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Cockrum v. Donald J. Trump For President, Inc.

United States District Court, E.D. Virginia, Richmond Division

March 15, 2019

ROY COCKRUM, et al., Plaintiffs,



         I. BACKGROUND

         Plaintiffs[1] in this case seek damages for injuries resulting from the unauthorized publication of their personal information on the internet. Plaintiffs allege that their information was illegally obtained by Russian intelligence operatives during the Russians' hack of computer servers belonging to the Democratic National Committee ("DNC" or the "Committee"). The Amended Complaint alleges that "[a]gents of the Trump Campaign, acting on behalf of the Campaign, met with-and were otherwise in contact with-Russian officials or their agents on numerous occasions during the spring and summer of 2016." (Am. Compl. ¶ 15, ECF No. 8.) During this period, the Kremlin alerted Donald J. Trump for President, Inc. (the "Campaign" or "Defendant") that it possessed stolen DNC emails and could publicize them in order to harm the DNC and Mr. Trump's political opponent, Hillary Clinton, thereby helping the Campaign win the 2016 presidential election. (Id. ¶ 2.) In return, the Campaign and the Russian regime allegedly agreed that the Campaign would provide political benefits to Russia. (Id.) Following this coordination of effort, and at the direction of the Campaign and Russian agents, "the emails were then released by WikiLeaks, which joined the conspiracy as a trusted Russian intermediary." (Id.)

         According to the Amended Complaint, "[i]n order to defeat Secretary Clinton and help elect Mr. Trump, hackers working on behalf of the Russian government," (id. ¶ 86), allegedly converted "voluminous amounts of data, including emails and other documents sent to and from thousands of individuals. Some of those individuals were staff members of the DNC; some were donors; and some were other supporters, members of the media, or other private citizens." (Id. ¶ 10.) "On July 22, 2016, WikiLeaks posted thousands of private emails on the Internet. These emails were made available to anybody in the world with a web browser." (Id. ¶ 43.) As a result of the publication of the Plaintiffs' personal information, which allegedly included emails, social security numbers, dates of birth, home addresses, phone numbers, and banking relationships, they allegedly sustained significant personal and financial damage. (Id. ¶ 44.) This lawsuit followed.

         Plaintiffs' Amended Complaint alleges three discrete causes of action. In Count I, they allege a conspiracy to intimidate lawful voters from giving support or advocacy to electors for president and to injure citizens in person or property on account of such support or advocacy in violation of 42 U.S.C. § 1985(3).[2] (Id. ¶¶ 257-70.) Count II seeks damages for public disclosure of private facts as to Mr. Cockrum in violation of Tennessee law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 271-78.) The third count is a claim of public disclosure of private facts as to Mr. Comer in violation of Maryland law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 279-86.) Count IV alleges public disclosure of private facts as to Mr. Schoenberg in violation of New Jersey law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 287-94.) Count V is a claim for intentional infliction of emotional distress as to Mr. Comer in violation of Maryland law (civil conspiracy and aiding and abetting liability). (Id. ¶¶ 295-303.) During oral argument, Plaintiffs moved to dismiss Count VI, which seeks damages for civil conspiracy in violation of the common law. Counsel represented to the Court that it wished to dismiss Count VI because the theory underlying this cause of action is integrated into the preceding counts. Consequently, the Court will grant counsel's oral motion, and Count VI will be dismissed.

         Presently before the Court is Defendant's Motion to Dismiss the Amended Complaint filed pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Motion," ECF No. 22.) Both the Plaintiffs and the Campaign have filed extensive memoranda supporting their respective positions on the pending Motion. The Court heard oral argument on January 24, 2019. The parties were then directed to file supplemental memoranda addressing the choice of law governing Counts II, III, and IV. The parties have done so, and the matter is now ripe for this Court's review.


         The well-pleaded facts contained within the Amended Complaint both inform and constrain this Court's review of the Campaign's Motion at this stage. The task at hand is to determine the sufficiency of the Amended Complaint, "not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering a motion to dismiss, a plaintiffs well-pleaded allegations are taken as true and the complaint must be viewed in the light most favorable to the plaintiff. T.G. Slater & Son, Inc. v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836, 842 (4th Cir. 2004). At this stage of the proceedings, the record is one dimensional, focusing solely on the adequacy of the Amended Complaint.

         A Rule 12(b)(6) motion to dismiss "should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The Court, however, "need not accept the legal conclusions drawn from the facts, and [it] need not accept as true unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 253 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).

         To survive Rule 12(b)(6) scrutiny, a plaintiff must provide more than merely "labels and conclusions," or a "formulaic recitation of the elements of a cause of action...." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level," by stating a claim, that is "plausible on its face" rather than merely "conceivable." Id. at 555, 570, 586 (internal citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows 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) (citing Twombly, 550 U.S. at 556).

         III. ANALYSIS

         As a threshold challenge, the Campaign argues that its alleged publication of the information hacked by Russian operatives, and acquired from WikiLeaks, was First Amendment protected because the Campaign did not participate in its actual acquisition and the information, at least in part, involved information of public concern.[3] The Court will address this argument first because it effects the viability of all of Plaintiffs' claims. The Court will then turn to the Campaign's individual arguments with respect to Counts I-V.

         A. Applicability of the First Amendment to Plaintiffs' Claims

         The Campaign's First Amendment argument relies heavily on Bartnicki v. Vopper, 532 U.S. 514 (2001). In Bartnicki, an unlawfully-intercepted cellphone conversation was turned over to the media who then broadcasted the tape. Id. at 518-19. The Court in Bartnicki premised its analysis on the well-settled principle that when "a newspaper lawfully obtains truthful information about a matter of public significance [] state officials may not constitutionally punish publication of the information, absent a need ... of the highest order." Id. at 527 (second alteration in original) (quoting Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979)); see also Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (quoting same). The Supreme Court in Bartnicki also drew guidance from New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam), where the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. Bartnicki, 532 U.S. at 528.

         Bartnicki is distinguishable from the immediate case in several respects. Here, unlike Bartnicki, the Campaign is alleged to have conspired with the Kremlin and WikiLeaks prior to the information being released and for its own benefit. The Amended Complaint alleges that

In June 2016, six weeks after learning that the Russians had "dirt" that they were willing to use to benefit the Campaign, senior Trump Campaign officials met with an agent of the Russian regime According to email correspondence regarding the meeting that Donald Trump Jr. made public on his Twitter account, rather than avoiding coordination with a foreign government that was attempting to interfere in a U.S. election, Mr. Trump Jr. responded over the email: "If it's what you say I love it especially later in the summer."

(Am. Compl. ¶ 15.) Furthermore, the information at issue in Bartnicki pertained to a contemplated act of violence[4], clearly a matter of public concern. 532 U.S. at 519, 525, 540.

         At this stage of the proceedings, the Court's analysis of the Defendant's 12(b)(6) Motion is limited to the four corners of the Amended Complaint. E. I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 449 (4th Cir. 2011). The Amended Complaint discloses in considerable detail the alleged interactions between the Campaign and Russian operatives to arrange for the publication of the stolen information. The Amended Complaint provides specific dates and identifies participants in conversations and meetings concerning publication of the stolen DNC emails. For example, Paragraph 113 of the Amended Complaint reads,

[a]ll told, during the four months and eight days between March 14, 2016, when Mr. Papadopoulos first made contact with a Russian agent, and July 22, 2016, when the stolen DNC emails were released on WikiLeaks, agents and associates of the Trump Campaign had at least 41 separate contacts with Russian agents.

(Am. Compl. ¶ 113.) Collectively, the detailed descriptions of conversations and meetings between representatives of the Campaign and Russian operatives is more than ample at this point to provide a plausible factual basis for Plaintiffs' allegation that the Campaign was aware that the stolen information had been unlawfully obtained.[5]

         The second facet of the Campaign's First Amendment challenge is its contention that the disclosed information dealt with matters of public concern. This is a closer question, particularly since the information was at least in part related to a political campaign and a candidate's supporters. The Campaign maintains that the disclosure may have contained some peripheral private information concerning the individual Plaintiffs, but it was overshadowed by information concerning the Clinton Campaign and the DNC, including the Committee's hostility towards Senator Bernie Sanders and Hispanic voters. (Id. ¶ 188.) The Amended Complaint, however, alleges that approximately 22, 000 of the emails contained personal information. (Id. ¶¶ 43-44.)

         The Supreme Court staked out the boundaries of speech of public concern in Snyder v. Phelps, 562 U.S. 443 (2011). "Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community,' or when it 'is a subject of legitimate news interest'" Id at 453 (first quoting Connick v. Myers, 461 U.S. 138, 146 (1983); then quoting San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam)). The Campaign urges the Court to focus on the '"content, form, and context' of the speech ... in the aggregate, not line by line." (Def.'s Br. Supp. Mot. Dismiss 6 (quoting Snyder, 562 U.S. at 453), ECF No. 23.) The Campaign also draws the Court's attention to Florida Star, wherein the Campaign argues the Supreme Court adopted a holistic approach in evaluating publications. The Campaign maintains that

Every disclosed email was (1) a work email (2) sent or received by a political operative (3) during a presidential campaign. Every disclosed email thus inherently addressed politics, elections, and campaigns-all paradigmatic issues-----They revealed the Democratic Party's conduct during its presidential primaries-which are public processes 'structur[ed] and monitor[ed]' by the state. Cal Democratic Party v. Jones, 530 U.S. 567, 572 (2000).

(Def.'s Br. Supp. Mot. Dismiss 8.) At this phase of the case, the content of these 22, 000 emails is not before the Court.

         Plaintiffs rejoin that the Campaign's categorization of speech of public concern casts too wide a net. (Pls.' Mem. Opp'n Mot. Dismiss 8, ECF No. 30.) They maintain that the First Amendment does not protect large amounts of private information with some isolated facts of public concern. (Id.) Even if some of the emails were arguably newsworthy, Plaintiffs contend that thousands were not. (Id. at 6.) Plaintiffs distinguish the cases relied upon by the Campaign to support its argument that an entire disclosure is constitutionally protected if even part relates to matters of public importance. (Id. at 6-7.) In contrast to the claims presently before the Court, Plaintiffs note that none of the cases relied upon by the Campaign-Snyder, Bartnicki, or Florida Star-involved disclosure without any effort to remove sensitive, private information or intentional disclosures of private information for the purposes of intimidation.[6] (Id. at 7.) Plaintiffs argue that "to properly balance freedom of the press against the right of privacy, every private fact disclosed in an otherwise truthful, newsworthy publication, must have some substantial relevance to a matter of legitimate public concern." (Id. (quoting Gilbert v. Med. Econ. Co., 665 F.2d 305, 308 (10th Cir. 1981); id. at 7 n.4 (citing Toffoloni v. LFB Publ'g Grp., LLC, 572 F.3d 1201, 1211 (11th 2009)).

         In drawing the boundaries between privacy and public concern, the Eleventh Circuit in Toffoloni drew heavily from the Restatement (Second) of Torts § 652D. "The Restatement recognizes that, although an individual may be rendered subject to public scrutiny by some newsworthy event, '[t]he extent of the authority to make public private facts is not... unlimited.'" Toffoloni, 572 F.3d at 1211 (quoting Restatement (Second)of Torts § 652 D cmt. h.).

         The difficulty confronted by the Court at this juncture is the scant record at hand. The Amended Complaint exhaustively details the personal information concerning the Plaintiffs that was allegedly disclosed and the injuries they sustained. Aside from a generalized description of the information pertaining to the DNC, its contributors, and the Clinton Campaign, there is very little detail concerning the specific nature of the information or its significance to the political campaign. This Court is aware that a determination of whether a communication is a matter of public concern is an issue of law to be determined based on its content, political impact, and interest to the community. Snyder v. Phelps, 580 F.3d 206, 220 (4th Cir. 2009). Equally important is the abiding principle that Plaintiffs' well-pleaded allegations are taken as true and the complaint must be viewed in the light most favorable to the plaintiff at this stage.[7]Without more specific detail as to the import of the emails of public concern, versus the volume of private and arguably embarrassing personal information, this Court is unable to determine, with any degree of certainty, whether Plaintiffs' otherwise plausible factual claims are well founded.[8] Relying solely on the allegations contained in the Amended Complaint, as it must at this juncture, the Court finds that the Campaign's release of the hacked emails from the DNC do not warrant First Amendment protection.

         B. Plaintiffs' Claim Under 42 U.S.C. § 1985(3) (Count I)

         Turning to the core claims of the Amended Complaint, Count I seeks damages for "Conspiracy to Intimidate Lawful Voters from Giving Support or Advocacy to Electors for President and to Injure Citizens in Person or Property on Account of Such Support or Advocacy in Violation of 42 U.S.C. [§] 1985(3)." (Am. Compl. 65.) Plaintiffs theorize that § 1985(3)'s "support or advocacy clauses," create an independent, substantive cause of action that does not require a litigant to plead the violation of a substantive constitutional right. However, for the reasons that follow, Plaintiffs' reasoning is contrary to the Supreme Court's historical interpretation of § 1985(3). Therefore, the Court's analysis will begin with some historical context before turning to the merits of Count I.

         1. The Supreme Court's Interpretation of 42 U.S.C. § 1985(3)

         Subsection 1985(3) prohibits civil conspiracies that interfere with "'equal protection of the laws' and 'equal protection of privileges and immunities under the laws' ... [and] the right to support candidates in federal elections." Kush v. Rutledge, 460 U.S. 719, 724 (1983). The statute was enacted during the Reconstruction Era under § 2 of the Civil Rights Act of 1871-the so-called Ku Klux Klan Act. See Id.; see also United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 839 (1983) (Blackmun, J., dissenting) ("The Ku Klux Klan Act was the Reconstruction Congress' response to politically motivated mob violence in the postbellum South.") When Congress enacted § 1985(3), its purpose was to combat the Klan's efforts "to resist and to frustrate the intended affects of the Thirteenth, Fourteenth, and Fifteenth Amendments." Carpenters, 463 U.S. at 837.

         The full text of § 1985(3) states as follows[9]:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws', or for the purpose of preventing or hindering the constituted authorities of any State or Territory ...

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