NXIVM CORPORATION et al v. ROSS INSTITUTE et al

Filing 504

OPINION. Signed by Judge Dennis M. Cavanaugh on 6/26/13. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NXIVM CORPORATION, f/kla
EXECUTIVE SUCCESS PROGRAMS
and FIRST PRINCIPLES. INC.,

Hon. Dennis M. Cavanaugh
OPINION

Plaintiffs.
Civil Action No. 06-cv-1051 (DMC)(MF)
v.
ESTATE OF MORRIS SUTTON,
ROCHELLE SUTTON, THE ROSS
INSTITUTE, RICK ROSS a/kla
‘RICKY”, STEPHANIE FRANCO,
PAUL MARTIN, Phd.. and
WELLSPRING RETREAT. INC.,
Defendant.

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon Cross Motions for Summary Judgment by Interfor.
Inc. (Interfor”) and NXIVM Corp. C’NXIVM”). (Oct. 21, 2012. ECF No. 462 and Jan. 18. 2013. ECF
No. 478). Pursuant to FED, R. Civ. P 78, no oral argument was heard. Based on the following and for
the reasons expressed herein, Interfor’s Motion for Partial Summary Judgment and NXIVM Corp.’s
Cross Motion for Partial Summary Judgment are both denied.

L

BACKGROUND’
On August 8, 2003, NXIVM initiated this action by filing a complaint in the Northern I)istrict

of New York against Rick Ross (“Ross”) and others for injunctive relief and damages arising out of
This case has a long, at times confusing, and often acrimonious history. The Court chooses not to recite the factual history
of the entire case, as the facts are well known to the parties. Instead. this Court focuses only on the facts relevant to the
cross-motion at hand. The facts in this section are taken from the parties pleadings.

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Ross’s posting of two articles on his website that, among other things, suggested that NXIVM is a cult.
The articles disclosed materials obtained from NXIVM that NXIVM maintains are proprietary and
trade secrets. NXIVM retained Interfor, a private investigation firm, by written agreement on
September 2. 2004. to conduct an investigation on its behalf concerning the disappearance of a former
NXIVM student, Kristin Snyder. Ross, on his website, contended that Snyder had committed suicide as
a result of her involvement with NXIVM. By early November 2004, Interfor’s investigation had
expanded to include a general investigation of Ross himself (the “Ross Investigation”).
On November 23, 2004, NXIVM signed an indemnity agreement (the “Indemnity Agreement”)
which is the focus of the present motion whereby NXIVM agreed to indemnify Interfor for:
Any cost or expense
related to or in any way in connection with or arising out of
[Interfor’s] investigation, provided that such indemnity shall be limited to that part of
such investigation, or any part thereof, which was requested and/or agreed to by
NXIVM/ESP or disclosed to NXIVM/ESP by Intertbr without any objections thereto by
NXIVM/ESP.
.

.

.

(Indemnity Agreement, Declaration of Robert S. Landy, Jan. 12, 2012 (Landy Dec.”). Ex. 9. ECF No.
469-9). The Indemnity Agreement also provided that:
Costs and expenses, as the term is used herein, shall include but not be limited to.
attorney fees and any other cost or expense imposed upon or incurred by Interfor in the
defense, investigation or settlement of any matter that is subject to this Indemnity
Agreement.

In the further event that NXIVM/ESP shall fail to so defend and/or indemnify Interfor.
then in such
Interfor shall have full rights to defend, pay or settle any said
claim on
behalf without notice to undersigned and with full rights to recourse against
the undersigned for all
and payments made or agreed to he paid or
discharge said claim.
instance

its

fees,

(j4.)

costs,

expenses

Finally, the Indemnity Agreement provided that

“[u]pon

default, NXIVM/ESP further agrees to

pay all reasonable attorney fees necessary to enforce this agreement.” (j4.) NXTVM sent the Indemnity
Agreement to Interfor by fax at 3:25 p.m.

on

November 23. 2004. (Id.)

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On July 11, 2006, Ross served a non-party subpoena on Interfor for records generated in
connection with the Investigation. NXIVM hired counsel for Interfor and paid Interfor’s legal bills
directly for seven months as Interfor moved to quash the subpoena and then began defending against
counterclaims filed by Ross on January 11, 2007. However, since February 2007. Interfor alleges that
NXIVM has been in default of its obligations under the Indemnity Agreement.
Ten months after Ross filed his counterclaims, Interfor settled the single claim brought against
it by Ross in September 2008 for $25,000.
intefor moved before this Court for Partial Summary Judgment on November 21, 2012 asking
this Court to find NXIVM responsible for indemnifying the settlement and attorneys fees related to
Ross’s litigation with Interfor. (Interfor’s Br.. ECF No. 462). NXIVM cross moved for Partial
Summary Judgment in addition to filing an Opposition Brief on January 19, 2013 (NXIVM’s Br., ECF
No. 478). Interfor filed a Reply Brief on March 3, 2013 (Interfor’s Reply Br., ECF No, 484).

H.

STANDARD OF REVIEW
Summary judgment is granted only if all probative materials of record, viewed with all

inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact
and that the movant is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 330 (1986). The moving party bears the burden of showing that there is no
genuine issue of fact. Id. “The burden has two distinct components: an initial burden of production.
which shifts to the non moving party if satisfied by the moving party; and an ultimate burden of
persuasion, which always remains on the moving party.” Id. The nonmoving party “may not rest upon
the mere allegations or denials of his pleading” to satisfy this burden, but must produce sufficient
evidence to support a jury verdict in his favor. See FED. R. Civ. P. 56(e); çç also Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 586 (1986). “In determining whether there are any
issues of material fact, the Court must resolve all doubts as to the existence of a material fact against
the moving party and draw all reasonable inferences including issues of credibility in favor of the
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nonmoving party.” Newsorne v. Admin. Office of the Courts of the State of N.J.. 103 F. Supp.2d 807.
815 (D.N.J. 2000), ad, 51 Fed. App’x 76 (3d Cir. 2002) (citing Watts v. Univ. of Del.. 622 F.2d 47.
50 (D.N.J. 1980)).

ilL

DISCUSSION
Interfor seeks indemnity from NXIVM for the settlement of Ross’s cross-complaint against

Interfor. The central issue of fact in question here is whether Ross’s cross-complaint was based on
work within the scope of the contract between Interfor and NXIVM, and is thereftre subject to the

indemnity clause, or whether as NXIVM contends, Ross’s cross-complaint is based on actions Interfor
undertook without NXIVM’s authorization.
The Court finds that a genuine issue of material fact exists in whether Interfor’s actions with
regards to the Ross investigation were approved by NXIVM. As the indemnity agreement is “limited to
that part of such investigation, or any part thereof, which was requested and/or agreed to by
NXIVM/ESP or disclosed to NXTVM/ESP by Interfor without any objections thereto by
NXIVM/ESP,” it is material to this summary judgment motion whether NXIVM objected to the work
Interfor undertook on its behalf
The more significant material facts which are hotly disputed between the parties are: whether
NXIVM personnel never objected to Interfor’s work whether NXIVM requested the Ross
,
2
;
3
investigation whether NXIVM suggested the ex pane contact with Ross whether Interfor conducted
;
4

(Interfor’s Statement of Material Facts
(Id. at ¶i 27, 35, 36).

¶ 23,

52, 54. 56, 557. 67, 68. 72, 108, 110. 111).

4

a raid of Ross’s garbage whether NXTVM ratified Interfor’s conduct whether Interfor delivered a
;
5
;
6
report on Ross that reported on Ross’s activities and whether Interfor engaged in illegal activity
;
7
.
8
Interfor’ s evidence that they were authorized to undertake the methods and means of the Ross
investigation is directly contradicted by NXIVM’s evidence that they continually objected to Interfor’s
work. The conduct in question relates to the expansion of Interfor’s work into investigating Ross.
Interibr claims that Kristen Keeffe (“Keeffe”) and Joseph O’Hara (“O’Hara”) were both vested with
authority to direct Interfor on behalf of NXIVM, and that all the acts in question were either requested
by or disclosed to NXIVM and its agents. Specifically, Interfor cites to Nancy Salzman (Salzman”)
and Keeffe’s testimony as evidence that NXIVM and its employees were aware of the meeting
between Ross and Interfor, and that NXIVM was aware of the planned

meeting.

understood its

purpose, and were satisfied that it had “served its purpose.” (Interfor’ s Br. 21-22); (See Salzman Dep.
531:8-17, June 8-10, 2009 (“SalzmanDep.”); KeeffeDep. 150:6-152:10 Oct. 12-14, 2008 (“Keeffe
Dep.”); Keeffe’s Resp. to Interrog. 8, Feb. 18, 2009 (Keeffe’s Resp. to Interrog.”).
Keeffe stated in her deposition that she knew that Interfor was collecting Ross’s garbage at the
time that the investigative technique was being employed. (Keeffe Dep. 359: 12-360: 1; Keeffe

mt.

Resp. 5). lnterfor also cites to Salzrnan’s deposition, where she stated that NXIVM authorized Interfor
to investigate what statements Ross was making about NXIVM and to whom he was making

them.(Salzman Dep. 446:3-16).
With regard to whether NXIVM and its employees ever objected to Interfor’ s course of action.
Interfor states “during their depositions, Raniere, Salzman and Keeffe were each repeatedly asked
whether they objected to anything that Interfor did and whether they communicated any objection to
(Id. at ¶f 3 8-40, 58).
(Id. at ¶J 70, 106, 107).
6
(Id. at ¶J 66. 74).
(Id. at ¶ 70).
8
(Id. at ¶j 99-104).

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Interfor. These witnesses uniformly admitted that they did not.” (Interfor’ s Br. 24); ($.g Raniere Dep.
318:9-319:14; Salzrnan Dep. 42:8-23; 75:9-21; 75:25-76:11; 90:22-91:9; 440:10-441:8; 531:8-17:
Keeffe Dep. 157:7-10; 165:14-166:11.) Additionally, in its Opposition Brief, NXIVM admits that it
“swallowed its concerns and proceeded with Interfor’s work” and agreed to proceed with the Ross
investigation. (NXIVM’s Opp’n Br. 15).
NXIVM counters by arguing that they objected several times to Interfor, NXIVM argues
“because every single thing that Ross complains of against Interfor is an action to which, at some
point.

NXIVM objected to, the indemnity agreement says that no indemnity applies.” (NXIVM’s

Opp’nBr. 18).
NXIVM claims that it told Interfor that it objected to Interfor investigating Ross instead of’
looking into the Snyder disappearance. (Keeffe Dep. 178:14-179:3; 145:3-146:8 181:14-182:14, 133:6134:2; O’Hara Dep. 268:19-269:8; Salzman Dep. 42:8-42:2 1). NXIVM argues that “when it appeared
to Interfor that it was going to be terminated over the Snyder investigation, so as to justify the size of
its bills, Interfor ‘pitched’ to NXVIM a lie that Interfor’s president Juval Aviv had talked to Ross and
that Interfor had a surprise report to deliver about Ross.” (NXIVM’s Additional Statements of Material
Facts ¶140).
NXIVM also claims that the proposal to contact Ross came over the protests of NXIVM’s
litigation counsel made directly to Interfor. (Keeffe Deci.

¶

6 Aviv Deci. 284:10-286:26 (Aviv and

Moody were present when NXIVM’s lawyers told them they couldn’t participate in a meeting with
Ross because “he’s represented by counsel”); O’Hara Dep. 261:20-263:18. Keeffe states in her
deposition that NXIVM expressed a lot of concerns of Interfor’s work while the work was progressing.
(Keeffe Dep. 155:12-157:7).
Salzman claims she directed NXIVM to object to Interfor’s work after the engagement had

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ended, NXIVM said to Interfor in 2007: “[NXIVM] believes that Interfor’s conduct in connection with
it’s [sic] investigation went beyond what the parties intended would be done and beyond what NXIVM
authorized Interfor to do...” (Landy Ex. 18, Oct. 19, 2007, 21).
NXIVM also alleges that they were concerned with Interfor’s work and that Interfor after being
given objections about unnecessary investigation would create another seemingly [sic] story about
things that were being done to NXIVM,” that was false, but calculated to induce NXTVM to spend
more. (NXIVM’s Additional Statements of Material Facts ¶150).
It is exceedingly clear to this Court that summary judgment at this stage would be
inappropriate. The issues the parties ask this Court to dispose of turn exclusively on questions of fact.
Thus both parties’ motions must be denied.

I

CONCLUSION
For the reasons stated above, Interfor’s Motion for Partial Summary Judgment and IXlVM’s

Cross-Motion for Partial Summary Judgment are denied. An appropriate Order accompanies this
Opinion.

Dennis M. Cavanaugh, U.S. .J.
Date:
Original:
cc:

June
Clerks Office
Hon. Mark Falk, U.S.M.J.
All Counsel of Record
File

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