Democracy Partners v. Project Veritas Action Fund
285 F. Supp. 3d 109 (2018)
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Rule of Law:
Consent to enter private property is invalid for a trespass claim when induced by fraudulent misrepresentations about the purpose of the entry. Furthermore, secretly recording conversations for a tortious purpose, such as breaching a fiduciary duty owed by an employee or intern, negates the one-party consent exception to federal and D.C. wiretapping statutes.
Facts:
- Democracy Partners, LLC, and its member Strategic Consulting Group, NA, Inc., are political consulting firms with private, secure offices, run by Robert Creamer.
- Project Veritas ('PV'), a non-profit founded by James O'Keefe, engages in undercover operations.
- In June 2016, a PV employee, Daniel Sandini, used a false identity to meet Creamer and later recommended his purported 'niece,' Allison Maass, for an internship.
- Maass used the false name 'Angela Brandt' and a fabricated resume to secure an unpaid internship at Democracy Partners in September 2016.
- Creamer explicitly told Maass that information she would be privy to was confidential and not to be shared.
- As an intern, Maass was given an electronic pass card with 24-hour office access and was included in confidential meetings, calls, and emails regarding sensitive client strategies, including a DNC project.
- During her internship, Maass used concealed devices to secretly record conversations and meetings inside the office.
- Maass provided the unauthorized recordings and confidential documents she obtained to Project Veritas, which later edited and published them online.
Procedural Posture:
- Democracy Partners, LLC, and other plaintiffs filed a complaint against Project Veritas Action Fund, other PV-related defendants, Allison Maass, and Daniel Sandini in the U.S. District Court for the District of Columbia.
- The complaint alleged violations of the Federal Wiretap Act and D.C. Wiretap Act, as well as common law torts including breach of fiduciary duty, trespass, fraudulent misrepresentation, and civil conspiracy.
- Plaintiffs voluntarily dismissed their claims against defendant Daniel Sandini.
- The PV defendants jointly filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and a separate motion to dismiss pursuant to the D.C. Anti-SLAPP Act.
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Issue:
Does engaging in an undercover operation, which involves gaining access to private offices through fraudulent misrepresentation to secretly record conversations and obtain documents for public exposure, state a plausible claim for relief under federal and D.C. wiretap laws and for the common law torts of fraudulent misrepresentation, trespass, and breach of fiduciary duty?
Opinions:
Majority - Ellen Segal Huvelle
Yes, the alleged conduct states plausible claims for relief. The court held that the defendants' motion to dismiss must be denied because the plaintiffs adequately pleaded each cause of action. For fraudulent misrepresentation, the court found that proximate cause is a factual issue for the jury, not a basis for dismissal at this stage. For trespass, the court concluded that under D.C. law, consent to enter property is invalid if induced by fraudulent misrepresentations regarding the nature of the invasion, particularly in non-public areas; alternatively, Maass exceeded the scope of any consent by secretly recording. Regarding the breach of fiduciary duty claim, the court determined that D.C. law defines 'fiduciary relationship' flexibly, and an intern given access to highly confidential information based on a cultivated relationship of trust can plausibly owe such a duty. Finally, the court held that the one-party consent exception to the federal and D.C. wiretap acts does not apply because the complaint plausibly alleges the recordings were made for a 'tortious purpose'—namely, the breach of Maass's fiduciary duty.
Analysis:
This decision reinforces the principle that journalistic methods are not exempt from generally applicable laws, particularly concerning torts like trespass and breach of loyalty. It clarifies that in the District of Columbia, consent to enter private property procured by fraud is not a valid defense to trespass, aligning with a more modern view of the tort. The ruling's significance is heightened by its application of fiduciary duty principles to an unpaid intern, establishing that the nature of the trust and access granted, not formal employment status, can create such a duty. This precedent poses a substantial legal risk for organizations using undercover tactics, as it provides a clear theory for negating the one-party consent defense to wiretapping claims.
