453 F.Supp.3d 261
D.D.C.2020Background
- Project Veritas operatives (including Allison Maass) used a false identity to obtain an unpaid internship at Democracy Partners in Sept–Oct 2016, secretly recording much of Maass’s time there. Project Veritas published a four-part YouTube series "Rigging the Election."
- Plaintiffs: Democracy Partners, Robert Creamer, and Strategic Consulting (Creamer’s company). Plaintiffs allege trespass, breach of fiduciary duty, fraudulent misrepresentation, unlawful wiretapping (federal and D.C. statutes), and civil conspiracy; damages primarily asserted as lost contracts (AUFC, AFSCME, potential Dialysis Patient Citizens contract).
- Discovery produced disputed facts about whether Maass accessed confidential meetings/materials and whether clients terminated or cut funding because of (a) the video content or (b) the fact of infiltration and compromised confidentiality.
- At summary judgment, defendants challenged causation, argued one-party consent under the wiretap statutes (and asserted good-faith and constitutional defenses), and disputed possession/ fiduciary elements for trespass and breach claims.
- Court held: summary judgment granted for plaintiffs’ trespass and Democracy Partners’ breach-of-fiduciary-duty claims; summary judgment denied as to fraudulent misrepresentation, federal and D.C. wiretap claims, and civil conspiracy. Court found proximate-cause disputes sufficient for AFSCME/AUFC losses but insufficient as to Dialysis Patient Citizens.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were plaintiffs’ claimed lost-contract damages proximately caused by defendants’ non‑expressive conduct (infiltration/recording) or by the published videos/content? | Infiltration itself (revealing compromised confidentiality) was a substantial proximate cause of AUFC/AFSCME/AUFC funding terminations and thus recoverable. | Clients acted because of truthful reporting/publicity or unrelated considerations (e.g., funding constraints); publications, not infiltration, caused losses. | Genuine dispute: triable as to AFSCME and AUFC losses (causation jury question); insufficient evidence for Dialysis Patient Citizens loss (summary judgment for defendants on that item). |
| Trespass: Did Democracy Partners have an exclusive possessory interest in Suite 250? | Plaintiffs alleged unauthorized entry by Maass into plaintiffs’ office space. | Defendants: Democracy Partners lacked exclusive possessory interest (lease held by AUFC; shared suite; no rent/sublease). | Held for defendants: Democracy Partners lacked requisite possessory interest; trespass claim dismissed. |
| Breach of fiduciary duty: Did Maass owe a fiduciary duty to Democracy Partners and did any breach cause Democracy Partners’ injury? | Plaintiffs: Maass obtained internship by deception and was entrusted with access to confidential info, creating a fiduciary-like relationship. | Defendants: No special confidential relationship; work was clerical; no evidence Democracy Partners suffered injury caused by any breach. | Mixed: Existence of fiduciary relationship is disputed (jury issue), but plaintiffs produced no evidence of injury to Democracy Partners—breach claim against Democracy Partners dismissed. |
| Fraudulent misrepresentation: Did hiring Maass cause Strategic Consulting’s contract losses? | Hiring induced by Maass’s false representations directly led to recordings and resulting losses—damages are foreseeable and recoverable. | Defendants: The internship was unpaid clerical work; harms flowed from publication, not the hiring decision; damages not the natural consequence of the hiring transaction. | Held for plaintiffs on summary judgment motion: proximate-cause and foreseeability present factual disputes; claim survives. |
| Wiretap statutes: Does one‑party consent or the tortious-purpose exception bar liability? Are defendants protected by a good-faith statutory defense or is the exception unconstitutional/vague? | Plaintiffs: Many recordings were of non‑participants or in confidence; interceptions had a tortious purpose (breach of fiduciary duty). | Defendants: Maass was a party to conversations; purpose was lawful news reporting; good‑faith reliance on one‑party consent or statute; constitutional and vagueness challenges to the tortious‑purpose exception. | Held: Summary judgment denied. Disputed facts whether Maass was a party to all communications and whether a tortious purpose existed. Good‑faith defense under §2520(d) does not shelter reliance on the Wiretap Act itself; constitutional and vagueness challenges to the tortious‑purpose exception rejected. |
| Civil conspiracy: Can conspiracy proceed? | Plaintiffs: Defendants conspired to commit underlying torts (wiretap, fraud, etc.). | Defendants: Conspiracy fails if underlying tort claims fail. | Held: Civil conspiracy survives as to underlying torts that survive (fraudulent misrepresentation and wiretap claims). |
Key Cases Cited
- Democracy Partners v. Project Veritas Action Fund, 285 F. Supp. 3d 109 (D.D.C. 2018) (prior opinion addressing pleading-stage issues)
- AFT Michigan v. Project Veritas, 397 F. Supp. 3d 981 (E.D. Mich. 2019) (similar undercover‑recording litigation and related tort claims)
- CAIR v. Gaubatz, 793 F. Supp. 2d 311 (D.D.C. 2011) (analysis of fiduciary relationship and tortious‑purpose exception)
- CAIR v. Gaubatz, 31 F. Supp. 3d 237 (D.D.C. 2014) (one‑party consent and tortious‑purpose discussion)
- CAIR v. Gaubatz, 123 F. Supp. 3d 83 (D.D.C. 2015) (further analysis of tortious‑purpose and wiretap claims)
- United States v. Dale, 991 F.2d 819 (D.C. Cir. 1993) (defendant’s intent as element of tortious‑purpose inquiry)
- American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (treatment of recording statutes as content‑neutral for First Amendment analysis)
- United States v. Edelson, 581 F.2d 1290 (7th Cir. 1978) (upholding clarity of terms like "criminal" and "tortious" for wiretap purposes)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny/content‑neutral speech regulation standard)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based/content‑neutral test for speech restrictions)
- Lacy v. District of Columbia, 424 A.2d 317 (D.C. 1980) (proximate cause standard under D.C. law)
- Claytor v. Owens‑Corning Fiberglas Corp., 662 A.2d 1374 (D.C. 1995) (cause‑in‑fact and proximate‑cause discussion under D.C. law)