McGowan v. Weinstein

• Decision Date: 07 December 2020
• Docket Number: Case No. 2:19-cv-09105-ODW (GJSx)
• Citation: 505 F.Supp.3d 1000
• Court: U.S. District Court — Central District of California
• Parties: Rose MCGOWAN, Plaintiff, v. Harvey WEINSTEIN et al., Defendants.

505 F.Supp.3d 1000

Rose MCGOWAN, Plaintiff,

v.Harvey WEINSTEIN et al., Defendants.

Case No. 2:19-cv-09105-ODW (GJSx)

United States District Court, C.D. California.

Signed December 7, 2020

Andrew C. Porter, Pro Hac Vice, Julie B. Porter, Pro Hac Vice, Salvatore Prescott Porter and Porter PLLC, Evanston, IL, Anya Jennifer Goldstein, Jennifer Leigh Williams, Summa LLP, Los Angeles, CA, Jennifer B. Salvatore, Pro Hac Vice, Sarah Suzanne Prescott, Salvatore Prescott and Porter PLLC, Northville, MI, for Plaintiff.

Phyllis Kupferstein, Kupferstein Manuel LLP, Los Angeles, CA, for Defendant Harvey Weinstein.

Janet I. Levine, Robert E. Dugdale, Katelyn Kuwata, Sarah Emily Moses, Kendall Brill and Kelly LLP, Los Angeles, CA, for Defendants David Boies, Boies Schiller Flexner, LLP.

Eric M. George, Noah S. Helpern, Browne George Ross O'Brien Annaguey and Ellis LLP, Los Angeles, CA, for Defendants Lisa Bloom, the Bloom Firm.

Catherine S. Duval, Pro Hac Vice, Ezra B. Marcus, Pro Hac Vice, Zuckerman Spaeder LLP, Washington, DC, Katherine B. Farkas, Scheper Kim and Harris LLP, Los Angeles, CA, for Defendant B.C. Strategies Ltd.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS [34] [35] [43] [48]

OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Rose McGowan is an artist and activist who has starred in feature films and acclaimed television shows. (Compl. ¶ 10, ECF No. 1.) She has also gained recognition for her work in exposing sexual assault and harassment in the media industry. (Id. ) Her published memoir, Brave , details how Defendant Harvey Weinstein raped McGowan many years ago. (Id. ¶¶ 6, 17.) This case concerns Defendants’¹ alleged efforts to prevent McGowan from publicly disclosing in Brave that Weinstein raped her. (Id. ¶ 7.)

Presently before the Court are four motions to dismiss the Complaint (collectively, the "Motions") under Federal Rule of Civil Procedure ("Rule") 12(b)(6), filed respectively by: (1) the Bloom Defendants; (2) the Boies Defendants; (3) Black Cube; and (4) Weinstein. (Bloom Defs.’ Mot. Dismiss ("Bloom MTD"), ECF No. 34; Boies Defs.’ Mot. Dismiss ("Boies MTD"), ECF No. 35; Black Cube's Mot. Dismiss ("Black Cube MTD"), ECF No. 43; Weinstein's Mot. Dismiss ("Weinstein MTD"), ECF No. 48.) For the reasons that follow, the Motions are each GRANTED IN PART and DENIED IN PART .²

II. BACKGROUND

For purposes of these Rule 12(b)(6) Motions, the Court takes all of McGowan's well-pleaded allegations as true. See Lee v. City of Los Angeles , 250 F.3d 668, 688 (9th Cir. 2001).

A. Defendants’ Interrelationship

For many years, Weinstein used his power in the movie industry to victimize vulnerable women, and Boies helped Weinstein protect his public image by working to kill negative stories and discredit Weinstein's victims. (Compl. ¶¶ 20–26.) In 2016, Weinstein learned that McGowan planned to expose him as her rapist in Brave , so he and Boies mobilized a "team of fixers" to foil her plan. (Id. ¶¶ 7, 31–35.)

Black Cube is a private intelligence agency based in England, Israel, and Spain, that "provides intelligence and advisory services to clients internationally." (Id. ¶ 16.) On October 24, 2016, Weinstein and the Boies Defendants hired Black Cube "to identify the entities behind the negative campaign against [Weinstein] and support [Weinstein]’s efforts to put a stop to it," in exchange for $200,000 plus incentive bonuses if Black Cube succeeded in "putting a stop to the negative campaign." (Id. ¶¶ 36–39.) On October 28, 2016, the Boies Defendants "sent Black Cube $100,000 by interstate wire transfer, as payment on the contract." (Id. ¶ 40.)

Bloom is a well-known civil rights attorney and victims’ advocate. (Id. ¶ 48.) The Bloom Defendants primarily represent women who accuse celebrities and other prominent men of sexual harassment and assault. (Id. ¶ 49.) In December 2016, Bloom "pitched her reputation-management services in a letter to [Weinstein]," outlining a plan to protect Weinstein's public image by, among other things, damaging McGowan's reputation. (Id. ¶ 51.) Following Bloom's pitch, in December 2016, Weinstein hired the Bloom Defendants to join the Boies Defendants in overseeing Black Cube's work. (Id. ¶¶ 48, 53–54.)

On July 11, 2017, the Boies Defendants entered into a second contract with Black Cube, on Weinstein's behalf, to (1) help Weinstein "completely stop the publication of a new negative article in a leading NY newspaper," and (2) obtain additional content of Brave , which was then being written and included harmful negative information about Weinstein. (Id. ¶¶ 99, 101.) In that contract, Black Cube also "promised to devote a full-time agent by the name of Anna to the project for four months, as well as avatar operators, intelligence analysts, and others." (Id. (internal quotation marks omitted).)

B. Defendants’ Conduct Against McGowan

The Complaint details a veritable multitude of efforts by Defendants to harm McGowan's reputation and business interests by influencing her and those she trusted. For instance:

• On January 20, 2017, McGowan noticed her wallet was missing after a flight to Washington, D.C. (Id. ¶ 55.) Although she did not possess drugs on the flight, she later received an anonymous message telling her that her wallet had been found on the plane with drugs inside of it. (Id. ¶ 57.) A warrant was issued for McGowan's arrest on drug-possession charges, and at the time, she argued that Weinstein may have caused the drugs to be planted in her wallet. (Id. ¶ 59.) After being formally indicted in June 2018, McGowan hired Jose Baez as defense counsel, who convinced her to drop the defense relating to Weinstein and to plead no contest. (Id. ¶ 60.) However, Baez was also Weinstein's attorney, and Weinstein had influenced the advice that Baez gave McGowan. (Id. ¶ 61.)

• In January 2017, McGowan's literary agent, Lacy Lynch, connected McGowan with Seth Freedman, a freelance journalist who claimed to be working on a story about men in Hollywood. (Id. ¶ 64.) When Freedman spoke to McGowan over the phone, many of his statements "seemed designed to intimidate her" against publicly exposing Weinstein. (Id. ¶¶ 64–66.) Freedman was being paid by Black Cube to obtain information about McGowan and her book, and he recorded their conversation without McGowan's consent. (Id. ¶ 67.) Freedman also contacted other journalists who were working on stories about Weinstein, in order to obtain information at Black Cube's direction. (Id. ¶ 68.)

• In March 2017, Lynch told McGowan that Bloom wanted an opportunity to convince McGowan that Weinstein was a changed man who wanted to make amends. (Id. ¶ 69.) McGowan declined to speak with Bloom. (Id. )

• On April 4, 2017, a Black Cube agent posing as "Diana Filip" contacted Lynch asking for an introduction to McGowan. (Id. ¶¶ 69–70, 73.) Filip claimed to work for a London-based investment firm that advocated for women's rights. (Id. ¶ 71.)

• On May 12, 2017, McGowan met Filip for the first time in Beverly Hills, California. (Id. ¶ 75.) Filip spoke with an accent, used a UK cell phone number, and offered McGowan $60,000 for a speaking event related to combating discrimination against women in the workplace. (Id. ) Trusting Filip, McGowan read aloud to Filip excerpts from Brave , which McGowan had not shared with anyone else. (Id. ¶ 77.) The next morning, McGowan accepted Filip's invitation to meet for breakfast. (Id. ¶ 76.) McGowan brought her laptop with her, and Filip convinced McGowan to let her read an excerpt of Brave on the laptop. (Id. ¶ 77.) Unbeknownst to McGowan at the time, Filip recorded their meetings and later shared the recorded information with Defendants. (Id. ¶ 78.)

• On July 19, 2017, McGowan met with Filip again, in New York. (Id. ¶ 103.) During that meeting, McGowan excused herself to the restroom several times, and Filip used this opportunity to steal a copy of Brave from McGowan's laptop. (Id. ) • In the spring and early summer of 2017, Defendants monitored journalists to ascertain what information they had obtained about McGowan and other Weinstein victims. (Id. ¶¶ 82–88, 96, 115.) Defendants tried to prevent media outlets from running the stories, and when those efforts proved unsuccessful, they tried to discredit McGowan as "crazy." (Id. ¶¶ 119, 127–28.)

• Through attorneys, Weinstein offered McGowan $1 million to drop publication of Brave and enter into a non-disclosure agreement with Weinstein. (Id. ¶ 113.)

• Throughout all of this, Defendants engaged in numerous conversations and meetings regarding Black Cube's progress in trying to obtain a copy of Brave. (Id. ¶¶ 90, 92, 94–95.) The unauthorized recordings and copy of the manuscript were shared with and reviewed by Weinstein, the Boies Defendants, and the Bloom Defendants. (Id. ¶¶ 98, 102, 112.)

C. McGowan's Discovery of Defendants’ Conduct

On November 6, 2017, The New Yorker published an article titled "Harvey Weinstein's Army of Spies" (the "Article"), which detailed the concerted efforts of Weinstein, the Boies Defendants, and Black Cube "to defraud [McGowan], use deception to steal portions of her book, and discredit and humiliate her." (Id. ¶ 123.) McGowan claims it was "only in connection with the [Article]" that she learned she had been recorded without her consent, or that Weinstein had stolen a copy of Brave with the Boies Defendants’ and Black Cube's help. (Id. ¶ 124.) McGowan learned of the Bloom Defendants’ roles much later, in September 2019, when it was reported by New York Times journalists Megan Twohey and Jodi Kantor. (Id. ¶ 125.)

D. McGowan's Claims

Based on the above allegations, McGowan brings eleven claims against Defendants for: (1) civil violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) ; (2) civil RICO conspiracy, 18 U.S.C. § 1962(d) ; (3) violation of the Federal Wiretap Act, 18 U.S.C. § 2520 ; (4) fraudulent deceit under California Civil Code section 1709 ; (5) common law fraud; (6)...