Democratic National Committee v. The Russian Federation et al
Filing
202
MEMORANDUM OF LAW in Support re: #195 MOTION to Dismiss Amended Complaint. . Document filed by George Papadopoulos. (Polisi, Caroline)
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 1 of 34
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
DEMOCRATIC NATIONAL
COMMITTEE,
Plaintiff,
Case No. 1:18-cv-3501-JGK-SDA
v.
THE RUSSIAN FEDERATION, et al.,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF
GEORGE PAPADOPOULOS’S MOTION TO DISMISS
COUNTS II, III, IV, VIII, XII, AND XIV OF THE AMENDED COMPLAINT
Jeffrey R. Alexander
Caroline J. Polisi
Christopher N. LaVigne
Eric M. Creizman
Shira Lauren Feldman
Pierce Bainbridge Beck Price & Hecht LLP
20 West 23rd Street, Fifth Floor
New York, New York 10010
(212) 484-9866
jalexander@piercebainbridge.com
Attorneys for Defendant George Papadopoulos
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 2 of 34
TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 3
ARGUMENT .................................................................................................................................. 5
1.
The Pleading Standard Under Federal Rule of Civil Procedure 12(b)(6) ................5
2.
The Second Cause of Action Should be Dismissed Because Plaintiff Fails to
Plead Facts Sufficient to Establish a RICO Claim Against Papadopoulos ..............7
a.
The Complaint Does Not Allege That Papadopoulos Conducted Any
Racketeering Acts ........................................................................................7
i.
Papadopoulos is Not Alleged to Have Committed Any Acts
Constituting Conspiracy to Commit Economic Espionage .............9
ii.
Papadopoulos is Not Alleged to Have Committed Any Acts
Constituting Theft of Trade Secrets ...............................................10
iii.
Aiding/Abetting a RICO Enterprise is Not a Valid
Cause of Action..............................................................................10
b.
The Complaint Does Not Allege Facts Sufficient to Show That
Papadopoulos Engaged in a Pattern of Racketeering Activity ..................10
c.
The DNC Does Not Allege Facts Sufficient to Show Papadopoulos
Participated in the Conduct of the Affairs of Any Enterprise ....................12
d.
The Complaint Must Be Dismissed Against Papadopoulos Because it
Fails to Allege the Existence of a Cognizable RICO Enterprise ...............13
i.
ii.
The DNC Fails to Allege an Enterprise with the Required
Longevity .......................................................................................15
iv.
3.
The DNC Fails to Allege Relationships Amongst the Purported
Association-in-Fact Enterprise Members. .....................................14
iii.
e.
The DNC Fails to Allege a Common Purpose. ..............................14
The DNC Fails to Allege an Enterprise That is Separate From
the Purported Pattern of Racketeering Activity .............................15
The Complaint Does Not Allege Any Cognizable Injuries Caused by
Racketeering Acts ......................................................................................16
The Third Cause of Action Should Be Dismissed Because Plaintiff Fails to Plead
Facts Sufficient to Establish a RICO Conspiracy Under 18 U.S.C. § 1962(d)......16
a.
The Complaint Fails to Plead Facts Showing a Violation
of the RICO Act .........................................................................................17
i
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 3 of 34
4.
The Fourth Cause of Action (Wiretap Act) Should be Dismissed.........................18
5.
The Eighth, Twelfth, and Fourteenth Causes of Action (Under D.C. and Virginia
Law) Should be Dismissed Against Papadopoulos Because Plaintiff Fails to
Adequately Allege the Necessary Elements for Either of These Claims...............20
a.
b.
Count XII, Conspiracy to Commit Trespass to Chattels ...........................22
c.
6.
Count VIII, D.C. Uniform Trade Secrets Act ............................................21
Count XIV, Violation of the Virginia Computer Crimes Act ....................23
The Court Should Dismiss All Claims Against Papadopoulos Because the
Imposition of Liability Would Violate the First Amendment ...............................24
PLAINTIFF’S CLAIMS SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND
AND WITH PREJUDICE ............................................................................................................ 24
CONCLUSION ............................................................................................................................. 25
ii
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 4 of 34
TABLE OF AUTHORITIES
Page(s)
Cases
236 Cannon Realty, LLC v. Ziss,
No. 02-cv-6683 (WHP), 2005 WL 289752 (S.D.N.Y. Feb. 8, 2005) ....................................7, 8
4 K & D Corp. v. Concierge Auctions, LLC,
2 F. Supp. 3d 525 (S.D.N.Y. 2014) .........................................................................................18
Allen v. New World Coffee, Inc.,
No. 00-cv- 2610 (AGS), 2002 WL 432685 (S.D.N.Y. Mar. 19, 2002) ...................................16
Am. Online, Inc. v. IMS,
24 F. Supp. 2d 548 (E.D. Va. 1998) ........................................................................................22
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .........................................................................................................5, 6, 15
Atuahene v. City of Hartford,
10 F. App’x 33 (2d Cir. 2001) ...................................................................................................8
Baisch v. Gallina,
46 F.3d 366 (2d Cir. 2003).......................................................................................................17
Baisch v. Gallina,
346 F.3d 366 (2d Cir. 2003).....................................................................................................17
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...............................................................................................................5, 6
Blackwelder v. Millman,
522 F.2d 766 (4th Cir. 1975) ...................................................................................................22
Boyle v. United States,
556 U.S. 938 (2009) ................................................................................................................15
Com. Cleaning Servs., LLC v. Colin Serv. Sys., Inc.,
271 F.3d 374 (2d Cir. 2001).......................................................................................................8
Cont’l Petroleum Corp. v. Corp. Funding Partners, LLC,
No. 11-cv-7801 (PAE), 2012 WL 1231775 (S.D.N.Y. Apr. 12, 2012) ...................................17
Cont’l Realty Corp. v. J.C. Penney Co., Inc.,
729 F. Supp. 1452 (S.D.N.Y. 1990).........................................................................................11
iii
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 5 of 34
DeFalco v. Bernas,
244 F.3d 286 (2d Cir. 2001).......................................................................................................7
In re Digital Music Antitrust Litig.,
812 F. Supp. 2d 390 (S.D.N.Y. 2011)........................................................................................8
Directv, LLC v. Wright,
No. 15-cv-474(FRG), 2016 WL 3181170 (W.D.N.Y. June 3, 2016) ......................................19
DSMC, Inc. v. Convera Corp.,
479 F. Supp. 2d 68 (D.D.C. 2007) ...........................................................................................21
Eagle One Roofing v. Acquafredda,
No. 16-cv-3537 (NGG) (SJB), 2018 WL 1701939 (E.D.N.Y. Mar. 31, 2018) .......................11
Econ. Research Servs., Inc. v. Resolution Econs., LLC,
208 F. Supp. 3d 219 (D.D.C. 2016) .........................................................................................21
Elsevier Inc. v. Memon,
97 F. Supp. 3d 21 (E.D.N.Y. 2015) .........................................................................................12
Elsevier, Inc. v. Grossman,
No. 12-cv-5121 (KPF), 2013 WL 6331839 (S.D.N.Y. Dec. 5, 2013) .....................................18
Faberware, Inc. v. Groben,
764 F. Supp. 296 (S.D.N.Y. 1991) ..........................................................................................11
First City Nat’l Bank & Tr. Co. v. FDIC,
730 F. Supp. 501 (E.D.N.Y. 1990) ......................................................................................8, 14
Gerstenfeld v. Nitsberg,
190 F.R.D. 127 (S.D.N.Y. 1999) ...............................................................................................8
H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229 (1989) .................................................................................................................12
Hecht v. Commerce Clearing House, Inc.,
897 F.2d 21 (2d Cir. 1990).................................................................................................17, 18
Kirk v. Heppt,
423 F. Supp. 2d 147 (S.D.N.Y. 2006)........................................................................................6
Lucente v. Int’l Bus. Machs. Corp.,
310 F.3d 243 (2d Cir. 2002).....................................................................................................24
Lundy v. Cath. Health Sys. of Long Island Inc.,
711 F.3d 106 (2d Cir. 2013).......................................................................................................7
iv
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 6 of 34
Manhattan Telecomm. Corp. v. DialAmerica Mktg., Inc.,
156 F. Supp. 2d 376 (S.D.N.Y. 2001)........................................................................................6
McGladrey & Pullen LP v. Shrader,
62 Va. Cir. 401, 2003 WL 22203709 (Va. Cir. Ct. 2003) .......................................................23
Moss v. BMO Harris Bank, N.A.,
258 F. Supp. 3d 289 (E.D.N.Y. 2017) .....................................................................................15
Nat’l Grp. for Commc’ns & Computers Ltd. v. Lucent Techs. Inc.,
420 F. Supp. 2d 253 (S.D.N.Y. 2006)......................................................................................17
Othentec Ltd. v. Phelan,
526 F.3d 135 (4th Cir. 2008) ...................................................................................................23
Purchase Real Estate Grp. Inc. v. Jones,
No. 05-cv-10859 (LAP), 2010 WL 3377504 (S.D.N.Y. Aug. 24, 2010) ..................................6
Reves v. Ernst & Young,
507 U.S. 170 (1993), not followed on state grounds, Keesling v. Beegle, 880
N.E.2d 1202 (Ind. 2008) ..........................................................................................................12
RSM Prod. Corp. v. Fridman,
643 F. Supp. 2d 382 (S.D.N.Y. 2009), aff’d, 387 F. App’x 72 (2d Cir. 2010) ........................15
Ruffolo v. Oppenheimer & Co.,
987 F.2d 129 (2d Cir. 1993).....................................................................................................24
Salinas v. United States,
522 U.S. 52 (1997) .............................................................................................................16, 17
Sedima S.P.R.L. v. Imrex Co.,
473 U.S. 479 (1985) ...................................................................................................................7
Snyder v. Fantasy Interactive, Inc.,
No. 11-cv-3593 (WHP), 2012 WL 569185 (S.D.N.Y. Feb. 9, 2012) ......................................19
Sonterra Cap. Master Fund Ltd. v. Credit Suisse Grp. AG,
277 F. Supp. 3d 521 (S.D.N.Y. 2017)......................................................................................17
Spool v. World Child Int’l Adoption Agency,
520 F.3d 178 (2d Cir. 2008).................................................................................................5, 11
Starr v. Sony BMG Music Entm’t,
592 F.3d 314 (2d Cir. 2010).......................................................................................................6
Tantaros v. Fox News Network, LLC,
No. 17-cv-2958 (GBD), 2018 WL 2731268 (S.D.N.Y. May 18, 2018) ..................................19
v
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 7 of 34
Tribune Co. v. Purcigliotti,
869 F. Supp. 1076 (S.D.N.Y. 1994), aff’d, 66 F.3d 12 (2d Cir. 1995) ....................................10
U.S. Fire Ins. Co. v. United Limousine Serv., Inc.,
303 F. Supp. 2d 432 (S.D.N.Y. 2004)......................................................................................12
U.S. v. Viola,
35 F.3d 37 (2d Cir. 1994).........................................................................................................12
United States v. Allen,
155 F.3d 35 (2d Cir. 1998).......................................................................................................12
United States v. Papadopoulos,
Case No. 17-CR-182-RDM (D.D.C. Sept. 7, 2018) ............................................................5, 19
United States v. Persico,
832 F.2d 705 (2d Cir. 1987).......................................................................................................7
United States v. Turkette,
452 U.S. 576 (1981) .................................................................................................................15
Westchester Cty. Indep. Party v. Astorino,
137 F. Supp. 3d 586 (S.D.N.Y. 2015)................................................................................16, 17
Williams v. Affinion Grp., LLC,
889 F.3d 116 (2d Cir. 2018).....................................................................................................17
World Wrestling Entm’t Inc. v. Jakks Pacific, Inc.,
530 F.Supp.2d 486 (S.D.N.Y. 2007), aff’d, 328 F. App’x 695 (2d Cir. 2009) ........................11
Zaratzian v. Abadir,
No. 10-cv-9049 (VB), 2014 WL 4467919 (S.D.N.Y. Sept. 2, 2014), aff’d, 694
F. App’x 822 (2d Cir. 2017) ....................................................................................................19
Statutes
18 U.S.C. § 1831 ........................................................................................................................7, 10
18 U.S.C. § 1832 ........................................................................................................................7, 10
18 U.S.C. § 1962 .................................................................................................................... passim
18 U.S.C. § 1964 ............................................................................................................................16
18 U.S.C. § 2511 ......................................................................................................................19, 20
28 U.S.C. § 1367 ............................................................................................................................20
D.C. Code § 36–401.......................................................................................................................21
vi
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Va. Code Ann. § 18.2-152.3–4 ......................................................................................................23
Federal Rules
Fed. R. Civ. P. 12(b) ..........................................................................................................1, 5, 6, 24
Fed. R. Civ. P. 8 ...........................................................................................................................6, 7
vii
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We respectfully submit this memorandum of law in support of George Papadopoulos’s
motion to dismiss the Amended Complaint against him under Rules 12(b)(6) and (8) of the
Federal Rules of Civil Procedure.
PRELIMINARY STATEMENT
Plaintiff the DNC’s Amended Complaint1 fails to plausibly allege any cause of action
against Defendant George Papadopoulos (“Papadopoulos”). None of the allegations in the
Amended Complaint establishes that Papadopoulos performed any actions that qualify as
“racketeering activity” under the RICO Act, nor has Plaintiff sufficiently alleged any of the
myriad state or federal law causes of action against Papadopoulos.
Notably, Plaintiff does not claim that Papadopoulos had any role in hacking into its
systems and stealing the materials in question—it attributes that only to Russia. Nor does the
DNC allege that Papadopoulos played any part in publicly disseminating or publishing the stolen
materials—it attributes that only to Russia and WikiLeaks. Instead, the DNC predicates its
claims against Papadopoulos exclusively on allegations that: (1) he received advanced notice that
certain information had been possibly acquired by Russia; and (2) he “did not report this
information to American law enforcement,” but instead reported back to the Trump Campaign
that there were “interesting messages coming in from Moscow about a trip when the time is
right.” Am. Compl. ¶ 11. These allegations do not amount to criminal racketeering liability.
Under the law, all elements of each RICO claim must be sufficiently pleaded against each
defendant. Yet, Plaintiff has not alleged – nor could it – that Papadopoulos conducted any
racketeering acts. Furthermore, Plaintiff has not established that Papadopoulos was in any way
essential to the alleged scheme. He did not plan, organize, direct, control, or have any interest
1
All abbreviations referenced in this motion and not defined herein refer to those abbreviations and
definitions set forth in the Amended Complaint. Doc. No. 182.
1
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 10 of 34
whatsoever in the affairs of the alleged enterprise. Plaintiff relies on vague allegations that
“Trump Associates,” defined to include Papadopoulos, “assisted the common scheme.” Such
conclusory and vague allegations do not suffice under the law.
As explained in the Memorandum of Points and Authorities in Support of Donald J.
Trump for President, Inc.’s Motion to Dismiss Counts II, III, IV, VIII, XII, and XIV of the
Amended Complaint (the “Trump Campaign Memo”), the numerous deficiencies in the civil
RICO allegations here include: (1) Plaintiff’s failure to adequately allege a valid enterprise (a)
with a common fraudulent purpose, (b) with sufficient relationships amongst the purported
association-in-fact enterprise members, (c) with the required longevity, and (d) that is separate
from the purported pattern of racketeering; and (2) Plaintiff’s failure to allege a cognizable injury
that was proximately caused by the RICO activity. 2 Because the Amended Complaint fails to
adequately allege the elements of a substantive offense under the RICO statute, and because the
DNC does not allege that Papadopoulos agreed to any conduct that constitutes a violation,
Plaintiff’s RICO conspiracy claim also must fail.
Similarly, Plaintiff’s Amended Complaint fails to state facts sufficient to allege any cause
of action against Papadopoulos under any of the tagalong state and federal torts. As explained
below and in the Trump Campaign Memo, each of these causes of action is facially defective.
For these reasons, the claims alleged against Papadopoulos in the Amended Complaint
should be dismissed in their entirety, with prejudice.3
2
Papadopoulos joins in, relies upon, and incorporates herein by reference, each and every argument,
insofar as it applies to him, made by each and every other defendant named in the Amended Complaint.
3
The DNC raises six claims against Papadopoulos: (1) violation of RICO (count II), (2) conspiracy to violate
RICO (count III), (3) violation of the Wiretap Act (count IV), (4) violation of the Washington, D.C. Uniform Trade
Secrets Act (count VIII), (5) conspiracy to commit trespass to chattels in violation of Virginia law (count XII), and
(6) violation of the Virginia Computer Crimes Act (count XIV). None is adequately pleaded.
2
Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 11 of 34
FACTUAL BACKGROUND
The DNC alleges a broad conspiracy in which Russia, via the GRU, hacked the DNC’s
computer networks, stole sensitive information, and then, together with WikiLeaks and its
founder, Assange, disseminated that information with the purpose of harming the DNC and
Hillary Clinton’s campaign for President of the United States. As to the other parties it names,
the DNC alleges only that they conspired to assist Russia, the GRU, WikiLeaks, and Assange, or
aided and abetted their actions.
The DNC alleges that, during the 2016 presidential campaign, “Russia’s intelligence
services illegally hacked into the DNC’s computer systems and email accounts.” (Am. Compl.
¶ 83.) Russian intelligence agents allegedly launched the first phase of the cyberattack in July
2015 (id. ¶ 115), and the second phase in April 2016 (id. ¶ 77). As a result of these attacks,
Russian intelligence agents allegedly copied “thousands of DNC documents and emails.” (Id.
¶ 12.) The DNC further alleges that, after Russian agents stole the DNC’s emails and other
documents, Russian agents entered into a conspiracy with the Campaign, Papadopoulos,
WikiLeaks, and others to “disseminate [the] stolen DNC material.” (Id. ¶ 82.) The DNC claims
that, in accordance with this supposed conspiracy, Russia and WikiLeaks released batches of
stolen DNC materials over the course of the next several months. (See id. ¶¶ 140–68.) These
disclosures revealed important information about the DNC to the public.
The DNC’s factual theory likewise makes it clear that the alleged conspiracy between
Russia and the Campaign came into being after the hack and after the theft of the emails. The
DNC alleges that Russia began “its cyberattack on the DNC” in July 2015, “launched a pervasive
cyberattack on DNC servers” on “April 18, 2016,” and “staged several gigabytes of DNC data
located on the DNC’s servers for unauthorized and surreptitious exfiltration” on “April 22,
3
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2016.” (Id. ¶¶ 84, 101, 104.) Papadopoulos is not alleged to have played any role in the hacking
or disseminating of sensitive or proprietary information, or the planning thereof.
Papadopoulos was a volunteer “foreign policy advisor” to the Trump Campaign. In that
capacity, he had meetings with foreign contacts – including one the DNC refers to as a
“Kremlin-tied agent” – to glean information about the interests of various countries as relevant to
the Trump Campaign. The DNC insinuates something nefarious about Papadopoulos’s
meetings, and their timing, but is unable to plead any illegal or tortious acts committed by
Papadopoulos. Only Defendants Russia and the GRU are alleged to have hacked into computer
systems, stolen trade secrets, or trespassed onto a computer network. Only Defendants
WikiLeaks and Assange are alleged to have disseminated or assisted in disseminating the
information. Papadopoulos is alleged to have done none of these things.
The DNC alleges only that following Russia’s theft of DNC emails, Papadopoulos
learned “that the Russians have dirt on Hillary Clinton in the form of thousands of emails,” and
“did not report this information to American law enforcement,” but instead reported back to the
Trump Campaign that there were “interesting messages coming in from Moscow about a trip
when the time is right.” (Am. Compl. ¶ 11.) The DNC does not allege that Papadopoulos
himself stole any documents, or that he conspired to steal any documents, or that he disseminated
documents in any way. The DNC alleges that sometime after the hack and after the theft of the
emails, Papadopoulos may have been informed in the vaguest sense that information had been
acquired. The Amended Complaint, of course, fails to allege that Papadopoulos had any
involvement in the hacking of the DNC’s servers or in the theft of its materials.
There is no allegation that Papadopoulos played any role in the planning of the alleged
hack or theft, or had any contemporaneous knowledge of any action or agreement to act vis-à-vis
4
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the DNC. Papadopoulos’s minimal relationship to the allegations herein occurred over the
course of a few weeks in the spring of 2016. (Id. ¶¶ 89-100.) Otherwise, the DNC alleges only,
generally, that in his role as foreign policy advisor, he was in “frequent contact” with the Trump
Campaign “in the summer and fall of 2016,” and that “Trump Associates” “actively supported”
the disclosure of hacked information. (Id. ¶¶ 51, 83.)
In its Amended Complaint, Plaintiff references Papadopoulos’s Statement of Offense and
guilty plea in order to document various foreign meetings Papadopoulos held following the
GRU’s hacking and theft (id. ¶¶ 51, 94), but Plaintiff ignores Judge Moss’s unambiguous
conclusion at sentencing: “I don’t for a moment believe that Mr. Papadopoulos was seeking to
assist the Russian government in any way.” United States v. Papadopoulos, Case No. 17-cr-182RDM, Sentencing Tr., Doc. No. 48 (D.D.C. Sept. 7, 2018) at 39:17-19. “I don’t think there’s
any reason in the record to conclude that Mr. Papadopoulos had any desire to aid Russia in any
way, to do anything that was contrary to the national interest.” (Id. at 38:12-15.)
ARGUMENT
1. The Pleading Standard Under Federal Rule of Civil Procedure 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must allege “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim has “facial plausibility” if the plaintiff pleads facts that “allow[] the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that the pleading requirements of Twombly
apply to all civil actions). “[B]ald assertions and conclusions of law will not suffice. The
pleadings must create the possibility of a right to relief that is more than speculative.” Spool v.
World Child Int’l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008) (citation omitted). The
heightened pleading standards under Twombly and Iqbal are particularly important in RICO
5
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cases like this one, so as to protect defendants against baseless charges of racketeering that are
serious, harmful, and expensive to defend. Kirk v. Heppt, 423 F. Supp. 2d 147, 149 (S.D.N.Y.
2006) (noting that courts “must be wary of putative RICO claims that are nothing more than
sheep masquerading in wolves’ clothing”).
In resolving a Rule 12(b)(6) motion under Twombly, the Court must follow a twopronged approach. First, the Court must accept all well-pleaded factual allegations as true, but
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. Nor must the Court “accept as true a legal
conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555).
Second, assuming the veracity of well-pleaded factual allegations, the Court must
“determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
This determination is context-specific, requiring the Court to draw on its experience and
common sense; there is no plausibility “where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct.” Id.; Starr v. Sony BMG Music Entm’t, 592
F.3d 314, 321 (2d Cir. 2010).
The Amended Complaint’s RICO allegations fail to meet the basic, liberal pleading
standards under Rule 8(a). Moreover, the Court should examine the DNC’s RICO pleadings
with special scrutiny. See, e.g., Purchase Real Estate Grp. Inc. v. Jones, No. 05-cv-10859
(LAP), 2010 WL 3377504, at *6 (S.D.N.Y. Aug. 24, 2010) (in dismissing RICO claims, court
observed that “courts should look ‘with particular scrutiny’ at civil RICO claims”); Manhattan
Telecomm. Corp. v. DialAmerica Mktg., Inc., 156 F. Supp. 2d 376, 380 (S.D.N.Y. 2001)
(dismissing RICO claims and noting that courts “should strive to flush out frivolous RICO
allegations at an early stage of the litigation”).
6
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2. The Second Cause of Action Should be Dismissed Because Plaintiff Fails to Plead
Facts Sufficient to Establish a RICO Claim Against Papadopoulos
A RICO claim must allege every essential element of each predicate act. See, e.g., Lundy
v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 119 (2d Cir. 2013) (dismissing a RICO
claim where the complaint failed to adequately plead predicate acts). As an initial matter,
Plaintiff’s RICO allegations as to Papadopoulos are defective because Plaintiff has not properly
alleged that Papadopoulos (a) conducted any racketeering activities, (b) engaged in a pattern of
racketeering activity, or (c) participated in the conduct of the affairs of any enterprise.
a. The Complaint Does Not Allege That Papadopoulos Conducted Any
Racketeering Acts
The DNC has insufficiently alleged that Papadopoulos engaged in the predicate acts
necessary to establishing a RICO claim. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 495
(1985) (“‘[R]acketeering activity’ consists of no more and no less than commission of a
predicate act . . . .”). Plaintiff alleges two predicate “racketeering acts” gave rise to the pattern of
racketeering (Count II, 18 U.S.C. § 1962(c)) on which Plaintiff’s RICO claims are based: 18
U.S.C. § 1831 (Economic espionage), and 18 U.S.C. § 1832 (Theft of trade secrets).
Additionally, Plaintiff alleges Papadopoulos engaged in a conspiracy to commit those acts.
A plaintiff alleging substantive violations of RICO under 18 U.S.C. §§ 1962(c) must
allege facts sufficient to show each defendant engaged in a pattern of racketeering activity. See,
e.g., DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001) (“The requirements of section 1962(c)
must be established as to each individual defendant.”); United States v. Persico, 832 F.2d 705,
714 (2d Cir. 1987)); 236 Cannon Realty, LLC v. Ziss, No. 02-cv-6683 (WHP), 2005 WL 289752,
at *5-9 (S.D.N.Y. Feb. 8, 2005) (dismissing claim where plaintiff failed to allege that each
defendant made misrepresentations upon which he relied). The Second Circuit has made clear
that a complaint “fail[s] to satisfy [Rule 8’s] minimum standard” where a plaintiff merely
7
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“lump[s] all the defendants together in each claim and provid[es] no factual basis to distinguish
their conduct.” Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (upholding
dismissal of complaint that failed “to identify which defendants were alleged to be responsible
for which alleged violations”); see also In re Digital Music Antitrust Litig., 812 F. Supp. 2d 390,
417 (S.D.N.Y. 2011) (“Although Plaintiffs argue that they alleged that [certain defendants] were
directly involved in the alleged conspiracy, a reading of the complaint indicates otherwise. The
complaint alleges direct involvement of [certain defendants] by way of generic references to
‘defendants.’ This approach is insufficient.”) (internal citations omitted).
Moreover, because RICO is predicated on criminal conduct, plaintiffs must plead and
establish that each defendant intended to engage in the conduct with actual knowledge of the
illegal activities. See Com. Cleaning Servs., LLC v. Colin Serv. Sys., Inc., 271 F.3d 374, 487 (2d
Cir. 2001) (plaintiffs must allege that the defendant acted with actual knowledge in violation of
the predicate statute); 236 Cannon Realty, LLC, 2005 WL 289752, at *5-9 (dismissing claim
where plaintiff failed to allege that each defendant made misrepresentations upon which he
relied); Gerstenfeld v. Nitsberg, 190 F.R.D. 127, 132 (S.D.N.Y. 1999) (dismissing RICO claims
because the complaint failed to allege facts giving rise to a strong inference of fraudulent intent);
see also First City Nat’l Bank & Tr. Co. v. FDIC, 730 F. Supp. 501, 509 (E.D.N.Y. 1990) (ruling
that RICO does not apply to unwitting participants and recklessness is not sufficient to establish
criminal intent). Here, Plaintiff has not alleged Papadopoulos conducted any of the relevant
predicate crimes alleged, let alone that he did so with a criminal intent.
The Amended Complaint alleges no facts sufficient to establish either predicate act, or
any conspiracy engaged in by Papadopoulos.
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i.
Papadopoulos is Not Alleged to Have Committed Any Acts
Constituting Conspiracy to Commit Economic Espionage
The Amended Complaint alleges in a single paragraph that “all of the Defendants”
conspired to commit Economic espionage. (Am. Compl. ¶ 239.) That paragraph simply repeats
the language of the statute, without even alleging the existence of an agreement that would be
necessary to alleging a conspiracy. It provides no factual information as to acts that violated the
statute, and it alleges no actions by Papadopoulos.
In Paragraph 83, the DNC claims that the “Trump Associates” “actively supported” the
disclosure of hacked information. It does not explain how, nor does it mention Papadopoulos.
The DNC alleges that, while hacked information was being released, Defendant Stone was in
contact with Assange, WikiLeaks, and the GRU. (Id. ¶ 157.) It alleges that Defendant Trump,
Jr. secretly communicated with WikiLeaks during the same period. (Id. ¶ 166.) And it alleges
that Defendants Manafort and Gates communicated during that time with Konstantin Kilimnik,
who the DNC speculates is an agent of the GRU. (Id. ¶¶ 68, 162-63.) Nowhere does it allege
anything with respect to Papadopoulos. Because there is absolutely no allegation that
Papadopoulos took any information without authorization, copied, duplicated, downloaded,
uploaded, altered, destroyed, replicated, transmitted, delivered, sent, communicated, or conveyed
the DNC’s supposed trade secrets, and because is there is no allegation that Papadopoulos
participated in the conspiracy to engage in these activities allegedly undertaken by the other
named defendants, the DNC does not plead facts sufficient to plausibly establish a predicate
offense of conspiracy to commit Economic espionage against Papadopoulos.
Because Plaintiff must adequately plead all elements of each offense as to each
defendant, conduct allegedly committed by another defendant or generically by “Trump
Associates” cannot be attributed to Papadopoulos when pleading a substantive RICO violation.
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ii.
Papadopoulos is Not Alleged to Have Committed Any Acts
Constituting Theft of Trade Secrets
Plaintiff’s Theft of trade secrets claim similarly fails. Theft of trade secrets and
Economic espionage involve the same activities. 4 As with the Economic espionage allegation,
the Amended Complaint claims in a single conclusory paragraph that all Defendants committed
acts constituting Theft of trade secrets. And as with economic espionage, the Amended
Complaint alleges no facts to suggest that any such act was committed or aided and abetted by
Papadopoulos, or that Papadopoulos did so with actual knowledge of the illegal activities.
iii.
Aiding/Abetting a RICO Enterprise is Not a Valid Cause of Action
As the Trump Campaign Memo makes clear, the DNC also cannot state a claim against
Papadopoulos by alleging he merely aided and abetted a substantive RICO violation. See Trump
Campaign Memo § II.C. Moreover, the DNC’s allegations fail to plausibly allege aiding and
abetting. To establish a claim for aiding and abetting, a complaint must allege, among other
things, “‘substantial assistance’ by the aider and abettor in the achievement of the primary
violation.” Tribune Co. v. Purcigliotti, 869 F. Supp. 1076, 1100 (S.D.N.Y. 1994), aff’d, 66 F.3d
12 (2d Cir. 1995). The DNC does not plead that Papadopoulos provided any – let alone
substantial –assistance to the Defendants that allegedly committed predicate acts.
b. The Complaint Does Not Allege Facts Sufficient to Show That
Papadopoulos Engaged in a Pattern of Racketeering Activity
Because the DNC fails to plead facts showing that Papadopoulos committed any
racketeering activity it also necessarily fails to plead facts sufficient to show that Papadopoulos
engaged in a pattern of racketeering. In alleging a “pattern” of racketeering activity, a plaintiff
4
The acts constituting Theft of trade secrets are undertaken with the intent to convert a trade secret to the
economic benefit of anyone other than its owner, knowing and intending that doing so will injure that owner; the
acts constituting Economic espionage are undertaken knowing or intending that doing so will benefit a foreign
government, foreign instrumentality, or foreign agent. See 18 U.S.C. §§ 1831, 1832.
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must establish that each defendant participated in the pattern of racketeering, which the
Amended Complaint fails to do. World Wrestling Entm’t Inc. v. Jakks Pacific, Inc., 530
F.Supp.2d 486, 513 (S.D.N.Y. 2007) (“The focus of section 1962(c) is on the individual patterns
of racketeering activity engaged in by a defendant, rather than on the collective activities of the
members of the enterprise”), aff’d, 328 F. App’x 695 (2d Cir. 2009). Here, Papadopoulos is
alleged to have been told about the existence of information stolen from the DNC and to have
sought contact with a “Kremlin-tied agent” – neither of which is illegal. Those are the only
allegations suggesting Papadopoulos participated in any wrongdoing relevant to the alleged
racketeering enterprise. This is not sufficient to adequately allege a “pattern of racketeering
activity,” and therefore Plaintiff’s RICO claim against him fails as a matter of law. See
Faberware, Inc. v. Groben, 764 F. Supp. 296, 306 (S.D.N.Y. 1991) (allegations regarding “what
is essentially a single transaction” found to be insufficient, as “one allegedly overpriced contract
does not involve the type of repeated criminal activity at which RICO is properly directed”). 5
Furthermore, the DNC is unable to establish the “continued criminal activity” that RICO
requires. See Trump Campaign Memo § II.C.
The DNC attempts to establish only closed-
ended continuity, as it alleges that an Association-In-Fact Enterprise (“the AIF Enterprise”)
formed no earlier than March 2016 and ceased on November 8, 2016 (Election Day). (Am.
Compl. ¶ 227.) The Second Circuit has “never held a period of less than two years to constitute
a ‘substantial period of time.’” Spool, 520 F.3d at 184; see also Eagle One Roofing v.
Acquafredda, No. 16-cv-3537 (NGG) (SJB), 2018 WL 1701939, at *14 (E.D.N.Y. Mar. 31,
2018) (confirming that the two-year threshold remains applicable). Thus, the AIF Enterprise’s
5
Cont’l Realty Corp. v. J.C. Penney Co., Inc., 729 F. Supp. 1452, 1455 (S.D.N.Y. 1990) (holding, where
complaint did not allege that defendants “previously engaged in similar acts” that “to infer a threat of repeated fraud
from a single alleged scheme would in effect render the pattern requirement meaningless”).
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alleged existence for nine months is nowhere near the “long-term criminal conduct” that RICO
requires. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989).
c. The DNC Does Not Allege Facts Sufficient to Show Papadopoulos
Participated in the Conduct of the Affairs of Any Enterprise
Under Section 1962(c), a defendant must have “conduct[ed] or participate[d], directly or
indirectly, in the conduct of such enterprise’s affairs.” 18 U.S.C. § 1962(c). The Supreme Court
has defined that phrase as requiring that “one must have some part in directing those affairs.”
Reves v. Ernst & Young, 507 U.S. 170, 179 (1993). It is insufficient, as here, to merely “allege
that a defendant provided services that were helpful to an enterprise, without alleging facts that,
if proved, would demonstrate some degree of control over the enterprise.” Elsevier Inc. v.
Memon, 97 F. Supp. 3d 21, 33 (E.D.N.Y. 2015) (citations and quotations omitted). Under this
standard, a person may not be held liable merely for taking directions and performing tasks that
are “necessary and helpful to the enterprise,” or for providing “goods and services that ultimately
benefit the enterprise.” See U.S. Fire Ins. Co. v. United Limousine Serv., Inc., 303 F. Supp. 2d
432, 451–52 (S.D.N.Y. 2004) (citations omitted).
The most generous reading of the Amended Complaint suggests only that Papadopoulos
provided a service helpful to the purported enterprise by emailing the Trump Campaign that
there were “interesting messages coming in from Moscow about a trip when the time is right.”
(Am. Compl. ¶ 11.) This fact alone is insufficient to adequately plead that he played “some part
in directing the enterprise’s affairs.” Reves, 507 U.S. at 179; United States v. Allen, 155 F.3d 35,
40 (2d Cir. 1998) (complaint must allege defendant “participated in the operation or management
of the enterprise itself”); U.S. v. Viola, 35 F.3d 37, 40 (2d Cir. 1994) (“In Reves, the Court
adopted an ‘operation or management’ test to gauge whether a defendant had a sufficient
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connection to the enterprise to warrant imposing liability under § 1962(c) . . . simply aiding and
abetting a violation is not sufficient to trigger liability.”).
The Amended Complaint alleges no facts showing Papadopoulos directed the conduct of
others. The Russian Federation and the GRU allegedly stole sensitive information and
disseminated it, with the assistance of Assange and WikiLeaks. There is no allegation that
Papadopoulos was even aware of these events, much less that he played any role in deciding to
undertake them. There are no allegations that Papadopoulos occupied a position in the chain of
command, authorized or directed Russian conduct, or knowingly implemented the decisions of
upper management of any entity. In other words, the DNC does not allege that Papadopoulos
played a part in – let alone directed – any of the conduct upon which its RICO claim is
predicated. Therefore, Plaintiff’s claims under Section 1962(c) fail as a matter of law.
d. The Complaint Must Be Dismissed Against Papadopoulos Because it Fails
to Allege the Existence of a Cognizable RICO Enterprise
The DNC’s generic claim that Papadopoulos “was part of an Association-In-Fact
comprising” all Defendants, which supposedly worked “to further [Defendants’] mutual goals of
improving Trump’s electoral prospects and damaging the DNC,” (Am. Compl. ¶ 227), fails to
adequately allege the existence of a RICO enterprise. As explained in the Trump Campaign
Memo (§ II.A.1), to plead a RICO claim, the DNC must allege an enterprise whose members
pursued a common purpose by working closely together for an extended period. But the DNC
simply lumps together an assortment of individuals and entities who were pursuing differing
objectives, who maintained no relationships beyond isolated interactions, and who did not come
together until well after the alleged wrongdoing started. See id. The DNC’s failure to allege a
shared purpose, relationships among those associated with the enterprise, or longevity sufficient
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to permit these associates to pursue the enterprise’s purpose is fatal generally to the DNC’s
§ 1962(c) claim and to this claim against Papadopoulos.
i.
The DNC Fails to Allege a Common Purpose.
As explained in the Trump Campaign Memo (§ II.A.1), the Amended Complaint fails to
allege a common purpose. As to Papadopoulos, specifically, the DNC alleges a desire for the
Trump Campaign’s success –hardly surprising for a presidential campaign advisor. This
supposed desire for pecuniary and professional gain – which the DNC does not allege to have
been shared by any of the other Defendants – falls far short of establishing that Papadopoulos
shared the specific objective of harming the DNC. Because the DNC has not plausibly alleged
that the supposed enterprise members shared a common purpose, this enterprise theory – and
with it, the DNC’s § 1962(c) claim against Papadopoulos – fails. 6
ii.
The DNC Fails to Allege Relationships Amongst the Purported
Association-in-Fact Enterprise Members.
As explained in the Trump Campaign Memo (§ II.A.3), for an association-in-fact
enterprise to exist, its members also must have “interpersonal relationships” with one another.
Here, the DNC alleges a series of isolated connections between various individuals (e.g.,
Papadopoulos’s meetings with Joseph Mifsud, a Maltese academic “based in London”) with
undefined connections to Russia. (Am. Compl. ¶¶ 93–98). These allegations are insufficient.
First, many of these allegations rely on unsupported assertions that particular individuals
were working as “agents” for other Defendants. (See, e.g., Am. Compl. ¶ 43 (alleging that
Mifsud “acted as a de facto agent of the Russian government”)). But “conclusory allegations
6
As the Trump Campaign Memo (§II.A.2) states, a RICO plaintiff must allege not just a common purpose,
but a common fraudulent purpose. There is nothing fraudulent about the AIF Enterprise’s supposed purpose of
advancing President Trump’s electoral prospects and diminishing the DNC’s. It is thus not enough for the DNC to
allege that the AIF Enterprise pursued its (legitimate) objective through improper means. Because Defendants’
alleged objective was entirely legitimate, Defendants cannot be said to have formed a RICO enterprise.
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regarding [an] agency relationship,” without “facts that support [this] assertion[,] . . . are not
sufficient to survive a motion to dismiss.” RSM Prod. Corp. v. Fridman, 643 F. Supp. 2d 382,
408 (S.D.N.Y. 2009), aff’d, 387 F. App’x 72 (2d Cir. 2010). The DNC offers no such factual
support, and so cannot rely on these bare allegations to bootstrap relationships among various
Defendants.
Second, these isolated interactions among various Defendants do not establish that the
disparate and geographically dispersed enterprise members were “work[ing] together for a
common illicit interest” through “interpersonal relationships,” rather than for “their own
independent interests.” Moss v. BMO Harris Bank, N.A., 258 F. Supp. 3d 289, 301 (E.D.N.Y.
2017). The fact that various Defendants occasionally communicated with one another simply
does not provide any “evidence of an ongoing organization” that “function[ed] as a continuing
unit.” Boyle v. United States, 556 U.S. 938, 945 (2009).
iii.
The DNC Fails to Allege an Enterprise with the Required Longevity
As the Trump Campaign Memo (§II.A.4) makes clear, the DNC similarly cannot
establish the third structural requirement of an association-in-fact enterprise: “longevity
sufficient to permit the[] associates to pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946.
The AIF Enterprise did not exist long enough to play any role in the conduct that facilitated
every theft and every disclosure at issue here.
iv.
The DNC Fails to Allege an Enterprise That is Separate From the
Purported Pattern of Racketeering Activity
Under Section 1962, “[t]he ‘enterprise’ is not the ‘pattern of racketeering activity’”; it is
an entity separate and apart from the pattern of activity in which it engages.” United States v.
Turkette, 452 U.S. 576, 583 (1981). As the Trump Campaign Memo explains, the DNC quite
plainly fails this test. The DNC has not alleged an organized entity, but, rather, has pleaded only
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that a group existed to commit predicate acts. Such allegations do not substantiate an enterprise
as required for a RICO claim.
e. The Complaint Does Not Allege Any Cognizable Injuries Caused by
Racketeering Acts
Because the DNC fails to allege that Papadopoulos committed any racketeering activity,
the DNC also necessarily fails to allege facts sufficient to show that its alleged injuries were
caused by racketeering activity by Papadopoulos. As explained in the Trump Campaign Memo
(§ II.D), the DNC has failed to allege the supposed RICO violations proximately caused injury to
its “business or property.” 18 U.S.C. § 1964(c). The injury must be “actual [and] quantifiable”;
“[c]ourts have required that the plaintiff show concrete financial loss in order to show injury
under RICO.” Westchester Cty. Indep. Party v. Astorino, 137 F. Supp. 3d 586, 612 (S.D.N.Y.
2015) (emphasis in original). The DNC’s failure to assert such cognizable injuries proximately
caused by the supposed RICO violations requires dismissal of its RICO claims.
*
*
*
The DNC does not allege a valid enterprise, does not allege that Papadopoulos participated
in the operation or management of any such enterprise, does not allege that Papadopoulos
committed any predicate acts (let alone a continuous pattern of such acts), and does not allege that
it sustained any cognizable injury to its property or business that was proximately caused by RICO
violations. Thus, its § 1962(c) claim against Papadopoulos must be dismissed.
3. The Third Cause of Action Should Be Dismissed Because Plaintiff Fails to Plead
Facts Sufficient to Establish a RICO Conspiracy Under 18 U.S.C. § 1962(d)
The Amended Complaint’s failure to adequately allege the elements of a substantive
offense under Section 1962(c) requires dismissal of Plaintiff’s RICO conspiracy claim. See
Salinas v. United States, 522 U.S. 52, 64–65 (1997); Allen v. New World Coffee, Inc., No. 00-cv2610 (AGS), 2002 WL 432685, at *6 (S.D.N.Y. Mar. 19, 2002) (“The dismissal of all of
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plaintiffs’ RICO claims leaves the conspiracy cause of action without a leg to stand on.”). “Case
law in this Circuit confirms that a 1962(d) conspiracy claim must be dismissed where the
substantive RICO claim is deficient.” Nat’l Grp. for Commc’ns & Computers Ltd. v. Lucent
Techs. Inc., 420 F. Supp. 2d 253, 272 (S.D.N.Y. 2006); Westchester Cty. Indep. Party, 137 F.
Supp. 3d at 618 (collecting cases so holding).
Even if the Complaint adequately alleged substantive violations of RICO, which it has
not, it fails to allege facts sufficient to establish conspiracy liability against Papadopoulos.
a. The Complaint Fails to Plead Facts Showing a Violation of the RICO Act
To be liable for a RICO conspiracy, the defendant must “knowingly agree[] to facilitate
. . . an endeavor which, if completed, would satisfy all of the elements of a [RICO substantive
claim] . . . .” Salinas, 522 U.S. at 64–65; Baisch v. Gallina, 346 F.3d 366, 377 (2d Cir. 2003);
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir. 1990) (affirming dismissal of
RICO conspiracy claim where plaintiff “does not allege facts implying any agreement involving
each of the defendants to commit at least two predicate acts”).
Therefore, to state a RICO conspiracy claim, Plaintiff must allege “the existence of an
agreement to violate RICO’s substantive provisions” – that is, that defendants “agreed to form
and associate themselves with a RICO enterprise and that they agreed to commit two predicate
acts in furtherance of a pattern of racketeering activity in connection with the enterprise.” See
Sonterra Cap. Master Fund Ltd. v. Credit Suisse Grp. AG, 277 F. Supp. 3d 521, 579 (S.D.N.Y.
2017). See also Williams v. Affinion Grp., LLC, 889 F.3d 116, 124 (2d Cir. 2018). “To establish
a RICO conspiracy claim pursuant to §1962(d), a plaintiff must demonstrate that each defendant
‘knew about and agreed to facilitate’ a pattern of racketeering activity.” See Cont’l Petroleum
Corp. v. Corp. Funding Partners, LLC, No. 11-cv-7801 (PAE), 2012 WL 1231775, at *8
(S.D.N.Y. Apr. 12, 2012) (quoting Baisch, 346 F.3d at 377).
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Accordingly, “the Second Circuit has instructed that a plaintiff must prove that (i) the
defendants agreed to form and associate themselves with a RICO enterprise; (ii) the defendants
agreed to commit two predicate acts in furtherance of a pattern of racketeering activity in
connection with the enterprise; and (iii) if the agreed-upon predicate acts had been carried out,
they would have constituted a pattern of racketeering activity.” See Elsevier, Inc. v. Grossman,
No. 12-cv-5121 (KPF), 2013 WL 6331839, at *11 (S.D.N.Y. Dec. 5, 2013). “Because the core
of a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy
complaint, at the very least, must allege specifically such an agreement.” Hecht, 897 F.2d at 25;
4 K & D Corp. v. Concierge Auctions, LLC, 2 F. Supp. 3d 525, 544–45 (S.D.N.Y. 2014)
(dismissing RICO conspiracy claim where plaintiffs alleged “no facts to show specifically that
the defendants had any ‘meeting of the minds’ in the alleged violations”).
Here, as the Trump Campaign Memo (§ II.E) makes clear, the DNC’s conspiracy claim
fails on its own terms because the DNC has not sufficiently alleged a conspiratorial agreement.
Conclusory allegations are all that the DNC offers. At no point does the DNC allege specific
facts plausibly suggesting that Papadopoulos reached an agreement with the other Defendants to
commit predicate acts of Economic espionage and Theft of trade secrets. For this reason, too,
the DNC’s § 1962(d) claim fails. See 4 K & D Corp., 2 F. Supp. 3d at 545.
4. The Fourth Cause of Action (Wiretap Act) Should be Dismissed
As explained in the Trump Campaign Memo (§III), the DNC’s claim under the Wiretap
Act fails, because it does not allege that the Campaign had any role in intercepting in-progress
communications or using intercepted communications.
A straight-forward analysis of the allegations here makes clear that this cause of action
has not been pleaded against Defendant Papadopoulos. The federal Wiretap Act makes it
unlawful to “intentionally intercept, endeavor to intercept, or procure any other person to
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intercept a wire, oral, or electronic communication, or to use the contents of any such
communication knowing or having reason to know that the information was obtained in violation
of [the Act].” See 18 U.S.C. § 2511(1)(a), (c); see also Tantaros v. Fox News Network, LLC, No.
17-cv-2958 (GBD), 2018 WL 2731268, at *7 (S.D.N.Y. May 18, 2018).
Courts in the Second Circuit have construed the term “intercept” narrowly to require that
the interception of an electronic communication be contemporaneous with the transmission of
that communication. See Tantaros, 2018 WL 2731268, at *7 (emphasis added); see also
Zaratzian v. Abadir, No. 10-cv-9049 (VB), 2014 WL 4467919, at *6 (S.D.N.Y. Sept. 2, 2014)
(collecting cases from the Third, Fifth, Ninth, and Eleventh Circuits), aff’d, 694 F. App’x 822
(2d Cir. 2017); Directv, LLC v. Wright, No. 15-cv-474(FRG), 2016 WL 3181170, at *5
(W.D.N.Y. June 3, 2016) (“[A]n interception requires a capture of the communication while it is
in transit.”) (emphasis added); Snyder v. Fantasy Interactive, Inc., No. 11-cv-3593 (WHP), 2012
WL 569185, at *2 (S.D.N.Y. Feb. 9, 2012) (“Courts addressing the meaning of ‘intercept’
narrowly define it to include only ‘acquisitions of communication contemporaneous with
transmission, not storage.’”).
The DNC fails to allege an “interception.” The Amended Complaint notably does not
state that Russian agents acquired the DNC emails while DNC employees were in the process of
sending or receiving them. The DNC thus alleges only that Russian agents gained access to
stored communications – not that they intercepted communications contemporaneously with the
communications’ transmission. Moreover, the DNC also fails to allege that Papadopoulos
“kn[ew] or ha[d] reason to know that the information was obtained through . . . interception.”
18 U.S.C. § 2511(d). In other words, the DNC nowhere alleges that Papadopoulos knew or
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should have known that Russian agents had extracted communications from the DNC’s servers,
let alone that they acquired the emails contemporaneously with the emails’ transmission.
Furthermore, the provision of the Wiretap Act at issue here prohibits the intentional “use”
of intercepted communications. 18 U.S.C. § 2511(1)(d). Here, the DNC fails to allege
Papadopoulos “used” an interception because it does not allege he disclosed the contents of an
intercepted communication to the public. The Amended Complaint alleges only that “GRU
Operative #1, WikiLeaks, and Assange” “disclosed the contents of [the DNC’s] wire, oral, or
electronic communications.” (Am. Compl. ¶ 249.) This is insufficient to state a claim against
Papadopoulos under section 2511(1)(d).
The DNC cannot get around these problems by asserting that Papadopoulos conspired
with Russian agents and WikiLeaks to disclose the DNC emails. (See Trump Campaign Memo
§III.B.) In contrast with other clauses of the Wiretap Act, the use and disclosure clauses alleged
do not provide for any form of secondary liability. Therefore, as the Amended Complaint fails to
allege facts necessary to establish a cause of action under the Wiretap Act against Papadopoulos,
Plaintiff’s Wiretap Act claim against him must be dismissed.
5. The Eighth, Twelfth, and Fourteenth Causes of Action (Under D.C. and Virginia
Law) Should be Dismissed Against Papadopoulos Because Plaintiff Fails to
Adequately Allege the Necessary Elements for Either of These Claims
The DNC’s state-law claims (under the laws of Washington, D.C., and Virginia) fare no
better than its RICO claims. Given the defects in the federal claims and the complex state-law
issues the state claims raise, the Court should decline to exercise supplemental jurisdiction over
these claims. See Trump Campaign Memo §IV; 28 U.S.C. § 1367(c)(3) (a federal court may
decline to exercise supplemental jurisdiction if it “has dismissed all claims over which it has
original jurisdiction”). But even if the Court were to retain jurisdiction over these claims, they
should all be dismissed because the DNC (1) invokes D.C.’s Uniform Trade Secrets Act, but
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fails to plead that this case involves any trade secrets; (2) brings a claim under Virginia law for
conspiracy to commit trespass to chattels, but alleges nothing about Papadopoulos; and (3)
asserts a claim under the Virginia Computer Crimes Act, but ignores that that statute does not
authorize aiding-and-abetting liability (and that Papadopoulos is not alleged to have had any
involvement in hacking, in any event).
a. Count VIII, D.C. Uniform Trade Secrets Act
Plaintiff has not pled any of the necessary elements to state a cause of action against
Defendant Papadopoulos for a violation of the D.C. Uniform Trade Secrets Act. The elements of
a D.C. Uniform Trade Secrets Act (“DCUTSA”) claim are: (1) the existence of a trade secret;
and (2) acquisition of the trade secret by improper means, or improper use or disclosure by one
under a duty not to disclose. See DSMC, Inc. v. Convera Corp., 479 F. Supp. 2d 68, 77 (D.D.C.
2007); Econ. Research Servs., Inc. v. Resolution Econs., LLC, 208 F. Supp. 3d 219, 232 (D.D.C.
2016). A plaintiff claiming misappropriation of trade secrets also must show that the defendant
gained access to the trade secrets through improper means or that the defendant improperly used
or disclosed trade secrets. See DSMC, 479 F. Supp 2d at 79. The DCUTSA defines “improper
means” as “theft, bribery, misrepresentation, breach or inducement of a breach of duty to
maintain secrecy, or espionage through electronic or other means.” D.C. Code § 36–401.
For the reasons set forth supra in Section 4, Plaintiff has not pleaded facts that plausibly
establish any of these elements as to Papadopoulos. Plaintiff alleges no facts that Papadopoulos
disclosed, received, or otherwise used any alleged trade secrets. Plaintiff makes no allegation
that Papadopoulos undertook any efforts or aided in any efforts to disclose or improperly use any
trade secrets. The Amended Complaint does not allege that Papadopoulos was involved in any
of the activity of the other Defendants relevant to this claim. To the contrary, the Amended
Complaint’s allegations regarding this conduct entirely excludes Papadopoulos. Therefore, this
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cause of action is defective as to Papadopoulos. 7
b. Count XII, Conspiracy to Commit Trespass to Chattels
Plaintiff has not pleaded any of the necessary elements to state a cause of action against
Papadopoulos for conspiracy to commit trespass to chattels. These necessary elements are: (1)
that two or more persons engaged in concerted action; (2) to accomplish some criminal or
unlawful purpose, or some lawful purpose by some criminal and unlawful means; and (3) that
actual damages resulted from something done by one or more of the conspirators in furtherance
of the object of the conspiracy. See Blackwelder v. Millman, 522 F.2d 766, 776 (4th Cir. 1975).
A trespass to chattels occurs when one party intentionally uses or intermeddles with personal
property in rightful possession of another without authorization. See Am. Online, Inc. v. IMS, 24
F. Supp. 2d 548, 550 (E.D. Va. 1998).
The DNC, however, has not alleged that Papadopoulos combined with anyone else to
hack into the DNC’s servers (which would constitute a trespass to chattels). Instead, the DNC
alleges that Russia hacked the DNC’s servers and extracted information all by itself. Indeed, the
Amended Complaint’s allegations regarding this conduct entirely exclude Papadopoulos. While
Plaintiff matter-of-factly alleges that “each Defendant committed overt acts” that “caused
Plaintiff injury and damages,” (Am. Compl. ¶ 296), there are no specific allegations as to
Papadopoulos. Plaintiff asserts only that “[a]ll of the named Defendants aided and abetted” the
acts described, and “knowingly and substantially assisted the common scheme” and that,
therefore, the “actions of Defendants constitute conspiracy to trespass.” (Id. ¶¶ 296-97.) This
7
The eighth cause of action is also defective for all the reasons stated in the Trump Campaign Memo
(§IV.D): the DNC has not properly identified the trade secrets at issue; the trade secret information at issue does not
derive its independent economic value from not being generally known; and the trade secret information at issue was
not the subject of “reasonable efforts to maintain its secrecy.”
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boilerplate language, without more, does not suffice to state a claim against Papadopoulos.
c. Count XIV, Violation of the Virginia Computer Crimes Act
The DNC fails to sufficiently allege any of the necessary elements to state a cause of
action against Papadopoulos for a violation of the Virginia Computer Crimes Act. The three
elements required to state a claim for a violation of the Virginia Computer Crimes Act (VCCA)
are: (1) using a computer or computer network (2) without authority (3) intending to obtain,
embezzle, or convert the property of another. See Othentec Ltd. v. Phelan, 526 F.3d 135, 140
(4th Cir. 2008); see also McGladrey & Pullen LP v. Shrader, 62 Va. Cir. 401, 2003 WL
22203709, at *6 (Va. Cir. Ct. 2003). The DNC claims that Papadopoulos is liable because he
“knowingly aided, abetted, encouraged, induced, instigated, contributed to and assisted” Russia’s
violation of these prohibitions. (Am. Compl. ¶ 308.) The Court should dismiss this claim,
because (1) the VCCA does not provide for aiding-and-abetting liability (see Trump Campaign
Memo at IV.D) and (2) the DNC does not plausibly plead that Papadopoulos aided and abetted a
violation of the VCCA.
Even if aiding-and-abetting liability were contemplated under the VCCA, the DNC fails
to plausibly plead that Papadopoulos aided and abetted a violation of it. The provisions on
which the DNC relies prohibit acts involved in hacking into another person’s computer network:
“us[ing]” the network to convert property, “disabl[ing]” computer programs, “caus[ing] [the]
computer to malfunction,” “alter[ing]” computer data, “us[ing] [the] computer . . . to make . . . an
unauthorized copy,” “collect[ing] information” by installing certain kinds of malicious software,
and “us[ing] [the] computer” to examine private financial information. Va. Code Ann. § 18.2152.3–4; see Am. Compl. ¶¶ 304–09. Plaintiff has not alleged any facts that plausibly establish
any of these elements as to Papadopoulos. Nor does the Amended Complaint allege that
Papadopoulos was involved in any of the activity of the other Defendants relevant to this claim.
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To the contrary, as with the rest of the Amended Complaint, the allegations regarding this
conduct entirely exclude Papadopoulos. The Amended Complaint fails to allege that
Papadopoulos did anything to aid and abet the Russian hack of the DNC’s servers. Indeed, as
discussed supra at pages 3-5, its theory is that Russia began colluding with Papadopoulos after
the hack had occurred and the information in the DNC’s servers had been stolen. The DNC thus
fails to state a claim against Papadopoulos under the VCCA.
6. The Court Should Dismiss All Claims Against Papadopoulos Because the Imposition
of Liability Would Violate the First Amendment
The DNC seeks to hold Papadopoulos legally responsible for the publication of the
DNC’s emails and other data on the internet. However, the DNC does not actually claim that
Papadopoulos played any role in publishing those materials. As the Trump Campaign Memo
(§ I) makes clear, of course, even if the DNC did make such a claim, the First Amendment
protects a speaker’s right to disclose stolen information so long as (1) the speaker did not
participate in the theft and (2) the information deals with matters of public concern. Here, the
DNC does not allege that Papadopoulos participated in the theft of the leaked materials, and the
materials plainly deal with matters of public concern. Each claim must thus be dismissed. The
First Amendment bars civil liability here against Papadopoulos.
PLAINTIFF’S CLAIMS SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND
AND WITH PREJUDICE
The Amended Complaint’s claims against Papadopoulos should be dismissed with
prejudice. “An amendment to a pleading is futile if the proposed claim could not withstand a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l Bus. Machs. Corp., 310
F.3d 243, 258 (2d Cir. 2002)); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)
(“Where it appears that granting leave to amend is unlikely to be productive, however, it is not
an abuse of discretion to deny leave to amend.”). Here, because there is no plausible set of facts
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through which the DNC could state a cause of action against Papadopoulos, the claims against
Papadopoulos should now be dismissed, with prejudice.
CONCLUSION
The Amended Complaint fails to plead facts sufficient to establish any of the six claims
alleged against Papadopoulos. Accordingly, and for all the foregoing reasons, George
Papadopoulos respectfully requests the Court enter an order dismissing the Amended Complaint,
with prejudice.
Dated: December 7, 2018
/s/ Caroline J. Polisi
.
Caroline J. Polisi
Jeffrey R. Alexander
Christopher N. LaVigne
Eric M. Creizman
Shira Lauren Feldman
Pierce Bainbridge Beck Price & Hecht LLP
20 West 23rd Street, Fifth Floor
New York, New York 10010
(212) 484-9866
cpolisi@piercebainbridge.com
jalexander@piercebainbridge.com
clavigne@piercebainbridge.com
ecreizman@piercebainbridge.com
sfeldman@piercebainbridge.com
Attorneys for Defendant George Papadopoulos
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Case 1:18-cv-03501-JGK Document 202 Filed 12/07/18 Page 34 of 34
CERTIFICATE OF SERVICE
I certify that on December 7, 2018, 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:
December 7, 2018
/s/ Caroline J. Polisi
Caroline J. Polisi
Attorney for Defendant George Papadopoulos
26
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