285 F. Supp. 3d 109
D.C. Cir.2018Background
- Democracy Partners, Strategic Consulting Group, and owner Robert Creamer (plaintiffs) allege Project Veritas (PV), Project Veritas Action Fund (PVAF), James O'Keefe and operative Allison Maass conducted an undercover sting at plaintiffs' nonpublic offices.
- Maass obtained an internship under a false identity, was given building access, an account/password, and received confidential documents and participated in planning calls for DNC-related "bracketing" events.
- Maass secretly audio/video recorded meetings and removed confidential documents, which she provided to PV/PVAF; PVAF published edited videos and posted documents online.
- Plaintiffs sued for breach of fiduciary duty, trespass, violations of the Federal and D.C. Wiretap Acts, fraudulent misrepresentation, and civil conspiracy; plaintiffs seek substantial compensatory and statutory/punitive damages for most claims.
- PV defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6) and the D.C. Anti‑SLAPP Act; the Court denied both motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraudulent misrepresentation — proximate causation of damages | Maass's lies induced the internship and access, causing economic losses; PV conspired with/induced her. | Damages flow from publication of videos, not from the pre-recording misrepresentations, so proximate causation is missing. | Court: proximate cause is factual and not resolvable at dismissal; claim survives. |
| Trespass — consent and scope | Maass obtained access by fraud and exceeded any consent by secretly recording and removing materials. | Consent to enter (even if procured by misrepresentation) bars trespass; no interference with possessory interest. | Court: under D.C. law, consent induced by fraud may not bar trespass; exceeding consent suffices; claim survives. |
| Breach of fiduciary duty — whether an intern can owe fiduciary duties | Plaintiffs: facts show a relationship of trust (secure access, confidential materials) sufficient to plead a fiduciary duty. | Defendants: unpaid intern, no NDA or contract, so no fiduciary duty as a matter of law. | Court: D.C. law leaves fiduciary status fact-intensive; allegations suffice to plead fiduciary duty. |
| Wiretap Acts — one‑party consent exception and tortious purpose | Plaintiffs: recordings were made to commit post‑interception torts (breach of fiduciary duty, use/disclosure), so one‑party consent exception fails. | Defendants: Maass was a party to communications; recording was for journalistic/public‑interest reporting, not to further a tort. | Court: plaintiffs plausibly alleged a tortious purpose occurring after interception (breach of fiduciary duty); one‑party consent defense insufficient at dismissal. |
| D.C. Anti‑SLAPP applicability | Plaintiffs: state-law claims allowed to proceed in federal court adjunct to federal wiretap claim. | Defendants: Anti‑SLAPP requires plaintiff to show likely success; Abbas limits application in federal court. | Court: Abbas and Shady Grove reasoning preclude applying D.C. Anti‑SLAPP in federal court here; motion denied. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: plausible factual allegations required)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible, not merely conceivable)
- CAIR v. Gaubatz, 793 F. Supp. 2d 311 (D.D.C. 2011) (fraudulently induced internship can support trespass and fiduciary‑duty theories)
- Planned Parenthood Fed'n v. Ctr. for Medical Progress, 214 F. Supp. 3d 808 (N.D. Cal. 2016) (similar undercover‑recording context; damages and consent issues analyzed)
- Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) (distinguishing publication‑based reputational damages from recording method)
- Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015) (limits application of D.C. Anti‑SLAPP in federal diversity cases; relied upon here)
- Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393 (federal procedure can preempt state law limitations in federal court)
- CAIR v. Gaubatz, 31 F. Supp. 3d 237 (D.D.C. 2014) (one‑party consent and tortious‑purpose analysis under wiretap statutes)
- Millennium Square Residential Ass'n v. 2200 M Street LLC, 952 F. Supp. 2d 234 (D.D.C. 2013) (flexible, fact‑intensive approach to fiduciary relationship inquiry)