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

Filing 45

REPLY to opposition to motion re 23 MOTION to Dismiss under the D.C. Anti-SLAPP Act filed by ROGER STONE. (Buschel, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM,

ET AL .,

Plaintiffs,
v.

Case No. 1:17-cv-1370-ESH

DONALD J. TRUMP FOR PRESIDENT, INC.,
ET AL .,
Defendants.

DEFENDANT ROGER STONE’S REPLYMEMORANDUM ON
SPECIAL MOTION TO DISMISS AMENDED COMPLAINT
UNDER THE D.C. ANTI-SLAPP ACT

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]
Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Defendant Roger Stone (Stone) respectfully files this reply memorandum and requests
that the Court dismiss Plaintiffs’ claims in ECF No. 17 for public disclosure of private facts and
intentional infliction of emotional distress in accordance with the District of Columbia AntiSLAPP Act (D.C. Code § 16-5502(a)). In accordance with the Anti-SLAPP Act (D.C. Code
§ 16-5504(a)) and Federal Rule of Civil Procedure 54(d)(2), Stone reserves the right to seek the
costs of litigation, including a reasonable attorney’s fee, if the Court grants the motion.
Dated: December 29, 2017

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]
Counsel for Roger Stone
(** appearing Pro Hac Vice)

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
REPLY .............................................................................................................................................1
I. PLAINTIFFS’ CLAIMS ARISE FROM AN ACT IN FURTHERANCE
OF THE RIGHT OF ADVOCACY ON ISSUES OF PUBLIC INTEREST………………….2
CONCLUSION ................................................................................................................................6

i

TABLE OF AUTHORITIES

Citizens United v. FEC, 558 U.S. 310, 370 (2010)………………………………………………4
*Competitive Enterprises Institute v. Mann, 150 A.3d 1213 (D.C. 2016) ..................................2, 6
*Anti-SLAPP Act, D.C. Code § 16-5502 ............................................................................1, 2, 3, 5
Federal Rule of Civil Procedure 8 ………………………………………………………………..4
Federal Rule of Civil Procedure 12 .................................................................................................1

ii

REPLY
To claim the protection of the act, the defendant must first make a “prima facie showing
that the claim at issue arises from an act in furtherance of the right of advocacy on issues of
public interest.” § 16-5502(b). In conjunction with the rule 12(b) motion to dismiss, Roger Stone
makes the case that he is being punished for speech when there is not a directly stated allegation
when, where, and how he joined the conspiracy Plaintiffs complain of prior to the publication of
their emails. Plaintiffs claim their emails are a product of support and advocacy, but Roger
Stone’s public posts about the presidential campaign of 2016 is not, this is hypocritical.
Roger Stone recognizes this District Court has ruled in Deripaska v. Associated Press,1
that the D.C. Anti-SLAPP statute does not apply in diversity cases. Stone, therefore, focuses his
reply on Plaintiffs’ claim that even if this Court were to be in a position to recognize that the
Anti-SLAPP statute did apply to diversity cases, it would apply to Roger Stone as an available
defense.
Based upon Plaintiffs’ claims, with no nexus to Roger Stone but mere correlations to
selectively occurring events after Plaintiffs emails were disseminated by WikiLeaks, Plaintiffs
will not likely meet their evidentiary burden at the pleadings stage or at summary judgment. The
application of the Anti-SLAPP statute would offer Roger Stone early relief from this meritless
lawsuit. Plaintiffs do not challenge the merit of the Defendant’s attack that they cannot
sufficiently describe the Russian hacking of DNC database and thus, by their silence prove their
allegations is an obstacle too high. (Decl. Griffith, ECF No. 15-1). Ironically, they claim they

1

No. 1:17-cv-913-ESH
1

cannot wait for the federal government to explain it. 2 The D.C. Anti-SLAPP Act applies in
federal court. The Act requires dismissal of Plaintiffs’ D.C.-law claims.
I. PLAINTIFFS’ CLAIMS ARISE FROM AN ACT IN FURTHERANCE OF THE RIGHT
OF ADVOCACY ON ISSUES OF PUBLIC INTEREST.
The D.C. Anti-SLAPP Act applies to any claim that “arises from an act in furtherance of
the right of advocacy on issues of public interest.” § 16-6502(b). As relevant here, “act in
furtherance …” includes (1) “any written or oral statement made … in a place open to the public
or a public forum in connection with an issue of public interest” as well as (2) “any other
expression or expressive conduct that involves … communicating views to members of the
public in connection with an issue of public interest.” § 16-5501(1).
Plaintiffs’ D.C.-law tort claims arise from the publication of DNC emails on WikiLeaks
“right before the Democratic National Convention.” (Am. Compl. ¶ 165.) In fact, the only
relevant publication of Plaintiffs’ emails would be from the database that held their emails – the
DNC’s database. (Am. Compl. ¶¶ 7, 8, 160). Defendants must therefore show that their
publication satisfies one of the two parts of the definition set out above. It satisfies both.
To begin, the publication both (1) occurred “in a place open to the public or a public
forum” and (2) involved “communicating views to members of the public.” It occurred in a place
open to the public or a public forum, because “websites” qualify as “places open to the public”
and as “public forums.” Competitive Enterprises Institute v. Mann, 150 A.3d 1213, 1227 (D.C.
2016). And it involved “communicating views to members of the public,” since (in Plaintiffs’
own words) the emails were “published to the entire world.” (Am. Compl. ¶ 1.)
2

“. . . plaintiffs cannot wait for other law enforcement and intelligence investigations into
coordination between Russia and Trump associates to run their course. . .”
https://unitedtoprotectdemocracy.org/privacylawsuit/
2

In addition to the dissemination of Plaintiffs’ emails as part of the WikiLeaks tranche,
Plaintiffs cite Roger Stone’s public social media postings on Twitter in their complaint. These are
the actual postings alleged in the amended complaint. The postings are speech – political speech.
And political speech about people other than Plaintiffs and published databases that contained
data about people other than Plaintiffs, as it appears to have been sourced from places other than
the DNC, the alleged source of the Plaintiffs’ information.
174. On August 21, 2016, Defendant Stone tweeted: “Trust me, it
will soon the [sic] Podesta’s time in the barrel. #CrookedHillary.”
175. In mid-September, Stone said on a radio interview that he
expected “Julian Assange and the Wikileaks people to drop a
payload of new documents on a weekly basis fairly soon.”
176. On October 1, 2016, Defendant Stone tweeted: “Wednesday
@HillaryClinton is done.”
177. Two days later, on October 3, 2016, Defendant Stone tweeted:
“I have total confidence that @wikileaks and my hero Julian
Assange will educate the American people soon # LockHerUp.”
178. Then, on October 4, 2016, Defendant Stone tweeted:
“Payload coming. #Lockthemup.”
This is political speech in a public forum communicating views on those public issues.
See Mann, 150 A.3d at 1227. Realize, the amended complaint describes three separate hacks
(break in) and thefts (stealing data) from three separate data sources (databases) – Democratic
National Committee (“DNC”), Democratic Congressional Campaign Committee (“DCCC”), and
the Clinton Campaign (John Podesta’s emails). The DNC database held Plaintiffs’ data but the
DCCC hack did not include any of Plaintiffs’ data. And presumably, the Clinton campaign or
John Podesta’s private email was hacked since it held John Podesta’s emails, both personal and
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work related. The only relevant inquiry is whether the lawsuit alleges Roger Stone conspired to
disseminate Plaintiffs’ emails – and no one else’s.
Roger Stone did not target Plaintiffs; rather, Plaintiffs targeted Roger Stone as a means of
pursuing their political agenda outside of their injuries claimed by reason of the dissemination of
their emails. This lawsuit is a SLAPP suit meant to deter that political speech. If Roger Stone is
being lumped together with the Trump campaign, then the Court can also consider The
Campaign in its special motion to dismiss refers to emails discussing political matters within the
DNC. Reference to that political controversy demonstrates the applicability of the Anti-SLAPP
statute as well for Roger Stone. The publication of Stone’s “tweets” and the DNC’s emails has an
obvious “connection” with issues “of public interest.” The emails also revealed the nature of the
Democratic Party’s interactions with wealthy donors, information that should interest any citizen
who wants to find out “whether elected officials are in the pocket of … moneyed interests.”
Citizens United v. FEC, 558 U.S. 310, 370 (2010). 3
The Act turns on the character of the defendants’ speech as a whole, not on the character
of each individual statement that the defendant utters. Indeed, Plaintiff frames both Defendants
participation “in a conspiracy to publicize private information about private individuals in the
course of interfering in the 2016 presidential election.” (Opp. 6-7). It applies if the “act” from
which the claim arises furthers the right of public advocacy. § 16-5502(a). In this case, the “act”
from which Plaintiffs’ claims arise is the publication of a large collection of emails. The single

The pleading stage is not a typical point for amici to appear. Former Intelligence officials,
former campaign officials, and a civil rights group, attempt to infuse facts into Plaintiffs’ lawsuit
that were not alleged. But the only help the amici offer is proof this lawsuit is political – and the
conduct criticized is speech. Plaintiffs cannot introduce such allegations through amici. See Fed.
R.Civ.P. 8.
3

4

act of publication has the requisite connection with an issue of public interest (not whether each
individual email does). It does, and the Act thus applies to Plaintiffs’ claims.
The Act also turns on the primary purpose of the speech, not on its ancillary effects. To
distinguish “issues of public interest” from issues of private interest, courts must consider
whether the defendant’s statements are “directed primarily toward” “commenting on or sharing
information about a matter of public significance,” or instead toward “protecting the speaker’s
commercial interests.” § 16-5501(3) (emphasis added). WikiLeaks’ publication of the DNC
emails was plainly directed primarily toward sharing information about a matter of public
significance—namely, information about the misdeeds of officials at the Democratic National
Committee. (See Am. Compl. ¶ 165.) No allegation is made that the dissemination of Plaintiff
Comer’s emails were “directed primarily toward” exposing his sexual preference or Plaintiffs
Cockrum and Schoenberg’s emails were to expose their financial information of Plaintiffs
Cockrum and Schoenberg. Again, the Act applies to Plaintiffs’ claims.
The Act’s language is broad and encompasses all of the emails published by WikiLeaks.
The Act applies where the defendant engages in speech “in connection with” an issue of public
interest. § 16-5501(1) (emphasis added). “Issue of public interest,” in turn, includes any issue
“related to” public affairs. § 16-5501(3). “In connection with” and “related to” are broad phrases.
Work emails sent by officials of a political party necessarily have a “connection” with issues that
are “related to” public affairs, even if not every single email specifically discusses public affairs.
That, once more, means that the Act applies to Plaintiffs’ claims.
The D.C. Council could not have intended a lawsuit like Plaintiffs’ be immune to the
Anti-SLAPP Act “to protect a particular value of a high order—the right to free speech

5

guaranteed by the First Amendment.” Mann, 150 A.3d at 1231. The Anti-SLAPP Act applies to
Plaintiffs’ claims.
CONCLUSION
In accordance with the District of Columbia Anti-SLAPP Act, the Court should dismiss
Plaintiffs’ claims for public disclosure of private facts and intentional infliction of emotional
distress.
Dated:

October 25, 2017

Respectfully submitted,
/s/ Robert Buschel
Robert C. Buschel

L. Peter Farkas
(DDC Bar No. 52944)
HALLORAN FARKAS & KITTILA, LLP
1101 30TH STREET, NW
SUITE 500
WASHINGTON, DC 20007
[phone]
[e-mail]

Robert C. Buschel**
Counsel of Record
(FL Bar No. 0063436)
BUSCHEL GIBBONS , P.A.
ONE FINANCIAL PLAZA – SUITE 1300
100 S.E. THIRD AVENUE
FORT LAUDERDALE, FL 33394
[phone]
[e-mail]

Grant J. Smith**
(FL Bar No. 935212)
STRATEGYSMITH, P.A.
401 EAST LAS OLAS BOULEVARD
SUITE 130-120
FORT LAUDERDALE, FL 33301
[phone]
[e-mail]

Counsel for Roger Stone
(** appearing Pro Hac Vice)
6

CERTIFICATE OF SERVICE
I certify that on October 25, 2017, I electronically filed the foregoing with the Clerk of Court
using the CM/ECF system, which will send a notice of electronic filing to all registered parties.
Dated:

October 25, 2017

/s/ Robert C. Buschel
Robert C. Buschel
Counsel for Roger Stone

7