CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA v. SERVIN et al

Filing 32

MOTION for Leave to File Supplemental Brief in Opposition to Defendants' Motion to Dismiss First Amended Complaint by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1 - Plaintiff's Supp. Brief in Opp. to Defs'. Mot. to Dismiss 1st Amended Complaint, # 2 Exhibit A to Exhibit 1, # 3 Exhibit B to Exhibit 1, # 4 Text of Proposed Order to Mot. for Leave to File Supp. Brief)(Mueller, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
CHAMBER OF COMMERCE OF THE
)
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
) Case No.: 1:09-cv-02014 - (RWR)
v.
)
JACQUES SERVIN (aka ANDY BICHLBAUM )
)
aka HINGO SEMBRA), IGOR VAMOS (aka
)
MIKE BONANNO), SUPPORT AND
)
COMMITMENT, INC., DAVID SIEVERS,
)
MORGAN GOODWIN, SARAH MURPHY,
)
)
and JOHN and JANE DOES NOS. 1-20,
)
)
Defendants.

PLAINTIFF’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF IN
OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED
COMPLAINT
Plaintiff, the Chamber of Commerce of the United States of America (the “Chamber”),
pursuant to Fed. R. Civ. P. 7(b), respectfully moves the Court for leave to file a Supplemental
Brief in Opposition to Defendants’ Motion to Dismiss First Amended Complaint. The Chamber
seeks leave to file the Supplemental Brief for the purpose of informing the Court of recent
actions by the Defendants that are inconsistent with assertions they have made in support of their
Motion to Dismiss.1 The Chamber’s proposed Supplemental Brief is attached to this Motion as
Exhibit No. 1.

1

The Chamber is seeking leave to file a Supplemental Brief as the most expeditious
means of notifying the Court of Defendants’ recent actions. If the Court prefers that Defendants’
recent conduct be added to the formal pleadings, the Chamber will seek leave to file a Second
Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(2).

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The grounds for the Chamber’s Motion are as follows:
1.

On October 26, 2009, the Chamber filed a complaint against Defendants for,

among other things, trademark infringement and dilution, cyber-piracy, unfair competition, and
false advertising. It filed a First Amended Complaint on November 6, 2009. The Chamber’s
claims are based upon, among other misconduct, Defendants’ misappropriation of the Chamber’s
name and marks to advance the commercial ventures of Defendants Servin and Vamos, who do
business as the “Yes Men.” E.g., First Am. Compl. ¶¶ 12-16, 22-29, 31-33. The Defendants’
unlawful activity included, inter alia, impersonating Chamber representatives at a bogus “press
conference” held on October 19, 2009, where Defendants falsely attributed positions and
statements to the Chamber and its President. As alleged in the First Amended Complaint,
Defendants filmed the bogus press conference, that footage was then posted on the internet, and
certain of the Defendants used the publicity to promote their latest commercial movie, “The Yes
Men Fix The World.” Id. ¶¶ 26, 28 & 33.
2.

In its prayer for relief, the Chamber seeks an injunction that, inter alia, (a)

“[p]rohibits Defendants from publishing or distributing videotape or audiotape of the October 19,
2009 ‘press conference’ on the internet, in commercial theatrical distribution, or otherwise,” (b)
“[r]equires Defendants to remove from the internet . . . all recordings of the October 19, 2009
‘press conference,’” and (c) requires Defendants to deliver to the Chamber all existing copies of
video and audio recordings of the October 19, 2009 “press conference.”
3.

On January 5, 2010, Defendants filed a Motion to Dismiss Plaintiff’s First

Amended Complaint. In the Reply Brief that they submitted to the Court on February 19, 2010
in support of their Motion, Defendants characterized their conduct as being “noncommercial

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political parody” and they denied that their activities were used to promote theatrical-release
movies. Defendants’ Reply at 6 & 10.
4. As discussed more fully in the attached Supplemental Brief, on or about July 23, 2010,
Defendants Servin and Vamos released a new, “special edition” of their commercial movie, “The
Yes Men Fix The World,” which includes footage of the fraudulent press release at issue in this
case. The footage of the fraudulent “press conference” is being used to solicit money to fund the
Yes Men’s activities and to promote sales of their DVDs.
5. Defendants’ current activities are inconsistent with assertions they made in briefing on
their Motion to Dismiss and provide an additional reason why Defendants’ Motion to Dismiss
should be denied.
WHEREFORE, the Chamber respectfully requests that the Court grant it leave to file the
Supplemental Brief in Opposition to Defendants’ Motion to Dismiss First Amended Complaint
that is attached as Exhibit No. 1 to this Motion.
Dated: July 30, 2010

HUNTON & WILLIAMS, LLP
/s/ Michael J. Mueller_________________
RICHARD L. WYATT, JR.
(D.C. Bar No. 424775)
MICHAEL J. MUELLER
(D.C. Bar No. 412025)
THOMAS M. HUGHES
(D.C. Bar No. 460134)
WILLIAM E. POTTS, JR.
(D.C. Bar No. 945824)
1900 K Street, NW
Washington, DC 20006
Tel: [phone]
Fax: [phone]

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
electronic mail and U.S. Mail postage pre-paid this 30th day of July, 2010 upon:

Robert Corn-Revere, Esq.
Davis Wright Tremaine, LLP
1919 Pennsylvania Avenue, N.W., Suite 200
Washington, D.C. 20006
Matthew Zimmerman, Esq.
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
Counsel for Defendants

By: ________/s/____________
Michael J. Mueller

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