FEDERAL
RACKETEERING CHARGES AND FISA WARRANT DEMAND AGAINST SUSPECT
DEFENDANTS
FILED
WITH THE U.S. DEPARTMENT OF JUSTICE
WILLIAM BARR – U.S. ATTORNEY GENERAL
U.S. Department of Justice
950
Pennsylvania Avenue, NW
Washington, DC 20530-0001
Filed:
April 23, 2019
Draft 2.9
The
People Of The United States as,
A Class
of Individuals; Plaintiffs,
Vs.
Univision,
Inc., Gawker Media,
Gabrielle
Darbyshire, Adrian Covert,
Nick
Cook, John Hermman, Alphabet,
Inc.,
Google,
Inc., Youtube Inc., Eric Schmidt,
Gizmodo
Media, Nicholas Guido Denton,
Unimoda,
llc, Great Hill Partners, et
al, , and
DOES 1
through 150,
Inclusive; Defendants
COMPLAINT
FOR INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS;
INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE;
CYBER-STALKING;
FRAUD;
INVASION OF PRIVACY;
UNFAIR COMPETITION;
THEFT OF INTELLECTUAL PROPERTY;
RICO RACKETEERING VIOLATIONS:
ELECTION INTERFERENCE;
OPERATION AS AN UNREGISTERED
FOREIGN AGENT:
AND SUCH ADDITIONAL CAUSES TBD
FACTS
OF THE CASE:
1.
Plaintiffs are U.S. domestic natural born citizens.
2.
Defendants have offices and residency in
the United States of America.
4.
The true names and capacities of the Defendants, DOES 1 through 150,
inclusive, are presently unknown to the Plaintiffs at this time, but
include the staff and financiers of Defendants, including Adrian
Covert, and John Herman, A.J. Delaurio, as well as through its
pseudonymous authors, including: Adam Dachis, Adam Weinstein, Adrian
Covert, Adrien Chen, Alan Henry, Albert Burneko, Alex Balk, Alexander
Pareene, Alexandra Philippides, Allison Wentz, Andrew Collins, Andrew
Magary, Andrew Orin, Angelica Alzona, Anna Merlan, Ariana Cohen,
Ashley Feinberg, Ava Gyurina, Barry Petchesky, Brendan I. Koerner,
Brendan O’Connor, Brent Rose, Brian Hickey, Camila Cabrer, Choire
Sicha, Chris Mohney, Clover Hope, Daniel Morgan, David Matthews,
Diana Moskovitz, Eleanor Shechet, Elizabeth Spiers, Elizabeth
Starkey, Emily Gould, Emily Herzig, Emma Carmichael, Erin Ryan, Ethan
Sommer, Eyal Ebel, Gabrielle Bluestone, Gabrielle Darbyshire,
Georgina K. Faircloth, Gregory Howard, Hamilton Nolan, Hannah Keyser,
Hudson Hongo. Heather Deitrich, Hugo Schwyzer, Hunter Slaton, Ian
Fette, Irin Carmon, James J. Cooke, James King, Jennifer Ouellette,
Jesse Oxfeld, Jessica Cohen, Jesus Diaz, Jillian Schulz, Joanna
Rothkopf, John Cook, John Herrman, Jordan Sargent, Joseph Keenan
Trotter, Josh Stein, Julia Allison, Julianne E. Shepherd, Justin
Hyde, Kate Dries, Katharine Trendacosta, Katherine Drummond, Kelly
Stout, Kerrie Uthoff, Kevin Draper, Lacey Donohue, Lucy Haller, Luke
Malone, Madeleine Davies, Madeline Davis, Mario Aguilar, Matt
Hardigree, Matt Novak, Michael Ballaban, Michael Dobbs, Michael
Spinelli, Neal Ungerleider, Nicholas Aster, Nicholas Denton, Omar
Kardoudi, Pierre Omidyar, Owen Thomas, Patrick George, Patrick
Laffoon, Patrick Redford, Rich Juzwiak, Richard Blakely, Richard
Rushfield, Robert Finger, Robert Sorokanich, Rory Waltzer, Rosa
Golijan, Ryan Brown, Ryan Goldberg, Sam Faulkner Bidle, Sam Woolley,
Samar Kalaf, Sarah Ramey, Shannon Marie Donnelly, Shep McAllister,
Sophie Kleeman, Stephen Totilo, Tamar Winberg, Taryn Schweitzer,
Taylor McKnight, Thorin Klosowski, Tim Marchman, Timothy Burke, Tobey
Grumet Segal, Tom Ley, Tom Scocca, Veronica de Souza, Wes Siler,
William Haisley, William Turton and others writing under pseudonyms,
and the Plaintiffs sue those Defendants and each of them, by such
fictitious names pursuant to the pertinent provisions of the Code of
Civil Procedure and hereby demands an FBI interview of each person
listed to ascertain who provided them with their orders, compensation
and supervision. The facts and veracity of the charges and claims
herein are evidenced in multi-terrabyte hard drives and existing
online cloud-based evidence repositories containing millions of pages
of validating evidence compiled by Plaintiffs, FBI, GAO, SEC, EU,
private, Congressional, news industry, forensic specialist and leaked
archive investigators.
5. Gawker Media, Alphabet, Google, Gizmodo Media, et al; have
engaged in the origination of, production of and global broadcast of
work-for-hire character assassination defamation videos and articles as a
reprisal-service-for-hire (like Fusion GPS, Black Cube, Think Progress
and other related political attack services) as payback, revenge, reprisal
and
vendetta against those who helped law enforcement investigate the
financiers of Defendants. Defendants believed that Defendants had
acquired business and stock market monopoly promises through the
White House Administration of Barack Obama. Defendants believed that
full disclosure of their political campaign money laundering and
stock market manipulation efforts would have caused Barack Obama to
have been forced to resign his Presidency, mid-term, thus eliminating
their organized crime crony kickback scheme. Defendants exchanged
compensation, jobs and assets as payment for defamation, character
assassination and “Steele Dossier”-type hit jobs which they
produced and broadcast. As 1.) the only publishing group on Earth to have
engaged
in such attacks against Plaintiffs, while: 2.) the attacks were
financed by complainants business competitors, while: 3.) Defendants
own staff have admitted to the scheme and, while: 4.) communications,
FBI records, NSA data, hacker leaks and previous litigation records
prove complainants assertions; and, while: 5.) XKEYSCORE, AXCIOM,
FBI, INTERPOL, PALANTIR, and other investigation database tools,
prove the payments from Defendant to Defendant and criminal suspects
as both “unjust rewards” and “organized criminal cross-border
transactions”, complainants are justified in their demands. The
attacks and broadcast of multiple defamation attack articles and
videos by Google, Youtube, Gawker Media and Gizmodo Media (known now to have
conspired to operate together in furtherance of a crime and in violation of
RICO Statutes) has been
operating as recently as this date, and thus the statutes of
limitations are not exceeded.
6.
Well known political figures from The White House, U.S. Senate and
California and New York Governor’s offices hired Gawker Media,
Gizmodo Media and “Nick” Denton to undertake these ongoing
attacks and to manipulate web servers to operate those attacks
globally and permanently. The attackers hired Gawker Media, Gizmodo
Media, “Nick” Denton, Univision/Unimoda LLC and DOES 1 to 150, et
al, to engage in reprisals because of Plaintiff’s testimonies
against Defendants and their financiers parties in federal
investigations, and because the plaintiffs had superior technologies
that the attackers financiers could not compete with. Transaction
documents showing payments between the Defendants and their
financiers in this case, were recently uncovered in other court
cases. (Ie: Google’s and Gawker Media’s payola and staffing
exchanges, in millions of dollars, between each other). Defendants
produced a series of videos and defamation articles and used internet
server technology tricks to place those attack materials in front of
7.5+ billion people day after day, year after year, refreshing the
attack daily. This is, essentially, a “hit-job” service that
Defendants provide through their networks and their offensive tabloid
brands of: Gizmodo, Jalopnik, Jezebel, Gawker and other
Univision/Unimoda assets along with their partnership with Google for
the operation of such attacks. “Defendant use
these services as a political-payback
tool for politicians and Silicon Valley oligarchs as
well as an anti-trust violating, anti-competition, tool for its
clients and an off-shore money-laundering and campaign finance
obfuscation resource. It is the ultimate financial and political
crime network...”, claim Plaintiffs. Private, federal,
Congressional and news investigators and evidence from
whistle-blowers and other lawsuits have now confirmed the veracity of
the charges and the potential for substantial damages claims against
Defendants and their distribution partners. Recent legal precedents
have all been ruled in the victims favor. Damages awards in related
cases have exceeded $140 million. DOJ should join their case because
it is in the best interests of the nation.
7.
The Plaintiffs are informed and believe and, based on that
information and belief, allege that the named Defendants herein and
each of the parties designated as a “DOE” and every one of them,
are legally responsible jointly and severally for the Federal RICO
Statute violating events and happenings referred to in the within
Complaint for Intentional Interference with Contractual Relations,
Intentional Interference with Prospective Economic Advantage,
Cyberstalking, Fraud, Invasion of Privacy, Unfair Competition and
Theft of Intellectual Property and RICO statute violations and
other causes of action. In
particular, Defendants took compensation for, and engaged in,
malicious and coordinated tactics to seek to destroy, damage, harm
and ruin Plaintiffs via an illicit media “hit-job” service which
Defendants regularly offered in covert commerce and engaged in
regularly against targets that Defendants were hired to seek to ruin
as part of reprisal, vendetta, retribution programs operated for
business and political competitors of the targets. Historical facts
and other history-making lawsuits by third parties, has proven
Defendants to be the single largest core violator of human rights, in
this manner, in the world. Defendants offer the service of creating
and publishing contrived “hatchet job” movies, fake news
articles, faked comments and repercussion back-links describing the
Plaintiffs
in horrific descriptors. The attack materials
are
re-posted, “impression accelerated”, “click-farm fertilized”
and Streisand array re-posted by Defendants massive character
assassination technology via servers algorithms and technical
internet manipulation daily as recently as yesterday. Defendants also
embed their attack
articles
in job hiring databases on Axciom, Palantir, Taleo and other
databases used by all hiring and recruiting services in order to
prevent Plaintiffs from ever receiving income for W2 or 1099 work
ever again. Defendants own staff then post thousands of fake
comments, below each attack item, under fake names, designed to make
it appear as if a broad consensus of the public agreed with the
defamation messages by Defendants. Almost all of the fake comments
were created by a handful of Defendants own staff pretending to be a
variety of outside voices. Defendants provide the service of
delivering “weaponized text and media to corporate clients”.
Defendants replicated various versions of these attack items across
all of their different brands and facade front publications and added
additional fake comments to each on a regular basis. This
is the same exact technology, using the same exact servers and staff,
that attempted to manipulate the last 4 major national elections in
the United States. This case
exposes all of the technologies currently under investigation by the
United States Congress and the European Union regarding the mass
electronic manipulation of national elections, “fake news” and
other Mass Public Behavior
manipulation as discussed prominently in the broadcast news by Dr.
Robert Epstein, Peter Schweitzer and their investigative peers.
Key
points of this case include:
A.
Defendants have formed a business
and political manipulation
“Cartel” intended
to inflict corruption upon the United States Federal Government, The
New York State Government and the California State Government,
as defined by law under RICO Racketeering Statutes for
the purpose of manipulating the value of stock market holdings and
controlling political policy decisions.
B.
In exchange for financing, Defendants Clients gave Defendants
Associates business monopolies and government contract monopolies and
media distribution exclusives worth
trillions of dollars in
stock market profits and monies from the U.S Treasury, New York State
Treasury, Nevada State Treasury and California State Treasury.
This was an illegal quid-pro-quo arrangement between
Defendants.
Plaintiffs designed, produced, received patent awards on, received
federal commendations for, received federal funding for and first
marketed the very products which Defendants copied and made billions
of dollars on and which Defendants felt might beat them in hundreds
of billions of dollars of competitive market positions and stock
market trades. Companies operated by Plaintiffs included automobile
design and manufacturing companies, global television broadcasting
companies and energy companies which are commonly known to have
generated hundreds of billions of dollars in profits, revenue and
stock market transactions for Defendants competing holdings at
Plaintiffs expense. Defendants operated a criminal CARTEL as defined
by RICO LAWS and that Cartel ran an an anti-trust market rigging and
crony political payola operation. Defendants spent tens of millions
of dollars attacking Plaintiffs because Defendants were not clever
enough to build better products. Defendants chose to “CHEAT RATHER
THAN COMPETE” and to try to kill Plaintiffs lives, careers, brands,
revenues, assets, businesses and efforts via malicious and ongoing
efforts.
C.
U.S. Attorney General Jefferson B. Sessions III has been informed, in
writing, of these charges and Plaintiffs understand that DOJ
officials have an ongoing investigation into these matters. Under
investigation for these crimes, New York State attorney general Eric
Schniderman was recently forced to quit over corruption and sexual
cult charges involving the NXIUM group and related matters.
D.
Due to Defendants fears of the loss of up a trillion dollars of crony
payola from their illegal abuse of taxpayer funds, Defendants engaged
in felonious actions in order seek to intimidate others.
E.
Just as, over time, the Watergate crimes are now intimately
documented and detailed; over time The “Cleantech Crash Scandal”
as featured on CBS News 60
MINUTES
TV Show, has been detailed and exposed in numerous federal, news
media and public investigations. Significant barriers to justice were
illicitly placed in front of Plaintiffs by Defendants.
F.
Defendants organized and operated a series of malicious attacks and
thefts against Plaintiffs as reprisals and competitive vendettas.
Plaintiffs report
to the FBI, GAO, FTC, SEC, Congressional Ethics Committees, The White
House and other entities on a regular basis and
through corrupt parties in those entities, Defendants learned of
Plaintiffs helpfulness to law enforcement agencies.
G.
Defendants and their associates Elon Musk, Jon Doerr, Eric Schmidt,
Larry Page, Steve Jurvetson, Vinod Khosla and other members of the
“Silicon Valley Cartel” are documented in tens of thousands of
news reports, federal law enforcement reports and Congressional
reports in their attempts to infiltrate and corrupt the U.S.
Government in an attempt to route trillions of tax dollars to
Defendants private accounts. Defendants perceived Plaintiffs as a
threat to their crimes. Federal investigators, news investigators and
whistle-blowers have reported to Plaintiffs that Defendants were the
financiers and/or beneficiaries and/or command and control operatives
for the crimes and corruption disclosed in the CBS NEWS 60 Minutes
investigative reports entitled: “The
Cleantech Crash”,
“The
Lobbyists Playbook”
and “Congress
Trading on Insider Information”;
The Feature Film: “The
Car and the Senator”
Federal lawsuits with case numbers of: USCA Case #16-5279; and over
50 other cases including the ongoing “Solyndra” investigation and
federal and Congressional investigations detailed at
http://greencorruption.blogspot.com/
; http://xyzcase.xyz
;
https://theintercept.com/2016/04/22/googles-remarkably-close-relationship-with-the-obama-white-house-in-two-charts/
and
thousands of other documentation sites. Plaintiffs are charged with
engaging in these crimes and corruptions against Plaintiffs and
financing and ordering attacks on Plaintiffs.
Plaintiffs engaged
in U.S. commerce and did everything properly and legally. Unlike
Defendants, Plaintiffs did not steal technology. Unlike Defendants,
Plaintiffs did not bribe elected officials in order to get market
exclusives. Unlike Defendants, Plaintiffs did not poach Defendants
staff. Unlike Defendants, Plaintiffs were the original inventors of
their products. Unlike Defendants, Plaintiffs did not operate
“AngelGate Collusion” schemes and “High Tech No Poaching Secret
Agreements” and a Mafia-like Silicon Valley exclusionary Cartel.
Unlike Defendants, Plaintiffs did not place their employees in the
U.S. Government, The California Government, The U.S. Patent Office
and The U.S. Department of Energy in order to control government
contracts to Defendants exclusive advantage. Unlike Defendants,
Plaintiffs did not place moles inside of competitors companies.
Unlike Defendants, Plaintiffs did not hire Gawker Media and Think
Progress to seek to kill Plaintiffs careers, lives and brands. Unlike
Defendants, Plaintiffs did not rig the stock market with
“pump-and-dump”, “Flash Boy” and “Google-stock/PR-pump”
schemes. Plaintiffs
engaged in hard work every day of their lives for the time-frame in
question under the belief that the good old American work ethic and
just rewards for your creations was still in effect in the U.S.A.,
and that the thieves and criminals that attempted to interdict
Plaintiffs would face Justice. In a number of circumstances
Defendants took advantages of Plaintiffs hard work via come-ons;
Defendants then made billions of dollars from Plainiffs work at
Plaintiffs expense and attacked Plaintiffs in order to reduce
Plaintiffs competitive and legal recovery options.
H.
Defendants exchanged payments for services via cash, stock warrants,
illicit personal services, media control and a technology known as a
“Streisand Effect Massive Server Array” which can control public
impressions for, or against a person, party, ideology or issue.
Defendants Streisand Effect internet system was used to destroy
Plaintiffs in reprisal, retribution, and vendetta for Plaintiffs help
with law enforcement efforts in the case and because Plaintiffs
companies competed with Defendants companies with superior
technologies.
I.
Defendants have used their Streisand Effect technology to build a
character assassination ring of bloggers and hired shill “reporters”
who engage in a process called a “Shiva”. This process is named
after a Plaintiff in a similar case named: Shiva Ayyadurai, the
husband of Actress Fran Drescher. Shiva Ayyadurai holds intellectual
property rights to part of Defendants email technology. In fact, the
people most threatened by the Shiva Ayyadurai patent right claims,
ironically turn out to be Defendants and, in particular, Defendants
associates Elon Musk, Jon Doerr, Eric Schmidt, Larry Page, Steve
Jurvetson, Vinod Khosla and other members of the “Silicon Mafia”
who own most of the main companies exploiting email technology. Were
Shiva Ayyadurai to prevail in his claims, Defendants would owe him
billions of dollars. “Running A Shiva” involves the production of
a series of Defamation articles by bloggers who act as if they are
independent from Defendants but are in fact, not. Defendants used
“the Shiva” to attack and seek to destroy Donald Trump, Shiva
Ayyadurai, Plaintiffs, and numerous political figures. Univision,
Unimoda, Jalopnik, Gawker Media, Gizmodo and over a hundred
stealth-ed, and overt, assets of Defendants have been using “The
Shiva” network to attack Donald Trump, Shiva Ayyadurai, Plaintiffs,
and numerous political figures as recently as this morning, thus, the
time bar restarts every day. Plaintiffs have pleaded with Defendants
to cease their attacks but Defendants have refused to comply. Even
with Fran Drescher’s ongoing royalty payments from her popular
television series, friends have reported that the attacks on the
Ayyadurai family have been devastating and have caused massive
damages and personal and emotional devastation.
J.
In
one matter, Defendants
produced animated movies, attack articles, fake blog comments, DNS
routes, “Shiva” Campaigns, and other attack media against
Plaintiffs and expended over $30 million dollars in value, as
quantified by Defendants partner: Google, in placing the attack
material in front of 7.5 billion people on the planet for the rest of
Plaintiffs lifetime. No person could survive such an attack and in
the case of Plaintiffs, lives were destroyed and multiple companies
invested into by Plaintiffs, which Defendants made over $50B off of
the copies of, were destroyed because they competed with Defendants.
8.
The Plaintiffs are informed and believe, and based on that
information and belief allege that at all times mentioned in the
within Complaint, all Defendants were the agents, owners and
employees of their co-Defendants and, in doing the things alleged in
this Complaint, were acting within the course and scope of such
agency and employment.
9.
As to any corporate employer specifically named, or named as a “DOE”
herein, the Plaintiffs are informed and believe and therefore allege
that any act, conduct, course of conduct or omission, alleged herein
to have been undertaken with sufficient, malice, fraud and oppression
to justify an award of punitive damages, was, in fact, completed with
the advance knowledge and conscious disregard, authorization, or
ratification of and by an officer, director, or managing agent of
such corporation. The Statute of Limitations and time bar on this
case has not expired. Plaintiffs only became aware of all of the
facts recently due to the FBI, Congressional and hacker-exposed
investigation data on Defendants operating and receiving cash,
rewards and assets from an illegal and illicit set of political
slush-funds established to compensate them for financing political
campaigns. The Sony, Clinton, DNC, HSBC, Panama Papers and other
hacks and publication of all of the relevant files and the
Congressional investigation of illicit activities and the continuing
issuance of federal documents to Plaintiffs confirming Plaintiffs
intellectual property are all vastly WITHIN the statutes of
limitations to allow this case to proceed to Jury Trial. Plaintiffs
has had a long, ongoing and high-level interaction with Defendant in
both the work effort and the monetization and collection effort.
Plaintiffs has been continually interactive with Defendant in order
to try to collect his money. Attacks and interference with Plaintiffs
has occurred as recently as this week by Defendants.
CASE
HISTORY OVERVIEW
10.
Defendants are among the largest financiers and/or beneficiaries
and/or command and control operatives for quid-pro-quo campaigns.
“While
most people may think that “hit-jobs” are the realm of Hollywood
movie plots, these kinds of corporate assassination attempts do take
place daily in big business and politics (ie:
“The Lois Lerner Attacks”, “AngelGate”, “The Steele
Dossier”, “The Silicon Valley No Poaching Class Action Lawsuit,
etc.) .
In
one instance, at
the request of the U.S. Government, Plaintiffs developed and patented
an energy technology that affected trillions of dollars of oil
company and technology billionaire insider profits. They didn’t
realize this at the time. Let me make this point clearly: ‘The
control of Trillions of dollars of energy industry profits were being
fought over by two groups and the Government plunked Plaintiffs down
in the middle of that war. Plaintiffs had no affiliation with either
group. They thought they were just accepting a challenge to help
their nation and were not aware that Defendants had infected the
entire process with crony corruption insider schemes.’
In
one instance; Plaintiffs
won commendation from the U.S. Congress in the Iraq War Bill. They
won federal patents. They won a Congressional grant. They won a huge
number of letters of acclaim and they won the wrath of a handful of
insane Silicon Valley billionaires who could not compete with
Plaintiffs technology. Defendants chose to “...CHEAT RATHER THAN
COMPETE!”
The attacks were carried out by California
State employees and U.S. Government officials who had received stock,
perks, and other quid-pro-quo payment from these billionaires.
Federal and state employees ran retribution campaigns against
applicants who competed with inside deals they had set up to line
their own pockets at taxpayer expense. These corrupt politicians
thought they could take over a promised “six trillion dollar
"Cleantech" industry that was being created to exploit new
insider exploitation opportunities around global warming and Middle
East disruption. After an epic number of Solyndra-esque failures, all
owned by the Department of Energy Executives and their campaign
financiers, the scheme fell apart. The non crony applicants suffered
the worst fates. As CBS News reporter Cheryl Atkisson has reported,
the willingness to engage in media "hitjobs" was only
exceeded by the audacity with which Department of Energy officials
employed such tactics.
Now,
in a number of notorious trials and email leaks, including the Hulk
Hogan lawsuit and the DNC and Panama Papers leaks, the public has
gotten to see the depths to which public officials are willing to
stoop to cheat rather than compete in the open market.
Department
of Energy employees and State of California employees engaged in the
following documented attacks against applicants who were competing
with their billionaire backers personal stock holdings. Plaintiffs
and the other applicants including Bright Automotive, Aptera, ZAP and
many more, suffered these attacks:
-
Social Security, SSI, SDI, Disability and other earned benefits were
stone-walled. Applications were “lost”. Files in the application
process “disappeared”. Lois Lerner hard drive “incidents”
took place.
-
Defendants had lawyers employed by Defendants contact Plaintiffs and
offer to “help” Plaintiffs when, in fact, those lawyers worked
for Defendants and were sent in as moles to try to delay the filing
of a case in order to try to run out the time bar.
-
State and federal employees played an endless game of Catch-22 by
arbitrarily determining that deadlines had passed that they, the
government officials, had stonewalled and obfuscated applications
for, in order to force these deadlines that they set, to appear to be
missed.
-
Some applicants found themselves strangely poisoned, not unlike the
Alexander Litvenko and Rodgers cases. Heavy metals and toxic
materials were found right after their work with the Department of
Energy weapons and energy facilities. Many wonder if these “targets”
were intentionally exposed to toxins in retribution for their
testimony. The federal MSDS documents clearly show that a number of
these people were exposed to deadly compounds and radiations without
being provided with proper HazMat suits which DOE officials knew were
required.
-
Applicants employers were called, and faxed, and ordered to fire
applicants from their places of employment, in the middle of the day,
with no notice, as a retribution tactic.
-
Applicants HR and employment records, on recruiting and hiring
databases, were embedded with negative keywords in order to prevent
them from gaining future employment.
-
One Gary D. Conley and one Rajeev Motwani, both whistle-blowers in
this matter, turned up dead under strange circumstances. They are not
alone in a series of bizarre deaths related to the DOE.
-
Disability and VA complaint hearings and benefits were frozen,
delayed, denied or subjected to lost records and "missing hard
drives" as in the Lois Lerner case.
-
Paypal and other on-line payments for on-line sales were delayed,
hidden, or re-directed in order to terminate income potential for
applicants who competed with DOE interests and holdings.
-
DNS redirection, website spoofing which sent applicants websites to
dead ends and other Internet activity manipulations were conducted.
-
Campaign finance dirty tricks contractors IN-Q-Tel, Think Progress,
Media Matters, Gawker Media, Syd Blumenthal, etc., were hired by DOE
Executives and their campaign financiers to attack applicants who
competed with DOE executives stocks and personal assets.
-
Covert DOE partner: Google, transferred large sums of cash to dirty
tricks contractors and then manually locked the media portion of the
attacks into the top lines of the top pages of all Google searches
globally, for years, with hidden embedded codes in the links and
web-pages which multiplied the attacks on applicants by many
magnitudes.
-
Honey-traps and moles from persons employed by Defendants or living
on, or with, Defendants were employed by the attackers. In this
tactic, people who covertly worked for the attackers were employed to
approach the “target” and offer business or sexual services in
order to spy on and misdirect the subject.
-
Mortgage and rental applications had red flags added to them in
databases to prevent the targets from getting homes or apartments.
-
McCarthy-Era "Black-lists" were created and employed
against applicants who competed with DOE executives and their
campaign financiers to prevent them from funding and future
employment. The Silicon Valley Cartel (AKA the “PayPal Mafia” or
the “Silicon Valley Mafia”) placed Plaintiffs on their
“Black-List”.
-
Targets were very carefully placed in a position of not being able to
get jobs, unemployment benefits, disability benefits or acquire any
possible sources of income. The retribution tactics were audacious,
overt..and quite illegal.
While
law enforcement, regulators and journalists are now clamping down on
each and every one of the attackers, one-by-one, the process is slow.
The victims have been forced to turn to the filing of lawsuits in
order to seek justice. The Mississippi Attorney General’s office,
who is prosecuting Cartel Member Google, advised Plaintiffs to pursue
their case in civil court while the Post Election FBI expands its
resources.”
While
Defendants have sought to mock Plaintiffs exposure of Defendants
organized crime operation by denigrating Plaintiffs data as
“Conspiracy Theory”, the articles located at:
1.)
http://www.zerohedge.com/news/2015-02-23/1967-he-cia-created-phrase-conspiracy-theorists-and-ways-attack-anyone-who-challenge
2.)
http://www.infowars.com/33-conspiracy-theories-that-turned-out-to-be-true-what-every-person-should-know/
3.)
How,
After This Crazy Year, Is ‘Conspiracy Theorist’ Still Being Used
As An Insult? http://www.newslogue.com/debate/152
Defendants,
since before 2001, have regularly approached Plaintiffs and each of
their companies in the internet, green building, aerospace, telecomm,
internet video, fuels, energy and other industries through various
agents and intermediaries with offers of pretension to “invest in”
or “partner with” Plaintiffs. In each and every case, Defendants
were on a fishing expedition to acquire Plaintiffs technologies, copy
those technologies and monetize those technologies under Defendants
own brands. When Plaintiffs continued to compete with Defendants
copy-cat technologies, Defendants operated hit-jobs against
Plaintiffs using DNC-controlled publications like Gawker, Gizmodo,
Defendants, Twitter, Facebook, TechDirt and other brand assassination
web media manipulation services.
As
an example: On or about May 3, 2005, one of the Plaintiffs received,
in recognition by the Congress of the United States in its Iraq War
Bill, a commendation and federal grant issued jointly by the Congress
of the United States and the United States Department of Energy in
the amount of approximately $2M including additional resources and
access to federal resources, as and for the development of domestic
energy technology designed to offset the anticipated failure of
Western access to the Middle East. That energy storage technology was
to be used in connection with the research and development of an
electric car to be used by the Department of Defense and the American
retail automotive market to create domestic jobs, enhance national
security and provide a domestic energy solution derived entirely from
domestic fuel sources. Plaintiffs had been invited into the program
by U.S. Senate and Agency officials with the request that Plaintiffs
“help their country in a time of need..”.
11. Beginning
in or about July of 2006, the Plaintiffs were contacted by, various
individuals representing venture capital officers and investors
employed by, and/or with, the Defendants. These individuals were
agents of the Defendant, Defendants, “RechargeIT” Project and
Defendants partner, Tesla Motors. They also represented the Kleiner
Perkins Group,
McKinsey Consulting, Deloitte Consulting, Khosla Ventures, In-Q-Tel
and associated parties funded by and reporting to the Defendants,
Alphabet and Defendants, and included Karim Faris, a Defendants
“partner.”.
12. These
investors feigned interest in emerging technology designed and
developed by the Plaintiffs and requested further information from
Plaintiffs. These investors informed the Plaintiffs that their
interest was in purchasing the emerging technology from the
Plaintiffs, investing in the venture, or structuring a form of joint
venture with him.
13 This
was not the truth.
14. The
truth was that the Plaintiffs were contacted in efforts on behalf of
the Defendants, so as to harvest confidential data and gather
business intelligence and trade secrets for the purpose of copying
the intellectual property and ideas of the Plaintiffs and
interdicting Plaintiffs efforts, which Defendants found to be
competitive, in a superior manner, to Defendants business. The
Defendants agents and investors were simply on fishing expeditions
while operating under the guise of proffered investment potential
when, indeed, the Defendants had a covert plan to “Cheat
rather than compete”. Historical
facts and public testimony have proven that Defendants had poor
skills at innovation and invention and that Defendants regularly
chose to steal technologies, from multiple parties, on an ongoing
basis, rather than invent their own technologies.
A simple search, by any one, on the other top non-Defendants search
engines for the phrase: “Defendants
steals ideas” brings up a
remarkable set of documentation of an ongoing pattern of theft by
Defendants. Plaintiffs have cooperated with federal investigators and
journalists who are also investigating Defendants and who have
legally shared some of the research, contained herein, with
Plaintiffs.
15. In
or about August 21 of 2009, just as the Plaintiffs were informed they
were about to be awarded federal funding in amount over $50 million,
the Plaintiffs fuel cell and electric vehicle project was suddenly
defunded and the same funds re-allocated to the Defendants, and to
their various related entities, shell companies and projects. In
other words, federal investigators state that Defendants bribed
public officials to take Plaintiffs money away from Plaintiffs and
give it Defendants using illegal manipulations of State and Federal
taxpayer funded Treasury accounts. Defendants then manipulated those
funds in stock market pump-and-dump schemes, off-shore tax evasion
and tax write-off schemes which U.S. Treasury investigators called
“unjust rewards at the expense of the taxpayer and the law..”
16. In
or about August of 2009, just as the Plaintiffs was informed they
were about to be awarded the first $60 million federal funding for
their energy storage technology and vehicle factory, this project was
similarly defunded and the same funds re-allocated to the Defendants,
and to their various related entities, shell companies and projects.
Defendants did accept and move money from Russian and Eastern Block
bank accounts and through Russian “businessmen” who are on
international police “watch-lists” and via a vast network of
cross-border shell corporations now exposed in the Swiss Leaks,
Panama Papers and other leaks.
17. These
funds, were ear-marked to be used by Defendants in a scheme designed
for mining and exploiting non-domestic energy resources, (which
eventually created a threat to U.S. domestic security by
destabilizing other nations) via investment bank stock market mining
commodities manipulations Defendants had arranged with their
investment bankers, including Goldman Sachs. Until 2016, Plaintiffs
were not aware that Defendants had placed their friends, employees
and business associates in charge of the public agencies responsible
for distributing these taxpayer funds. Indeed, the facts on public
record and in breaking investigations and investigative journalism
reports now prove that Defendants bought public policy influence with
cash and internet services, much of that influence buying now found
to have not been legally reported. The Defendants had their agents in
California State and U.S. Federal offices distribute those funds to
themselves while cutting out and sabotaging most all competing
applicants. The Defendants, own a managing interest and control the
source of these foreign mining resources and the supply chain for
them.
18. In
or about September 20, 2009, the Plaintiffs, were contacted by the
Government Accountability Office of the United States with a request
that they participate in an investigation being conducted by that
entity into the business practices of the Defendants, and their
associates, pursuant to anti-trust allegations and allegations of
corruption.
19. In
or about January 15, 2010, the Plaintiffs, did, in fact, provide live
testimony to, and receive information from, the Government
Accountability Office of the United States, the Department of
Justice, Robert Gibbs ( who immediately thereafter quit his job at
The White House) and their staff at the White House Press Office, the
Washington Post White House Correspondent and other investigators.
20.. The
testimony provided by the Plaintiffs, was, in fact, truthful and did,
in fact, tend to support the veracity of the anti-trust allegations
under investigation by the Government Accountability Office and other
federal and EU agencies.
21. In
or about June, 2010 and January, 2015 the Defendants,
Alphabet and Defendants,
exchanged funds with tabloid publications. As a result, those
tabloid publications coincidentally published the only two articles
and the only custom animated attack film including false, defamatory,
misleading and manufactured information belittling the Plaintiffs,
attacking
them
and discrediting their reputation as an inventor, project developer
and project director.
22. The Plaintiffs, contacted Defendants, with written requests that it
delete the false, defamatory,
misleading and manufactured information belittling the Plaintiffs,
attacking them
and discrediting their reputation as an inventor, project developer
and project director from its search engine servers.
23. The
Plaintiffs had numerous lawyers, specialists and others contacted
Defendants
requesting a cessation of Defendants
harassment and internet manipulation and removal of the rigged attack
links and hidden internet codes within the links on Defendants server
architecture.
24. At
all times pertinent, the Plaintiffs, including Defendants staff
members, Matt Cutts, Forest Timothy Hayes, Defendants legal staff and
others refused to assist and commonly replied: “...just
sue us..”, “...get a subpoena...”,
etc., even though the Plaintiffs, and the Plaintiffs representatives,
provided the Defendants with extensive volumes of third-party proof
clearly demonstrating that not a single statement in the attack links
promoted by Google
was accurate or even remotely true. Eric
Schmidt and David Drummond at Google, Inc were fully aware of, and
involved in, these activities and political machinations.
25. YouTube, published a custom produced and
targeted attack video that also included false, defamatory,
misleading and manufactured information belittling the Plaintiffs,
and discrediting their reputation as an inventor, project developer
and project director. The video is believed to have been produced by
Defendants as part of their anti-trust attack program against
Plaintiffs.
26. The Plaintiffs
contacted the Defendants, YouTube and Defendants, with many written
requests that they delete the false, defamatory, misleading and
manufactured information belittling the Plaintiffs, attacking
them and discrediting their reputation
as an inventor, project developer and project director from its
website. [See,
Sample responses of the Defendants Defendants and YouTube, attached
as Exhibits and incorporated herein by reference.]
27. All
of the written demands of the Plaintiffs were to no avail and none of
the Defendants,
agreed to edit, delete, retract or modify any of the false,
defamatory, misleading and manufactured information belittling the
Plaintiffs, attacking them
and discrediting their reputation as an inventor, product developer
and project director from their websites and digital internet and
media platforms and architecture.
28. The
Plaintiffs, whose multiple businesses ventures had already suffered
significant damage as the result of the online attacks of the
Defendants,
contacted renowned experts, and especially Search Engine Optimization
and forensic internet technology (IT) experts, to clear and clean the
internet of the false, defamatory, misleading and manufactured
information belittling the Plaintiffs, attacking
them and discrediting their reputation
as an inventor, product developer and project director from their
websites.
39. None
of the technology experts hired by the Plaintiffs,
at substantial expense, were successful in their attempts to clear,
manage or even modify the false, defamatory, misleading and
manufactured information belittling the Plaintiffs, attacking
him and discrediting their reputation as
an inventor, product developer and project director which only
Defendants, the controlling entity of the internet, refused to
remove. In fact, those experts were able to even more deeply confirm,
via technical forensic internet analysis and criminology technology
examination techniques that Defendants was rigging internet search
results for its own purposes and anti-trust goals.
30. All
efforts, including efforts to suppress or de-rank the results of a
name search for “Plaintiffs”
failed, and even though tests on other brands and names, for other
unrelated parties did achieve balance, the SEO and IT tests clearly
proved that Defendants was consciously, manually, maliciously and
intentionally rigging its search engine and adjacent results in order
to “mood manipulate” an attack on Plaintiffs.
31. In
fact, the experts and all of them, instead, informed the Plaintiffs,
that, not only had Defendants locked the false, defamatory,
misleading and manufactured information belittling the Plaintiffs,
attacking
them
and discrediting their reputation as an inventor, project developer
and project director into its search engine so that the information
could never be cleared, managed or even modified, Defendants had
assigned the false, defamatory, misleading and manufactured
information belittling the Plaintiffs, attacking
them
and discrediting their reputation as an inventor, project developer
and project director “PR8” algorithmic internet search engine
coding embedded in the internet information-set programmed into
Defendants internet architecture. [See,
Information received from one of over 30 IT, forensic network
investigators and forensic SEO test analysts, a true and correct copy
of which is attached hereto in the Exhibits.] Plaintiffs even went to
the effort of placing nearly a thousand forensic test servers around
the globe in order to monitor and metricize the manipulations of
search results of examples of the Plaintiffs name in comparison to
the manipulations for PR hype for Defendants financial partners, for
example: the occurrence of the phrase ”Elon Musk”, Defendants
business partner and beneficiary, over a five year period. The EU,
China, Russia, and numerous research groups (ie:
http://www.politico.com/magazine/story/2015/08/how-google-could-rig-the-2016-election-121548
By Robert Epstein ) have validated these forensic studies of
Defendants architect-ed character assassination and partner hype
system .
32. The
“PR8” codes are hidden codes within the Defendants software and
internet architecture which profess to state that a link is a “fact”
or is an authoritative factual document in Defendantsopinion. By
placing “PR8” codes in the defamatory links that Defendants was
manipulating about Plaintiffs, Defendants was seeking to tell the
world that the links pointed to “Facts” and not “Opinions”.
Defendants embedded many covert codes in their architecture which
marketing the material in the attack links and video as “facts”
according to Defendants.
33. The
“PR8” codes are a set of codes assigned and programmed into the
internet, by the Defendants to matters it designates as dependable
and true, thereby attributing primary status as the most significant
and important link to be viewed by online researchers regarding the
subject of their search.
Defendants was fully aware that all of the information in the attack
articles against Plaintiffs was false, Defendants promoted these
attacks as vindictive vendetta-like retribution against Plaintiffs.
34. At
all times pertinent from January 1, 2006, to in or about November 20,
2015, Defendants maintained it had no subjective control or input
into the rankings of links obtained by online researchers as the
result of a search on its search engines and that its search engine
algorithms and the functions of its media assets were entirely
“arbitrary” according to the owners and founders of Defendants.
35. In or about April 15, 2015, The European Union Commission took
direct aim at Defendants Inc., charging the Internet-search giant
with skewing and rigging search engine results in order to damage
those who competed with Defendants business and ideological
interests.
36. In
those proceedings, although Defendants continued to maintain that it
has no subjective control or input into the rankings of links
obtained by online researchers as the result of a search on its
search engines and that its staff had no ability to reset, target,
mood manipulate, arrange adjacent text or links, up-rank, down-rank
or otherwise engage in human input which would change algorithm,
search results, perceptions or subliminal perspectives of consumers,
voters, or any other class of users of the world wide web, also known
as The Internet, the court, in accord with evidence submitted,
determined that Defendants, does in fact have and does in fact
exercise, subjective control over the results of information revealed
by searches on its search engine.
37. As
a result of receiving this information, the Plaintiffs became
convinced of the strength and veracity of their original opinion that
the Defendants,
had, in fact posted the false, defamatory, misleading and
manufactured information belittling the Plaintiffs, attacking
them and discrediting Plaintiffs
reputation as inventor, project developer and project designer had
been intentionally designed, published, orchestrated and posted by
them in retaliation to the true testimony provided by the Plaintiffs,
to the Government Office of Accountability of the United States in
May of 2005, and to the Securities and Exchange Commission, The
Federal Bureau of Investigation, The United States Senate Ethics
Committee and other investigating parties, and had been disseminated
maliciously and intentionally by them in an effort to do damage to
their reputation and to their business prospects and to cause him
severe and irremediable emotional distress.
38. In
fact, the Plaintiffs, has suffered significant and irremediable
damage to their reputation and to their financial and business
interests. As a natural result of this damage, as intended by the
Defendants,
Gawker, Defendants and Youtube, the Plaintiffs has also suffered
severe and irremediable emotional distress.
39. To
this day, despite the age of the false, defamatory, misleading and
manufactured information belittling the Plaintiffs, attacking
him
and discrediting their reputation as an inventor, project developer
and project director, in the event any online researcher searches for
information regarding the Plaintiffs, the same information appears at
the top of any list of resulting links.
40. In
addition, due to their control of all major internet database
interfaces, Defendants
have helped to load negative information about Plaintiffs on every
major HR and employment database that Plaintiffs might be searched
on, thus denying Plaintiffs all reasonable rights to income around
the globe by linking every internal job, hiring, recruiter,
employment, consulting, contracting or other revenue engagement
opportunity for Plaintiffs back to false “red flag” or negative
false background data which is designed to prevent Plaintiffs from
future income in retribution for Plaintiffs assistance to federal
investigators.
41. It should be noted here that, in 2016, one of the
companies Plaintiffs was associated with, in cooperation with federal
investigations, won a federal anti-corruption lawsuit against the
U.S. Department of Energy in which a number of major public officials
were forced to resign under corruption charges, federal laws and new
legal precedents benefiting the public were created, and
Defendants and its associates and related entities found culpable of
corruption.
With
specific attention to Plaintiffs claims being “personal injury
tort...claims” under 28 U.S.C. § 157(b)(2)(B) and the
inapplicability of the California Anti-SLAPP law, Cal. Code. of Civ.
P. § 425.16, to Defendants potential claim objections, and state as
follows:
Procedural
Background
Some
of Plaintiffs are residents of the State of California and the
Companies are organized and domiciled in that jurisdiction.
Up
to this date, Defendants maliciously libeled Plaintiffs through its
employees Adrian Covert, and John Herman, A.J. Delaurio, as well as
through its pseudonymous authors, including: Adam Dachis, Adam
Weinstein, Adrian Covert, Adrien Chen, Alan Henry, Albert Burneko,
Alex Balk, Alexander Pareene, Alexandra Philippides, Allison Wentz,
Andrew Collins, Andrew Magary, Andrew Orin, Angelica Alzona, Anna
Merlan, Ariana Cohen, Ashley Feinberg, Ava Gyurina, Barry Petchesky,
Brendan I. Koerner, Brendan O’Connor, Brent Rose, Brian Hickey,
Camila Cabrer, Choire Sicha, Chris Mohney, Clover Hope, Daniel
Morgan, David Matthews, Diana Moskovitz, Eleanor Shechet, Elizabeth
Spiers, Elizabeth Starkey, Emily Gould, Emily Herzig, Emma
Carmichael, Erin Ryan, Ethan Sommer, Eyal Ebel, Gabrielle Bluestone,
Gabrielle Darbyshire, Georgina K. Faircloth, Gregory Howard, Hamilton
Nolan, Hannah Keyser, Hudson Hongo. Heather Deitrich, Hugo Schwyzer,
Hunter Slaton, Ian Fette, Irin Carmon, James J. Cooke, James King,
Jennifer Ouellette, Jesse Oxfeld, Jessica Cohen, Jesus Diaz, Jillian
Schulz, Joanna Rothkopf, John Cook, John Herrman, Jordan Sargent,
Joseph Keenan Trotter, Josh Stein, Julia Allison, Julianne E.
Shepherd, Justin Hyde, Kate Dries, Katharine Trendacosta, Katherine
Drummond, Kelly Stout, Kerrie Uthoff, Kevin Draper, Lacey Donohue,
Lucy Haller, Luke Malone, Madeleine Davies, Madeline Davis, Mario
Aguilar, Matt Hardigree, Matt Novak, Michael Ballaban, Michael Dobbs,
Michael Spinelli, Neal Ungerleider, Nicholas Aster, Nicholas Denton,
Omar Kardoudi, Pierre Omidyar, Owen Thomas, Patrick George, Patrick
Laffoon, Patrick Redford, Rich Juzwiak, Richard Blakely, Richard
Rushfield, Robert Finger, Robert Sorokanich, Rory Waltzer, Rosa
Golijan, Ryan Brown, Ryan Goldberg, Sam Faulkner Bidle, Sam Woolley,
Samar Kalaf, Sarah Ramey, Shannon Marie Donnelly, Shep McAllister,
Sophie Kleeman, Stephen Totilo, Tamar Winberg, Taryn Schweitzer,
Taylor McKnight, Thorin Klosowski, Tim Marchman, Timothy Burke, Tobey
Grumet Segal, Tom Ley, Tom Scocca, Veronica de Souza, Wes Siler,
William Haisley, William Turton and others writing under pseudonyms;
through false accusations of vile and disgusting acts, including
fraud and false invention.
Defendants
engaged in the defamation and economic attack campaign against
Plaintiffs on the pages of its “Gizmodo”, YouTube Channel,
Twitter Accounts, “Deadspin”, “Jalopnik” and other facades
under Defendants “Gawker.com” and “Univision” websites. These
libels also falsely accused Plaintiffs of lying in his published
patents, journals and works-of-art. All of these false and defamatory
accusations were published on multiple webpages operated and
controlled by Defendants and on social media platforms, such as
Twitter and Google, through accounts operated and controlled by
Defendants and/or its employees and agents.
Per
outside legal reviews from independent third party law
firms: “These libels, which were
also false light invasions of privacy, caused Plaintiffs considerable
reputational, emotional, and financial harm, and they so identified
him with Plaintiffs that it, too, was a victim of Defendants’s
tortious conduct and suffered reputational and financial harm as
well.
Despite
being given months to take responsibility for its misdeeds,
Defendants failed to retract its libel, apologize, or take any other
remedial steps. As set forth the California action, Defendants’s
modus operandi was to make extreme and outrageous statements, without
regard for the truth, and without reasonable inquiry, in order to
attract readers and generate revenue. As this Court is well aware,
that business model ultimately imploded, resulting in multiple
lawsuits and a substantial judgment against it.
Among
those who decided that Defendants should not be permitted to get away
with defamation for profit, Claimants reluctantly took the step to
seek justice, risking that Defendants and its functionaries would
employ the “Streisand effect” to republish the false accusations
previously made in reporting on the suit itself.
California
, Case No. (“In Pro Per litigation”) asserting claims for
defamation and false light invasion of privacy arising from the
aforesaid false and defamatory statements. Under California law,
corporations that appear in propia persona may proceed with their
right to sue upon the appearance of counsel for the corporation,
which is without prejudice to a defendant. See CLD Constr., Inc. v.
City of San Ramon, 120 Cal. App. 4th 1141, 1152 (1 st Dist. Ct. App.
2004). See Cal. Code of Civ. P. § 583.210(a). Claimants, without the
assistance of counsel, diligently appeared or attempted to appear at
all hearings as required.
Analysis
Defendant
is a media network not unlike CNN. Those who accuse CNN and other
mainstream media outlets of “fake news” will probably revel in a
recent decision by a federal judge in Atlanta, Georgia. While Judge
Orinda Evans didn’t all out declare that CNN was peddling in
falsehoods, she did take aim at the network in an initial judgment in
favor of a former hospital CEO who sued CNN accusing them of
purposely skewing statistics to reflect poorly on a West Palm Beach
hospital. Judge Evans didn’t mince words in her 18-page order
allowing the case to move forward, and dismissing CNN’s attempt to
get it thrown out of court.
Davide
Carbone, former CEO of St. Mary’s Medical Center in West Palm
Beach, filed a defamation lawsuit against CNN after they aired what
he claims were a “series of false and defamatory news reports”
regarding the infant mortality rate at the hospital. CNN’s report
said the mortality rate was three times the national average.
However, Mr. Carbone contends that CNN “intentionally”
manipulated statistics to bolster their report. He also claims that
CNN purposely ignored information that would look favorable to the
hospital in order to sensationalize the story.
“In
our case, we contended that CNN essentially made up its own standard
in order to conduct an ‘apples to oranges’ comparison to support
its false assertion that St. Mary’s mortality rate was 3 times
higher than the national average. Accordingly, the case against CNN
certainly fits the description of media-created ‘Fake News.'”
said Carbone’s attorney L. Lin Wood, in a statement to LawNewz.com.
Wood
says that as a result of CNN’s story Carbone lost his job and it
became extremely difficult for him to find new employment in the
field of hospital administration.
“False
and defamatory accusations against real people have serious
consequences. Neither St. Mary’s or Mr. Carbone did anything to
deserve being the objects of the heinous accusation that they harmed
or put babies and young children at risk for profit,” Wood said.
On
Wednesday, Federal District Judge Orinda Evans ruled that the case
could move forward, even ruling that she found that CNN may have
acted with “actual malice” with the report — a standard
necessary to prove a defamation claim.
“The
Court finds these allegations sufficient to establish that CNN was
acting recklessly with regard to the accuracy of its report, i.e.,
with ‘actual malice,” the order reads. CNN had tried to get the
case dismissed.
Nothing
in the legislative history indicates that defamation or invasion of
privacy claims are not “personal injury torts”. In fact, all of
the history provided by Defendants would preclude their narrow
interpretation when Congress was expressly acting to ensure the
district court would hear such claims. Similarly, although some
courts have permitted the California Anti-SLAPP law to be heard in
cases involving diversity jurisdiction, it does not follow that the
procedural mechanisms can apply in an objection to claim proceeding.
Defendants
also neglects to mention its ongoing, post-petition libel. See, e.g.,
Trotter, J.K., “What did Internet Troll Chuck Johnson Know about
Peter Thiel’s Secret War on Gawker?” (Jun. 17, 2016) (reiterating
false accusation of misreporting a story about Sen. Menendez)
available at
<http://gawker.com/what-did-internet-troll-chuck-johnson-
know-about-peter-1782110939>.
At
that hearing and in response to objections to claims, other claimants
also argued that the district court was required to hear defamation
claims as personal injury claims under 28 U.S.C. § 157(b)(2)(B).
Personal
Injuries are More Than Just Bodily Injuries
Although
Defendants mentions the reorganization of authority between the
bankruptcy courts and the district courts in the wake of Northern
Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50
(1982), it fails to explain what motivated the Marathon decision.
The
concern in that case was the extent to which Congress could empower
Article I courts. The Supreme Court specifically observed that
“Congress cannot ‘withdraw from [Art. III] judicial cognizance
any matter which, from its nature, is the subject of a suit at the
common law, or in equity, or admiralty.’” 458 U.S. at 69 n.23,
quoting Murray’s Lessee v. Hoboken Land & Improvement Co., 18
How. 272, 284 (1856). Such suits involved “private rights”, as
opposed to “public rights” created legislatively.
During
debate over the Bankruptcy Amendments and Federal Judgeship Act of
1983, Pub. L. 98-353, Senator Robert Dole specifically noted: This
title establishes an article I bankruptcy court, with judges
appointed for limited terms, to handle the routine business of
bankruptcy claims based upon State law, which under Marathon will
require the attention of article III judges, will be referred to the
district courts except where the parties consent to bankruptcy court
jurisdiction. One of those areas reserved for attention of the
district courts will be personal injury claims, which are exempted
from the definition of core proceeding under the bill. 130 Cong. Rec.
S20083 (daily ed. June 29, 1984).
However,
none of the legislative history, including that cited by Defendants,
specifically addresses whether defamation claims are “personal
injury” claims. 5i.
Slander
and Libel are Common-Law Personal Injury Claims
In
determining the meaning of “personal injury”, this Court must
look to the common law understanding. Over a century ago, in
determining whether a slander was among the “willful and malicious
injuries to the person or property of another” not discharged in
bankruptcy, the Kentucky Court of Appeals found that a slander is a
“personal injury—that is, an injury to his person”, and further
explained its holding in the context that “[t]he act of Congress
must be 5
There
is no inconsistency with including defamation claims among the
“narrow range of cases” that are personal injury cases raised by
Rep. Kastenmeir. 130 Cong. Rec. H7491. As Defendants notes, the sole
example was an automobile accident claim; by Defendants’s logic,
all medical malpractice claims would be excluded. None of the
remainder of the legislative history cited provides any further
insight.
It is understood
as having used the words in the section quoted with reference to
their common-law acceptation. Sutherland on Statutory Construction,
289.” Sanderson v. Hunt, 116 Ky. 435, 438, 76 S.W. 179, 179 (1903);
accord McDonald v. Brown, 23 R.I. 546, 51 A. 213 (1902); Nat’l Sur.
Co. v. Medlock, 2 Ga. App. 665, 58 S.E. 1131 (1907). The Sanderson
decision was adopted by the Sixth Circuit Court of Appeals, similarly
finding a libel to be a “personal injury” under the common law
such that it would not be dischargeable under the bankruptcy act.
Thompson v. Judy, 169 F. 553 (6th Cir. 1909); 6 see also Parker v.
Brattan, 120 Md. 428, 434-35, 87 A. 756, 758 (1913). This
understanding was also adopted by at least one district court in the
Second Circuit. See In re Bernard, 278 F.734, 735 (E.D.N.Y. 1921).
14.
Congress,
in drafting Section 157(b)(2)(B) must, therefore, be understood as
having used the words “personal injury” with reference to its
common-law acceptation. From the earliest cases, claims sounding in
defamation have been deemed a “personal injury.” Indeed, this
Court recognized as much nearly twenty years ago when it wrote in In
re Boyer, 93 B.R. 313, 317 (Bankr. N.D.N.Y. 1988), in the context of
a Section 1983 & 1985 claim: The term “personal injury tort”
embraces a broad category of private or civil wrongs or injuries for
which a court provides a remedy in the form of an action for damages,
and includes damage to an individual’s person and any invasion of
personal rights, such as libel, slander and mental suffering, BLACK’S
LAW DICTIONARY 707, 1335 (5th ed. 1979).
Accord
Soukup v. Employers’ Liab. Assur. Corp., 341 Mo. 614, 625, 108
S.W.2d 86, 90 (1937) citing 3 Words & Phrases, Fourth Series, p.
90 (workers’ compensation case observing that “The words
‘personal injuries’ as defined by lexicographers, jurists and
textwriters and by common acceptance, denote an injury either to the
physical body of a person or to the reputation of a person, or to
both.”)
Simply
put, “[t]here is no firm basis to support the proposition that
libel and slander were considered to be other than personal injuries
at common law.” McNeill v. Tarumianz, 138 F. Supp. 713, 717 (D.
Del. 1956). In support thereof, the Delaware district court quoted 1
Blackstone 6
The
Thompson decision was generally met with approval by the Second
Circuit Court of Appeals in In re Conroy, 237 F. 817 (2d Cir. 1916).
Commentaries
129, which classified rights of “personal security” to consist
“in a person’s legal and uninterrupted enjoyment of his life, his
limbs, his body, his health and his reputation.” Id. at 716
(further noting that the courts consider “rights of personal
security” as synonymous with “personal injury”). 716.
The
Supreme Court of Pennsylvania, in 1825, laid down the following
common law history in the context of a claim involving a decedent:
That a personal action dies with the person is an ancient and
uncontested maxim. But the term “personal action,” requires
explanation. In a large sense, all actions except those for the
recovery of real property, may be called personal. This definition
would include contracts for the payment of money, which never were
supposed to die with the person. The maxim must therefore be taken in
a more restricted
meaning. It extends to all wrongs attended with actual force, whether
they affect person or property; and to all injuries to the person
only, though without force. Thus stood originally the common law, in
which an alteration was made by the stat. 4. Ed. 3. c. 7, which gave
an action to an executor for an injury done to the personal property
of his testator in his life, which was extended to the executor of an
executor by stat. 25, Ed. 3. And by the stat. 31, Ed. 3 c. 11,
administrators have the same remedy as executors. These statutes
received a liberal construction from the judges, but they do not
extend to injuries to the person of the deceased, nor to his
freehold. So that no action now lies, by an executor or administrator
for an assault and battery of the deceased, or trespass vi et armis,
on his land, or for slander; because it is merely a personal injury.
Lattimore
v. Simmons, 13 Serg. & Rawle 183, 184-85 (Pa. 1825) (emphasis
added). 17.
The
Supreme Court of Wisconsin, in 1874, expounded upon this concept in a
matter involving state bankruptcy law. It observed “A libel or a
slander might deprive a man of 7
The
Georgia Supreme Court in Johnson v. Bradstreet Co., 87 Ga. 79, 81-82,
13 S.E. 250, 251 (1891) expounded upon this understanding: At common
law, absolute personal rights were divided into personal security,
personal liberty, and private property. The right of personal
security was subdivided into protection to life, limb, body, health,
and reputation. 3 Blackst. Com. 119. If the right to personal
security includes reputation, then reputation is a part of the
person, and an injury to the reputation is an injury to the person.
Under the head of “security in person,” Cooley includes the right
to life, immunity from attacks and injuries, and to reputation.
Cooley on Torts (2d ed.), 23, 24. See, also, Pollock on the Law of
Torts, *7. Bouvier classes among absolute injuries to the person,
batteries, injuries to health, slander, libel, and malicious
prosecutions. 1 Bouv. L. Dic. (6th
ed.) 636. “Person” is a broad term, and legally includes, not
only the physical body and members, but also every bodily sense and
personal attribute, among which is the reputation a man has acquired.
Reputation is a sort of right to enjoy the good opinion of others,
and is capable of growth and real existence, as an arm or a leg. If
it is not to be classed as a personal right, where does it belong? No
provision has been made for any middle class of injuries between
those to person and those to property, and the great body of wrongs
arrange themselves under the one head or the other. Whether viewed
from the artificial arrangement of law writers, or the standpoint of
common sense, an injury to reputation is an injury to person.
Defendants sought to end Plaintiffs employment,
destroy his credit, ruin his business, and greatly impair his estate;
yet an action therefor would be an action for a personal injury, the
effect of the wrong on the estate of the injured party being merely
incidental.” Noonan v. Orton, 34 Wis. 259, 263 (1874). That same
year, the Supreme Court of Virginia recognized that an “action of
slander” did “involve a claim for personal damages” and, as
such, did not pass to the assignee in bankruptcy. Dillard v. Collins,
66 Va. 343, 345-47 (1874). 18.
Similarly,
a claim by a wife for slander was deemed a “personal injury”
claim such that, under the law at that time, her husband was required
to join in the suit. See, e.g., Smalley v. Anderson, 18 Ky. 56 (1825)
(in a claim for “personal injury”, husband was required to join
suit with wife in claim for slander accusing her of adultery); accord
Gibson v. Gibson, 43 Wis. 23, 26- 27 (1877); Leonard v. Pope, 27
Mich. 145, 146 (1873) (a claim for slander is “a personal grievance
or cause of action”). The U.S. Court of Appeals for the Fifth
Circuit agreed that “libel is a personal injury” and that “[a]t
common law, libel and slander were classified as injuries to the
person, or personal injuries. 3 Blackstone, 119; Cooley on Torts (2d
Ed.) 23, 24; Bouvier, Law Dictionary, verbo ‘Injury.’”
Times-Democrat Pub. Co. v. Mozee, 136 F. 761, 763 (5th Cir. 1905).
Although the law now recognizes spousal independence, the nature of
the action has not changed. 19.The
principle that slander and libel are personal injuries is one that
was generally recognized, and, as seen above, it tended to be
addressed in cases involving decedents. Blackstone, in his
Commentaries (vol. 3, p. 302), stated the rule: “In actions merely
personal, arising ex delicto, for wrongs actually done or committed
by the defendant, as trespass, battery, and slander, the rule is that
actio personalis moritur cum persona; and it shall never be revived
either by or against the executors or other representatives.” Thus,
by statute, states such as Illinois, in overriding the common law to
permit actions to survive, expressly carved out slander and libel as
being personal injuries that would not survive. See Holton v. Daly,
106 Ill. 131, 139 (1882) quoting Ill. Rev. Stat. 1874, p. 126
(“actions to recover damages for an injury to the person, except
slander and libel, … shall also survive.”).
In
contrast, a claim for wrongful death was not recognized at common law
precisely because personal injury actions did not survive under the
action personalis moritur cum persona universal maxim.
Statutes
were, therefore, enacted to permit claims for wrongful death
“compensatory of the damages sustained by the heirs or next of kin,
who had, or are supposed to have had, a pecuniary interest in the
life of the intestate.” Burns v. Grand R. & I. R. Co., 113 Ind.
169, 171, 15 N.E. 230, 231 (1888). Specifically, “[t]hese statutes,
while they do not in terms revive the common law right of action for
personal injury, nor make it survive the death of the injured person,
create a new right in favor and for the benefit of the next of kin or
heirs of the person whose death has been wrongfully caused.” Id.
21.
Defendants
mistakenly believes that the addition of “wrongful death” implies
that because only such a claim can arise from the death of a natural
person’s body, the term “personal injury” must be construed
similarly in context. Defendants misunderstands that a wrongful death
claim is not a common law personal injury claim; thus it had to be
specifically added. The addition of wrongful death claims does not,
however, modify the common law understanding of “personal injury,”
which included libel and slander. 22.
The
legislative history, therefore, shows that claims for wrongful death
were added because they were not recognized at common law to be a
“personal injury.” Libel and slander, on the other hand, were.
The legislative record is otherwise silent as to the specific torts
that made up a “personal injury” claim and therefore should be
understood to include all such claims at common law, including
slander and libel. Although Defendants worries that claims for
emotional damages will “create an exception that swallows the rule”
(Defendants’s Brief at 10), it creates a straw- man argument,
improperly lumping in claims that are not common law “personal
injury” claims that happen to provide for emotional distress
damages. Those claims are different, statutory causes of action; the
only statutory claim included in Section 157(b)(2)(B) is the wrongful
death claim.
Thus,
when Congress enacted Section 157(b)(2)(B), it necessarily imported
the common law meaning of “personal injury” and, therefore, libel
and slander claims. 8 ii. Plaintiffs is Entitled to Invoke Section
157(b)(2)(B) 23. Defendantss seek to treat Plaintiffs, as a corporate
person, differently under Section 157(b)(2)(B) than Plaintiffs. There
is no reason for this. As libel is a “personal injury” tort,
there is no basis to suggest a corporate person should be treated any
differently than a natural person. Simply because it cannot suffer a
battery does not mean it is foreclosed from all personal injury
claims. As explained by the Georgia Supreme Court in Johnson v.
Bradstreet Co., 87 Ga. 79, 81-82, 13 S.E. 250, 251 (1891), an “injury
to reputation is an injury to person.” Although a corporation may
be unable to suffer a physical, bodily injury, it can suffer an
injury to reputation. 24.
Defendants’s
citations are inapposite. The U.S. Supreme Court has not said that a
corporation cannot suffer a personal injury; rather, N.P.R. Co. v.
Whalen, 149 U.S. 157, 162-163 (1893), address actions in nuisance,
which can only either affect life, health, senses, or property, and
not reputation. Defendants’s quote from Roemer v. Commissioner of
Internal Revenue, 176 F.3d 693, 699 n. 4 (9th Cir. 1983), was a
matter of pure dicta; the Ninth Circuit had no occasion to pass upon
whether a corporation could, in fact, suffer a personal injury.
Subsequent cases, such as In re Lost Peninsula Marina Dev. Co., LLC,
2010 U.S. Dist. LEXIS 78532 (E.D. Mich. 2010), wrongly rely upon such
dicta. In fact, the Ninth Circuit’s entire basis was DiGiorgio
Fruit Corp. v. American Federation of Labor, which does not say a
corporation cannot suffer a “personal injury”;it merely says that
“a corporation has no reputation in the personal sense”, yet “it
has a business reputation”. 215 Cal.App.2d 560, 571, 30 Cal.Rptr.
350, 356 (1963). The Second Circuit has specifically refrained from
finding a dichotomy between a business reputation and the reputation
8
Similarly,
as invasions of personal rights, Claimants’ false light invasion of
privacy claims are “personal injury” claims. See Mercado v. Fuchs
(In re Fuchs), No. 05-36028-BJH-7, 2006 Bankr. LEXIS 4543, at *6-7
(U.S. Bankr. N.D. Tex. Jan. 26, 2006) (finding invasion of privacy
claim to be a “personal injury” under Section 157(b)(2)(B)); see
also Bernstein v. Nat’l Broad. Co., 129 F. Supp. 817, 825 (D.D.C.
1955) (“The tort of invasion of privacy being a personal
injury....”) of
a natural person. See Agar v. Commissioner, 290 F.2d 283, 294 (2d
Cir. 1961). However, the Eleventh Circuit specifically answered in
the affirmative the question “[i]s damage to one’s business
reputation a personal injury?” Fabry v. Commissioner, 223 F.3d
1261, 1270 (11th Cir. 2000).
In
fact, the purpose of Section 157(b)(2)(B) was to properly address
claims that should be heard by an Article III court. As noted above,
such was prompted by the Marathon decision, a case where the sole
litigants were corporate persons. Where a natural person would have a
right to have a matter heard by an Article III court but a corporate
person does not, such denial of equal protection would be unlawfully
violative of due process under the Fifth Amendment. See Bolling v.
Sharpe, 347 U.S. 497 (1954) (holding equal protection claims
implicate due process).
26.
Even if corporate persons could be treated differently from natural
persons for claims arising from the same transaction, it would be
improper to abide Defendants’s suggestion to have the Bankruptcy
Court determine the corporate claim first, in order to then argue a
preclusive effect against the natural person. This attempted end-run
around a specifically mandated statutory provision, grounded in
Constitutional rights, should not be condoned. This is not what the
Supreme Court was considering in Katchen v. Landy, 382 U.S. 313
(1966); in Katchen, the determination involved a single party who
submitted to equity jurisdiction. Plaintiffs has not taken action to
deprive himself of his rights. Where Congress has acted to provide
for access to Article III courts, it would run afoul of the intent of
the law to make that access ephemeral.
27.
Although Defendants at least has the decency to acknowledge that is
its purpose, it would set an unconscionable precedent. Many natural
persons conduct business through or have some relationship with a
corporate person such that harms giving rise to their individual
personal injury claims would also harm the corporate person. As a
result, Defendantsswho would seek to deprive such natural persons of
their right to be heard by an Article III court could simply
involuntarily join or otherwise implead the related corporate person,
have that matter heard first, and then attempt to preclude the
natural person’s claim on that basis.
The
California Anti-SLAPP Law Does Not Apply
28.
Defendants’s motion is not about allowance of claims; it is about
whether a state law procedural mechanism is to apply in a
non-adversarial, contested matter. Although some federal courts
permit the application of the California Anti-SLAPP law, Cal. Code
Civ. P. § 425.16, in civil cases arising from diversity
jurisdiction, it has never been found applicable to a contested claim
proceeding in bankruptcy court. The differences between the Federal
Rules of Civil Procedure and the Federal Rules of Bankruptcy
Procedure demonstrate that it makes little sense to do take such an
unprecedented step.
29.
The very nature and purpose of a proof of claim differs from a
traditional complaint, rendering the California law impracticable. As
this Court is aware: Correctly filed proof of claims “constitute
prima facie evidence of the validity and amount of the claim . . . .
To overcome this prima facie evidence, an objecting party must come
forth with evidence which, if believed, would refute at least one of
the allegations essential to the claim.” Sherman v. Novak (In re
Reilly), 245 B.R. 768, 773 (2d Cir. B.A.P. 2000). By producing
“evidence equal in force to the prima facie case,” an objector
can negate a claim's presumptive legal validity, thereby shifting
the burden back to the claimant to “prove by a preponderance of the
evidence that under applicable law the claim should be allowed.”
Creamer v. Motors Liquidation Co. GUC Trust (In re Motors Liquidation
Co.), No. 12 Civ. 6074 (RJS), 2013 U.S. Dist. LEXIS 143957, 2013 WL
5549643, at *3 (S.D.N.Y. Sept. 26, 2013) (internal quotation marks
omitted). If the objector does not “introduce[] evidence as to the
invalidity of the claim or the excessiveness of its amount, the
claimant need offer no further proof of the merits of the claim.” 4
Collier on Bankruptcy ¶ 502.02 (Alan N. Resnick& Henry J. Sommer
eds., 16th
ed. 2014). In re Residential Capital, LLC, 519 B.R. 890, 907 (Bankr.
S.D.N.Y. 2014). 30. In contrast, under Cal. Code Civ. P. §
425.16(b)(1): A cause of action against a person arising from any act
of that person in furtherance of the person’s right of petition or
free speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.
31.
California courts have established a two-step process: first, the
defendant must establish the action arose from protected speech or
petitioning activity, then “then the burden shifts to the plaintiff
to establish a probability that the plaintiff will prevail on the
claim, i.e., make a prima facie showing of facts which would, if
proved at trial, support a judgment in plaintiff's favor.
In
making its determination, the trial court is required to consider the
pleadings and the supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” Dowling v.
Zimmerman, 85 Cal. App. 4th 1400, 1417, 103 Cal. Rptr. 2d 174, 188
(2001) (internal citations and quotation marks omitted).
32.
Further, [t]o establish a probability of prevailing, the plaintiff
must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is
credited. For purposes of this inquiry, the trial court considers the
pleadings and evidentiary submissions of both the plaintiff and the
defendant (§ 425.16, subd. (b)(2)); though the court does not weigh
the credibility or comparative probative strength of competing
evidence, it should grant the motion if, as a matter of law, the
defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim. In making
this assessment it is the court’s responsibility to accept as true
the evidence favorable to the plaintiff. The plaintiff need only
establish that his or her claim has minimal merit to avoid being
stricken as a SLAPP.
Soukup
v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 291, 46 Cal. Rptr.
3D 638, 662-63, 139 P.3d 30, 50 (2006) (internal citations and
quotation marks omitted).
33.
This process makes little sense in a non-adversarial, claims
objection proceeding. First, as noted, Claimants’ proofs of claim
already enjoy a presumption of prima facie validity under Fed. R.
Bankr. P. 3001(f) and Claimants’ submissions must be accepted as
true. Thus, as a matter of law, Claimants will always prevail on a
California anti-SLAPP motion, having the “minimal merit” which
would support allowance of the claim. Second, once a party objects to
a proof of claim and introduces evidence of invalidity, a claimant
must prove his claim by a preponderance of the evidence, not merely a
probability of prevailing. Defendants would require a bankruptcy
court to make an unnecessary finding that a disallowed claim
nevertheless had a probability of prevailing. The burden shifting
framework does not work in a contested claim proceeding, even if it
might work for an adversarial matter or in a case under the Rules of
Civil Procedure.
Notably,
even in diversity cases, the entirety of the California Anti-SLAPP
law is not imported in its entirety. Unlike in California state
courts, a denial of an Anti-SLAPP motion is not an appealable
interlocutory order in Federal courts. See Hyan v. Hummer, 825 F.3d
1043 (9th Cir. 2016). Federal courts do not apply the timing
requirements set forth in Section 425.16(f), which directly collides
with the timeline allowed under Fed. R. Civ. P. 56. See Sarver v.
Chartier, 813 F.3d 891 (9th Cir. 2016). Federal courts do not stay
discovery upon the filing of an Anti- SLAPP motion, as otherwise
directed by Section 425.16(g). See Metabolife Int’l, Inc. v.
Wornick, 264 F.3d 832, 845 (9th Cir. 2001).
35.
Even the very idea of the burden-shifting framework has been
questioned by the Ninth Circuit. See Englert v. MacDonell, 551 F.3d
1099, 1102 (9th Cir. 2009) (reserving the issue with respect to a
parallel Oregon statute). The D.C. Circuit directly confronted this
issue in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1335
(2015). In Abbas, the D.C. Circuit directly rejected the idea that an
analogous burden-shifting framework created a substantive,
quasi-immunity from suit, because the law collided with Rules 12 and
56 as to how a showing is to be made, rendering it inapplicable
pursuant to Shady Grove Orthopedic Associates, P.A. v. Allstate
Insurance Co., 559 U.S. 393, 398-99, 130 S. Ct. 1431 (2010). See 783
F.3d at 1335.
36.
Defendants attempts to distinguish Abbas by highlighting the
non-mandatory nature of applying Rules 12(b)(6) and 56, suggesting
that collision is avoided if those rules are not applied.
Defendants’s Brief at 15-16. First, it bears observing that
Defendants, in its objections to the claims, did move to apply Rule
12(b)(6), rending its own argument moot. Thus, where § 425.16 does
conflict with Rule 7012, its application would directly collide with
this Court’s authority to “direct that one or more of the other
rules in Part VII shall apply.” Fed. R. Bankr. P. 9014(c). Second,
although Defendants argues that the Court can “otherwise direct”
Rule 7056 not apply per Rule 9014, it provides no reason why the
normal rules should be avoided here; Claimants located but one case
where a bankruptcy court made such direction to permit the parties to
“flesh out the record”, there on a motion to employ, not a claims
objection. See In re Rusty Jones, Inc., 109 B.R. 838, 845 (Bankr.
N.D. Ill. 1989). Fleshing out a record would similarly be reason not
to apply § 425.16 where
Defendants
has otherwise obtained a briefing schedule in order for it to take
discovery. See Dkt. No. 703. Essentially, the only reason to
“otherwise direct” Rule 7056 not apply is because it collides
with § 425.16. Third, to not apply certain rules simply because
Claimants are California citizens would deny such citizens equal
protection in a manner to be so violative of due process that it is
an offense to the Fifth Amendment. See Shapiro v. Thompson, 394 U.S.
618, 642, 89 S. Ct. 1322, 1335 (1969).
37.
Moreover, it makes little sense to import the California procedure
where Fed. R. Bankr. P. 3007 permits parties in interest other than
the Defendants to object to a claim. It could well be impracticable
where a Defendants does not believe protected speech was involved,
but a third party does. It is not equitable for one class of objector
(a Defendants) to potentially enjoy the benefits of the California
procedure (attorneys’ fees) and not others (other creditors).
38.
Contrary to the assertion of Defendants, the procedures of § 425.16
are not “bound up” with the law of libel, even to the extent
Justice Stevens’s concurrence in Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 599 U.S. 393, 419-410 (2010), is
controlling. First, Defendants fails to identify what the substantive
law is that Section 425.16 is bound up with. The California
Anti-SLAPP law is not limited to the law of libel; it also applies to
other state law claims. See, e.g., State Farm Mut. Auto. Ins. Co. v.
Lee, 193 Cal. App. 4th 34, 122 Cal. Rptr. 3D 183 (2011) (application
to abuse of process and unfair business practice claims); Jarrow
Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 3 Cal. Rptr. 3d 636, 74
P.3d 737 (2003) (application to malicious prosecution claims);
Fremont Reorganizing Corp. v. Faigin, 198 Cal. App. 4th 1153, 131
Cal. Rptr. 3d 478 (2011) (application to breach of confidence, breach
of fiduciary duty, equitable indemnity, and violation of Cal. R.
Prof. Conduct 3-310(C)); Peregrine Funding, Inc. v. Sheppard Mullin
Richter & Hampton LLP, 133 Cal.App.4th 658, 674–675, 35 Cal.
Rptr. 3D 31 (2005) (application to legal malpractice and breach of
fiduciary duty claims). Section 425.16 is not analogous to a bond
posting requirement, statute of limitations, evidentiary rule, or
verdict capping identified by Justice Stevens, all of which have a
substantive quality. See Shady Grove, 599 U.S. at 419-410. Here,
Defendants seeks to employ a burden shifting framework that could
appear at but one discrete stage of a diversity case and has no role
in a claim objection; this is not even, then, an example of a
“state-imposed burden[ ] of proof”, which would go to the
ultimate outcome. Id. at 410 n. 4. There is no question that
Claimants have the ultimate burden of proof, with or without the
Anti-SLAPP motion. Thus, as it is not sufficiently bound up with any
particular substantive law, it is not applicable in this matter. 9
39.
Claims in a bankruptcy case are distinguishable from adversarial
matters, especially those brought in district court on the basis of
diversity jurisdiction. Claimants did not choose this forum;
Defendants did by filing its petition. In doing so, it effectively
stripped Claimants of their usual litigation rights. As Defendants
says, “what is good for the goose is good for the gander”.
Defendants’s Brief at 14. It would be inequitable to allow
Defendants the benefit of a normal civil case, such as the use of
Section 425.16, while simultaneously denying Claimants the benefits
of such a case, by having deprived them of their chosen forum. C.
This
Matter Should Be Heard by the District Court AND A GRAND JURY
AND Presented Before The U.S. Congress
40.
Moving forward, this matter should proceed before the district court.
Defendants incorrectly asserts that Exec. Bens. Ins. Agency v.
Arkison, 134 S. Ct. 2165 (2014) commands that this Court first
determine the case; rather, it held that having summary judgment
first heard by the bankruptcy court, to be followed by de novo review
by the district court, was permissible under 28 U.S.C. § 157(c). See
Messer v. Magee (In re FKF 3, LLC), No. 13-CV-3601 (KMK), 2016 U.S.
Dist. LEXIS 117258, at *52 n.11 (S.D.N.Y. Aug. 30, 2016). Section
157(c)(1) says that a bankruptcy court “may” hear a non-core
proceeding, not that it must.
41.
The standard as to whether the bankruptcy court should hear the
non-core proceeding in the first instance under Section 157(c)(1) is
not well articulated. Guidance from cases under Section 157(d),
regarding withdrawal, however, may be informative. In such cases, the
considerations are “(1) whether the case is likely to reach trial;
(2) whether protracted discovery 9
Although
Defendants noted the availability of fees under § 425.16, such
provision is secondary to the burden-shifting framework. If the
Bankruptcy Court does not perform the mechanism to determine whether
or not a probability of success occurs, it would never reach the
issue of fees. Section 425.16 does not create a substantive right to
fees in all libel cases; only those cases where a defendant is
successful on a motion to strike. with court oversight will be
required; and (3) whether the bankruptcy court has familiarity with
the issues presented.” In re Times Circle East, Inc., 1995 U.S.
Dist. LEXIS 11642, 1995 WL 489551, at *3 (S.D.N.Y. Aug. 15, 1995).
All three factors warrant the matter being heard by the District
Court in the first instance.
42.
This case is likely to reach trial. Claimants have properly asserted
multiple false and defamatory statements as libelous. Because of the
defenses asserted by Defendants, it is more probable than not that
multiple statements will require factual determinations beyond
otherwise being readily apparent on their face. Defendants has
asserted a defense of lack of actual malice; such will require
probing and evidence into its research, editorial, and publication
process. Defendants has asserted a defense under Section 230 of the
Communications Decency Act; such will require probing and evidence
into its business practices, sources, and publication processes.
Neither do Claimants have any confidence that this matter will reach
settlement; as noted above, even after having filed a bankruptcy
petition arising from publication malfeasance, Defendants continued
to defame Claimants.
43.
Moreover, this non-core proceeding will likely require a jury trial
to determine the claim’s value. As having filed personal injury
tort claim, Claimants are entitled to and claim the right to trial by
jury. See 28 U.S.C. § 1411(a). The Second Circuit has found that
jury trials in non-core proceedings are likely prohibited “due to
the district court’s de novo review of such proceedings.” In re
Orion Pictures Corp., 4 F.3d 1095, 1101 (2d Cir. 1993).
44.
Protracted discovery with court oversight will be required. Among
other matters, without limitation: Claimants will seek depositions
from Defendants. Claimants will require discovery of the identities
of the Gawker authors and campaign financiers and will seek to depose
them.
Claimants
will seek discovery from Defendants as to its business practices,
including editorial and publication decisions and social media
cross-promotion, as well as the source code relative to the Kinja and
website platforms. Claimants will require detailed discovery into the
readership and extent of circulation. Claimants anticipate
significant litigation over several of these items. A Bankruptcy
Court is unfamiliar with the issues presented. A LEXIS search for
cases involving “actual malice” or “section 230”, involving
“libel”, “slander”, or “defamation”, yielded only six
decision in three cases in this Court. This is not the typical claim
arising in a Chapter 11 proceeding. Such cases and issues arise with
far more frequency before the District Court.
46.
Because all of the factors favor the District Court, the Bankruptcy
Court should not hear these non-core proceedings. III.
47.
As set forth above, the California Anti-SLAPP law is not applicable
to a contested matter under Fed. R. Bankr. P. 3007, especially as it
relates to the allowance of claims. The state statute conflicts with
the Federal procedures and otherwise is unworkable where a proof of
claim is already prima facie evidence of a possibility of prevailing.
Notwithstanding, Claimants filed their proofs of claims knowing they
would ultimately prevail, whether or not the California Anti- SLAPP
law applies.
48.
The claims asserted by Claimants are personal injury tort claims that
should be heard by the District Court for all further proceedings.
Congress must be deemed to have understood the meaning of the term
“personal injury” when it legislated, a meaning that, for
centuries, has included causes of action sounding in libel and
slander, as well as false light invasion of privacy. Defendants has
failed to demonstrate that any different meaning was intended.
49.
The issues raised by Defendants show a determined intent to attempt
to avoid facing liability for the multiple calumnies it heaped upon
Claimants. Claimants are entitled to be heard and to vindicate their
claims. “
INTENTIONAL
INTERFERENCE WITH CONTRACTUAL RELATIONS CAUSE OF ACTION
42. The
Plaintiffs hereby incorporate by reference the allegations set forth
in paragraphs 1 through 42 inclusive as though fully set forth
herein.
43. On
or about May 3, 2005, the Plaintiffs,
received, in recognition by the United States Congress in the Iraq
War Bill, a Congressional commendation and grant issued by the United
States Congress and the United States Department of Energy in the
amount of over $2M plus additional access to resources as, and for,
the development of a domestic energy fuel cell and energy storage
technology to be used in connection with the research and development
of an electric car to be used by the Department of Defense and the
American retail automotive market in order to create domestic jobs,
enhance national security and provide a domestic energy solution
derived from entirely domestic fuel sources.
44. Defendants knew of the above described contractual
relationship existing between the Plaintiffs and COMPANY
B
and the
United States Department of Energy, in that the grant was made public
record and, at the request of representatives of the Venture Capital
group of the Defendants,
the Plaintiffs
believing that the request for information was as to providing
additional funding for the project, did, in fact, submit complete
information regarding the subject of the grant to Defendants agents
upon their request.
45. Defendants,
who had, and have, personal, stock-ownership, revolving-door career
and business relationships with executive decision-makers at the
United States Department of Energy and other Federal and State
officials, lobbied and service-compensated those executive
decision-makers to cancel, interfere and otherwise disrupt the grant
in favor of the Plaintiffs,
with the intention of terminating the funding in favor of the
Plaintiffs
and COMPANY B
and applying the information they pirated from the Plaintiffs,
for their own benefit as well as terminating the Plaintiffs competing
efforts, which third party industry analysts felt could obsolete
Defendants products via superior technology.
46. Individuals
approached Plaintiffs offering to “help” the Plaintiffs get their
ventures funded or managed. Those individuals were later found to
have been working for Kleiner Perkin's, the founding investor and
current share-holder of Defendants. The Plaintiffs discovered that
those “helpful” individuals were helping to sabotage development
efforts and pass intelligence to Defendants for its own use and
applications.
47. Accordingly,
Defendants was successful in its efforts and, in or about August of
2009, the grant and other funding programs in favor of the
Plaintiffs,
was summarily canceled and re-directed to Defendants and their
holdings.
48. Commencing
in or about 2008, Defendants commenced to take credit for advancement
in its own energy storage and internet media technology, as based on
the information it had pirated from the Plaintiffs.
49. The
interference of Defendants, with the relationship of the Plaintiffs,
was intentional, continues to today, and constitutes an unfair
business practice in violation of Business and Professions code
section 17200.
50. As
a proximate result of the conduct of the Defendants,
and severance and termination of the grant to the Plaintiffs,
the Plaintiffs
have suffered damages including financial damage, damage to their
reputation and loss of critical intellectual property.
51. The
aforementioned acts of the Defendants,
were willful, fraudulent, oppressive and malicious. The Plaintiffs
is therefore entitled to punitive damages.
INTENTIONAL
INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE CAUSE OF ACTION
52. The
Plaintiffs hereby incorporate by reference the allegations set forth
in paragraphs 1 through this paragraph inclusive as though fully set
forth herein.
53. In
or about the fall of 2009, when the Plaintiffs
discovered that their fundings from the United States Department of
Energy had been terminated, de-funded and re-routed to Defendants, by
Defendants. The Plaintiffs
informed other members of the energy and automotive technology
industry and the U.S. Congress of the facts of Defendants behavior
and specifically the behavior that gave rise to termination of the
grant.
54. Defendants
became aware that the Plaintiffs
were intent on telling the truth about these facts, about true
ownership of the intellectual property relied on by Defendants in its
own vehicle, energy and internet media technology and about
Defendants theft of this property.
55. In
order to put a stop to the Plaintiffs
and in an effort to discredit Plaintiffs, divest Plaintiffs of
contacts in the industry and also of financial backing, Defendants
enlisted the services of the Defendants,
YouTube and Gawker and also Defendants own wide array of media and
branding manipulation tools which are service offerings of
Defendants. The Defendant produced attack material is reposted,
impression accelerated, click-farm fertilized and Streisand array
reposted by Defendants massive character assassination technology via
servers algorithms and technical internet manipulation daily as
recently as yesterday. Defendants also embed the article in job
hiring databases on Axciom, Palantir, Taleo and other databases used
by all hiring and recruiting services in order to prevent Plaintiffs
from ever receiving income for W2 or 1099 work ever again.
56. Google, Gawker And Gizmodo worked together to produce and publish
contrived “hatchet job” articles and movies
describing the Plaintiffs
in horrific descriptors. The article is reposted, impression
accelerated, click-farm fertilized and Streisand array reposted by
Defendants massive character assassination technology via servers
algorithms and technical internet manipulation daily as recently as
yesterday. Defendants also embed the article in job hiring databases
on Axciom, Palantir, Taleo and other databases used by all hiring and
recruiting services in order to prevent Plaintiffs from ever
receiving income for W2 or 1099 work ever again. Defendants own staff
then posted thousands of fake comments, below each attack item, under
fake names, designed to make it appear as if a broad consensus of the
public agreed with the defamation messages by Defendants. Almost all
of the fake comments were created by a handful of Defendants own
staff pretending to be a variety of outside voices. Defendants
replicated various versions of these attack items across all of their
different brands and facade front publications and added additional
fake comments to each on a regular basis.
57. Defendants YouTube posted a video which depicted the Plaintiffs
as a cartoon character who attempts to engage in unethical behavior. The
video employs Plaintiffs personal name and personal
information. The article is reposted, impression accelerated,
click-farm fertilized and Streisand array reposted by Defendants
massive character assassination technology via servers algorithms and
technical internet manipulation daily as recently as yesterday.
Defendants also embed the article in job hiring databases on Axciom,
Palantir, Taleo and other databases used by all hiring and recruiting
services in order to prevent Plaintiffs from ever receiving income
for W2 or 1099 work ever again. Defendants own staff then posted
thousands of fake comments, below each attack item, under fake names,
designed to make it appear as if a broad consensus of the public
agreed with the defamation messages by Defendants. Almost all of the
fake comments were created by a handful of Defendants own staff
pretending to be a variety of outside voices. Defendants replicated
various versions of these attack items across all of their different
brands and facade front publications and added additional fake
comments to each on a regular basis.
58. Defendants
has paid tens of millions of dollars to Gawker Media and has a
business and political relationship with Gawker Media according to
financial filings, other lawsuit evidence, federal investigators and
ex-employees.
59. Also
as intended by Defendants, this damage, especially because the false
representations become immediately apparent to anyone conducting an
internet search for the “Plaintiffs,”
have caused investors to shy away from the Plaintiffs,
causing the Plaintiffs
further difficulty in obtaining funding to
the present time.
60. Defendants
has also placed on human resources and and job hiring databases
negative and damaging red flags about the Plaintiffs,
relative to the Gawker and Defendants attacks. These postings were
intended by Defendants to prevent the Plaintiffs, not only from
working for himself, but also from working for other, noteworthy
individuals of good repute.
61. Additionally,
Defendants representatives sent a copy of the Gawker attack article
to an employer of the Plaintiffs via their human resources office and
asked this employer, “You don't want him working for you with this
kind of article out there, do you?” This resulted in the
Plaintiffs immediate termination because of that article. Plaintiffs
has recovered documents between Defendants showing the preplanned and
premeditated deployment of this attack. As documented in one of the
Hulk Hogan cases against Defendants associates: “As
evidence, the lawsuit points to a Gawker article by its founder, Nick
Denton, that predicted Mr. Bollea’s “real secret” would be
revealed — it was posted soon before The Enquirer report — and a
14-minute gap between the publication of the article and a Gawker
editor, Albert J. Daulerio, tweeting about it. “Based upon the
timing and content of Daulerio’s tweet, Daulerio was aware, in
advance, of The Enquirer’s plans to publish the court-protected
confidential transcript,” the lawsuit argues...” Plaintiffs
in this case also have the same form of evidence from the same
parties.
62. As
a proximate result of the conduct of the Defendants, the Plaintiffs
and COMPANY B have suffered severe financial damage and, accordingly,
loss of their good will and reputation.
63. Plaintiffs
are informed by investigators and Defendants' own former staff that
Defendants planned an effort to “take him down” in retribution
for effectively competing with Defendants and for co-operating with
law enforcement and regulatory investigations of Defendants.
64. The
aforementioned acts of the Defendants were willful, fraudulent,
oppressive and malicious. The Plaintiffs is therefore entitled to
punitive damages.
CYBER-STALKING
CAUSE OF ACTION
65. The
Plaintiffs hereby incorporate by reference the allegations set forth
in paragraphs 1 through this paragraph inclusive as though fully set
forth herein.
66. By
hiring and/or making an arrangement with associated tabloids to
publish an article replete with false and misleading statements
disparaging the Plaintiffs, in the guise of publishing opinion, the
Defendants
Defendants intended to harass the Plaintiffs and did in fact harass
the Plaintiffs.
67. By
refusing to remove the offending publication and, in fact, assigning
it a value associated with “truth”, “factuality” and a
position in its web browser that came up and still comes up the first
and most prominent link pursuant to any search for the Plaintiffs and
maintaining this link for the past 5 years as globally marketed,
public, published, permanent, un-editable and unmovable, Defendants
intended, and continues to intend to harass the Plaintiffs.
68. By
doing the things described in paragraphs 67 and 68 above, Defendants,
did and does continue to intend to cause the Plaintiffs substantial
emotional distress.
69. The
Plaintiffs, commencing in or about their discovery of the post and
the link, has experienced and continues to experience substantial
emotional distress.
70. Defendants
engaged in the pattern of conduct described above with the intent to
place the Plaintiffs in reasonable fear for their safety or in
reckless disregard for the safety of the Plaintiffs.
71. The
Plaintiffs admit here that Plaintiffs knew of a number of Bay Area
technologists including Gary D. Conley, Rajeev Motwani who also had
strange run-ins with Defendants and who subsequently suffered strange
terminations per investigators and media who continue, at the request
of the families and friends of those individuals, and others, to
examine those cases. This has caused concern and stress for
Plaintiffs. While Defendants did not necessarily have the intent to
do physical harm to the Plaintiffs, by arranging for publication of
the subject article, ensuring the subject article could not be moved
or altered and would be certain to appear first and permanently as
the result of any search for the Plaintiffs, intended to do
significant damage to Plaintiffs financial interests in retaliation
for their testimony at the proceedings described above and also
intended to ensure the Plaintiffs
would have no future as a competitor in the industry of technology
populated by the Plaintiffs and by the Defendants.
72. Defendants
chose to cheat rather than compete and decided, as a whole to plan,
operate and deploy “hit jobs”, defamation attacks, media hatchet
jobs, character assassinations, venture capitol black-lists,
technology hiring no-poaching blacklists, public officials influence
buying and other illicit tactics against Plaintiffs, public
officials, journalists, ex-employees, political candidates and
others, as retribution, vengeance and vendetta tactics.
73. The
results of any search for the Plaintiffs on Defendants search engine
are attached hereto in the Exhibits and incorporated herein by
reference. These same results have remained consistently in place
and unmovable and un-editable since April 3, 2011.
74. For years, the Plaintiffs did contact Defendants with
written requests to remove the offending content. [See,
Correspondence, a true and correct copy of which is attached hereto
as Exhibits and incorporated herein by reference.] In response,
Defendants consistently stated it has no control over the results of
any search on its search engine or the operation of its technology or
its algorithm and, accordingly, refused to remove the results or
cease the harassment.
75. Defendants
continues to refuse to allow any member of the public to search for
the Plaintiffs,
without locating results that falsely identify the Plaintiffs in a
negative and damaging narrative contrived for the sole intended
purpose of Plaintiffs financial and social destruction.
76. As
so aptly stated by Hulk Hogan’s lawyers in their own suit against
associates of the Defendants: The Defendants “chose
to play God.”
FRAUD
CAUSE OF ACTION
77. The
Plaintiffs hereby incorporate by reference the allegations set forth
in paragraphs 1 through this paragraph inclusive as though fully set
forth herein.
78. As
above, in response to the request of the Plaintiffs regarding removal
of the Gawker and Gizmodo movies and articles promoted by Google/Youtube,
the Defendants stated that they have
no control over the results of any search on its search engine and no
control over the results of its algorithms, refused to and continues
to refuse to allow any member of the public to search for the
Plaintiffs, without publishing results that falsely identify the
Plaintiffs as bad people.
79. The
Defendant made this statement with the intent to induce the
Plaintiffs Company A to rely on it.
80. The
Plaintiffs continued to rely on the statement and to believe that the
Defendant has not power or authority to manipulate the results of
searches conducted on its search engine until in or about mid 2015
when it became clear as the result of the litigation commenced in
Europe by The European Commission, that Defendant does in fact have
such ability and does, in fact, exercise this ability regularly to
manipulate and manage any of the results of any search on its
engine.
81. Defendants made the following representation(s)
to the Plaintiffs: They stated that Defendants had no control over
the public experience of its products, page ranking and link
presentation and that all results were arbitrary and a matter of
luck.
82. The
representations made by the defendant were in fact false. The true
facts are that Defendants owners and executives can freely,
consciously and manually rig, manipulate, modify, mood emphasize,
re-rank, hide, adjust psychological adjacency perceptions of
above-and-below text, delete or otherwise affect the local, regional,
national and global perceptions of the public overall, or any market
segment, or demographic, at will, in precise, controlled and
monitored manipulations and that Defendants has even sold these
manipulations-as-a-service to private clients.
83. When
the defendant made these representations, he/she/it knew them to be
false and made these representations with the intention to deceive
and defraud the Plaintiffs and to induce the Plaintiffs to act in
reliance on these representations in the manner hereafter alleged, or
with the expectation that the Plaintiffs would so act.
84. The
Plaintiffs, at the time these representations were made by the
defendant and at the time the Plaintiffs took the actions herein
alleged, was ignorant of the falsity of the defendant’s
representations and believed them to be true. In reliance on these
representations, the Plaintiffs was induced to and did delay their
attempts to have Defendants cease their abuse of Plaintiffs by
technical means. Had the Plaintiffs known the actual facts, he/she
would not have taken such action. The Plaintiffs reliance on the
defendant’s representations was justified because Defendants stated
that they represented government interests and because FTC and SEC
investigation manipulations, by Defendants, had not yet been fully
exposed in the news media.
85. As
a proximate result of the fraudulent conduct of the defendant(s) as
herein alleged, the Plaintiffs was induced to expend hundreds
of hours of their/her time and energy in an attempt to derive a
profit from their ventures which were covertly under attack by
defendant(s) but has received no profit or other compensation for
their/her time and energy], by reason of which the Plaintiffs has
been damaged in the sum of at least two billion dollars based on the
minimum reported amounts by which Defendants profited at Plaintiffs
expense and the paths of direction which Plaintiffs were steered to
by Defendants fraudulent misrepresentations.
86. The
aforementioned conduct of the defendant(s) was an intentional
misrepresentation, deceit, or concealment of a material fact known to
the defendant(s) with the intention on the part of the defendant(s)
of thereby depriving the Plaintiffs of property or legal rights or
otherwise causing injury, and was despicable conduct that subjected
the Plaintiffs to a cruel and unjust hardship in conscious disregard
of the Plaintiffs rights, so as to justify an award of exemplary and
punitive damages.
INVASION
OF PRIVACY CAUSE OF ACTION
87. The
Plaintiffs hereby incorporate by reference the allegations set forth
in paragraphs 1 through this paragraph inclusive as though fully set
forth herein.
88. The
Defendant, first by arranging for and allowing/posting the gawker
article, then by coding a link to the article that permanently placed
the article at the top of any search results for the Plaintiffs,
Company A, has invaded the inalienable privacy rights of the
Plaintiffs, Company A as protected by Article I section 1 of the
Constitution of the State of California and violated the human right
known as “the right to be forgotten”, now overtly supported in
other nations.
89. The
intrusion continues to this
day, is significant and remains unjustified by any legitimate
countervailing interest of the Defendant.
90. For
five years, when any member of the public searches on the Defendant
search engine holdings, for the Plaintiffs, Company A, the first link
to pop up refers to the Plaintiffs, Company A as a horrible person
via Defendants severs and postings which are locked in position on
the internet. A situation which could only possibly occur if
Defendants and their partner Google were maliciously rigging the
internet results and processes.
91. The pervasiveness and longevity of this link plus its
placement at the very top of any search result has resulted in a
significant, albeit intentional interference with the right of the
Plaintiffs Company A to engage in and conduct personal and business
activities, to enjoy and defend life and liberty, acquiring
possessing and protecting property and pursuing and obtaining safety,
happiness and privacy.
92. The
facts disclosed about Plaintiffs were and remain false. Even in the
event the Gawker article might have at one time garnered protection
by the First Amendment as opinion regarding a public controversy and
about a semi-public figure, no further controversy exists or even
could.
93. Five years have passed and, despite the lack of current
content of controversy, the Plaintiffs, Company A remains saddled
with a personal, permanent and immovable reference on the internet
that characterizes him as an awful person on the global web in front of 8
billion people.
94. The Plaintiffs Company A has done the best he could in these
years to move on with new projects and new investors. He has made
every effort to start anew and has been precluded from doing so by
the gawker article.
95. Maintenance
of the original postings created by known associates Gawker, Gizmodo,
Jalopnik and Google is offensive and
objectionable to the Plaintiffs Company A and certainly would be to a
reasonable person of ordinary sensibilities in that the original
posting is false and defamatory and was intentionally arranged for by
Defendant so as to do significant damage to the personal and
professional reputation of the Plaintiffs, Company A, because it has
accomplished this damage, because there is no manner other than at
the Defendant Defendants hand by which the link can be altered or
removed or the search results edited or limited and because there
exists no reason that the Plaintiffs Company A should not be allowed
to enjoy a right to move on with is life independent of a label that
had no basis in truth and reality in the first place.
96.
The facts regarding the character of the Plaintiffs, Company A, included in
the gawker article are certainly no longer of any
legitimate public concern nor are they newsworthy nor are they tied
to any current controversy or dialogue.
97.
IN FACT, THE Plaintiffs, can truly no longer be considered a public
figure or even a semi-public figure as the GAWKER article has fairly
successfully put him out of business and kept him out of business for
the past five or more years.
98. As
a proximate result of the above disclosure, Plaintiffs lost
investors, contracts, was
scorned and abandoned by their/her friends and family, exposed to
contempt and ridicule, and suffered loss of reputation and standing
in the community, all of which caused them/him/her humiliation,
embarrassment, hurt feelings, mental anguish, and suffering], all to
their/her general damage in an amount according to proof.
99. As
a further proximate result of the above-mentioned disclosure,
Plaintiffs suffered
special
damages to the brand, financing, reputation and market timeframe
opportunities for
their/her business, in that they lost
funding, market share, federal contracts and other income,
to their special damage in an amount according to proof.
100. In
making the disclosure described above, defendant was guilty of
oppression, fraud, or malice, in that defendant made the disclosure
with (the
intent to vex, injure, or annoy Plaintiffs or a
willful and conscious disregard of Plaintiffs rights. Plaintiffs
therefore also seeks an award of punitive damages.
101. Defendant
has threatened to continue disclosing the above information. Unless
and until enjoined and restrained by order of this court, defendant’s
continued publication will cause Plaintiffs great and irreparable
injury in that
Plaintiffs
will suffer continued humiliation, embarrassment, hurt feelings, and
mental anguish. Plaintiffs has no adequate remedy at law for the
injuries being suffered in that
a
judgment for monetary damages will not end the invasion of Plaintiffs
privacy.
UNFAIR
COMPETITION CAUSE OF ACTION
102. The
Plaintiffs hereby incorporate by reference the allegations set forth
in paragraphs 1 through this paragraph inclusive as though fully set
forth herein.
103. The Plaintiffs brings this action on their own behalf and on behalf
of all persons similarly situated. The class that the Plaintiffs
Company A represents is composed of all persons who, at any time
since the date four years before the filing of this complaint, sought
to have offensive, irrelevant and outdated material posted to the
internet and available through a search on the Defendant search
engine corrected, removed or re-ranked and have been informed by the
Defendant that the Defendant does not have the ability to do so and
that Defendants falsely states this assertion in Defendants published
policy.
104. The
persons in the class are so numerous, an estimated 39% of the
population of the United States of America, that the joinder of all
such persons is impracticable and that the disposition of their
claims in a class action is a benefit to the parties and to the
court.
105. There is a well-defined community of interest in the questions of
law and fact involved affecting the parties to be represented in that
each member of the class is or has been in the same factual
circumstances, hereinafter alleged, as the Plaintiffs . Proof of a
common or single state of facts will establish the right of each
member of the class to recover. The claims of the Plaintiffs are
typical of those of the class and the Plaintiffs will fairly and
adequately represent the interests of the class.
106. There
is no plain, speedy, or adequate remedy other than by maintenance of
this class action because the Plaintiffs is informed and believes
that each class member is entitled to restitution of a relatively
small amount of money, amounting at most to $5,000.00 each, making it
economically infeasible to pursue remedies other than a class action.
Consequently, there would be a failure of justice but for the
maintenance of the present class action.
107. The
Defendant
is a business incorporated in the State of California and at all
times herein mentioned owned and operated a its search engine and its
ancillary commercial enterprises from its headquarters in Mountain
View California.
108.GIZMODO, GOOGLE and GAWKER, a well-known internet libel and slander
processing tabloid network published articles and movies they produced about
the Plaintiffs. The
articles and movies falsely, maliciously and without regard for the truth,
labeled the Plaintiffs in a multitude of negative and maliciously defaming
ways.
109. Any
search on the Defendant’s search engine for “Company A”
resulted and to this day still results in a display of the GAWKER
article with the Plaintiffs described as a horrible person.
110. Publication
of the article by GAWKER and the linking by GOOGLE caused the
Plaintiffs immediate and irreparable harm to their reputation, to
their business interests and to their personal life.
111. Some
five years have passed and the Plaintiffs, Company A, continues to
suffer damage to their reputation to their business interests and to
their personal life as the result of the publication by GAWKER and
GOOGLE’S rigged link to it.
112. The Plaintiffs directed a written request to the
Defendants to unlink the GAWKER publication to any search for their
name or to delete the offending article.
113. The
Defendant, responded by stating that it had no ability or legal
obligation to do so as the request didn’t fall within its own
policies for removal.
114. The
position of the Defendant is illegal, false and unfair.
115. The position of the Defendant is illegal as it infringes on
the rights of individuals as protected by the Constitution of the
State of California which protects the rights and freedoms of
individuals to: “All people are by nature free and independent and
have inalienable rights. Among these are enjoying and defending life
and liberty, acquiring, possessing, and protecting property, and
pursuing and obtaining safety, happiness, and privacy.” per the
State Constitution.
116. The
position of the Defendant is unfair as it deprives individuals of
rights protected by the Constitution of the State of California which
protects the rights and freedoms of individuals to: “All people are
by nature free and independent and have inalienable rights. Among
these are enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining
safety, happiness, and privacy.”
117. The
position of the Defendant, is false because, as a processor of
personal information and a controller of that information, the
Defendant also possesses the technical, logistical and government
official manipulation power and ability to delete, re-rank and mood
manipulate any information obtained as the result of a search on its
search engine.
118. As
a direct, proximate, and foreseeable result of the Defendant’s
wrongful conduct, as alleged above, the Plaintiffs
and
millions of others other members of the Plaintiffs class, who are
unknown to the Plaintiffs but can be identified through inspection of
the Defendant’s records reflecting requests for removal it has
already received and by other means, have been subjected to unlawful
and unwanted publication of in accurate, inadequate, irrelevant,
false, excessive, malicious and defamatory internet postings about
themselves and as a result of the Defendant’s present policies,
have thereby been deprived of their right to privacy and the right to
control information published about them as this control now
apparently is vested in the Defendant and not in and of themselves.
119. The
Plaintiffs is entitled to relief, including full restitution for the
unfair practices of the Defendant as these have damaged their
reputation and their business prospects and deletion or de-ranking of
any article naming Plaintiffs with malicious, known false defaming data as
inaccurate and currently
irrelevant.
120. The Defendant, has failed and refused to accede to the Plaintiffs’s
request for a removal of the offending article or for any de-ranking
or separation of the article from a search for their name. The
Plaintiffs is informed and believes and thereon alleges that the
Defendant has likewise failed and refused, and in the future will
fail and refuse, to accede to the requests of other individuals
requests for removal, de-ranking or the separation of search results
from a simple search for their name.
121.
The Defendant’s acts hereinabove alleged are acts of unfair
competition within the meaning of Business
and
Professions Code Section 17203.
The Plaintiffs is informed and believes that the Defendant will
continue to do those acts unless the court orders the Defendant to
cease and desist.
122..
The Plaintiffs has incurred and, during the pendency of this action,
will incur expenses for attorney’s fees and costs herein. Such
attorney’s fees and costs are necessary for the prosecution of this
action and will result in a benefit to each of the members of the
class. The sum of $500,000.00 is
a reasonable amount for attorney’s fees herein.
THEFT
OF INTELLECTUAL PROPERTY CAUSE OF ACTION
123.
The Plaintiffs hereby incorporate by reference the allegations set
forth in paragraphs 1 through this paragraph inclusive as though
fully set forth herein.
124.
Plaintiffs venture fund has founded, funded and launched multiple
business ventures based on novel new technology inventions. In the
majority of the cases, Defendants
engaged in industrial espionage of Plaintiffs new ventures, including
using agents to solicit Plaintiffs for information under the guise of
“possibly investing”, and then copied and exploited those
ventures for substantial profit while running attacks on Plaintiffs
venture in order to blockade any attempt at competition. Defendants
engaged in systematic venture capitol black-listing, funding cartels,
the hiring of attack-media hatchet job bloggers, internet search
rigging and numerous other dirty tricks campaigns in order to steal
technology and business ideas. SEC, U.S. Senate Investigators,
broadcast news journalists, other federal investigators and records
from other lawsuits have provided testimony that Defendants have paid
Gawker Media “tens
of millions of dollars”
for “special
services”.
Of millions of publications in the world, only Gawker Media engaged
in the media attacks against Plaintiffs and only the Defendants
derived the core benefits of those attacks. A list of the Plaintiffs
business ventures interdicted and copied by Defendants includes the
following.
136.
Defandants did have their agents, investors, executives and staff
contact Plaintiffs under the guise of "considering an
investment" in order to induce Plaintiffs to disclose trade
secrets under false promises of confidentiality
137.
The New York Times newspaper and digital publications group published
an investigative article entitled: "How
Larry Page's Obsession Became DefendantsBusiness
" on January 22, 2016 by CONOR
DOUGHERTY.
This article describes the manner in which Defendants founder, Larry
Page, seeks to steal ideas, for Defendants, from young entrepreneurs
and inventors, much as he appears to have done to Plaintiffs. The
article discloses the covert manners in which Defendants harvest
intellectual property without revealing their true identies or actual
intentions.
138.
Hundreds of reporters, clients and members of the public have
commented that: "Defendants seems to copy everything you come up
with" to Plaintiffs. In one specfic instance, a television show
entitled the Silicon Valley Business Report did a broadcast report
demonstrating how Plaintiffs company appeared to have been nearly
100% copied by Defendants'sYouTube. In another instance, the globaly
broadcast TV Network E! Entertainment Network produced a network TV
segment about Plaintiffs creation: "Scott Glass" which was
later copied by Defendants as: "Defendants Glass" with
nearly verbatim features, appearance
139.
CBS News staff, including Bob Simon of 60 Minutes CBS News, did
inform Creditors that Defendants did attack, interfere with the
business of, defraud, cyber-stalk and engage in RICO statute
violations of Creditors as exemplified in the FBI Solyndra, Cleantech
and Obama Administration campaign financing quid-pro-quo
investigations since 2007.
140.
Federal corruption hearings and court trials in Washington DC have
proven these facts and ruled that Creditors were in fact subjected to
reprisal, vendetta and retribution actions financed and directed in
part by Defendants.
141.
Former staff of a company called KiOR have whistle-blown as to the
veracity of facts about Defendants and recent CIA/FBI and Russian
Hacks of Khosla have confirmed the veracity of damages by Defendants
against Creditors.
142.
Defendants have sent numerous proxies to spy on and interfere with
Creditors under the guise of “helping” Creditors or “considering
an investment in Creditors”.
143.
Creditors report to the FBI and have privileged access to Federal
executive officials such that law enforcement knowledge is shared.
144.
House Ethics investigators and San Jose Mercury News investigators
have provided additional evidence and verifying data.
145.
Tens
of billions of dollars of profits were acquired by Defendants while
infringing Plaintiffs technologies, and Defendants sought to damage
and delay Plaintiffs ability to seek recovery.
146.
Defendants maliciously harmed revenue stream of Plaintiffs in order
to prevent or delay legal action by Plaintiffs in order to seek to
expire statute of limitations. Causes of action continue to this day
and Plaintiffs only recently discovered much of the inside
information via law enforcement and federal investigators.
147.
Defendants’ founders personally solicited and copied CEO business
ventures and technologies and wanted to harm Plaintiffs’ brand in
order to mitigate discovery of that fact.
148.
Plaintiffs testified for federal law enforcement against Defendants
and Defendants sought to engage in retribution for Plaintiffs’
testimony. In previous related cases, Plaintiffs won historical
national legal precedents and overcame multi-million dollar federal
litigation counter-measures by Defendants’ and their associates.
Plaintiffs are the first known Americans to receive a federal court
confirmation that they were victimized by “a
federal program infected with corruption and cronyism”.
Defendants were the “crony’s”
referred to by the U.S. Courts. The U.S. Federal Court has now issued
one of, if not the, first rulings in U.S. Federal Court Record
stating that Plaintiffs were
in fact
attacked by corrupt federal employees.
149.
Plaintiffs’ technologies obsolete Defendants’ technologies and
Defendants sought to damage Plaintiffs as witnesses and competitors.
150.
Defendants sabotaged Plaintiffs’ government contracts and
circumvented and acquired Plaintiffs’ money through illicit
actions. Defendants traded campaign financing, that was not properly
reported, in exchange for insider contracts and stock valuation
pumps.
151.
Defendants covertly work together and share common stock
transactions, trusts, shell companies, campaign financing, contracts,
and personal relationships.
152.
Defendants operate a cartel-like organization which fully meets RICO
violation parameters.
153.
Defendants have been reporting to FBI, OSC, GAO, FTC, CFTC, EU, SEC
and U.S. Congress on this case for many years and supportive federal
case files are already deeply for this matter and any future Special
Prosecutor hearings.
154.
Defendants cannot argue time bar statute of limitations due to
attacks as recently as today and revelations by the Justice
Department as of this week.
155.
Defendants cannot argue “Conspiracy Theory” or “Fake News”
because the overwhelming current public opinion will destroy them
within a week (ie: Voat.co)
156. 95% of the entire 2017 White House Administration supports this case
because Defendants spent hundreds of millions of dollars attacking
95% of the entire 2017 White House Administration. Every new FBI
director on the short-list for the new FBI supports this case.
157.
Plaintiffs have an advance copy of Defendants potential defense
plan against this case. Plaintiffs have ongoing resources from law
enforcement, investigators and journalists with deep factual
repositories. China & Russia are thought to have hacked
Defendants, and have begun posting leaks which are helpful to this
case. In this election year, more beneficial leaks are expected by
the press. Global public trends are tracking negative on Defendants.
Plaintiffs won a federal court decision in a partially related case
in which investigators found a “Cartel controlled by Defendants”
to be the primary financier of the illicit activities. Recent news
and government investigation reports prove that Defendants wild and
bizarre actions actually took place, even though Defendants tries to
play the charges off as
“fantastical”, in circumventing due process and government ethics
programs. News reports of Defendants investors and executives sex
scandals and tax evasions prove bad character aspects of defendants.
158.
Defendant's attorney Michelle Lee
runs the patent office and may have already attempted to interfere
with Plaintiffs patent filings, The Defendants-created ALICE and IPR
disruptions put Plaintiffs existing patents at risk if any of their
patent #’s are named. One day after Plaintiffs was told they were
about to receive their most recent patent, which USPTO had determined
over-rode Defendants and Facebook, the USPTO reversed their decision
after interjection from Defendants USPTO-based staff.
159.
According to large numbers of investment publications, including
Investor Place publication: Tesla Motors TSLA Stock: "Tesla
Motors Inc is "Worth $660 Billion".
“ Today,
Apple Inc. (AAPL) is the largest company in the world. But Tesla
Motors Inc (TSLA) stock could rocket so high in the next 10 or 15
years that the currently $33 billion automaker exceeds even Apple’s
$540 billion valuation. That’s according to billionaire investor
Ron Baron, CEO of Baron Capital, who went on CNBC this morning to
rave about TSLA stock.”
There is more than enough proof that experts value Tesla Motors at a
minimum of $33B and over $660B at a higher argument point. Plaintiffs
competing car company, which had solved all of the problems Tesla has
had and has a higher volume sales potential due to it’s lower
retail pricing was worth at least $33B and in excess of $700B and
that that one consideration accounts for $700B of damages caused by
Defendants in their attacks designed to interfere with the existence
of Plaintiffs car company. In like manner, Plaintiffs broadcasting
network was supplanted by Defendants broadcasting network which is
now equivalent to Netflix or Univision. Motley Fool published a
report that “Shares
of streaming video pioneer Netflix
(NASDAQ:NFLX)
have had another outstanding year in 2015. The stock hit a new
all-time high of $132.20 last week. As Netflix stock has taken off,
the company's market cap has surged from around $20 billion in
January to a staggering $56 billion today.” Univision
has publicly stated that it is worth $25B in its SEC filings.
Thus
Defendants attacks cost Plaintiffs venture group $56B of additional
damages by attacking and cloning another of Plaintiffs technologies
and businesses. Plaintiffs energy company offered the equivalence of
the energy company Bloom Energy which has a market valuation of $3B
and thus justifies a loss valuation to Plaintiff of at least $3B.
Copy cat companies Tesla Motors, Netflix and Bloom Energy are owned
by, managed or co-mingled with Defendants Cartel as are Google and
other holders. These companies have been proven, and will again be
proven before the jury, to have been first developed, launched,
marketed, patented, documented, commended and offered by Plaintiffs.
Thus Defendants are clearly documented engaging in over $720B of
damages to Plaintiffs via their coordinated malicious attacks,
ongoing Streisand-Effect re-attacks, copy-cat efforts, circumvention
of Plaintiffs federal funds into Defendants pockets, interference and
other actions. Defendants argument of “how
could one entity have so many companies?”
is made moot by the fact that EACH of defendants principles and
associates own HUNDREDS of companies apiece.
Damage
Awards Demanded
- Joining of this case by DOJ- Provision of an attorney for
disadvantaged Plaintiffs by DOJ
-
A percentage of Defendants profits.
-
A mandated award for the damages that Defendants caused by the
interdiction from Plaintiffs for Plaintiffs federal contracts by
terminating Plaintiffs State and Federal funds and placing those
funds in Defendants bank accounts.
-
A percentage of all profits from Plaintiffs technologies used by
Defendants
-
Hit-Job damages awards
-
Loss of income since the start of operations of Defendants
-
Punitive damages
-
Other damages
NEWS
CLIPPINGS RELATED TO THIS CASE AND PRECEDENTS:
Hulk
Hogan
on court victory: 'Told ya I was gonna slam ...
BOOM! Georgia Judge REFUSES to Throw out CNN’s Effort to Dismiss a Fake
News Court Case, …
...Cites “a Series of False and Defamatory News Reports”
CNN is now on the verge of being proven a fake news source by Georgia
courts! CNN attempted to get the case dismissed involving Davide Carbone,
CEO of St. Mary’s Medical Center in West Palm Beach who accused CNN of
fabricating a story about his hospital. Citing a “series of false and
defamatory news reports” that insinuated St. Mary’s had an infant
mortality rate that was 3 times higher than the national average while
ignoring information that made the Medical Center look good. The libel
lawsuit against CNN seeking $30 million in damages will continue onward
thanks to federal district judge Orinda Evans.