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

Filing 33

Memorandum in opposition to re 32 MOTION for Leave to File Supplemental Brief in Opposition to Defendants' Motion to Dismiss First Amended Complaint filed by MORGAN GOODWIN, JOHN and JANE DOES NOS. 1-20, SARAH MURPHY, JACQUES SERVIN, DAVID SIEVERS, SUPPORT AND COMMITMENT, INC., IGOR VAMOS. (Attachments: # 1 Text of Proposed Order)(Corn-Revere, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA,
Plaintiff,
v.
JACQUES SERVIN, et al.
Defendants.

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Case No. 09-CV-02014-RWR

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF IN OPPOSITION
TO DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

Plaintiff’s motion is yet another instance of the Chamber’s repeated efforts in this
proceeding to misuse the Court’s procedural authority to curtail Defendants’ speech.
Accordingly, Defendants oppose Plaintiff’s Motion for Leave to File a Supplemental Brief, and
in support state as follows:
1.

Plaintiff’s current motion attempts once again to game the judicial process by

submitting numerous duplicative supplementary filings, all in support of its bid to chill
Defendants’ speech. First, notwithstanding the parties’ full briefing on Defendants’ Motion for
Stay of Discovery (Dkt. # 17), the Chamber moved for leave to file a sur-reply, hoping to
persuade this Court to allow the Chamber to launch discovery prematurely, despite the potential
free speech harms that would result from such an Order. (Dkt. # 28; see Dkt. # 22, Defs.’ Reply
To Pl.’s Opp. to Mot. for Stay of Discovery at 2-3) One month later, Plaintiff’s counsel
requested via letter that the court convene a status conference to address the Chamber’s desire to
commence discovery. Defendants opposed the Chamber’s request, noting that in addition to

making false representations, the Chamber’s counsel appeared to be using the request as a
pretext to file an additional sur-reply in opposition to Defendants’ motion to stay discovery. In
the same vein, Plaintiff’s present motion for leave to file a supplemental brief in opposition to
Defendants’ Motion to Dismiss the First Amended Complaint repeats the Chamber’s pattern of
using protracted procedural games to take additional bites at the apple.
2.

Plaintiff’s proffered supplemental brief raises no new issue and instead merely re-

hashes arguments already thoroughly briefed by both parties. The Chamber’s proposed
supplemental brief merely repeats arguments and allegations the Chamber asserted in its
Opposition to Defendants’ motion to dismiss. In its motion for leave (and its attached
Supplemental Brief), Plaintiff alleges that Defendants’ film, “The Yes Men Fix The World,”
includes footage of the press conference that was the culminating event of their elaborate
political parody, and thereby demonstrates that the Yes Men’s conduct in staging the hoax was
commercial speech to support movie sales. This issue is well-trod ground in this case. In its
Opposition, Plaintiff argued that Defendants’ political parody was used by the Yes Men to
promote “theatrical-release movies.” (Dkt. # 24, Opp. Br. at 4.) In reply, Defendants explained
that even if the Yes Men’s political parody at issue in this case was in service of a movie (which
it was not), the expression remains constitutionally-protected because movies are expressive
works, as are the advertisements promoting them. (Dkt. # 26, Reply Br. at 10; see also Dkt. #15,
Mot. to Dismiss at 22-23; Dkt. # 20, Br. of Amicus Curiae Public Citizen Litigation Group at 5.)
Defendants further noted that because the Lanham Act regulates only commercial speech, the
expressive nature of the Yes Men’s political speech in staging the political parody of the
Chamber bars almost all of Plaintiff’s claims. (Dkt. # 26, Reply Br. at 11.) In light of the

2

parties’ existing (and extensive) briefing of the issue, there is no need for supplemental argument
at this late stage.1
3.

Plaintiff’s proposed supplemental brief perfectly illustrates the Chamber’s true

intent: to use the judicial process to silence Defendants’ political speech. Incredibly, Plaintiff
asks the Court to consider extensive quotations by Defendants Jacques Servin and Igor Vamos
regarding their film as evidence that the Yes Men are using footage of the press conference hoax
“for commercial gain.” However, as the quotations make clear, the film in question was released
via a “peer-to-peer” website, without charge. (Dkt. #32-1, Pl.’s Suppl. Br. ¶ 8 (“Another reason
we are doing this is because this is the way people see movies these days, and we made this
movie for people to see it.”).) Further, Defendants’ stated main objective in creating and
releasing the parody film was to foster public debate. (Id. at ¶ 9 (“We have been impersonating
people in power in [sic] to make political points for over a decade.”)

The Yes Men’s request

for donations to support their work does not render the parody stunt commercial speech, as
Plaintiff strains to argue. Instead, Defendants are merely continuing their efforts to spark debate
over the Chamber’s position on climate change, activities that are clearly protected by the First
Amendment. The Chamber’s discomfort with public criticism is entirely understandable, but its
attempt to use the judicial process to suppress political speech cannot be reconciled with the First
Amendment and should be rejected.
WHEREFORE, Defendants oppose Plaintiff’s Motion for Leave to Supplemental Brief
and respectfully request that this Court deny Plaintiff’s Motion.

1

For the same reasons set forth herein, Defendants also oppose the Chamber’s concurrent
request to amend its complaint again if the court denies its motion to supplement its briefing on
Plaintiff’s motion to dismiss
3

Dated this 5th day of August, 2010.

Respectfully submitted,
/s/ Robert Corn-Revere
Robert Corn-Revere (D.C. Bar No. 375415)
[e-mail]
Lisa B. Zycherman (D.C. Bar No. 495277)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue, NW, Suite 800
Washington, D.C. 20006
[phone]
[phone] fax
Bruce E. H. Johnson (admitted pro hac vice)
[e-mail]
Ambika Doran (admitted pro hac vice)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101-3045
[phone]
[phone] fax
Thomas R. Burke (admitted pro hac vice)
[e-mail]
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
[phone]
[phone] fax
Matthew Zimmerman (pro hac vice pending)
[e-mail]
Corynne McSherry (pro hac vice pending)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
[phone]
[phone] fax

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CERTIFICATE OF SERVICE
Pursuant to LCvR 5.3, I hereby certify that, on August 5, 2010, I electronically filed with
the Clerk of the Court the foregoing Opposition to Plaintiff’s Motion for Leave to File
Supplemental Brief in Opposition to Defendants’ Motion to Dismiss First Amended Complaint
using the CM/ECF system, and service was effected electronically pursuant to LCvR 5.4(d) on
the following parties:

Michael John Mueller
Hunton & Williams LLP
1900 K Street, NW, Suite 1200
Washington, D.C. 20006
Email: [e-mail]
Deepak Gupta
Public Citizen Litigation Group
1600 20th Street, NW
Washington, D.C. 20009
[e-mail]
Gregory A. Beck
Public Citizen Litigation Group
1600 20th Street, NW
Washington, D.C. 20009
[e-mail]

/s/ Robert Corn-Revere
Robert Corn-Revere (D.C. Bar No. 375415)