COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 25

Memorandum in opposition to re 20 MOTION to Dismiss , 22 MOTION to Dismiss Amended Complaint filed by ROY COCKRUM, SCOTT COMER, ERIC SCHOENBERG. (Berwick, Benjamin)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ROY COCKRUM, SCOTT COMER, and )
ERIC SCHOENBERG,
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 1:17-cv-1370-ESH
)
DONALD J. TRUMP FOR PRESIDENT, )
INC., and ROGER STONE,
)
)
Defendants.
)
)
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS’ MOTIONS TO DISMISS

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 5
I.

Financial and Personal Ties Between Russia and Trump Campaign Leadership. .............. 6

II.

Extensive Secret Meetings During the Campaign .............................................................. 7

III.

Motive to Collaborate and Exchange of Benefits ............................................................... 9

IV.

Wide-Ranging Cover-Up .................................................................................................. 11

STANDARD OF REVIEW .......................................................................................................... 11
ARGUMENT ................................................................................................................................ 13
I.

This Court Has Subject-Matter Jurisdiction. .................................................................... 13
Plaintiffs have alleged sufficient injury and causation for Article III
standing. ................................................................................................................ 13
This Court has diversity jurisdiction over Plaintiffs’ state-law claims. ................ 14
This Court also has supplemental jurisdiction over the state-law claims. ............ 15

II.

This Court Has Personal Jurisdiction Over Defendants and Is a Proper Venue. .............. 16
This Court may exercise specific personal jurisdiction over Defendants. ............ 18
1.

Plaintiffs’ claims arise from Defendants’ conduct in D.C. ....................... 18

2.

Defendants caused harm in D.C................................................................ 21

This Court may exercise general personal jurisdiction over the Campaign
because it is temporarily at home in D.C. ............................................................. 22
Venue is proper in this Court because a substantial portion of the acts
complained of took place in D.C. ......................................................................... 23
III.

Plaintiffs Have Adequately Stated Claims for Violations of D.C. and Federal Law........ 24
Plaintiffs have adequately alleged a conspiracy. .................................................. 24
1.

Plaintiffs have satisfied the pleading standard for conspiracy. ................. 24

2.

The pleading of certain facts based on information and belief is
appropriate and no basis for dismissal. ..................................................... 28
i

TABLE OF CONTENTS
Page
3.

Plaintiffs have adequately pled a single conspiracy between the
named Defendants and other co-conspirators. .......................................... 29

4.

Aiding and abetting tort liability has been recognized by the D.C.
Circuit and has been adequately pled by Plaintiffs. .................................. 32

This Court should apply D.C. law. ....................................................................... 33
The Complaint states plausible claims for public disclosure of private
facts. ...................................................................................................................... 36
1.

The Complaint sufficiently alleges that the facts in question were
private. ...................................................................................................... 37

2.

The Complaint sufficiently alleges that the private facts were not
matters of legitimate public concern. ........................................................ 45

3.

The Complaint sufficiently alleges that publication of the private
facts would have been highly offensive to a reasonable person of
ordinary sensibilities. ................................................................................ 48

4.

The private-facts tort does not require proof that Defendants
specifically intended to disclose Plaintiffs’ private facts. ......................... 50

The Complaint states plausible claims for intentional infliction of
emotional distress.................................................................................................. 51
1.

The Complaint sufficiently alleges that defendants’ alleged
conduct was extreme and outrageous. ...................................................... 51

2.

The Complaint sufficiently alleges that Defendants acted with
reckless disregard as to whether their conduct would cause
emotional distress...................................................................................... 53

3.

The Complaint sufficiently alleges that the Plaintiffs suffered
severe emotional distress. ......................................................................... 54

D.C. tort laws protecting privacy are not unconstitutional. .................................. 56
1.

The torts do not violate the First Amendment. ......................................... 56

2.

The torts are not void for vagueness ......................................................... 58

The Complaint states plausible claims that Defendants violated
42 U.S.C. § 1985(3). ............................................................................................. 59

ii

TABLE OF CONTENTS
Page
1.

Plaintiffs need not allege state action........................................................ 60

2.

Plaintiffs adequately allege conspiratorial purpose. ................................. 65

3.

Defendants’ extraterritoriality argument is irrelevant............................... 67

4.

Defendants’ respondeat superior argument is irrelevant.......................... 68

5.

Defendants’ intracorporate-conspiracy argument fails. ............................ 70

6.

Stone participated in the conspiracy. ........................................................ 70

CONCLUSION ............................................................................................................................. 70

iii

TABLE OF AUTHORITIES
Page(s)
Federal Cases
Albright v. Morton
321 F. Supp. 2d 130 (D. Mass. 2004) ........................................................................................43
Alkanani v. Aegis Defense Servs., LLC
976 F. Supp. 2d 13 (D.D.C. 2014) .............................................................................................18
Am. Nat’l Ins. Co. v. FDIC
642 F.3d 1137 (D.C. Cir. 2011) .................................................................................................12
*Ashcroft v. Iqbal
556 U.S. 662 (2009) .................................................................................................13, 24, 29, 37
*Attias v. Carefirst, Inc.
865 F.3d 620 (D.C. Cir. 2017) .............................................................................................13, 14
Banneker Ventures, LLC v. Graham
798 F.3d 1119 (D.C. Cir. 2015) .................................................................................................24
Bd. of Cty. Comm’rs of Bryan County v. Brown
520 U.S. 397 (1997) .............................................................................................................68, 69
*Bell Atl. Corp. v. Twombly
550 U.S. 544 (2007) ........................................................................................................... passim
*Benz v. Washington Newspaper Pub. Co.
2006 WL 2844896 (D.D.C. Sept. 29, 2006) ............................................................39, 43, 49, 50
Bettis v. Islamic Republic of Iran
315 F.3d 325 (D.C. Cir. 2003) ...................................................................................................54
Blakeney v. O’Donnell
117 F. Supp. 3d 6 (D.D.C. 2015) ...............................................................................................31
*Bowie v. Maddox
642 F.3d 1122 (D.C. Cir. 2011) ...........................................................................................32, 70
Burger King Corp. v. Rudzewicz
471 U.S. 462 (1985) ...................................................................................................................18
City of Canton v. Harris
489 U.S. 378 (1989) ...................................................................................................................68
Coates v. Cincinnati
402 U.S. 611 (1971) ...................................................................................................................58
Compton v. Alpha Kappa Alpha Sorority, Inc.
64 F. Supp. 3d 1 (D.D.C. 2014) .................................................................................................14
Crane v. Carr
814 F.2d 758 (D.C. Cir. 1987) ...................................................................................................35

iv

TABLE OF AUTHORITIES
Page(s)
Crane v. N.Y. Zoological Soc’y
894 F.2d 454 (D.C. Cir. 1990) ...................................................................................................12
*DAG Enters., Inc. v. Exxon Mobil Corp.
2001 WL 34778782 (D.D.C. Sept. 30, 2001) ......................................................................34, 35
*Daimler AG v. Bauman
134 S. Ct. 746 (2014) .................................................................................................................23
de Lupis v. Bonino
2010 WL 1328813 (D.D.C. Mar. 31, 2010).........................................................................27, 30
Dennis v. Sparks
449 U.S. 24 (1980) .....................................................................................................................30
Diven v. Amalgamated Transit Union International & Local 689
38 F.3d 598 (D.C. Cir. 1994) .....................................................................................................16
Doe v. City of N.Y.
15 F.3d 264 (2d Cir. 1994)...................................................................................................42, 45
Dombrowsky v. Dowling
459 F.2d 190 (7th Cir. 1972) (Stevens, C.J.) .............................................................................70
Dooley v. United Techs. Corp.
786 F. Supp. 65 (D.D.C. 1992) ..................................................................................................20
E.E.O.C. v. St. Francis Xavier Parochial Sch.
117 F.3d 621 (D.C. Cir. 1997) .....................................................................................................2
Edmond v. U.S. Postal Serv. Gen. Counsel
949 F.2d 415 (D.C. Cir. 1991) ...................................................................................................20
EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro S.A.
246 F. Supp. 3d 52 (D.D.C. 2017) .......................................................................................32, 33
Evangelou v. D.C.
901 F. Supp. 2d 159 (D.D.C. 2012) ...........................................................................................28
Exxon Mobil Corp. v. Allapattah Servs., Inc.
545 U.S. 546 (2005) ...................................................................................................................15
Federer v. Gephardt
363 F.3d 754 (8th Cir. 2004) ...............................................................................................64, 65
FC Inv. Grp. LC v. IFX Markets, Ltd.
529 F.3d 1087 (D.C. Cir. 2008) .................................................................................................20
Foretich v. Lifetime Cable
777 F. Supp. 47 (D.D.C. 1991) ............................................................................................40, 46
Friends Christian High Sch. v. Geneva Fin. Consultants
39 F. Supp. 3d 58 (D.D.C. 2014) ...............................................................................................28

v

TABLE OF AUTHORITIES
Page(s)
GEICO v. Fetisoff
958 F.2d 1137 (D.C. Cir. 1992) .................................................................................................34
*Gelboim v. Bank of Am. Corp.
823 F.3d 759 (2d Cir. 2016).......................................................................................................26
*Gilbert v. Med. Econ. Co.
665 F.2d 305 (10th Cir. 1981) ...................................................................................................46
Gill v. Farm Bureau Life Insurance Co.
906 F.2d 1265 (8th Cir. 1990) .............................................................................................64, 65
Godfrey v. Georgia
446 U.S. 420 (1980) ...................................................................................................................58
Grayned v. City of Rockford
408 U.S. 104 (1972) ...................................................................................................................58
*Great Am. Fed. Sav. & Loan Ass’n v. Novotny
442 U.S. 366 (1979) .................................................................................................61, 62, 63, 64
*Griffin v. Breckenridge
403 U.S. 88 (1971) .........................................................................................................60, 61, 63
GTE New Media Servs. Inc. v. BellSouth Corp.
199 F.3d 1343 (D.C. Cir. 2000) .................................................................................................18
*Halberstam v. Welch
705 F.2d 472 (D.C. Cir. 1983) .................................................................................25, 27, 32, 33
Henok v. Kessler
78 F. Supp. 3d 452 (D.D.C. 2015) ...............................................................................................2
Hill v. Colorado
530 U.S. 703 (2000) ...................................................................................................................56
Hustler Magazine, Inc. v. Falwell
485 U.S. 46 (1988) ...............................................................................................................59, 60
In re APA Assessment Fee Litig.
766 F.3d 39 (D.C. Cir. 2014) .....................................................................................................36
Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement
326 U.S. 310 (1945) ...................................................................................................................17
*Jacobsen v. Oliver
201 F. Supp. 2d 93 (D.D.C. 2002) .......................................................................................17, 19
James v. Lusby
499 F.2d 488 (D.C. Cir. 1974) ...................................................................................................15
Karraker v. Rent-A-Center, Inc.
239 F. Supp. 2d 828 (C.D. Ill. 2003) ...................................................................................40, 49

vi

TABLE OF AUTHORITIES
Page(s)
Kenley v. Dist. of Columbia
83 F. Supp. 3d 20, 33 (D.D.C. 2015) ...................................................................................31, 32
Klaxon Co. v. Stentor Elec. Mfg. Co.
313 U.S. 487 (1941) ...................................................................................................................34
Klayman v. Zuckerberg
753 F.3d 1354 (D.C. Cir. 2014) .................................................................................................30
Kowal v. MCI Communications. Corp.
16 F.3d 1271 (D.C. Cir. 1994) ...................................................................................................29
*Kush v. Rutledge
460 U.S. 719 (1983) .............................................................................................................62, 64
Kvech v. Holder
2011 WL 4369452 (D.D.C. 2011) .............................................................................................28
Libertad v. Welch
53 F.3d 428 (1st Cir. 1995) ........................................................................................................66
Loumiet v. United States
255 F. Supp. 3d 75, 100 (D.D.C. 2017) .....................................................................................36
Lujan v. Defenders of Wildlife
504 U.S. 555 (1992) ...................................................................................................................14
McAndrew v. Lockheed Martin Corp.
206 F.3d 1031 (11th Cir. 2000) (en banc) .................................................................................69
Miller v. California
413 U.S. 15 (1973) .....................................................................................................................58
Moms Against Mercury v. FDA
483 F.3d 824 (D.C. Cir. 2007) .............................................................................................11, 12
Monell v. Dep’t of Social Servs.
436 U.S. 658 (1978) ...................................................................................................................68
Morgan v. District of Columbia
550 F. Supp. 465 (D.D.C. 1982) ................................................................................................69
Myers v. Holiday Inns, Inc.
915 F. Supp. 2d 136 (D.D.C. 2013) ...........................................................................................12
Owens v. Haas
601 F.2d 1242 (2d. Cir. 1979)..............................................................................................68, 69
*Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co.
81 F. Supp. 3d 1, 11 (D.D.C. 2015) ...........................................................................3, 24, 25, 28
Paige v. U.S. Drug Enf’t Admin.
818 F. Supp. 2d 4 (D.D.C. 2010), aff’d, 665 F.3d 1355 (D.C. Cir. 2012) .................................49

vii

TABLE OF AUTHORITIES
Page(s)
Parnigoni v. St. Columba’s Nursery Sch.
681 F. Supp. 2d 1 (D.D.C. 2010) ...............................................................................................34
Pearce v. E.F. Hutton Grp., Inc.
664 F. Supp. 1490 (D.D.C. 1987) ..............................................................................................35
Perkins v. Benguet Consol. Mining Co.
342 U.S. 437 (1952) ...................................................................................................................23
Pippinger v. Rubin
129 F.3d 519 (10th Cir. 1997) ...................................................................................................44
Rawlings v. Dist. of Columbia
820 F. Supp. 2d 92 (D.D.C. 2011) .......................................................................................31, 32
Reno v. ACLU
521 U.S. 844 (1997) ...................................................................................................................58
*Rosenboro v. Kim
994 F.2d 13 (D.C. Cir. 1993) .....................................................................................................14
SEC v. Dresser Industries, Inc.
628 F.2d 1368 (D.C. Cir. 1980) (en banc) ...................................................................................5
*Second Amendment Found. v. U.S. Conference of Mayors
274 F.3d 521 (D.C. Cir. 2001) ...................................................................................................20
Sharp Corp. v. Hisense USA Corp.
--- F. Supp. 3d ---, 2017 WL 5449805 (D.D.C. Nov. 13, 2017) ................................................12
Simpson v. Burrows
90 F. Supp. 2d 1108 (D. Or. 2000) ......................................................................................40, 49
*The Florida Star v. B.J.F.
491 U.S. 524 (1989) ...................................................................................................................57
Trans Union Corp. v. FTC
267 F.3d 1138 (D.C. Cir. 2001) .................................................................................................58
*United Bhd. of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott
463 U.S. 825 (1983) .......................................................................................................62, 64, 65
United Mine Workers of Am. v. Gibbs
383 U.S. 715 (1966) ...................................................................................................................15
United States ex rel. Sansbury v. LB & B Assocs., Inc.
58 F. Supp. 3d 37 (D.D.C. 2014) ...............................................................................................28
United States ex rel. Scollick v. Narula
215 F. Supp. 3d 26 (D.D.C. 2016) .............................................................................................32
United States Telecomm. Ass’n v. FCC
825 F.3d 674 (D.C. Cir. 2016) ...................................................................................................59

viii

TABLE OF AUTHORITIES
Page(s)
United States v. Bridgeman
523 F. 2d 1099 (D.C. Cir. 1975) ................................................................................................21
United States v. Dakins
872 F.2d 1061 (D.C. Cir. 1989) .................................................................................................31
United States v. Flynn
No. 1:17-cr-232-RC (D.D.C. Dec. 1, 2017).....................................................................2, 11, 28
United States v. Manafort
No. 1:17-cr-201 (D.D.C. Oct. 30, 2017) ......................................................................................2
United States v. Oakar
924 F.Supp. 232 (D.D.C. 1996) .................................................................................................31
United States v. Papadopoulos
No. 1:17-cr-182-RDM (D.D.C. Oct. 5, 2017) ................................................................... passim
United States v. Philip Morris, Inc.
116 F. Supp. 2d 116 (D.D.C. 2000) ...........................................................................................12
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.
455 U.S. 489 (1982) ...................................................................................................................58
Walden v. Fiore
134 S. Ct. 1115 (2014) .........................................................................................................18, 21
Weiss v. Lehman
713 F. Supp. 489 (D.D.C. 1989) ................................................................................................41
Wisey’s #1 LLC v. Nimellis Pizzeria LLC
952 F. Supp. 2d 184 (D.D.C. 2013) ...........................................................................................16
State Cases
Bodah v. Lakeville Motor Express, Inc.
649 N.W.2d 859 (Minn. Ct. App. 2002) ..............................................................................39, 50
Clemente v. State
206 P.3d 249 (Or. 2009) ............................................................................................................51
Danai v. Canal Square Assocs.
862 A.2d 395 (D.C. 2004) .........................................................................................................38
Diaz v. Oakland Tribune, Inc.
188 Cal. Rptr. 762 (Cal. Ct. App. 1983) ....................................................................................40
Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp.
749 A.2d 724 (D.C. 2000) .........................................................................................................31
Flax v. Schertler
935 A.2d 1091 (D.C. 2007) .......................................................................................................33

ix

TABLE OF AUTHORITIES
Page(s)
Greenwood v. Taft, Stettinius & Hollister
663 N.E.2d 1030 (Ohio Ct. App. 1995) .........................................................................39, 40, 49
Hawkins by & through Hawkins v. Multimedia, Inc.
344 S.E.2d 145 (S.C. 1986) .......................................................................................................46
Lambert v. Hartmann
898 N.E.2d 67 (Ohio App. 2008) (per curiam) ..........................................................................50
*M.G. v. Time Warner, Inc.
107 Cal. Rptr. 2d 504 (Cal. Ct. App. 2001) ...................................................................40, 42, 57
Multimedia WMAZ, Inc. v. Kubach
443 S.E.2d 491 (Ga. Ct. App. 1994) ..........................................................................................41
Oliver v. Mustafa
929 A.2d 873 (D.C. 2007) .........................................................................................................49
*Randolph v. ING Life Ins. & Annuity Co.
973 A.2d 702 (D.C. 2009) ...................................................................................................38, 50
Sere v. Grp. Hospitalization, Inc.
443 A.2d 33 (D.C. 1982) ...........................................................................................................49
*Shoppers Food Warehouse v. Moreno
746 A.2d 320 (D.C. 2000) ...................................................................................................18, 19
*Star-Telegram, Inc. v. Doe
915 S.W.2d 471 (Tex. 1995)......................................................................................................47
Stratton v Krywko
2005 WL 27522 (Mich. Ct. App. 2005) (per curiam) ..........................................................40, 46
Sundberg v. TTR Realty, LLC
109 A.3d 1123 (D.C. 2015) .......................................................................................................33
*Vassiliades v. Garfinckel’s, Brooks Bros., Miller & Rhoades, Inc.
492 A.2d 580 (D.C. 1985) ................................................................................................. passim
*Washkoviak v. Student Loan Mktg. Ass’n
900 A.2d 168 (D.C. 2006) .........................................................................................................34
Wemhoff v. D.C.
887 A.2d 1004 (D.C. 2005) .......................................................................................................38
Wheeler v. United States
977 A.2d 973 (D.C. 2009) .........................................................................................................25
*Wolf v. Regardie
553 A.2d 1213 (D.C. 1989) ............................................................................................... passim
Y.G. v. Jewish Hosp. of St. Louis
795 S.W.2d 488 (Mo. Ct. App. E.D. 1990) ...............................................................................41

x

TABLE OF AUTHORITIES
Page(s)
Yonaty v. Mincolla
945 N.Y.S2d 774 (N.Y. App. Div. 2012) ..................................................................................43
Zieve v. Hairston
598 S.E.2d 25 (Ga. Ct. App. 2004) ............................................................................................41
Federal Statutes
5 U.S.C. § 552a(b) .........................................................................................................................44
28 U.S.C. § 1332 ............................................................................................................................14
28 U.S.C. § 1367(a) .......................................................................................................................15
28 U.S.C. § 1367(c)(1)...................................................................................................................16
28 U.S.C. § 1391(b)(2) ..................................................................................................................23
42 U.S.C. § 1983 ..........................................................................................................32, 65, 68, 69
42 U.S.C. § 1985 ..........................................................................................................32, 65, 68, 69
*42 U.S.C. § 1985(3) ............................................................................................................. passim
47 U.S.C. § 230 ..............................................................................................................................30
State Statutes
*D.C. Code § 13-423(a)(1) ......................................................................................................18, 20
*D.C. Code § 13-423(a)(4) ............................................................................................................21
Federal Rules
Fed. Rule of Evidence 201 ...............................................................................................................2
Fed. Rule of Civil Procedure 9(b) ..................................................................................................29
Fed. Rule of Civil Procedure 8 ......................................................................................................29
Fed. Rule of Civil Procedure 12(b)(1) ...........................................................................................11
Fed. Rule of Civil Procedure 12(b)(2) ...........................................................................................12
Fed. Rule of Civil Procedure 12(b)(3) ...........................................................................................12
Fed. Rule of Civil Procedure 12(b)(6) ...........................................................................................12
Treatises
16 Am. Jur. 2d Conspiracy § 56 ....................................................................................................69
*RESTATEMENT (SECOND) OF TORTS (“RESTATEMENT”) § 652D .......................................... passim
*RESTATEMENT (THIRD) OF TORTS (“RESTATEMENT THIRD”) § 46, cmt. d (2012) ...........51, 53, 54
*Wright & Miller § 1224 .........................................................................................................28, 29
Wright & Miller § 3567.3 ..............................................................................................................16

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Page(s)
Other Authorities
Office of the Deputy Attorney General, Order No. 3915-2017, Appointment of Special Counsel
to Investigate Russian Interference with the 2016 Presidential Election & Related Matters
(May 17, 2017).............................................................................................................................1
Jared A. Wilkerson, Battle for the Disclosure Tort, 49 CAL. W. L. REV. 231, 266-67 (2013) ......36

xii

INTRODUCTION1
On July 22, 2016, Plaintiffs’ lives were turned upside down. Their private information—
information of no interest to the public such as social security numbers, financial information,
sexual orientation, and private correspondence—was dumped online for the world to see forever,
causing immediate and permanent injury. Shortly thereafter, two Plaintiffs had their identities
stolen and attempts made to obtain credit in their names, actions that required them to take costly
and time-consuming countermeasures. One Plaintiff was harassed and threatened with violence.
All suffered significant emotional distress. Plaintiffs will have to live the rest of their lives with
their private information available online, required to bear the cost of precautions and countermeasures against further injuries for which the violations of their privacy puts them at risk. All of
Plaintiffs’ injuries occurred due to their support for a candidate in a federal election. Plaintiffs
seek redress for their injuries and, in so doing, hope to deter future similar behavior.
It is the unanimous view of the U.S. Intelligence Community (“IC”) that Russia took
measures to interfere in the 2016 U.S. elections on behalf of then-candidate Donald J. Trump.
The Executive Branch, via Special Counsel Robert Mueller, is investigating “any links and/or
coordination between the Russian government and individuals associated with the campaign of
President Donald Trump,” and is responsible for prosecuting any crimes discovered by that investigation. See Office of the Deputy Attorney General, Order No. 3915-2017, Appointment of
Special Counsel to Investigate Russian Interference with the 2016 Presidential Election & Relat-

1

Throughout this brief, “Compl.” and “Complaint” refer to the First Amended Complaint (ECF
No. 17); “Campaign Br.” refers to Defendant Donald J. Trump for President, Inc.’s Motion to
Dismiss the First Amended Complaint (ECF No. 20); “Stone Br.” refers to Defendant Roger
Stone’s Motion to Dismiss Amended Complaint (ECF No. 22); emphases in case quotations
were added unless otherwise noted; and internal quotation marks, alterations, and citations were
omitted from case quotations.
1

ed Matters (May 17, 2017), https://www.justice.gov/opa/press-release/file/967231/download.2
The Legislative Branch is investigating Russian interference in the 2016 election and is responsible for reporting to the American people on its findings and developing policies to prevent such
interference in the future. These are the proper roles for the Executive and Legislative Branches
in response to Russia’s interference. But our government is made up of three branches, and the
Judiciary has a role to play as well: providing a forum for redress for individuals whose rights
have been violated. That is a role neither of the other branches can adequately play. For this reason, Plaintiffs have come to this Court for relief.
The facts alleged in the Complaint already show—and Plaintiffs will be able to prove—
that the injuries they suffered were the direct result of a conspiracy between Defendants and others, including Russian agents. In the shortest form, Plaintiffs allege that: (1) Russian agents
hacked into DNC servers and stole Plaintiffs’ private information; (2) Russian agents used longstanding connections with the Defendants to see if Defendants would collaborate in weaponizing
the stolen material; (3) Defendants were indeed willing to cooperate, and entered into an agreement with Russian agents that involved a mutual exchange of benefits; and (4) part of that conspiracy involved giving stolen material that contained Plaintiffs’ private information to WikiLeaks in order to have it disseminated in a strategic way designed to help the Trump Campaign.

2

The Special Counsel has already obtained guilty pleas from Campaign advisors George Papadopolous and Michael Flynn, for lying to federal investigators about interactions with Russian
agents, see Statement of the Offense, United States v. Papadopoulos, No. 1:17-cr-182-RDM,
ECF No. 19 (D.D.C. Oct. 5, 2017) (“Papadopoulos SOO”); Statement of the Offense, United
States v. Flynn, No. 1:17-cr-232-RC, ECF No. 4 (D.D.C. Dec. 1, 2017) (“Flynn SOO”), and has
indicted Campaign Chairman Paul Manafort and Deputy Chairman Rick Gates for crimes related
to their long-standing interactions with a pro-Russian political party in Ukraine with close ties to
the Kremlin, see Redacted Indictment, United States v. Manafort, No. 1:17-cr-201, ECF No. 13
(D.D.C. Oct. 30, 2017). The Court may take judicial notice of these public filings. See Fed. Rule
of Evidence 201; E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997); Henok v. Kessler, 78 F. Supp. 3d 452, 461 n.8 (D.D.C. 2015).
2

The facts alleged are remarkably strong—far stronger than is typical for conspiracy allegations, where, before discovery, Defendants normally have exclusive control of much of the
evidence of the conspiracy; and far stronger than they need be at this stage of the proceedings,
when Plaintiffs do not even need to show that the conspiracy they allege is probable, but merely
that it is plausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Plaintiffs clear that
bar by a good amount and then some. As courts in this District have recognized, “conspiracies
are rarely evidenced by explicit agreements, but nearly always must be proven through inferences that may be fairly drawn from the behavior of the alleged conspirators.” Oxbow Carbon &
Minerals LLC v. Union Pac. R.R. Co., 81 F. Supp. 3d 1, 11 (D.D.C. 2015) (quoting Anderson
News, LLC v. Am. Media, Inc., 680 F.3d 162, 183 (2d Cir. 2012)). In this case, even before Plaintiffs have had any opportunity to take discovery, the facts alleged (which must be taken as true at
this point in the litigation) make a powerful argument for the existence of a conspiracy. As discussed further below, courts have looked for four elements to demonstrate the existence of a conspiracy (in light of the rarity of signed conspiracy agreements): motive to act together;
opportunity to reach an agreement in the form of repeated communications between the alleged
co-conspirators; benefit to each party; and efforts to conceal the conspiracy. These showings are
particularly indicative of a conspiracy if the alleged conspirators’ actions are hard to explain in
the absence of a conspiracy. The Complaint lays out all four elements in spades. And it is hard to
explain the actions described except by reference to a conspiracy of the sort alleged.
First, the Complaint alleges, as the IC has confirmed, that Russia had a motive to help the
Trump Campaign and indeed took steps to do so; and the Complaint alleges that the Campaign
needed a way to salvage its dimming chances of winning the election.
Second, there was ample opportunity to reach an agreement. The Complaint alleges that

3

Mr. Trump and other individuals affiliated with the Campaign had longstanding personal and
financial ties with Russia, and that senior members of the Campaign held discussions with Russian agents about helping Mr. Trump to win the election. The Complaint also alleges a series of
communications and meetings between Defendants and Russian agents that span the period of
time in which the conspiracy took place—communications that stand in stark contrast to anything seen in prior Presidential campaigns.
Third, the Complaint alleges an exchange of benefits that would be hard to understand
absent a conspiracy. Mr. Trump and his associates intervened in the drafting of the RNC platform to make changes favorable to Russia—in an unexpected move that was without prior substantial support from the Republican Party—on the same day that Trump Campaign associates
were meeting with the Russian Ambassador and just four days before Plaintiffs’ private information was dumped online. Mr. Trump and his associates have gone to great lengths to oppose
sanctions on Russia for its interference in the 2016 election and even sought to return to Russia
property that was confiscated as punishment for Russia’s actions. And Mr. Trump and his associates have repeatedly praised Russia and its President, Vladimir Putin, and denied or excused
Russia’s interference in the election, even after the evidence of Russian interference was well
known and accepted by the IC. On the other side, the Complaint alleges that, as a result of the
conspiracy, the participants in the conspiracy provided the contents of certain stolen DNC email
accounts to WikiLeaks for disclosure, and did so in a manner and at a time optimally beneficial
to the Trump Campaign.
Fourth, the Complaint alleges a long series of instances in which Defendants changed
their stories, failed to disclose information relevant to the conspiracy even under penalty of perjury, and otherwise sought to conceal the actions alleged to be part of the conspiracy.

4

Perhaps because the pleadings are clearly sufficient to allow the Plaintiffs their day in
court, Defendants’ briefs focus instead on (a) atmospheric political arguments and (b) a barrage
of meritless technical and procedural objections, all designed to deny Plaintiffs the opportunity to
prove their case. The pages that follow explain why Plaintiffs have adequately stated all their
substantive claims and why each of Defendants’ procedural objections are without merit.3
Plaintiffs were injured. They have alleged ample facts—far more than courts in this District have previously required to survive a motion to dismiss—indicating that Defendants’ participation in a conspiracy caused these injuries. Federal and state law provide Plaintiffs with protection against these injuries and a right of redress in this Court. Indeed, the courts are the only institutions in our government that can provide them with this redress. Plaintiffs will of course
have to carry their burden of persuasion to obtain that relief, but they have done everything required of them under the law to entitle them to the opportunity to do so.
FACTUAL BACKGROUND4
The Russian government interfered with the 2016 U.S. presidential election in order to
undermine the U.S. democratic process and help elect Mr. Trump. Compl. ¶¶ 83-84. As part of
this effort, Russian intelligence hacked DNC servers and stole large volumes of data, including
3

Also without merit is Defendants’ suggestion that proceedings in this case would interfere with
the criminal investigation. See Campaign Br. 2. There is nothing unusual about parallel civil and
criminal proceedings. See, e.g., SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1374 (D.C. Cir.
1980) (en banc) (“The civil and regulatory laws of the United States frequently overlap with the
criminal laws, creating the possibility of parallel civil and criminal proceedings, either successive
or simultaneous. In the absence of substantial prejudice to the rights of the parties involved, such
parallel proceedings are unobjectionable under our jurisprudence.”). In any event, the motion-todismiss stage is not the time to raise concerns about parallel proceedings, as they are not a basis
for dismissal. Nor are Defendants’ protestations about discovery relevant to the pending motions.
4

The facts set forth here are drawn from the allegations in the Amended Complaint and recent
public filings in other matters in this District, of which this court may take judicial notice. See
supra note 2. These filings postdate the Amended Complaint but are consistent with the allegations therein, and underscore their (ever-increasing) plausibility.
5

the emails of DNC employees. Id. ¶¶ 86-87. On July 22, 2016, stolen DNC emails were posted
on WikiLeaks, making them accessible to anyone in the world with Internet access. Id. ¶¶ 16, 42.
These emails came from the accounts of seven DNC staffers—six members of the finance team
(including Mr. Comer) and the Communications Director. Id. Because the finance-staff email
accounts were targeted (and selected for publication from a range of stolen email accounts and
other data), sensitive information about DNC donors (including Mr. Cockrum and Mr. Schoenberg), such as social security numbers, financial information, home addresses, personal email
addresses, and personal phone numbers, was released to the world. Id. ¶¶ 17-20.
The dumping of the stolen emails—including Plaintiffs’ private information—on the Internet was the result of a conspiracy involving Russia, the Trump Campaign, Mr. Stone, and
WikiLeaks. Compl. ¶¶ 10-16. Defendants and their co-conspirators had motive to act together,
there was ample opportunity to reach agreement, each party realized substantial benefits, and
each party took steps to conceal what had occurred. Furthermore, each party took actions that
would be illogical absent a conspiracy.
I.

Financial and Personal Ties Between Russia and Trump Campaign Leadership.
The conspiracy was made possible, in part, by longstanding ties that existed among the

conspirators—ties long pre-dating the Campaign. Many of those involved with the Trump Campaign had deep personal and financial ties to Russia going back decades. The candidate himself
had longstanding financial connections to Russia and had relied for years on funding from Russian oligarchs to finance his real-estate projects. Id. ¶¶ 103-111. Campaign Chairman Paul Manafort was a paid operative for a pro-Russian political party in Ukraine with close ties to the Kremlin. Id. ¶ 113. In 2005, Manafort proposed to a Russian oligarch and close Putin ally a plan to
influence politics inside the United States to benefit Mr. Putin’s government. Id. Foreign-policy

6

advisor Carter Page had sufficient contact with Russian intelligence that the FBI obtained a FISA
warrant based on probable cause to believe that he was acting as an agent of a foreign power. Id.
¶¶ 115-116. Campaign adviser Michael Flynn had received payments from Russian companies
and had attended a gala hosted by RT, a media entity that the intelligence community described
as “[t]he Kremlin’s principal international propaganda outlet,” where he sat with Mr. Putin and
his chief of staff. Id. ¶ 117. Jared Kushner, a senior Campaign adviser and Mr. Trump’s son-inlaw, had longstanding financial and personal ties to Russian oligarchs. Id. ¶ 118. And George
Papadopoulos, a member of the Campaign’s national-security team, described himself as an intermediary with the Kremlin. Id. ¶¶ 94-95.
II.

Extensive Secret Meetings During the Campaign.
The ties between agents of the Trump Campaign and of Russia led to dozens of interac-

tions during the campaign, out of which came an agreement to disseminate stolen DNC emails to
benefit the Campaign in exchange for policy concessions to benefit Russia. Id. ¶¶ 88-90, 92.
Several contacts between the Campaign and Russian agents appear relevant to the formation of
an agreement, demonstrating the Campaign’s willingness—even eagerness—to collaborate with
Russia to interfere in the election and harm the Campaign’s opponent.
For example, on March 24, 2016—three days after Mr. Trump, in a Washington Post interview, identified Mr. Papadopoulos as one of five named members of his Campaign’s foreignpolicy team—Mr. Papadopoulos sent an email to high-ranking Campaign officials and other
members of the Campaign’s national-security advisory committee offering to set up a meeting
with Russian leadership, including Mr. Putin, “to discuss US-Russia ties under President
Trump.” Id. ¶ 94. Mr. Papadopoulos said he was acting as an intermediary with the Russian government and that his “Russian contacts welcomed the opportunity.” Id. Rather than immediately

7

report these contacts with a hostile foreign power to the FBI, the Campaign welcomed these
overtures. As described in a Statement of the Offense entered as part of a plea agreement between Mr. Papadopoulos and the Special Counsel, Mr. Papadapoulos’s Campaign supervisor responded that he would “work it through the campaign” and added: “Great work.” See Statement
of the Offense ¶ 8, United States v. Papadopoulos, No. 1:17-cr-182-RDM, ECF No. 19 (D.D.C.
Oct. 5, 2017) (“Papadopoulos SOO”).
On March 31, Mr. Papadopoulos attended a meeting of the national-security advisory
committee and Mr. Trump, Compl. ¶ 95, where he said that he had Russian government connections and could help arrange a meeting between Mr. Trump and Mr. Putin. Papadopoulos SOO ¶
9. Over the next months, Mr. Papadopoulos continued to attempt to arrange meetings between
the Campaign and Russian officials. Compl. ¶ 94; see Papadopoulos SOO ¶¶ 10-21. Mr. Papadopoulos learned on April 26, 2016 that the Russians had “dirt” on Mr. Trump’s opponent in the
form of “thousands of emails.” Papadopoulos SOO ¶ 14. High-ranking Campaign officials did
nothing to discourage, and in some cases encouraged, ongoing communications with Russian
agents. Id. ¶¶ 20, 21.b. And on July 7, 2016, Campaign representative Carter Page traveled to
Moscow to meet with Russian officials close to Putin—a trip approved by then-Campaign manager Corey Lewandowski. Compl. ¶ 100.
Mr. Papadopoulos was not the only Trump Campaign agent receptive to Russian entreaties. On June 9, 2016, Donald Trump Jr., Mr. Kushner, and Mr. Manafort met with a Kremlin-connected Russian lawyer described in emails as a “Russian government attorney who is flying over from Moscow.” Id. ¶ 129. Mr. Trump Jr. agreed to attend this meeting after being promised damaging material about his father’s opponent as part of a Russian-government effort to aid
the Trump Campaign. Id. An email to Mr. Trump Jr. about the meeting stated, “[t]his is obvious-

8

ly very high level and sensitive information but is part of Russia and its government’s support for
Mr. Trump.” Id. Mr. Trump Jr. responded enthusiastically by email: “If it’s what you say I love it
especially later in the summer.” Id. “Later in the summer” is, of course, precisely when Plaintiffs’ emails were released.
Mr. Trump, Mr. Manafort, then-Senator Jeff Sessions, and other Campaign agents also
had repeated contact with Russian officials and agents in the period leading up to the release of
the DNC emails. In one such instance, Mr. Kushner and Mr. Sessions met in person with Russian
Ambassador Kislyak just four days before the hacked emails were released. On the same day as
that meeting, Campaign staffer J.D. Gordon successfully steered the Republican Party platform
in a more Russia-friendly direction. See, e.g., Compl. ¶¶ 96-97, 99, 101.
III.

Motive to Collaborate and Exchange of Benefits.
Both sides had ample motive to work together—Russia to maximize the disruptive im-

pact of the stolen emails and extract policy concessions from the Trump Campaign, and the
Campaign to improve its chances of defeating Secretary Clinton. Id. ¶¶ 120-127. Russian efforts
began to bear fruit shortly before the release of the DNC emails: the Campaign cast doubt on the
U.S. commitment to NATO, id. ¶ 151, undertook efforts to lift sanctions on Russia, id. ¶¶ 152155, and generally adopted a markedly more favorable posture toward Russia and Mr. Putin, id.
¶¶ 156-159. These actions were astonishing: no prior Presidential nominee had ever come close
to casting doubt on NATO, nor was there any identifiable, credible movement to do so prior to
Mr. Trump’s adoption of this position. Just four days before the stolen emails were dumped on
WikiLeaks, the Campaign intervened to remove language condemning Russia’s action in
Ukraine from the Republican platform. Id. ¶¶ 147-148. Mr. Gordon, the Campaign’s nationalsecurity policy representative at the Republican National Convention, initially denied involve-

9

ment in shaping this part of the platform. He later admitted that he had been personally involved
in softening the language on Ukraine to align it with Mr. Trump’s views. Id. ¶¶ 36, 149, 217.
On July 22, 2016, the stolen DNC emails were disseminated on WikiLeaks, causing substantial harm to Plaintiffs and other Americans. Id. ¶ 160. The leak targeted DNC finance staff in
particular and was well-timed to maximize political fallout. Id. ¶¶ 161, 165. In addition to Plaintiffs’ private information—information that was of no public interest, but the publication of
which put donors and potential donors on notice that any information they might share with the
DNC was not secure—the dump included other emails that the media viewed as providing insight into tensions within the Democratic Party just days before the Party was set to gather for its
nominating convention. The Campaign immediately sought to maximize its advantage from the
release of the hacked emails. Mr. Trump mentioned WikiLeaks more than 160 times during his
campaign appearances and even called on Russia to continue its cyberattacks, saying: “Russia, if
you’re listening, I hope you’re able to find the 30,000 [Hillary Clinton] emails that are missing.”
Id. ¶¶ 166-169. When later asked if that comment was serious, Mr. Trump declined to explain
the comment away as a joke, instead saying “If Russia or China or any other country has those
emails, I mean, to be honest with you, I’d love to see them.” Id. ¶ 169.
Shortly after the emails were published, Mr. Stone admitted in an interview that he had
communicated with WikiLeaks founder Julian Assange but said he was “not at liberty” to discuss
those communications. Id. ¶ 162. Mr. Stone also began to engage in public and private Twitter
conversations with the hacker Guccifer 2.0, who had claimed credit for the DNC hack. Id.
¶¶ 163-164, 170-172. Mr. Stone was sufficiently connected to Mr. Assange and WikiLeaks to
accurately predict—six weeks in advance—the October 7, 2016 release of Clinton campaign
chairman John Podesta’s emails. Id. ¶¶ 173-179.

10

IV.

Wide-Ranging Cover-Up.
Last, there is the cover-up. Defendants and their agents have repeatedly and falsely de-

nied or failed to disclose longstanding personal and financial relationships with Russia, ¶¶ 199205, and contacts with Russians during and after the campaign, id. ¶¶ 183-198. Despite having
met with Russian agents specifically for the purpose of benefitting the Campaign by obtaining
damaging information about Mr. Trump’s opponent, the Campaign’s agents and associates called
allegations that Russia was working to help Mr. Trump “disgusting,” “phony,” and “absurd.” Id.
¶¶ 184-186. The Campaign falsely denied having approved Mr. Page’s trip to Moscow. Id.
¶¶ 100, 187. It concealed its involvement with ensuring that the Republican Party platform
would be favorable toward Russia. Id. ¶ 217. Agents of the Campaign repeatedly failed to disclose contacts with Russian agents on security clearance forms, id. ¶¶ 194-198; in one instance,
Mr. Kushner failed to disclose his attempt to establish a communication back channel with Russia to avoid detection by U.S. intelligence, id. ¶ 195. Mr. Papadopoulos and Mr. Flynn both lied
to the FBI about their interactions with Russian agents. See Papadopoulos SOO; Statement of the
Offense, United States v. Flynn, No. 1:17-cr-232-RC, ECF No. 4 (D.D.C. Dec. 1, 2017) (“Flynn
SOO”). They continue to cast doubt on or deny Russian involvement in the election, in the face
of overwhelming evidence to the contrary. Id. ¶¶ 206-216. Mr. Trump has done nothing to hold
Russia accountable, repeatedly attempting instead to interfere with ongoing law enforcement investigations, going so far as to fire the FBI Director in order to relieve what the President described as “great pressure because of Russia.” Id. ¶¶ 218-219.
STANDARD OF REVIEW
Pursuant to Rule 12(b)(1), Plaintiffs bear the burden of showing that this Court has subject matter jurisdiction. See, e.g., Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir.

11

2007). However, in making the determination, the court must “assume the truth of all material
factual allegations in the complaint and construe the complaint liberally, granting plaintiff the
benefit of all inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011).
Similarly, under Rule 12(b)(2), “[t]he plaintiff has the burden of establishing a factual basis for the exercise of personal jurisdiction over the defendant,” Crane v. N.Y. Zoological Soc’y,
894 F.2d 454 (D.C. Cir. 1990), which can be satisfied “with a prima facie showing of pertinent
jurisdictional facts,” United States v. Philip Morris, Inc., 116 F. Supp. 2d 116, 121 (D.D.C.
2000). “In determining whether such a basis exists, factual discrepancies appearing in the record
must be resolved in favor of the plaintiff.” Crane, 894 F.2d at 454. “When personal jurisdiction
is challenged, the district judge has considerable procedural leeway in choosing a methodology
for deciding the motion. . . . The Court may rest on the allegations in the pleadings, collect affidavits and other evidence, or even hold a hearing.” Sharp Corp. v. Hisense USA Corp., --- F.
Supp. 3d ---, 2017 WL 5449805, at *3 (D.D.C. Nov. 13, 2017).
Under Rule 12(b)(3), “a court should dismiss or transfer a plaintiff’s complaint if the
plaintiff’s chosen venue is improper or inconvenient. While the plaintiff bears the burden of
proving that venue is proper, a court should accept the plaintiff’s well-pled factual allegations as
true, resolve any factual conflicts in the plaintiff's favor, and draw all reasonable inferences in
favor of the plaintiff.” Myers v. Holiday Inns, Inc., 915 F. Supp. 2d 136, 144 (D.D.C. 2013).
Finally, under Rule 12(b)(6), “the Court must assess the complaint to determine whether
it contains sufficient facts that, when accepted as true, evidence a claim that is ‘plausible on its
face.’” Lannan Found. v. Gingold, --- F. Supp. 3d ---, 2017 WL 4857421, at *6 (D.D.C. Oct. 25,
2017) (quoting Twombly, 550 U.S. at 570). “When a plaintiff pleads factual content that allows

12

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,
then the claim has facial plausibility.” Barker v. Conroy, --- F. Supp. 3d ---, 2017 WL 4563165,
at *3 (D.D.C. Oct. 11, 2017). “‘The plausibility standard is not akin to a probability requirement,
but it asks for more than a sheer possibility that a defendant has acted unlawfully.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A court must treat the complaint's factual allegations as true, ‘even if doubtful in fact.’” Id. (quoting Twombly, 550 U.S. at 555).
ARGUMENT
I.

This Court Has Subject-Matter Jurisdiction.
Plaintiffs have alleged sufficient injury and causation for Article III standing.
Mr. Stone contends erroneously that Plaintiffs have failed to meet the Article III injury

and causation requirements. Stone Br. 3. “To demonstrate standing, a plaintiff must show that
she has suffered an ‘injury in fact’ that is ‘fairly traceable’ to the defendant’s actions and that is
‘likely to be redressed’ by the relief she seeks.” Attias v. Carefirst, Inc., 865 F.3d 620, 625 (D.C.
Cir. 2017). Plaintiffs have met this bar.
Mr. Stone’s argument about injury fails for at least four reasons. First, it ignores many of
Plaintiffs’ alleged injuries, including lost wages, diminished capacity to find work, and medical
expenses; severe emotional distress resulting from dissemination of personal and identifying information; and resulting instances of actual identity theft (rather than merely a heightened risk),
harassment, and damage to important personal and professional relationships. See Compl. ¶¶ 1718, 49-50, 60-78. These injuries create standing and are ones that Plaintiffs’ tort claims are designed to remedy. Second, the argument about identity theft, see Stone Br. 5, is contradicted by
the D.C. Circuit’s recent holding that a heightened risk of future identity theft can serve as the
basis for standing under Article III. See Attias, 865 F.3d at 626. Third, the injury claimed by
Plaintiffs here is not limited to possible future identity theft, but includes actual identity theft.
13

See Compl. ¶¶ 17-18, 49-50; cf. SAIC, 45 F. Supp. 3d at 29. Finally, “[a]t the pleading stage,
general factual allegations of injury resulting from the defendant’s conduct may suffice.” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also Attias, 865 F.3d at 626.
Mr. Stone’s causation argument is just a merits argument disguised as a jurisdictional
one. Stone Br. 3; id. at 6 (“Stone is not connected to a conspiracy to hack or publish.”). It is also
meritless. “Article III standing does not require that the defendant be the most immediate cause,
or even a proximate cause, of the plaintiffs’ injuries; it requires only that those injuries be ‘fairly
traceable’ to the defendant.” Attias, 865 F.3d at 629. Here, Plaintiffs allege that Mr. Stone was
part of a conspiracy to disseminate hacked information and that this conspiracy directly resulted
in Plaintiffs’ injuries. Their injuries are “fairly traceable” to Mr. Stone.
This Court has diversity jurisdiction over Plaintiffs’ state-law claims.
Defendants do not challenge the diversity of the parties but question whether each Plaintiff satisfies the amount-in-controversy requirement. Stone Br. 9; Campaign Br. 8-9. When ruling
on a motion to dismiss under 28 U.S.C. § 1332, the Court must dismiss “only if it appears to a
legal certainty that the amount in controversy barrier cannot be breached.” Rosenboro v. Kim,
994 F.2d 13, 19 (D.C. Cir. 1993). Courts therefore must “be very confident that a party cannot
recover the jurisdictional amount before dismissing the case for want of jurisdiction.” Id. at 17.
Furthermore, in addition to concrete or easily quantifiable damages, “inherently nebulous
unliquidated damage claims” are included in calculating the amount in controversy. Rosenboro,
994 F.2d at 19; see also Compton v. Alpha Kappa Alpha Sorority, Inc., 64 F. Supp. 3d 1, 14-15
(D.D.C. 2014), aff’d, 639 F. App’x 3 (D.C. Cir. 2016).
Here, each Plaintiff has alleged economic and non-economic injuries that exceed the
$75,000 threshold. Mr. Cockrum alleges that he has been the target of identity theft, which requires constant effort and vigilance on his part, and has caused substantial stress and anxiety.
14

Compl. ¶¶ 17, 61-64. Mr. Schoenberg’s experience has been substantially similar. Compl. ¶¶ 18,
65-68. Mr. Comer has incurred significant medical expenses, lost wages, reputational harm, severe emotional distress, anxiety, and depression. Compl. ¶¶ 19, 69-77. Furthermore, Plaintiffs
have requested punitive damages, which must be included in the amount-in-controversy analysis.
See Compl. ¶¶ 230, 239, 251, Prayer for Relief; James v. Lusby, 499 F.2d 488, 493 (D.C. Cir.
1974). Given the outrageous and malicious nature of Defendants’ alleged conduct, punitive damages could easily exceed $75,000 per plaintiff. Compl. ¶ 58. In short, there is no basis to find
with legal certainty that Plaintiffs cannot satisfy the amount-in-controversy requirement.5
This Court also has supplemental jurisdiction over the state-law claims.
Even without diversity jurisdiction, the Court still would have supplemental jurisdiction
over Plaintiff’s state-law claims because those claims “form part of the same case or controversy” as a claim over which the federal court may exercise original jurisdiction under Article III.
28 U.S.C. § 1367(a). Defendants accept that the state and federal claims form part of the same
case or controversy and do not question that they derive from a common nucleus of operative
fact—namely, the conspiracy among Defendants and others to disseminate stolen information.
Rather, Defendants suggest in passing that the Court should exercise its discretion to decline jurisdiction over the state claims. But Defendants fail to show that state issues substantially predominate or raise complex issues of state law.
Courts consider whether state issues substantially predominate “in terms of proof, of the
scope of the issues raised, or of the comprehensiveness of the remedy sought.” United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Here, state law issues do not predominate.

5

Even if this Court found that only one Plaintiff met the $75,000 threshold, it still could exercise
supplemental jurisdiction over all of Plaintiffs’ claims. See Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546 (2005).
15

Plaintiffs’ state and federal claims all depend on showing that there was a conspiracy between
Defendants and others to disseminate information stolen from the DNC. Moreover, the relief
sought is the same and includes both compensatory and punitive damages. The factors Defendants point to—the order in which the counts appear in the Complaint and a phrase on a website
intended to explain the case to interested non-lawyers, see Campaign Br. 9—have no relevance
to the analysis. Accordingly, Defendants cannot show that the state-law claims “each require different elements of proof than the federal claims” or are marked by near-total “legal and factual
separation from the federal claims.” Wisey’s #1 LLC v. Nimellis Pizzeria LLC, 952 F. Supp. 2d
184, 193 (D.D.C. 2013) (declining to exercise supplemental jurisdiction).
Nor have Defendants provided any reason to think that “the state law claims are more
complex or require more judicial resources to adjudicate or are more salient in the case as a
whole than the federal law claims.” Diven v. Amalgamated Transit Union International & Local
689, 38 F.3d 598, 602 (D.C. Cir. 1994). The state-law claims do not raise “novel or complex issue[s] of state law.” 28 U.S.C. § 1367(c)(1); see Campaign Br. 9. “As a general matter, common
law contract and tort claims do not present novel or complex questions of state law.” Wright &
Miller § 3567.3. Defendants offer no reason to think that these common-law tort claims are particularly complex or that adjudicating the state-law claims will require more judicial resources
than adjudicating the federal claim. Nor are the state-law claims somehow “more salient” than
the federal claim: Plaintiffs’ claims under § 1985(3) go directly to the conspiracy at the heart of
all claims in this case. In sum, the state law claims do not “predominate” and there is no reason
to decline to exercise supplemental jurisdiction over those claims.
II.

This Court Has Personal Jurisdiction Over Defendants and Is a Proper Venue.
In this case, a successful presidential campaign (of all things) asserts that it would be un-

reasonable to expect it to respond and litigate in Washington, D.C. (of all places). It is a remark16

able notion, and an incorrect one. Defendants conspired in D.C. with people who hacked servers
in D.C. to release Plaintiffs’ personal information from D.C. to the world, predictably causing
harm in D.C. to Mr. Comer’s professional reputation and to all Plaintiffs’ ability to support candidates for office. The Trump Campaign’s raison d’etre, Mr. Trump, lives, works, and directs the
Campaign’s affairs in D.C. And many of the witnesses and much of the evidence on which Plaintiffs’ claims rely are in D.C. Yet Defendants protest that they cannot be haled into court here.
As explained below, personal jurisdiction is proper under two independently sufficient
theories of specific jurisdiction. The Campaign is also subject to the general jurisdiction of this
forum because it is temporarily at home in D.C. Defendants’ argument is inconsistent with the
purposes of the doctrines governing personal jurisdiction and venue, and it relies on a crabbed
reading of the relevant legal standard as well as of Plaintiffs’ Complaint and the harms that it alleges. Personal jurisdiction is about “traditional notions of fair play and substantial justice.” Int’l
Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316
(1945). For that reason, “there are no mechanical tests or talismanic formulations for determining
personal jurisdiction, and the facts of each case must be weighed against the notions of fairness,
reasonableness, and substantial justice.” Jacobsen v. Oliver, 201 F. Supp. 2d 93, 104 (D.D.C.
2002) (Huvelle, J.). The Campaign successfully placed its candidate on ballots in D.C. both in
the primary elections and in the general election, voluntarily participating in a civic process in
D.C. and asking residents of D.C. to let Mr. Trump represent them. The Campaign can hardly
protest that it has done nothing to make itself accountable in a place where it voluntarily availed
itself of the political process.6 Personal jurisdiction here is fair and this Court is a proper venue.

6

Yes, it follows from this last point that most presidential campaigns would be subject to personal jurisdiction in every state. But a candidate for President of the United States, seeking votes
in every state, can hardly argue that there are some states to which s/he has no connection.
17

This Court may exercise specific personal jurisdiction over Defendants.
Specific jurisdiction requires a “relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1126 (2014). The defendant must have purposefully
established contacts with the forum, and the claims brought in the forum must “arise out of or
relate to” those contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
“[C]ontacts” fall into two broad categories: (1) actions within the forum, and (2) actions outside
the forum that cause effects within the forum. A claim “arises out of” those contacts whenever
“the claim [is] related to or substantially connected with . . . activity in the District . . . , that is
. . . [where] it ha[s] . . . some ‘discernible relationship’ to [that] activity.” Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 335 (D.C. 2000).
Specific personal jurisdiction over the Defendants exists here because (1) Defendants’ actions in the District (and those of their co-conspirators) gave rise to Plaintiffs’ claims; and (2)
Defendants’ actions foreseeably caused harm in the District, which is the basis for the claims.7
1.

Plaintiffs’ claims arise from Defendants’ conduct in D.C.

This Court may exercise personal jurisdiction over Defendants because their conduct in
the District gave rise to Plaintiffs’ claims. Under the D.C. long-arm statute, a court may exercise
jurisdiction over a person “as to a claim for relief arising from the person . . . transacting any
business in the District of Columbia.” D.C. Code § 13-423(a)(1). The reach of this provision is
coextensive with that of the Due Process Clause. Shoppers Food Warehouse, 746 A.2d at 333.
7

Plaintiffs believe that the allegations in the Complaint are sufficient to establish that this Court
may exercise personal jurisdiction over Defendants. If the Court disagrees, Plaintiffs should be
allowed to take jurisdictional discovery. See, e.g., Alkanani v. Aegis Defense Servs., LLC, 976 F.
Supp. 2d 13, 22 (D.D.C. 2014) (in assessing the question of personal jurisdiction, “[t]he court
need not confine itself to the allegations in the complaint as with other motions to dismiss; rather, it can consider materials outside of the pleadings, including declarations and evidence produced during the course of jurisdictional discovery”); GTE New Media Servs. Inc. v. BellSouth
Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000).
18

The Campaign does not contest that it transacted business in D.C., but it claims that
Plaintiffs’ claims do not arise from that transaction of business. See Campaign Br. 13. However,
“the District of Columbia Court of Appeals interpreted the phrase ‘arise from’ broadly and established a ‘flexible’ nexus test to determine when claims can be said to ‘arise from’ contacts with
the forum.” Jacobsen, 201 F. Supp. 2d at 105. A claim “arise[s] from” contacts with the forum
whenever it bears some “discernible relationship” to those contacts. Shoppers Food Warehouse,
756 A.2d at 335. Here, Defendants’ had extensive contacts with the forum that bear a substantial
relationship to the formation of the conspiracy out of which Plaintiffs’ claims arise. To wit:
•

The Campaign’s foreign policy team, which managed and directed the interactions
with Russia, was based in D.C. Compl. ¶¶ 35-37. Then-Senator Sessions, who chaired
the team, worked in D.C., as did other campaign foreign policy advisors. Id.

•

Defendants negotiated the conspiracy in part through meetings with their coconspirators held in D.C. See, e.g., Compl. ¶ 95 (meeting with Campaign’s nationalsecurity advisors, including Papadopoulos, at Trump International Hotel in D.C.); id.
¶ 96 (meeting between Trump, Kushner, Sessions, and Kislyak at the Mayflower Hotel in D.C.); id. ¶ 154 (meetings between Flynn and Kislyak in D.C.).

•

They negotiated the conspiracy in part through communications during which at least
one party was in D.C. See, e.g., id. ¶ 92 (Manafort call to Kislyak, whose office is in
D.C.).

•

They attempted to cover their tracks from within D.C. See, e.g., id. ¶ 188 (Hope
Hicks, in D.C., denies Campaign contacts with Russians); id. ¶ 192 (Sarah Huckabee
Sanders, in D.C., does same); id. ¶ 203 (Trump, in D.C., tweets that he “do[es]n’t
know Putin”); id. ¶ 204 (Trump, in DC, holds press conference in which he denies
anything to do with Russia); id. ¶ 216 (Stone, in DC, gives speech denying connections to Russia); id. ¶ 218 (Trump, at dinner in DC, pressures former FBI Director
James Comey to drop investigation into Campaign contacts with Russia); id. ¶ 219
(Trump, in D.C., fires Comey and meets with Kislyak and Sergey Lavrov).

These activities in D.C. are at the heart of the conspiracy from which Plaintiffs’ claims arise.8

8

As a general matter, the Campaign directed much of its conduct towards D.C. and conducted a
substantial amount of business in D.C. For example, “Trump[’s] campaign had successfully petitioned for him to appear on the ballot in the [D.C.] in order for him to stand for election in
[D.C.].” Compl. ¶ 31; see also id. ¶¶ 36-37 (discussing Campaign activity in D.C.). The Cam19

Although the precise moment when Defendants finalized their illegal agreement is unknown, that moment is also irrelevant. Complicated deals take time. And a court in this District
has upheld specific jurisdiction where a “conspiracy allegedly came to its inception” in D.C.,
even though it did not come to its conclusion here. Dooley v. United Techs. Corp., 786 F. Supp.
65, 72 (D.D.C. 1992), abrogated on other grounds by FC Inv. Grp. LC v. IFX Markets, Ltd., 529
F.3d 1087 (D.C. Cir. 2008). Plaintiffs’ claims arose from the Defendants’ ongoing course of conspiratorial conduct in D.C. and, therefore, specific jurisdiction over them is proper. It is more
than coincidence that the Special Counsel has empaneled a grand jury in D.C., Compl. ¶ 85, and
initiated proceeding against Mr. Manafort, Mr. Flynn, and Mr. Papadopoulos in this District.
Even putting aside Defendants’ own conduct in D.C., this Court may exercise jurisdiction
over Defendants because their co-conspirators acted here, and those actions gave rise to Plaintiffs’ claims. Under this approach—known as the “conspiracy theory” of personal jurisdiction—
Section 13-423(a)(1) of the D.C. long-arm statute (and the Due Process Clause) are satisfied because “[p]ersons who enter the forum and engage in conspiratorial acts are deemed to ‘transact
business’ there ‘directly’; coconspirators who never enter the forum are deemed to ‘transact
business’ there ‘by an agent.’” Second Amendment Found. v. U.S. Conference of Mayors, 274
F.3d 521, 523 (D.C. Cir. 2001); see also Edmond v. U.S. Postal Serv. Gen. Counsel, 949 F.2d
415, 424-25 (D.C. Cir. 1991) (applying another provision of the D.C. long-arm statute).
In this regard, an additional critical component of the conspiracy took place in D.C.,
where Russian hackers gained access to servers and stole DNC emails. Compl. ¶ 86. Although

paign undertook this activity to elect Trump President (a position headquartered in D.C.)—the
same purpose that motivated the conspiracy. Under the nexus test, the claims in this case bear
more than a discernible relationship to the Campaign’s contact with this forum. But even if Defendants’ general contacts with D.C. were insufficient to warrant personal jurisdiction, their contacts specifically related to the conspiracy are more than adequate, as discussed above.
20

Plaintiffs do not seek to hold Defendants directly liable for hacking the DNC servers in D.C.,
that act is a part of the conspiracy and so relevant to Plaintiffs’ claims. Co-conspirators can be
liable for acts that took place before they joined the conspiracy. See, e.g., United States v.
Bridgeman, 523 F. 2d 1099, 1108 (D.C. Cir. 1975) (“An individual who joins an already formed
conspiracy knowing of its unlawful purpose may be held responsible for acts done in furtherance
of the conspiracy both prior to and subsequent to his joinder.”). Plaintiffs allege that Defendants
conspired with people who hacked servers located in D.C., and the claims in this case arise from
that hack. That is enough to support personal jurisdiction over Defendants in this District.9
2.

Defendants caused harm in D.C.

This Court may also exercise specific personal jurisdiction over Defendants because their
actions foreseeably caused harm in D.C., and that harm is the basis of Plaintiffs’ claims. First,
Defendants harmed Mr. Comer’s professional reputation in D.C. Second, Defendants harmed
Plaintiffs’ ability to support their preferred candidates for elected office, and D.C. was the locus
of Plaintiffs’ political advocacy.
Under D.C. Code § 13-423(a)(4), D.C. courts may exercise personal jurisdiction over defendants who cause tortious injury in the District if they also have other minimum contacts within the District. Due process requires that the tortious injury be caused by conduct that was purposely directed at the forum. Walden, 134 S. Ct. at 1123-24. Defendants concede that they have
the other minimum contacts necessary to support jurisdiction under Section (a)(4) and so are left
to contend that the Complaint does not allege tortious injury in the District. They are wrong.
Mr. Comer pleads a harm to his professional reputation in D.C. Defendants argue that

9

Because Plaintiffs plausibly allege that Mr. Stone was part of the conspiracy, this Court has
personal jurisdiction over him. And Mr. Stone was in D.C. on multiple occasions during the relevant time period. Compl. ¶ 41.
21

this “is not good enough” because the professional harms that Mr. Comer suffered in this district
arose from information whose revelation, Defendants contend, is not tortious. Campaign Br. 1011. According to Defendants, “[t]he only alleged tort here is the disclosure of information suggesting Comer’s sexual orientation.” Id. at 11. That is false. Mr. Comer alleges that his professional reputation has been injured by the wrongful disclosure of many of his private communications. See, e.g., Compl. ¶ 72 (“Mr. Comer’s working environment deteriorated rapidly after his
emails’ release”); id. ¶ 74 (“After being marginalized at work as a result of the publication of his
hacked emails, Mr. Comer determined that he was required to leave his job.”); id. ¶ 75 (describing threatening phone calls to Mr. Comer’s office in D.C.). Defendants’ contention that disclosure of private “gossip” cannot form the basis of a tort action, Campaign Br. 11, is also wrong
(and, in any event, goes to the merits of Mr. Comer’s claims rather than personal jurisdiction).
See infra Part III.C.1.c. Mr. Comer was harmed in D.C., and Defendants may be compelled to
answer for that harm here.
And Defendants ignore Plaintiffs’ claims under 42 U.S.C. § 1985(3), which allege a distinct, D.C.-centered harm. Plaintiffs sent emails to and from the DNC for the purpose of organizing in support of their preferred candidate for President. The DNC, headquartered in D.C., was
the locus of the Plaintiffs’ political action. Plaintiffs therefore suffered harm to their D.C.focused advocacy for a political candidate, and Defendants may be sued here for that reason.
This Court may exercise general personal jurisdiction over the Campaign
because it is temporarily at home in D.C.
As described above, this Court has specific personal jurisdiction over Defendants. In addition, the Court may exercise general personal jurisdiction over the Campaign because, since
January 20, 2017, the Campaign has been controlled from D.C.
An entity may be sued on any claim whatsoever in a forum with general jurisdiction over

22

it. A court may exercise general jurisdiction over a corporation whose “affiliations with the [forum] State are so continuous and systematic as to render it essentially at home in the forum
State.” Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014). A corporation’s state of incorporation and principal place of business are the “paradigm” fora for general jurisdiction—but those
are not the exclusive fora. Jurisdiction also is proper over a foreign corporation temporarily
headquartered in the forum state. See Daimler, 134 S. Ct. at 755-56; see also Perkins v. Benguet
Consol. Mining Co., 342 U.S. 437, 448 (1952). Since January 20, 2017, the Trump Campaign
has been headquartered in D.C. The person whose reelection it exists to support lives and works
here; his staff lives here; and he directs the Campaign’s activities here. Compl. ¶ 40. Thus, this
Court may exercise general jurisdiction over the Campaign because D.C. is its “principal, if temporary, place of business.” Daimler, 134 S. Ct. at 756.
Venue is proper in this Court because a substantial portion of the acts complained of took place in D.C.
Defendants argue that venue here is improper for essentially the same reasons that they
argue the Court lacks personal jurisdiction over Defendants. They principally contend that
“Plaintiffs’ assertions that the Campaign formed, directed, or planned the conspiracy from the
District are conclusory,” and, therefore, that venue is improper here. Campaign Br. at 16. But
this contention lives and dies with the merits of the suit itself.
Given that this Court may exercise personal jurisdiction over Defendants, venue is easy.
Venue is proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). As previously discussed, a substantial
portion of the events alleged in this case took place in D.C. The emails whose disclosure is the
center of this case were sent to and from people in D.C. and stored on servers in D.C.; the conspiracy alleged in this case was formed and coordinated in part in D.C.; and the harms alleged in

23

this case happened, in part, in D.C. Proceedings related to the ongoing criminal investigation are
being held in this district. Venue is proper here.
III.

Plaintiffs Have Adequately Stated Claims for Violations of D.C. and Federal Law.
Because this Court has jurisdiction over this case, it should proceed to the merits and de-

ny Defendants’ Motions to Dismiss. Based on the allegations in the Complaint, the existence of a
conspiracy between Defendants, Russia, and WikiLeaks is not only plausible; it is probable. Not
only have Plaintiffs satisfied their burden to plausibly allege a conspiracy, but they have adequately alleged the elements of the underlying D.C. tort claims. Plaintiffs have also successfully
pleaded a cause of action under the support-and-advocacy clauses of 42 U.S.C. § 1985(3). Those
clauses make actionable conspiracies to intimidate, threaten, or injure voters because of their
support or advocacy for a candidate for federal office. Defendants’ conduct fits squarely within
the scope of conduct covered by the statute.
Plaintiffs have adequately alleged a conspiracy.
1.

Plaintiffs have satisfied the pleading standard for conspiracy.

Even at this early stage of the case, the evidence of a conspiracy is compelling. It easily
clears the standard at the motion-to-dismiss stage, which is plausibility. See Twombly, 550 U.S.
at 556; Iqbal, 556 U.S. at 678. Indeed, “[a] well-pleaded complaint may proceed even if it strikes
a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote
and unlikely.” Twombly, 550 U.S. at 556. Plaintiffs’ version of events need not even be more
plausible than other possible versions. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119,
1129 (D.C. Cir. 2015).
As courts in this District have recognized, “conspiracies are rarely evidenced by explicit
agreements, but nearly always must be proven through inferences that may be fairly drawn from
the behavior of the alleged conspirators.” Oxbow Carbon, 81 F. Supp. 3d at 11 (quoting Ander24

son News, 680 F.3d at 183); see also Wheeler v. United States, 977 A.2d 973, 982 n.19 (D.C.
2009) (“[T]he evidence supporting a conspiracy conviction nearly always is circumstantial because [t]here is rarely in a conspiracy case direct evidence of the conspiracy or proof of declarations.” (second alteration in original)).
The Complaint’s allegations easily support such inferences. Defendants argue that Plaintiffs’ allegations are “implausible” because they do not clearly identify the members of the conspiracy and precisely how the hacking and dissemination of the stolen information occurred.
Stone Br. 20; see also Campaign Br. 36. But Plaintiffs need not identify a “specific time, place,
or person involved in [an] alleged conspiracy” nor “when and where the illicit agreement took
place.” Oxbow Carbon, 81 F. Supp. 3d at 12. Furthermore, while Plaintiffs have plausibly alleged that the conspiracy between Defendants and their co-conspirators explicitly included the
dissemination of the stolen emails, that is not a prerequisite to liability. Whatever the precise
contours of the agreement, Defendants are liable for acts taken in furtherance of the conspiracy,
whether or not they actively participated in them or even knew about them. See Halberstam v.
Welch, 705 F.2d 472, 481 (D.C. Cir. 1983). In short, Plaintiffs need only plead “enough facts to
raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”
Twombly, 550 U.S. at 556.
The allegations in this case do considerably more than that: some of those allegations,
such as the existence of meetings premised specifically on Russian offers to help the Campaign
by damaging Mr. Trump’s opponent and the Campaign’s response proposing timing for release
of that information, are damning. But even if the allegations were weaker, a claim of conspiracy
should not be dismissed if it does not present direct evidence of the illegal agreement.
Examples of circumstantial evidence supporting a plausible inference of conspiracy in-

25

clude “parallel behavior that would probably not result from chance, coincidence, independent
responses to common stimuli, or mere interdependence unaided by an advance understanding
among the parties.” Twombly, 550 U.S. at 556 n.4. Conspiracies may be inferred through “allegations of interdependent conduct, accompanied by circumstantial evidence and plus factors,”
which may include (but are not limited to): “(1) a common motive to conspire; (2) evidence that
shows that the parallel acts were against the apparent individual economic self-interest of the alleged conspirators; and (3) evidence of a high level of inter[party] communications.” Gelboim v.
Bank of Am. Corp., 823 F.3d 759, 781 (2d Cir. 2016).
Here, Plaintiffs have assembled an abundance of specific factual allegations showing that
Defendants’ actions bear all the hallmarks of conspiracy that courts look for at the pleading
stage. These facts go far beyond mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action.” Twombly, 550 U.S. at 555. They support the allegation that Defendants engaged in a conspiracy to disseminate information stolen by Russian agents. They are
not “merely consistent with” liability, as Defendants claim. Stone Br. 22. Rather, they are
paradigmatic of the types of facts that courts look for in order to establish evidence of an illegal
agreement: motive to act together, opportunity to reach agreement in the form of repeated
communications between the co-conspirators, mutual benefit, and a cover up. Furthermore, many
of the actions of Defendants and their co-conspirators are difficult to explain absent a conspiracy.
An inference of conspiracy arises from the following facts, among others: The Trump
Campaign assembled a team of staff and advisors with an astonishing number of close and
longstanding ties to Russia. Compl. ¶¶ 102-118. Those ties extended to the very top of the Campaign—to Chairman Paul Manafort, id. ¶¶ 112-114, 127; to Trump’s closest family members and
confidants, id. ¶¶ 107, 112, 118; and to Mr. Trump himself, id. ¶¶ 103-111. Campaign agents and

26

associates had frequent contact with Russian operatives and with WikiLeaks during the months
before the election, much of it occurring before WikiLeaks released the emails on July 22, 2016
(contrary to what Defendants claim, see Campaign Br. at 36). See, e.g., Compl. ¶ 89 (describing
contact between Trump Campaign and Russian intelligence operatives in late 2015 and early
2016); id. ¶ 92 (calls and emails from April to November 2016); id. ¶ 95 (meeting of nationalsecurity advisory committee on March 31, 2016); id. ¶ 96 (April 27, 2016 meeting between Mr.
Trump, Mr. Kushner, Mr. Sessions, and Mr. Kislyak); id. ¶ 97 (May 2016 meeting between Mr.
Manafort and Mr. Kilimnik); id. ¶ 98 (June 9, 2016 meeting between Mr. Trump Jr., Mr. Manafort, Mr. Kushner, and Russian operatives); id. ¶ 100 (Mr. Page’s trip to Moscow in early July
2016); id. ¶ 101 (meeting with Mr. Kislyak during the Republican National Convention, on the
same day the Trump Campaign inexplicably made changes to the RNC platform favorable to
Russia and just days before the DNC emails were dumped on WikiLeaks). While the substance
of some of these contacts is unknown at this time, stolen emails and other “dirt” on Mr. Trump’s
opponent played a central role in at least some of them. See Papadopoulos SOO ¶ 14; Compl.
¶¶ 129-133.10
Defendants’ actions immediately before and after the emails were released also strongly
indicate a conspiracy. Mr. Trump and his associates have repeatedly taken steps to benefit Rus10

Plaintiffs have adequately pled that the agreement between Defendants and their coconspirators encompassed dissemination of the stolen emails. However, Defendants would be
liable for that dissemination even in the case of a more general agreement—e.g., for Russia to
help elect Trump in exchange for concessions and policy benefits—that did not turn on dissemination of the emails. That is because of the well-established rule that a member of a conspiracy is
liable for the tortious acts of his co-conspirators. See, e.g., Halberstam, 705 F.2d at 481 (“[O]nce
the conspiracy has been formed, all its members are liable for injuries caused by acts pursuant to
or in furtherance of the conspiracy. A conspirator need not participate actively in or benefit from
the wrongful action in order to be found liable. He need not even have planned or known about
the injurious action.”); de Lupis v. Bonino, No. 07-cv-1372, 2010 WL 1328813, at *10 (D.D.C.
Mar. 31, 2010) (“A conspiracy claim spreads liability for a successful tort claim to all parties to
the conspiracy regardless of w[h]ether they actually committed the underlying tortious act.”).
27

sia. Compl. ¶¶ 146-159. Mr. Stone communicated with the hacker who claimed credit for the
DNC hack, openly bragged about his connections to WikiLeaks and Mr. Assange, and correctly
predicted future releases of stolen emails. Id. ¶¶ 162-164, 170-178. Rather than condemn Russia
for interfering in our election, Mr. Trump and his associates did not hesitate to use the leaked
information to their advantage and even called on Russia to engage in further cyberattacks, id.
¶¶ 166-169, all while lying repeatedly about their relationships with Russia and contacts with
Russian actors, id. ¶¶ 183-205; Papadopoulos SOO ¶¶ 1-2; 22-33; Flynn SOO ¶¶ 1-4, and denying that Russia had anything to do with the DNC hack, in the face of overwhelming evidence to
the contrary, id. ¶¶ 206-216.
Given the facts in the Complaint, the existence of the conspiracy is far more than plausible. Indeed, it explains Defendants’ otherwise baffling behavior remarkably well. Courts allow
claims of conspiracy to proceed on far less. See, e.g., Oxbow Carbon, 81 F. Supp. 3d at 11;
United States ex rel. Sansbury v. LB & B Assocs., Inc., 58 F. Supp. 3d 37 (D.D.C. 2014); Friends
Christian High Sch. v. Geneva Fin. Consultants, 39 F. Supp. 3d 58 (D.D.C. 2014).
2.

The pleading of certain facts based on information and belief is appropriate and no basis for dismissal.

Defendants are incorrect to argue that the Complaint cannot survive a motion to dismiss
because some of the allegations are pled on information and belief. See Stone Br. 23-24; Campaign Br. 35. “The Twombly plausibility standard . . . does not prevent a plaintiff from pleading
facts alleged upon information and belief where the facts are peculiarly within the possession and
control of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible.” Evangelou v. D.C., 901 F. Supp. 2d 159, 170 (D.D.C. 2012); accord Kvech v. Holder, 2011 WL 4369452, at *3 n.7 (D.D.C. 2011). As Wright & Miller explain:
[P]ermitting allegations on information and belief is a practical necessity. How
else can a pleader avoid the appearance of perjury when he is without direct per28

sonal knowledge regarding one or more of the allegations necessary to his claim
and therefore must plead on a less certain footing? Pleading on information and
belief is a desirable and essential expedient when matters that are necessary to
complete the statement of a claim are not within the knowledge of the plaintiff but
he has sufficient data to justify interposing an allegation on the subject.
Wright & Miller § 1224 (internal citations omitted).
Here, the facts that Plaintiffs plead on information and belief are based on accounts by respected media outlets or can reasonably be inferred from other facts in the Complaint. All such
allegations are based on information of the type that is necessarily within Defendants’ possession—in particular, details about the conspiracy’s formation and implementation, including the
content of meetings and communications between Defendants and their co-conspirators.
Defendants seem to argue that Plaintiffs must provide citations to the exact articles, intelligence reports, and other publicly available sources that were relied upon in making claims on
information and belief. Plaintiffs could certainly provide this information, but Defendants fail to
provide any case law to support such a requirement for pleading on information and belief—and
no such requirement exists. Defendants’ cases are inapposite. In Robinson v. Cartinhour, this
Court rejected an allegation pled on information and belief not because the plaintiff failed to
identify the specific basis for his belief, but because he “provide[d] scant basis that would ‘allow[] the [C]ourt to draw the reasonable inference that [any particular] defendant is liable for the
misconduct alleged.” 867 F. Supp. 2d 37, 59 n.57 (D.D.C. 2012) (quoting Iqbal, 556 U.S. at
678). And Kowal v. MCI Communications. Corp., 16 F.3d 1271 (D.C. Cir. 1994), involved an
application of the heightened pleading standard for fraud under Federal Rule of Civil Procedure
9(b). Here, the ordinary Rule 8 pleading standard controls. See Wright & Miller § 1224.
3.

Plaintiffs have adequately pled a single conspiracy between the named
Defendants and other co-conspirators.

Defendants also argue that even if the Complaint adequately sets forth a conspiracy, they

29

cannot be liable because the Communications Decency Act (“CDA”) immunizes WikiLeaks
from liability for the acts alleged in the Complaint, Stone Br. 26-27; Campaign Br. 37, and because the intracorporate-conspiracy doctrine eliminates any claim based on conspiracy between
Stone and the Campaign, Stone Br. 23; Campaign Br. 37. These arguments rest on the fallacy
that Plaintiffs allege the existence of several separate conspiracies. See Campaign Br. 34 (describing “four theories of vicarious liability: conspiracy with Russians, conspiracy with WikiLeaks, conspiracy with Roger Stone, and aiding and abetting”). In fact, the Complaint alleges a
single conspiracy involving the named Defendants and their co-conspirators. Accordingly, neither the CDA nor the intracorporate-conspiracy doctrine presents a bar to Defendants’ liability.
a. The CDA does not immunize Defendants from liability.
Defendants argue that under CDA § 230, 47 U.S.C. § 230, WikiLeaks is immune from liability for the misconduct alleged here and that Defendants therefore could not have conspired
with WikiLeaks to commit the alleged unlawful acts. Stone Br. 23; Campaign Br. 37. But even if
WikiLeaks could be shielded from liability for the alleged acts in the Complaint,11 that does not
mean that Defendants are also immune. Even if one party to a conspiracy enjoys immunity from
suit for a particular action, “[i]t does not follow . . . that the action against the private parties accused of conspiring with the [immune party] must also be dismissed.” Dennis v. Sparks, 449 U.S.
24, 27 (1980); see de Lupis v. Bonino, No. 07-cv-1372, 2010 WL 1328813, at *9 (D.D.C. Mar.
31, 2010) (“Even when a conspiracy claim against an alleged tortfeasor is dismissed, the actions

11

Plaintiffs do not concede that WikiLeaks would be immune. Whether WikiLeaks would satisfy
the CDA test for immunity is a fact-intensive inquiry that likely would turn on whether WikiLeaks played enough of an editorial role with respect to the DNC emails to be considered a content provider rather than just a platform. See Klayman v. Zuckerberg, 753 F.3d 1354, 1358-59
(D.C. Cir. 2014). In ruling on a claim against WikiLeaks, a court would “afford a liberal reading
to a complaint” and only dismiss if, “on the face of th[e] complaint, all three prongs of [the
Klayman] test are satisfied.” Id. at 1357.
30

of that individual may still be considered in assessing whether a conspiracy claim has been adequately pled.”). Even in the context of criminal conspiracy, “[a] conspiracy prosecution may proceed even where the alleged co-conspirators are immune from prosecution.” United States v.
Oakar, 924 F.Supp. 232, 244 (D.D.C. 1996) (stating also that “[i]t is not necessary that any coconspirator be indicted or found guilty”), aff’d in part, rev’d in part, 111 F.3d 146 (D.C. Cir.
1997).12 Thus, Defendants’ plea for immunity from civil liability simply because WikiLeaks
might not incur such liability for the underlying acts is misplaced.
b. The intracorporate-conspiracy doctrine does not bar Plaintiffs’
conspiracy claim.
Defendants argue that the Campaign and Mr. Stone could not have conspired because Mr.
Stone was an agent of the Campaign at certain times during the conspiracy and a corporation
cannot conspire with its own employees. See Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp.,
749 A.2d 724, 739 (D.C. 2000). This argument fails for four reasons.
First, the D.C. Court of Appeals has not adopted the intracorporate-conspiracy doctrine.
See Blakeney v. O’Donnell, 117 F. Supp. 3d 6, 15 (D.D.C. 2015); Rawlings v. Dist. of Columbia,
820 F. Supp. 2d 92, 104 (D.D.C. 2011).
Second, courts in this Circuit have been hesitant to extend the intracorporate-conspiracy
doctrine beyond its original purpose of “shield[ing] corporations and their employees from conspiracy liability for routine, collaborative business decisions that are later alleged to be discriminatory.” Kenley v. Dist. of Columbia, 83 F. Supp. 3d 20, 33 (D.D.C. 2015). For example, the
12

The D.C. Circuit has declined to adopt the “rule of consistency” for criminal conspiracy cases,
meaning that even the acquittal of all other co-defendants in a conspiracy case does not shield the
remaining defendant from liability for the conspiracy in this District. See United States v. Dakins, 872 F.2d 1061, 1065–66 (D.C. Cir. 1989). Thus, the possibility that WikiLeaks might be
shielded from civil liability for the acts alleged here even while Defendants could be held liable—while arguably an instance of “inconsistency”—would be of far less concern than the “inconsistencies” that this Circuit allows in the context of criminal conspiracy.
31

D.C. Circuit has reserved judgment on the question of whether the doctrine applies to claims under 42 U.S.C. § 1985, see Bowie v. Maddox, 642 F.3d 1122, 1130 (D.C. Cir. 2011), and district
courts have declined to apply the doctrine in cases under 42 U.S.C. § 1983, see, e.g., Kenley, 83
F. Supp. 3d at 33-34. More generally, courts in this District have questioned the doctrine’s applicability to cases challenging conduct that “cannot be fairly characterized as involving routine
business decisions.” Id. at 32-33. Conspiring with Russian agents to disseminate information stolen from the DNC cannot be deemed a “routine business decision” of a presidential campaign,
and the intracorporate-conspiracy doctrine does not apply.
Third, even if the doctrine applied to situations like this, it would not bar Plaintiffs’ conspiracy claim, because Mr. Stone was not a Campaign employee during much of the relevant
time. See Compl. ¶¶ 6, 41. For the doctrine to apply, “the individual defendants must have been
acting within the scope of their shared employment.” Rawlings 820 F. Supp. 2d at 104.
Fourth, even if Mr. Stone and the Campaign were found to have constituted a single legal
entity throughout the entire conspiracy, the doctrine still would not bar Plaintiffs’ conspiracy
claim, because the Complaint alleges that the conspiracy involved other individuals and entities,
including Russians and WikiLeaks. United States ex rel. Scollick v. Narula, 215 F. Supp. 3d 26,
44-45 (D.D.C. 2016) (refusing to apply intracorporate-conspiracy doctrine where the alleged
conspiracy involved actors other than the corporation and its employee).
4.

Aiding and abetting tort liability has been recognized by the D.C. Circuit and has been adequately pled by Plaintiffs.

Defendants address their aiding and abetting arguments to the wrong court. Halberstam
predicted that the D.C. Court of Appeals would approve of aiding and abetting tort liability. See
705 F.2d 472, 479 (D.C. Cir. 1983). “[A]nd in the absence of an opinion from the D.C. Court of
Appeals plainly contradicting Halberstam, this [C]ourt must apply Circuit precedent.” EIG En-

32

ergy Fund XIV, L.P. v. Petroleo Brasileiro S.A., 246 F. Supp. 3d 52, 88 (D.D.C. 2017).
Neither Sundberg v. TTR Realty, LLC nor Flax v. Schertler contradicts Halberstam. EIG
Energy, 246 F. Supp. 3d at 87-88. All Flax holds is that it is not negligent for an attorney to fail
to raise an aiding and abetting claim. See 935 A.2d 1091, 1107-08 (D.C. 2007). And Sundberg—
which rejects the application of aiding and abetting liability to a statutory cause of action because
it was not proper for a court to expand the statute, see 109 A.3d 1123, 1129-30 (D.C. 2015)—is
inapposite to common-law tort claims that do not rest on statutes in the first place.
Plaintiffs have pleaded the elements of aiding and abetting—that is, that “(1) the party
whom the defendant[s] aid[ed] . . . perform[ed] a wrongful act that cause[d] an injury; (2) the
defendant[s] [were] generally aware of [their] role as part of an overall illegal or tortious activity
at the time that [they] provide[d] the assistance; (3) the defendant[s] . . . knowingly and substantially assist[ed] the principal violation.” Halberstam, 705 F.2d at 477. Russian intelligence
hacked and disseminated emails containing Plaintiffs’ private information. At the very least, Defendants had a “general awareness” of their role in the continuing enterprise, thereby satisfying
the second element for aiding and abetting. See id. at 487-88; Compl. ¶¶ 128-29, 169-81, 224-25,
232-33. Finally, Defendants knowingly provided substantial assistance over a sustained period
by (i) incentivizing the Russians to disseminate the information through the promise of a proRussian foreign policy, Compl. ¶¶ 138-59, (ii) providing strategic and technical assistance to
maximize the public impact of the disclosures, Compl. ¶¶ 119-22, 128-139, 161-65, 169-81, and
(iii) helping to cover up the conspiracy, Compl. ¶¶ 182-222, see Halberstam, 705 F.2d at 488
(noting duration of activity as well as role in cover-up); id. at 482 (explaining that encouraging
illegal activity can constitute substantial assistance).
This Court should apply D.C. law.
A federal court sitting in diversity applies the choice-of-law rules of the forum in which it
33

sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). D.C. courts apply “a modified governmental interests analysis which seeks to identify the jurisdiction with the most significant relationship to the dispute.” Washkoviak v. Student Loan Mktg. Ass’n, 900 A.2d 168, 180
(D.C. 2006). That analysis begins by asking whether there is a choice of law to make—that is,
whether the potentially applicable laws differ. DAG Enters., Inc. v. Exxon Mobil Corp., No. 00cv-182-CKK, 2001 WL 34778782, at *2 (D.D.C. Sept. 30, 2001). If they do, and if more than
one jurisdiction has a potential interest in having its law applied, GEICO v. Fetisoff, 958 F.2d
1137, 1141 (D.C. Cir. 1992), D.C. courts
evaluate the governmental policies underlying the applicable laws and determine
which jurisdiction’s policy would be more advanced by the application of its law
to the facts of the case under review . . . . As part of this analysis, [courts] also
consider the four factors enumerated in the Restatement (Second) of Conflict of
Laws § 145:
a) the place where the injury occurred;
b) the place where the conduct causing the injury occurred;
c) the domicile, residence, nationality, place of incorporation and place of
business of the parties; and
d) the place where the relationship is centered.
Washkoviak, 900 A.2d at 180.
Under this analysis, D.C. law applies. Defendants wrongly argue that “the District has no
stake in whether plaintiffs . . . receive redress for the alleged violation of their privacy.” Campaign Br. 19. D.C. has a strong interest in preventing people from acting tortiously within its
borders and from causing harm within its borders. See Parnigoni v. St. Columba’s Nursery Sch.,
681 F. Supp. 2d 1, 12-13 (D.D.C. 2010). Imagine if the private information at issue were stolen
from a safe, rather than servers, within D.C. Could Defendants seriously argue that D.C. has no
interest in the case because the documents belonged to someone from Tennessee? D.C. has an
interest in making sure that private information stored within its borders stays private. It has an
interest in making sure that people who work in D.C. and whose professional lives are in D.C.
34

can keep private information private. And D.C.—at least as much as any other jurisdiction in the
country—has an interest in ensuring that political organizing within its borders can proceed undeterred by conspiracies to suppress it. D.C. has a strong interest in applying its law to this case.
Of the remaining factors that D.C. courts consider, all but one favors the application of
D.C. law: the injury (in part) occurred in D.C., see supra Part II.A.2; the Defendants conspired in
D.C., see supra Part II.A.1; and the relationship between the parties centered on the emails
hacked from D.C. Defendants then are left to rest on the fact that, at the time of the suit, they
were not domiciled in D.C. That alone is insufficient, and so this Court should apply D.C. law.
Even if D.C. law did not apply, the logical law to apply would be that of Plaintiffs’ domiciles—Maryland, Tennessee, or New Jersey—a possibility that Defendants ignore. See Crane v.
Carr, 814 F.2d 758, 760 (D.C. Cir. 1987); Pearce v. E.F. Hutton Grp., Inc., 664 F. Supp. 1490,
1498 (D.D.C. 1987).13 Those states also recognize the tort of public disclosure of private facts, so
this Court need not make a choice of law among D.C., Maryland, New Jersey, or Tennessee, because the questions relevant to this motion would be decided identically in each jurisdiction. See,
e.g., DAG Enters., 2001 WL 34778782, at *2.
Defendants contend that New York law should govern this dispute because the Campaign
is permanently headquartered in New York, some of Defendants’ conspiratorial meetings took
place there, and Stone rents an apartment there. But New York has the weakest claim, as its only
plausible interest is in protecting its domiciliaries from liability for revealing private facts. It
cannot assert that interest when, as here, the private facts were taken from beyond its borders.
New York cannot immunize its domiciliaries from being subject to the laws of other states, as
Defendants claim. Finally, even if a balance of the interests of the various states were a close
13

These cases are not in tension with Plaintiffs’ argument that Defendants may be haled into
court here because they caused harm here. Defendants also caused harm where Plaintiffs live.
35

call—and it is not—this Court should then apply D.C. law. See In re APA Assessment Fee Litig.,
766 F.3d 39, 55 (D.C. Cir. 2014) (“Faced with a conflict between jurisdictions, with neither jurisdiction’s law favored by the Restatement factors . . . the law of the forum state govern[s].”).
The Complaint states plausible claims for public disclosure of private facts.
“The District of Columbia has long recognized the common law tort of invasion of privacy,” which “‘represents a vindication of the right of private personality and emotional security.’”
Vassiliades v. Garfinckel’s, Brooks Bros., Miller & Rhoades, Inc., 492 A.2d 580, 587 (D.C.
1985). One form of that tort, known as “public disclosure of private facts,” provides:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter published is of
a kind that (a) would be highly offensive to a reasonable person, and (b) is not of
legitimate concern to the public.
Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989) (quoting RESTATEMENT (SECOND) OF TORTS
(“RESTATEMENT”) § 652D). While Defendants may wish that the private-facts tort were “dead”
and “waiting only . . . to be formally interred,” Campaign Br. 21, it has in fact been accepted in
an ever-growing list of jurisdictions that now includes at least forty states.14 And dispositively,
the private-facts tort clearly remains alive and potent in the District of Columbia. See, e.g.,
Loumiet v. United States, 255 F. Supp. 3d 75, 100 (D.D.C. 2017) (holding that complaint alleging disclosure of amount of legal fees charged to client stated plausible private-facts claim).
In a passage of key significance here, the Restatement explains that the private-facts tort
protects against the offensive public disclosure of the “intimate details of [one’s] life”:
Every individual has some phases of his life and his activities and some facts
about himself that he does not expose to the public eye, but keeps entirely to him14

By 2010, forty states had explicitly recognized private-facts claims, and most followed
Prosser’s conception of the tort as embodied in the Restatement. Jared A. Wilkerson, Battle for
the Disclosure Tort, 49 CAL. W. L. REV. 231, 266-67 (2013) (observing that courts have “increasingly adopted the tort over time” despite scholarly criticism).
36

self or at most reveals only to his family or to close friends. Sexual relations, for
example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters,
most details of a man’s life in his home, and some of his past history that he
would rather forget. When these intimate details of his life are spread before the
public gaze in a manner highly offensive to the ordinary reasonable man, there is
an actionable invasion of his privacy, unless the matter is one of legitimate public
interest.
RESTATEMENT § 652D, cmt. b.
The private-facts tort implements these privacy concerns by requiring proof of “five constituent elements: (1) publicity, (2) absent any waiver or privilege, (3) given to private facts (4)
in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person of ordinary sensibilities.” Wolf, 553 A.2d at 1220.
Defendants do not contest the first two but assert that the Complaint fails to adequately
allege the third, fourth, and fifth. They are mistaken. As to each element, the Complaint alleges
far more than enough to “nudg[e] [Plaintiffs’] claims” of [invasion of privacy] ‘across the line
from conceivable to plausible.’” Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570).
1.

The Complaint sufficiently alleges that the facts in question were private.

The Complaint sufficiently pleads that the publicity was “given to private facts.” Wolf,
553 A.2d at 1220. The Complaint alleges in detail that the hacked emails “contain[ed] private
facts about Plaintiffs and others, including information regarding sexual orientation, personal
health matters, social security numbers, credit cards, personal relationships, banking relationships, home addresses, and telephone numbers.” Compl. ¶¶ 228, 236, 246.
More specifically, the Complaint alleges that four types of private fact were publicized:
(1) Personal-identification information that Mr. Schoenberg and Mr. Cockrum
were required to provide in order to obtain Secret Service clearance to attend
an event. That information included Mr. Schoenberg’s social security number,
date of birth, home address, phone number, and banking relationship, id. ¶¶ 8,
18, 50; and Mr. Cockrum’s social security number, date of birth, address, and
37

phone number, id. ¶¶ 8, 17, 49;
(2) Facts revealing Mr. Comer’s sexual orientation, which he had not disclosed
to several members of his close-knit family, including his grandparents, because “[he] knew that his grandparents viewed homosexuality as inconsistent
with their deeply held religious beliefs,” Compl. ¶¶ 5, 19, 51, 69-70;
(3) Statements regarding personal and professional relationships, including
Mr. Comer’s conflicts with coworkers and collaborators, id. ¶¶ 19, 43, and his
colloquial references to other gay individuals, made to friends without animus
or disrespect, which were taken out of context and thus caused him to be
falsely labeled as homophobic and racist, id. ¶ 73;
(4) Mr. Comer’s health-related information—in particular, an email graphically
describing his physical condition while suffering from an illness, id. ¶ 52.
a.

Mr. Cockrum’s and Mr. Schoenberg’s identification information was private.

Defendants assert that Mr. Cockrum’s and Mr. Schoenberg’s identification information
was not private because it was not “embarrassing.” Campaign Br. 30; Stone Br. 30-31. They are
wrong.15 “In this age of identity theft and other wrongful conduct through the unauthorized use
of electronically-stored data,” the D.C. Court of Appeals has had “little difficulty agreeing that
conduct giving rise to unauthorized viewing of personal information such as a plaintiff’s social
security number and other identifying information can constitute an intrusion that is highly offensive to any reasonable person, and may support an action for invasion of privacy (irrespective
of whether the plaintiff alleges that economic or other resultant injuries have already come to
pass).” Randolph v. ING Life Ins. & Annuity Co., 973 A.2d 702, 710 (D.C. 2009).16

15

Defendants’ non-D.C. cases stating that identification information is not private fail to consider the substantial privacy harms from publication of this type of information and, in any event,
do not state the law of this jurisdiction. See Campaign Br. 30.
16

Cf. Danai v. Canal Square Assocs., 862 A.2d 395, 400 n.4 (D.C. 2004) (explaining that “examining a plaintiff’s private bank account” and “other invasions of that nature” may constitute
tortious invasion of privacy); Wemhoff v. D.C., 887 A.2d 1004, 1009 (D.C. 2005) (enforcing
statute that prevents DMV from disclosing an individual’s social security number, name, address, telephone number, and medical or disability information).
38

Social security numbers, in particular, are “broadly recognized as confidential information” because they “facilitate access by others to many of our most personal and private records and can enable someone to impersonate us to our embarrassment or financial loss.” Bodah
v. Lakeville Motor Express, Inc., 649 N.W.2d 859, 862 (Minn. Ct. App. 2002), rev’d on other
grounds, 663 N.W.2d 550 (Minn. 2003). Accordingly, “[i]n all of the settings where these numbers are available . . . the entities with that information and their employees are bound by contractual and legal constraints to hold our social security numbers in confidence. Given the very
sensitive and important nature of the social security numbers, these constraints are important to a
functioning society.” 649 N.W. 2d at 863. Individuals “have a privacy interest in their home addresses and phone numbers” as well. Benz v. Washington Newspaper Pub. Co., No. 05-cv-1760EGS, 2006 WL 2844896, at *8 (D.D.C. Sept. 29, 2006).
b.

Mr. Comer’s sexual orientation was private regardless of his
prior disclosures to his parents and to close friends and colleagues.

Facts concerning one’s sex life or sexual orientation provide the paradigmatic example of
private facts whose unauthorized disclosure gives rise to tort liability. As the Restatement observes, “[e]very individual has some phases of his life and his activities and some facts about
himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals
only to his family or to close friends. Sexual relations, for example, are normally entirely private
matters.” RESTATEMENT § 652D, cmt. b. The Restatement does not distinguish between heterosexual and same-sex relations—both are private and protected by the private-facts tort.
Disclosure of facts supporting an inference of homosexuality—as occurred here—can
give rise to private-facts liability. For example, in Greenwood v. Taft, Stettinius & Hollister, 663
N.E.2d 1030 (Ohio Ct. App. 1995), the appeals court reversed the dismissal of a private-facts
claim that the plaintiff’s employer had improperly disclosed his sexual orientation by sharing,
39

with persons who had no reason to see it, a form listing the plaintiff’s male partner as the beneficiary of his insurance and pension plans.17 The court reasoned that “[i]t [could] be inferred from
this listing that Greenwood is a gay male. If Greenwood had chosen to keep his sexual orientation private, and the firm’s alleged disclosure ‘outed’ him, a reasonable person may well have
been offended by this disclosure.” Id. at 1035.18
Defendants assert that the facts concerning Mr. Comer’s sexuality are not private because
Mr. Comer came out to his parents and certain close friends and colleagues. See Compl. ¶ 5;
Campaign Br. 28; Stone Br. 29. But private facts do not become public merely because they are
shared with family or close colleagues, or in contexts where confidentiality is reasonably expected. After all, “the claim of a right of privacy is not so much one of total secrecy as it is of the
right to define one’s circle of intimacy—to choose who shall see beneath the quotidian mask.”
M.G. v. Time Warner, Inc., 107 Cal. Rptr. 2d 504, 511 (Cal. Ct. App. 2001) (emphasis in original). Accordingly, “[d]isclosing a fact to a small number of confidants does not equate to making
the information public.” Stratton v Krywko, Nos. 248669 & 248676, 2005 WL 27522, at *5
(Mich. Ct. App. 2005) (per curiam); see RESTATEMENT § 652D, cmt. b. (private facts include
those about sexual relations, that the plaintiff “at most reveals only to his family or to close

17

See also Diaz v. Oakland Tribune, Inc., 188 Cal. Rptr. 762, 766 (Cal. Ct. App. 1983) (liability
for publicizing plaintiff’s transsexual status); Simpson v. Burrows, 90 F. Supp. 2d 1108, 1125 (D.
Or. 2000) (tortious to expose plaintiff’s sexual orientation in a small community); Karraker v.
Rent-A-Center, Inc., 239 F. Supp. 2d 828, 838-39 (C.D. Ill. 2003) (tortious to disseminate confidential profile disclosing plaintiff’s sexual orientation); Foretich v. Lifetime Cable, 777 F. Supp.
47, 50 (D.D.C. 1991) (denying summary judgment where alleged facts showed that child plaintiff “had what appear to be very intimate details about her personal life”—namely, specific facts
about being sexually abused by her father—“broadcast around the globe,” and would “have to
live for many years with whatever consequences that broadcast may have caused, good or ill”).
18

The defendant in Greenwood did not “dispute the fact that sexual orientation is a private fact.”
Id. at 1035.
40

friends”).19
An example from the D.C. Court of Appeals confirms that D.C. law allows a plaintiff to
define the circle with which to share private personal information. In Vassiliades, the plaintiff
“offered evidence that, after agonizing over losing her youthful appearance and contemplating
plastic surgery for many years, she underwent plastic surgery and kept her surgery secret, telling
only family and very intimate friends.” 492 A.2d at 587. Her surgeon took photos of her before
and after her facelift. She understood that these photographs “were being taken as part of the
doctor’s regular routine for use with other patients.” Id. at 585. Months later, however, the surgeon made a presentation in a department store and a related television appearance in which he
briefly displayed the photos. Despite the plaintiff’s having consented to being photographed in
the first place, despite her disclosures about the surgery to family and friends, and despite the
fact that a facelift is the one of the most intentionally public of all medical procedures—it changes a person’s face, after all—the D.C. Court of Appeals had no difficulty concluding that the
plaintiff “was entitled to expect [that] photographs of her surgery would not be publicized without her consent.” Id. at 586-87.20 Vassiliades thus demonstrates just how seriously the District of

19

The Campaign cites Weiss v. Lehman, 713 F. Supp. 489, 504 (D.D.C. 1989), for the proposition that “if a plaintiff reveals ‘intimate facts’ to work colleagues, those facts are no longer private.” Campaign Br. 28. But the Weiss court merely concluded—after a full bench trial and as a
factual matter “determined on a case by case basis”—that the counterclaimant had shared (unspecified) intimate facts about her childhood with real-estate joint-venture co-investors (not
“work colleagues”) without harboring any “expectation” that the co-investors would “not divulge
[the facts] publicly.” 713 F. Supp. at 504.
20

See also Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 500, 503 (Mo. Ct. App. E.D.
1990) (holding that attending a gathering of in vitro parents under assurances that it would not be
open to the public did not constitute ‘‘an appearance in a public place so as to subject appellants
to publicity,” as they “clearly chose” to disclose their status only to other attenders); Zieve v.
Hairston, 598 S.E.2d 25, 30-31 (Ga. Ct. App. 2004) (affirming private-torts verdict where plaintiff told immediate family members about his hair-replacement treatments, which were then publicly revealed by defendant’s use of plaintiff’s before-and-after photos in advertising); Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491, 494 (Ga. Ct. App. 1994) (holding that plaintiff’s
41

Columbia takes the principle that a claim of the right of privacy is “not so much one of total secrecy as it is of the right to define one’s circle of intimacy.” Time Warner, 107 Cal. Rptr. 2d at
511, see also RESTATEMENT § 652D, cmt. c, illus. 11.
This right to define one’s circle of intimacy is most flagrantly and irreparably violated
when private facts are disclosed to the entire world, forever, on the Internet—a scenario more
extreme than any the American Law Institute (ALI) could have contemplated in 1977 when it
described a private fact as being (among other things) one that a person “reveals only to his family or to close friends.” RESTATEMENT § 652D, cmt. b.21 The effect of such a disclosure is at once
global and permanent. Before the disclosure, Mr. Comer could choose whether to disclose his
sexual orientation to existing or new acquaintances, including work colleagues. But now and for
the rest of his life, that information has been placed beyond his control, available to every one of
the billions of people around the world with Internet access. It is therefore beyond perverse that
the Campaign cites publication on the Internet as a ground for dismissing Mr. Comer’s privatefacts claim. Campaign Br. 25 (calling the Internet “the modern equivalent of a street”).
Understanding the right protected by the public disclosure tort as a right to define one’s
own circle of intimacy also makes clear the flaw in Defendants’ argument that homosexuality is
now so universally accepted that being gay is no longer a private fact. Campaign Br. 29; Stone
AIDS status did not become public merely because he disclosed it to family, friends, medical
personnel, and members of his support group, where defendant’s unauthorized disclosure then
spread that information to an entire urban television viewing area); Doe v. City of N.Y., 15 F.3d
264, 269 (2d Cir. 1994) (holding that plaintiff adequately alleged private facts by alleging that he
signed agreement with city agency settling AIDS-discrimination claims while under the belief
that the parties and the agency had agreed to protect his identity).
21

In 1977, the ALI’s vision of worst-case tortious scenarios included “publication in a newspaper or a magazine . . . or in a handbill distributed to a large number of persons, or any broadcast
over the radio, or statement made in an address to a large audience.” RESTATEMENT § 652D, cmt.
a. The global distribution and permanent availability of the WikiLeaks dump at issue here makes
the present scenario infinitely more damaging.
42

Br. 30. Defendants fail to cite a single private-facts case that supports that argument. Instead,
they cite two defamation decisions stating that a false ascription of homosexuality can no longer
be regarded as “libelous per se”—i.e., so obviously harmful to reputation that the law will presume damage. Campaign Br. 29 (citing Albright v. Morton, 321 F. Supp. 2d 130, 138 (D. Mass.
2004), aff’d on other grounds, 410 F.3d 69 (1st Cir. 2005); and Yonaty v. Mincolla, 945 N.Y.S2d
774 (N.Y. App. Div. 2012)). That proposition is doubly irrelevant. First, even if publicizing a
person’s sexuality is not defamatory per se, it can be damaging in particular cases: Mr. Comer
seeks the opportunity to prove his damages, not a ruling that he is automatically damaged as a
matter of law. Second, the issue here is whether information about an individual’s sex life (including sexual orientation) is private, not whether a false ascription of homosexuality is defamatory. A fact is private if it is one that a person “does not expose to the public eye.” See RESTATEMENT

§ 652D, cmt. b. For many people, sexual orientation is just such a fact, and unre-

markably so. After all, the category of private facts normally and paradigmatically includes information about an individual’s sex life regardless of sexual orientation. See RESTATEMENT
§ 652D, cmt. b. A court in this District has held, for example, that private-facts liability can arise
from disclosure of a straight woman’s dating relationships. See Benz, 2006 WL 2844896, at *7.
By contrast, a false statement is libelous per se only if its publication would expose a person to “public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or to induce an evil opinion of [a person] in the minds of rightthinking persons.” Yonaty, 945 N.Y.S.2d at 776. Heterosexual dating relationships, like same-sex
ones, are neither shameful nor disgraceful—but they are private. No case restricts private-facts
liability to the small and extreme category of statements that constitute libel per se.
Defendants also cite the allegation that, shortly before the first WikiLeaks dump, Mr.

43

Comer was named the DNC’s LGBT Finance Chair. Compl. ¶ 34. But not all fundraisers who
work with the gay community are themselves gay. And the Complaint does not allege (1) whether or to whom Mr. Comer publicized his new responsibility, (2) that his grandparents knew that
he had become LGBT Finance Chair, or (3) that his grandparents even knew what “LGBT”
meant. Factual questions like these cannot be resolved on a motion to dismiss.
Finally, Mr. Stone argues that facts suggesting Mr. Comer’s sexual orientation were not
private because they were contained in work emails in which he had no reasonable expectation
of privacy. Stone Br. 31. But Mr. Stone relies on inapposite cases concerning an employee’s expectation of privacy vis-a-vis his employer—not vis-a-vis a completely unauthorized third party.
c. Mr. Comer’s statements about his personal and business relationships were private.
Private communication about an interoffice quarrel or interoffice gossip is also within the
scope of the public disclosure of private facts tort. A provision of the federal Privacy Act of
1974, 5 U.S.C. § 552a(b), provides a useful analogy, as it was “designed to prevent [disclosure
of] the office gossip [and] interoffice and interbureau leaks of information about persons of interest in the agency or community, or such actions as the publicizing of information of a sensational or salacious nature or . . . detrimental to character or reputation.” Pippinger v. Rubin, 129
F.3d 519, 529 (10th Cir. 1997) (quoting legislative history). Few among us would wish to see
their least charitable remark about a work colleague splashed across the Internet. The potential to
ruin work relationships and suffer a catastrophic career setback is clear. That is in fact what happened to Mr. Comer. See Compl. ¶¶ 72-74.
d. Mr. Comer’s embarrassing health-related information was
private.
The Restatement recognizes that facts about “disgraceful or humiliating illnesses” are
private and fall within the scope of the private-facts tort. RESTATEMENT § 652D, cmt. b. Indeed,
44

“there are few matters that are quite so personal as the status of one’s health, and few matters the
dissemination of which one would prefer to maintain greater control over.” Doe v. City of New
York, 15 F.3d 264, 267 (2d Cir. 1994). Thus, Mr. Comer’s graphic and embarrassing description
of his illness while at work was private.
2.

The Complaint sufficiently alleges that the private facts were not matters of legitimate public concern.

Plaintiffs also adequately allege that the disclosed facts are ones “in which the public has
no legitimate concern.” Wolf, 553 A.2d at 1220. This element reflects the principle that “[t]he
conflict between the public’s right to information and the individual’s right to privacy requires a
balancing of the competing interests. In D.C. the right of privacy stands on a high ground, cognate to the values and concerns protected by constitutional guarantees.” Vassiliades, 492 A.2d at
589.
Here, that balance tilts decidedly in favor of privacy. The Complaint alleges that “[n]one
of the private information about Plaintiffs . . . that was disclosed was newsworthy or involved
any public policy matter at issue in the campaign.” Compl. ¶ 21; see also id. ¶¶ 55-59, 227. As a
matter of law, and in light of the other facts pleaded, that allegation is both sufficient and well
supported. None of the Plaintiffs is a public figure. And even if Plaintiffs were public figures,
“the privilege to publicize matters of legitimate public interest is not absolute. . . . Certain private
facts about a person should never be publicized, even if the facts concern matters which are, or
relate to persons who are, of legitimate public interest.” Vassiliades, 492 A.2d at 589.
Defendants argue at length about whether other information revealed through the conspiracy was newsworthy. But they cannot prevail on this element by articulating a general connection between the private facts that they conspired to publicize and some broader issue of possible public concern—for instance, the public’s interest in understanding the inner workings of

45

the Democratic Party. See Campaign Br. 24-26. Instead, there must be a connection between the
substance of the fact publicized and the matter on which the public has a right to be informed.
Gilbert v. Med. Econ. Co., 665 F.2d 305, 308 (10th Cir. 1981). “[T]o properly balance freedom
of the press against the right of privacy, every private fact disclosed in an otherwise truthful,
newsworthy publication must have some substantial relevance to a matter of legitimate public
interest.” Id. In Vassiliades, for example, the D.C. Court of Appeals held that, although plastic
surgery in general may be a matter of legitimate public interest, there was no “logical nexus” between that subject and the defendant surgeon’s unauthorized public disclosure of “before and
after” photos of the plaintiff’s plastic surgery. “Publication of her photographs [strengthened neither] the impact nor the credibility of the [surgeon’s public] presentations nor otherwise enhanced the public’s general awareness of the issues and facts concerning plastic surgery. . . .
[Those] presentations could have been just as informative by using either photographs of other
patients or photographs from medical textbooks.” 492 A.2d at 589-90.22 The court concluded that
“[t]he ‘logical nexus’ that courts have relied upon in determining that no liability exists where a
matter of legitimate public interest is concerned—here, the nexus between the subject matter and
Mrs. Vassiliades’ photographs—is missing.” Id. at 590; see Stratton, 2005 WL 27522, at *7.
Here, likewise, no discussion of the election or any other public issue could have been
made more credible or informative by the disclosure of (1) Mr. Comer’s sexual orientation,
health issues, or squabbles with colleagues, or (2) Mr. Cockrum’s and Mr. Schoenberg’s personal-identification information. As in Vassiliades, the requisite “logical nexus” is missing.
22

See Foretich, 777 F. Supp. at 50 (“The Court acknowledges that the sexual abuse of children is
an issue worthy of public attention, but it does not believe, as a matter of law, that the specific
facts about the alleged abuse of this one particular child . . . as described by the child on the videotape in question are of legitimate public concern.”); Hawkins v. Multimedia, Inc., 344 S.E.2d
145, 146 (S.C. 1986) (holding that jury could find teenage father’s specific identity private even
though report on teenage pregnancies was newsworthy).
46

The Campaign cites three inapposite and out-of-jurisdiction cases to argue that judges
should not second-guess fine-grained editorial judgments about the importance of a private fact
to establishing the credibility of a journalistic work, and likewise should not impose such exacting “nexus” requirements that a journalistic story is delayed until it is no longer newsworthy.
Campaign Br. 23. Even if these cases governed in this jurisdiction, they would not be on point.
For example, Alvarado involved the publication of the identities of two police officers accused
of sexual assault. See 493 F.3d at 1220-21. Whatever the wisdom of the publication of that information, there is an obvious logical nexus between the news story and the published information.
Moreover, the concern with second-guessing the editorial judgments of journalists who
are carefully sifting information or crafting narratives for the public has nothing to do with Defendants’ conduct. Defendants were not exercising editorial care. They simply participated in a
conspiracy to dump tens of thousands of private emails onto the Internet. Indeed, they (mistakenly) assert non-liability on the claim that they did not review the emails at all. Campaign Br. 27;
Stone Br. 28; see infra Part III.C.4. Even now, they cannot articulate a logical nexus between the
disclosed private facts and some other matter that could excuse the conduct of the conspiracy.
And the case they cite for their undue-delay point cautions that publishers “should take precautions to avoid unwarranted public disclosure and embarrassment of innocent individuals who
may be involved in otherwise newsworthy events of legitimate public interest”—precautions the
Defendants never took. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 474 (Tex. 1995).
Defendants’ public-concern arguments boil down to the contention that if an email account belonging to a person who is not a public figure contains a few emails that are relevant to
the public, then there can be no liability for the unauthorized release of the contents of the entire

47

account. But that is not the law. If accepted, Defendants’ arguments would defy the protection
offered by D.C. privacy law and create perverse incentives to engage in large-scale political espionage during important elections. Defendants assert that no private-facts liability can arise because the emails (1) were work emails sent or received by political operatives during a presidential campaign, (2) concerned the inner workings and the donor and media relationships of the
Democratic Party, (3) were published just before the Democratic National Convention, (4) were
published on the Internet, (5) were motivated by the desire to help the Trump Campaign and
harm the Clinton Campaign, and (6) “made headlines.” Campaign Br. 24-26. But these characterizations are not relevant to the question of whether Plaintiffs’ private information was worthy
of public disclosure. In fact, Plaintiffs’ private information did not make headlines and was of no
legitimate interest to the public. Defendants conspired to dump thousands of stolen emails on the
Internet. A rule that immunized them from liability because a small portion of those emails contained information of arguable public concern would simply encourage future privacy-violators
to violate as many people’s privacy as possible: if you dump an enormous amount of information, surely something in there will be of public concern. In an Internet-based world, such a
rule offers little protection for privacy at all, and it is not the law in this District.
3.

The Complaint sufficiently alleges that publication of the private facts
would have been highly offensive to a reasonable person of ordinary
sensibilities.

Plaintiffs also meet the fifth element of the private-facts tort: the improper disclosures
“would be highly offensive to a reasonable person of ordinary sensibilities.” Wolf, 553 A.2d at
1220. The “highly offensive” standard is easier to meet than the outrageousness standard for
awarding punitive damages or for finding liability for intentional infliction of emotional distress.

48

See Vassiliades, 492 A.2d at 588, 593.23
When evaluating offensiveness, “[t]he protection afforded to the plaintiff’s interest in his
privacy must be [judged] relative to the customs of the time and place, to the occupation of the
plaintiff and to the habits of his neighbors and fellow citizens.” RESTATEMENT § 652D, cmt. c.
Accordingly, the issue whether the disclosure was “highly offensive to a reasonable person” is “a
factual question usually given to the jury to determine.” Vassiliades, 492 A.2d at 588; see also
Wolf, 553 A.2d at 1219 (offensiveness of privacy invasion “is usually the province of the jury”).
Rarely, if ever, will this be an issue capable of being determined on a motion to dismiss.
Any reasonable person would find it highly offensive to learn that his private communications were disclosed to the world through the collaboration of an American presidential campaign and a hostile foreign power. Even without that context, the disclosures meet the “highly
offensive” standard due to their personal nature. “‘[H]ighly offensive’ matters generally relate to
the intimate details of a person’s life, sexual relations, and other personal matters.” Paige v. U.S.
Drug Enf’t Admin., 818 F. Supp. 2d 4, 17 (D.D.C. 2010) (applying cognate Florida law), aff’d,
665 F.3d 1355 (D.C. Cir. 2012).24 Thus, disclosure of sexual orientation potentially satisfies the
requirement of offending a reasonable person.25 Likewise, the “unauthorized viewing of personal
information such as a plaintiff’s social security number and other identifying information can
constitute an intrusion that is highly offensive to any reasonable person, and may support an ac23

Under D.C. law, the outrageousness necessary to prove intentional infliction of emotional distress is sufficiently elevated that it automatically opens the door to punitive damages. See Sere v.
Grp. Hospitalization, Inc., 443 A.2d 33, 37-38 (D.C. 1982); see Oliver v. Mustafa, 929 A.2d 873,
878 n.2 (D.C. 2007) (same). Plaintiffs believe that heightened standard is satisfied in this case.
24

See Benz, 2006 WL 2844896, at *7 (holding that publication in widely distributed newspaper
of names of people whom plaintiff had dated and with whom she had had sexual relations could
cause “suffering, shame or humiliation to a person of ordinary sensibilities”).
25

See, e.g., Greenwood, 663 N.E.2d at 1035; Simpson, 90 F. Supp. 2d at 1125; Karraker, 239 F.
Supp. 2d at 838-39.
49

tion for invasion of privacy (irrespective of whether the plaintiff alleges that economic or other
resultant injuries have already come to pass).” Randolph, 973 A.2d at 710.26 And the disclosure
of home addresses and phone numbers may be highly offensive, depending on the factual context. Benz, 2006 WL 2844896, at *8. Here, where those disclosures allegedly facilitated identity
theft, the offense is quite real and legally cognizable.
4.

The private-facts tort does not require proof that Defendants specifically intended to disclose Plaintiffs’ private facts.

Defendants erroneously assert that the private-facts tort contains a specific-intent element
that, as applied here, would require proof that Defendants committed their wrongful acts with
actual knowledge that the massive data dump of hacked DNC emails contained the specific private facts at issue in this lawsuit. Campaign Br. 27; Stone Br. 28. This intent element would effectively exempt mass disclosures of private communications from liability as long as the defendant refrained from reading any individual communication.
Fortunately, no such requirement exists. The sole case cited by Defendants held only that
“‘[t]he tort [of invasion of privacy] cannot be committed by unintended conduct amounting
merely to lack of due care.’” Randolph, 973 A.2d at 711 (brackets in original). The harm the
Plaintiffs suffered did not come about through “unintended conduct.” If Defendants had accidentally dumped private emails on the internet by mistakenly hitting the wrong keys on their
computer keyboards, they would have a defense. But that is not what happened. Defendants’
conspiratorial actions were entirely purposeful.
Defendants likewise fail to cite any case supporting their contention that the First
26

See also Bodah, 649 N.W.2d at 862-63; Lambert v. Hartmann, 898 N.E.2d 67, 73-74 (Ohio
App. 2008) (per curiam) (reversing dismissal of private-facts claim and holding that county
clerk’s website publication of traffic ticket showing plaintiff’s name, signature, home address,
birth date, driver’s license number, and social security number met all elements of the tort), rev’d
on other grounds, 927 N.E.2d 585 (Ohio 2010).
50

Amendment imposes the same specific-intent requirement. First Amendment protection is
“baked into” the private-facts tort by operation of its public-concern (or “lack of newsworthiness”) element, which balances the right of privacy against the public’s right to information. No
case holds that this built-in protection is constitutionally inadequate.
The Complaint states plausible claims for intentional infliction of emotional
distress.
The Complaint contains sufficient allegations as to the elements of the intentional infliction tort, as set forth in the proposed D.C. standard jury instruction:
(1) that Defendant engaged in conduct that was extreme and outrageous;
(2) that Defendant intended to cause Plaintiff emotional distress; or that Defendant acted with reckless disregard of whether the conduct would cause Plaintiff
to suffer emotional distress; and
(3) that Defendant’s conduct caused Plaintiff to suffer severe emotional distress.
. . . In order for you to find Defendant’s conduct to be extreme and outrageous,
you must find that conduct to be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and intolerable in a civilized society.
Standardized Civil Jury Instructions for the District of Columbia (“D.C. Instructions”) § 25.05.
1.

The Complaint sufficiently alleges that defendants’ alleged conduct
was extreme and outrageous.

According to the Restatement, “extreme” connotes unusualness while “outrageous” connotes malice or turpitude. RESTATEMENT (THIRD) OF TORTS (“RESTATEMENT THIRD”) § 46, cmt.
d (2012). “The fact that an act is unlawful,” though not dispositive, “is relevant in determining
whether it is an actionable transgression for purposes of” emotional-distress liability. Clemente v.
State, 206 P.3d 249, 255 n.3 (Or. 2009).
Here, Defendants conspired with Russian agents and others to undermine an election and
the very foundation of our democracy—conduct that is surely malicious and highly unusual, and

51

that would rightfully arouse shock and outrage against Defendants in the District of Columbia.
The Complaint alleges that “[t]he conduct of Defendants and their co-conspirators was extreme,
outrageous, and beyond the bounds of decency.” Compl. ¶ 237. That general allegation is supported by numerous detailed paragraphs setting forth that:
•

In order to influence the 2016 presidential election, Defendants agreed with each other and with other parties, including Russian government officials and WikiLeaks, to
publicly disclose on the Internet private email communications that were stolen, or
hacked, from a political party. Id. ¶¶ 79–80, 88–139, 160–181, 220, 232.

•

In furtherance of that conspiracy, one or more co-conspirators published on the Internet tens of thousands of hacked emails. The emails were published without the slightest effort to curate or redact them to remove Plaintiffs’ private facts. Instead, the published emails contained private facts about sexual orientation, personal health, social
security numbers, credit cards, personal relationships, banking relationships, home
addresses, and telephone numbers. Id. ¶¶ 17–19, 42–45, 47, 228, 236.

In response, Defendants object that it cannot be outrageous to publish stolen private
communications if Ben Franklin and Sam Adams did the same thing in 1773. Campaign Br. 32.
That is not a strong argument. Sam Adams destroyed a lot of privately owned tea, and destruction of property is still a harm compensable in tort. The Founding Fathers also conspired to overthrow the then-existing government by force, but that would not be a useful precedent for anyone
to cite today. Mr. Trump has made clear that he is not troubled by the Russian interference in the
2016 election. But there should be no doubt that conspiring with a hostile foreign power to make
public Americans’ private emails in order to tilt an election is a great outrage, especially to Plaintiffs and other Americans who were directly affected.
Equally unavailing is Defendants’ argument that the emotional-distress tort cannot be
used to evade the public-concern (or “lack of newsworthiness”) element of the private-facts tort.
Id. at 31. That argument fails because the Complaint satisfies that element, as demonstrated
above in Part III.C.2. As explained there, the Complaint’s allegations demonstrate the absence of

52

any “logical nexus” between the wrongful disclosures and matters of legitimate public concern.
2.

The Complaint sufficiently alleges that Defendants acted with reckless
disregard as to whether their conduct would cause emotional distress.

Defendants argue that the complaint fails to state an emotional-distress cause of action
because the plaintiffs were only “collateral victim[s],” and not the directly intended targets, of
their conspiracy. Campaign Br. 32. But the emotional-distress tort merely requires proof of recklessness—a standard easily met by the mass disclosure of private communications, regardless of
whether Plaintiffs were specifically targeted. An actor “acts recklessly when the actor knows of
the risk of severe emotional harm (or knows facts that make the risk obvious) and fails to take a
precaution that would eliminate or reduce the risk even though the burden is slight relative to the
magnitude of the risk, thereby demonstrating the actor’s indifference.” RESTATEMENT THIRD
§ 46, cmt. h.
The Complaint alleges that “Defendants and their co-conspirators knew that the hacked
DNC emails were private and intended to publicly disclose the private emails.” Compl. ¶¶ 226,
234, 244. Yet the emails published to the entire world on the Internet were not redacted to remove private facts about Plaintiffs. Id. ¶ 47. Thus, “Defendants and their co-conspirators knew,
were plainly indifferent to the fact, or consciously disregarded the foreseeable risk that the
hacked DNC emails contained private facts about Plaintiffs and other individuals similarly situated, and that publication of the emails would cause Plaintiffs and others severe or extreme emotional distress.” Id. ¶ 235. These allegations easily meet the recklessness standard.
Moreover, Defendants’ intent to harm Mr. Comer is clear: he and the DNC Finance Office “were singled out for publication” for the purpose of “intimidat[ing] and deter[ring] existing
donors from further supporting the DNC’s financial efforts.” Compl. ¶¶ 16, 34; see id. ¶ 45. WikiLeaks specifically boasted that it had disclosed 3,095 of his emails on July 22, 2016. Id. ¶ 42.

53

The fact that Defendants’ conduct may not have been specifically “directed at” Mr.
Cockrum or Mr. Schoenberg in no way undermines the plausibility of the allegation that Defendants behaved at least recklessly toward them. As donors to the DNC, they were part of a class of
intended targets whom Defendants intentionally sought to “put . . . on notice that their support
and advocacy could expose them to the release of their private information.” Compl. ¶ 181; see
also id. ¶¶ 16-17, 45. And the mass dumping of private communications onto the Internet was
like shooting an arrow at random into a crowd. Even if not “directed at” a specific individual, the
arrow (or here the disclosures) were sure to result in harm to someone in the crowd—in this case,
to many in that crowd.27 “[A]dhering to a ‘directed at’ requirement in such cases would largely
nullify the recklessness element of this Section.” RESTATEMENT THIRD § 46, cmt. i, illus. 7.
3.

The Complaint sufficiently alleges that the Plaintiffs suffered severe
emotional distress.

“‘Emotional harm’ means impairment or injury to a person’s emotional tranquility.” RESTATEMENT

THIRD § 45. “Emotional harm encompasses a variety of mental states, including

fright, fear, sadness, sorrow, despondency, anxiety, humiliation, depression (and other mental
illnesses), and a host of other detrimental—from mildly unpleasant to disabling—mental conditions.” Id., cmt. a. “[T]he existence . . . and severity of emotional harm is ordinarily dependent
on self-reporting.” Id. “Severe harm must be proved, but in many cases the extreme and outrageous character of the defendant’s conduct is itself important evidence bearing on whether the
requisite degree of harm resulted.” Id., § 46, cmt. j.
27

Defendants’ “directed at” argument garners no support from Bettis v. Islamic Republic of Iran,
315 F.3d 325 (D.C. Cir. 2003), which held that the siblings of a priest abducted and tortured by
state-sponsored terrorists were entitled to an emotional-distress recovery, but that his nieces and
nephews were not. Bettis did not concern directness of intent, but directness of harm. The kidnapers did not directly harm the nieces and nephews, who were neither abducted nor tortured.
Here, Defendants directly harmed Plaintiffs by participating in a conspiracy that resulted in the
disclosure of Plaintiffs’ information.
54

Here, the Complaint specifically alleges that each of the plaintiffs suffered severe emotional distress that may not abate for the rest of their lives. Mr. Comer was “outed” to his conservative religious grandparents, testing their previously close relationship. Compl. ¶¶ 51, 69-70.
He also lost a long-term romantic relationship. Id. ¶ 71. He became marginalized and isolated at
work; saw a major event that he had eagerly anticipated organizing taken away from him and
given to other staff; and ultimately felt compelled to leave his job. Id. ¶¶ 72, 74. He suffered
harm to his reputation due to press reports calling him homophobic and racist. Id. ¶ 73. He received as many as 20 harassing phone calls per day for weeks after the publication. Many callers
threatened violence and used vile language, making him feel like a pariah. Id. ¶ 75. As a result of
all this, Mr. Comer experienced significant emotional distress, including anxiety and depression.
He incurred and continues to incur substantial medical expenses to treat the distress caused by
Defendants and their co-conspirators. Id. ¶ 77.
Mr. Cockrum received and continues to receive notices of strangers attempting to obtain
credit in his name, some successfully. Id. ¶ 62. He feared identity theft—and worse—so he directed his personal assistant to take extra precautions when admitting visitors to his office and
speaking with strangers on the phone. Id. ¶ 63. He continues to experience anxiety over actual
and potential identity theft, and especially the ability of sophisticated hackers to gain access to
his personal or business financial accounts. He feels that protecting himself, his family, and his
philanthropy will require extreme vigilance with no end in sight. Id. ¶ 64.
Mr. Schoenberg received phone calls and letters about fraudulent credit applications in
his and his wife’s names. One application resulted in the issuance of a credit card on a new account shared between his wife and a stranger. Id. ¶ 66. Mr. Schoenberg has spent countless hours
speaking with creditors and with other financial and reporting institutions to rectify the problems

55

caused by the disclosure of his social security number Id. ¶ 67. He continues to experience anxiety and fear over potential future identity theft, especially the ability of sophisticated hackers to
gain access to his financial accounts using personally identifying information that is now readily
available online. He fears that these risks will never go away. Id. ¶ 68.
D.C. tort laws protecting privacy are not unconstitutional.
On spurious constitutional grounds, the Trump Campaign asks this Court to expunge the
private-facts tort from American law and to severely limit the emotional distress tort. Campaign
Br. 39-41. The Trump Campaign may wish to be able to indiscriminately make public highly
private information about its opponents and to inflict emotional damage by doing so. But the
Campaign’s attack on these long-accepted torts has no basis in law.
1.

The torts do not violate the First Amendment.

The Campaign contends that the private-facts tort violates the First Amendment in all
cases—regardless of how pleaded or applied in any given case—because the tort limits offensive
and outrageous speech (among other things). Id. at 39-40. The Campaign urges the Court to view
this as a content-based restriction on speech. Of course it is not.
By any recognized measure, the torts at issue here are content-neutral. Neither targets any
specific viewpoint either overtly or implicitly. Each is justified by state interests “unrelated to the
content of” the defendant’s speech. Hill v. Colorado, 530 U.S. 703, 719-20 (2000). The privatefacts tort protects against the offensive public disclosure of the “intimate details of [one’s] life”
and reflects no governmental viewpoint on the content of those details. RESTATEMENT § 652D,
cmt. b. For example, facts about one’s sex life are not protected from disclosure because the
government either favors sex and wants to promote it or disapproves of sex and wants to suppress discussion of it. Rather, such facts are protected from disclosure because every person has
a recognized interest in defining her own “circle of intimacy”—the small group of people with
56

whom she shares her most personal confidences. See Time Warner, 107 Cal. Rptr. 2d at 511.
Likewise, the emotional-distress tort enforces no governmental viewpoint on any specific issue.
Instead, the tort protects against outrageous conduct that inflicts severe psychological harm on
another—and it does so without regard to the specific “viewpoint” being expressed.
The Campaign also asserts that the torts violate the First Amendment because they punish
truthful speech. But the First Amendment creates no general immunity for speech that is truthful:
much of securities law, for example, is precisely about restricting truthful speech. And when ruling in privacy cases, the Supreme Court repeatedly has declined any “invitation to hold broadly
that truthful publication may never be punished consistent with the First Amendment.” The Florida Star v. B.J.F., 491 U.S. 524, 532 (1989). Instead, “[r]especting the fact that press freedom
and privacy rights are both ‘plainly rooted in the traditions and significant concerns of our society,’” the Court has “rel[ied] on limited principles that sweep no more broadly than the appropriate context of the instant case.” Id. at 533. By contrast, the Campaign’s sweeping theory, taken to
its logical conclusion, would vitiate the right to privacy. Any intimate detail shared in a private
email, letter, or video could be published to the world with impunity under the shield of the First
Amendment, as long as the information contained therein was “truthful.” That is not the law.
Moreover, the private-facts and emotional-distress torts take due account of the public interest in truthful speech. No private-facts claim will lie for the disclosure of facts that are of legitimate public concern. See Wolf, 553 A.2d at 1220. The tort’s public-concern element involves “a
balancing of the competing interests” of “the individual’s right to privacy” and “the public’s
right to information.” Vassiliades, 492 A.2d at 589. The Campaign makes no showing that the
inquiry required by the public-concern element is less rigorous than what the First Amendment
requires. The emotional-distress tort likewise targets only conduct “so outrageous” and “ex-

57

treme” as to be “regarded as atrocious and intolerable in a civilized society.” D.C. Instructions
§ 25.05. The First Amendment properly demands that our society have a broad tolerance for unpleasant speech, but it does not mean that every atrocious utterance is protected.
The Campaign again invites error when arguing that these long-established torts are subject to strict scrutiny. As the D.C. Circuit has observed, strict scrutiny generally applies only to
limitations on speech regarding matters of public concern. See Trans Union Corp. v. FTC, 267
F.3d 1138, 1140-41 (D.C. Cir. 2001). But the public-concern element of the private-facts tort and
the extreme-and-outrageous requirement of the emotional-distress tort ensure that those torts will
not infringe upon speech of public concern.
2.

The torts are not void for vagueness

The Campaign asserts that the private-facts and emotional-distress torts are void for
vagueness in all cases and applications because their elements feature terms that lack mathematical precision—e.g., “highly offensive” and “outrageous.” Campaign Br. 40-41. But tort law routinely uses terms of this sort. So it is not surprising that no relevant precedent supports this argument. Miller v. California, 413 U.S. 15 (1973), cited by the Campaign, is easily distinguishable. The Miller majority never mentioned vagueness; and in any event, Miller involved a criminal statute. The Supreme Court has “expressed greater tolerance of [putatively vague] enactments with civil and no criminal penalties because the consequences of imprecision are qualitatively less severe.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498–99 (1982). In fact, the majority of the cases that the Campaign cites in support of this argument involved criminal statutes,28 and the civil cases are also distinguishable.29

28

See Coates v. Cincinnati, 402 U.S. 611, 616 (1971); Godfrey v. Georgia, 446 U.S. 420, 428-29
(1980); Reno v. ACLU, 521 U.S. 844, 873 (1997); Grayned v. City of Rockford, 408 U.S. 104,
108 (1972).
58

In the civil sphere, “regulations will be found to satisfy due process so long as they are
sufficiently specific that a reasonably prudent person, familiar with the conditions the regulations
are meant to address and the objectives the regulations are meant to achieve, would have fair
warning of what the regulations require.” United States Telecomm. Ass’n v. FCC, 825 F.3d 674,
736 (D.C. Cir. 2016). The longstanding torts at issue in this case satisfy that test.
If accepted, the Campaign’s vagueness theory would invalidate a vast range of commonlaw and statutory remedies that employ necessarily imprecise standards such as reasonableness,
materiality, and offensiveness as opposed to bright-line rules or mathematical quantities. That
theory would blast a giant hole in the web of civil protections that historically have protected
Americans against wrongdoing, and it must be rejected.
The Complaint states plausible claims that Defendants violated 42 U.S.C.
§ 1985(3).
The support-and-advocacy clauses of 42 U.S.C. § 1985(3)30 seek to protect the integrity
29

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), involved a magazine cover featuring a
parody of a Campari Liqueur advertisement that displayed the plaintiff’s name and picture and
was entitled “Jerry Falwell talks about his first time.” Id. at 48. There, the Supreme Court held
that “public figures and public officials may not recover for the tort of intentional infliction of
emotional distress by reason of publications such as the one at issue here.” Id. at 56. Plaintiffs
here were neither public figures nor public officials. Fox Television, 567 U.S. at 253–54, held
that broadcasters did not have “sufficient notice of what is prescribed” by a new FCC policy that
was applied to them retroactively. Id. at 254. By contrast, the torts at issue here have been recognized for decades and Defendants cannot claim any surprise.
30

42 U.S.C. § 1985(3) reads as follows, with the bracketed numerals added and the most relevant
portions in bold text:
If two or more persons in any State or Territory conspire or go in disguise on the highway
or on the premises of another,
[1] for the purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or
[2] for the purpose of preventing or hindering the constituted authorities of any
State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or
59

of federal elections. Plaintiffs seek damages for injuries they suffered due to actions that Defendants took as part of a conspiracy made actionable under those clauses. Defendants’ half-dozen
objections to Plaintiffs’ § 1985(3) claims lack merit.
1.

Plaintiffs need not allege state action.

The Supreme Court has made clear that § 1985(3) reaches private conspiracies as well as
conspiracies involving state actors. See Griffin v. Breckenridge, 403 U.S. 88, 101 (1971); see also Stone Br. 33 (acknowledging that § 1985(3) provides “a cause of action for damages caused
by purely private conspiracies”). Defendants argue nonetheless that Plaintiffs’ particular claim
must allege state action. Their specific contention is that claims under the support-and-advocacy
clauses are assertions of First Amendment rights, and First Amendment violations require state
action. See Stone Br. 33-34; Campaign Br. 42.
Defendants are wrong. Claims under the support-and-advocacy clauses are not simply assertions of First Amendment rights. They are freestanding statutory claims, and the statutory
clauses under which they arise have no state-action requirement. Defendants’ contrary view fails
to differentiate among the separate clauses of § 1985(3). It also misreads the case law.

if two or more persons conspire
[3] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward
or in favor of the election of any lawfully qualified person as an elector for
President or Vice President, or as a Member of Congress of the United
States; or
[4] to injure any citizen in person or property on account of such support or
advocacy;
in any case of conspiracy set forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United States, the party so injured or
deprived may have an action for the recovery of damages occasioned by such injury
or deprivation, against any one or more of the conspirators.
60

The first half of § 1985(3) contains four clauses specifying different kinds of actionable
conspiracies. Clause (1) covers conspiracies to deny equal protection or equal privileges and
immunities. Clause (2) covers conspiracies to hinder authorities in their attempts to enforce equal
protection. Clause (3) covers conspiracies to prevent voters from giving support or advocacy to
candidates. And clause (4) covers conspiracies to injure citizens on account of their support or
advocacy for political candidates. See 42 U.S.C. § 1985(3).
Defendants would read clauses (3) and (4) as mere vehicles for asserting predicate First
Amendment rights, rather than as independently substantive. That view fails to notice the basic
differences between clause (1), which deals with equal protection, and clauses (3) and (4), which
deal with support and advocacy. Clause (1) is a vehicle for asserting predicate rights; clauses (3)
and (4) stand on their own.
Clause (1) is expansively worded. By its terms, it applies to all conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3).
Read for all it might be worth, clause (1) could “apply to all tortious, conspiratorial interferences
with the rights of others.” Griffin, 403 U.S. at 101. Concerned that such a broad reading might
render § 1985(3) a “general federal tort law” and thus raise constitutional concerns, the Supreme
Court has imposed two narrowing constructions on clause (1). Id. at 102. The first narrowing
construction is that plaintiffs proceeding under clause (1) must show that the conspiracies they
allege were motivated by “class-based, invidiously discriminatory animus.” Id. The second narrowing construction is that clause (1) refers to predicate rights created elsewhere. See Great Am.
Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372 (1979). This construction fits the clause’s
language, which speaks of conspiracies to deny “equal protection of the laws” and “equal privi-

61

leges and immunities under the laws”—language sensibly read to refer to the operation of substantive laws beyond § 1985(3).
Defendants would have this Court apply the second narrowing construction to clauses (3)
and (4), the support-and-advocacy clauses. But unlike clause (1), clauses (3) and (4) do not speak
generally of privileges and immunities under the laws, thus necessarily looking to rights created
by other laws. Instead, clauses (3) and (4) describe with particularity the conduct they make actionable: conspiratorial interference with federal elections. The language contains no suggestion
that the clauses rely on rights defined elsewhere. Nor does the language of clauses (3) and (4)
threaten to turn § 1985(3) into a general federal tort law. In short, none of the reasons for applying narrowing constructions to clause (1) applies to clauses (3) and (4). The Supreme Court has
accordingly pronounced the first narrowing construction inapplicable to clauses (3) and (4). Kush
v. Rutledge, 460 U.S. 719, 726 (1983) (limiting the narrowing construction to those portions of
§ 1985 that are worded in terms of equal protection). The second narrowing construction is
equally inapplicable, and for the same reasons.
Defendants’ view that claims under the support-and-advocacy clauses of § 1985(3) must
rest on predicate First Amendment rights stems from a misreading of language from Novotny and
United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S.
825 (1983) (“Carpenters”). See Campaign Br. 42 (quoting Novotny, 442 U.S. at 372, “Section
1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the
rights it designates.”); see also Carpenters 463 U.S. at 833 (“§ 1985(3) . . . ‘provides no substanti[ve] rights itself’ to the class conspired against.” (quoting Novotny, 442 U.S. at 372)). Defendants take this language to mean that no clause of § 1985(3) provides any substantive rights.
From that premise, they reason that the statute’s support-or-advocacy clauses must be mere vehi-

62

cles for invoking preexisting First Amendment rights. See Stone Br. 33-34; Campaign Br. 42.
But Defendants’ interpretation is mistaken, because the Supreme Court’s statements about
§ 1985(3)’s not providing substantive rights refer only to clause (1). These statements have no
bearing on the support-and-advocacy clauses.
Here is the relevant language from Novotny, itself drawing on Griffin. The language Defendants quote is the last sentence of the passage, after the block quote from Griffin.
The Court’s opinion in Griffin discerned the following criteria for measuring
whether a complaint states a cause of action under § 1985(3):
“To come within the legislation a complaint must allege that the defendants did (1) ‘conspire or go in disguise on the highway or on the premises
of another’ (2) ‘for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws.’ It must then assert that
one or more of the conspirators (3) did, or caused to be done, ‘any act in
furtherance of the object of [the] conspiracy,’ whereby another was (4a)
‘injured in his person of property’ or (4b) ‘deprived of having and exercising any right or privilege of a citizen of the United States.’” [Griffin,] 403
U.S., at 102-103, 91 S.Ct. at 1798-1799.
Section 1985(3) provides no substantive rights itself; it merely provides a remedy
for violation of the rights it designates.
442 U.S. at 372. The quoted language from Griffin cannot possibly describe the requirements for
causes of action under all four clauses of § 1985(3). It mentions, as criterion (2), only the conspiracies reached by the first clause, which deals with equal protection and equal privileges and
immunities. Nothing whatsoever is said about the criteria for valid complaints under the other
clauses of § 1985(3). The omission is understandable: in both Griffin and Novotny, the Court adjudicated claims under clause (1) only. So when the Novotny Court wrote, at the end of the quoted passage, that “Section 1985(3)” provides no substantive rights, it meant only that the first
clause of § 1985(3)—the only clause at issue in the case before it—provides no such rights. The
language quoted from Griffin supports no broader reading.

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The analysis is the same for Carpenters. Relying on Novotny, the Court in Carpenters
wrote that “§ 1985(3) . . . ‘provides no substantial rights itself’ to the class conspired against.
The rights, privileges, and immunities that § 1985(3) vindicates must be found elsewhere.” Carpenters, 463 U.S. at 833 (quoting Novotny, 442 U.S. at 372). But as explained above, the quoted
language from Novotny is pertinent only to the first clause of § 1985(3), and it is clear from context that Carpenters was using it the same way. The Carpenters language says that the statute
provides no substantive rights “to the class conspired against,” and the requirement that plaintiffs
demonstrate a conspiracy that victimizes a class applies only in actions under the first clauses of
§ 1985(3). See Kush, 460 U.S. at 726. The immediately following general language of “rights,
privileges, and immunities” further echoes the language of clause (1). And of course, the Carpenters Court had before it only a claim brought under clause (1). See 463 U.S. at 827.
Defendants rely on two questionable Eighth Circuit decisions when asserting that Plaintiffs’ claims under the support-and-advocacy clauses actually rest on predicate First Amendment
rights. Federer v. Gephardt, 363 F.3d 754 (8th Cir. 2004), misread the Carpenters and Novotny
language about § 1985(3)’s not providing substantive rights as if that language applied to all of
§ 1985(3), rather than just clause (1). Federer relied on Gill v. Farm Bureau Life Insurance Co.,
906 F.2d 1265 (8th Cir. 1990), which similarly regarded a claim under the support-and-advocacy
clauses as a First Amendment claim. Id. at 1270. The opinion in Gill is exceedingly curious: its
treatment of § 1985(3) contains multiple errors, large and small and sometimes obvious. For example, Gill asserts that Carpenters “squarely held” that § 1985(3) can provide no remedy for
economic injuries, Gill, 906 F.2d at 1270—a position with no basis in Carpenters and that contradicts the statute’s plain language affording causes of action to persons “injured in his person

64

or property.”31 Gill’s view that the support-and-advocacy clauses are merely vehicles for asserting First Amendment claims is just as mistaken.32 As circuit precedent, Gill was binding on the
panel that decided Federer. But no court outside the Eighth Circuit has ever cited Gill, and for
good reason: it makes a mess of § 1985(3).
Unlike the first two clauses of § 1985(3), then, the support-and-advocacy clauses have
substantive content that does not depend on rights established elsewhere. Those clauses make
actionable specified sorts of conspiracies—conspiracies to prevent, or to retaliate for, support or
advocacy given to candidates for federal office. The cause of action does not depend on an underlying First Amendment right, and no state action is required.
2.

Plaintiffs adequately allege conspiratorial purpose.

The Campaign argues that the Complaint fails “to allege that the Campaign entered into
the conspiracy for the purpose of preventing or injuring voters—rather than for the purpose of
convincing voters to choose Mr. Trump over Secretary Clinton.” Campaign Br. 43. Similarly,
Mr. Stone argues that the Complaint actually alleges “a larger conspiratorial purpose, elect Donald Trump and defeat Hillary Clinton.” Stone Br. 35. These arguments fail on their own terms.
Of course Mr. Stone and the Trump Campaign acted with the purpose of winning the election for
Mr. Trump. In pursuit of that end, they undertook the acts alleged in the Complaint with the purpose of impeding voters from giving support to Secretary Clinton. To conclude that defendants
did not conspire for the purposes specified in § 1985(3) because their purpose could also be described in terms of making Mr. Trump the President “is akin to saying that a bank robber lacks
31

The closest Carpenters came to such a holding was its statement that animus on the basis of
economic views did not qualify as class-based animus. 463 U.S. at 838.
32

The Gill opinion also consistently mislabels § 1985(3) as “§ 1985(c)” and describes § 1985 as
less “familiar” than 42 U.S.C. § 1983—a statutory provision that really is just a vehicle for the
assertion of rights created by other sources of law. Gill, 906 F.2d at 1266.
65

mens rea and thus cannot be convicted because his ultimate objective was to make money, not to
commit robbery.” Libertad v. Welch, 53 F.3d 428, 446 (1st Cir. 1995).
Plaintiffs adequately allege Defendants’ purpose. The conspiracy aimed to prevent, by intimidation or threat, donors and potential donors from giving concrete financial support to Mr.
Trump’s opponent. By publicizing the email communications of key members of the DNC finance team, the conspirators demonstrated that anyone communicating electronically with those
finance personnel was at risk of having those communications made public, along with sensitive
information like credit-card numbers, bank-account numbers, and social security numbers.
Threatening a loss of privacy and potential identity theft as the price of doing business with a
campaign’s fundraising arm is without doubt an attempt to use intimidation or threat to prevent
citizens from giving support to candidates for election. That purpose brings Defendants’ conspiracy within the clause (3), which covers conspiracies to prevent voters from giving support to
candidates for federal office. And as applied to donors who had already given support to the
campaign, publicizing communications with Trump’s opponent’s fundraising arm had the purpose of causing injury, including through the possibility of identity theft, as the price of doing
business with the campaign, thus deterring those donors from further communications with the
campaign and from giving further support. That purpose brings Defendants’ conspiracy within
clause (4), which covers conspiracies to injure voters on account of their support for candidates.
The Trump Campaign denies that the conspirators focused on dumping the email accounts of members of the DNC finance team. Indeed, the Campaign asserts that the Complaint
characterizes the email dumps as “indiscriminat[e].” Campaign Br. 43 (quoting Compl. ¶ 21) (alteration in original). But that word is quoted out of context. When the Complaint accurately says
that “tens of thousands of emails and attachments [were] indiscriminately dumped on the Inter-

66

net,” Compl. ¶ 21, it is referring to the indiscriminate nature of the email dump for each account
whose contents were dumped. The hacked content of each targeted account was dumped en
masse, without any care for separating information that might be of public interest from information with no public interest. But the choice to dump the content of some accounts rather than
others was made with a conscious purpose. As the Complaint specifies, six of the seven accounts
dumped on July 22, 2016 belonged to members of the finance team. Compl. ¶ 16.
To be sure, the contents of one other account—that of the DNC Communications Director, Compl. ¶ 42—also was dumped. But it is not Plaintiffs’ contention that the Trump Campaign
conspired to hack and dump Democratic Party emails only for purposes covered by § 1985(3).
The Trump Campaign surely also had other purposes, including, as the Campaign indicates, the
ultimate purpose of getting Americans to vote for Mr. Trump. Campaign Br. 43. But no conspiracy plaintiff is required to demonstrate that the conspirators acted only for the specific purpose
covered by the relevant conspiracy statute, any more than a prosecutor must prove that a bank
robber acted only for the purpose of robbery and not also for the purpose of getting rich. Plaintiffs need only allege that Defendants acted with the purpose of using intimidation or threat as a
means of deterring voters from giving financial support to its opponent, or with the purpose to
injure voters on account of support given to that campaign, and that Plaintiffs were injured as a
consequence. That they have done.
3.

Defendants’ extraterritoriality argument is irrelevant.

Defendants’ contention that § 1985(3) cannot be applied extraterritorially has no bearing
on this case. The Complaint specifies that, in furtherance of the conspiracy, agents of the Campaign met with Russian government representatives in the District, New York City, and Cleveland. Compl. ¶ 88. In furtherance of the conspiracy, Mr. Stone communicated with WikiLeaks
founder Julian Assange through an intermediary while both Stone and the intermediary were in
67

the United States. Compl. ¶ 162. Defendants accordingly did everything necessary to trigger
§ 1985(3) while physically present within the United States. To be sure, the conspiracy in this
case involved persons and events outside the United States as well as persons and events within
the United States. But the fact that parts of a conspiracy occurs elsewhere does not immunize
conspirators against liability for agreements and actions occurring within the United States.
4.

Defendants’ respondeat superior argument is irrelevant.

The Campaign argues that a defendant in a § 1985(3) case cannot be held liable on a respondeat superior theory. Campaign Br. 44. But Plaintiffs do not argue respondeat superior, so
this contention is beside the point.33 The term “respondeat superior” appears nowhere in the
Complaint, and Plaintiffs’ theory is not that the Campaign is liable for the improvised actions of
its low-level employees. Rather, Plaintiffs assert that senior officials of the Campaign, with the
33

Were it not beside the point, the argument that there is no respondeat superior liability in this
case would still fail, because it is legally incorrect. The Campaign relies on three cases in which
plaintiffs attempted to sue municipalities under § 1985(3) on the basis of the actions of municipal
employees. Defendant Campaign is not a municipality: it is a private corporation. That difference
matters. As explained in the only appellate decision the Campaign cites, Owens v. Haas, the
proposition that respondeat superior liability will not lie under § 1985(3) rests on the assumption
that, for this purpose, § 1985(3) should be treated analogously to 42 U.S.C. § 1983. See 601 F.2d
1242, 1247 (2d. Cir. 1979). Given that the reasons why plaintiffs in § 1983 actions may not recover on a theory of respondeat superior have to do with the specific language and legislative
history of § 1983, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 691-92 & n.57, the assumption that the same rule applies in § 1985(3) may be flawed at the outset: specific features of
§ 1983’s language that Monell read to reject respondeat superior liability under that statute have
no analogue in § 1985. See id. at 691-92. But even if § 1985(3) should for this purpose be treated
analogously to § 1983 when the defendant is a municipality—thus making the case resemble a §
1983 case in the relevant way—the analogy is particularly out of place when the defendant is a
private corporation. After all, the rule against respondeat superior in § 1983 is animated partly
by the “serious federalism concerns” that would arise if § 1983 were read to make local governments liable for actions that are not even their own, Bd. of Cty. Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 415 (1997), and partly by the need to prevent § 1983 from forcing municipalities to shift their limited budgets from the provision of government services to the satisfaction of § 1983 judgments, see City of Canton v. Harris, 489 U.S. 378, 400 (1989) (O’Connor, J.,
concurring in part and dissenting in part). Those concerns have no bearing on suits against private defendants, and the Campaign cites no case in which a private defendant has successfully
defended against a § 1985(3) claim on the ground that respondeat superior will not lie.
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authority to act for the Campaign itself, engaged in the conspiracy. See, e.g. Compl. ¶ 12.34
In the cases the Campaign cites, the plaintiffs argued respondeat superior because they
were seeking to impose liability on employers for the actions of low-level employees. See Owens
v. Haas, 601 F.2d 1242, 1247 (2d. Cir. 1979) (suit against municipality for damages arising from
the actions of a prison guard); Morgan v. District of Columbia, 550 F. Supp. 465, 468 (D.D.C.
1982) (dismissing a § 1985 claim where conduct at issue was that of individual police officers
rather than flowing from “an official or unofficial custom or policy of the Metropolitan Police
Department”). In contrast, Plaintiffs in the present case allege that the actionable conspiracy was
known to, developed by, sanctioned by, and directly engaged in by senior members of the campaign, such that the conspiracy is attributable to the Campaign itself. That the specific conspiratorial actions in this case were undertaken by human beings acting as agents of the Campaign
does not mean that those actions were not those of the Campaign. Corporations act through their
agents. See 16 Am. Jur. 2d Conspiracy § 56 (“A corporation is capable of extra-corporate conspiracy; that is, a corporation becomes vicariously liable for the conduct of its agents who conspire with other corporations or with outside third persons. This is so because generally, for purposes of a conspiracy claim, the acts of an agent are the acts of the corporation.”).35 Section 1985
operates on that understanding. See, e.g., McAndrew v. Lockheed Martin Corp., 206 F.3d 1031
(11th Cir. 2000) (en banc) (reversing dismissal of § 1985 claim against private corporation arising from actions of corporate officers on behalf of the corporation).
34

The Papadopoulos Statement of Offense corroborates Plaintiffs’ allegations, as it repeatedly
references high-ranking Trump Campaign officials. See Papadopoulos SOO ¶¶ 4, 8-9, 10, 15-16,
18-21.
35

Even under § 1983, a municipal employer is liable for the actions “of those officials whose
acts may fairly be said to be those of the municipality.” Bd. of Cty. Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 403-04 (1997). The same is true under § 1985. See, e.g., Owens, 601 F.2d
at 1247 (stating that a § 1985 claim would lie against the municipal defendant if the employee’s
actions complained of had resulted from “a conspiracy implicating the county itself”).
69

5.

Defendants’ intracorporate-conspiracy argument fails.

Mr. Stone argues that the Complaint alleges only an intracorporate conspiracy and that
intracorporate conspiracies are not actionable under § 1985(3). But as previously explained, the
Complaint alleges a conspiracy going beyond a single corporate entity. Furthermore—though it
does not matter in this case, because the Complaint alleges a conspiracy going beyond a single
entity—the question of whether § 1985(3) reaches intracorporate conspiracies remains open in
this Circuit. See Bowie, 642 F.3d at 1130. And there are good reasons to think that the statute
should reach conspiracies to interfere with federal elections even when the conspirators are all
part of a single organization. After all, the statute was enacted to combat Ku Klux Klan activity
during Reconstruction. As then-Judge Stevens put the point, “Agents of the Klan certainly could
not carry out acts of violence with impunity simply because they were acting under orders from
the Grand Dragon.” Dombrowsky v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972) (Stevens, C.J.).
6.

Stone participated in the conspiracy.

Finally, Mr. Stone argues that Plaintiffs fail to allege any action by him in furtherance of
the conspiracy that injured Plaintiffs. Stone Br. 35-36. But the Complaint specifically alleges that
Stone participated in the conspiracy in multiple ways, including by acting as a communications
channel with WikiLeaks founder Julian Assange. Compl. ¶ 162.
In sum, all of Defendants’ objections to Plaintiffs’ § 1985(3) claim fail. Section 1985(3)
exists precisely to give voters recourse against conspiracies aimed at compromising the integrity
of federal elections, and Plaintiffs have met every requirement for stating a claim.
CONCLUSION
For the reasons stated above, this Court has jurisdiction to hear this case and Plaintiffs’
claims easily surpass the threshold of plausibility to which they are subject at this stage of the
proceedings. Therefore, the Court should deny Defendants’ motions to dismiss.
70

Date: December 1, 2017

/s/ Benjamin L. Berwick
BENJAMIN L. BERWICK (D.D.C. Bar No. MA0004)
United to Protect Democracy
10 Ware St.
Cambridge, MA 02138
[phone]
[e-mail]
IAN BASSIN (NY Attorney Reg. No. 4683439)
United to Protect Democracy
222 Broadway
New York, NY 10038
[phone]
[e-mail]
JUSTIN FLORENCE (D.C. Bar No. 988953)
[e-mail]
ANNE TINDALL (D.C. Bar. No. 494607)
[e-mail]
United to Protect Democracy
2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
[phone]
NANCY GERTNER (MA Bar No. 190140)
Fick & Marx
100 Franklin Street, 7th floor
Boston, MA 02110
[phone]
[e-mail]
RICHARD PRIMUS (D.C. Bar No. 472223)
The University of Michigan Law School*
625 S. State Street
Ann Arbor, MI 48109
[phone]
[e-mail]
STEVEN A. HIRSCH (CA Bar No. 171825)
Keker, Van Nest & Peters LLP
633 Battery Street
San Francisco, CA 94111-1809
[phone]
[e-mail]
* For identification purposes.
Counsel for Plaintiffs

71