Democracy Partners v. Project Veritas Action Fund

• Decision Date: 04 January 2018
• Docket Number: Civil Action No. 17–1047 (ESH)
• Citation: 285 F.Supp.3d 109
• Parties: DEMOCRACY PARTNERS, et al., Plaintiffs, v. PROJECT VERITAS ACTION FUND, et al., Defendants.
• Court: U.S. District Court — District of Columbia

285 F.Supp.3d 109

DEMOCRACY PARTNERS, et al., Plaintiffs,

v.PROJECT VERITAS ACTION FUND, et al., Defendants.

Civil Action No. 17–1047 (ESH)

United States District Court, District of Columbia.

Signed January 4, 2018

Joseph E. Sandler, Sandler, Reiff, Lamb Rosenstein & Birkenstock, Yael Bromberg, Aderson Bellegarde Francois, Washington, DC, for Plaintiffs.

Benjamin Barr, Pro Hac Vice, Law Offices of Benjamin Barr, Chicago, IL, Daniel D. Mauler, Redmon, Payton & Braswell, LLP, Stephen R. Klein, Pro Hac Vice, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Democracy Partners, LLC, Strategic Consulting Group, NA, Inc., and Robert Creamer ("plaintiffs") bring this action against Project Veritas Action Fund, Project Veritas, James O'Keefe ("PV defendants"), and Allison Maass, alleging that defendants violated federal and state wiretap statutes and committed multiple common law torts in their execution of an undercover sting operation directed at plaintiffs. Before the Court are two motions to dismiss jointly filed by the PV defendants: a motion to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and a motion to dismiss pursuant to the D.C. Anti–SLAPP Act. (See PV Defs.' 12(b)(6) Mot., ECF No. 14; PV Defs.' Anti–SLAPP Act Mot., ECF No. 15.) For the reasons stated herein, the motions will be denied.

BACKGROUND

I. FACTUAL BACKGROUND¹

Democracy Partners, LLC, is "a company including a number of other consultants and vendors to progressive organizations and Democratic campaigns and committees, who market their services collectively through the company." (Compl. ¶ 19.) Strategic Consulting Group, NA, Inc. ("Strategic") is a member of Democracy Partners. (Id. ¶ 3.) It "provides campaign-related services to progressive organizations and Democratic campaigns and committees." (Id. ¶ 18.) Robert Creamer is the sole owner of Strategic. (Id. ¶ 1.) "Democracy Partners' private offices ... are not accessible to the general public, have 24–hour security, and are only accessible if one signs into the building at the lobby security desk, if one is provided entrance by [p]laintiffs' receptionist, and/or if one has an electronic pass card[, which] ... is required to access the elevators to the office outside of regular business hours[,] and a key[, which] is required to enter the office when no one is present." (Id. ¶ 34.)

Project Veritas ("PV") and Project Veritas Action Fund ("PVAF") are both nonstock, nonprofit corporations founded by James O'Keefe. (Id. ¶¶ 6, 12.) PVAF is an "arm" of PV, and O'Keefe is the President of both corporations. (Id. ) Allison Maass and Daniel Sandini were, at the relevant times, employees of, or contractors to, PV and PVAF. (Id. ¶¶ 7–8.) Through the actions described below, they infiltrated Democracy Partners' offices, stole confidential documents and secretly recorded hours of conversation.²

On or about June 24, 2016, Sandini, using the false name of Charles Roth and representing himself as a potential donor to a nonprofit organization that Creamer had worked for, was introduced to Creamer and the two men had a meeting. (Id. ¶ 22.) A few weeks later, on or about July 15, 2016, Sandini "told Creamer that he had a niece who wanted to volunteer to do some kind of political work for Democratic candidates or organizations while she was on a brief hiatus from college." (Id. ¶ 24.) Sandini told Creamer that his niece's name was "Angela Brandt." (Id. ) In reality, no such person existed; rather, Angela Brandt was a false name used by Maass. (Id. ¶ 27.) Unaware of her real identity, Creamer connected Maass "with a progressive organization working in Cleveland, Ohio during the 2016 Republican National Convention," believing that Maass had performed volunteer work for that organization during the convention. (Id. ¶ 25.)

In late August 2016, Sandini called Creamer and told him that his niece would like to gain more experience, leading Creamer to interview Maass "for an internship with Creamer and Strategic in the Democracy Partners office." (Id. ¶ 26.) During the interview, Maass provided Creamer fictitious background information and falsely "told Creamer that her interest in obtaining an internship was to gain work experience in political and advocacy work." (Id. ) Based on this false information, Creamer told her that she might qualify for an internship at Democracy Partners. (Id. ¶ 28.) A few days later, in early September, Maass "called Creamer and said she would like to intern at Democracy Partners and could work three days per week." (Id. ¶¶ 28–29.)

On September 21, 2016, Maass started her internship at Democracy Partners. (Id. ¶ 30.) She was given an electronic pass card, which allowed her access to the entire office at all times, "including areas that contained file cabinets and computers with confidential information," and an account and password allowing her to use a company computer. (Id. ¶ 31.) She also met with Creamer, who gave her an overview of the work Democracy Partners/Strategic was performing, and he explained "how it interacted with clients and other information that was pertinent for an intern to know in order to perform her tasks." (Id. ¶ 32.) The "information Creamer disclosed to Maass included confidential and sensitive business information including the identity of clients, client information and programmatic details, and the identity of partners." (Id. ) He "explicitly told Maass that based on the confidential and sensitive nature of the mission and programming of [Democracy Partners/Strategic], the information, and any additional information she was given over the course of her internship, was confidential and not to be shared with anyone other than persons with whom she had specifically been instructed to share that information." (Id. ) Finally, she was asked to provide a resume, so the following day she provided a fabricated resume for "Angela Brant" that omitted her current employment with Project Veritas and her past work for other conservative news outlets and provided instead "an entirely false and fabricated work history and education." (Id. ¶ 43.) Maass' tasks as an intern included "coordinating and joining meetings with clients about highly sensitive and confidential political programs; putting together news clips; and researching and drafting client updates." (Id. ¶ 36.) She was "included among the recipients of highly confidential emails and in confidential discussions in in-person meetings and on conference calls," "sent confidential documents," and "brought to confidential client meetings." (Id. ¶ 39.) "These calls, emails and documents all contained confidential business information which Creamer told her was confidential and not to be shared with anyone with whom she had not been instructed to share it." (Id. ) According to the complaint, "[t]he procedures for pulling news clips and the client update memos were proprietary to Democracy Partners and its clients." (Id. ¶ 36.)

In early June 2016 Strategic had entered into a subcontract with a contractor for the Democratic National Committee ("DNC"). (Id. ¶ 20.) Strategic's contract was "to assist the DNC in arranging events in opposition to the candidacy of Donald Trump for President, including events to take place before and/or after Trump campaign events in various cities," which were "sometimes referred to as ‘bracketing’ events." (Id. ) The "bracketing program" was "[o]ne of the most important projects that Maass was involved with." (Id. ¶ 37.) As part of this program, Maass "coordinated press events in areas being visited by then-candidates Donald Trump and Mike Pence." (Id. ) "Prior to the public announcement of each event, information relating to the timing, location, nature of and the program to take place during each such event, was maintained in strict confidence by the DNC, other groups directly involved in the event, and their respective consultants." (Id. ¶¶ 36–37.) "Maintaining that information in confidence was essential in order for each such event to be successful; otherwise the Republican Party and the Republican presidential campaign could adjust their own plans to anticipate or deflect the ‘bracketing’ event." (Id. ¶ 37.) "Maass participated in planning calls for these ‘bracketing’ events, sitting in on meetings, and drafting emails and reports that contained information about upcoming events and after-event reporting." (Id. ¶ 38.)

During her internship, unbeknownst to plaintiffs, Maass carried concealed video and audio recording devices. (Id. ¶ 30.) She secretly recorded her discussion with Creamer on her first day of work, along with "other confidential internal conversations with Creamer and other Democracy Partners members, as well as confidential conversations they had with [Strategic] and Democracy Partner clients in-person and via conference call." (Id. ¶ 33.) She provided these unauthorized audio and video recordings to PV and PVAF. (Id. ¶¶ 35.) Without permission, she also provided them with a number of confidential documents and emails. (Id. ¶¶ 40, 60–61.)

Had Creamer known Sandini's and Maass' true identities, their connections to PV, PVAF and O'Keefe, and Maass' intentions, he never would have hired her as an intern, given her confidential documents, included her in meetings and on emails, brought her to meetings, or given her open access to the office and its computers and files. (Id. ¶¶ 42, 44.)

On October 14, 2016, Creamer went to lunch with Mike Carlson, whom Sandini had falsely claimed was his financial advisor. (Id. ¶ 45.) Just as they were finishing, Creamer was accosted by a reporter, Raffi Williams, and a film crew from Circa Media, a subsidiary of Sinclair Broadcasting, who asked him to respond to two secretly recorded video clips of Creamer.³ (Id. ) The reporter indicated that O'Keefe had been the one to tip him off to Creamer's whereabouts. (Id. ) When Creamer returned to his office,...