibition booths is provided on page 26 of the Complaint.)
10
The Complaint identifies specific conversations that it contends were recorded. Doc. 1,
11 ¶¶ 70, 71. But it provides no detail whatsoever regarding where any of the purportedly recorded
12 conversations took place. See, e.g., Doc. 1, ¶¶ 69-71, 82. It says nothing about whether other
13 attendees were nearby, how close those other attendees were, who those other attendees were,
14 whether those other attendees were looking at the parties to the conversation, how loud the
15 background noise was, or how loudly the parties to the conversation were speaking. In short, the
16 Complaint provides none of the details necessary to assess whether the conversation participants
17 had “an objectively reasonable expectation that the conversation [was] not being overheard or
18 recorded.” Flanagan, 27 Cal. 4th at 776; compare De la Cerra v. Molina, 2011 WL 6187168, at *7
19 (Cal. App. Dec. 14, 2011) (unpublished) (concluding that court could not determine whether
20 conversation in coffee shop was “confidential” without knowing “how crowded the coffeehouse
21 was, how close the nearest patrons were to Molina and de la Cerra, how loudly the parties were
22 speaking or the level of background noise”).
23
Merely alleging that non-consensual recordings of conversations occurred does not state a
24 plausible claim for relief under § 632. Rule 8(a)(2) requires a plaintiff to plead fact showing “more
25 than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
26 678 (2009).
NAF has not pleaded any facts giving rise to the plausible inference that the
27 conversations were confidential. Thus, NAF’s Complaint shows nothing more than the “sheer
28
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1 possibility” that the allegedly recorded conversations were confidential, and confidentiality is an
2 essential element of a claim under § 632. Flanagan, 27 Cal. 4th at 776.
3
Instead of making the requisite allegations about the confidentiality of conversations, NAF
4 claims that all conversations occurring at NAF meetings are confidential. See Doc. 1, ¶ 176
5 (“Plaintiff and its members believed that any communication during the 2014 annual meeting in
6 San Francisco would be confidential, as defined in section 632.”). This view cannot be squared
7 with the text of § 632 or the California Supreme Court’s interpretations of the statute. If, viewed
8 objectively, the participants to a conversation should reasonably expect that the conversation may
9 be overheard by a third party, then the conversation is not confidential. Cal. Penal Code § 632(c);
10 Flanagan, 27 Cal. 4th at 776. The notion that not a single conversation at a multi-day, 85011 attendee conference (viewed objectively) could reasonably be expected to be overheard defies
12 human experience. While conversations that take place at a large event do not categorically fall
13 outside the scope of § 632, such conversations must exhibit some indicia of secrecy, such as
14 covering one’s mouth. See Cuviello v. Feld Ent., Inc., 304 F.R.D. 585, 591 (N.D. Cal. 2015)
15 (holding that conversation on sidewalk was confidential because speaker looked around to see
16 whether others were around and leaned in close to the ear of the listener, while potential
17 overhearers were across the street).
18
According to NAF, its expectation of confidentiality was reasonable because (1) all
19 attendees had executed non-disclosure agreements; (2) NAF’s security program limited conference
20 access to “NAF members and trusted others;” and (3) “the nature and the subject matter of the
21 meeting were highly sensitive.” Doc. 1, ¶ 176. None of these points supports a finding of a
22 reasonable expectation of confidentiality for absolutely every conversation that took place.
23
First, other attendees’ execution of non-disclosure agreements has no bearing on whether
24 conversations at the conference would be overheard by a third party.
The non-disclosure
25 agreements executed by conference attendees may have provided some assurance against second26 hand repetition of conversations from the conference, but they provided no assurance that other
27 attendees would not overhear conversations. The California Supreme Court has rejected expressly
28
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1 the notion that confidentiality depends on whether the participants expected that “the conversation
2 would not be divulged to anyone else.” Flanagan, 27 Cal. 4th at 773 (quotation omitted). In
3 assessing the confidentiality of a conversation, courts must “focus[] on ‘simultaneous
4 dissemination [of the conversation],’ not ‘secondhand repetition.’” Id. at 775 (quotation omitted).
5 Nothing in the non-disclosure agreements affects whether third parties could overhear
6 conversations at the meeting. See generally Docs. 1-1, 1-2. Even assuming that the non-disclosure
7 agreements limit subsequent repetition of conversations, they have no bearing on the overhearing
8 of conversations—and Flanagan decisively holds that only the latter is relevant for liablity under
9 § 632. Flanagan, 27 Cal. 4th at 776.
10
Second, limiting conference attendance to NAF members “and trusted others” again does
11 nothing to prevent these other attendees from overhearing conversations, let alone venue
12 employees and staff. Whether a third party can overhear a conversation has nothing to do with
13 whether that person is an NAF member, or whether they are “trusted.”
Even at a limited-
14 attendance event, the reasonable expectation that third parties might overhear a conversation
15 precludes the conversation from being “confidential.” See Turnbull v. Am. Broad. Cos., 2005 WL
16 6054964, at *6 (C.D. Ca. Mar. 7, 2005) (noting that where two people talked openly in a closed
17 actors’ workshop and were aware that another person was within earshot, conversation was not
18 confidential). At most, attendees’ affiliation with NAF might affect whether the person was likely
19 to repeat the conversation, a consideration that—as noted above—does not affect the
20 confidentiality analysis. See Flanagan, 27 Cal. 4th at 776. And to the extent that NAF contends
21 that all 850 conference participants were somehow participants in every conversation at the
22 conference, this would contravene the principle that the parties to the conversation include only
23 those “who listen[] with the speaker’s knowledge and intent.” Lieberman, 110 Cal. App. 4th at
24 168.
25
Third, the fact that the “nature and the subject matter of the meeting were highly sensitive”
26 does not demonstrate that every conversation at the conference was confidential. “[A]n expectation
27 of a confidential communication cannot be derived from the content of the communication for the
28
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1 purpose of this statute [i.e., § 632].” Vera v. O’Keefe, Civ. Case No. 10-cv-1422-L(MDD), 2012
2 WL 3263930, at *5 n.3 (S.D. Cal. Aug. 9, 2012). The confidentiality of a conversation depends on
3 whether it might be overheard, not whether its topic is “sensitive.”
4
For the reasons described above, NAF has failed to state a claim for breach of California
5 Penal Code § 632 upon which relief can be granted. Thus, the Court should dismiss Count Eleven
6 of NAF’s Complaint.
7
9
B. Even if the original recordings violated California Penal Code § 632, this
Section does not prohibit disclosure of unlawful recordings. Thus, NAF’s § 632
claim—including its request for injunctive relief—must be dismissed to the
extent that it relates to any post-recording conduct or disclosure.
10
Even if any alleged recordings had violated § 632, California law definitively holds that
8
11 § 632 does not prohibit the disclosure of recordings made in violation of the statute. Therefore, the
12 Court must dismiss NAF’s claim under § 632—including NAF’s request for injunctive relief—to
13 the extent that it relates to any post-recording conduct or disclosure of the alleged recordings, or
14 any damages arising therefrom.
15
By its plain terms, § 632 prohibits only “eavesdrop[ping]” and non-consensual
16 “record[ing]” of confidential communications; it says nothing about the disposition of recordings
17 made in violation of the statute. See generally Cal. Penal Code § 632(a) (imposing criminal
18 sanctions on any person who “eavesdrops upon or records” any “confidential communication”).
19 For this reason, California courts have recognized that “Penal Code section 632 does not prohibit
20 the disclosure of information gathered in violation of its terms.” Lieberman v. KCOP Television,
21 Inc., 110 Cal. App. 4th 156, 167 (2003) (emphasis added). “Although a recording preserves the
22 conversation and thus could cause greater damage to an individual’s privacy in the future, these
23 losses are not protected by section 632. Instead, section 632 protects only the speaker’s right to
24 know and control the firsthand dissemination of the conversation as it is occurring.” Kight v.
25 CashCall, Inc., 200 Cal. App. 4th 1377, 1393 (2011) (internal citation omitted); see also Coulter v.
26 Bank of Am., 28 Cal. App. 4th 923, 930 (1994) (“Section 632 prohibits recording a confidential
27 communication without consent of all parties. It says nothing about publishing the communication
28
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1 to a third party.” (emphasis in original)).
2
Thus, to the extent that NAF’s § 632 claim relates to conduct other than the making of the
3 alleged original recordings, it complains of conduct that plainly does not violate the statute. In
4 particular, none of the injunctive relief requested by NAF relates to any ongoing or future
5 violations of § 632. See Doc. 1, p. 58-59 (prayer for relief). Thus, the statute does not authorize
6 NAF’s request injunctive relief. See Cal. Penal Code § 637.2(b) (permitting injunctive relief “to
7 enjoin and restrain any violation of this chapter”).
To the extent that NAF claims damages
8 resulting from publication, see Doc. 1, ¶ 178, “these losses are not protected by section 632.”
9 Kight, 200 Cal. App. 4th at 1393.
10 XIII.
11
12
Plaintiff’s Eleventh Cause of Action for Violation of the Maryland Wiretapping and
Electronic Surveillance Act Fails to State a Claim for Relief.
Plaintiff's claim that Defendants violated the Maryland Wiretapping and Electronic
13 Surveillance Act (“the Wiretap Act”) fails to state a plausible claim because Plaintiff has identified
14 no “oral communication” protected by the statute, and because Plaintiff has no general “expectation
15 of privacy” in all communications that took place at its conferences.
16
17
A. Plaintiffs fail to identify a protected “private” oral communication.
The Wiretap Act provides, in relevant part, that “it is unlawful for any person to . . .
18 (1) [w]illfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor
19 to intercept, any wire, oral, or electronic communication.” Md. Code Ann., Cts. & Jud. Proc. § 1020 402(a). The statute further defines “[o]ral communication” for the purposes of protection under
21 this statute as “any conversation or words spoken to or by any person in private conversation.”
22 Md. Code Ann., Cts. & Jud. Proc. § 10-401(13)(i). Plaintiff fails to state a plausible claim under
23 this section because the Complaint lacks facts to support a plausible inference that any
24 conversations recorded by Defendants at Plaintiff's conferences were “private” within the meaning
25 of § 10-401 of the Wiretap Act.
26
To identify a “private conversation” protected by the Act, Maryland follows federal law in
27 determining whether a plaintiff had a “reasonable expectation of privacy in the statements” that
28
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1 were intercepted. Malpas v. State, 695 A.2d 588, 595 (Md. 1997). “We first ask whether [the
2 party] exhibited an actual, subjective expectation of privacy with regard to his statements. If we
3 answer that question in the affirmative, we then ask whether that expectation is one that society is
4 prepared to recognize as reasonable.” Malpas, 695 A.2d at 595 (quoting Katz v. United States, 389
5 U.S. 347, 361 (Harlan, J. concurring) (internal quotation marks omitted).
6
As noted above with respect to Count Ten, Plaintiff's Complaint identifies no facts of any
7 kind about allegedly illegally intercepted communications at its Maryland Conference. See supra
8 Part XII.A. However, Rule 8(a)(2) requires a plaintiff to plead facts showing “more than a sheer
9 possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
10 Without facts about specific communications, the Complaint fails to make a plausible claim that
11 some unidentified speakers “exhibited an actual, subjective expectation of privacy” with regard to
12 their statements. See Malpas, 695 A.2d at 595.
13
Moreover, even if the Complaint identified a particular recorded speaker who exhibited a
14 subjective expectation of privacy, that expectation would likely fail to satisfy the “reasonableness”
15 prong of the standard for legal protection under the Wiretap Act. It is hardly “reasonable” for
16 anyone to expect privacy in conversations with people little known to them that were conducted in
17 public at a conference attended by 700-850 people. See supra, Part XII. Given the crowded
18 milieu, any expectation of privacy is unlikely to be “reasonable.” See also Malpas, 695 A.2d 588
19 (holding that, where speaker could be overheard without assistance from listening equipment, he
20 had no reasonable expectation of privacy even in his own home). However, again, without specific
21 facts regarding particular statements, Plaintiff does not make a plausible showing on this point
22 either.
23
24
25
B. Plaintiff has no general expectation of privacy in all communications that took
place at the Maryland Conference.
Nor do the purported confidentiality agreements grant Plaintiff or conference participants a
26 generally applicable expectation of privacy with respect to all conversations conducted at the
27 conference, regardless of with whom they were conducted or under what circumstances. Indeed,
28
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1 the confidentiality agreements, by their own terms, are not so broad in scope. As set forth in Part
2 VII, the terms of that agreement comprehend only the formal presentations and seminars at the
3 conferences, not informal conversations among attendees. Thus, nothing in the confidentiality
4 agreements obliged Conference attendees to confidentiality in informal communications with one
5 another or with Conference vendors. See Doc. 1-2; supra Part VII. As noted in more detail above,
6 the confidentiality agreements are only reasonably interpreted as applying to material disseminated
7 by NAF and conference presenters, in part because it would be unreasonable to interpret the
8 agreements to prohibit all disclosure of any informal conversation among 700-850 people. Since
9 no confidentiality agreement could give Plaintiff a reasonable expectation of privacy in every
10 conversation taking place among 700-850 people over several days, while also interacting with
11 venue employees and staff, the existence of the Agreements does not grant Plaintiff blanket legal
12 protection under the Maryland Wiretap Act. The Agreements thus cannot be employed to evade
13 Plaintiff’s requirement to plead facts establishing a particular speaker’s reasonable expectation of
14 privacy in particular statements. See Iqbal, 556 U.S. at 678 (holding that plaintiff must plead facts
15 showing “more than a sheer possibility that a defendant has acted unlawfully”).
16
Likewise, the alleged “Security Policy” limiting attendees to the conference, and the fact
17 that the subjects discussed at the Conference are sensitive, do not bring Plaintiffs any closer to
18 meeting their pleading requirements. Neither the character of the speakers nor the subject of a
19 conversation has any direct bearing on a speaker’s subjective expectation of privacy or its
20 reasonableness, both of which must be determined based on the circumstances surrounding a
21 particular communication. See, e.g., Malpas, 695 A.2d 588. Therefore, they similarly do not earn
22 Plaintiff blanket protection under the Wiretap Act for all communications taking place at its
23 Conference.
24 XIV.
25
26
Count Twelve of the Complaint Fails to State a Plausible Claim for Intrusion into
Seclusion.
NAF’s Twelfth Cause of Action fails to state a claim for the common-law privacy tort of
27 intrusion into seclusion. “A privacy violation based on the common law tort of intrusion has two
28
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1 elements. First, the defendant must intentionally intrude into a place, conversation, or matters as to
2 which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a
3 manner highly offensive to a reasonable person.” Hernandez v. Hillsides, Inc., 47 Cal. 4th 272,
4 286 (2009). NAF has failed to plausibly allege either of these two elements.
First, the Complaint lacks sufficient factual allegations that could give rise to the plausible
5
6 inference that the unspecified NAF members had a reasonable expectation of privacy in the
7 allegedly recorded conversations.
The Complaint’s threadbare factual allegations contain no
8 legally relevant details necessary to determine whether the NAF members could have had a
9 reasonable expectation of privacy in the allegedly recorded conversations. “The expectation of
10 limited privacy in a communication . . . is reasonable only to the extent that the communication
11 conveys information private and personal to the declarant.” Med. Lab. Mgmt. Consultants v. Am.
12 Broad. Cos., 306 F.3d 806, 816 (9th Cir. 2002); see also Wilkins v. Nat’l Broad. Co., 71 Cal. App.
13 4th 1066, 1078 (1999) (noting that there was no intrusion into plaintiffs’ “personal lives, intimate
14 relationships, or any other private affairs”);3 RESTATEMENT (SECOND) OF TORTS, § 652A, cmt. B.
15 Here, NAF has provided no detail regarding the content of the allegedly recorded conversations,
16 making it speculative at best that they included the sort of personal or private information that
17 would support an intrusion-into-seclusion claim. See Iqbal, 556 U.S. at 678 (explaining that Rule
18 8(a)(2) requires a plaintiff to plead facts showing “more than a sheer possibility that a defendant
19 has acted unlawfully”).
These details regarding the content of the allegedly recorded conversations are essential for
20
21 several reasons. California common-law privacy torts do not cover “words and actions . . . of
22 public and general interest with which the community has a legitimate concern.” Shulman v. Grp.
23 Prods., Inc., 18 Cal. 4th 207, 208 (1998) (quotation omitted). But without allegations regarding the
24 content of the allegedly recorded conversations, Defendants and the Court can have no way of
25
3
Wilkins’s analysis of the California Penal Code § 632 claim may no longer be good law in light of
Flanagan v. Flanagan, 27 Cal. 4th 156 (2003). However, Flanagan did not undermine the analysis
27 of the common-law privacy tort at issue here.
26
28
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1 knowing whether the conversations fall within this public-interest category. In addition, as Justice
2 Breyer has aptly noted, a person has “little or no legitimate interest in maintaining the privacy” of a
3 conversation regarding his or her illegal conduct. Bartnicki v. Vopper, 532 U.S. 514, 539 (2001)
4 (Breyer, J. concurring) (emphasis in original). Without allegations regarding the content of the
5 allegedly recorded conversations, Defendants and the Court cannot determine whether the
6 conversations involved the speakers admitting to unlawful conduct that is undeserving of
7 protection.
8
Similarly, the Complaint provides little if any detail regarding “the extent to which other
9 persons had access to the subject place, and could see or hear the plaintiff . . . .” Hernandez, 47
10 Cal. 4th at 287. Courts ordinarily focus heavily on facts regarding the physical space in which the
11 alleged intrusion occurred, including “the physical layout of the area intruded upon, its relationship
12 to the workplace as a whole, and the nature of the activities commonly performed in such places.”
13 Id. at 290. The Complaint provides no information regarding where at the meetings the allegedly
14 recorded conversations occurred. Nor does the Complaint allege whether other attendees could
15 overhear the conversations. Thus, the Complaint alleges nothing more than the “sheer possibility”
16 that the allegedly recorded conversations were private.
17
Moreover, the sparse facts that do appear in the Complaint actually suggest that the
18 allegedly recorded conversations were not private at all. The unspecified NAF members allegedly
19 engaged in conversations with strangers engaged in business-related conversations. See Doc. 1,
20 ¶¶ 69-71, 82.
Speakers generally have little or no reasonable expectation of privacy in
21 conversations with complete strangers. See, e.g., Med. Lab. Mgmt. Consultants, 306 F.3d at 818
22 (noting that a plaintiff “could have no reasonable expectation of limited privacy in a workplace
23 interaction with three strangers,” especially where they were business-related communications);
24 Wilkins, 71 Cal. App. 4th at 1078 (holding that recorded conversation was not private in part
25 because conducted with strangers and among strangers).
26
Second, the Complaint fails to allege plausibly that any intrusions were highly offensive.
27 The Complaint provides no information regarding the content of the allegedly recorded
28
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1 conversations, making it wholly speculative whether a reasonable person would find their
2 recording highly offensive. And California law recognizes that an intrusion may be less offensive
3 if it relates to newsworthy matters of public concern or interest. “[T]he constitutional protection of
4 the press does reflect the strong societal interest in effective and complete reporting of events, an
5 interest that may—as a matter of tort law—justify an intrusion that would otherwise be considered
6 offensive.” Shulman, 18 Cal. 4th at 236. Without any information regarding the content of the
7 conversations, Defendants and the Court cannot determine whether the allegedly recorded
8 conversations included newsworthy matters or matters of legitimate public interest.
9 XV.
10
11
12
13
14
Count Thirteen of the Complaint Fails to State a Plausible Claim for False Light.
The Complaint also fails to state a plausible claim for the common-law privacy tort of false
light. A false-light claim requires a plaintiff to show that (1) the defendant “disclosed to one or
more persons information about or concerning [the plaintiff] that was presented as factual but that
was actually false or created a false impression about him”; (2) “the information was understood by
one or more persons to whom it was disclosed as stating or implying something highly offensive
15
that would have a tendency to injure [the plaintiff’s] reputation”; (3) the defendant acted with the
16
requisite mens rea; and (4) the plaintiff “was damaged by disclosure.” Solano v. Playgirl, Inc., 292
17
18
19
20
21
22
F.3d 1078, 1082 (9th Cir. 2002). The Complaint fails to allege facts supporting the first two
elements of a false-light claim.
First, the Complaint candidly concedes that no disclosures of the conversations allegedly
recorded at NAF conventions have actually occurred. See Doc. 1, ¶ 193. Thus, the Complaint
simply fails to allege the most important element, that is, any disclosure at all.
Moreover, the Complaint fails to allege any facts giving rise to the reasonable inference that
23
any disclosures would be “false or create[] a false impression about” any NAF members. Solano,
24
292 F.3d at 1082. NAF’s failure to allege such fundamental facts is understandable, of course,
25
26
27
28
because no disclosures have occurred.
This very problem is one of the rationales for the
constitutional prohibition against prior restraints on speech.
CONSTITUTIONAL LAW: PRINCIPLES
AND
See ERWIN CHEMERINSKY,
POLICIES 954 (3d ed. 2006) (“Inevitably, prior restraints
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1 could be imposed based on predictions of danger that would not actually materialize and thus
2 would not be the basis for subsequent punishments.”). But without any indication of how the
3 anticipated disclosure of alleged recordings might be false or misleading, Count Thirteen does not
4 provide Defendants the requisite fair notice that Rule 8 requires. See Bell Atl. Corp. v. Twombly,
5 550 U.S. 544, 555 (2007) (explaining that a complaint must “give the defendant fair notice of what
6 the claim is and the grounds upon which it rests”) (quotation and ellipsis omitted)).
7
Second, the Complaint fails to allege facts giving rise to the plausible inference that a
8 reasonable person would find highly offensive. As described in Part XIV above, California law
9 recognizes that conduct aimed at reporting facts of legitimate public interest or concern often will
10 not violate common-law privacy torts. See Shulman, 18 Cal. App. 4th at 236. Here, by failing to
11 allege the content of the allegedly soon-to-be disclosed recordings and how the anticipated
12 purported editing of those alleged recordings will affect the meaning, the Complaint fails to
13 provide Defendants or the Court an opportunity to determine whether the legitimate
14 newsworthiness of any recordings renders them non-tortious as a matter of law. Thus, Count
15 Thirteen of the Complaint fails to state a plausible claim for false-light, and the Court should
16 dismiss that claim.
CONCLUSION
17
18
For the reasons stated, Defendants the Center for Medical Progress, Biomax Procurement
19 Services, LLC, and David Daleiden respectfully request that this Court strike and/or dismiss
20 Plaintiff’s Complaint under Cal. Civ. Pro. Code § 425.16 and Rules 12(b)(1) and 12(b)(6) of the
21 Federal Rules of Civil Procedure and dissolve the unconstitutional prior restraint on Defendants’
22 freedom of speech.
23
Respectfully submitted,
24
/s/ Catherine Short
25
Catherine W. Short, Esq.; SBN 117442
26 Life Legal Defense Foundation
Post Office Box 1313
27 Ojai, California 93024-1313
Tel: (707) 337-6880
28
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Fax: (805) 640-1940
1 [email protected]
2
3
4
5
6
D. John Sauer
James Otis Law Group, LLC
231 South Bemiston Ave., Suite 800
St. Louis, Missouri 63105
(314) 854-1372
[email protected]
*Pro Hac Vice
7 Thomas Brejcha
Thomas More Society
8 19 La Salle St., Ste. 603
Chicago, IL 60603
9
(312) 782-1680
10 [email protected]
*Pro Hac Vice
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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2
3
4
5
6
Derek F. Foran (CA SBN 224569)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorney for Plaintiff NATIONAL
ABORTION FEDERATION (NAF)
7
8
9
10
11
12
13
14
Brian R. Chavez-Ochoa (CA Bar 190289)
[email protected]
CHAVEZ-OCHOA LAW OFFICES, INC.
4 Jean Street, Suite 4
Valley Springs, CA 95252
Tel: (209) 772-3013; Fax: (209) 772-3090
Attorney for Defendants, THE CENTER
FOR MEDICAL PROGRESS, BIOMAX
PROCUREMENT SERVICES, LLC, DAVID
DALEIDEN, AND TROY NEWMAN
15
UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17
18
NATIONAL ABORTION FEDERATION
(NAF)
19
20
21
22
23
24
Plaintiffs,
vs.
THE CENTER FOR MEDICAL
PROGRESS, BIOMAX PROCUREMENT
SERVICES, LLC, DAVID DALEIDEN
(aka "ROBERT SARKIS"), and TROY
NEWMAN
Defendants.
25
26
)
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 3:15-cv-03522-WHO
Judge William H. Orrick, III
JOINT STIPULATION AND [PROPOSED]
ORDER REGARDING EXTENDING
TEMPORARY RESTRAINING ORDER;
EXTENDING SCHEDULING ORDER
REGARDING DISCOVERY AND
PRELIMINARY INJUNCTION; AND
EXTENDING DEADLINE TO ANSWER
COMPLAINT
Pursuant to Civil L.R. 6-2, Plaintiff National Abortion Federation (NAF) and Defendants
27
The Center for Medical Progress, Biomax Procurement Services LLC, David Daleiden (aka
28
“Robert Sarkis”), and Troy Newman (“Defendants”) file this stipulation regarding extending the
Joint Stipulation and Proposed Order
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briefing and hearing schedule on NAF’s preliminary injunction motion, and concurrently
extending the temporary restraining order through the date of the Court’s final disposition on
NAF’s preliminary injunction motion.
WHEREAS, on July 31, 2015, NAF filed the Complaint and moved for a temporary restraining
order, order to show cause, preliminary injunction motion, and motion for expedited discovery
(Docket Nos. 1, 3, 5);
WHEREAS, on the same day, the Court granted a temporary restraining order and order to show
cause, setting a hearing for August 3, 2015 (Docket No. 15);
WHEREAS, on August 3, 2015, the Court extended the temporary restraining order to remain in
effect pending resolution of NAF’s preliminary injunction motion, granted NAF’s motion for
expedited discovery, and set a briefing and hearing schedule (Docket No. 26, 27);
12
13
WHEREAS, the parties met and conferred regarding NAF’s discovery requests and the
current scheduling order;
14
WHEREAS, the Court and the parties would benefit from an extension of the current
15
schedule to accommodate conflicts in the calendars of the witnesses subject to deposition
16
notices, to accommodate travel schedules for certain counsel of record, and to allow the parties
17
more time to engage in discovery and prepare papers in connection with NAF’s preliminary
18
injunction motion;
19
WHEREAS, both parties are amenable to extending the Court’s temporary restraining
20
order to remain in effect through the Court’s final disposition on NAF’s preliminary injunction
21
motion;
22
WHEREAS, the parties’ agreed that Defendants’ deadline for responding to the
23
Complaint be extended until 21 days after the Court’s final disposition on NAF’s preliminary
24
injunction motion;
25
WHEREAS, there have been no previous time modifications in this case;
26
NOW THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between the
27
parties, subject to the approval of the Court, that:
28
///
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2
1.
effect through the Court’s final disposition on NAF’s preliminary injunction motion; and
3
4
The Court’s temporary restraining order (Docket No. 15, 27) shall remain in
2.
The following deadlines shall apply:
Thursday, August 20
Deadline for the parties to submit a joint discovery letter
5
concerning any discovery disputes relating to Plaintiff’s
6
motion for a preliminary injunction that they are unable to
7
8
resolve.
Friday, August 21 at 4:00 pm
9
10
joint discovery letter was previously filed by the parties.
Deadline for conducting discovery relating to Plaintiff’s
Friday, September 4
11
12
motion for a preliminary injunction.
Wednesday, September 16
13
14
Deadline for Defendants’ submission of a brief opposing the
Monday, September 28
motion.
Deadline for Plaintiff’s submission of a reply brief in support
Monday, October 5
17
18
19
Deadline for Plaintiff’s submission of a brief in support of its
motion for a preliminary injunction.
15
16
Hearing on any disagreements concerning discovery if a
of the motion.
Thursday, October 8, at 4:00 Hearing on the motion.
pm
20
21 days after the Court’s final Defendants’ deadline to respond to the Complaint.
21
disposition
22
on
NAF’s
preliminary injunction motion
23
24
3.
The deadlines set in the existing Order Setting Initial Case Management Conference and
25
ADR Deadlines (Aug. 3, 2015) (Docket No. 19) be vacated, to be reset after Defendants file their
26
response to the Complaint.
27
///
28
///
Joint Stipulation and Proposed Order
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IT IS SO STIPULATED.
2
Dated August 6, 2015.
3
/s/ Derek F. Foran
LINDA E. SHOSTAK (CA SBN
64599)
[email protected]
DEREK F. FORAN (CA SBN 224569)
[email protected]
CHRISTOPER L. ROBINSON
(CA SBN 260778)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
4
5
6
7
8
9
10
11
12
13
Attorney for Plaintiff NATIONAL
ABORTION FEDERATION (NAF)
14
15
16
17
18
19
20
Respectfully submitted,
/s/ Brian R. Chavez-Ochoa
BRIAN R. CHAVEZ-OCHOA (CA Bar 190289)
[email protected]
CHAVEZ-OCHOA LAW OFFICES, INC.
4 Jean Street, Suite 4
Valley Springs, CA 95252
Tel: (209) 772-3013; Fax: (209) 772-3090
CATHERINE W. SHORT (CA Bar 117442)
LIFE LEGAL DEFENSE FOUNDATION
P.O. Box 1313
Ojai, CA 93024-1313
Tel: (707) 337-6880; Fax: (805) 640-1940
E-Mail: [email protected]
JAY ALAN SEKULOW (DC Bar 496335)
STUART J. ROTH (DC Bar 475937)
ANDREW J. EKONOMOU (GA Bar 242750)
CECILIA N. HEIL (CA Bar 165392)
CARLY F. GAMMILL (TN Bar 28217)
ABIGAIL A. SOUTHERLAND (TN Bar 022608)
JOSEPH WILLIAMS (TN Bar 033626)
AMERICAN CENTER FOR LAW & JUSTICE
201 Maryland Avenue, NE
Washington, DC 20002
Tel: (202) 546-8890
Fax: (202) 546-9309
E-Mail: [email protected]
EDWARD L. WHITE III (MI Bar P62485)
ERIK M. ZIMMERMAN (MI Bar P78026)
AMERICAN CENTER FOR LAW & JUSTICE
3001 Plymouth Road, Suite 203
Ann Arbor, MI 48105
Tel: (734) 680-8007; Fax: (734) 680-8006
E-Mail: [email protected]
21
22
23
24
25
Attorney for Defendants, THE CENTER
FOR MEDICAL PROGRESS, BIOMAX
PROCUREMENT SERVICES, LLC, DAVID
DALEIDEN, and TROY NEWMAN
26
27
28
Joint Stipulation and Proposed Order
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ORDER
2
3
Based on the foregoing stipulation,
4
IT IS SO ORDERED, as modified below:
5
1. The deadline to submit the joint discovery letter is Wednesday, August 19, 2015.
6
2. The hearing on any discovery disagreement will be on Friday, August 21, 2015 at
10:00 a.m.
7
3. The hearing on plaintiff’s motion for preliminary injunction is set for 3:00 p.m. on
Friday, October 9, 2015.
8
9
With those exceptions, all other terms and conditions of the parties’ Joint Stipulation are
approved and adopted without modification.
10
11
12
Dated: August 6, 2015
13
The Honorable Judge William H. Orrick
United States District Judge
14
15
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27
28
Joint Stipulation and Proposed Order
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UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
NATIONAL ABORTION FEDERATION,
Case No. 15-cv-03522-WHO
Plaintiff,
8
v.
9
10
CENTER FOR MEDICAL PROGRESS, et
al.,
Defendants.
United States District Court
Northern District of California
11
12
ORDER KEEPING TEMPORARY
RESTRAINING ORDER IN EFFECT
UNTIL RESOLUTION OF REQUEST
FOR PRELIMINARY INJUNCTION
Re: Dkt. No. 3, 5 and 6
On Friday, July 31, 2015, plaintiff National Abortion Federation (“NAF”) filed and I
13
granted its motion for a temporary restraining order in order to preserve the status quo since the
14
moving papers led me to conclude that NAF was likely to prevail on the merits of its claims, the
15
balance of hardships tipped in its favor, it would be likely to suffer irreparable injury absent the
16
order, and issuance of the order was in the public interest. Because the defendants did not have an
17
opportunity to respond, I set a hearing on August 3, 2015 to allow a written response and oral
18
argument. See Dkt. No. 15. Pending the hearing, I ordered that defendants were restrained and
19
enjoined from:
20
(1)
publishing or otherwise disclosing to any third party any video, audio,
photographic, or other recordings taken, or any confidential information learned, at
any NAF annual meetings;
(2)
publishing or otherwise disclosing to any third party the dates or locations of any
future NAF meetings; and
(3)
publishing or otherwise disclosing to any third party the names or addresses of any
NAF members learned at any NAF annual meetings.
21
22
23
24
25
26
Having now reviewed defendants’ arguments and declarations, and after the hearing, I
27
ORDER that the temporary restraining order remain in effect until I decide the motion for a
28
preliminary injunction.
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false identities, created a fake company, and lied to NAF in order to obtain access to NAF’s
3
annual meetings and gain private information about its members. To do so, defendants entered
4
into confidentiality agreements in which they promised not to disclose to third parties “any
5
information which [was] disclosed orally or visually” to them or to other members without NAF’s
6
consent. Dkt. No. 3-7. Defendants also did not dispute that the Exhibitor Agreement that they
7
signed, giving them access to the NAF annual meetings, states that NAF would be entitled to
8
injunctive relief in the event of a breach because monetary damages would not be a sufficient
9
remedy.
10
United States District Court
Northern District of California
Critically, the parties do not disagree about NAF’s central allegations: defendants assumed
Defendants recently revealed their true identities. They unquestionably breached their
11
agreements with NAF, apparently for the purpose of disclosing what they believe are NAF’s
12
illegal activities. NAF seeks relief from this Court because defendants have obtained confidential
13
information in violation of the confidentiality agreements and threaten to publish this information,
14
and because publication would cause irreparable injury. The evidence presented by NAF,
15
including that defendants’ recent dissemination of videos of and conversations with NAF affiliates
16
has led to harassment and death threats for the individuals in those videos, is sufficient to show
17
irreparable injury for the purposes of the temporary restraining order.
18
Defendants concede that NAF has standing on at least some of the claims in the complaint.
19
Their other arguments to defeat or narrow injunctive relief may be renewed during the argument
20
over the request for a preliminary injunction, but they appear insufficient to tip the analysis of
21
either the merits or irreparable injury in their favor. Defendants’ counsel candidly agreed that he
22
was not aware of any case that has held that a party who (1) by false pretenses gains access to
23
confidential information, (2) promises to keep the information confidential, and (3) agrees that
24
breach of his agreement would subject him to injunctive relief, may nonetheless violate that
25
agreement because of his First Amendment rights. Neither am I. That set of issues is material to
26
my analysis.
27
28
The temporary restraining order that I issued on July 31, 2015 and repeated orally at the
hearing and in the first paragraph of this Order remains in effect pending resolution of the
2
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preliminary injunction motion. A hearing on that motion is set for Thursday, August 27, 2015 at
2
4:00 p.m. NAF shall file a motion for preliminary injunction by August 19, 2015. Defendants
3
shall file a response by August 24, 2015. NAF shall file a reply by August 26, 2015.
4
5
briefing and hearing on that motion. Dkt. Nos. 5, 6. I GRANT the motion for expedited
6
discovery. The motion to shorten time is MOOT. Discovery may be served by 12:00 p.m. on
7
Wednesday, August 5, 2015. The parties may submit any discovery disputes in a joint discovery
8
letter by 12:00 p.m. on Friday, August 7, 2015. If there are disagreements, a hearing will be held
9
at 4:00 p.m. on Friday, August 7, 2015.
10
11
United States District Court
Northern District of California
NAF also filed a motion for expedited discovery and a motion to shorten time for the
12
13
IT IS SO ORDERED.
Dated: August 3, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge
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UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
11
NATIONAL ABORTION FEDERATION (NAF),
12
13
14
15
Plaintiff,
v.
THE CENTER FOR MEDICAL PROGRESS,
BIOMAX PROCUREMENT SERVICES LLC,
DAVID DALEIDEN (aka “ROBERT SARKIS”),
and TROY NEWMAN,
Case No. 3:15-cv-3522
Judge: William H. Orrick, III
TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW
CAUSE IN SUPPORT OF
PLAINTIFF’S APPLICATION FOR
TEMPORARY RESTRAINING
ORDER
16
Defendants.
17
18
19
20
21
22
23
24
25
26
27
28
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19
TO DEFENDANTS THE CENTER FOR MEDICAL PROGRESS, BIOMAX
PROCUREMENT SERVICES LLC, DAVID DALEIDEN (aka “ROBERT SARKIS”), and
TROY NEWMAN:
This matter comes before me on Plaintiff National Abortion Federation’s (NAF”) Ex
Parte Motion for a Temporary Restraining Order and for an Order to Show Cause Regarding a
Preliminary Injunction, Memorandum of Points and Authorities, and supporting papers.
Having considered the arguments and papers submitted, in order to preserve the status quo
and finding good cause based on the record before me, I GRANT NAF’s Ex Parte Motion,
pending a hearing on Monday, August 3. Based on the record before me, I find that NAF is likely
to prevail on the merits of its claims, the balance of hardships tips in its favor, NAF would be
likely to suffer irreparable injury, absent an ex parte temporary restraining order, in the form of
harassment, intimidation, violence, invasion of privacy, and injury to reputation, and the
requested relief is in the public interest.
YOU ARE HEREBY ORDERED TO SHOW CAUSE on Monday, August 3, 2015 at
4:00 p.m., before the Honorable William H. Orrick, at 450 Golden Gate Avenue, San Francisco,
CA 94102, Courtroom 2, why you, your officers, agents, servants, employees, and attorneys, and
any other persons who are in active concert or participation with you, should not be enjoined and
restrained from engaging in, committing, or performing, directly and indirectly, any and all of the
following acts:
20
(1)
publishing or otherwise disclosing to any third party any video, audio,
photographic, or other recordings taken, or any confidential information learned, at
any NAF annual meetings;
(2)
publishing or otherwise disclosing to any third party the dates or locations of any
future NAF meetings;
(3)
publishing or otherwise disclosing to any third party the names or addresses of any
NAF members learned at any NAF annual meetings; and
(4)
attempting to gain access to any future NAF meetings.
21
22
23
24
25
26
27
Pending hearing on the above Order to Show Cause you, your officers, agents, servants,
28
employees, and attorneys, and any other persons who are in active concert or participation with
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you ARE HEREBY RESTRAINED AND ENJOINED from:
2
(1)
publishing or otherwise disclosing to any third party any video, audio,
photographic, or other recordings taken, or any confidential information learned, at
any NAF annual meetings;
(2)
publishing or otherwise disclosing to any third party the dates or locations of any
future NAF meetings; and
(3)
publishing or otherwise disclosing to any third party the names or addresses of any
NAF members learned at any NAF annual meetings.
3
4
5
6
7
8
NAF shall not be required to post a bond for issuance of this Order.
9
This Order and supporting papers must be served on Defendants as soon as possible, but
10
no later than August 1, 2015. Any response or opposition to this Order to Show Cause must be
11
filed and served on NAF’s counsel no later than August 3, 2015 at 12:00 p.m.
12
13
14
15
IT IS SO ORDERED.
Dated: July 31, 2015
By:
16
17
18
Honorable William H. Orrick, III
United States District Court Judge
19
20
21
22
23
24
25
26
27
28
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2
3
4
5
6
7
LINDA E. SHOSTAK (CA SBN 64599)
[email protected]
DEREK F. FORAN (CA SBN 224569)
[email protected]
CHRISTOPHER L. ROBINSON (CA SBN 260778)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Plaintiff
NATIONAL ABORTION FEDERATION
8
9
UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11
12
NATIONAL ABORTION FEDERATION (NAF),
Plaintiff,
13
14
Case No.
COMPLAINT FOR INJUNCTIVE
RELIEF AND DAMAGES
v.
JURY TRIAL DEMANDED
15
16
THE CENTER FOR MEDICAL PROGRESS,
BIOMAX PROCUREMENT SERVICES, LLC,
DAVID DALEIDEN (aka “ROBERT SARKIS”),
and TROY NEWMAN,
17
Defendants.
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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National Abortion Federation (“NAF” or “Plaintiff”) brings this action against The Center
2
for Medical Progress, Biomax Procurement Services, LLC, David Daleiden (aka “Robert
3
Sarkis”), and Troy Newman (“Defendants”):
4
5
INTRODUCTION
1.
This case is about an admitted, outrageous conspiracy to defraud, carried out by
6
extremist anti-abortion activists against NAF and its constituent members, and perpetrated for the
7
purpose of intimidating and harassing providers of abortion care services to women, and to end
8
access to reproductive health services in America. Defendants The Center for Medical Progress
9
(“CMP”), David Daleiden, Troy Newman and individuals acting in concert with them conspired
10
to defraud and did defraud NAF by setting up a fake company (Defendant “Biomax Procurement
11
Services”), which held itself out as a legitimate fetal tissue procurement organization. Daleiden
12
and his cohorts pretended to be officers and employees of their fake company, Biomax
13
Procurement Services. They assumed false identities, used fake driver’s licenses and approached
14
NAF in order to gain access to its annual meetings. Using their fake names and identities, they
15
signed agreements with NAF, agreements designed to protect NAF members from exactly the
16
type of anti-abortion harassment that is the subject of this lawsuit, in which Defendants among
17
other things promised that they (1) would not make video or audio recordings of any meetings or
18
discussions at NAF’s conferences; (2) would only use information learned at these meetings to
19
help enhance the quality and safety of services provided by NAF members; and (3) would not
20
disclose information learned at NAF’s conferences to any third party without first obtaining
21
NAF’s consent. Defendants’ intentional intrusion upon NAF’s privacy, and the privacy of its
22
members, is highly offensive to a reasonable person in light of the malice and oppression
23
underlying Defendants’ motives, and the history of violence, harassment and oppression
24
perpetrated by Defendants towards NAF members over time.
25
2.
Defendants have now admitted that Biomax Procurement Services was a sham,
26
and have revealed that the express written promises Daleiden and his co-conspirators made to
27
NAF were false when made. Daleiden publicly admitted in interviews with Fox News that
28
Biomax Procurement Services was a bogus company that misrepresented its identity and purpose
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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in order to gain access to abortion providers and their facilities, including NAF’s confidential
2
annual meetings. He has publicly boasted about the size and scope of the conspiracy, which he
3
refers to as the “Human Capital Project,” and has admitted outright that he used fake “actors” to
4
infiltrate providers of abortion care (including numerous institutional and individual NAF
5
members) for a period of three years. This elaborate scheme was explicitly designed as an attack
6
on women’s reproductive rights – Daleiden stated goal is to end safe access to reproductive health
7
services in the United States, and discredit lawful fetal tissue donation programs.
8
9
3.
To that end, on July 14, 2015, and again on July 21, 2015, Defendants released
highly misleading videos, the first of which contains numerous express references to NAF’s
10
annual meetings, and in both tapes numerous individual NAF members are identified by name.
11
Defendants claim to have thousands of hours of such videotape. Defendants released yet another
12
heavily edited video on July 28, 2015, a so-called “web-series” that contains yet more misleading
13
clips. Some of the footage on this third video was clearly taken in medically sensitive clinical
14
areas, displaying a flagrant and gross disrespect for patient confidentiality. Defendants released a
15
fourth misleading video on July 30, 2015. Their stated purpose is to release dozens upon dozens
16
of hours of edited videotape in the days and months to come, at a rate of one video per week.
17
Their illegal and misleading videotaping campaign – which they perpetrated by fraudulently
18
infiltrating NAF member organizations and NAF’s annual meetings, among other acts – is a
19
calculated effort by Defendants to demonize and intimidate NAF members in the national media
20
without any regard for NAF members’ safety, security, and privacy, and to discredit legal fetal
21
tissue donation programs that advance life-saving medical research.
22
4.
Abortion is one of the safest and most commonly provided medical procedures in
23
the United States. Many women seeking safe, legal abortion care appreciate the opportunity to
24
further medical research through tissue donation. This research has the potential to help millions
25
of Americans suffering from diabetes, Parkinson's, Alzheimer’s, muscular dystrophy, leukemia
26
and other serious medical conditions. There is no financial gain for women or health care
27
providers involved in tissue donation.
28
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5.
Despite the legality of abortion care, abortion providers are relentlessly targeted by
2
anti-abortion extremists. Many of the physicians and clinic staff at NAF meetings have been
3
stalked, threatened, and intimidated, including being picketed at their homes, churches, and their
4
children’s schools. Some attendees have had death threats made against them, and bomb threats
5
made against their clinics. NAF members who attend NAF meetings have had their names put on
6
threatening “wanted” posters and websites featuring their photos and personal information that
7
are intended to incite violence against them. Given the hostile climate and the history of violence,
8
some NAF members go to great lengths to preserve their privacy and identity. Many NAF
9
members have security protocols in place to try and protect the identity of their physicians. This
10
may entail not having the doctors enter the building wearing scrubs, driving a different way to the
11
clinic each day, and for some wearing disguises when entering and exiting facilities. Some wear
12
bulletproof vests to work every day. A number of NAF members try to remain under the radar in
13
their communities, and may not speak publicly about their work out of fear for their personal
14
safety or the safety of their families.
15
6.
The most important role of NAF as a membership organization is the
16
responsibility to protect the safety and security of NAF members. A critical aspect of this duty is
17
to protect attendees at NAF’s annual meetings and provide a safe space for them to collaborate
18
and learn the latest developments in all aspects of abortion care, and advance this field of
19
medicine. NAF meetings provide essential accredited continuing medical education and training,
20
and bring together approximately 700-850 abortion providers, researchers, and advocates. Many
21
of the attendees are high-profile targets of anti-abortion extremists. NAF’s annual meetings are
22
one of the only places where abortion providers can come together to learn about the latest
23
research in the field and network without fear of harassment or intimidation. As one recent
24
meeting attendee said, “It is great to be in a place where I can say ‘abortion’ out loud and be
25
supported.” The recent security breaches at NAF’s 2014 and 2015 annual meetings have
26
negatively impacted the organization and the membership, to the point where members have
27
reported that they feel unsafe as a result of attending the NAF meetings. NAF members need to
28
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feel and be safe at the meetings and protected from those who wish to do them harm. This is a top
2
priority for NAF as a membership organization.
3
7.
According to published reports the federal government is currently being urged to
4
launch its own investigation into Defendants’ conspiracy, including whether CMP committed tax
5
fraud. Moreover, on July 24, 2015, California Attorney General Kamala Harris announced that
6
she was opening an investigation into Defendants’ conspiracy and scheme to defraud and mislead
7
to determine if criminal charges should be brought. NAF now brings this civil action in order to
8
mitigate the severe and irreparable consequences of Defendants’ illegal activities on the safety,
9
security, and privacy of NAF, its staff, and its members, and to hold Defendants responsible for
10
their reprehensible, admitted fraud.
11
12
PARTIES
8.
National Abortion Federation: Founded in 1977, Plaintiff NAF is a 501(c)(3)
13
not-for-profit organization incorporated in Missouri and headquartered in Washington, D.C. It is
14
the professional association of abortion providers. It takes no public funding. It is supported by
15
member dues, meeting fees, individual contributions, and foundation support. NAF is an
16
accredited charity with the Better Business Bureau, has earned the Independent Charities of
17
America’s Seal of Excellence, and is one of the top 5 pro-choice organizations on
18
Philanthropedia. Its mission is to ensure safe, legal, and accessible abortion care, which promotes
19
health and justice for women. NAF members include individuals, private and non-profit clinics,
20
Planned Parenthood affiliates, women’s health centers, physicians’ offices, and hospitals who
21
together care for half the women who choose abortion in the U.S. and Canada each year. Among
22
other things, NAF:
23
24
25
26
27
28

Sets the standards for quality abortion care and develops ethical principles for
abortion providers;

Provides resources for woman seeking safe abortion care;

Develops groundbreaking accredited continuing medical education and
training programs for health care professionals; and

Protects providers and patients from the everyday reality of anti-abortion
intimidation, threat, and violence.
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9.
NAF has suffered, and continues to suffer, financial and other hardships because it
2
has had to divert resources from the association’s normal activities in order to combat
3
Defendants’ conspiracy to defraud, and to educate and inform members, patients, political
4
officials and the public of the fraud and lies perpetrated by Defendants.
5
10.
The Center for Medical Progress: On information and belief, Defendant CMP is
6
a charitable trust based in Irvine, California. Its Articles of Incorporation – filed with the
7
California Secretary of State – states that CMP is a “nonpartisan” organization and that “no
8
substantial part of the activities of the Corporation shall consist of carrying on propaganda, or
9
otherwise attempting to influence legislation.” Until recently, it described itself on its website as
10
a nonprofit “dedicated to informing and educating both the lay public and the scientific
11
community about the latest advances in regenerative medicine, cell-based therapies, and related
12
disciplines” (this description was recently removed). It claims tax-exempt status with the IRS by
13
labeling itself as a not-for-profit under the IRS’s category for “Diseases, Disorders, Medical
14
Disciplines: Biomedicine, Bioengineering.” A separate IRS category applies to anti-abortion
15
groups, and in reality, that is exactly what CMP is. It is backed and funded by known anti-choice
16
extremists.
17
11.
As described in filings with the California Secretary of State, CMP’s three
18
registered officers are David Daleiden (CEO), Albin Rhomberg (CFO), and Troy Newman
19
(Secretary). According to published reports, Daleiden previously worked as “Director of
20
Research” for the discredited anti-abortion group Live Action, and according to those same
21
reports, over the last eight years he has gained access to Planned Parenthood facilities under false
22
pretenses, taping staff and even patients without their knowledge on 65 occasions (this is separate
23
and apart from his latest fraud on NAF). He was banned from Pomona College’s campus for
24
attempting to videotape a Planned Parenthood of Los Angeles speaker. Daleiden has stated
25
publicly that he considers James O’Keefe – the notorious video provocateur whose illegal
26
videotaping campaign brought down the liberal community organizing group Acorn – a “friend.”
27
28
12.
Troy Newman is the President of the extremist anti-abortion group Operation
Rescue, the discredited organization that harassed NAF member Dr. George Tiller for a decade
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until, according to published reports, an individual who donated thousands of dollars to Operation
2
Rescue and received specific information from Operation Rescue about Dr. Tiller’s whereabouts,
3
murdered Dr. Tiller in 2009 in his church in Wichita, Kansas. In 2003, Newman issued a press
4
release claiming that the murder of another abortion doctor, Dr. John Britton, was “justifiable
5
defensive action.” Newman is apparently proud of his role in the conspiracy that is at the heart of
6
this lawsuit. In fact, an article published by LifeNews.com in the wake of the videotape releases
7
stated that “Operation Rescue President Troy Newman serves on the Board of Daleiden’s Center
8
for Medical Progress. During this investigation, Newman advised Daleiden, providing
9
consultation services and material support.” And Operation Rescue’s website boasts that the
10
conspiracy that is the subject of this lawsuit – the so-called “Human Capital Project” – was
11
conducted “in consultation with Operation Rescue.”
12
13.
Albin Rhomberg, like Daleiden and Newman, is also a known anti-abortion
13
extremist who, according to published reports, regularly shows up to scream at and harass women
14
attempting to gain access to Planned Parenthood facilities in Sacramento. In 1991, he was
15
arrested for disrupting a religious service held in honor of Governor Pete Wilson, claiming it was
16
“sacrilegious” for a Catholic Cathedral to hold a nondenominational service for a pro-choice
17
politician.
18
14.
In short, far from being an organization dedicated to “Medical Progress,” CMP is
19
nothing more than a front for dangerous extremists whose sole aim is to end safe and legal access
20
to abortion care in the United States. As described below, this organization – including its
21
individuals and backers – is behind Biomax and the fraud perpetrated on NAF.
22
15.
Biomax Procurement Services, LLC: Defendant Biomax Procurement Services,
23
LLC (“Biomax”) is a California limited liability company headquartered in Norwalk, California.
24
Biomax was formed on October 11, 2013, and held itself out as a legitimate tissue procurement
25
organization. In reality, the company was a sham, formed by CMP, Daleiden and others in order
26
to embark on a campaign of corporate espionage and fraud that is the subject of this lawsuit.
27
28
16.
David Daleiden: Defendant David Daleiden is an individual who on information
and belief resides in Yolo County, California. As detailed above, he is a known anti-abortion
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extremist with ties to the discredited anti-abortion group Live Action. Using the fake name
2
“Robert Daoud Sarkis,” he held himself out as Procurement Manager and Vice President of
3
Operations for Biomax in order to fraudulently gain access to NAF’s annual meetings, and to
4
otherwise perpetrate the wrongdoing that is the subject of this lawsuit.
5
17.
Troy Newman: Defendant Troy Newman is an individual who on information
6
and belief resides in Wichita, Kansas (where Operation Rescue is headquartered). As detailed
7
above, Newman is a dangerous extremist who operates the discredited anti-abortion group
8
Operation Rescue and is associated with Live Action. Not only is Newman the Secretary of CMP
9
– according to published reports, Newman and Operation Rescue provided “consultation services
10
11
and material support” to Daleiden and the other co-conspirators.
18.
Unnamed Co-Conspirators Who Participated in Defendants’ Conspiracy to
12
Defraud: Daleiden, Newman, and CMP did not act alone. As articulated more fully below,
13
other individuals assumed fake names and identities and posed as officers and employees of
14
Biomax in order to defraud NAF. Biomax’s supposed CEO assumed the fake name “Susan
15
Tennenbaum.” Biomax’s fake CEO even set up a phony Facebook page, where her “likes”
16
include Hillary Clinton, The Rachel Maddow Show, and Stem Cell Research. Her supposed
17
assistant assumed the fake name “Brianna Allen.” In connection with registering Biomax for
18
NAF’s annual meetings in 2014 and 2015, “Allen” sent numerous emails to NAF staff using a
19
fake “@biomaxps.com” email address, and held Biomax out as a company engaged in “biological
20
specimen procurement” and “stem cell research.” “Rebecca Wagner” held herself out as a
21
Contract Administrator for Biomax, and “Adrian Lopez” claimed to be Biomax’s “Procurement
22
Technician.”
23
19.
These individuals, using their fake identities and mocked up driver’s licenses,
24
approached NAF and held Biomax out as a legitimate fetal tissue procurement organization
25
whose purpose was consistent with that of NAF’s (i.e., to enhance the quality and safety of
26
services provided by NAF members). But the exact opposite was true. In order to gain access to
27
NAF’s annual meetings, they then signed agreements with NAF promising not to record video or
28
audio tape, to only use information learned at NAF’s national meetings to enhance the quality and
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safety of services provided by NAF members, and not to disclose any information learned at
2
NAF’s annual meetings to any third parties. All of these promises were false and fraudulent
3
when they were made. The foregoing individuals, among others, were knowing and willful
4
participants in the conspiracy to defraud NAF and harm the organization and its constituent
5
members.
6
20.
Alter Egos: NAF is informed and believes and on that basis alleges that there
7
exists, and at all times herein mentioned there existed, a unity of interest and ownership between
8
Defendants CMP, Biomax, David Daleiden, Troy Newman, and unnamed co-conspirators,
9
including, without limitation, “Susan Tennenbaum,” “Brianna Allen,” “Rebecca Wagner,” and
10
“Adrian Lopez,” such that any individuality and separateness between these Defendants have
11
ceased. CMP, Daleiden, Newman, and unnamed co-conspirators “Tennenbaum” and “Allen”
12
among other things, established Biomax as a fake company for the purpose of perpetrating a fraud
13
on NAF, Planned Parenthood, and providers of abortion care. Defendants and unnamed co-
14
conspirators have at all times exercised dominion and control over Biomax, and have acted with
15
total disregard for the separate legal status of Biomax in an attempt to defraud NAF. Adherence
16
to the fiction of the separate existence of Biomax and CMP as separate entities distinct from each
17
other, Daleiden, and the unnamed co-conspirators, would permit an abuse of the corporate
18
privilege and would sanction fraud and promote injustice.
19
20
JURISDICTION AND VENUE
21.
This Court has subject matter jurisdiction over this action pursuant to 18 U.S.C.
21
§ 1964 (action arising under the Racketeer Influenced and Corrupt Organizations Act) and 28
22
U.S.C. § 1331 (federal question jurisdiction). This Court also has subject matter jurisdiction over
23
this action pursuant to 28 U.S.C. § 1332 (diversity jurisdiction) and 28 U.S.C. § 1367
24
(supplemental jurisdiction). Specifically, every Defendant is a citizen of a different state than
25
Plaintiff NAF. See 28 U.S.C. § 1332(a)(1). The amount in controversy, which, as further
26
detailed below, includes statutory fees for violation of California Penal Code § 637.2 ($5,000 per
27
violation), attorney fees as authorized by the parties’ written agreements, and harm to NAF based
28
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on Defendants’ fraudulent and criminal conduct, far exceeds $75,000 exclusive of interest and
2
costs.
3
22.
Defendants CMP, Biomax, and David Daleiden are subject to personal jurisdiction
4
in this District because these Defendants: (1) are either based in, incorporated in, or reside in the
5
state of California; and (2) have conducted business and/or purported to conduct transactions
6
within this District, and such conduct has caused injury to Plaintiff in this District. Defendants
7
CMP, Biomax, David Daleiden and Troy Newman are subject to personal jurisdiction in
8
California because they have directed, participated in and provided material support for a scheme
9
to deceive Plaintiff and its members within California. Each Defendant has actively participated
10
in the conspiracy to defraud Plaintiff with the intent to injure Plaintiff and its members within
11
California.
12
23.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because
13
Defendants’ transactions in this District constitute a substantial part of the events giving rise to
14
Plaintiff’s complaint, and because Plaintiff has suffered harm in this District as a result of
15
Defendants’ transactions. Specifically, NAF held its annual meeting at the Westin St. Francis in
16
San Francisco in April 2014. Defendants came to San Francisco, fraudulently presented
17
themselves as officers and employees of a legitimate tissue procurement organization,
18
fraudulently signed written agreements to not make any recordings and to only use information
19
learned at the conference to enhance the quality and safety of abortion care, and promised not to
20
disclose information learned at NAF’s conferences to third parties. Based on these fraudulent
21
representations and written agreements, they gained admittance to NAF’s annual meetings,
22
whereupon they set up a fake booth replete with fake signage and brochures, all in order to dupe
23
NAF members, who believed they were in a safe and harassment-free environment, into talking to
24
them. They perpetrated their fraud, and signed the agreements that are at issue in this case, in this
25
District. Accordingly, venue is proper here.
26
27
28
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2
3
FACTUAL ALLEGATIONS
A.
The History of Violence Against Providers of Abortion Care.
24.
The outrageous nature of Defendants’ conspiracy to defraud in this matter – and
4
the harm facing NAF members if Defendants make good on their threat to release more
5
selectively edited videotapes – takes place amidst a backdrop of violence and intimidation
6
perpetrated against NAF members. Since the 1973 Roe v. Wade Supreme Court decision
7
legalizing abortion, there has been an organized campaign by anti-abortion extremists which has
8
resulted in escalating levels of violence against women’s health care providers. In an attempt to
9
stop lawful abortion, anti-abortion extremists have chosen to take the law into their own hands.
10
What began as peaceful protests with picketing moved to harassing clinic staff and patients as
11
they entered clinics and eventually escalated to blockading clinic entrances.
12
25.
This foundation of harassment led to violence, with the first reported clinic arson
13
in 1976 and a series of bombings in 1978. Arsons and bombings have continued until this day.
14
Anti-abortion extremists have also used chemicals to block women’s access to abortion,
15
employing butyric acid to vandalize clinics and sending anthrax threat letters to frighten clinic
16
staff and disrupt service.
17
26.
In the early 1990s, anti-abortion extremists concluded that murdering providers
18
was the only way to stop abortion. The first provider was murdered in 1993. Since then, there
19
have been seven subsequent murders and seventeen attempted murders of clinic staff and
20
physicians, several of which occurred in their own homes. In 2009, according to published
21
reports, NAF member Dr. George Tiller was shot and killed in his church in Wichita, Kansas by
22
an individual who donated at least a thousand dollars to Operation Rescue and received specific
23
information from Operation Rescue about Dr. Tiller’s whereabouts. Before his assassination,
24
Dr. Tiller had been the subject of a relentless campaign of harassment and intimidation.
25
According to published reports, Bill O’Reilly of Fox News’ “The O’Reilly Factor” had discussed
26
Dr. Tiller on no fewer than 28 episodes in the four years leading up to his murder, vilifying him
27
as “Tiller the Baby Killer” and accusing him of being guilty of “Nazi stuff.” In the wake of
28
Dr. Tiller’s murder, several editorial articles brazenly came out in support of his murder. Jacob
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Sullum, for example, a senior editor at Reason magazine and a nationally syndicated columnist
2
whose work has reportedly appeared in the Wall Street Journal, USA Today, the New York Times,
3
the Los Angeles Times, and the San Francisco Chronicle, published an article the day after Dr.
4
Tiller’s death entitled, “Why Is Killing Abortionists Wrong?” Mr. Sullum argued in his article
5
that “if you honestly believe abortion is the murder of helpless children, it’s hard to see why using
6
deadly force against those who carry it out is immoral.”
7
27.
NAF has compiled statistics on violence that abortion providers face, based on
8
reports from member clinics, the news media, law enforcement and other pro-choice
9
organizations, and those statistics are staggering:
10
11
NAF Violence and Disruption Statistics (1977-2014)
Type of Incident
Number
12
Murder
8
13
Attempted Murder
17
Bombing
42
14
Arson
182
15
Attempted Bombing/Arson
99
16
Assault & Battery
199
Butyric Acid Attacks
100
Anthrax/Bioterrorism
663
Kidnapping
4
19
Stalking
554
20
Death Threats
429
Invasion
400
17
18
21
Vandalism
1507
22
Trespassing
2560
23
Burglary
184
Hate Mail/Harassing Calls
16,301
Email/Internet Harassment
626
24
25
26
27
Hoax Device/Suspicious
Package
188
Bomb Threats
662
Obstruction
726
28
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Clinic Blockades
801
2
Arrests for Clinic Blockades
33,839
3
Total
60,091
4
28.
While these reported figures are shocking, the actual number of incidents of
5
violence and harassment perpetrated against abortion providers is likely much higher. NAF only
6
began tracking incidents of trespassing in 1999 and email harassment in 2002, and any incidents
7
of violence against abortion providers ruled inconclusive or accidental are not included in the
8
foregoing statistics. The words of one NAF member perfectly describe the impact of caring for
9
women in this climate:
10
“[Abortion providers] deal with intimidation and harassment from
anti-abortion extremists every single day. We are threatened
verbally and physically. Protestors picket us at our homes. They
harass our families. We spend much of our time with the police,
FBI, politicians, picketers, protestors or bomb squads and the media
that follow them. We spend more money on security than we do on
medical equipment. Our lives are filled with enormous stress and
anxiety. It is no wonder that many of the doctors, nurses and other
health care professionals who chose to provide abortion care, have
left the field.”
11
12
13
14
15
16
17
18
B.
Defendants’ Ongoing Conspiracy to Defraud Is Placing Providers of Abortion Care
at Risk.
29.
Given the unique risks of violence, intimidation, and targeting by anti-abortion
19
extremists, abortion providers whose images and names are blasted across the internet through the
20
tactics that Defendants are employing face grave threats to their and their families’ safety. But
21
Defendants have no concern for the safety of NAF members. They have already released four
22
heavily edited and misleading videotapes in an attempt to discredit abortion providers and shut
23
down public funding for Planned Parenthood.
24
30.
Dr. Deborah Nucatola, Senior Director of Medical Services for Planned
25
Parenthood Federation of America (“PPFA”), was Defendants’ first victim. PPFA is itself an
26
organizational member of NAF. On Tuesday, July 14, 2015, Defendants released a video of a
27
Biomax agent (on information and belief, Daleiden) talking with Dr. Nucatola over lunch at a
28
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restaurant in California on July 25, 2014. Under California law, purposely taping a confidential
2
discussion without the subject’s consent is a crime. Cal. Penal Code § 632.
3
4
5
31.
“selling” fetal tissue, when in fact the opposite was true. Here are just some examples:

During the taped meeting Dr. Nucatola expressly stated that “nobody
should be selling tissue. That’s just not the goal here.” This statement was
omitted by Defendants from their excerpted tape.

Ten times during the conversation, Dr. Nucatola said Planned Parenthood
would not sell tissue or profit in any way from tissue donations. All ten
instances were cut out of the video released by the Defendants.

At one point, Dr. Nucatola stated that reimbursement costs for a tissue
specimen could range from $30 to $100. This statement was immediately
clarified by Dr. Nucatola, who explained that the reimbursement amount
could only be based on the clinic’s costs, which is lawful. Dr. Nucatola
explained: “It just has to do with space issues, are you sending someone
there who’s going to be doing everything, is there shipping involved, is
somebody going to have to take it out… [I]t’s really just about if anyone
were ever to ask them, well what do you do for this $60, how can you
justify that? …. So it needs to be justifiable.” This important passage was
omitted entirely by Defendants in their effort to smear lawful tissue
donation programs and Dr. Nucatola.

Dr. Nucatola repeatedly stated that Planned Parenthood affiliates do not
profit from tissue donation. For example, she says: “To them, this is not a
service they should be making money from, it’s something they should be
able to offer this to their patients, in a way that doesn’t impact them”;
“affiliates are not looking to make money by doing this. They’re looking
to serve their patients and just make it not impact their bottom line”; “we’re
not looking to make money from this, our goal is to keep access available”;
and “this is not a new revenue stream that affiliates are looking at, this is a
way to offer the patient the service that they want, do good for the medical
community and still have access.” Not a single one of these comments was
included in Defendants’ excerpted and misleading video. They were
purposely cut to create the false impression that Dr. Nucatola was saying
the exact opposite of what she actually said.

Nearly all of Dr. Nucatola’s references to “tissue donation” are deleted
from the tape.

The video was cut to convey the impression that nearly all Planned
Parenthood affiliates have tissue donation programs. To the contrary, just a
small number of affiliates have such programs, to help women and families
who wish to donate tissue to advance life-saving medical research.
32.
But the damage Defendants clearly intended to inflict on Dr. Nucatola’s reputation
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Defendants selectively edited the tape to make it look as if Dr. Nucatola was
25
26
27
was already done. Within an hour and a half of the posting, Dr. Nucatola was forced to shut
28
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down her Twitter account. Inflammatory comments on right-wing blogs and websites directed to
2
Dr. Nucatola have since proliferated. Comments like “evil,” “vile,” “inhuman,” a “ghoul,” a
3
“murderer of babies,” that “she deserves everything she has coming to her” and that she will
4
“suffer for eternity in a roasting pit” are commonly directed to her.
5
33.
The same is true with respect to the second victim of Defendants’ unlawful
6
conduct, Dr. Mary Gatter, Medical Director for Planned Parenthood Los Angeles. As noted
7
above, Planned Parenthood Federation of America is itself an organizational member of NAF.
8
On Tuesday, July 21, 2015, Defendants released a second surreptitiously taken videotape that
9
describes Dr. Gatter as the “President of the Planned Parenthood Medical Directors Council,”
10
with the video edited to make it appear as if Dr. Gatter was discussing selling fetal tissue. But in
11
the unedited version of the video, Dr. Gatter states clearly that any tissue donation program would
12
have to comply with federal law: “[I]t’s absolutely a requirement that we use only the official
13
federal government form for tissue donation, that we don’t modify it in any way.” She also
14
explained in the unedited version of the video that tissue donation was not about profit, but “about
15
people wanting to see something good come out” of their situations, “they want to see a silver
16
lining….” These and other highly relevant statements were omitted by Defendants from the
17
selectively excerpted, misleading tape that they released to the public.
18
34.
Once again, however, the damage was done before the truth could be told.
19
Dr. Gatter has since been called a “baby butcher,” “evil,” and “a vicious demonic force” who
20
deserves “no mercy” and “the hangman’s noose.” She and Dr. Nucatola have been described
21
online as “demons,” and they have both been compared to Adolf Hitler and Joseph Mengele.
22
35.
The same pattern repeated itself with the release of Defendants’ third illegal
23
videotape on July 28, 2015, a so called “web-series” that contains still more misleading video
24
clips of Dr. Nucatola and Dr. Gatter. This third release also illustrates the lengths to which
25
Defendants will go: Some of the footage was clearly filmed in medically sensitive areas inside a
26
clinic, showing a flagrant disregard for patient privacy and confidentiality. On information and
27
belief, some of the footage was also taken at a national conference hosted by Planned Parenthood
28
in Miami in 2014.
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36.
The pace at which Defendants are releasing selectively edited and misleading
2
videos is increasing. On July 30, Defendants released a fourth videotape. Like the prior videos, it
3
has been selectively edited to mislead viewers as to the content of the recorded conversations, and
4
to portray the clinician in a false light. On information and belief, released footage was taken at a
5
national conference hosted by Planned Parenthood in Miami in 2014.
6
37.
Following the release of these videos, anonymous internet posters have leveled
7
death threats against Dr. Nucatola on right-wing internet comment threads: “I’ll pay ten large to
8
whomever kills Dr. Deborah Nucatola. Anyone go for it.” The poster followed that up with the
9
following: “Dr. Deborah Nucatola is a monster, worse than Dr. Kevorkian worse than the
10
terrorists, worse than the devil himself. Dr. Deborah Nucatola should die, today. Earth does not
11
deserve her.” The same poster is also personally threatening to murder the executive of a lawful
12
tissue procurement organization named in the Nucatola video, stating that the CEO of
13
StemExpress, a legitimate tissue disposal company “is a death-profiteer” and “should be hung by
14
the neck using piano wire and propped up on the lawn in front of the building with a note
15
attached….” The person posting went on to identify where the CEO lives and stated: “I’m going
16
there…. I’ll pay ten grand to whomever beats me to [CEO]…. [CEO] must die to save the
17
innocents.”
18
38.
Defendants’ brutally dishonest attacks on legitimate, life-saving practices
19
regarding lawful tissue donation a campaign to target and harass individual abortion providers,
20
and to trash their professional reputations. The reputational harm and the physical danger that
21
NAF members and other abortion providers face in the event that even more selectively edited,
22
misleading videos are released – as Defendants have promised to do – is obvious and speaks for
23
itself.
24
C.
25
NAF Annual Meetings and Its Concern for the Safety and Privacy of Its Members.
39.
One of NAF’s most important events is its annual meeting, which takes place over
26
the course of four days and is held in a different location each year. NAF has been holding its
27
annual meetings since 1977. Companies that apply to exhibit at NAF’s annual meetings include
28
health care product manufacturers, service providers, and reproductive rights advocates.
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Attendees at NAF’s annual meetings include clinicians, facility administrators, and counselors.
2
Attendees also include researchers, educators and thought leaders in the pro-choice field, who
3
have long-standing commitments to health care, women’s rights, and reproductive choice. NAF
4
also provides an ongoing program of accredited continuing medical education at its annual
5
meetings, covering all aspects of safe and ethical abortion care. The annual meeting draws
6
approximately 700-850 professional attendees each year.
7
40.
Precisely because attendees of NAF’s annual meetings represent the exact
8
population that is the target of violence and intimidation perpetrated against abortion providers
9
described above, NAF has security measures in place that are not common at other conferences.
10
As noted above, many of the physicians and clinic staff at NAF’s annual meetings have been
11
targeted by anti-abortion extremists. They have been stalked, threatened, and intimidated. They
12
have been picketed at their homes, churches, and their children’s schools. Some attendees have
13
had death threats made against them, and bomb threats made against their clinics. Anti-abortion
14
extremists have placed NAF members who attend NAF’s annual meetings on threatening
15
“wanted” posters, and have posted NAF members’ photos and personal information on websites
16
with the intention of inciting violence against them. NAF members go to great lengths to
17
preserve their privacy and identity given this hostile environment, and many of them have
18
security protocols in place. Some wear bullet-proof vests to work.
19
41.
NAF’s annual meetings are one of the only places where abortion providers can
20
come together to exercise their right to assemble, learn about the latest research, and to network
21
without fear of harassment, intimidation, and violence. Accordingly, NAF implements a multi-
22
faceted Security Program to help ensure the safety of its members, and goes to great lengths to
23
ensure a safe, secure, and intimidation-free environment for annual meeting attendees each year.
24
NAF’s full-time security staff are involved in the selection process for hotels in order to ensure
25
that conference sites meet their strict security guidelines. When screening sites, the security staff
26
prioritize the location and floor of the meeting space, and the ability to secure NAF meeting
27
rooms and restrict access from others in the hotel. In advance of a meeting, NAF security staff
28
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travel to the meeting site at least once in order to assess the security risks and needs at the hotel
2
and the surrounding area.
3
42.
During these advance meetings, NAF staff meet with hotel management and hotel
4
security to discuss security issues and explain the overall plan NAF will implement and how hotel
5
security will be integrated into that plan. The security staff also meet with local police officials,
6
FBI and/or ATF agents, and fire and rescue personnel to review security issues, potential threats,
7
and the security needs of NAF members. They also employ guards for the on-site conference
8
security team (typically former law enforcement officers, private security guards, off-duty local
9
law enforcement officers, hotel security staff, and security staff from partner organizations).
10
43.
NAF security staff arrive prior to the beginning of each conference to set up the
11
security team and their assignments; orient security staff about procedures and protocols; arrange
12
for the safe receipt of mail and packages at the hotel; and finalize the involvement of K-9 teams.
13
During the conferences, they supervise the security team and remain available on a 24/7 basis for
14
any issues that occur. In the past, NAF security personnel have also coordinated with private
15
security personnel to accompany a high-target physician who regularly attended NAF meetings
16
prior to his death in 2014.
17
44.
Throughout the entire conference, there are security officers posted at strategic
18
locations throughout the meeting areas and outside entrances to meeting rooms. One of their
19
primary responsibilities is checking to ensure that everyone entering a meeting room is wearing a
20
NAF badge. Security staff will restrict access to meeting areas for anyone without a visible NAF
21
badge. K-9 security personnel patrol the NAF meeting spaces and the exhibit hall with explosive-
22
detector dogs.
23
45.
NAF also goes to great lengths to make sure that the dates and locations of their
24
meetings do not fall into the wrong hands. This information is not posted on NAF’s public
25
website, and is only given out to members and trusted others. All emails about the conference
26
remind recipients to: “Please be mindful of security concerns and do not forward this email or
27
share information about NAF meetings.” NAF sends a security reminder to all attendees the
28
week before the meeting, reminding them not to post their travel plans or information about the
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meeting on social media. Attendees are prohibited from posting information related to content
2
and/or the location of NAF’s annual meeting on social media of any kind. This is communicated
3
to attendees in the security reminder email, in the conference Final Program, and through signs
4
posted at the registration booth and throughout the meeting space. Media representatives are
5
regularly not allowed at NAF meetings, and media are not informed about the meetings.
6
46.
Upon arrival, each attendee must show photo ID and sign a confidentiality
7
agreement before obtaining their meeting materials and gaining access to meeting areas.
8
Attendees are given a name badge, which they must wear in order to enter any NAF meeting
9
rooms.
10
47.
During the conference, all signage uses a version of the NAF logo that omits the
11
words “National Abortion Federation” so that non-meeting attendees in the hotel are not alerted
12
to NAF’s presence. NAF also works with the hotel to make sure that its full name is not listed in
13
any public hotel schedules or bulletins. Attendees and staff are advised to remove their
14
conference badges when they leave the meeting areas, including in elevators, in order to decrease
15
the chances of non-meeting attendees learning about the meeting.
16
48.
For security reasons, NAF does not allow luggage or large bags to be brought into
17
meeting or event rooms. Meeting attendees must make arrangements to store luggage in their
18
hotel room or with the hotel concierge, who is alerted to the need for extra baggage handling
19
personnel on the last day of NAF’s meeting.
20
21
22
23
24
25
26
27
28
49.
There is a reminder of NAF’s unique security guidelines in each annual meeting
Final Program, and attendees are advised to do the following:

Wear meeting badges at all times during the meeting, including all day and
evening sessions and receptions/social events.

Remove name badges when they leave the meeting areas within the hotel,
including elevators, and when they leave the hotel.

Stay alert and aware of their surroundings both in the hotel and around the
host city.

When in their hotel rooms, store meeting materials out of sight.

Keep personal information (e.g., hotel room number, phone number)
confidential.
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D.
NAF Put Agreements in Place in Order to Protect the Security of Their Annual
Meetings and Its Attendees.
2
3
50.
Separate and apart from the foregoing strict security requirements, in order to
4
allow its members to assemble safely and securely, NAF requires all exhibitors who attend a
5
meeting to sign written agreements representing that they are legitimate organizations with goals
6
that are consistent with those of NAF, and to promise to hold any information received at the
7
meeting in confidence.
8
51.
This was not always the case. At one point, before the violence against providers
9
had escalated, NAF had no security at its meetings, and in fact it allowed known anti-abortion
10
protesters to attend its meetings. However, by the early 1990s, NAF was forced to hire trained
11
security professionals to put the security measures outlined above in place. By the late 1990s,
12
notwithstanding these security measures, anti-abortion extremists attempted to infiltrate NAF’s
13
meetings. Extremist Mark Crutcher and his group Life Dynamics worked to develop a network
14
of “spies for life” to infiltrate NAF member clinics. Crutcher also offered substantial rewards for
15
materials from NAF meetings, including audio recordings, which NAF made for educational
16
purposes. As a result of this targeted campaign to intimidate providers, NAF stopped taping its
17
meeting sessions, started labeling all NAF meeting packets confidential, and in 2000 started
18
requiring all meeting attendees to sign non-disclosure agreements.
19
52.
Accordingly, exhibitors who wish to attend NAF’s annual meeting must first
20
submit an “Application and Agreement for Exhibit Space.” This application is typically
21
submitted months in advance of the annual meeting to NAF staff. The Application requires the
22
proposed exhibitor to identify itself, its representatives, and the products or services it wants to
23
exhibit at the annual meeting. The Application and Agreement for Exhibit Space expressly
24
incorporates NAF’s “Exhibit Rules and Regulations,” and as a condition of attending NAF’s
25
annual meeting, all exhibitors must agree to the following conditions:
26
27

Only companies with “an intended business interest in reaching
reproductive health care professionals, including NAF provider members,”
are eligible to participate in NAF’s annual meeting. (Exhibit Rules and
Regulations ¶ 1.)
28
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
NAF reserves the right to exclude from its annual meeting any exhibitor
whose “products, services, or performance in the field are not consistent
with NAF’s purposes and objectives.” (Id. ¶ 2.)

All exhibiting companies and their attendees “must be registered for the
NAF annual meeting, and must wear identifying badges as requested by
NAF.” (Id. ¶ 8.)

The Exhibit Rules and Regulations provide that “security will be provided
by NAF for the conference period.” (Id. ¶ 10.)

Photography of exhibits by anyone other than NAF, or the assigned
exhibitor of the space being photographed, is “strictly prohibited.” (Id.
¶ 13.)

All exhibitors must agree to display and represent their business, products,
or services “truthfully, accurately, and consistently with the information
provided in the Application.” (Id. ¶ 15.)

Exhibitors agree to reimburse NAF for “all costs incurred by NAF,
including reasonable attorneys’ fees,” for “any violations of any provision”
of the Agreement. (Id. ¶ 16.)

All exhibitors agree that “all written information provided by NAF, or any
information which is disclosed orally or visually to Exhibitor, or any other
exhibitor or attendee, is to be used solely in conjunction with Exhibitor’s
business” and “unless authorized in writing by NAF, all information is
confidential and should not be disclosed to any other individual or third
parties.” (Id. ¶ 17.)

All exhibitors agree that “monetary damages would not be a sufficient
remedy for any breach of this agreement by Exhibitor or Exhibitor’s
officers, employees, or agents and that NAF will be entitled to specific
performance and injunctive relief as remedies for any such breach.” (Id.
¶ 18.)

All exhibitors agree that all of the information contained in its application,
or “any past or future correspondence with … NAF … is truthful, accurate,
complete, and not misleading.” (Id. ¶ 19.)

The confidentiality of NAF’s annual meeting is once again emphasized in
language that is italicized, immediately before the signature line:
Exhibitors “agree to hold in trust and confidence any confidential
information received in the course of exhibiting at the NAF Annual
Meeting and agree not to reproduce or disclose confidential information
without express permission from NAF. Violation of this paragraph could
result in civil and/or criminal penalties.” (Id.)
53.
Once an exhibitor signs on to these conditions and submits the required written
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
agreement and documentation and fees, it is registered as an exhibitor.
27
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54.
Beyond that, as explained above, to protect its members’ safety and privacy,
2
starting in 2000, NAF began requiring attendees at its annual meetings to sign a non-disclosure
3
agreement with the following terms:
4

“1. Videotaping or Other Recording Prohibited. Attendees are
prohibited from making video, audio, photographic, or other recordings of
the meetings or discussions or discussions at this conference.”
(Confidentiality Agreement for NAF Annual Meeting, ¶ 1.)

Attendees agree that “Conference Information,” which NAF defines as “all
information distributed or otherwise made available at [the] conference by
NAF or any conference participants through all written materials,
discussions, workshops, or other means,” is provided to “Attendees to help
enhance the quality and safety of services provided by NAF members and
other participants. Attendees may not use NAF Conference Information in
any manner inconsistent with these purposes.” (Id. ¶ 2 (emphasis added).)

Attendees are prohibited from disclosing NAF Conference Information to
any third parties, without NAF’s consent. (Id. ¶ 3.)
55.
The foregoing security practices and agreements are vitally important to NAF’s
5
6
7
8
9
10
11
12
13
ability to protect the privacy, identity, and security of its members.
14
E.
15
16
Defendants’ Conspire to Defraud NAF and Gain Access to Its 2014 Annual Meeting
in San Francisco.
56.
Until July 14, 2015, when Defendants released their first selectively edited
17
videotape, Defendants’ scheme was secret. Biomax held itself out to the world as a legitimate
18
tissue procurement organization. It did so in order to gain access to NAF meetings, as well as
19
Planned Parenthood meetings and facilities, under false pretenses. It created highly professional-
20
looking brochures, which it sent to NAF member physicians along with a “welcome letter” from
21
its fake CEO “Susan Tennenbaum,” in order to persuade NAF members to talk to Biomax
22
representatives. An excerpt from Biomax’s fake advertising material is shown below:
23
24
25
26
27
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3
4
5
6
7
8
9
10
11
12
13
14
15
57.
Biomax’s brochures included the following statement: “BioMax Procurement
16
Services, LLC is a biological specimen procurement organization headquartered in Norwalk, CA.
17
BioMax provides tissue and specimen procurement for academic and private bioscience
18
researchers. Our commitment is to provide the highest-quality specimens with efficient,
19
professional service to facilitate world-changing discoveries.” This statement – which also
20
appeared on Biomax’s fake website until it was locked – is a complete falsehood.
21
58.
In its marketing materials, Biomax trumpeted the fact that it “respects the integrity
22
of your medical practice and handles all donor center relationships discretely and professionally
23
to protect patient privacy.” Its marketing materials also touted its fake CEO “Tennenbaum” as “a
24
passionate patient advocate and entrepreneur with a vision to bridge the gap between routine
25
medical practice and cutting-edge medical research.” She claimed to have “worked in surgical
26
offices and patient advocacy” and that she founded Biomax “to help give patients and providers
27
an opportunity to give back and to connect medical researchers with critical biospecimens.”
28
These statements are false.
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59.
Biomax first officially contacted NAF on November 27, 2013, when “Brianna
2
Allen” sent an email to NAF, using a [email protected] address, and
3
introduced herself as “assistant for Susan Tennenbaum at Biomax” ([email protected] is
4
cc’d), and highlighted that she had met two members of the NAF staff at a previous professional
5
meeting. “Allen” stated that Biomax wanted to “reserv[e] exhibitor space at the conference your
6
organization will have in San Francisco” in 2014. Several more emails followed between
7
“Brianna Allen” and NAF staff concerning Biomax’s application to reserve exhibit space at the
8
San Francisco annual meeting. On December 16, 2013, “Allen,” using a [email protected]
9
email address, again emailed NAF staff asking about “Exhibit Hall registration for the April
10
meeting. Can you tell us about pricing and location availability?” Once Biomax’s agents
11
received a copy of the Exhibitor Prospectus, they followed up with more questions. On January
12
13, 2014, “Allen,” cc’ing her supposed boss “Susan Tennenbaum,” sent an email to NAF in
13
which she professed to be “having trouble understanding the format/agenda of the meetings” and
14
“which additional registrations to purchase.” “Allen” stated that she “expect[ed] to be at the
15
booth full-time, but I know Susan really likes to be able to attend sessions and mingle with
16
attendees.”
17
60.
On February 7, 2014, “Allen” sent another email concerning Biomax’s registration
18
to NAF staff. This time, she cc’d both “Susan Tennenbaum” and someone identified as “Robert
19
Sarkis.” “Allen” indicated that Biomax was going to send its Exhibitor Agreement in on the
20
following Monday, but wanted to inquire about getting “access” to the annual meeting for “2
21
additional representatives,” “one for Susan and one for our new VP for Operations, Robert
22
Sarkis.”
23
61.
Using these false pretenses, the Defendants purchased from NAF the right to set
24
up an exhibit booth for Biomax, the right to attend the NAF annual meeting for “Sarkis,”
25
“Tennenbaum,” and “Allen,” and the right to participate in educational workshops. In particular,
26
Defendants registered Biomax as a “Commercial Firm” and paid to NAF the associated $2100
27
“Commercial Firm” exhibit booth fee. The Defendants further purchased two additional passes
28
for “Additional Reps,” paying $395 each, in addition to the single complimentary conference
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registration that came with the booth registration. The Defendants paid extra for these passes so
2
that they could obtain “Educational Passes,” which would allow them to attend educational
3
sessions. In addition, Defendants purchased (for $345) the right to attend the “Second-Trimester
4
Abortion Workshop.” Defendants paid a total of $3235, using a credit card under the name of
5
“Phil Cronin,” and attaching a signature for “Phil Cronin.” Registration and payment of these fees
6
is a precondition for a commercial firm – which the Defendants falsely portrayed Biomax to be –
7
to gain access to NAF’s otherwise exclusive and secure annual meeting sessions in San Francisco,
8
and neither the Defendants nor their co-conspirators would have been allowed access to the
9
annual meeting sessions without this step.
10
62.
Once the registration fees were confirmed, Biomax duly submitted its Application
11
and Agreement for Exhibit Space, attached hereto as Exhibit A. The Agreement is dated
12
February 5, 2014, and is signed by Biomax’s fake CEO, Susan Tennenbaum. The
13
“Representatives” of Biomax who were going to attend the meeting in San Francisco were
14
“Brianna Allen,” Biomax “Procurement Assistant,” fake CEO Susan Tennenbaum, and “Robert
15
Sarkis, V.P. Operations” (in reality Daleiden). Biomax described itself in the Agreement as a
16
“biological specimen procurement [and] stem cell research” organization. This description is
17
false. Biomax also expressly promised to represent its business “truthfully” and “accurately” at
18
the annual meeting, and further agreed not to disclose any information it learned at the meeting
19
absent NAF’s written consent.
20
63.
After executing the Exhibitor Agreement, and in advance of the annual meeting in
21
San Francisco, “Brianna Allen” sent still more emails to NAF staff concerning arrangements for
22
the meeting. On March 14, 2014, she emailed NAF to ask where Biomax was “going to be
23
placed in the exhibit hall” because Biomax was “ordering our custom signage from the printers
24
and it would be helpful to know the exact setting we’ll be working with!” When NAF staff did
25
not respond, she sent another email on March 19, 2014, asking for NAF to “get us that
26
information today, that would be great!” Allen also wanted to know if Biomax would “have an
27
electrical outlet at the booth? Thanks!” And on March 27, 2014, Allen (again cc’ing
28
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“Tennenbaum” and “Sarkis”) wanted to know if the “final program” and “exhibitor kit” were
2
available.
3
64.
The annual meeting was held on April 5-8, 2014, at the Westin St. Francis in San
4
Francisco. On the first day of the meeting, three individuals presented themselves at the
5
registration desk purporting to be representatives of Biomax. Because no one is admitted to the
6
annual meeting absent presenting a valid identification, David Daleiden – who identified himself
7
as Robert Sarkis – and his co-conspirator “Tennenbaum” presented the following identification to
8
NAF registration personnel in order to gain access to the exhibit hall:
9
10
11
12
13
14
15
16
65.
These IDs are utterly fake. None of the addresses listed on these fake IDs appear
17
on GoogleMaps. On information and belief, Daleiden (Sarkis), and his co-conspirators
18
“Tennenbaum,” and “Allen” transferred, produced, and caused to produce identification
19
documents or false identification documents, as defined by 18 U.S.C. § 1028, and possessed a
20
document-making implement, as defined by 18 U.S.C. § 1028, used to produce the fake
21
identification provided to NAF registration personnel.
22
66.
After presenting fake identifications, “Sarkis” (really Daleiden), “Tennenbaum”
23
and “Allen” all signed non-disclosure agreements in which they promised (1) not to make video
24
or audio recordings of the meetings or discussions, (2) to only use information learned at the
25
annual meeting to “enhance the quality and safety of services provided by NAF members and
26
other participants,” and (3) not to disclose information learned at the meeting to third parties
27
without NAF’s consent. The non-disclosure agreements are attached hereto as Exhibits B-D.
28
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67.
Once “Sarkis,” “Tennenbaum,” and “Allen” gained admittance to the exhibit hall,
2
they proceeded to set up a “Biomax” booth replete with signage and brochures, touting itself to
3
attendees and NAF staff as a legitimate tissue procurement service, as shown in the following
4
photograph taken by NAF’s official conference photographer:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
68.
The older person on the left of the photograph identified herself to NAF staff as
19
the CEO, “Tennenbaum”; the younger person identified herself as “Allen.” As shown in the
20
photograph, both “Tennenbaum” and “Allen” wore loose-fitting scarves around their shoulders
21
during the meeting, which could easily be used to conceal recording equipment. “Sarkis,”
22
“Tennenbaum,” and “Allen” then roamed the exhibit hall, freely mingling with attendees, holding
23
themselves out as representatives of “Biomax,” and handing out their fake business cards, as
24
shown below:
25
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
69.
On information and belief, upon gaining admittance to NAF’s annual meeting,
14
Daleiden and his co-conspirators “Allen” and “Tennenbaum” surreptitiously taped – via audio,
15
video, or otherwise – conversations with annual meeting attendees and NAF staff, and/or
16
otherwise embarked on a campaign to collect identifying information concerning NAF members
17
who provide abortion care.
18
70.
In addition to mingling with attendees in the exhibit hall, Defendants also attended
19
panel presentations on Fetal Disposal Choices and Restrictions, as well as the meeting of Second
20
Trimester Providers. The panel on Fetal Disposal Choices and Restrictions is directly referenced
21
in the Nucatola videotape released on July 14, 2015. Professor Jennifer Dunn of UC Hastings
22
School of Law spoke on that panel, addressing laws and regulations concerning fetal tissue
23
disposal. In light of the facts that have now emerged about Defendants’ conspiracy, and the fact
24
that this panel discussion is explicitly referenced in the Nucatola videotape, Professor Dunn is
25
now concerned that the Defendants continued their illegal videotaping campaign at the annual
26
meeting, that the comments she and other panelists made were taped, that those comments will be
27
distorted and taken out of context, that her name will be splashed all over the internet like
28
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Nucatola and Gatter before her, and that she too will be the subject of a vitriolic smear campaign
2
that would injure her professional reputation.
3
71.
To take just one other example, Dr. Matthew Reeves, NAF’s Medical Director
4
since April 2013, remembers being approached by Daleiden at the annual meeting in San
5
Francisco. Daleiden said he wanted to talk, and Dr. Reeves remembers Daleiden being “pushy”
6
and asking “leading questions.” According to Dr. Reeves, Daleiden had an “unusual stiff
7
posture” and a “lack of movement,” and had a “strange face-forward stiffness when speaking,”
8
which Dr. Reeves attributed to a personality quirk at the time, but which he now realizes was
9
because Daleiden was most likely carrying equipment and filming or recording the conversation
10
with Dr. Reeves. When Defendants went public with their conspiracy on July 14, 2015, the
11
heavily edited videotape of Dr. Nucatola contains an express reference to Dr. Reeves by name,
12
and the interviewer (on information and belief, Daleiden) discloses details of his conversation
13
with Dr. Reeves on the tape. Having witnessed the terrible reaction toward Drs. Nucatola and
14
Gatter, Dr. Reeves now fears that he too will be a victim of Defendants’ smear campaign, and that
15
he too will suffer the same reputational harm as Defendants’ first victims. He is also fearful for
16
his safety and for that of his family. NAF security personnel have conducted an on-site visit of
17
his home, and Dr. Reeves has been forced to hire a private security team to install a security
18
system at his home.
19
F.
20
21
Defendants Continue Their Conspiratorial Campaign Between the San Francisco
and Baltimore Annual Meetings.
72.
NAF now knows that, after NAF’s annual meeting in San Francisco, Defendants
22
continued their illegal videotaping campaign by targeting providers of abortion care, like
23
Drs. Nucatola and Gatter. The video of Dr. Nucatola was filmed at a lunch meeting in California
24
on July 25, 2014, three months after NAF’s annual meeting in San Francisco. On information
25
and belief, the interviewer was Daleiden, the same person who identified himself to NAF staff as
26
Robert Sarkis. During the course of the interview, NAF’s annual meeting in San Francisco is
27
referred to by Daleiden and Dr. Nucatola multiple times, including the meeting of Second
28
Trimester Providers and the panel discussion on Fetal Disposal Choices and Restrictions. In
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addition to numerous references to Dr. Reeves – NAF’s Medical Director – during the course of
2
the interview, twelve individual abortion providers who are NAF members via institutional
3
memberships are mentioned, by name, in the tape. On information and belief, Daleiden and his
4
cohorts learned of these individuals at NAF’s annual meeting in San Francisco.
5
73.
The video of Dr. Gatter was filmed at a lunch meeting in California on February 6,
6
2015, 10 months after the annual meeting in San Francisco and two months before NAF’s annual
7
meeting in Baltimore. On information and belief, the interviewer was the person who identified
8
herself to NAF staff as Biomax CEO “Tennenbaum.” Two abortion providers who are either
9
current or former NAF members via institutional membership are mentioned by name on the tape.
10
On information and belief, Defendants learned of these individuals at NAF’s annual meeting in
11
San Francisco. Defendants released a third heavily edited video on July 28, 2015, this one
12
targeting an abortion provider in Denver, Colorado, which contained still more misleading clips
13
of Dr. Nucatola and Dr. Gatter. A fourth heavily edited video was released on July 30, 2015.
14
The campaign continues.
15
74.
Between the 2014 annual meeting and the 2015 annual meeting, Defendants also
16
reached out to individual NAF members in an attempt to set up appointments to discuss their
17
“business,” whereupon they intended to continue their grossly fraudulent campaign. On
18
information and belief, Defendants learned of these individuals at NAF’s annual meeting in San
19
Francisco. To take just one example, on October 17, 2014, Daleiden (posing as “Sarkis” and
20
using the email address “[email protected]”) sent an email to a clinic in a southwestern state
21
concerning “specimen procurement.” Daleiden claimed to be “excited about the possibilities in”
22
that state, and he was “looking forward” to working with this NAF member. He stated that there
23
were “scientists looking for intact cardiac specimens” and wanted to know what “protocols will
24
come into play with these kinds of requests and how they can accommodate and compensate for
25
that.” He attached “one of [Biomax’s] brochures and a welcome letter from our founder & CEO,
26
Susan Tennenbaum, who is cc’d on this email.” The “welcome letter” from the “CEO” stated
27
that Biomax wanted to “work together for your patients, and for the scientific research that will
28
benefit future patients” and offered to “return a portion of [Biomax’s] researcher fees to you
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based on specimen access.” These deceptive and false materials and representations had one
2
purpose and one purpose only – to get NAF members to talk to Daleiden and his co-conspirators
3
under false pretenses.
4
G.
5
6
Defendants’ Conspire to Defraud NAF and Gain Access to Its 2015 Annual Meeting
in Baltimore.
75.
NAF’s 2015 annual meeting was held in Baltimore, Maryland on April 18-21. Yet
7
again, Daleiden and his cohorts conspired to approach and did approach NAF to gain admittance.
8
On September 23, 2014, Daleiden – using his fake name “Sarkis” – submitted a proposal online
9
to NAF that Biomax would conduct a panel discussion on “providing fetal tissue for medical
10
research.” In his proposal, he claimed to have an M.S. in Biological Science. On information
11
and belief, that statement is false. He has no such credentials. Even more incredible, Daleiden’s
12
proposal indicated that the Panel Faculty would include Dr. Deborah Nucatola, the very physician
13
Daleiden had secretly recorded two months earlier, and who would later be the victim of
14
Defendants’ outrageous campaign to destroy her reputation by releasing a selectively edited
15
videotape falsely suggesting that Dr. Nucatola was profiting from fetal tissue donation programs.
16
Daleiden’s “proposed panel discussion” concerned “how providers can integrate tissue donation
17
services into their clinical practice to contribute to medical research and augment patient choice
18
and provider satisfaction.” The proposal was rejected by the Annual Meeting Planning
19
Committee.
20
76.
Once again, “Brianna Allen,” the fake assistant to “Tennenbaum,” reached out to
21
NAF staff via email to secure a place at the annual meeting for Biomax. On February 10, 2015,
22
she emailed NAF looking for “information for exhibiting at the 39th NAF meeting in Baltimore
23
this April” because Biomax “definitely want[s] to have a booth again. Thanks!”
24
77.
On March 25, 2015, “Tennenbaum,” on behalf of Biomax, entered into NAF’s
25
Agreement for Exhibit Space, attached hereto as Exhibit E. The Agreement contains the same
26
false and fraudulent representation as the 2014 Agreement to the effect that Biomax was in the
27
business of “fetal tissue procurement” and “human biospecimen procurement.” As with the 2014
28
Agreement, Biomax again expressly promised (falsely) to represent its business “truthfully” and
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“accurately” at the annual meeting, and further agreed not to disclose any information it learned
2
at the meeting absent NAF’s written consent. On the same day, “Allen” sent an email to NAF
3
listing Biomax’s attendees for the Baltimore meeting: “Susan Tennenbaum, CEO,” “Robert
4
Sarkis, Procurement Manager/VP Operations,” “Rebecca Wagner, Contract Administrator,” and
5
“Adrian Lopez, Procurement Technician.” The email indicated that “Susan, Robert, and Adrian
6
should be at the 2nd Tri workshop on Saturday, and we want everyone registered for the full
7
conference as well. Thanks for your help and for keeping an eye out for us!”
8
9
78.
As with the San Francisco meeting, the Defendants again purchased the right to set
up an exhibit booth for Biomax, as a “Commercial Firm,” at the NAF annual meeting.
10
Defendants further procured access passes for “Tennenbaum,” “Sarkis,” and “Lopez,” including
11
two “Educational Passes.” Defendants again paid for the exhibit booth and access passes with a
12
credit card.
13
79.
On the first day of the meeting, on information and belief, four individuals
14
identifying themselves as Tennenbaum, Sarkis, Wagner, and Lopez presented themselves at the
15
registration desk purporting to be representatives of Biomax. Because no one is admitted to the
16
annual meeting absent presenting a valid identification, on information and belief, Daleiden
17
(Sarkis) and his co-conspirators “Tennenbaum,” “Wagner,” and “Lopez” presented fake
18
identification to NAF registration personnel in order to gain access to the exhibit hall and meeting
19
sessions. On information and belief, Daleiden (Sarkis) and his co-conspirators “Tennenbaum,”
20
“Wagner,” and “Lopez” transferred, produced, and caused to produce identification documents or
21
false identification documents, as defined by 18 U.S.C. § 1028, and possessed a document-
22
making implement, as defined by 18 U.S.C. § 1028, used to produce the fake identification
23
provided to NAF registration personnel.
24
80.
On information and belief, all four individuals, before gaining entrance to the
25
meeting, signed non-disclosure agreements in which they promised (1) not to make video or
26
audio recordings of the meetings or discussions, (2) to only use information learned at the annual
27
meeting to “enhance the quality and safety of services provided by NAF members and other
28
participants,” and (3) not to disclose information learned at the meeting to third parties without
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NAF’s consent. The non-disclosure agreement signed by the Biomax agent “Adrian Lopez” is
2
attached hereto as Exhibit F.
3
81.
Once Daleiden and his co-conspirators gained admittance to the exhibit hall, as in
4
the prior year, they proceeded to set up a “Biomax” booth replete with signage and brochures,
5
touting itself to attendees and NAF staff as a legitimate tissue procurement service. Daleiden
6
roamed the exhibit hall and attempted to get meeting attendees to speak to him. The following
7
photographs taken by NAF’s official photographer captured Daleiden’s presence at the annual
8
meeting in Baltimore:
9
10
11
12
13
14
15
16
17
82.
On information and belief, upon gaining admittance to NAF’s annual meeting,
18
Daleiden and his co-conspirators “Tennenbaum,” “Wagner,” and “Lopez” surreptitiously taped –
19
via audio, video, or otherwise – conversations with annual meeting attendees and NAF staff,
20
and/or otherwise embarked on a campaign to collect identifying information concerning NAF
21
members who provide abortion care. NAF staff also recall that “Susan Tennenbaum,” just as she
22
did in San Francisco, wore a heavy, loose-fitting scarf around her neck and shoulders, a scarf that
23
could easily hide recording equipment.
24
83.
Multiple NAF staff recall being approached by Biomax’s agents. “Adrian Lopez”
25
attended numerous sessions and attempted to have multiple conversations with NAF staff over the
26
course of the annual meeting. Dr. Matthew Reeves, NAF’s Medical Director, was again
27
28
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approached by Daleiden. NAF staff also recall “Tennenbaum” falsely represented that Biomax
2
was “a tissue procurement facility operating in Long Beach.”
3
H.
4
Defendants’ Campaign to Harass and Intimidate NAF Members Goes Public.
84.
On July 7, 2015, Biomax’s Registered Agent for Service of Process in California
5
“resigned” (as reflected on the California Secretary of State’s website). One week later, on
6
July 14, 2015, as detailed more fully above, Defendants began releasing secretly taped and highly
7
edited videotapes of Planned Parenthood physicians. Daleiden then began giving press interviews
8
in which he openly admitted to the conspiracy, a conspiracy he labels the “Human Capital
9
Project.” In an interview with Bill O’Reilly on Fox News, he stated that he and his co-
10
conspirators had “spent three years with actors” who “pos[ed] as representatives of a middleman
11
biotech company” (i.e., Biomax) in order to fraudulently infiltrate NAF members. As his
12
interview with O’Reilly clearly shows, Daleiden is the same man that fraudulently identified
13
himself as Robert Sarkis to NAF and its personnel:
14
15
16
17
18
19
20
21
22
23
85.
Daleiden/Sarkis has also promised “a lot more to come.” A cynical manipulator of
24
the news cycle, his stated goal is to release one selectively edited video – which he refers to as
25
“highlight videos” in interviews – per week. On an interview with Sean Hannity of Fox News,
26
Daleiden boasted that he and his cohorts at CMP “probably have hundreds to even thousands of
27
hours total of videotape over the past two-and-a-half years,” which would “continue to be
28
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released in the days and months to come.” When confronted by the New York Times about the
2
fraud and illegal conduct that he and CMP orchestrated against Planned Parenthood, NAF, and
3
others, he dismissed those concerns, saying “only Planned Parenthood or its supporters would
4
object.” On Monday, July 20, 2015, CMP issued a press release stating that “The Center for
5
Medical Progress follows all applicable laws in the course of” what it describes as “investigative
6
journalism.” Nothing could be further from the truth.
7
86.
Before CMP went public with Defendants’ fraud, NAF and its members did not
8
know, and could not have known, that Defendants had fraudulently obtained access to NAF’s
9
meetings, or that they had surreptitiously made recordings during those meetings. NAF was
10
unaware of the fraud until after Defendants began releasing the edited recordings on July 14,
11
2015.
12
I.
13
Impact of Defendants’ Fraud on NAF and Its Constituent Members.
87.
The impact and injury to NAF are significant and ongoing. While NAF staff are
14
deeply dedicated to their mission, the fact is that normal operations have been disrupted, and the
15
entire organization has had to divert resources – resources that would otherwise be employed in
16
pursuing NAF’s goals of ensuring access to safe, legal abortion care – in order to combat
17
Defendants’ conspiratorial and fraudulent smear campaign. The resources that NAF has been
18
forced to expend as a direct result of the Defendants’ actions include (but are not limited to)
19
expenses for staff time, meals, and transportation for working weekends and late nights working;
20
a cancelled out-of-state site visit to one of our members for our Medical Director because he was
21
concerned for his safety and having a home security assessment; cell phone and data usage for a
22
member of senior staff who was out of the country and was contacted by members when the first
23
video was released; and IT security consultants to assess the security of NAF’s network against
24
further breaches or hacks. NAF expects to incur additional expenses for security consultants to
25
recommend enhancements to the vetting process and security protocols for our meetings, and
26
travel costs to support its members as it addresses the damage caused by the smear campaign.
27
28
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88.
Since Defendants went public with their conspiracy, NAF has also been forced to
2
increase its security activities. It has worked with the security at its headquarters in Washington
3
D.C. to ensure that strict protocols are being followed for admittance to NAF’s offices.
4
89.
NAF has also conducted an off-site inspection of the homes of NAF staff member
5
Dr. Matthew Reeves, NAF’s Medical Director. As explained above, Dr. Reeves was approached
6
by Defendants at both the San Francisco and Baltimore annual meetings. He remembers “Sarkis”
7
(whom he now knows was in fact David Daleiden) as an aggressive and pushy individual who
8
asked him several misleading questions and had “unusual stiff posture” and a “strange forward
9
facing stiffness,” which Dr. Reeves now believes was because Daleiden was carrying recording
10
equipment. Given Defendants’ release of four illegally recorded and highly misleading
11
videotapes, the fraud they have already perpetrated on NAF, the fact that he is mentioned
12
personally in the misleading video of Dr. Nucatola that has already been released, and their boast
13
that they have thousands of hours more video which they intend to release, Dr. Reeves is
14
understandably concerned that he and his family will suffer the same fate as Dr. Nucatola and
15
Dr. Gatter, and that Defendants will release a videotape that will portray him in a false light.
16
Accordingly, NAF staff have conducted an on-site visit of his home, and Dr. Reeves has had to
17
hire a professional security company to install a security system at his home, to protect himself
18
and his family.
19
90.
Moreover, Defendants know about the dates, times, and locations of NAF’s next
20
two meetings, information that NAF does not release publicly for reasons already stated.
21
Defendants learned of this information because NAF sends out save-the-date reminders to
22
participants at prior meetings. NAF is already in contact with the hotel management and hotel
23
security staff for its next two meetings to let them know that information concerning NAF’s
24
annual meeting dates and locations have been compromised, and that NAF will likely need to
25
take additional security precautions, leading to increased security costs for NAF.
26
91.
Beyond the harm to NAF and its staff, its members now fear that they too will be
27
the subject of an illegal and fraudulent campaign to smear their professional reputations and place
28
them and their families in personal jeopardy. NAF security personnel have issued advisories to
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its members to be on heightened alert and to contact NAF’s Security Department with any
2
concerns. NAF has also seen an increase in “off hour” correspondence regarding security
3
concerns from its members.
4
92.
Professor Jennifer Dunn illustrates the grave consequences of Defendants’ ongoing
5
conspiracy. Professor Dunn is a member of UC Hastings faculty and Lecturer in Law. Her
6
scholarship focuses on women’s health and reproductive justice. She is a member of NAF and a
7
faculty panel member on Fetal Disposal Choices and Restrictions at NAF’s 2014 annual meeting
8
in San Francisco, a panel discussion that Defendants attended, and which is specifically
9
referenced in the videotaped conversation with Dr. Nucatola. Professor Dunn understandably
10
believes Defendants carried on their illegal videotaping scheme during the 2014 annual meeting,
11
and she is now concerned that Defendants will do the same thing that they did to Drs. Nucatola
12
and Gatter – they will release a videotape of her discussion that will distort and twist her words or
13
the words of other speakers in order to portray her and NAF in a false light, exposing her to the
14
same character assassination, vitriol, and bile that have been leveled at Defendants’ victims thus
15
far.
16
93.
If Defendants release audio or videotapes (or any other confidential information)
17
obtained at any of NAF’s annual meetings, which they fraudulently intruded upon, the damage to
18
NAF and its members will be incalculable and irreversible. Accordingly, on July 30, 2015, NAF
19
wrote to Defendants and demanded an accounting of any information in their possession –
20
including any video or audio tapes that they obtained at NAF’s annual meetings as a result of
21
their fraud and in violation of the Exhibitor Agreements and non-disclosure agreements.
22
Defendants have ignored that demand and otherwise failed to respond, necessitating the instant
23
legal action to protect NAF’s legal rights and those of its members.
24
CLAIMS FOR RELIEF
25
FIRST CAUSE OF ACTION
(Violation of 18 U.S.C. § 1962(c))
(Against All Defendants)
26
27
28
94.
Plaintiff incorporates and realleges paragraphs 1 through 93, inclusive, as though
set forth in full herein.
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95.
Plaintiff is a “person” as that term is defined in 18 U.S.C. § 1961(3).
2
96.
At all relevant times, in violation of 18 U.S.C. § 1962(c), the Defendants
3
conducted the affairs of an associated-in-fact enterprise identified herein, the affairs of which
4
affected interstate commerce through a pattern of racketeering activity. Furthermore, in violation
5
of 18 U.S.C. § 1962(d), the Defendants knowingly agreed and conspired to conduct or participate
6
in the conduct of said enterprise’s affairs through a pattern of racketeering activity.
7
97.
While the full extent of the conspiracy and its participants is not yet known, for
8
purposes of this claim, the RICO enterprise is an associated-in-fact enterprise consisting of, at
9
minimum, Defendants CMP, Biomax Procurement Services, David Daleiden, and Troy Newman,
10
and unnamed co-conspirators Albin Rhomberg, “Susan Tennenbaum,” “Brianna Allen,”
11
“Rebecca Wagner” and “Adrian Lopez” (the “Enterprise”). The Enterprise is an ongoing and
12
continuing business organization consisting of corporations, charitable trusts, and individuals that
13
are and have been associated for the common or shared purposes of, among other things, (1)
14
defrauding NAF and its constituent members in order to unlawfully obtain access to NAF’s
15
annual meetings and to the offices and clinics of its constituent members; (2) depriving NAF of
16
its property rights – including without limitation its right to exclude from its annual meetings
17
fraudsters and anti-abortion extremists whose goals are not consistent with those of NAF; (3)
18
carrying out an illegal videotaping campaign in which they surreptitiously tape physicians and
19
other providers under false pretenses and in violation of law; (4) portraying NAF and its
20
constituent members in a false light by releasing heavily edited and grossly misleading “highlight
21
tapes” of physicians who were surreptitiously taped, in order to falsely portray the victims of their
22
campaign as profiting from fetal tissue donation programs, when the exact opposite is true; (5)
23
carrying out a campaign of intimidation and harassment against NAF and its constituent members
24
for lawfully engaging in the provision of abortion care to women in the United States, which
25
campaign is designed to injure the professional reputation of NAF and its constituent members,
26
and to place NAF members in personal jeopardy; (6) unlawfully burdening NAF members’
27
constitutional right to freedom of association; and (7) unlawfully burden the constitutional right
28
of women to access lawful and safe abortion care in the United States.
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98.
According to Daleiden’s own statements, the Enterprise has operated for a period
2
of two-and-a-half to three years, and has taken hundreds if not thousands of hours of videotape of
3
physicians who provide abortion care. The Enterprise, acting through Daleiden, has released four
4
surreptitiously taken and misleadingly edited videotapes, and has threatened and continues to
5
threaten the release of more such videotapes. The Enterprise therefore has functioned for a period
6
of two-and-a-half to three years and continues to function, as evidenced by the continuing release
7
of unlawful, surreptitiously edited videotapes and in coordinated communication activities of
8
CMP, Daleiden, and Troy Newman.
9
99.
Defendants Daleiden, Newman, CMP, and others associated with the Enterprise,
10
and were willing participants in it. Each had a common purpose and interest in the establishment
11
and operations of the scheme. They also agreed to the manner in which the Enterprise would be
12
conducted, i.e., as evidenced by Daleiden’s own statements, the creation of an admittedly fake
13
company (Biomax Procurement Services) in order to infiltrate by false and fraudulent pretenses
14
NAF’s annual meetings, and to infiltrate the offices and clinics of its constituent members, all for
15
the purposes of portraying NAF and its constituent members in a false light, destroying their
16
professional repuations, and placing NAF members in personal jeopardy. At all relevant times,
17
Daleiden, CMP, Biomax and Newman were generally aware of each other’s conduct in
18
furtherance of the scheme, and were knowing and willing participants in that conduct.
19
100.
The Enterprise affected interstate commerce by purchasing the right to set up an
20
exhibit booth at NAF annual meetings, by registering as a “Commercial Firm” and paying the
21
associated fees, and by purchasing additional rights of access by paying for additional per-person
22
registration fees, for each of the annual meetings in 2014 and 2015. The Enterprise further
23
affected interstate commerce because it has diverted NAF from its core mission of ensuring
24
access to safe and legal abortion care and providing medical practitioners with a safe and secure
25
venue in which they can associate, to instead combatting the misrepresentations disseminated by
26
Defendants and protecting its members from future harm.
27
28
101.
Defendants participated in the conduct of the affairs of the Enterprise, and not just
their own affairs. Daleiden has given press interviews in which he boasted about the scheme and
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his, CMP’s, and Biomax Procurement Service’s knowing and willing participation in the scheme.
2
Defendants exerted control over the Enterprise and, in violation of section 1962(c) of RICO,
3
Defendants have conducted or participated in the affairs of those RICO enterprises, directly or
4
indirectly, in at least the following ways:
5
6
7
(a)
By setting up a sham company – Biomax Procurement Services – which falsely
held itself out as a legitimate tissue procurement organization;
(b)
By making false and misleading promises and representations to NAF and its
8
constituent members concerning Biomax and the reasons its agents wanted to attend NAF’s
9
annual meetings and make visits to NAF member clinics and offices;
10
11
(c)
By entering into false agreements with NAF for the purpose of inducing NAF into
allowing Defendants access to its annual meetings;
12
(d)
13
in violation of law;
14
(e)
15
16
17
18
By engaging in an ongoing campaign to surreptitiously videotape NAF members
By engaging in a smear campaign to destroy the professional reputation of NAF
and its constituent members, which campaign places NAF members in personal jeopardy; and
(f)
By creating, transferring and maintaining false identities and documentation to
obtain access to NAF’s annual meetings and the offices and clinics of its constituent members.
102.
The Enterprise had a hierarchical decision-making structure headed by Daleiden.
19
Daleiden directed how the scheme was to be perpetrated. In violation of section 1962(c) of
20
RICO, Defendants conducted the affairs of the Enterprise by, among other things, defrauding
21
NAF, making false promises and representations, and entering into false agreements, all in order
22
to fraudulently gain access to NAF’s annual meetings, whereupon they continued their illegal and
23
misleading campaign to intimidate, harass, and discredit lawful and legitimate providers of
24
abortion care in the United States.
25
103.
The Enterprise engaged in a pattern of racketeering activity, consisting of, among
26
other crimes, mail and wire fraud violations. Defendants have publicly boasted about the illegal
27
nature and pervasiveness of the scheme. The racketeering activities of Daleiden, CMP, Biomax,
28
Newman and their co-conspirators amounted to a common course of conduct, with similar pattern
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and purpose, intended to defraud NAF and its constituent members who provide lawful, legal,
2
safe abortion care. Each separate use of the U.S. mails and/or interstate wire facilities employed
3
by the co-conspirators was related, had similar intended purposes, involved similar participants
4
and methods of execution, and had the same results affecting the same victims, including NAF.
5
Daleiden, CMP, and Biomax Procurement Services have each engaged in the pattern of
6
racketeering activity for the purpose of conducting the continuing and ongoing affairs of the
7
Enterprise.
8
9
104.
Plaintiff does not and cannot now know the full extent of the conspiracy. Many of
the precise dates of Defendants’ uses of the U.S. mails and interstate wire facilities (and
10
corresponding RICO predicate acts of mail and wire fraud) have been hidden and cannot be
11
alleged without access to the books and records of Defendants. Indeed, an essential part of the
12
successful operation of the scheme alleged herein depended upon secrecy, misrepresentations,
13
and outright falsehood. At a minimum, however, Defendants’ use of the U.S. mails and interstate
14
wire facilities to perpetrate their unlawful scheme included, inter alia, the following, all of which
15
are identified with specificity above:
16
(a)
November 27, 2013 email from Biomax representative to NAF staff;
17
(b)
December 16, 2013 email from Biomax representative to NAF staff;
18
(c)
January 13, 2014 email from Biomax representative to NAF staff;
19
(d)
February 5, 2014 wire transmission of the Application and Agreement for Exhibit
20
Space to NAF staff, and the associated payment of registration fees through a credit card under
21
the name of “Phil Cronin”;
22
(e)
February 7, 2014 email from Biomax representative to NAF staff;
23
(f)
March 14, 2014 email between Biomax representative and NAF staff;
24
(g)
March 19, 2014 email between Biomax representative and NAF staff;
25
(h)
March 27, 2014 email between Biomax representative and NAF staff;
26
(i)
September 23, 2014 wire transmission of Biomax proposal to hold panel
27
28
discussion at 2015 annual meeting in Baltimore;
(j)
February 10, 2015 email between Biomax representative and NAF staff;
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2
3
4
5
(k)
March 25, 2015 wire transmission of the Application and Agreement for Exhibit
Space to NAF staff, and the associated payment of registration fees through a credit card; and
(l)
March 25, 2015 email between Biomax representative and NAF staff confirming
NAF’s receipt of Exhibitor Agreement.
105.
The foregoing emails and wire transmissions were sent for the purpose of
6
deceiving and defrauding NAF into believing that Biomax was a legitimate fetal procurement
7
organization whose interests were aligned with those of NAF’s, in order to falsely and
8
fraudulently obtain confidential and proprietary information related to NAF’s annual meetings, to
9
obtain the identities of NAF members, and to purchase booth space in, and access to, NAF’s
10
annual meetings. In sending the foregoing false and fraudulent emails and wire transmissions,
11
Defendants intended NAF to rely on their false and fraudulent misrepresentations, and NAF did
12
rely on those misrepresentations in permitting Defendants access to their annual meetings, which
13
permission was secured falsely and fraudulently.
14
106.
In addition, on information and belief, Defendants also produced, transferred, and
15
possessed with the intent to use fake identification documents that appeared to be issued by a
16
state so that they could gain admission to NAF’s annual meetings in 2014 and 2015 in violation
17
of 18 U.S.C. § 1028(a), and conspired to do the same in violation of 18 U.S.C. § 1028(f).
18
Specifically, on April 5, 2014, Biomax representatives – including Daleiden – presented fake IDs
19
to gain access to NAF’s annual meeting in San Francisco. And on April 18, 2015, Biomax
20
representatives – including Daleiden – presented fake IDs to gain access to NAF’s annual
21
meeting in Baltimore, Maryland.
22
107.
NAF has been injured in its business and property by reason of these violations. It
23
has had to divert resources that would otherwise be used in furtherance of its core mission of
24
ensuring access to safe and legal abortion care and providing medical practitioners with a safe and
25
secure venue in which they can associate, to instead combatting the misrepresentations
26
disseminated by Defendants and to protect its members from future harm. This diversion of
27
resources includes, but is not limited to, expenses for staff time, meals, and transportation for
28
working during weekends and late nights; a cancelled out-of-state site visit to a NAF member by
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(201 of 233)
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NAF’s Medical Director because he was concerned for his safety and to have a home security
2
assessment; cell phone and data usage for a member of senior staff who was out of the country
3
and was contacted by members when the first video was released; and the costs of hiring IT
4
security consultants to assess the security of NAF’s network against further breaches or hacks.
5
NAF expects to incur additional security costs as a direct result of the Defendants’ conduct,
6
including expenses for security consultants to recommend enhancements to the vetting process
7
and security protocols for NAF meetings, as well as travel costs to support its members as it
8
addresses the damage caused by the smear campaign. NAF has further lost the exclusive use and
9
control of confidential and proprietary information, including the location and dates of its next
10
two U.S. meetings. Accordingly, NAF has suffered economic and non-economic injury as a
11
result of Defendants’ unlawful conspiracy.
12
108.
Under the provisions of section 1964(c) of RICO, each of the Defendants is jointly
13
and severally liable to NAF for three times the damages NAF has sustained, plus the costs of
14
bringing this lawsuit, including reasonable attorneys’ fees.
15
SECOND CAUSE OF ACTION
(Civil Conspiracy)
(Against All Defendants)
16
17
18
19
109.
Plaintiff incorporates and realleges paragraphs 1 through 108, inclusive, as though
set forth in full herein.
110.
On or about November 27, 2013 through the present day, Defendants and
20
Defendants’ co-conspirators knowingly and willfully conspired and/or agreed among themselves
21
to defraud Plaintiff and to injure Plaintiff with a pattern of fraudulent and malicious conduct,
22
including but not limited to: (1) setting up a fake biological specimen procurement company
23
called Biomax; (2) presenting fake ID cards and fake business cards, and using fake email
24
addresses, signage, and brochures, all for the purpose of deceiving NAF; (3) inducing NAF to
25
enter into fraudulent contracts with Plaintiff in order to gain admission to NAF’s annual meetings
26
under false pretenses; (4) violating Plaintiff’s confidentiality agreements by secretly videotaping
27
NAF members at NAF conferences; and (5) releasing – and threatening to continue to release –
28
heavily edited, misleading videos obtained through violation of NAF’s confidentiality agreement
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(202 of 233)
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with the express purpose of harming the reputation of NAF and its constituent members, injuring,
2
harassing, and intimating Plaintiff and its members, discrediting life-saving, legal fetal tissue
3
donation programs, and undermining access to safe and legal abortion care in the United States.
4
5
6
111.
Defendants and Defendants’ co-conspirators did the acts and things herein alleged
pursuant to, and in furtherance of, the conspiracy and the above-alleged agreement.
112.
In doing the things herein alleged, Defendants acted with malice and oppression,
7
as defined under California Civil Code § 3294(c), with the intent to cause injury to Plaintiff,
8
thereby warranting an assessment of punitive damages in an amount appropriate to punish
9
Defendants and deter others from engaging in similar misconduct.
10
113.
As a proximate result of the wrongful acts herein alleged, Plaintiff has diverted
11
needed resources to addressing the consequences of Defendants’ fraud, thereby suffering
12
pecuniary loss, and has suffered reputational harm as a result Defendants’ fraudulent conduct and
13
dissemination of false and misleading information.
14
114.
Defendants’ ongoing conspiracy to defraud, as described above, presents a
15
continuing threat to Plaintiff. If Defendants are allowed to continue their wrongful acts, Plaintiff
16
will suffer further immediate and irreparable injury and loss.
17
THIRD CAUSE OF ACTION
(Promissory Fraud)
(Against Daleiden, CMP, and Biomax)
18
19
20
21
115.
Plaintiff incorporates and realleges paragraphs 1 through 114, inclusive, as though
set forth in full herein.
116.
On February 5, 2014 and again on March 25, 2015, Defendants signed Exhibitor
22
Agreements with NAF in which they promised that Biomax was a biological specimen
23
procurement company, that Biomax’s exhibit for the annual meetings would be consistent with
24
NAF’s purposes, that they would identify and display their services truthfully and accurately, and
25
that any information disclosed orally or visually at the annual meeting would not be disclosed to
26
any third party absent NAF’s written consent.
27
28
117.
On April 5, 2014 and again on April 18, 2015, Defendants signed non-disclosure
agreements in which they promised not to make video, audio, photographic, or other recordings at
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the NAF annual meetings, that they would not disclose any information learned at NAF’s annual
2
meetings to third parties absent NAF’s consent, and that they would only use information learned
3
at NAF’s annual meeting in order to enhance the quality and safety of services provided by NAF
4
members and other annual meeting participants.
5
118.
When Defendants made these promises, Defendants knew them to be false and had
6
no intent to honor them. Defendants made these promises with the intent to deceive and defraud
7
Plaintiff and to induce Plaintiff to act in reliance on the promises in the manner herein alleged, or
8
with the expectation that Plaintiff would so act.
9
10
11
12
13
119.
Plaintiff, at the time Defendants made these promises and at the time of the actions
herein alleged, was unaware of the falsity of Defendants’ promises and believed them to be true.
120.
In reliance on Defendants’ promises, Plaintiff provided Defendants with access to
the 2014 and 2015 annual meetings and allowed Defendants to participate in those meetings.
121.
Defendants created Biomax – a fictitious company – to fraudulently infiltrate
14
Plaintiff’s 2014 and 2015 annual meetings. On information and belief, Defendants improperly
15
and surreptitiously made video or audio recordings at the 2014 and 2015 annual meetings without
16
Plaintiff’s consent, including video or audio recordings of NAF staff, members, exhibitors, and
17
attendees of the 2014 and 2015 annual meetings, and improperly gained access to, misused, and
18
disclosed confidential information acquired as a result of the fraud perpetrated by Defendants,
19
including confidential information acquired at the 2014 and 2015 annual meetings.
20
122.
Defendants have stated they plan to release video and audio recordings to the
21
public that, on information and belief, were improperly and surreptitiously acquired as a result of
22
the fraud perpetrated by Defendants. Defendants refuse to return the video and audio files and
23
continue to threaten to release the fraudulently obtained videos on a weekly basis.
24
123.
As a result of Defendants’ wrongful acts, Plaintiff has suffered and/or will suffer
25
economic harm and irreparable harm caused by the improper acquisition, use, and disclosure of
26
Plaintiff’s confidential information, including harm to the safety, security, and privacy of Plaintiff
27
and its members, harm to the reputation of Plaintiff and its members, and harm caused by the
28
diversion of necessary resources to address the consequences of Defendants’ actions. If
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(204 of 233)
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Defendants are allowed to continue their wrongful acts, Plaintiff will suffer further immediate and
2
irreparable injury and loss.
3
124.
Defendants’ actions constitute malice and oppression, as defined under California
4
Civil Code § 3294(c), as Defendants fraudulently induced NAF into believing their promises in
5
order to gain access to NAF’s annual meetings. Punitive damages are appropriate to punish
6
Defendants and deter others from engaging in similar misconduct.
7
FOURTH CAUSE OF ACTION
(Fraudulent Misrepresentation)
(Against Daleiden, CMP, and Biomax)
8
9
10
11
125.
Plaintiff incorporates and realleges paragraphs 1 through 124, inclusive, as though
set forth in full herein.
126.
On February 5, 2014 and again on March 25, 2015, Defendants made at least the
12
following representations to NAF: that Biomax was a biological specimen procurement company,
13
that their proposed exhibit for the annual meetings was consistent with NAF’s purposes, that they
14
would identify and display their business and its services truthfully and accurately, and that any
15
information disclosed orally or visually at the annual meeting would not be disclosed to any third
16
party absent NAF’s written consent.
17
127.
On April 5, 2014 and again on April 18, 2015, Defendants made at least the
18
following representations to NAF: (1) that that they were affiliated with Biomax, a biological
19
specimen procurement company; (2) that they would not make video, audio, photographic, or
20
other recordings at the NAF annual meetings; (3) that they would not disclose any information
21
learned at NAF’s annual meeting to third parties absent NAF’s consent; and (4) that they would
22
only use information learned at NAF’s annual meeting in order to enhance the quality and safety
23
of services provided by NAF members and other annual meeting participants.
24
128.
These representations were false. Defendants created a fictitious company and
25
presented fake identifications to infiltrate and gain access to Plaintiff’s 2014 and 2015 annual
26
meetings.
27
28
129.
When Defendants made these representations, Defendants knew them to be false.
Defendants made these representations with the intent to deceive and defraud Plaintiff and to
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induce Plaintiff to act in reliance on the representations in the manner herein alleged, or with the
2
expectation that Plaintiff would so act.
3
130.
Plaintiff, at the time Defendants made these representations and at the time of the
4
actions herein alleged, was unaware of the falsity of the Defendants’ representations and believed
5
them to be true.
6
131.
In reliance on Defendants’ misrepresentations, Plaintiff provided Defendants with
7
access to the 2014 and 2015 annual meetings and allowed Defendants to participate in those
8
meetings.
9
132.
As a result of Defendants’ wrongful acts, Plaintiff has suffered and/or will suffer
10
economic harm and irreparable harm caused by the improper acquisition, use, and disclosure of
11
Plaintiff’s confidential information, including harm to the safety, security, and privacy of Plaintiff
12
and its members, harm to the reputation of Plaintiff and its members, and harm caused by the
13
diversion of necessary resources to address the consequences of Defendants’ actions. If
14
Defendants are allowed to continue their wrongful acts, Plaintiff will suffer further immediate and
15
irreparable injury and loss.
16
133.
Defendants’ actions constitute malice and oppression, as defined under California
17
Civil Code § 3294(c), as Defendants fraudulently induced NAF into gaining access to NAF’s
18
annual meetings. Punitive damages are appropriate to punish Defendants and deter others from
19
engaging in similar misconduct.
20
FIFTH CAUSE OF ACTION
(Breach of Contract(s))
(Against Daleiden, CMP, and Biomax)
21
22
23
24
134.
Plaintiff incorporates and realleges paragraphs 1 through 133, inclusive, as though
set forth in full herein.
135.
On February 5, 2014 and again on March 25, 2015, Defendants entered into
25
written Exhibitor Agreements with NAF in which they promised that Biomax was a biological
26
specimen procurement company, that Biomax’s exhibit for the annual meetings would be
27
consistent with NAF’s purposes, that Biomax would identify and display its services truthfully
28
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and accurately, and that any information disclosed orally or visually at the annual meeting would
2
not be disclosed to any third party absent NAF’s written consent.
3
136.
On April 5, 2014 and again on April 18, 2015, Defendants signed non-disclosure
4
agreements in which they promised not to make video, audio, photographic, or other recordings at
5
the NAF annual meetings, that they would not disclose any information learned at NAF’s annual
6
meetings to third parties absent NAF’s consent, and that they would only use information learned
7
at NAF’s annual meetings in order to enhance the quality and safety of services provided by NAF
8
members and other annual meeting participants.
9
137.
Defendants have breached these agreements. Contrary to their written Exhibitor
10
Agreements, Biomax is not a biological specimen procurement company, Biomax’s exhibit for
11
the annual meetings was not consistent with NAF’s purposes, and Biomax did not identify itself
12
or its services truthfully and accurately. Contrary to their written Exhibitor Agreements, on
13
information and belief, Defendants have disclosed information orally or visually at the annual
14
meetings to third parties without NAF’s written consent. Contrary to their written NDA, on
15
information and belief, Defendants did make video, audio, photographic, or other recordings at
16
the NAF annual meetings, have disclosed information learned at NAF’s annual meetings to third
17
parties without NAF’s consent, and have not used information learned at NAF’s annual meetings
18
in order to enhance the quality and safety of services provided by NAF members and other annual
19
meeting participants.
20
21
22
138.
Plaintiff has performed all of the conditions of the agreements on its part to be
done and performed in accordance with the terms of the agreements.
139.
As a result of Defendants’ wrongful acts, Plaintiff has suffered and/or will suffer
23
economic harm and irreparable harm caused by Defendants’ breaches, including harm to the
24
safety, security, and privacy of Plaintiff and its members, harm to the reputation of Plaintiff and
25
its members, and harm caused by the diversion of necessary resources to address the
26
consequences of Defendants’ actions. If Defendants are allowed to continue their wrongful acts,
27
Plaintiff will suffer further immediate and irreparable injury and loss.
28
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(207 of 233)
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SIXTH CAUSE OF ACTION
(Anticipatory Breach of Contract(s))
(Against Daleiden, CMP, and Biomax)
2
3
4
5
140.
Plaintiff incorporates and realleges paragraphs 1 through 139, inclusive, as though
set forth in full herein.
141.
On February 5, 2014 and again on March 25, 2015, Defendants entered into
6
written Exhibitor Agreements with NAF in which they promised, among other things, that any
7
information disclosed orally or visually at the annual meeting would not be disclosed to any third
8
party absent NAF’s written consent.
9
142.
On April 5, 2014 and again on April 18, 2015, Defendants signed non-disclosure
10
agreements in which they promised, among other things, not to make video, audio, photographic,
11
or other recordings at the NAF annual meetings, that they would not disclose any information
12
learned at NAF’s annual meetings to third parties absent NAF’s consent, and that they would only
13
use information learned at NAF’s annual meetings in order to enhance the quality and safety of
14
services provided by NAF members and other annual meeting participants.
15
143.
On information and belief, Defendants have breached the contracts by, among
16
other things, making video or audio recordings at the 2014 and 2015 annual meetings without
17
Plaintiff’s consent, including recordings of NAF staff, members, exhibitors, and attendees of the
18
2014 and 2015 annual meetings, and by otherwise collecting information about NAF and its
19
members for purposes other than to enhance the quality and safety of services provided by NAF
20
members and other annual meeting participants.
21
144.
Defendants have publicly stated they have hundreds if not thousands of hours of
22
video or audio tape, which on information and belief includes video or audio tape taken at NAF’s
23
annual meetings. Defendants have publicly stated that they intend to continue to disclose such
24
information.
25
145.
Despite NAF’s demand that Defendants cease violating the Exhibitor Agreements
26
and non-disclosure agreements, and that they immediately return all audio or videotapes, or any
27
other confidential information gathered at NAF’s annual meetings, Defendants refuse to return
28
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(208 of 233)
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the video and audio files and continue to threaten to release the obtained videos on a weekly
2
basis.
3
4
5
146.
Plaintiff has performed all of the conditions of the agreements on its part to be
done and performed in accordance with the terms of the agreements.
147.
As a result of Defendants’ wrongful acts, Plaintiff has suffered and/or will suffer
6
economic harm and irreparable harm caused by Defendants’ breaches, including harm to the
7
safety, security, and privacy of Plaintiff and its members, harm to the reputation of Plaintiff and
8
its members, and harm caused by the diversion of necessary resources to address the
9
consequences of Defendants’ actions. If Defendants are allowed to continue their wrongful acts,
10
Plaintiff will suffer further immediate and irreparable injury and loss.
11
SEVENTH CAUSE OF ACTION
(Trespass)
(Against Daleiden, CMP, and Biomax)
12
13
14
15
16
17
148.
Plaintiff incorporates and realleges paragraphs 1 through 147, inclusive, as though
set forth in full herein.
149.
NAF possessed a right to exclusive use and enjoyment of the real property it
rented for its 2014 and 2015 annual meetings.
150.
As alleged herein, Defendants fraudulently induced NAF’s consent to attend these
18
conferences, and on information and belief subsequently exceeded the scope of NAF’s consent by
19
knowingly and intentionally videotaping NAF members at conferences in violation of NAF’s
20
confidentiality agreement. Defendants also did not have an intended business interest in reaching
21
reproductive health care professionals in attending the conferences, and divulged confidential
22
information in violation of NAF’s exhibit rules and regulations, thereby further exceeding NAF’s
23
consent.
24
25
26
151.
Defendants’ knowing and intentional conduct alleged herein, which exceeded the
scope of Plaintiff’s consent to enter NAF conference premises, constitutes a trespass.
152.
As a result of Defendants’ trespass, Plaintiff has suffered – and continues to suffer
27
– economic harm and irreparable harm that includes, but is not limited to: being forced to divert
28
resources to combat Defendants’ misrepresentations in highly edited videos taken while
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A166
49
(209 of 233)
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trespassing on Plaintiff’s property that Defendant subsequent released; and suffering reputational
2
harm as a result of such videos.
3
153.
Defendants’ actions constitute malice and oppression, as defined under California
4
Civil Code § 3294(c), as Defendants fraudulently induced NAF’s consent and intentionally
5
exceeded the scope of its consent to cause mental anguish, shame, mortification, and mental
6
suffering to NAF members. Punitive damages are appropriate to punish Defendants and deter
7
others from engaging in similar misconduct.
8
EIGHTH CAUSE OF ACTION
(Violations of California Business & Professions Code § 17500, et seq.
Based on False and Misleading Advertising)
(Against Daleiden, CMP, and Biomax)
9
10
11
12
13
154.
Plaintiff incorporates and realleges paragraphs 1 through 153, inclusive, as though
set forth in full herein.
155.
As alleged herein, Defendants made or caused to be made untrue or misleading
14
statements regarding the nature of their services, which Defendants knew or reasonably should
15
have known were untrue or misleading, with the intent to induce NAF to enter into obligations
16
relating thereto, and with the intent not to provide those services as advertised, in violation of
17
California Business and Professions Code § 17500, et seq.
18
156.
Such statements include but are not limited to statements that Biomax Procurement
19
Services was a “biological specimen procurement organization” that “provides tissue and
20
specimen procurement for academic and private bioscience researchers.” Defendants stated that
21
the company was committed to “provid[ing] the highest-quality specimens with efficient,
22
professional service to facilitate world-changing discoveries.”
23
157.
These and other statements identified herein are false. Defendants created Biomax
24
Procurement Services as a fictitious corporation for the purpose, among others, of gaining access
25
to NAF’s annual meetings and placing NAF’s members and the services they provide in a false
26
light. Defendants never intended to procure biological specimens or “facilitate world-changing
27
discoveries.” Instead, Defendants advertised their “services” as part of scheme designed to
28
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A167
50
(210 of 233)
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achieve their stated goal of ending legal abortion care and placing life-saving, legal fetal tissue
2
donation programs in jeopardy.
3
158.
In creating Biomax and entering into false agreements with Plaintiff, Defendants
4
disseminated false and misleading information concerning Defendants’ services, and advertised
5
their services with the intent not to sell them as advertised in violation of California Business and
6
Professions Code § 17500.
7
159.
Moreover, the heavily edited videos released by Defendants are false and
8
misrepresent the character and quality of NAF’s members and the services they provide. The
9
videos expressly and impliedly convey the false message that NAF members promote the sale and
10
profit of fetal tissue and human organs, when the exact opposite is true. These videos are likely
11
to mislead the general public and potential funders into believing that Plaintiff engages in illegal
12
or unethical business practices.
13
14
15
16
17
160.
In releasing these videos online, Defendants have disseminated false and
misleading information regarding Plaintiff’s organization.
161.
An action for injunctive relief and restitution is specifically authorized under
California Business and Professions Code § 17535.
162.
As alleged herein, Plaintiff has suffered injury in fact and lost money and property
18
as a result of Defendants’ false advertising. Plaintiff has diverted substantial resources to combat
19
Defendants’ fraud and misrepresentations. Plaintiff has thus suffered injury in fact and lost
20
money or property as a result of Defendants’ deceptive and fraudulent conduct.
21
163.
The false advertising of Defendants, as described above, presents a continuing
22
threat to Plaintiff. If Defendants are allowed to continue their wrongful acts, Plaintiff will suffer
23
further immediate and irreparable injury and loss.
24
NINTH CAUSE OF ACTION
(Violations of California Business & Professions Code § 17200, et seq.
Based on Commission of Unlawful, Unfair, and Fraudulent Acts)
(Against Daleiden, CMP, and Biomax)
25
26
27
28
164.
Plaintiff incorporates and realleges paragraphs 1 through 163, inclusive, as though
set forth in full herein.
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A168
51
(211 of 233)
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165.
As alleged herein, Defendants have committed “unlawful” acts of unfair
2
competition, as defined by California Business and Professions Code § 17200, by: (1) conspiring
3
to defraud and defrauding Plaintiff; (2) breaching NAF’s Exhibitor Agreements and non-
4
disclosure agreements; (3) engaging in false advertising in violation of California Business and
5
Professions Code § 17500; (4) engaging in trespass by exceeding the scope of NAF’s consent
6
through surreptitiously taping NAF meetings in violation of NAF’s confidentiality agreement; (5)
7
intruding in a private place in a highly offensive manner; (6) physically and constructively
8
invading NAF’s privacy and the privacy of its members in violation of California Civil Code
9
§ 1708.8; (7) violating California Penal Code § 632; and (8) violating corresponding Maryland
10
11
12
13
privacy law provisions.
166.
Plaintiff reserves the right to allege other violations of law which constitute
unlawful business practices. Such conduct is ongoing and continues today.
167.
Defendants have committed “unfair” acts of unfair competition, as defined by
14
California Business and Professions Code § 17200, by engaging – and continuing to engage – in
15
conduct that is immoral, unethical, oppressive, unscrupulous and/or substantially injurious to
16
consumers. This conduct includes, but is not limited to: (1) creating a fictitious company to gain
17
access to Plaintiff’s members; (2) violating – and publicly threatening to continue violating –
18
NAF’s confidentiality agreements; (3) trespassing on NAF’s property; and (4) engaging in a
19
smear campaign against NAF and its members and otherwise portraying NAF and its members in
20
a false light. Defendants engaged in this immoral, unethical, oppressive, and unscrupulous
21
conduct for the sole purpose of demonizing and intimidating NAF’s members and discrediting
22
legal fetal tissue donation programs that advance life-saving medical research.
23
168.
Plaintiff had no way of reasonably knowing that Defendants perpetrated a
24
fraudulent scheme to gain access to NAF annual meetings, nor could it have reasonably known
25
that Defendants surreptitiously videotaped Plaintiff’s members during NAF meetings with the
26
intent of releasing edited videos that attempt to discredit Plaintiff and portray its members in a
27
false light. The gravity of harm caused by Defendant’s conduct as described herein far outweighs
28
the utility, if any, of such conduct.
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A169
52
(212 of 233)
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169.
Defendants have committed “fraudulent” acts of unfair competition, as defined by
2
California Business and Professions Code § 17200, by engaging – and continuing to engage – in
3
conduct that is likely to deceive members of the public. This conduct includes, but is not limited
4
to: (1) conspiring to defraud and defrauding Plaintiff for the sole purpose of gaining access to
5
Plaintiff’s conferences and members; (2) secretly taping Plaintiff’s members at NAF annual
6
meetings in violation of Plaintiff’s confidentiality agreement; and (3) publicly releasing – and
7
threatening to continue to release – heavily edited versions of such videos, with the intent of
8
harassing and intimidating abortion providers, undermining safe and legal abortion care, and
9
discrediting life-saving, legal fetal tissue donation programs.
10
11
12
170.
An action for injunctive relief and restitution is specifically authorized under
California Business and Professions Code § 17203.
171.
As a result of Defendants’ “unlawful,” “unfair,” and “fraudulent” acts, Plaintiff
13
has diverted substantial resources from promoting its mission to ensure access to safe and legal
14
abortion care to instead combatting the misrepresentations disseminated by Defendants and to
15
protecting its members from future harm. Plaintiff and its members have also suffered
16
reputational damage as a result of Defendants’ unlawful acts. Plaintiff has thus suffered injury in
17
fact and has lost money and property as a direct result of Defendants’ unlawful, unfair, and
18
fraudulent conduct.
19
172.
Defendants’ unlawful, unfair, and fraudulent practices, as described above, present
20
a continuing threat to Plaintiff. If Defendants are allowed to continue their wrongful acts,
21
Plaintiff will suffer further immediate and irreparable injury and loss.
22
TENTH CAUSE OF ACTION
(Violation of California Penal Code § 632)
(Against Daleiden, CMP, and Biomax)
23
24
173.
Plaintiff incorporates and realleges paragraphs 1 through 172, inclusive, as though
25
set forth in full herein.
26
174.
Plaintiff presents this claim on its own behalf, as well as on behalf of its members.
27
Plaintiff has associational standing to present this claim on behalf of its members because: (1) its
28
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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(213 of 233)
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members would otherwise have standing to sue in their own right; (2) the privacy and safety
2
issues NAF seeks to vindicate on behalf of its members are central to its core purpose; and (3)
3
neither the claim asserted nor the relief requested requires the participation of individual members
4
in the lawsuit. Plaintiff also has standing to bring this claim because it has diverted resources to
5
combat Defendants’ invasions, resources that would otherwise be dedicated to its core mission of
6
ensuring access to safe, legal abortion care.
7
175.
On information and belief, Plaintiff alleges that Defendant Daleiden and his co-
8
conspirators intentionally recorded confidential communications made during Plaintiff’s 2014
9
annual meeting in San Francisco, in violation of California Penal Code § 632.
10
176.
Plaintiff and its members believed that any communication during the 2014 annual
11
meeting in San Francisco would be confidential, as defined in section 632. Plaintiff’s belief was
12
objectively reasonable because (1) all attendees at the meeting, including Defendants, were
13
required to sign non-disclosure agreements with confidentiality provisions prior to entering the
14
conference and all attendees received and were required to wear badges demonstrating that they
15
had signed such agreements; (2) Plaintiff had in place a Security Program to ensure that
16
communications concerning and made during the annual meeting would be confidential and
17
restricted to NAF members and trusted others; and (3) the nature and subject matter of the
18
meeting were highly sensitive and historically have caused providers of abortion care and their
19
members to be victims of violence and harassment.
20
21
22
23
24
25
26
27
28
177.
Defendants’ recordings of NAF members during the 2014 annual meeting were
made without NAF’s consent, the consent of its members and/or the consent of all parties.
178.
Plaintiff is authorized by statute to bring a civil action for $5,000 or three times the
amount of actual damages pursuant to California Penal Code § 637.2(a)(2).
ELEVENTH CAUSE OF ACTION
(Violation of § 10-402 of the Courts and Judicial Proceedings Article of the Maryland
Annotated Code)
(Against Daleiden, CMP, and Biomax)
179.
Plaintiff incorporates and realleges paragraphs 1 through 178, inclusive, as though
set forth in full herein.
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A171
54
(214 of 233)
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180.
Plaintiff presents this claim on its on behalf, as well as on behalf of its members.
2
Plaintiff has associational standing to present this claim on behalf of its members because: (1) its
3
members would otherwise have standing to sue in their own right; (2) the privacy and safety
4
issues NAF seeks to vindicate on behalf of its members are central to its core purpose; and (3)
5
neither the claim asserted nor the relief requested requires the participation of individual members
6
in the lawsuit. Plaintiff also has standing to bring this claim because it has diverted resources to
7
combat Defendants’ invasions, resources that would otherwise be dedicated to its core mission of
8
ensuring access to safe, legal abortion care.
9
181.
On information and belief, Plaintiff alleges that Defendant Daleiden and his co-
10
conspirators willfully intercepted and/or procured other persons to intercept private oral
11
communications during Plaintiff’s 2015 annual meeting in Baltimore, Maryland, in violation of
12
the Maryland Wiretapping and Electronic Surveillance Act, section 10-402 of the Courts and
13
Judicial Proceedings Article of the Maryland Annotated Code.
14
182.
Plaintiff and its members had a reasonable expectation of privacy regarding
15
Plaintiff’s communications during the 2015 annual meeting. Plaintiff’s expectation was
16
reasonable because (1) all attendees at the meeting, including Defendants, were required to sign
17
non-disclosure agreements with confidentiality provisions prior to entering the meeting and all
18
attendees received and were required to wear badges demonstrating that they had signed such
19
agreements; (2) Plaintiff had in place a Security Program to ensure that communications
20
concerning and made during the annual meeting would be confidential and restricted to NAF
21
members and trusted others; and (3) the nature and subject matter of the conferences were highly
22
sensitive and historically have caused providers of abortion care to be victims of violence and
23
harassment.
24
183.
Defendants’ recordings of Plaintiff’s private communications, and those of its
25
members, at the 2015 annual meeting were made without NAF’s consent and/or the consent or
26
authorization of all parties.
27
28
184.
Plaintiff is authorized to bring a civil action for actual damages equal to the higher
of $1,000 or $100 per day for each day of violation pursuant to section 10-410(a).
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A172
55
(215 of 233)
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TWELFTH CAUSE OF ACTION
(Invasion of Privacy: Intrusion upon a Private Place)
(Against Daleiden, CMP, and Biomax)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
185.
Plaintiff incorporates and realleges paragraphs 1 through 184, inclusive, as though
set forth in full herein.
186.
Plaintiff presents this claim for and on behalf of its members. Plaintiff has
associational standing to present this invasion of privacy claim on behalf of its members because:
(1) its members would otherwise have standing to sue in their own right; (2) the privacy and
safety issues NAF seeks to vindicate on behalf of its members are central to its core purpose; and
(3) neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit. Plaintiff also has standing to bring this claim because it has diverted
resources to combat Defendants’ invasions, resources that would otherwise be dedicated to its
core mission of ensuring access to safe, legal abortion care.
187.
NAF and its members had an objectively reasonable expectation that the annual
meetings would be private, as well as an objectively reasonable expectation that all conversations,
exhibits, and presentations occurring during those conferences would remain private. Not only
did NAF preclude videotaping or other recordings in its confidentiality agreements, but it also
limited conference attendance to those who possessed “an intended business interest in reaching
reproductive health care professionals.” At the same time, NAF excluded exhibitors whose
“products, services, or performance . . . [were] not consistent with NAF’s purposes and
objectives.” NAF also adopted stringent security measures to ensure that conference attendees –
often the target of anti-abortion violence – remained safe and secure throughout the event.
188.
By fraudulently inducing NAF’s consent to attend its private annual meetings for
the sole purpose of intimating and harassing Plaintiff and its members, and by surreptitiously
videotaping and recording conference attendees thereafter, Defendants intentionally intruded
upon the privacy of NAF’s meetings as well as the private conversations and presentations that
occurred therein.
27
28
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A173
56
(216 of 233)
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189.
Defendants’ intentional intrusion upon NAF’s privacy is highly offensive to a
2
reasonable person in light of the malice and oppression underlying Defendants’ motives, and the
3
history of violence, harassment and oppression perpetrated by Defendants toward NAF members
4
over time.
5
190.
Defendants’ actions constitute malice and oppression, as defined under California
6
Civil Code § 3294(c), as Defendants fraudulently induced NAF’s consent and intentionally
7
exceeded the scope of that consent to cause mental anguish, shame, mortification, and mental
8
suffering to NAF members. Punitive damages are appropriate to punish Defendants and deter
9
others from engaging in similar misconduct.
10
THIRTEENTH CAUSE OF ACTION
(Invasion of Privacy: False Light)
(Against Daleiden, CMP, and Biomax)
11
12
13
14
191.
Plaintiff incorporates and realleges paragraphs 1 through 190, inclusive, as though
set forth in full herein.
192.
Plaintiff presents this claim for and on behalf of its members. Plaintiff has
15
associational standing to present this invasion of privacy claim on behalf of its members because:
16
(1) its members would otherwise have standing to sue in their own right; (2) the privacy and
17
safety issues NAF seeks to vindicate on behalf of its members are central to its core purpose; and
18
(3) neither the claim asserted nor the relief requested requires the participation of individual
19
members in the lawsuit. Plaintiff also has standing to bring this claim because it has diverted
20
resources to combat Defendants’ invasions, resources that would otherwise be dedicated to its
21
core mission of ensuring access to safe, legal abortion care.
22
193.
On information and belief, after Defendants conspired to and did fraudulently gain
23
access to NAF’s annual meetings, they carried on their illegal videotaping campaign, which
24
campaign is designed to intimidate and harass providers of abortion care, to harm the reputations
25
of providers of abortion care, and to place them in harm’s way. Defendants have since released
26
four heavily edited videos on July 14, 21, 28, and 30, 2015, which disclosures were (1) recorded
27
without consent or authorization in violation of law, (2) false and highly misleading, and
28
(3) which placed the victims (including those videotaped and those discussed in the videotape) in
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A174
57
(217 of 233)
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a false light, thereby harming their professional reputations and placing them in harm’s way. On
2
information and belief, Plaintiff alleges that Defendants will imminently release heavily edited
3
and highly misleading videos of NAF members from the 2014 and 2015 annual meetings which
4
were recorded without consent or authorization.
5
194.
In these heavily edited videos, Defendants’ major misrepresentations of NAF
6
members’ characters, activities, and beliefs will portray NAF members in a false light which
7
would be highly offensive to a reasonable person.
8
9
10
195.
Defendants’ acts invaded NAF members’ privacy interest in peace of mind and
freedom from public embarrassment and harassment.
196.
Defendants had knowledge of and/or acted in reckless disregard of the false and
11
highly misleading nature of Defendants’ heavily edited videos and the false light in which NAF
12
members would be placed.
13
197.
As a direct and proximate result of Defendants’ wrongful conduct, NAF’s
14
members will suffer damage to their professional reputation and be placed in harm’s way. Such
15
harm will continue and increase as Defendants continue their plan to release new, misleading
16
recordings every week unless the Court enjoins Defendants’ acts.
17
PRAYER FOR RELIEF
18
WHEREFORE, Plaintiff prays for relief as follows:
19
A.
20
21
That judgment be entered in favor of Plaintiff and against Defendants on each and
every claim in this Complaint.
B.
Preliminarily and permanently enjoin Defendants and their officers, agents,
22
servants, employees, owners, and representatives, and all other persons, firms, or corporations in
23
active concert or participation with them, from doing the following:
24

Publishing or otherwise disclosing to any third party any video, audio,
photographic, or other recordings taken, or any confidential information
learned, at any NAF annual meetings;

Publishing or otherwise disclosing to any third party the dates or locations of
any future NAF meetings;

Publishing or otherwise disclosing to any third party the names or addresses of
any NAF members learned at any NAF annual meetings; and
25
26
27
28
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A175
58
(218 of 233)
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
2
C.
Attempting to gain access to any future NAF meetings.
Defendants should also be subject to an injunction requiring them to (a) return to
3
NAF (i) any and all video, audio, photographic, or other recordings taken at any NAF annual
4
meetings, and (ii) any and all NAF Conference Information (i.e., information distributed or
5
otherwise made available at NAF annual meetings orally or visually through any written
6
materials, discussions, workshops, seminars, or other means); and (b) destroy any and all copies
7
of any such materials within their possession, custody, or control.
D.
8
9
10
Restitution of all monies expended by Plaintiff as a result of Defendant’s unlawful,
unfair, and fraudulent business practices as provided by California Business and Professions Code
§ 17203.
11
E.
Compensatory damages in such amounts as the Court deems just and proper.
12
F.
Statutory penalties and damages in such amounts as the Court deems just and
G.
On Plaintiff’s Civil RICO claim, three times the damages Plaintiff has sustained as
13
14
15
proper.
a result of Defendants’ conduct;
16
H.
Punitive damages pursuant to California Civil Code § 3294;
17
I.
That the Court award Plaintiff its costs and disbursements for this lawsuit,
18
19
including its reasonable attorneys’ fees as provided by law; and
J.
That the Court grant such other and further relief as it deems just and proper.
20
21
Dated: July 31, 2015
22
DEREK F. FORAN
MORRISON & FOERSTER LLP
23
24
By:
25
/s/ Derek F. Foran
DEREK F. FORAN
Attorneys for Plaintiff
NATIONAL ABORTION FEDERATION
26
27
28
COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
A176
59
(219 of 233)
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of 2of 193
Exhibit A
A177
(220 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-1
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page2
Page 180
of 2of 193
A178
(221 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-2
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page1
Page 181
of 2of 193
Exhibit B
A179
(222 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-2
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page2
Page 182
of 2of 193
A180
(223 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-3
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page1
Page 183
of 2of 193
Exhibit C
A181
(224 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-3
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page2
Page 184
of 2of 193
A182
(225 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-4
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page1
Page 185
of 2of 193
Exhibit D
A183
(226 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-4
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page2
Page 186
of 2of 193
A184
(227 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-5
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page1
Page 187
of 5of 193
Exhibit E
A185
(228 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-5
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page2
Page 188
of 5of 193
A186
(229 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-5
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page3
Page 189
of 5of 193
A187
(230 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-5
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page4
Page 190
of 5of 193
A188
(231 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-5
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page5
Page 191
of 5of 193
A189
(232 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-6
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page1
Page 192
of 2of 193
Exhibit F
A190
(233 of 233)
Case:Case3:15-cv-03522
15-72844, 09/14/2015,
Document1-6
ID: 9682064,Filed07/31/15
DktEntry: 1-3, Page2
Page 193
of 2of 193
A191