Case 1:17-cv-09554-AKH Document 58 Filed 02/20/18 Page 1 of 33

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LOUISETTE GEISS, KATHERINE

KENDALL, ZOE BROCK, SARAH ANN Case No. 17-cv-09554 (AKH)
THOMAS (a/k/a SARAH ANN MASSE),
MELISSA SAGEMILLER, and
NANNETTE KLATT, individually and on
behalf of all others similarly situated,
MEMORANDUM OF LAW IN SUPPORT
Plaintiffs, OF DEFENDANT HARVEY
WEINSTEIN’S MOTION TO DISMISS
-against- PLAINTIFFS’ COMPLAINT PURSUANT
TO FED. R. CIV. P. 12(B)(6) AND TO
THE WEINSTEIN COMPANY STRIKE CLASS ALLEGATIONS
HOLDINGS, LLC, MIRAMAX, LLC, PURSUANT TO FED. R. CIV. P. 12(F)
MIRAMAX FILM CORP., MIRAMAX FILM
NY LLC, HARVEY WEINSTEIN, ROBERT
WEINSTEIN, DIRK ZIFF, TIM SARNOFF,
MARC LASRY, TARAK BEN AMMAR,
LANCE MAEROV, RICHARD
KOENIGSBERG, PAUL TUDOR JONES,
JEFF SACKMAN, JAMES DOLAN,
MIRAMAX DOES 1-10, and JOHN DOES
1-50, inclusive,

Defendants.

Phyllis Kupferstein
Roxanna A. Manuel
KUPFERSTEIN MANUEL LLP
865 South Figueroa Street, Suite 3338
Los Angeles, California 90017
(213) 988-7531

Mary E. Flynn
Aaron M. Schue
MORRISON COHEN LLP
909 Third Avenue
New York, New York 10022
(212) 735-8600

Attorneys for Defendant Harvey Weinstein

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Table of Contents

PRELIMINARY STATEMENT ..................................................................................... 1

STATEMENT OF FACTS ............................................................................................. 3
A. Plaintiffs’ Alleged Interactions with Weinstein ...................................... 3
B. Summary of Plaintiffs’ Complaint ........................................................... 6
ARGUMENT ................................................................................................................. 7
I. STANDARD OF REVIEW ....................................................................... 7
II. PLAINTIFFS’ CLAIMS ARE BARRED BY THEIR RESPECTIVE
STATUTES OF LIMITATIONS ............................................................. 8
A. Plaintiffs’ Nonfederal Claims Expired Years Before
They Filed Suit .............................................................................. 8
B. Plaintiffs’ RICO Claims Are Subject to a Four-Year
Statute of Limitations ................................................................. 10
C. None of Plaintiffs’ Theories Serve to Toll the Statutes
of Limitations for Any of Their Claims Under the
Facts Alleged................................................................................ 12
1. The doctrine of equitable estoppel is inapplicable........... 12
2. The continuing violation doctrine is inapplicable ........... 13
3. Plaintiffs’ “duress” theory is similarly baseless ............... 14

III. PLAINTIFFS’ RICO CLAIMS SHOULD BE DISMISSED .................. 16

IV. PLAINTIFFS’ CLASS ACTION ALLEGATIONS MUST BE

DISMISSED OR STRICKEN ................................................................. 20

CONCLUSION ............................................................................................................ 25

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Table of Authorities

Cases

Agency Holding Corp. v. Malley-Duff Assoc., Inc.

483 U.S. 143 (1987).....................................................................................................10

Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 117 S.Ct. 2231 (1997). ....................................................................... 22

AMTRAK v. Morgan,
536 U.S. 101, 122 S. Ct. 2061 (2002) ....................................................................... 13

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) .................................................................................................. 17

Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009) ............................................................... 7, 8, 21

Bankers Tr. Co. v. Rhoades,

859 F.2d 1096 (2d Cir. 1988), cert. denied, 490 U.S. 1007 (1989) .......................... 10

Baratta v. Kozlowski,
94 A.D.2d 454, 464 N.Y.S.2d 803 (2d Dep't 1983)................................................... 15

Barrus v. Dick’s Sporting Goods, Inc.,

732 F. Supp. 2d 243 (W.D.N.Y. 2010) ........................................................................ 8

Bell Atl. Corp. v. Twombly

550 U.S. 544, 570, 127 S. Ct. 1955 (2007) ....................................................... 7, 8, 21

Bingham v. Zolt,
66 F.3d 553 (2d Cir.1995)......................................................................................... 10

Blihovde v. St. Croix Cty.,.

219 F.R.D. 607 (W.D. Wis. 2003) ............................................................................... 8

Brecher v. Republic of Argentina,

806 F.3d 22 (2d Cir. 2015)........................................................................................ 24

Buggie v. Cutler,
222 A.D.2d 640, 636 N.Y.S.2d 357 (2d Dep’t 1995)................................................. 23

Califano v. Yamasaki,
442 U.S. 682, 995 S. Ct. 2545 (1979) ....................................................................... 20

Cedric Kushner Promotions, Ltd. v. King,

533 U.S. 158, 121 S. Ct. 2087 (2001) ....................................................................... 16
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Chenensky v. New York Life Ins. Co.,

2011 WL 1795305 (S.D.N.Y. Apr. 27, 2011) ............................................................ 21

Cullen v. Margiotta,
811 F.2d 698 (2d Cir. 1987), cert. denied, 483 U.S. 1021 (1987) ............................ 14

Denney v. Deutsche Bank AG,

443 F.3d 253 (2d Cir. 2006)................................................................................ 16, 24

Discon, Inc. v. NYNEX Corp.,

93 F.3d 1055 (2d Cir. 1996), vacated on other grounds, 525 U.S. 128 (1998)........ 20

Flynn v. DIRECTV, LLC,

2016 WL 4467885 (D. Conn. Aug. 23, 2016) ..................................................... 22, 23

Frankel v. Cole,
313 Fed. App'x. 418 (2d Cir. 2009) .......................................................................... 10

Ganino v. Citizens Utils. Co.,

228 F.3d 154 (2d Cir. 2000)...................................................................................... 17

Georgine v. Amchem Prods., Inc.,

83 F.3d 610 (3d Cir. 1996)........................................................................................ 22

Hecht v. Commerce Clearing House, Inc.,

897 F.2d 21 (2d Cir. 1990)........................................................................................ 17

Hodczak v. Latrobe Specialty Steel Co.,

2009 WL 911311 (W.D. Pa. March 31, 2009) .......................................................... 21

In re Am. Med. Sys.,

75 F. 3d 1069 (6th Cir. 1996) ................................................................................... 22

In re U.S. Foodserv. Pricing Litig.,

729 F.3d 108 (2d Cir. 2013)..................................................................................... 22

Jay E. Hayden Found. v. First Neighbor Bank, N.A.,

610 F.3d 382 (7th Cir. 2010) .................................................................................... 11

Johnson v Nextel Communs., Inc.,

780 F.3d 128 (2d Cir. 2015)...................................................................................... 22

Kaplan v. Mamelack,
162 Cal. App.4th 637, 75 Cal. Rptr.3d 861 (2008) ................................................... 23

Kassman v. KPMG, LLP,

925 F. Supp. 2d 453 (S.D.N.Y. 2013) ....................................................................... 21

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Klehr v. A.O. Smith Corp.,

521 U.S. 179, 117 S. Ct. 1984 (1997) ....................................................................... 14

Koch v. Christie's Int'l PLC,

699 F.3d 141 (2d Cir. 2012)...................................................................................... 10

Lee v. Langley,
2005 UT App. 339, aff’d, 147 P.3d 443 (Utah Ct. App. 2006) ................................. 23

Lopez v. Annucci,
690 F. App'x 56 (2d Cir. 2017) ................................................................................. 13

M.G. v. New York City Dep’t of Educ.,

162 F.Supp.3d 216 (S.D.N.Y. 2016) ......................................................................... 24

McLaughlin v. Anderson,
962 F.2d 187 (2d Cir. 1992)...................................................................................... 17

Nicholas v. CMRE Fin. Serv., Inc.,

2009 WL 1652275 (D.N.J. June 11, 2009) ............................................................... 21

Picus v. Wal-Mart Stores, Inc.,

256 F.R.D 651 (D. Nev. 2009) .................................................................................... 8

Pilgrim v. Universal Health Card, LLC,

660 F.3d 943 (6th Cir. 2011) .................................................................................... 21

Piper v. Hoard,
107 N.Y. 67 (1887) .................................................................................................... 15

Robles v. Agreserves, Inc.,

158 F. Supp.3d 952 (E.D. Cal. 2016) ....................................................................... 23

Rotella v. Wood,
528 U.S. 549 (2000) ............................................................................................ 10, 11

Schmidt v. Bishop,
779 F.Supp.321 (S.D.N.Y. 1991) .............................................................................. 15

Smith v. Lyons, Doughty & Veldhuius, P.C.

2008 WL 2885887 (D.N.J. July 22, 2008) .................................................................. 8

Smith v. Westchester Cty.,

769 F. Supp. 2d 448 (S.D.N.Y. 2011) ....................................................................... 13

So v. Shin,
212 Cal. App.4th 652, 151 Cal. Rptr.3d 257 (2013) ................................................. 23

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Tardd v. Brookhaven Nat'l Lab.,

407 F. Supp. 2d 404 (E.D.N.Y. 2006)....................................................................... 12

Trinidad v. N.Y. City Dep't of Corr.,

423 F. Supp. 2d 151 (S.D.N.Y. 2006) ....................................................................... 13

Twersky v. Yeshiva Univ.,

993 F. Supp. 2d 429 (S.D.N.Y. 2014), aff'd 597 F. App'x (2d Cir. 2014)................. 12

United States v. Clark,

435 F.3d 1100 (9th Cir. 2006) .................................................................................. 19

United States v. Evans,

476 F.3d 1176 (11th Cir.) ......................................................................................... 18

United States v. Morrison,

529 U.S. 598, 120 S. Ct. 1740 (2000) ....................................................................... 19

United States v. Philip Morris USA, Inc.,

566 F. 3d 1095 (D.C. Cir. 2009) ............................................................................... 16

Wagner v. Utah Dep't of Human Servs.,

2005 UT 54 (Utah 2005)........................................................................................... 23

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 131 S. Ct. 2541 (2011) ....................................................................... 21

Statutes

18 U.S.C. §1341.............................................................................................................16

18 U.S.C. §1343 ............................................................................................................ 16

18 U.S.C. §1512 ............................................................................................ 2, 11, 16, 18

18 U.S.C. §1590 ........................................................................................................ 2, 16

18 U.S.C. §1591.............................................................................................2, 16, 18, 19

18 U.S.C. §1961(1)(a) ................................................................................................... 16

18 U.S.C. § 1962 ........................................................................................................... 10

18 U.S.C. § 1962(c) ................................................................................................. 16, 20

18 U.S.C. § 1962(d) ...................................................................................................... 20

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18 U.S.C. § 1964(c) ....................................................................................................... 16

18 U.S.C. § 2246(2) ...................................................................................................... 19

18 U.S.C. § 2246(3) ...................................................................................................... 19

Article 2270-1 ................................................................................................................. 9

Conn. Gen. Stat. §52-577................................................................................................10

Conn. Gen. Stat. §52-584................................................................................................10

N.Y. C.P.L.R. 214............................................................................................................9

Utah Code §78B-2-307 ...................................................................................................10

Limitations Act, 2002, S.O. 2002, c. 24, Sched. B-4......................................................9

Limitations Act, 2002, S.O. 2002, c. 24, Sched. B-15....................................................9

Federal Rules of Civil Procedure

Rule 8(a) ....................................................................................................................... 21

Rule 9(b) .......................................................................................................................17

Rule 12(b)(6) ............................................................................................................... 1, 7

Rule 12(f)..........................................................................................................................1

Rule 23 ................................................................................................................. passim

Other Authorities

5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure

§ 1216 (1990) .............................................................................................................. 8

http://www.imdb.com/title/tt0192071/locations?ref_=tt_dt_dt .................................... 9

https://www.huffingtonpost.com/entry/meryl-streep-harvey
weinstein_us_59db5d87e4b072637c45420e ............................................................ 25

https://www.usatoday.com/story/life/people/2017/12/07/jennifer-lawrence-discusses-
harvey-weinstein-oprah-winfrey/929913001/.......................................................... 25

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Defendant Harvey Weinstein (“Weinstein”), through his attorneys

Kupferstein Manuel LLP and Morrison Cohen LLP, hereby respectfully submits

this memorandum of law in support of his motion to dismiss the first, second, fifth,

sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth Counts of the Complaint

of Plaintiffs Louisette Geiss, Katherine Kendall, Zoe Brock, Sarah Ann Thomas

(a/k/a Sarah Ann Masse), Melissa Sagemiller, and Nannette Klatt, pursuant to Fed.

R. Civ. P. 12(b)(6), and to strike the class allegations in various paragraphs of the

Complaint, pursuant to Fed. R. Civ. P. 12(f).

PRELIMINARY STATEMENT

Trying to revive what are long expired claims, Plaintiffs creatively assert

several causes of action under federal and state law, contending that the various

statutes of limitations are tolled by the continuing violation doctrine, the doctrine of

equitable estoppel, and by alleged duress. None of those doctrines apply here to toll

the statutes of limitations on Plaintiffs’ claims that they were assaulted and

battered some nine to 24 (or more) years ago. Accordingly, all of the named

Plaintiffs’ claims should be dismissed with prejudice.

Even if their sole federal claims under RICO were not time barred, Plaintiffs

fail to state a claim on which relief can be granted. They fail to allege that they were

injured in their business or property by any actionable RICO violation, and

therefore lack standing. The alleged predicate acts – witness tampering, sex

trafficking, and mail and wire fraud – are not properly pleaded to support a claim.

Plaintiffs fail to identify any federal “official proceeding,” as required under 18

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U.S.C. §1512, in which the alleged witness tampering occurred. Plaintiffs also fail to

set forth any facts that they were caused to engage in a “commercial sex act” by

Weinstein, or that he otherwise violated 18 U.S.C. §1591 with respect to Plaintiffs.

They further fail to allege any facts demonstrating how a violation of 18 U.S.C.

§1590, which requires “trafficking with respect to peonage, slavery, involuntary

servitude or forced labor,” allegedly occurred here.

Nor does simply listing various wires and mails “sent as a result of

Defendants’ illegal scheme,” Complaint, ¶201, satisfy the stringent pleading

requirements for alleged predicate acts of mail and wire fraud. Plaintiffs do not

even suggest how these wires and mails furthered any fraudulent scheme to obtain

property from them, nor do they show that any mailings or wire usages contained

false information. There is certainly nothing inherently unlawful or fraudulent in

executing settlement agreements with claimants or contracts with law firms or

investigators, even if solely undertaken with the objective of furthering

confidentiality and thereby precluding the disclosure of alleged sexual misconduct.

Such actions simply do not amount to any cognizable scheme to defraud. Moreover,

Plaintiffs’ claimed injuries could not have been proximately caused by the alleged

RICO scheme, but would have resulted, if at all, from the alleged assaults and

batteries that occurred before the limitations period.

In addition, Plaintiffs’ class allegations fall significantly short of the

requirements of Fed. R. Civ. P. 23(a), and should be dismissed or stricken. The

alleged class and subclasses consist of all women who ever met in person with

Weinstein since some unidentified time before 2005 either to discuss a project or at
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an event hosted or sponsored by his companies. Complaint, ¶¶183-185. These are

not ascertainable classes. Moreover, it is apparent from the face of the complaint

that individual questions of fact and law will predominate over any common

questions. Although Plaintiffs fail to invoke any particular state (or foreign) laws,

they seek a nationwide class action for claims of civil battery, assault, and negligent

and intentional infliction of emotional distress. The statutes of limitations and

elements of the causes of action under state law vary from state to state (and

country to country). Whether any of the putative class members was assaulted,

battered, or caused emotional distress will necessarily require individualized

factual inquiry. Similarly, with regard to Plaintiffs’ federal claims, whether any of

the putative class members engaged in a commercial sex act with Weinstein, was

enslaved, or participated in an official federal proceeding, or was fraudulently

deprived of money or property, will also necessarily be an individualized factual

inquiry.

Thus, as further explained below, all claims against Weinstein should be

dismissed with prejudice and the irrelevant allegations stricken.

STATEMENT OF FACTS 1

A. Plaintiffs’ Alleged Interactions with Weinstein

The six named plaintiffs each allege independent and unrelated encounters

with Weinstein that occurred in different states and countries at different times

over the past three or more decades. Plaintiff Nannette Klatt alleges that she met

1
The facts are drawn from the Complaint and, solely for purposes of this motion, are assumed to be
true.
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Weinstein at an unspecified time, but it could have occurred only between the late

1970s and September 2005, because the alleged meeting occurred in his office at

Miramax. 2 Complaint, ¶115. Klatt alleges that Weinstein was reportedly casting a

film, that she read from the script for him, was told that she had gotten the part,

and was preparing to leave when Weinstein allegedly asked to see her breasts and

said it was required by the role. She refused, was directed to a side door that led to

a dark stairwell, and needed a maintenance worker to let her out. Klatt claims that

her “professional and personal interactions are ... limited by her fears generated by

Weinstein’s assault.” Id., ¶¶115-120.

Plaintiff Katherine Kendall alleges that in 1993, at Weinstein’s apartment

(presumably in New York City), after an intellectual discussion lasting an hour, he

returned from the bathroom in a robe and repeatedly requested a massage, which

she refused. Complaint, ¶¶48-53. Weinstein allegedly went back to the bathroom,

this time returning naked, “chased [her] around the apartment, demanding that she

kiss him, that she touch him, and that she allow him to see her breasts.” Id., ¶56.

Kendall alleges that “Weinstein barred Kendall in the apartment,” Id., ¶57, and

ultimately “agreed to allow her to leave” if she would allow him to accompany her to

a taxicab. She then alleges that Weinstein “forced his way into the taxi with her.” 3

Id., ¶58. Kendall claims that as a result of the alleged assault, she “experienced

2 Miramax was founded in 1979. On September 30, 2005, Weinstein and his brother, Defendant Bob

Weinstein, left Miramax (which was earlier acquired by the Walt Disney Company) and founded The
Weinstein Company. Complaint, ¶¶34, 37.
3
The allegations beg the question: did Weinstein get into the taxi naked, or did he put on some
clothes first? If he went to get dressed, why did plaintiff Kendall simply not leave the apartment?
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both emotional distress and physical pain,” and has experienced depression since.

Id., ¶¶59, 61.

Plaintiff Zoe Brock alleges that in 1998, at the Hotel du Cap Eden-Roc in

Cannes, France, she was in Weinstein’s hotel room when he appeared in the nude

and demanded a massage. She claims that after he maneuvered her into his

bedroom, she “escape[d] to the bathroom” and locked herself in. Weinstein got

dressed, and thereafter Weinstein and his assistant took Brock in a car back to the

harbor so that she could return to the yacht on which she was staying. Because no

water taxis were available, Weinstein offered (and she accepted) his penthouse suite

at Hotel Barriere le Majestic. The next morning, she returned to the yacht, but later

attended a screening at which Weinstein sat directly behind her, with his hand on

her chair. Brock claims that, as a result of the alleged assault, she suffered from

depression, a lack of self-confidence, and a loss of reputation. Id., ¶¶71-83.

Plaintiff Melissa Sagemiller alleges that, in the summer of 2000, she went to

Weinstein’s hotel room while filming Get Over It. Weinstein allegedly answered the

door in his robe, asked for a massage, and then a kiss. Sagemiller claims that he

blocked the door, and she “finally submitted to a forcible kiss,” after which she left.

When the film shoot was over, Weinstein purportedly removed her bags from her

commercial flight and had them put on his private plane, thereby “forc[ing]” her to

travel with him. Id., ¶¶84-94.

Plaintiff Louisette Geiss alleges that she ran into Weinstein at the 2008

Sundance Festival in Park City, Utah. She attended a movie premiere at his

invitation, and thereafter agreed to meet with Weinstein in an office adjacent to his
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hotel room. They had a professional conversation for 30 minutes. Geiss alleges that

Weinstein then left the room and returned in an open bathrobe, naked underneath.

He purportedly informed Geiss that he would hear the rest of her pitch from the hot

tub and started to masturbate. Geiss alleges that she tried to leave the room, but

Weinstein climbed out of the tub, grabbed her arm, and pulled her to the bathroom,

insisting that she watch him masturbate. Weinstein then allegedly offered her

various inducements (ultimately, a three picture deal as an actress) if she stayed

while he masturbated. She refused and left. Geiss claims that she experienced fear,

helplessness, anger and depression, and sought professional help. Id., ¶¶96-103.

Plaintiff Sarah Ann Thomas alleges that in 2008 she met with Weinstein at

his Connecticut home to interview for a nanny position. Weinstein answered the

door in his boxer shorts and undershirt and proceeded to interview Thomas. At one

point, Weinstein’s children came into the room and Weinstein yelled at them not to

come back in. Thomas alleges that later, “leaning forward and wiggling his

eyebrows as if leering at her, Weinstein asked whether she would ‘flirt’ with his

friends to ‘get ahead,” which made her uncomfortable. At the conclusion of the

interview, Weinstein purportedly grabbed her in a hug that “was uncomfortably

close, and lasted too long,” and said that he loved her. Thomas claims she left

“feeling upset, shaken, afraid and disrespected.” Id., ¶¶104-113.

B. Summary of Plaintiffs’ Complaint

Plaintiffs assert a total of 14 claims for relief, including two claims for

violation of the RICO Act against the “Weinstein Sexual Enterprise” (“WSE”) and

eight non-federal claims alleged against Weinstein for civil assault, battery, and
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intentional and negligent infliction of emotional distress. Plaintiffs do not specify

under what state or country’s laws they assert their non-federal claims. Each of the

Plaintiffs resides in California, except for Brock who previously resided in

California but is temporarily residing in New Zealand. Complaint, ¶13. Plaintiffs

seek a nationwide class action to assert all these claims on behalf of all women who

met Weinstein either to discuss a project or at an event hosted or sponsored by

Miramax and The Weinstein Company (“TWC”).

Plaintiffs claim that, “over time,” Weinstein enlisted these companies, which

he co-founded, “along with other firms and individuals, to facilitate and conceal his

pattern of unwanted sexual conduct.” Id., ¶5. Plaintiffs allege that the WSE was an

“association in fact” consisting of all these individuals and firms, and was formed for

the common purposes of preventing the reporting and prosecution of his alleged

misconduct, as well as destroying evidence of his alleged offenses. Id., ¶¶140-141.

ARGUMENT

I. STANDARD OF REVIEW

The law applicable to this motion is clear. Federal Rule of Civil Procedure

12(b)(6) requires dismissal of a complaint that lacks “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). In determining the adequacy

of a complaint, a court must disregard the complaint’s conclusory allegations and

legal conclusions, which are not entitled to the assumption of truth, and determine

whether the remaining “well-pleaded factual allegations” suggest that the plaintiff
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has a plausible – as opposed to merely conceivable – claim for relief. Id. at 679.

Claims that do not cross the “line from conceivable to plausible” must be dismissed.

Id. at 680 (quoting Twombly, 550 U.S. at 570). When the complaint cannot raise a

claim of entitlement to relief, “‘this basic deficiency should . . . be exposed at the

point of minimum expenditure of time and money by the parties and the court.’”

Twombly, 127 S. Ct. at 1965, 550 U.S. at 558, (citing 5 Wright & Miller § 1216, at

233-234 (internal citations omitted)).

The same standards apply to allegations attempting to establish grounds to

proceed as a class action under Fed. R. Civ. P. 23. See Barrus v. Dick’s Sporting

Goods, Inc., 732 F. Supp. 2d 243, 247-48 (W.D.N.Y. 2010); Picus v. Wal-Mart Stores,

Inc., 256 F.R.D 651, 655 (D. Nev. 2009); Smith v. Lyons, Doughty & Veldhuis, P.C.,

2008 WL 2885887, at *5-6 (D.N.J. July 22, 2008). See also Blihovde v. St. Croix

Cty, 219 F.R.D. 607, 614 (W.D. Wis. 2003) (“[W]hen there has been no discovery and

the defendants challenge class certification on the basis of the allegations in the

complaint only, the proper standard is the same as a motion to dismiss for failure to

state a claim.”).

II. PLAINTIFFS’ CLAIMS ARE BARRED BY THEIR RESPECTIVE

STATUTES OF LIMITATIONS

A. Plaintiffs’ Nonfederal Claims Expired Years Before They Filed Suit

Plaintiffs’ nonfederal claims for assault, battery, and negligent and

intentional infliction of emotional distress are barred by the applicable state and

foreign country statutes of limitations. Although Plaintiffs allege that the statutes

should be tolled, their assertion of equitable estoppel, continuing violation and

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duress as grounds to toll their claims is wholly unsupported by facts as to any of the

plaintiffs. The 5th through 12th claims for relief should be dismissed with prejudice.

The complaint was not filed until December 2017, despite Plaintiffs’

contention that Weinstein’s alleged proclivity for sexual misconduct was well-known

throughout the entertainment industry. See, e.g., Complaint, ¶¶122, 168. Klatt’s

allegations stem from an alleged encounter sometime before September 2005,

presumably in New York City, while Kendall’s claims arise from an alleged 2003

meeting at Weinstein’s apartment in New York City. Id., ¶49. New York law

provides a three-year statute of limitations for injury to person or personal

property. N.Y. C.P.L.R. 214.

Brock alleges Weinstein assaulted her in May 1998, in Cannes, Frances,

when she was 24 years old. Complaint, ¶71. France has a 10-year statute of

limitations. Article 2270-1. Sagemiller’s claims against Weinstein arose in the

summer of 2000. Id., ¶84. Although Sagemiller does not state the location, she

alleges it occurred during the shoot of a movie filmed in Ontario, Canada, according

to imdb.com. 4 Canada has a two-year statute of limitations for personal injury

actions (Limitations Act, 2002, S.O. 2002, c. 24, Sched. B-4), with an ultimate

limitations period of 15 years (Sched. B-15), which does not run during periods of

incapacity or concealment.

Geiss allegedly met Weinstein in 2008 in Utah. Complaint, ¶96. Utah has a

four-year statute of limitations for personal injury, assault and battery, and

4
http://www.imdb.com/title/tt0192071/locations?ref_=tt_dt_dt
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negligence. Utah Code §78B-2-307. Thomas’s claims arise from a 2008 interview

with Weinstein at his home in Connecticut. Id., ¶104. In Connecticut, the statute of

limitations for personal injury is three years. Conn. Gen. Stat. §52-577 (“No action

founded upon a tort shall be brought but within three years from the date of the act

or omission complained of.”); §52-584.

B. Plaintiffs’ RICO Claims Are Subject to a Four-Year Statute of

Limitations

Plaintiffs’ causes of action for violation of RICO are also time-barred by the

established four-year statute of limitations. Agency Holding Corp. v. Malley-Duff

Assoc., Inc. 483 U.S. 143, 156 (1987). The Second Circuit has long held that under

18 U.S.C. section 1962, “a cause of action to recover damages based on that injury

accrues to plaintiff at the time he discovered or should have discovered the injury.”

Bankers Tr. Co. v. Rhoades, 859 F.2d 1096, 1102 (2d Cir. 1988), cert. denied, 490

U.S. 1007 (1989); Frankel v. Cole, 313 F. App’x. 418 (2d Cir. 2009). When a plaintiff

discovers the pattern of racketeering activity is irrelevant; rather the inquiry is

when the plaintiff was first injured. Bingham v. Zolt, 66 F.3d 553, 560 (2d Cir.1995)

(RICO claim’s accrual was based on when damage occurred, rather than plaintiff’s

knowledge of wrongful acts).

The Bankers Trust rule has been affirmed over a rule which would require a

plaintiff’s discovery of not only the injury, but other elements of a RICO claim. See

Koch v. Christie's Int'l PLC, 699 F.3d 141, 148 (2d Cir. 2012) (quoting Rotella v.

Wood, 528 U.S. 549, 554 (2000)). In Rotella, the plaintiff treated with the defendant

in 1985-86, and the defendant pleaded guilty to fraud. After learning of the plea,
10
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the plaintiff sued. The Court rejected the “injury and pattern discovery” accrual

rule and held that her claims were time-barred. The facts are even more compelling

here, because all Plaintiffs knew of the alleged harm to them (each of them pleading

immediate emotional injuries) at the time of their encounters with Weinstein, the

most recent of which occurred in 2008.

Plaintiffs’ attempt to bring this matter within the four year statutory period,

by alleging that Weinstein engaged Boies Schiller and Black Cube in 2016-2017 to

investigate putative class members and prevent public reporting of their

accusations (Complaint, ¶¶148-162), is unavailing. First, only two of the six named

plaintiffs even allege any acts directed at them after 2008. 5 Second, even if

Plaintiffs incurred additional injuries from later alleged predicate acts, the statute

of limitations began to run when they were injured by the first predicate act. Jay E.

Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 386-387 (7th Cir. 2010)

(“the injury arising from the first predicate act to injure the plaintiff ... starts the

limitations period running, rather than the injury from the last predicate act, which

might occur decades after the first”) (citing Rotella, 528 U.S. at 554). Accordingly,

the RICO claims are time-barred.

5
Plaintiff Kendall alleges that she was contacted by a “fake” reporter in the summer of 2017 who
asked her whether she had talked or intended to talk to reporters about her experiences with the
casting couch and producers, and claims these contacts caused her emotional distress. Complaint,
¶¶62-63. Plaintiff Thomas alleges that, in December 2017, she learned casting directors had
complained about her public statements that she would not audition for productions involving sexual
predators, “implicitly threatening to blacklist her.” Id., ¶114. Neither of these Plaintiff’s allegations
comes even close to establishing witness tampering under 18 U.S.C. §1512, or any other predicate
act under RICO, as discussed infra.
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C. None of Plaintiffs’ Theories Serve to Toll the Statutes of Limitations

for Any of Their Claims Under the Facts Alleged

Perhaps knowing full well that their claims are time-barred, and probably

only filing this action for its newsworthiness rather than its legal efficacy, Plaintiffs

rely on various tolling doctrines in the hope that one will permit them to proceed on

their stale claims. Plaintiffs assert the “continuing violations doctrine,” “equitable

estoppel,” and “the duress pursuant to which Weinstein threatened the class if they

complained.” Complaint, ¶47. The complaint’s heading informs of the grounds, but

the body of the pleading fails to provide facts to support tolling. 6

1. The doctrine of equitable estoppel is inapplicable

Equitable estoppel does not operate to toll the statute of limitations; its application

prevents a defendant from asserting a statute of limitations defense where the elements are

satisfied. Twersky v. Yeshiva Univ., 993 F. Supp. 2d 429, 442 (S.D.N.Y. 2014), aff’d

597 F. App’x 7 (2d Cir. 2014). "Typically, the doctrine is invoked in cases in which [a

defendant] has made misrepresentations concerning the statute of limitations or

lulled the plaintiff into believing that it was not necessary for him to commence

litigation." Tardd v. Brookhaven Nat'l Lab., 407 F. Supp. 2d 404, 416 (E.D.N.Y. 2006)

("[P]laintiff must show that: (1) the defendant made a definite misrepresentation of

fact, and had reason to believe that the plaintiff would rely on it; and (2) the

plaintiff reasonably relied on that misrepresentation to his detriment."). Id.

6
Plaintiffs’ contention that the statutes of limitations were “tolled at least until The New York Times
published a powerful report revealing allegations of sexual harassment against Weinstein,”
Complaint, ¶181, is absurd on its face. Taking Plaintiffs’ position to its logical extreme would be to
maintain that, had it not been for The New York Times article being published, the statute of
limitations would never have even started to run with respect to an alleged pattern of conduct going
back to the 1980s.
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(internal quotation marks and citation omitted). Here, there is no allegation that

Weinstein misrepresented the statute of limitations or otherwise “lulled the

plaintiff[s] into believing that it was not necessary for [them] to commence

litigation,” so equitable tolling is unavailing on any of plaintiffs’ claims. Id.

2. The continuing violation doctrine is inapplicable

Courts "in the Second Circuit have been loath to apply the continuing

violation doctrine absent a showing of compelling circumstances." Smith v.

Westchester Cty., 769 F. Supp. 2d 448, 464 n.14 (S.D.N.Y. 2011) (quoting Trinidad

v. N.Y. City Dep't of Corr., 423 F. Supp. 2d 151, 165 n.11 (S.D.N.Y. 2006)

(punctuation omitted)). “The continuing violation doctrine allows a plaintiff to

challenge acts of misconduct occurring outside the statute of limitations period if at

least one act of the ongoing misconduct occurred within the limitations period.”

Lopez v. Annucci, 690 F. App’x 56, 58–59 (2d Cir. 2017) (internal citations omitted

and emphasis added).

With regard to their non-RICO claims, not one of the plaintiffs alleges any

tortious act by Weinstein against them after 2008. Analogizing to Title VII cases,

absent a discrete act that occurred within the limitations period as to any of the

plaintiffs, their claims are time-barred. See AMTRAK v. Morgan, 536 U.S. 101, 113,

122 S. Ct. 2061, 2072 (2002) (In Title VII employment cases, “discrete

discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges. Each discrete discriminatory act starts a new

clock for filing charges alleging that act.”).

With specific regard to civil RICO claims, the Supreme Court determined in
13
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Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S. Ct. 1984 (1997), that “the last

predicate act” rule is not appropriate because

it creates a limitations period that is longer than Congress could have

contemplated. Because a series of predicate acts (including acts occurring at
up to 10–year intervals) can continue indefinitely, such an interpretation, in
principle, lengthens the limitations period dramatically. It thereby conflicts
with a basic objective - repose - that underlies limitations periods.

Id. at 187, 117 S. Ct. at 1989. The Court held that “the plaintiff cannot use an

independent, new predicate act as a bootstrap to recover for injuries caused by other

earlier predicate acts that took place outside the limitations period.” Id. at 190, 117

S. Ct. at 1991. Here, as discussed above, only two of the named plaintiffs allege that

anything occurred to them within the statute of limitations. See note 5, supra. But a

call from a “fake” reporter does not constitute a predicate act, 7 and Plaintiff Thomas

“hearing” that casting directors have “implicitly blacklisted her” because she said

she would not work with sexual predators is also not a predicate act. Thus, because

none of Plaintiffs allege a predicate act that occurred with respect to them within

the statute of limitations, the continuing violation theory does not serve to revive

their stale claims.

3. Plaintiffs’ “duress” theory is similarly baseless

Duress may only be used to toll the statute of limitations if duress is "an

element of the cause of action asserted." Cullen v. Margiotta, 811 F.2d 698, 722 (2d

Cir. 1987), cert. denied, 483 U.S. 1021 (1987). This requirement has been applied

7
Presumably Plaintiff Kendall would have been equally distressed if the calls had been from a “real”
reporter. Further, her claim that she suffered distress from reading in The Observer that she was
included in a list of targets for investigation, Complaint, ¶¶67-70, also fails to allege a cognizable
injury from a predicate act.
14
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strictly; courts confronted by facts that might suggest that "duress" is present have

routinely refused to apply the doctrine. See, e.g., Baratta v. Kozlowski, 94 A.D.2d

454, 459, 464 N.Y.S.2d 803, 807 (2d Dep't 1983) ("the statute begins to run

irrespective of . . . whether [the party seeking to avoid it] has enough of courage and

independence to resist a hostile influence and assert his rights or not") (quoting

Piper v. Hoard, 107 N.Y. 67, 71 (1887)). Consequently, courts have rejected duress

to toll the statute of limitations in the tort context, such as child sex abuse cases.

See, e.g., Schmidt v. Bishop, 779 F.Supp.321 (S.D.N.Y. 1991).

Quoting The New Yorker’s contention that “Weinstein and his associates

used nondisclosure agreements, payoffs, and legal threats to suppress” women’s

accounts of their interactions with Weinstein, Plaintiffs claim this alleged conduct

“actually and reasonably placed class members under duress and induced them to

forebear asserting their legal rights....” Complaint, ¶169. 8 Plaintiffs further allege

that “[s]hortly before The New York Times and The New Yorker finally revealed the

decades-long pattern of harassment, Weinstein and his legal team began calling

Class Members, threatening them for talking.” Id., ¶179. That putative class

members were allegedly threatened in 2017 does not excuse Plaintiffs’ failure to

assert their rights within the applicable limitations period. Moreover, not one of the

named Plaintiffs alleges that she herself was subject to this “suppress[ive]” or

8
The specific facts alleged call into question the veracity of the general allegations that putative
class members were under duress. For example, Gwyneth Paltrow was allegedly harassed during the
filming of Emma in 1994, which allegedly caused her to fear the prospect of being fired. Complaint,
¶¶44a, 175. Yet, Paltrow went on to star in another Weinstein production—Shakespeare in Love—
for which she won an Academy Award in 1998. See id., ¶36. Paltrow was not so offended that she
refused to work with Weinstein again, nor did her career suffer as a result of her rebuffing his
alleged advances.
15
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“threatening” conduct or otherwise under duress and, thus, unable to bring suit

within the limitations period. Accordingly, there is no basis to toll the statute on

any of Plaintiffs’ claims.

III. PLAINTIFFS’ RICO CLAIMS SHOULD BE DISMISSED

Plaintiffs’ claims of racketeering activity are premised on Weinstein’s alleged

violation of statutes prohibiting (1) mail and wire fraud (18 U.S.C. §§1341, 1343),

(2) witness and/or victim tampering in connection with an official proceeding (18

U.S.C. §1512), and (3) human and commercial sex trafficking (18 U.S.C. §§1590,

1591). These alleged “predicate acts,” through which Weinstein purportedly

conducted the WSE, are not supported by Plaintiffs’ factual allegations. Complaint,

¶196. See 18 U.S.C. §1961(1)(a). 9

Plaintiffs lack standing to assert RICO claims because none can show she

was “injured in [her] business or property by reason of a violation of section 1962 of

this chapter.” 18 U.S.C. § 1964(c); Denney v. Deutsche Bank AG, 443 F.3d 253, 266

(2d Cir. 2006) (“A RICO plaintiff only has standing if, and can only recover to the

extent that, he has been injured in his business or property by the conduct

constituting the [RICO] violation.”) (internal quotations omitted). “But-for”

causation is not sufficient; Plaintiffs must also show that their alleged injuries were

9
A glaring defect in Plaintiffs’ RICO claims is that they assert those claims against the WSE only,
and not any individual defendant, including Weinstein. Complaint, ¶¶ 55, 59. Only a “person” can be
held liable under section 1962(c). “The enterprise as such generally faces no section 1962(c) RICO
liability....” United States v. Philip Morris USA, Inc., 566 F. 3d 1095, 1111 (D.C. Cir. 2009) (citing
Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 164, 121 S. Ct. 2087 (2001) ("RICO both
protects a legitimate `enterprise' from those who would use unlawful acts to victimize it, and also
protects the public from those who would unlawfully use an ‘enterprise' (whether legitimate or
illegitimate) as a ‘vehicle' through which ‘unlawful ... activity is committed.'") (internal citation
omitted)). But assuming Plaintiffs were to amend to name Weinstein as a defendant to the RICO
claims, those claims still fail, as discussed herein.
16
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proximately caused by the alleged racketeering activity. See Hecht v. Commerce

Clearing House, Inc., 897 F.2d 21, 23 (2d Cir. 1990). “When a court evaluates a

RICO claim for proximate causation, the central question it must ask is whether the

alleged violation led directly to the plaintiff’s injuries.” Anza v. Ideal Steel Supply

Corp., 547 U.S. 451, 461 (2006).

First, Plaintiffs’ allegations are insufficient to plead that any mail or wire

fraud occurred, let alone that their alleged injuries were directly caused by it.

Plaintiffs fail to satisfy the heightened pleading requirements of Rule 9(b), which

require that “in alleging fraud ... a party must state with particularity the

circumstances constituting fraud.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 168

(2d Cir. 2000). Although a litany of wires and mails is alleged to have occurred, not

a single false or misleading statement is identified. Instead, the Complaint merely

alleges the “RICO Defendants utilized the interstate and mail and wires for the

purpose of obtaining money or property by means of the omissions, false pretenses,

and misrepresentations described therein.” Complaint, ¶202. Such boilerplate,

conclusionary pleading does not satisfy Rule 9(b). The pleadings must specify the

statements that were false or misleading, give particulars as to their alleged falsity,

and state the time and place the statements were made and the identity of the

persons who made them. McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992).

Moreover, Plaintiffs fail to allege how they were directly injured by any mail or wire

fraud. The closest they come – and it is quite a stretch – is Kendall’s allegation that

she was contacted by a “fake” reporter, but she only alleges emotional distress, not

“injury to [her] business or property.” Complaint, ¶63.

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Second, Plaintiffs’ invocation of the witness tampering statute as a predicate

act is unavailing. Plaintiffs conclusorily allege that defendants engaged in

“multiple instances of tampering with a witness or victim in violation of 18 U.S.C.

§1512” (id., ¶196), but fail to allege any facts to support that claim or even what

subsection they rely on. The statute prohibits the use of physical force, threats, or

harassment intended to prevent a witness from testifying “in an official proceeding”

or a victim from reporting the commission of “a Federal offense.” None of Plaintiffs’

allegations identify any “official proceeding” in which they were dissuaded from

providing evidence, nor do they identify any federal offense they were dissuaded

from reporting. And, once again, Plaintiffs fail to allege any injury to “business or

property” as a result of the alleged tampering that they were caused.

Third, Plaintiffs fail to allege facts demonstrating that Weinstein engaged in

human and commercial sex trafficking in violation of 18 U.S.C. §§1590 and 1591.

These statutes, enacted in 2000, 10 are “part of a comprehensive regulatory scheme”

that “criminalizes and attempts to prevent slavery, involuntary servitude, and

human trafficking for commercial gain.” United States v. Evans, 476 F.3d 1176,

1179 (11th Cir.), cert. denied, 552 U.S. 878 (2007) (“Congress recognized that

human trafficking, particularly of women and children in the sex industry, is a

modern form of slavery, and it is the largest manifestation of slavery today.”).

There are no allegations here that Weinstein somehow enslaved or trafficked

Plaintiffs for commercial gain. "[I]n the most sterile terms, the statute covers the

Kendall and Brock (and possibly Klatt and Sagemiller) cannot assert §§1590 and 1591 as predicate
10

acts because their encounters with Weinstein occurred before these statutes were enacted in 2000.
18
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situation where a U.S. citizen engages in a commercial transaction through which

money is exchanged for sex acts." United States v. Clark, 435 F.3d 1100, 1115 (9th

Cir. 2006), cert. denied, 549 U.S. 1343 (2007). What Plaintiffs allege is not unlawful

commercial activity as proscribed by §1591, but purported unwanted sexual

activity. Cf. United States v. Morrison, 529 U.S. 598, 613, 120 S. Ct. 1740, 1751

(2000) (“Gender-motivated crimes of violence are not, in any sense of the phrase,

economic activity.”).

Moreover, Plaintiffs do not allege that they engaged in a “sex act” with

Weinstein. Although the Act defines the “commercial” component of the commercial

sex act element, it provides no corresponding definition of “sex act.” The phrase is

not a term of art. However, the provisions that outlaw other sex offenses within the

special maritime and territorial jurisdiction of the United States do define the term

“sexual act” as distinct from “sexual contact.” Compare 18 U.S.C. § 2246(2)

(defining “sexual act”) 11 with 18 U.S.C. § 2246(3) (defining “sexual contact”) 12.

Neither a kiss (Sagemiller), a hug (Thomas), being asked to give a massage (Brock,

Klatt), being “chased” around an apartment (Kendall), nor being asked to watch

11
“[T]he term ‘sexual act’ means- (A) contact between the penis and the vulva or the penis and the
anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration,
however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth
and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand
or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. §2246(2).

12 “[T]he term ‘sexual contact’ means the intentional touching, either directly or through the clothing,

of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. §2246(3).

19
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someone masturbate (Geiss)—even if those alleged events happened—constitutes a

“sex act” within the sex trafficking statute. Finally, because the alleged sexual

misconduct occurred more than four years before they filed their lawsuit, Plaintiffs

cannot show any actionable injury from this purported predicate act. 13

Lastly, because the proximate cause and predicate act requirements apply

equally to claims under Sections 1962(c) and 1962(d), both RICO claims should be

dismissed. See Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1064 (2d Cir. 1996)

(“Since we have held that the prior claims do not state a cause of action for

substantive violations of RICO, the present claim does not set forth a conspiracy to

commit such violations.”), vacated on other grounds, 525 U.S. 128 (1998).

IV. PLAINTIFFS’ CLASS ACTION ALLEGATIONS MUST BE DISMISSED OR

STRICKEN

Plaintiffs’ class allegations are insufficient to support a class action and

should be stricken. The class-action rule is “an exception to the usual rule that

litigation is conducted by and on behalf of the individual named parties only.”

Califano v. Yamasaki, 442 U.S. 682, 700-01, 995 S. Ct. 2545, 2557 (1979). To justify

13
Each of the plaintiffs alleges some form of emotional injury resulting from her encounter with
Weinstein, the most recent of which was in 2008 (and thus outside the limitations period). To the
extent any of the allegations can be read to assert injury to Plaintiffs’ careers, those injuries are
again attributed to the alleged time-barred assaults. For example, Kendall alleges that “since the
assault” she removed herself from the industry (Complaint, ¶61); Brock alleges that “[a]fter
Weinstein assaulted her,” she avoided auditioning in Hollywood for several years (id., ¶83); Geiss
alleges that she “lost” the three picture deal Weinstein purportedly offered her during their 2008
encounter and thereafter left the industry (id., ¶103); Klatt alleges she “lost” the part Weinstein
purportedly offered her in their encounter and asserts the alleged assault has affected her
“professional and personal interactions” (id., ¶120);.and Thomas alleges only that she did not get the
nanny job Weinstein interviewed her for (id., ¶ 113). Sagemiller alleges no injuries of any kind, other
than Weinstein’s ability to “prevent her from traveling on public transportation, over her objections,
frightened [her].” Id., ¶95.
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departure from that rule, the named plaintiffs must satisfy the requirements of

Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

349, 131 S. Ct. 2541, 2550 (2011). In Dukes, the Supreme Court made clear that

Rule 23 sets forth not only a burden of proof for class certification, but also a

“pleading standard.” Id. at 350-51, 131 S. Ct. at 2551. And in Twombly and Iqbal,

the Court adopted the pleading standard that applies under Rule 8(a) to all civil

claims. See generally Twombly, 550 U.S. 544, 127 S. Ct. 1955; Iqbal, 556 U.S. 662,

129 S. Ct. 1937.

While courts are generally reluctant to dismiss class allegations at the

pleading stage (see, e.g., Chenensky v. New York Life Ins. Co., 2011 WL 1795305, at

*1 (S.D.N.Y. Apr. 27, 2011), the allegations must at least plausibly suggest that

plaintiffs will produce enough evidence to justify class certification. See Kassman v.

KPMG, LLP, 925 F. Supp. 2d 453, 464 (S.D.N.Y. 2013). Further, a court may

determine whether the class can be certified “[a]t an early practicable time,” and

may make this determination even before the plaintiffs have moved for certification.

Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011). Since the

Supreme Court rendered the Twombly and Iqbal decisions, federal courts have held

that “class allegations must also comply with Rule 8(a) in order to proceed to class

discovery.” Nicholas v. CMRE Fin. Serv., Inc., 2009 WL 1652275, at *4 (D.N.J. June

11, 2009) (emphasis added). Accordingly, class allegations must comply with the

pleading requirements of Twombly and Iqbal, or be dismissed. Hodczak v. Latrobe

Specialty Steel Co., 2009 WL 911311, at *8-10 (W.D. Pa. March 31, 2009).

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Plaintiffs’ class allegations should be stricken because individual questions of

law and fact will predominate across the proposed classes with respect to Plaintiffs’

claims against Weinstein. See Flynn v. DIRECTV, LLC, 2016 WL 4467885, at *5

(D. Conn. Aug. 23, 2016). Not only will the statute of limitations, with its

individualized factual inquiry as to when injury occurred or was discovered, need to

be adjudicated on a class member by class member basis, but so too would the

substantive law underlying the class claims. Importantly, courts have been

reluctant to certify a class when resolution of common issues would require the

application of numerous state’s substantive laws, which would “defeat the

predominance of common issues and the superiority of trying the case as

a class action.” See Johnson v Nextel Communs., Inc., 780 F.3d 128, 148 (2d Cir.

2015) (citing In re U.S. Foodserv. Pricing Litig., 729 F.3d 108, 127 (2d Cir. 2013). 14

For example, it is readily apparent that the laws of the different states and

countries differ with respect to Plaintiffs’ proposed class claims for common law or

statutory assault and battery. 15 See In re Am. Med. Sys., 75 F.3d 1069, 1081 n. 10

(6th Cir. 1996) (holding that alleged common issues failed to satisfy Rule 23(a)(2)).

To establish a prima facie claim of civil assault and battery under New York law, 16

14
See also Georgine v. Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir. 1996) (noting that application
of “individualized choice of law analysis to each plaintiff’s claims” may cause “the proliferation of
disparate factual and legal issues [to be] compounded exponentially”), aff’d sub nom. Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231 (1997).

15
Counts V and VII assert claims for civil battery and assault on behalf of Plaintiffs Brock, Kendall,
Sagemiller, and Klatt against Weinstein and Miramax; Counts VI and VIII assert claims for civil
battery and assault on behalf of Plaintiffs Geiss and Thomas against Weinstein and TWC.
16
It appears from the pleading that the claims of Plaintiffs Kendall and Thomas arise under New
York law. Plaintiff Geiss’ claims arose under Utah law.

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a plaintiff must show “that the defendant intended to inflict personal injury on her

without her consent, that the defendant took action to carry out that intent, and

that he did in fact injure her.” Buggie v. Cutler, 222 A.D.2d 640, 641, 636 N.Y.S.2d

357, 358 (2d Dep’t 1995). California law 17 is similar: a “civil battery is ‘an offensive

and intentional touching without the victim’s consent.’” Robles v. Agreserves, Inc.,

158 F. Supp.3d 952, 985-86 (E.D. Cal. 2016) (citing Kaplan v. Mamelack, 162 Cal.

App.4th 637, 645, 75 Cal. Rptr.3d 861 (2008), and So v. Shin, 212 Cal.App.4th 652,

669, 151 Cal. Rptr.3d 257 (2013)). But Utah 18 state law differs in material respects,

including the requirement that the alleged victim have expressly communicated

lack of consent. See Wagner v. Utah Dep’t of Human Servs., 2005 UT 54, ¶ 51

(Utah Supreme Court holding that civil battery includes “all physical contacts that

the individual either expressly communicates are unwanted, or those contacts to

which no reasonable person would consent.”); Lee v. Langley, 2005 UT App. 339, ¶

20 n. 3, aff’d, 147 P.3d 443 (Utah Ct. App. 2006) (“No intentional tort will lie where

the plaintiff consents to otherwise tortious activity.”). 19

Because consent “may be given in any number of ways, and consent need not

be written down, or even spoken,” Flynn, 2016 WL 4467885, at *6 (citing, e.g.,

17
Although unclear from the complaint, it appears as if the alleged wrongful acts on which Plaintiff
Klatt bases her claims against Weinstein occurred in California.

18 Geiss alleges that Weinstein’s misconduct occurred at the Sundance Film Festival, which takes

place in Utah.

19 Additionally, Plaintiff Brock claims Weinstein assaulted her in Cannes, France, so French civil law

will apply to her claims. Plaintiff Sagemiller does not allege where the purported wrongful acts
involving Mr. Weinstein occurred, only that they purportedly occurred sometime after shooting
commenced on the movie “Get Over It,” which was filmed in Canada, and before she returned to the
United States on Weinstein’s private plane. Complaint, ¶¶ 84-95. Thus, Canadian law governs
Plaintiff Sagemiller’s tort claims against Weinstein.
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Restatement (Second) of Torts, ¶ 892), the defense of consent will necessarily defeat

class certification because the issue of consent will require an individual-by-

individual consideration of the interaction (if any) between Plaintiffs and the class

members, on the one hand, and Weinstein, on the other hand. Such analysis on the

issue of consent cannot be adjudicated on a class-wide basis, id., thus; this Court

should strike the class allegations as to Plaintiffs’ assault and battery claims.

Further, Plaintiffs’ proposed class definitions should be stricken because they

do not identify an ascertainable class. In addition to the express requirements of

Rule 23(a), the Second Circuit recognizes an “implied requirement of

ascertainability.” M.G. v. New York City Dep’t of Educ., 162 F.Supp.3d 216, 233

(S.D.N.Y. 2016) (citing Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir.

2015)). The “touchstone” of ascertainability is “whether the class is ‘sufficiently

definite so that it is administratively feasible for the court to determine whether a

particular individual is a member.’” Id. (citations omitted). The Second Circuit has

cautioned against certifying overbroad classes. Id. As the court held in Denney v.

Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006), the class must “be defined in

such a way that anyone within it would have standing.” But as to the RICO claims,

the putative class member would only have “standing if, and can only recover to the

extent that, [she] has been injured in [her] business or property by the conduct

constituting the [RICO] violation.” Id. at 266 (internal quotations omitted).

Here, Plaintiffs seek a nationwide class of “[a]ll women who met with Harvey

Weinstein in person (i) to audition for or to discuss involvement in a project to be

produced or distributed by either The Weinstein Company Holdings, LLC or, prior
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 Case 1:17-cv-09554-AKH Document 58 Filed 02/20/18 Page 32 of 33

to September 30, 2005, Miramax LLC, or (ii) in a meeting or event facilitated,

hosted, or underwritten by TWC.” Complaint, ¶ 183. Plaintiffs also seek similar

subclasses involving Miramax and TWC, respectively. Id., ¶¶ 184-185. These

proposed class definitions are fatally overbroad as to be not ascertainable. As

drafted, they would include all women who ever met with Weinstein, regardless of

whether they claimed to have suffered any identifiable harm as a result of that

meeting. Such women would include, presumably, Jennifer Lawrence, who told

Oprah Winfrey she had known Weinstein since she was 20 years old and said “he

had only ever been nice to me,” 20 and Meryl Streep, who stated publicly that

Weinstein had always been respectful to her in their working relationship. 21 The

nationwide class and the Miramax and TWC subclasses would also include women

working at industry events hosted by these companies who may have met Weinstein

briefly while serving him an hors d’oeuvre or a drink. They would include women

who may have briefly met Weinstein but had no discernable communication with

him except to say “hello.” Clearly these class definitions do not identify an

ascertainable class for which this Court could exercise jurisdiction; thus, they

should be stricken.

CONCLUSION

For the foregoing reasons, the Complaint, and the first, second, and fifth

through twelfth claims for relief, should be dismissed with prejudice, and Plaintiffs’

https://www.usatoday.com/story/life/people/2017/12/07/jennifer-lawrence-discusses-harvey-
20

weinstein-oprah-winfrey/929913001/

21https://www.huffingtonpost.com/entry/meryl-streep-harvey
weinstein_us_59db5d87e4b072637c45420e
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 Case 1:17-cv-09554-AKH Document 58 Filed 02/20/18 Page 33 of 33

class allegations should be dismissed or stricken in their entirety.

Dated: Los Angeles, California

February 20, 2018

KUPFERSTEIN MANUEL LLP

/s/ Phyllis Kupferstein

Phyllis Kupferstein
865 S. Figueroa St.
Suite 3338
Los Angeles, California 90017
(213) 988-7531 – Telephone
(213) 988-7531 – Telefax
[email protected]

MORRISON COHEN LLP

Mary E. Flynn
909 Third Ave.
New York, New York 10022
(212) 735-8600 – Telephone
(212) 735-8708 – Telefax

Attorneys for Defendant

Harvey Weinstein

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