TWC Motion To Dismiss

Case 1:17-cv-09554-AKH Document 48 Filed 02/20/18 Page 1 of 61
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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LOUISETTE GEISS, KATHERINE KENDALL, :
ZOE BROCK, SARAH ANN THOMAS (a/k/a :
SARAH ANN MASSE), MELISSA SAGEMILLER, :
and NANNETTE KLATT, individually and on : No. 17 Civ. 09554-AKH
behalf of all others similarly situated, :
:
Plaintiffs, :
:
- against - :
:
THE WEINSTEIN COMPANY HOLDINGS, LLC, :
MIRAMAX, LLC, 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. :
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DEFENDANT THE WEINSTEIN COMPANY HOLDINGS, LLC’S

MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION
TO DISMISS THE COMPLAINT AND STRIKE THE CLASS ALLEGATIONS
Dated: New York, New York

February 20, 2018
SEYFARTH SHAW LLP

620 Eighth Avenue
New York, New York 10018
(212) 218-5500
Attorneys for Defendant

The Weinstein Company Holdings, LLC
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................................................................................... iv
PRELIMINARY STATEMENT .................................................................................................1
STATEMENT OF FACTS ..........................................................................................................4
ARGUMENT ..............................................................................................................................8
I. LEGAL STANDARDS FOR A MOTION TO DISMISS AND MOTION TO

STRIKE CLASS ALLEGATIONS ..................................................................................8
II. PLAINTIFFS FAIL TO PLEAD A PLAUSIBLE RICO VIOLATION AGAINST

TWC ............................................................................................................................. 10
A. Plaintiffs’ Claims Are Barred By The RICO Statute Of Limitations ................... 11
B. Plaintiffs Also Have Not Pleaded The Requisite Predicate Acts ......................... 12
1. Plaintiffs Fail To Plead A Viable Claim That TWC Engaged In

Witness Tampering ................................................................................. 13
2. Plaintiffs Also Fail To Plead Any Viable Facts That TWC Engaged
In Sex Trafficking .................................................................................. 15
3. Plaintiffs Fail To Plead Any Viable Facts With Particularity That

TWC Engaged In Mail Or Wire Fraud .................................................... 17
C. Plaintiffs Fail To Plead Viable Facts Of A Pattern Of Continued

Racketeering Activity......................................................................................... 20
D. Plaintiffs Have Failed To Adequately Allege Viable Facts Of A RICO

Injury ................................................................................................................. 21
III. PLAINTIFFS FAIL TO PLEAD A PLAUSIBLE CLAIM AGAINST TWC OF A

CONSPIRACY TO VIOLATE RICO ............................................................................ 25
IV. GEISS AND THOMAS FAIL TO PLEAD PLAUSIBLE INDIVIDUAL STATE

LAW CLAIMS AGAINST TWC .................................................................................. 26
A. The Near Decade-Old State Law Claims Against TWC Should Be

Dismissed As Time-Barred ................................................................................ 26
1. By Plaintiffs’ Own Pleading, The Individual State Law Claims Of

Geiss And Thomas Against TWC Are Time-Barred ............................... 27
i
2. Plaintiffs Have Failed To Plead Viable Facts That Tolling Should

Apply To The Individual State Law Claims ............................................ 29
a. New York Law Regarding Tolling Exceptions ............................ 30
b. Connecticut Law Regarding Tolling Exceptions .......................... 31
c. Geiss And Thomas Fail To Establish Any Basis That Their

Time-Barred Claims Should Be Tolled ....................................... 31
B. The Individual Claims Of Civil Battery, Assault, And Negligent And

Intentional Infliction Of Emotional Distress Against TWC Should Be
Dismissed Because Plaintiffs Geiss And Thomas Have Failed To Plead A
Plausible Theory Of Vicarious Liability ............................................................. 33
1. Plaintiffs Geiss And Thomas Have Failed To Plead Facts

Demonstrating That Liability May Be Extended To TWC Based
On A Theory Of Respondeat Superior .................................................... 33
2. Plaintiffs Geiss And Thomas Have Not Pleaded Facts

Demonstrating That Liability May Be Extended To TWC Based
On A Theory Of Ratification .................................................................. 36
C. The Individual Claims Of Negligent Retention And Supervision Against

TWC Should Be Dismissed Because The Alleged Conduct Did Not Occur
On TWC’s Premises Or With TWC Chattels ...................................................... 37
D. The Individual Claims Of Negligent Infliction Of Emotional Distress

Against TWC Should Be Dismissed Because Plaintiffs’ Fail To Plead Any
Viable Facts That TWC Owed Them a Duty ...................................................... 38
E. The Ratification Claim Against TWC Also Should Be Dismissed Because

Ratification Is Not a Stand Alone Cause Of Action ............................................ 39
V. THE COURT ALSO SHOULD STRIKE PLAINTIFFS’ CLASS

ALLEGATIONS AS THEY ARE LEGALLY DEFICIENT .......................................... 40
A. Plaintiffs’ Class Claims Under Rules 23(b)(2) And 23(c)(4) Should Be

Stricken Because No Plaintiff Has A Legally Cognizable Interest In The
Outcome ............................................................................................................ 41
B. Plaintiffs’ Class Claims Under Rules 23(b)(2) And 23(c)(4) Should Be

Stricken Because The Complaint Demonstrates That Plaintiffs Cannot
Certify Either Class ............................................................................................ 41
C. The Court Should Strike Plaintiffs’ Rule 23(b)(2) Class Allegations

Because Plaintiffs All Lack Standing To Seek An Injunction ............................. 43
ii
CONCLUSION ......................................................................................................................... 47
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Agency Holding Corp v. Malley-Duff & Assocs. Inc.,

483 U.S. 143 (1987) ............................................................................................................ 11
Allen v. Wright,
468 U.S. 737 (1984) ............................................................................................................ 43
Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ............................................................................................................ 24
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ..................................................................................................... passim
Barticheck v. Fidelity Union Bank/First Nat’l State,

832 F.2d 36 (3d Cir. 1987). ................................................................................................. 20
Bd. of Sch. Comm’rs of Indianapolis v. Jacobs,

420 U.S. 128 (1975) ............................................................................................................ 41
Bell Atlantic v. Twombly,

550 U.S. 544 (2007) ..................................................................................................... passim
Botticello v. Stefanovicz,
177 Conn. 22 (1979)............................................................................................................ 37
BS Sun Shipping Monrovia v. Citgo Petroleum Corp.,

509 F. Supp. 2d 334 (S.D.N.Y. 2007) .................................................................................. 36
Buell Indus., Inc. v. Greater N.Y. Mut. Ins. Co.,

791 A.2d 489 (2002). .................................................................................................... 31, 32
Carver v. City of New York,

621 F.3d 221 (2d Cir. 2010) ................................................................................................ 21
Charron v. Pinnacle Grp. N.Y. LLC,

269 F.R.D. 221 (S.D.N.Y. 2010) ......................................................................................... 42
Chase Manhattan Mortg. Corp. v. Machado,

850 A.2d 260 (Conn. Ct. App. 2004). ............................................................................ 31, 32
Chen-Oster v. Goldman, Sachs & Co.,

877 F. Supp. 2d 113 (S.D.N.Y. 2012) ............................................................................ 44, 45
iv
Chiaramonte v. Animal Med. Ctr.,

677 F. App’x 689 (2d Cir. 2017) ......................................................................................... 34
Clark v. Buffalo Wire Works Co.,

3 F. Supp. 2d 366 (W.D.N.Y. 1998) .............................................................................. 36, 39
Cofacredit, S.A. v. Windsor Plumbing Supply Co.,

187 F.3d 229 (2d Cir. 1999) .......................................................................................... 10, 20
Colony at Holbrook, Inc. v. Strata G.C., Inc.,

928 F. Supp. 1224 (E.D.N.Y. 1996)..................................................................................... 19
Comm. to Protect Our Agric. Water v. Occidental Oil & Gas Corp.,
235 F. Supp. 3d 1132 (E.D. Cal. 2017) .......................................................................... 17, 19
Condos Bros. Constr. Corp. v. Main St. Am. Assurance Co.,

No. 16 CV 4769, 2017 WL 5591625 (E.D.N.Y. Nov. 17, 2017) .......................................... 25
Cooper v. U.S. Postal Serv.,

577 F.3d 479 (2d Cir. 2009) ................................................................................................ 43
Cty. of Los Angeles v. Davis,

440 U.S. 625 (1979) ............................................................................................................ 41
Dandong Old N.-E. Agric. & Animal Husbandry Co. v. Hu,

No. 15 Civ. 10015, 2017 WL 3328239 (S.D.N.Y. Aug. 3, 2017) ......................................... 25
DeFalco v. Bernas,
244 F.3d 286 (2d Cir. 2001) ................................................................................................ 12
Deshawn E. by Charlotte E. v. Safir,

156 F.3d 340 (2d Cir. 1998) ................................................................................................ 43
DiVittorio v. Equidyne Extractive Indus., Inc.,

822 F.2d 1242 (2d Cir. 1987)............................................................................................... 19
DLJ Mortg. Capital, Inc. v. Kontogiannis,

726 F. Supp. 2d 225 (E.D.N.Y. 2010) .................................................................................. 11
Doe v. Alsaud,
12 F. Supp. 3d 674 (S.D.N.Y. 2014) .............................................................................. 34, 36
Ehrens v. Lutheran Church,

385 F.3d 232 (2d Cir. 2004) ................................................................................................ 38
Flexborrow LLC v. TD Auto Fin. LLC,

255 F. Supp. 3d 406 (E.D.N.Y. 2017) .................................................................................. 11
v
FW/PBS, Inc. v. Dallas,

493 U.S. 215 (1990) ............................................................................................................ 45
Galvani v. Nassau Cnty. Police Indemnification Review Bd.,

242 A.D.2d 64 (2d Dep’t 1998) ........................................................................................... 34
GICC Capital Corp. v. Tech. Fin. Group, Inc.,

67 F.3d 463 (2d Cir. 1995) ............................................................................................ 20, 21
Gitman v. Pearson Educ., Inc.,

No. 14 Civ. 8626, 2015 WL 5122564 (S.D.N.Y. Aug. 31, 2015) ........................................... 9
Glob. Fin. Corp. v. Triarc Corp.,

93 N.Y.2d 525 (1999).......................................................................................................... 27
Golden v. Zwickler,
394 U. S. 103 (1969) ........................................................................................................... 43
Gordon v. Hain Celestial Group, Inc.,

16 Civ. 652, 2017 WL 213815 (S.D.N.Y. Jan. 18, 2017) ..................................................... 45
Great Rivers Co-op. of Se. Iowa v. Farmland Indus., Inc.,

120 F.3d 893 (8th Cir. 1982) ............................................................................................... 42
Green v. Emmanuel African Methodist Episcopal Church,

718 N.Y.S.2d 324 (1st Dep’t 2000) ..................................................................................... 28
Gross v. Waywell,
628 F. Supp. 2d 475 (S.D.N.Y. 2009) .................................................................................. 11
Haybeck v. Prodigy Servs. Co.,

944 F. Supp. 326 (S.D.N.Y. 1996) ....................................................................................... 34
Hollander v. Flash Dancers Topless Club,

340 F. Supp. 2d 453 (S.D.N.Y. 2004) .................................................................................. 21
Holm v. C.M.P. Sheet Metal, Inc.,

455 N.Y.S.2d 429 (4th Dep’t 1982) ..................................................................................... 37
Holmes v. Sec. Investor Prot. Corp.,

503 U.S. 258 (1992) ............................................................................................................ 24
Judith M. v. Sisters of Charity Hosp.,

93 N.Y.2d 932 (2d Dep’t 1999) ..................................................................................... 34, 36
K.I. v. New York City Bd. of Educ.,

256 A.D.2d 189 (1st Dep’t 1998)......................................................................................... 33
vi
Katzman v. Victoria’s Secret Catalogue,

167 F.R.D. 649 (S.D.N.Y. 1996) ................................................................................... 10, 25
Kerik v. Tacopina,
64 F. Supp. 3d 542 (S.D.N.Y. 2014) .................................................................................... 23
Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941) ............................................................................................................ 27
Landesbank Baden-Württemberg v. RBS Holdings USA, Inc.,

14 F. Supp. 3d 488 (S.D.N.Y. 2014) ...................................................................................... 8
LLM Bar Exam, LLC v. Barbri, Inc.,

16 Civ. 3770, 2017 WL 4280952 (S.D.N.Y. Sept. 25, 2017)................................................ 10
Makowski v. United Bd. of Carpenters & Joiners of Am.,

No. 08 Civ. 6150, 2010 WL 3026510 (S.D.N.Y. Aug. 2, 2010) ..................................... 22, 23
Mayfield v. Asta Funding, Inc.,

95 F. Supp. 3d 685 (S.D.N.Y. 2015) .................................................................................... 42
McCarthy v. Volkswagen of Am., Inc.,

55 N.Y.2d 543 (1980).......................................................................................................... 30
Miller v. Carpinello,
No. 06 CV 12940 (LAP), 2007 WL 4207282 (S.D.N.Y. Nov. 20, 2007) ........................ 14, 15
Moore v. PaineWebber, Inc.,

189 F.3d 165 (2d Cir. 1999) ................................................................................................ 17
Morgan v. Cnty. of Nassau,

720 F. Supp. 2d 229 (E.D.N.Y. 2010) .................................................................................. 39
Mortise v. United States,

102 F.3d 693 (2d Cir. 1996) ................................................................................................ 38
Nicosia v. Amazon.com, Inc.,

834 F. 3d 220 (2d Cir. 2016) ......................................................................................... 43, 45
O’Shea v. Littleton,
414 U.S. 488 (1974) ............................................................................................................ 43
Overall v. Estate of LHP Klotz,

52 F. 3d 398 (2d Cir. 1995) ............................................................................... 29, 30, 31, 32
Pilgrim v. Universal Health Card, LLC,

660 F.3d 943 (6th Cir. 2011) ............................................................................................... 40
vii
Red Ball Interior Demolition Corp. v. Palmadessa,

874 F. Supp. 576 (S.D.N.Y. 1995) ....................................................................................... 25
Retherford v. AT&T Commc'ns,

844 P.2d 949 (Utah 1992).................................................................................................... 28
RLI Ins. Co. v. Athan Contracting Corp.,

667 F. Supp. 2d 229 (E.D.N.Y. 2009) .................................................................................. 36
Rotella v. Wood,
528 U.S. 549 (2000) ............................................................................................................ 12
Rothschild v. Title Guarantee & Trust Co.,

204 N.Y. 458 (1912)............................................................................................................ 39
Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479 (1985) ...................................................................................................... 13, 21
Selkirk v. New York,

249 A.D.2d 818 (3d Dep’t 1998) ............................................................................. 30, 31, 32
Smith Barney, Harris Upham & Co., Inc. v. Luckie,

85 N.Y.2d 193 (1995).......................................................................................................... 30
Sony Music Entmt. Inc. v. Robison,

No. 01 Civ. 6415, 2002 WL 272406 (S.D.N.Y. Feb. 26, 2002) ............................................ 19
Sperber v. Boesky,
849 F.2d 60 (2d Cir.) ........................................................................................................... 24
Stuart v. Snyder,
8 A.3d 1126 (Conn. Ct. App. 2010) ............................................................................... 31, 32
Tardibuono–Quigley v. HSBC Mortg. Corp. (USA),

No. 15 Civ. 6940, 2017 WL 1216925 (S.D.N.Y. Mar. 30, 2017).......................................... 10
Todd v. United States,

No. C-11-0470, 2012 WL 2952084 (W.D. Wash. June 26, 2012) ........................................ 16
Tomka v. Seiler Corp.,

66 F.3d 1295 (2d Cir. 1995) .......................................................................................... 34, 36
In Re Trilegiant Corp., Inc.,

11 F. Supp. 3d 82 (D. Conn. 2014) ................................................................................ 12, 25
Trs. of Plumbers & Pipefitters Nat’l Pension Fund v. Transworld Mech., Inc.,
886 F. Supp. 1134 (S.D.N.Y. 1995). .................................................................................... 12
viii
Tsipouras v. W & M Props., Inc.,

9 F. Supp. 2d 365 (S.D.N.Y. 1998) ...................................................................................... 21
Twersky v. Yeshiva Univ.,

993 F. Supp. 2d 429 (S.D.N.Y. 2014) ...................................................................... 29, 32, 33
United States v. Binday,

804 F.3d 558 (2d Cir. 2015) ................................................................................................ 15
United States v. Desposito,

704 F.3d 221 (2d Cir. 2013) ................................................................................................ 15
United States v. Walls,

784 F.3d 543 (9th Cir. 2015) ............................................................................................... 16
Vincent v. Money Store,

915 F. Supp. 2d. 553 (S.D.N.Y. 2003) ................................................................................. 27
Wahlstrom v. Metro-N. Commuter R.R. Co.,

89 F. Supp. 2d 506 (S.D.N.Y. 2000) .................................................................................... 39
Wait v. Beck N. Am. Inc.,

241 F. Supp. 2d 172 (N.D.N.Y. 2003) ........................................................................... 34, 36
Williams v. Dow Chem. Co.,

255 F. Supp. 2d 219 (S.D.N.Y. 2003) .................................................................................. 21
World Wrestling Entm’t, Inc. v. Jakks Pac., Inc.,

530 F. Supp. 2d 486 (S.D.N.Y. 2007), aff’d, 328 F. App’x 695 (2d Cir. 2009)..................... 23
Yong Wen Mo v. Gee Ming Chan,

17 A.D.3d 356 (2d Dep’t 2005) ........................................................................................... 28
Zumpano v. Quinn,
6 N.Y.3d 666 (2006)...................................................................................................... 30, 32
Statutes
18 U.S.C. § 1512 ........................................................................................................... 13, 14, 15
18 U.S.C. § 1515(a)(1) .............................................................................................................. 15
18 U.S.C. § 1590 ........................................................................................................... 13, 15, 16
18 U.S.C. § 1591 ............................................................................................................. 5, 13, 16
18 U.S.C. § 1961(1) ............................................................................................................ 12, 13
18 U.S.C. § 1961(5) ............................................................................................................ 12, 20
ix
18 U.S.C. § 1962(c) ........................................................................................................... passim
18 U.S.C. § 1962(d) ........................................................................................................ 2, 25, 26
18 U.S.C. § 1964(c) ............................................................................................................ 21, 24
22 U.S.C. § 7101(a) .................................................................................................................. 16
22 U.S.C. § 7101(b)(1) .............................................................................................................. 16
22 U.S.C. § 7102 ....................................................................................................................... 16
29 U.S.C. § 1332(d)(2) .............................................................................................................. 27
Ct. Gen. Stat. § 52-577 .............................................................................................................. 28
Ct. Gen. Stat. § 52-584 .............................................................................................................. 28
Utah Code Ann. § 78-12-25(3) .................................................................................................. 28
Utah Code Ann. § 78B-2-307(3) ............................................................................................... 28
Other Authorities
About The Weinstein Company, available at http://weinsteinco.com/about-us............................. 4
CPLR § 202 .............................................................................................................................. 27
CPLR § 214(5) .......................................................................................................................... 28
CPLR § 215(3) .......................................................................................................................... 28
Fed. R. Civ. P. 9(b) ............................................................................................................. 17, 19
Fed. R. Civ. P. 11 ........................................................................................................................ 3
Fed. R. Civ. P. 12(b)(6) ............................................................................................................... 1
Fed. R. Civ. P. 12(f) ............................................................................................................ 1, 8, 9
Fed. R. Civ. P. 23(a).................................................................................................................. 42
Fed. R. Civ. P. 23(b)(2) ................................................................................................. 40, 45, 46
Fed. R. Civ. P. 23(c)(1)(A) .......................................................................................................... 9
Fed. R. Civ. P. 23(c)(4) ............................................................................................................. 40
Fed. R. Civ. P. 23(d)(1)(D)...................................................................................................... 1, 9
x
5 Moore’s Federal Practice § 23.145 (3d ed. 2007)...................................................................... 9
U.S. Attorney's Manual, Criminal Resource Manual, §1729 ...................................................... 15
U.S. Const. art. III, § 2 ........................................................................................................ 43, 45
xi
Pursuant to Rules 12(b)(6), 12(f), and 23(d)(1)(D) of the Federal Rules of Civil
Procedure, Defendant The Weinstein Company Holdings, LLC (“TWC”), by and through its
attorneys, Seyfarth Shaw LLP, respectfully submits this Memorandum of Law In Support of Its
Motion to Dismiss and Strike the Class Allegations in the Complaint against TWC filed by
Plaintiffs Louisette Geiss (“Geiss”), Katherine Kendall (“Kendall”), Zoe Brock (“Brock”), Sarah
Ann Thomas (a/k/a Sarah Ann Masse) (“Thomas”), Melissa Sagemiller (“Sagemiller”), and
Nannette Klatt (“Klatt”) (collectively “Plaintiffs”).
PRELIMINARY STATEMENT
The six Plaintiffs in this action have filed a broad-sweeping Class Action Complaint (the
“Complaint”), asserting fourteen separate federal and state law claims on behalf of themselves,
and purportedly on behalf of a putative class of every woman who met Harvey Weinstein (“H.
Weinstein”) in person in a wide variety of contexts (including both professional and purely social
contexts) at any point in history. Virtually all of the alleged conduct about which Plaintiffs
complain in the Complaint was committed by H. Weinstein, acting alone, between ten and
twenty-five years ago.
Even though all of Plaintiffs’ claims are premised on the alleged conduct of H. Weinstein
and H. Weinstein only, Plaintiffs assert their claims against numerous other Defendants,
including TWC; Miramax, LLC; Miramax Film Corp.; and Miramax Film NY LLC; Robert
Weinstein (“R. Weinstein”) (H. Weinstein’s brother and former business partner); and nine
current and former Board Members of TWC. Plaintiffs attempt to hook these numerous other
individuals and entities into this lawsuit by asserting that all of them, as well as numerous law
firms, private investigator firms, and media participants (who are nevertheless not named as
parties to this lawsuit), were all part of a decades-long massive, yet secret, criminal sexual
enterprise, in violation of the RICO statute. According to Plaintiffs, this alleged RICO enterprise
1
remained undiscovered until very recently when The New York Times published an article in
October 2017 detailing multiple allegations of sexual harassment against H. Weinstein.
Plaintiffs Geiss and Thomas also seek to assert individual state common law claims against TWC
(and other Defendants) under traditional principles of vicarious liability. 1
The fundamental flaw with Plaintiffs’ case theory as it applies to TWC is that all of
Plaintiffs’ claims — both RICO and the state common law claims Plaintiffs Geiss and Thomas
assert against TWC — are time-barred. In other words, Plaintiffs’ own pleading on its face
shows that the claims are all based on conduct that occurred a decade or more ago, and therefore
the limitation periods for all of Plaintiffs’ claims expired years ago. Furthermore, Plaintiffs’ own
pleading demonstrates on its face that there is no legal basis on which the limitation periods
should be tolled, and thus all of Plaintiffs’ claims against TWC should be dismissed at the outset.
Furthermore, while Plaintiffs’ conclusory allegations of a secret criminal sexual
enterprise may make for good newspaper copy, they fail to satisfy the pleading requirements set
forth in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009), that require a plaintiff to state a plausible claim for relief to survive a motion to dismiss.
Here, Plaintiffs’ Complaint fails to plead numerous essential elements of a RICO claim. For
example, Plaintiffs fail to allege the requisite predicate acts underlying any RICO claim. While
Plaintiffs allege in conclusory fashion the existence of such predicate acts, they fail to plead facts
plausibly suggesting that TWC committed a single predicate act, let alone the two acts required
1
The claims against TWC are as follows: Violation of RICO, 18 U.S.C. § 1962(c), brought by all Plaintiffs
against all Defendants (Count One); Conspiracy to Violate RICO, 18 U.S.C. § 1962(d), brought by all Plaintiffs
against all Defendants (Count Two); Negligent Supervision and Retention, brought by Geiss and Thomas against
TWC and TWC’s Board Members (Count Four); Civil Battery, brought by Geiss and Thomas against TWC and H.
Weinstein (Count Six); Assault, brought by Geiss and Thomas against TWC and H. Weinstein (Count Eight);
Intentional Infliction of Emotional Distress, brought by Geiss and Thomas against TWC and H. Weinstein (Count
Ten); Negligent Infliction of Emotional Distress, brought by Geiss and Thomas against TWC and H. Weinstein
(Count Twelve); and Ratification; brought by Geiss and Thomas against TWC and TWC’s Board Members (Count
Fourteen).
2
to state a claim. Plaintiffs also fail to plead facts demonstrating that TWC’s alleged participation
in the RICO enterprise is ongoing. They cannot do so consistent with the requirements of Rule
11. As Plaintiffs admit, TWC terminated H. Weinstein’s employment thereby severing their
connection to the alleged central figure in the purported “enterprise.” Plaintiffs also fail to plead
facts demonstrating that any Plaintiff has standing to assert a RICO claim, which requires
Plaintiffs to show that the alleged “racketeering activity” was the proximate cause of an
identifiable injury to their business or property. Further, none of the Plaintiffs have pleaded facts
demonstrating any concrete, non-speculative injury to their business prospects, nor have they
alleged how TWC’s alleged conduct was the direct cause of such injury. For these reasons,
Plaintiffs’ RICO claims against TWC should be dismissed.
Likewise, the individual state common law tort claims that Geiss and Thomas bring
against TWC also should be dismissed as inadequately pleaded. Plaintiffs have failed to plead
facts sufficient to demonstrate that TWC should be held liable for the alleged conduct of H.
Weinstein. While Plaintiffs allege in purely conclusory terms that H. Weinstein was acting
within the scope of his employment during his alleged interactions with Geiss and Thomas, that
does not suffice under Twombly and Iqbal. Moreover, the general rule in New York is that
claims of sexual impropriety and other intentional torts are not within the scope of an employee’s
employment and Plaintiffs fail to plead facts showing otherwise. Neither may TWC be held
liable for H. Weinstein’s alleged conduct based on Plaintiffs’ novel theory of ratification. This is
because ratification is a doctrine applicable to contract law, not to tort liability, and therefore it
cannot form the basis of extending potential liability to TWC.
Finally, the Court should also strike all of Plaintiffs’ class allegations because, by
Plaintiffs’ own pleading, none of the Plaintiffs have a legally cognizable interest in the outcome
3
of their class claims. Further, the Complaint demonstrates that Plaintiffs cannot certify any
purported class under either Rule 23(b)(2) or Rule 23(c)(4). Plaintiffs’ class allegations under
Rule 23(b)(2) should also be stricken because all Plaintiffs lack standing to pursue injunctive
relief.
For these reasons, and those set forth herein in more detail, all of Plaintiffs’ claims
against TWC should be dismissed and their class allegations should be stricken as to TWC.
STATEMENT OF FACTS
Plaintiffs filed their Complaint in this matter on December 6, 2017. (ECF No. 1.) Set
forth below are the factual allegations in the Complaint pertinent to TWC’s motion to dismiss. 2
H. Weinstein and R. Weinstein founded TWC, a multimedia production and distribution
company, in October 2005. (See Compl. ¶ 37; see also About The Weinstein Company,
http://weinsteinco.com/about-us.) TWC is a Delaware company with its principal place of
business in New York City. (Compl. ¶ 17.) TWC employed H. Weinstein from 2005 through
October 2017, when the company terminated his employment. (Id. ¶¶ 4, 22.) Prior to founding
TWC, H. Weinstein was employed by Miramax, where he worked until September 30, 2005.
(Id. ¶ 220.)
According to the Complaint, H. Weinstein’s contract with TWC allegedly stated that if he
treated someone improperly in violation of the company’s Code of Conduct, he would be
required to reimburse TWC for settlements or judgments and pay the company liquidated
damages of $250,000 for the first instance, $500,000 for the second such instance, $750,000 for
the third instance, and $1,000,000 for each additional incident. (Id. ¶ 132.)
2
For purposes of this motion to dismiss only, the factual allegations in the Complaint are assumed to be true.
4
Plaintiffs are women who have worked in the entertainment industry. (Id. ¶¶ 11-16.) All
but one resides in California. (Id. (the one Plaintiff who does not currently reside in California,
Brock, alleges that she currently resides in New Zealand).) Each Plaintiff alleges that she was
involved in an incident with H. Weinstein that she claims amounts to an assault. (Id.) All of the
conduct giving rise to Plaintiffs’ claims allegedly occurred somewhere between ten and twenty-
five years ago, depending on the Plaintiff. (Id.; see also id. ¶¶ 48-120.3)
Plaintiffs allege that all Defendants were part of a criminal RICO enterprise. (Id. ¶ 5.)
Plaintiffs allege that all Defendants collectively (without identifying which individual or entity
allegedly did what) conducted and participated in the enterprise by witness tampering (id. ¶ 196
(citing 18 U.S.C. § 1512)), sex trafficking (id. (citing 18 U.S.C. §§ 1590, 1591)), and committing
mail and wire fraud (id.). Plaintiffs do not plead facts identifying any witness with whom TWC
allegedly tampered. They also do not identify any purported victim of sex trafficking by TWC
or allege how TWC participated in sex trafficking. Nor do they identify any fraudulent material
that TWC allegedly transmitted or received via the mail or wires.
Only two Plaintiffs — Geiss and Thomas — bring individual state common law tort
claims against TWC. (Id. ¶¶ 225-30, 238-44, 251-56, 265-72, 281-88, 295-300.) The remaining
four Plaintiffs (Kendall, Brock, Sagemiller, and Klatt) bring claims arising from conduct that
allegedly occurred before September 2005 — i.e., before TWC existed as a legal entity — and
do not assert state law claims against TWC. (Id. ¶¶ 219-24, 231-37, 245-50, 257-64, 273-80,
289-94.)
3
Kendall’s alleged interaction with H. Weinstein was in 1993. (Compl. ¶ 48.) Brock’s alleged interaction
with H. Weinstein was in 1998. (Id. ¶ 71.) Sagemiller’s alleged interaction with H. Weinstein was in 2000. (Id. ¶
84.) Geiss’s alleged interaction with H. Weinstein was in 2008. (Id. ¶ 96.) Thomas’s alleged interaction with H.
Weinstein was in 2008. (Id. ¶ 104.) While Plaintiffs do not plead exactly when Klatt’s alleged interaction with H.
Weinstein occurred, because she alleges that it occurred in H. Weinstein’s office in a building occupied by Miramax
(id. ¶ 115), and because Klatt asserts individual claims against Miramax and does not assert claims against TWC
(see id. ¶¶ 219-300), it could not have occurred after September 30, 2005.
5
Geiss alleges that she met H. Weinstein in his private hotel room in 2008 in Park City,
Utah. (Id. ¶ 96.) She alleges that during this encounter H. Weinstein assaulted her. (Id. ¶¶ 96-
103.) Geiss does not allege any conduct or action by TWC or any of its employees other than H.
Weinstein. (Id. ¶¶ 96-103.) She does not allege any interaction with H. Weinstein or any TWC
employee after 2008. Geiss does not plead that she reported the alleged assault to any TWC
employee or that anybody at TWC was aware of the alleged assault.
Thomas alleges that she met H. Weinstein in 2008 when she interviewed for a personal
nanny position for H. Weinstein’s children. (Id. ¶ 104-07.) The interview took place in H.
Weinstein’s private home in Connecticut. (Id. ¶ 106.) Before interviewing with H. Weinstein,
Thomas allegedly interviewed with Weinstein’s female assistants from TWC and the assistants
allegedly scheduled the interview with H. Weinstein. (Id. ¶ 105.) Thomas alleges that during
her meeting with H. Weinstein regarding the nanny position, he assaulted her. (Id. ¶¶ 104-14.)
Thomas alleges that a few days later H. Weinstein’s assistant informed her that she did not get
the job. (Id. ¶ 113.) Other than H. Weinstein’s assistants, Thomas does not allege any conduct
or action by TWC or any of its employees other than H. Weinstein. She does not allege that any
TWC employee other than H. Weinstein or his assistants knew that H. Weinstein was
interviewing Thomas for a private nanny position. She does not allege any interaction with H.
Weinstein or any TWC employee after 2008. She does not plead that she reported the alleged
assault to any TWC employee or that anybody at TWC was aware of the alleged assault.
Thomas alleges that she heard rumors that casting directors had complained about Thomas’s
public position vis-à-vis her allegations against H. Weinstein. (Id. ¶ 114.) Thomas does not
allege that the casting directors were employees of TWC.
6
In their Complaint, Plaintiffs allege a nationwide class and two state-law subclasses. (Id.
¶¶ 183-85.) Plaintiffs define the nationwide class as all women who met with H. Weinstein in
person to audition for, or discuss, involvement in a project to be produced or distributed by either
TWC or Miramax, depending on the time period, and all women who met with H. Weinstein in a
meeting or event facilitated, hosted, or underwritten by TWC or Miramax, depending on the time
period. (Id. ¶ 183.) Plaintiffs bring their nationwide class against all Defendants for alleged
RICO violations. (Id. ¶¶ 212-18.) Plaintiffs’ first state-law subclass is against TWC; the other
against Miramax. (Id. ¶¶ 184-85.) The subclass definitions are the same as the nationwide class
definition, except apply to TWC or Miramax depending on the time period. (See id. ¶¶ 184-85.)
Only two Plaintiffs (Geiss and Thomas) bring state law subclasses against TWC. 4
Plaintiffs allege that TWC’s purported actions caused injury to Plaintiffs and the
members of the putative class. (Id. ¶¶ 2, 7.) They allege that H. Weinstein’s behavior,
purportedly facilitated by TWC, caused Plaintiffs severe emotional and physical distress and
injured Plaintiffs’ business prospects, career, and reputation. (Id. ¶ 2.) Plaintiffs allege that the
last act of the purported “Weinstein Sexual Enterprise” — a telephone call to Plaintiff Kendall
— occurred in 2017, however, they do not allege that this act was by or at the direction of TWC.
(Id. ¶ 7.) In fact, Plaintiffs do not identify any purported actions by TWC that they allege caused
them injury or will likely cause them future injury.
4
The state law causes of action against TWC are for negligent supervision and retention, civil battery,
assault, ratification, and intentional and negligent infliction of emotional distress. (Compl. ¶¶ 225-30, 238-44, 251-
56, 265-72, 281-88, 295-300.)
7
ARGUMENT
I. LEGAL STANDARDS FOR A MOTION TO DISMISS AND MOTION TO

STRIKE CLASS ALLEGATIONS
It is well established that in order to survive a motion to dismiss and state a viable claim,
a complaint must allege sufficient facts, which, if accepted as true, state a claim for relief that is
“plausible on its face.” Twombly, 550 U.S. at 570. Importantly, it is not enough to allege facts
that merely raise the “sheer possibility that a defendant has acted unlawfully,” nor is it sufficient
to rely on “labels and conclusions” or “naked assertion[s]” devoid of “further factual
enhancement.” Iqbal, 556 U.S. at 678. Rather, the Complaint must allege facts that move a
claim “across the line from conceivable to plausible.” Twombly, 550 U. S. at 570. Where a
complaint “pleads facts that are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678.
Though this Court must accept the factual allegations of a complaint as true, it is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555.
Where, as here, the Complaint fails to state a “plausible” claim, the Complaint should be
dismissed early and “at the point of minimum expenditure of time and money by the parties and
the court.” Id. at 557-58.
Rule 12(f) provides that the Court may strike from a pleading “an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). To prevail
on a motion under Rule 12(f), the moving party must show that “[i] no evidence in support of the
allegations would be admissible; [ii] that the allegations have no bearing on the issues in the
case; and [iii] that to permit the allegations to stand would result in prejudice to the movant.”
Landesbank Baden-Württemberg v. RBS Holdings USA, Inc., 14 F. Supp. 3d 488, 497 (S.D.N.Y.
2014). A defendant can use Rule 12(f) to strike class allegations where it would be impossible to
8
certify a class as a matter of law or the purported class fails as a matter of law. Mayfield v. Asta
Funding, Inc., 95 F. Supp. 3d 685, 696 (S.D.N.Y. 2015).
Rule 23(d)(1)(D) provides that when the plaintiffs are trying to bring a class action under
Rule 23, the Court may issue an order that requires the pleadings to be “amended to eliminate
allegations about representation of absent persons and that the action proceed accordingly.” Fed.
R. Civ. P. 23(d)(1)(D). A party may move to strike class allegations in a complaint under this
rule if the complaint “demonstrates that a class action cannot be maintained.” Gitman v. Pearson
Educ., Inc., No. 14 Civ. 8626, 2015 WL 5122564, at *3 (S.D.N.Y. Aug. 31, 2015). This rule
permits the Court to “order deletion of portions [of] a complaint’s class claims once it becomes
clear that the plaintiffs cannot possibly prove the deleted portion of those claims.” 5 Moore’s
Fed. Practice § 23.145 (3d ed. 2007).
Rules 12(f) and 23(d)(1)(D) both permit a defendant to move to strike class allegations at
the very beginning of the case before engaging in discovery. Whether a defendant moves under
Rule 12(f), Rule 23(d)(1)(D), or both, the analysis is the same. Compare Gordon v. Hain
Celestial Group, Inc., 16 Civ. 652, 2017 WL 213815, at *6 (S.D.N.Y. Jan. 18, 2017), with
Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 462 (S.D.N.Y. 2013). In the context of moving to
strike class allegations, both rules are often read in connection with Rule 23(c)(1)(A), which
provides that the court must determine whether to certify the action as a class action at “an early
practicable time after a person sues.” Fed. R. Civ. P. 23(c)(1)(A); see, e.g., Gordon, 2017 WL
213815, at *6.
In this case, the Complaint is precisely the type of baseless pleading that the Supreme
Court rejected in Twombly and Iqbal. Even if Plaintiffs’ claims were to survive dismissal, the
Court should strike their class allegations because Plaintiffs lack a legally cognizable interest in
9
representing a class and lack standing to bring them. As a result, this Court should dismiss the
Complaint for failure to state a claim, or strike all class allegations in the Complaint.
II. PLAINTIFFS FAIL TO PLEAD A PLAUSIBLE RICO VIOLATION

AGAINST TWC
Plaintiffs assert that TWC is liable under 18 U.S.C. § 1962(c) of the RICO statute, which
creates a civil cause of action against a person who is employed by, or associated with, an
enterprise engaged in interstate commerce, and conduct or participate in the conduct of its affairs
“through a pattern of racketeering activity.” 18 U.S.C. § 1962(c) (emphasis added); see LLM
Bar Exam, LLC v. Barbri, Inc., 16 Civ. 3770, 2017 WL 4280952, at *26-27 (S.D.N.Y. Sept. 25,
2017). To plead a civil RICO claim under § 1962(c), a plaintiff must plead the following
elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”
Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 242 (2d Cir. 1999); see also
Tardibuono–Quigley v. HSBC Mortg. Corp. (USA), No. 15 Civ. 6940, 2017 WL 1216925, at *5
(S.D.N.Y. Mar. 30, 2017) (“[T]o establish a defendant’s violation of 18 U.S.C. § 1962, a plaintiff
must allege ‘the existence of seven constituent elements: [i] that the defendant [ii] through the
commission of two or more acts [iii] constituting a pattern [iv] of racketeering activity [v]
directly or indirectly invests in, or maintains an interest in, or participates in [vi] an enterprise
[vii] the activities of which affect interstate or foreign commerce.’” (internal quotation marks
omitted) (quoting Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983)).
Courts have described a civil RICO claim as “‘an unusually potent weapon — the
litigation equivalent of a thermonuclear device.’” Katzman v. Victoria’s Secret Catalogue, 167
F.R.D. 649, 655 (S.D.N.Y. 1996) (quoting Miranda v. Ponce Fed. Bank, 948 F.2d 41, 44 (1st
Cir. 1991), aff’d, 113 F.3d 1229 (2d Cir. 1997)). “Because the ‘mere assertion of a RICO
claim . . . has an almost inevitable stigmatizing effect on those named as defendants, . . . courts
10
should strive to flush out frivolous RICO allegations at an early stage of the litigation.’” Id.
(quoting Figueroa Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990)). RICO claims also expose
defendants to potentially extremely burdensome discovery, further necessitating close court
scrutiny at the pleading stage. See Flexborrow LLC v. TD Auto Fin. LLC, 255 F. Supp. 3d 406,
420 (E.D.N.Y. 2017) (holding in RICO action that due to “‘the absence of any prima facie
showing’ of a cognizable pattern of racketeering activity, the Court will not ‘subject defendant[ ]
to the burden and expense of discovery (which likely would result in a fishing expedition)’”
(quoting Norvel Ltd. v. Ulstein Propeller AS, 161 F. Supp. 2d 190, 208 (S.D.N.Y. 2001)); see
also Twombly, 550 U.S. at 558-59 (noting the importance of the court’s job in weeding out
pleadings lacking in specificity, especially where the claims may expose the defendant to
expansive and expensive discovery).
Accordingly, courts have expressed skepticism toward civil RICO claims at the pleadings
stage. See DLJ Mortg. Capital, Inc. v. Kontogiannis, 726 F. Supp. 2d 225, 236 (E.D.N.Y. 2010)
(“Plaintiffs have often been overzealous in pursuing RICO claims, flooding federal courts by
dressing up run-of-the-mill fraud claims as RICO violations.”). And although a civil RICO
claim may be a “potent weapon,” plaintiffs wielding RICO claims often miss the mark at that
stage. See Gross v. Waywell, 628 F. Supp. 2d 475, 479-83 (S.D.N.Y. 2009) (discussing high rate
of civil RICO cases resolved in defendants’ favor both on the merits and at the motion to dismiss
stage).
A. Plaintiffs’ Claims Are Barred By The RICO Statute Of Limitations
It is apparent from the face of their Complaint that Plaintiffs’ claims are time-barred. The
statute of limitations applicable for a civil RICO claim is four years. Agency Holding Corp v.
Malley-Duff & Assocs. Inc., 483 U.S. 143, 156 (1987). “Discovery of the injury, not discovery of
11
the other elements of a claim, is what starts the clock” for a RICO claim. Rotella v. Wood, 528
U.S. 549, 555 (2000).
Here, Plaintiffs are individuals who, by their own pleading, were allegedly injured based
on their isolated, one-on-one dealings with H. Weinstein that allegedly occurred between 1993
and 2008. (See Compl. ¶¶ 59, 61, 83, 95, 102-03, 114, 120.) By their own pleading, Plaintiffs
admit that they were unaware of the alleged injuries at the time they occurred; none allege that
they learned of any purported injuries for the first time within the last four years. (Id.)5 Thus, at
the very latest, the statute of limitations for all of Plaintiffs’ RICO claims expired by 2012, and
therefore their claims should be dismissed as time-barred. In Re Trilegiant Corp., Inc., 11 F.
Supp. 3d 82, 107 (D. Conn. 2014) (granting motion to dismiss three plaintiffs’ RICO claims as
time-barred).
B. Plaintiffs Also Have Not Pleaded The Requisite Predicate Acts
Plaintiffs also have failed to plead a RICO predicate act. To state a RICO violation of 18
U.S.C. § 1962(c), a plaintiff must first identify a predicate act of “racketeering activity,” which
the RICO statute defines as certain specific criminal acts under federal and state laws. See 18
U.S.C. § 1961(1) (listing all qualifying predicate criminal acts). A plaintiff must also show that
each defendant committed “at least two acts of racketeering activity,” “the last of which occurred
within ten years . . . after the commission of a prior act of racketeering activity.” 18 U.S.C.
§ 1961(5); see DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001). Although at least two
5
While Kendall alleges that she suffered emotional distress and fear in 2017 based on receiving calls from
someone purporting to be Seth Freeman and learning that her name was allegedly included on a “secret hit list”
(Compl. ¶¶ 63, 70), as set forth infra, Section II.D, such alleged injuries are not RICO injuries and therefore do not
serve to restart the statute of limitations on Kendall’s RICO claims. Likewise, Thomas alleges that in 2017 she
heard rumors that casting directors had complained that she had publicly complained about H. Weinstein. (Id.
¶ 120.) This, too, is not an actionable injury under RICO. See Trs. of Plumbers & Pipefitters Nat’l Pension Fund v.
Transworld Mech., Inc., 886 F. Supp. 1134, 1146 (S.D.N.Y. 1995).
12
predicate acts must be present to constitute a pattern, two acts alone will not always suffice to
form a pattern. See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14 (1985).
Plaintiffs allege that the “Weinstein Sexual Enterprise” engaged in “racketeering activity”
by purportedly committing three separate offenses, including: (i) a purported violation of 18
U.S.C. § 1512, relating to tampering with a witness, victim, or an informant (herein referred to
collectively as “witness tampering”); (ii) a purported violation of 18 U.S.C. §§ 1590 and 1591,
relating to sex trafficking, and (iii) purported wire and mail fraud. (Compl. ¶ 196.); see also 18
U.S.C. § 1961(1). As set forth below, Plaintiffs have failed to plausibly plead that TWC engaged
in any such predicate acts to support their RICO claims, or engaged in a “pattern” of racketeering
activity, and, therefore, the RICO claims against TWC should be dismissed.6
1. Plaintiffs Fail To Plead A Viable Claim That TWC Engaged In

Witness Tampering
Plaintiffs allege generally and in purely conclusory fashion that the “Weinstein Sexual
Enterprise” engaged in “multiple instances of tampering with a witness or victim in violation of
18 U.S.C. § 1512.” (Compl. ¶¶ 196, 215.) Such a conclusory allegation is not sufficient to
plausibly demonstrate that TWC engaged in any actionable witness tampering and should be
disregarded by the Court.
The purely conclusory allegations contained in Paragraphs 196 and 215 of the Complaint
— stating that the “Weinstein Sexual Enterprise” engaged in “multiple instances of tampering
with a witness or victim in violation of 18 U.S.C. § 1512” — are the types of “labels and
conclusions” or “naked assertion[s]” devoid of “further factual enhancement” that the Supreme
Court has instructed courts to ignore on a motion to dismiss. See Iqbal, 556 U.S. at 678. Once
6
For the reasons set forth infra, Section IV.A.2., by Plaintiffs’ own pleading, there is no basis for tolling
Plaintiffs’ RICO claims.
13
such conclusory allegations are disregarded, the Complaint contains nothing, let alone any viable
factual allegations, plausibly suggesting that TWC allegedly “tampered with” any witness or
victim in violation of 18 U.S.C. § 1512. None of the Plaintiffs identify any TWC employee who
allegedly tried to kill, threaten, or intimidate them, or to dissuade them from doing anything. See
Miller v. Carpinello, No. 06 Civ. 12940, 2007 WL 4207282, at *7 (S.D.N.Y. Nov. 20, 2007)
(granting motion to dismiss RICO claim and finding plaintiff may not rely on alleged violation
of Sections 1512 where among other things she failed to allege any defendant “hindered, delayed
or prevented the communication of information to any law enforcement official or federal judge
relating to any federal offense”).
To the extent Kendall claims she was contacted by “Seth Freeman,” an individual
purporting to be a reporter for The Guardian, that is likewise insufficient to show “witness
tampering.” (See Compl. ¶ 62.) She alleges only that he asked her if she was going to talk to
The New York Times. (Id. ¶ 63.) She does not allege that “Mr. Freeman” threatened or
“tampered” with her in any way. She does not even allege that he attempted to prevent her from
reporting her story to The New York Times, far less that he prevented her from reporting her story
to law enforcement or a federal judge as required by § 1512. Importantly, she also does not
allege that “Mr. Freeman” was employed by or directed to contact her by TWC. In fact, Plaintiff
does not even know who “Mr. Freeman” is (all she claims to know is that he is not employed by
The Guardian) and, therefore, cannot link this alleged telephone call to any person at TWC — as
this is nothing more than pure speculation. (Id. ¶ 65.)
Moreover, Plaintiffs fail to allege any “official proceeding” in which they or other
alleged, yet unidentified and unnamed, witnesses or victims were somehow prevented from
participating. The U.S. Attorney’s Criminal Resource Manual, which provides guidance to
14
prosecutors on prosecution under the statute, states: “Section 1512 of Title 18 . . . proscribes
conduct intended to illegitimately affect the presentation of evidence in federal proceedings or
the communication of information to federal law enforcement officers. It applies to ‘official
proceedings’ before Congress, executive departments and administrative agencies as well as to
civil and criminal judicial proceedings . . . .” U.S.A.M. Criminal Resource Manual, Section
1729; see 18 U.S.C. § 1515(a)(1). While an official proceeding need not be pending or about to
be instituted at the time of the alleged offense, it must still be foreseeable, meaning the subject
was aware that he was the subject of an existing federal investigation. United States v. Binday,
804 F.3d 558, 590 (2d Cir. 2015). A plaintiff must also establish some “nexus” between the act
of tampering or concealment and the official proceeding at issue. See United States v. Desposito,
704 F.3d 221, 230-31 (2d Cir. 2013). Here, Plaintiffs fail to identify any such “official
proceeding,” either existing or foreseeable at the time of any alleged witness tampering, and
therefore, for this additional reason, the Court should dismiss Plaintiffs’ civil RICO claims
against TWC. See Miller, 2007 WL 4207282, at *7 (finding that plaintiff could not rely on
alleged violations of Section 1512 as predicate act to support a RICO claim where she did not
allege that any official proceeding was pending).
2. Plaintiffs Also Fail To Plead Any Viable Facts That TWC Engaged
In Sex Trafficking
Plaintiffs also allege violations of 18 U.S.C. §§ 1590 (slave trafficking) and 1591 (sex
trafficking) as predicate acts under RICO. (Compl. ¶ 196.) While Plaintiffs aver that these
statutes relate to “aggravated sex abuse,” that is a far cry from the actual subject matter of these
statutes, which are titled “Trafficking With Respect to Peonage, Slavery, Involuntary Servitude
or Forced Labor” and “Sex Trafficking of Children by Force, Fraud, or Coercion” and were
issued pursuant to the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”).
15
18 U.S.C. §§ 1590, 1591. By their chosen case theory, Plaintiffs are trying to divert the Court’s
attention from the true subject matter of the statutes because the allegations here have no relation
whatsoever to sex trafficking.
As the statute makes clear, the purpose of the TVPRA was to “combat trafficking in
persons,” which it defined as “a contemporary manifestation of slavery.” 22 U.S.C. § 7101(a);
United States v. Walls, 784 F.3d 543, 548 (9th Cir. 2015) (noting that “[c]ongress recognized that
human trafficking, particularly of women and children in the sex industry, ‘is a modern form of
slavery and the largest manifestation of slavery today’” (quoting 22 U.S.C. § 7101(b)(1)). The
term “sex trafficking” is defined in the TVPRA as “the recruitment, harboring, transportation,
provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex
act.” 22 U.S.C. § 7102. Section 1590(a) states, in pertinent part, that it is a crime to “knowingly
recruit[], harbor[], transport[], provide[], or obtain[] by any means, any person for labor or
services in violation of this chapter.” Section 1591 states, in pertinent part, that: it is a crime to
knowingly:
(1) in or affecting interstate or foreign commerce, . . . recruit[], entice[], harbor[],

transport[], provide[], obtain[], advertise[], maintain[], patronize[], or solicit[] by
any means a person, or (2) benefit[], financially or by receiving anything of value,
from participation in a venture which has engaged in an act described in violation
of paragraph (1), . . . knowing . . . or in reckless disregard of the fact, that means
of force, threats of force, fraud, coercion . . . , or any combination of such means
will be used to cause the person to engage in a commercial sex act.
Nothing in the Complaint suggests, let alone pleads any viable facts, any conduct
remotely resembling “sex trafficking.” As an initial matter, no Plaintiff alleges engaging in a
“commercial sex act.” See Todd v. United States, No. 11 Civ. 0470, 2012 WL 2952084, at *6
(W.D. Wash. June 26, 2012) (noting that the TVPRA relates to commercial sex acts that are
necessarily economic in nature and is distinguishable from laws governing gender-motivated
crimes). Nor does any Plaintiff allege that she was recruited, enticed, harbored, transported, or
16
solicited for the purpose of a commercial sex act, or that the conduct impacted interstate or
foreign commerce. Nor does any Plaintiff allege how TWC benefitted financially or otherwise
from any such “venture.” What is alleged, at most, are one-time unwelcome incidents
committed by H. Weinstein completely unconnected to any sex trafficking scheme. Because
Plaintiffs failed to allege a plausible “sex trafficking” claim under the TVPRA against TWC, this
cannot serve as one of the requisite predicate acts supporting their RICO claim.
3. Plaintiffs Fail To Plead Any Viable Facts With Particularity That

TWC Engaged In Mail Or Wire Fraud
Plaintiffs also allege that “the RICO defendants utilized the interstate [sic] and mail and
wires for the purposes of obtaining money or property by means of the omissions, false
pretenses, and misrepresentations described therein.” (Compl. ¶ 202.) Such claims of mail and
wire fraud sound in fraud and thus must be pleaded with the requisite particularity required by
Rule 9(b) of the Federal Rules of Civil Procedure, which Plaintiffs fail to do here. See Comm. to
Protect Our Agric. Water v. Occidental Oil & Gas Corp., 235 F. Supp. 3d 1132, 1176-77 (E.D.
Cal. 2017).
Rule 9(b) provides that, “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). In cases in
which a plaintiff makes specific averments of fraud as predicate acts for RICO claims, “Rule
9(b) calls for the complaint to specify the statements it claims were false or misleading, give
particulars as to the respect in which plaintiffs contend the statements were fraudulent, state
when and where the statements were made, and identify those responsible for the statements.”
Moore v. PaineWebber, Inc., 189 F.3d 165, 173 (2d Cir. 1999); Comm. to Protect Our Agric.
Water, 235 F. Supp. 3d at 1176-77. Here, Plaintiffs failed to plead with the requisite
particularity that TWC engaged in any alleged wire or mail fraud.
17
The only allegations that aver that Defendants used the mails or wires are contained in
Paragraphs 201 through 204 of the Complaint. Plaintiffs summarily allege the following:
• “The RICO Defendants used the mails and wires for the transmission, delivery, or
shipment of the following by the RICO Defendants or third parties that were
foreseeably caused to be sent as a result of Defendants’ illegal scheme: (a)
contracts between H. Weinstein and the Law Firms and Intelligence Participants;
(b) wires among the Complicit Producers about H. Weinstein’s sexual
misconduct; (c) wires and mails between the Law Firms and the Intelligence
Participants on the subject of H. Weinstein’s sexual activities, his victims, and
concealing his acts of sexual misconduct; (d) payments to the Law Firm
Participants and Intelligence Participants to perform their roles in concealing H.
Weinstein’s sexual misconduct; (e) emails from the Law Firm Participants to
lawyers retained by Class Members to encourage confidentiality in connection
with accusations of sexual misconduct by H. Weinstein; (f) emails from the
Intelligence Participants to Class Members in connection with inquiries or
meetings designed to elicit information from Class Members using deception; (g)
use of the wires by the Intelligence Participants to construct false identities and
websites to deceive Class Members and journalists.” (Compl. ¶ 201.)
• “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.” (Id. ¶ 202.)
• “The RICO Defendants also communicated by U.S. Mail, by interstate facsimile,

and by interstate electronic mail with various other affiliates, regional offices,
divisions, and other third-party entities in furtherance of the scheme.” (Id. ¶ 203.)
• “The RICO Defendants also communicated by U.S. Mail, by interstate facsimile,

and by interstate electronic mail with various other affiliates, regional offices,
divisions, and other third-party entities in furtherance of the scheme.” (Id. ¶ 204.)
Plaintiffs provide no further detail to support their generalized and self-serving allegation.
Therefore dismissal is warranted.
Importantly, Plaintiffs do not identify any of the following key elements required to plead
a claim of mail or wire fraud with particularity: (i) any document involved in mail or wire fraud;
(ii) the persons who allegedly exchanged such documents; (iii) the alleged dates they transmitted
or shipped the mails or wires; (iv) any alleged fraudulent content contained in any such mail or
wire; or (v) the contents of any such transmission generally. Thus, Plaintiffs fail to provide the
18
details of mail or wire fraud as required by Rule 9(b), rendering these allegations against TWC
insufficient as a matter of law. See Sony Music Entmt. Inc. v. Robison, No. 01 Civ. 6415, 2002
WL 272406, at *5 (S.D.N.Y. Feb. 26, 2002) (dismissing RICO counterclaims because the
defendants failed to specify the specific dates and details of the fraudulent communications, the
people involved, and why the acts constituted fraud); Colony at Holbrook, Inc. v. Strata G.C.,
Inc., 928 F. Supp. 1224, 1232 (E.D.N.Y. 1996) (dismissing RICO claims where mail and wire
fraud predicate acts were not adequately pleaded; “the amended complaint contains sweeping
and general allegations of mail and wire fraud directed at all the defendants rather than
connecting the alleged fraud to the individual defendants”); Comm. to Protect Our Agric. Water,
235 F. Supp. 3d at 1180 (dismissing RICO claim because plaintiffs failed to plead fraudulent
racketeering activity with specificity under RICO, failed to allege a pattern of activity, and failed
to allege a predicate offense of mail or wire fraud). This failure to establish a sufficient RICO
predicate act warrants dismissal of the RICO claim.
Additionally, to support a RICO claim against multiple defendants, Plaintiffs are required
to allege two separate acts of fraud for each Defendant, and the circumstances pursuant to with
each Defendant allegedly committed them. Comm. to Protect Our Agric. Water, 235 F. Supp. 3d
at 1177; see also DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.
1987) (“Where multiple defendants are asked to respond to allegations of fraud, the complaint
should inform each defendant of the nature of his alleged participation in the fraud.”). Because
Plaintiffs have not even alleged one act of fraud against TWC, the Court should dismiss
Plaintiffs’ civil RICO claim against TWC for this additional reason.
19
C. Plaintiffs Fail To Plead Viable Facts Of A Pattern Of Continued

Racketeering Activity
Plaintiffs also fail to plead viable facts of a pattern of racketeering activity. To plead a
“pattern” of racketeering activity, in addition to alleging that each defendant committed two
predicate acts of racketeering activity within a ten-year time period, 18 U.S.C. § 1961(5),
Plaintiffs must show that the predicate acts relied upon are “related, and that they amount to or
pose a threat of continued criminal activity.” Cofacredit, S.A., 187 F.3d at 242. “Continued
criminal activity” may be shown by demonstrating either a closed period of repeated conduct, or
by pointing to past conduct that by its nature projects into the future with a threat of repetition.
See Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir. 1987). A
plaintiff in a RICO action must therefore allege either an open-ended or closed-ended pattern of
racketeering activity. GICC Capital Corp. v. Tech. Fin. Group, Inc., 67 F.3d 463, 466 (2d Cir.
1995). A plaintiff must also allege that the defendants’ activities were “neither isolated nor
sporadic.” Id. at 467.
Here, Plaintiffs appear to allege an open-ended continuity scheme, as the Complaint
alleges that “The Weinstein Sexual Enterprise is an ongoing organization that functions as a
continuing unit.” (Compl. ¶ 194.) However, this allegation alone is not enough to plausibly
plead open-ended racketeering activity as to TWC. “To satisfy open-ended continuity, the
plaintiff . . . must show that there was a threat of continuing criminal activity beyond the period
during which the predicate acts were performed.” Cofacredit, S.A., 187 F.3d at 242. Here,
however, as Plaintiffs concede in the Complaint, TWC terminated H. Weinstein’s employment
with the company in October 2017. (Compl. ¶ 114.) Accordingly, by the Complaint’s own
terms, TWC has no continued professional affiliation with H. Weinstein, and therefore Plaintiffs
have failed to demonstrate that there is any ongoing threat of continued alleged “racketeering
20
activity” by TWC. See GICC Capital Corp., 67 F.3d at 466 (dismissing RICO claim as failing to
allege open-ended continuity where it is clear the scheme was inherently terminable, stating “[i]t
defies logic to suggest that a threat of continued looting activity exists when, as plaintiff admits,
there is nothing left to loot”).
D. Plaintiffs Have Failed To Adequately Allege Viable Facts Of A RICO

Injury
Plaintiffs also fail to allege viable facts of a plausible RICO injury, and thus, by their own
pleading, lack standing to bring such a claim. A civil 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 violation.” Sedima, S.P.R.L., 473 U.S. at 496; 18 U.S.C. § 1964(c).
In order to establish standing, a civil plaintiff must show:
1. that she suffered an injury-in-fact — an invasion of a legally

protected interest which is (a) concrete and particularized . . . and
(b) actual or imminent, not conjectural or hypothetical;
2. that there was a causal connection between the injury and the
conduct complained of; and
3. that it is likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.
Carver v. City of New York, 621 F.3d 221, 225 (2d Cir. 2010). A plaintiff “must allege facts
demonstrating both that plaintiff’s injury is to his business or property — and not physical,
emotional or reputational harm or any economic aspect of such harm — and that plaintiff’s
injury is proximately caused by the acts constituting the RICO violation.” Hollander v. Flash
Dancers Topless Club, 340 F. Supp. 2d 453, 458-59 (S.D.N.Y. 2004). Damages arising from
emotional injuries are not recoverable under RICO. Id.; see also Williams v. Dow Chem. Co.,
255 F. Supp. 2d 219, 225 (S.D.N.Y. 2003) (“RICO provides recovery for injury to business and
property; it does not provide recovery for physical and emotional injuries.”); Tsipouras v. W &
21
M Props., Inc., 9 F. Supp. 2d 365, 368 (S.D.N.Y. 1998) (“[M]ere injury to character, business
reputation, and/or the intentional infliction of emotional distress are not actionable under civil
RICO.”).
Here, Plaintiffs do not plead any viable facts suggesting that any Plaintiff suffered injury
to their business or property that is actionable under RICO. Plaintiffs’ conclusory allegation that
“Plaintiffs have been and are continuing to be injured in their business or property” is not entitled
to any weight. See Iqbal, 556 U.S. at 678. The remaining allegations do not make out an
actionable injury under RICO. Indeed, Plaintiffs primarily allege damages arising from alleged
emotional injury or reputational harm that are non-actionable under RICO. (See, e.g., Compl.
¶¶ 59, 61, 63 and 70 (Kendall alleging non-actionable injuries such as shame, depression, loss of
self-worth, post-traumatic stress, emotional trauma, emotional distress, and significant fear); ¶ 83
(Brock alleging non-actionable injuries such as depression, lack of self-confidence and loss of
reputation, and fear of auditioning and travel); ¶ 95 (Sagemiller alleging non-actionable injury of
fear), ¶ 102 (Geiss alleging non-actionable injuries of deep distress, fear, helplessness, anger, and
depression), ¶ 114 (Thomas alleging non-actionable injuries of deep distress, fear, helplessness,
anger, and depression, and damage to her reputation among casting directors), ¶ 120 (Klatt
alleging non-actionable injury of a change in how she interacts personally and professionally
based on fear).)
While Plaintiffs Geiss, Thomas, and Klatt also allege that they suffered various forms of
professional harm, those allegations are too speculative to demonstrate an actionable injury
under RICO. A plaintiff must allege “concrete financial loss” in order to plead an injury under
RICO. Makowski v. United Bd. of Carpenters & Joiners of Am., No. 08 Civ. 6150, 2010 WL
3026510, at *12 (S.D.N.Y. Aug. 2, 2010) (finding that the plaintiff’s claim that the union
22
extorted his “intangible rights” due to corruption and alleged racketeering activity which harmed
him and all union members, failed to satisfy the RICO injury requirement as he had not alleged
any “concrete financial loss”). “[A] RICO plaintiff may not recover for speculative losses or
where the amount of damages is unprovable.” World Wrestling Entm’t, Inc. v. Jakks Pac., Inc.,
530 F. Supp. 2d 486, 521 (S.D.N.Y. 2007), aff’d, 328 F. App’x 695 (2d Cir. 2009) (dismissing
RICO claim, finding that the plaintiff’s speculative assertion that royalty rates it received were
lower than what it could have earned if not for the RICO violation were not sufficiently concrete
to state a RICO injury).
Here, Geiss alleges in conclusory fashion that she lost a three-film deal, even though she
admits that she turned down H. Weinstein’s alleged offer. (Compl. ¶¶ 101, 103.) She also
alleges loss of other unspecified opportunities at TWC, and that her professional career in the
entertainment industry was damaged in unspecified ways. (Id. ¶ 103.) Thomas alleges that she
did not receive a nanny position. (Id. ¶¶ 113-14.) But she does not allege that she already held
the nanny position or that she would have received the nanny position if not for her alleged
interaction with H. Weinstein. (Id.) Klatt alleges that she lost a part that H. Weinstein had
offered her mere moments before, and that she lost other unspecified opportunities at Miramax,
TWC, and elsewhere. (Compl. ¶ 120.) These alleged injuries by Geiss, Thomas, and Klatt are
precisely the kind of speculative, unquantifiable injuries that are not actionable under RICO. See
Makowski, 2010 WL 3026510, at *12 (holding that the plaintiff’s claims that he suffered harm
were far too speculative to provide standing); World Wrestling Entm’t, Inc., 530 F. Supp. 2d at
521; Kerik v. Tacopina, 64 F. Supp. 3d 542, 560 (S.D.N.Y. 2014) (finding that the plaintiff
lacked standing where he could not show quantifiable injury to his business or property based on
his allegation that he expected to receive a larger finder’s fee than he actually received).
23
Furthermore, even if the alleged professional harms asserted by Geiss, Thomas, and Klatt
were actionable injuries under RICO, Plaintiffs fail to demonstrate that such alleged injuries
were directly caused by Defendants’ alleged RICO violations and thus dismissal is warranted.
See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006) (“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.”). A mere “showing that the defendant violated
§ 1962, the plaintiff was injured, and the defendant’s violation was a ‘but for’ cause of plaintiff’s
injury” is insufficient to meet the requirement in § 1964(c) that the plaintiff’s injury be “by
reason of” the RICO violation. Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 265-66
(1992). Proximate causation requires “some direct relation between the injury asserted and the
injurious conduct alleged.” Id. at 268 (emphasis added).
The predicate acts upon which Plaintiffs base their RICO claims are alleged witness
tampering, sex trafficking, and wire and mail fraud. (Compl. ¶ 196.) The alleged professional
injuries to Geiss, Thomas, and Klatt are purported lost jobs, lost roles, and lost job opportunities.
(Id. ¶¶ 103, 113-14, 120.) Yet, Plaintiffs fail to plead facts linking any alleged witness
tampering, sex trafficking, or wire or mail fraud to the alleged lost job opportunities. See
Holmes, 503 U.S. at 268. Here, as Plaintiffs themselves plead on the face of their Complaint, the
direct cause of Plaintiffs’ asserted harms was H. Weinstein’s alleged actions, not any alleged
racketeering activity by TWC. For example, both Klatt and Geiss allege that H. Weinstein
denied them roles and/or a three-film deal after they denied his advances. (Compl. ¶¶ 101-03,
117-20.) They fail to assert, because they cannot, that any alleged witness tampering, wire or
mail fraud, or sex trafficking was the actual direct cause of such alleged injuries. For these
reasons, Plaintiffs RICO claims also should be dismissed. See Sperber v. Boesky, 849 F.2d 60,
24
64 (2d Cir. 1987) (dismissing RICO action for failure to allege proximate causation, where
plaintiff failed to allege that wire and mail fraud directly deprived plaintiffs of money or
property); Red Ball Interior Demolition Corp. v. Palmadessa, 874 F. Supp. 576, 587 (S.D.N.Y.
1995) (dismissing RICO action for failure to allege proximate causation where plaintiffs did not
allege that they were directly harmed by the predicate mail and wire fraud, only that their ability
to discover or prevent defendants other wrongful acts was somewhat impaired or limited”).
Finally, the Court should dismiss the RICO claims of Kendall, Sagemiller, Brock, and
Klatt against TWC because these Plaintiffs do not allege any conduct by TWC relating to them,
and as such, no TWC conduct could have proximately caused any of their alleged injuries.
III. PLAINTIFFS FAIL TO PLEAD A PLAUSIBLE CLAIM AGAINST TWC

OF A CONSPIRACY TO VIOLATE RICO
For the same reasons set forth in the previous section, this Court should dismiss Count II
of the Complaint, “Conspiring to Violate 18 U.S.C. § 1962(c),” brought forth under 18 U.S.C.
§ 1962(d). In order to maintain a RICO conspiracy claim, Plaintiffs must properly plead a
substantive RICO violation. See Condos Bros. Constr. Corp. v. Main St. Am. Assurance Co.,
No. 16 Civ. 4769, 2017 WL 5591625, at *4 (E.D.N.Y. Nov. 17, 2017). It is fundamental that at
the motion to dismiss stage, “analysis of any RICO conspiracy claim begins with the premise
that it necessarily fails where the underlying substantive claim is insufficiently pled.” See In Re
Trilegiant Corp., Inc., 11 F. Supp. 3d 82, 108 (D. Conn. 2014); Dandong Old N.-E. Agric. &
Animal Husbandry Co. v. Hu, No. 15 Civ. 10015, 2017 WL 3328239, at *9 (S.D.N.Y. Aug. 3,
2017) (“[B]oth [defendants] are charged with conspiracy to commit RICO under 18 U.S.C.
§ 1962(d), which is analytically dependent on subsection (c).”); Katzman, 167 F.R.D. at 658
(S.D.N.Y. 1996) (dismissing RICO conspiracy claim because “failure to plead facts that would
25
satisfy the pleading requirements of § . . . 1962(c) necessarily dooms any claim [plaintiff] might
assert arising under § 1962(d)”).
As detailed above, Plaintiffs have not adequately alleged a substantive violation of RICO
under 18 U.S.C. § 1962(c), and accordingly the Court should also dismiss Plaintiffs’ claim for
relief based on a civil RICO conspiracy.
IV. GEISS AND THOMAS FAIL TO PLEAD PLAUSIBLE INDIVIDUAL

STATE LAW CLAIMS AGAINST TWC
In addition to the RICO class claims asserted by all Plaintiffs against TWC, Geiss and
Thomas also each assert the following six individual state law claims against TWC: Count Four
(alleged negligent supervision and retention); Count Six (alleged civil battery); Count Eight
(alleged assault); Count Ten (alleged intentional infliction of emotional distress); Count Twelve
(alleged negligent infliction of emotional distress); and Count Fourteen (alleged ratification). As
set forth below, all of these claims against TWC should be dismissed as time-barred.
Furthermore, (i) the claims of civil battery, assault, and negligent and intentional infliction of
emotional distress should be dismissed against TWC because Plaintiffs have not adequately
pleaded a theory of vicarious liability against TWC; (ii) the claims of negligent supervision and
retention and negligent infliction of emotional distress against TWC should be dismissed because
Plaintiffs have failed to plead that TWC owed a duty to Geiss or Thomas; and (iii) the
ratification claim against TWC should be dismissed because ratification is not a stand-alone
cause of action.
A. The Near Decade-Old State Law Claims Against TWC Should Be

Dismissed As Time-Barred
The statute of limitations on all six state law claims brought by both Geiss and Thomas
against TWC ran out years ago. Geiss’s state law claims all stem from one alleged incident with
H. Weinstein that allegedly occurred in 2008 at a hotel in Park City. (Compl. ¶¶ 96-103.)
26
Likewise, Thomas’s state law claims all stem from one alleged incident with H. Weinstein that
allegedly occurred in 2008 at H. Weinstein’s Connecticut home. (Id. ¶¶ 104-14.7) Because, as
set forth below, none of the statutes of limitations for these claims is more than three years and
Plaintiffs have failed to plead an adequate basis for tolling of these statutes, these claims are all
time-barred and should be dismissed.
1. By Plaintiffs’ Own Pleading, The Individual State Law Claims Of

Geiss And Thomas Against TWC Are Time-Barred
Although Geiss’s and Thomas’s interactions with H. Weinstein occurred in Utah and
Connecticut, respectively, the Court is required to apply New York’s “borrowing” statute, CPLR
§ 202, to determine which state’s limitation period applies to their state law claims. 8 New
York’s borrowing statute provides that when non-residents (like Geiss and Thomas) bring a
lawsuit in New York, but their causes of action accrued in a different state, the Court must apply
the limitations period of either New York or the state where the cause of action accrued,
whichever is shorter. CPLR § 202; Vincent, 915 F. Supp. 2d. at 562; Glob. Fin. Corp. v. Triarc
Corp., 93 N.Y.2d 525, 528 (1999). In connection with this inquiry, a cause of action accrues “at
the time and in the place of the injury.” Glob. Fin. Corp., 93 N.Y.2d at 529.
Applying New York’s borrowing statute to Geiss’s and Thomas’s state law claims — i.e.,
determining the shorter of the New York and Utah/Connecticut statute of limitations for each
claim — the following limitation periods apply:
7
Thomas alleges that in December 2017, she was “informed” that several casting directors complained about
Thomas’s public declaration that “she will not audition for roles for productions in which known predators are
involved.” (Compl. ¶ 114.) This allegation is irrelevant to the statute of limitations as it applies to TWC because it
does not involve any conduct or action by TWC.
8
Geiss and Thomas invoke this Court’s diversity jurisdiction under 29 U.S.C. § 1332(d)(2). (Compl. ¶ 9.)
Therefore, because jurisdiction over Geiss’s and Thomas’s state law claims rests on diversity, New York’s choice-
of-law rules and statutes of limitations apply. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941);
Vincent v. Money Store, 915 F. Supp. 2d. 553, 562 (S.D.N.Y. 2003) (“A federal court sitting in diversity applies the
forum state’s statute of limitations provisions, as well as any provisions that govern the tolling of the statute of
limitations.”) (citing Diffley v. Allied–Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990)).
27
• Negligent Supervision And Retention (Count Four)
o Geiss: New York’s three-year limitation period. CPLR § 214(5); Green v.

Emmanuel African Methodist Episcopal Church, 278 A.D.2d 132, 132 (1st
Dep’t 2000).9
o Thomas: Connecticut’s two-year limitation period. Ct. Gen. Stat. § 52-584.
• Civil Battery (Count Six)
o Geiss and Thomas: New York’s one-year limitation period. CPLR

§ 215(3).10
• Assault (Count Eight)

§ 215(3).11
• Intentional Infliction Of Emotional Distress (Count Ten)

§ 215(3).12
• Negligent Infliction Of Emotional Distress (Count Twelve)
o Geiss: New York’s three-year limitation period. Yong Wen Mo v. Gee Ming
Chan, 17 A.D.3d 356, 359-60 (2d Dep’t 2005).13
o Thomas: Connecticut’s two-year limitation period. Ct. Gen. Stat. § 52-584.
• Ratification (Count Fourteen)
o Geiss and Thomas: There is no applicable statute of limitation because

ratification is not a stand-alone cause of action in Connecticut, New York, or
Utah. Geiss and Thomas seem to concede this point. (Compl. ¶ 300 (noting
that their cause of action for ratification is based on an attempt to hold TWC
9
Utah’s limitation period for negligent supervision/retention is four years. Utah Code Ann. § 78-12-25(3);
Retherford v. AT&T Commc’ns, 844 P.2d 949, 977 (Utah 1992).
10
Utah’s limitation period for civil battery is four years. Utah Code Ann. § 78B-2-307(3). Connecticut’s
limitation period is three years. Ct. Gen. Stat. § 52-577.
11
Utah’s limitation period for assault is four years. Utah Code Ann. § 78B-2-307(3). Connecticut’s
limitation period is three years. Ct. Gen. Stat. § 52-577.
12
Utah’s limitation period for intentional infliction of emotional distress is four years. Utah Code Ann.
§ 78B-2-307(3). Connecticut’s limitation period is three years. Ct. Gen. Stat. § 52-577.
13
Utah’s limitation period for negligent infliction of emotion distress is four years. Utah Code Ann. § 78B-2-
307(3).
28
liable “for [H. Weinstein’s] acts of assault, battery, and intentional or

negligent infliction of emotional distress.”).) Thus, even if it could be treated
as an independent claim, it would have the same statute of limitations as the
corresponding assault, battery, or intentional or negligent infliction of
emotional distress claim on which the ratification claim is based. In other
words, as set forth above, the statute of limitations for this claim would be no
more than three years if it applied at all.
Because both Geiss and Thomas claim their alleged injury stemmed from H. Weinstein’s
conduct in 2008 (Compl. ¶ 96, 104), the statute of limitations on all of their individual state law
claims would have expired no later than 2011. Because Geiss and Thomas did not file this
lawsuit until December 2017, the claims are all time-barred. Indeed, even if the Court were to
apply the longest possible limitation period (which would be Utah’s four-year limitation period)
for all of the claims, their claims are still time-barred by more than five years. As a result, the
Court should dismiss all their state law claims against TWC.
2. Plaintiffs Have Failed To Plead Viable Facts That Tolling Should

Apply To The Individual State Law Claims
Because their state law claims are time-barred based on the allegations in the Complaint,
Geiss and Thomas have the burden to plausibly allege that the limitations period on these claims
should be tolled. Overall, 52 F.3d at 403; Twersky, 993 F. Supp. 2d at 436. Ostensibly
recognizing this obligation, Geiss and Thomas allege that the Court should toll their claims based
on three theories, including: (i) the doctrine of equitable estoppel; (ii) duress; and (iii) because
the alleged violation of the law purportedly constitutes a continuing violation. (Compl. ¶¶ 168-
82.)
Because, as set forth supra, the statutes of limitations for New York and Connecticut
apply to Geiss’s and Thomas’s state law claims, those states’ laws govern whether those
untimely claims may be subject to tolling. Smith Barney, Harris Upham & Co., Inc. v. Luckie,
85 N.Y.2d 193, 207 (1995) (in borrowing the foreign statute, “[a]ll the extensions and tolls
29
applied in the foreign state must be imported with the foreign statutory period, so that the entire
foreign statute of limitations applie[s], and not merely its period.”) (emphasis and internal
quotation and citation omitted). As set forth below, however, based on Plaintiffs’ own pleading,
none of these exceptions apply under either Connecticut or New York law, and therefore these
claims against TWC are all barred by the statute of limitations.
a. New York Law Regarding Tolling Exceptions
New York construes tolling doctrines as narrowly as possible. See McCarthy v.
Volkswagen of Am., Inc., 55 N.Y.2d 543, 548 (1980). Tolling through equitable estoppel applies
only to circumstances where a plaintiff is “induced by fraud, misrepresentations or deception to
refrain from filing a timely action” and that plaintiff demonstrates reasonable reliance on the
defendant’s misrepresentations. Zumpano v. Quinn, 6 N.Y.3d 666, 674 (2006) (quotation and
citation omitted). “Duress” tolling is only available when duress is an element of the alleged
cause of action and the tortious conduct persists as a “continuous wrong.” Overall v. Estate of
LHP Klotz, 52 F.3d 398, 404 (2d Cir. 1995). Further, the continuous violation doctrine tolls the
limitation period only to the date of the last wrongful act when there is a series of continuing
wrongs. Selkirk v. New York, 249 A.D.2d 818, 819 (3d Dep’t 1998).
All three of these New York tolling doctrines necessarily focus on the conduct that
formed the basis for the various causes of action, not the alleged effects of such acts. Zumpano,
6 N.Y.3d at 675-76 (rejecting application of equitable tolling where plaintiffs were aware of their
own abuse, could have brought an intentional tort cause of action against their abusers, and were
aware of the entity that employed their abusers); Overall, 52 F.3d at 406-07 (rejecting claims for
“duress” tolling for claims of assault, battery, and intentional infliction of emotional distress
where the alleged tortious conduct ended decades earlier); Selkirk, 249 at 818 (rejecting
30
application for tolling under the continuous act exception because such tolling cannot be
predicated “on the continuing effects of earlier unlawful conduct”).
b. Connecticut Law Regarding Tolling Exceptions
In order to establish equitable estoppel under Connecticut law, a plaintiff must change her
position in reliance on an act or statement by a defendant that was calculated or intended to
induce the plaintiff to believe certain facts existed and to act on that belief. Buell Indus., Inc. v.
Greater N.Y. Mut. Ins. Co., 791 A.2d 489, 502 (2002). Connecticut law does not recognize
“duress” tolling. Rather, in order to act under duress, a plaintiff must establish that she acceded
to a defendant’s wrongful act or threat and that conduct induced “a fearful state of mind” that
made it impossible to exercise her own free will. Chase Manhattan Mortg. Corp. v. Machado,
850 A.2d 260, 265 (Conn. Ct. App. 2004). Lastly, Connecticut law recognizes tolling by a
continuous course of conduct only where there is “evidence of the breach of a duty that remained
in existence after commission of the original wrong” and that duty remained in existence during
the applicable limitation period. Stuart v. Snyder, 8 A.3d 1126, 1129-30 (Conn. Ct. App. 2010).
In order to establish that a duty “continued to exist after the cessation of the act or omission
relied upon,” there must be either a “special relationship between the parties giving rise to such a
continuing duty” or later wrongful conduct by the defendant that related to the prior act. Id. at
1230 (citations omitted). In the case of intentional torts, the conduct at issue must have occurred
within the applicable limitation period. Id. at 1226.
c. Geiss And Thomas Fail To Establish Any Basis That Their

Time-Barred Claims Should Be Tolled
Plaintiffs have failed to allege facts sufficient to demonstrate that Geiss’s and Thomas’s
untimely claims should be tolled based on theories of equitable estoppel, duress, or a continuous
violation. Neither Geiss nor Thomas allege any facts suggesting that they acted on a
31
misrepresentation made by TWC (or any other Defendant), which dooms their claims for
equitable estoppel. See Zumpano, 6 N.Y.3d at 666; Buell Indus., Inc., 791 A.2d at 502.
Similarly, neither pleaded any allegations that TWC somehow prevented them from exercising
their own free will or that the alleged tortious conduct continued during the applicable limitation
periods. This dooms their claims for both “duress” tolling and tolling under a theory of
continuing violation. See Overall, 52 F.3d at 404; Selkirk, 249 A.D.2d at 818; Chase Manhattan
Mortgage Corp., 850 A.2d at 265; Stuart, 8 A.3d at 1130.
The Court should reject any argument by Plaintiffs that Geiss’s and Thomas’s claims
should be tolled until the time that The New York Times published its article about H. Weinstein.
(See Compl. ¶ 181.) The court’s decision in Twersky v. Yeshiva University, 993 F. Supp. 2d 429,
436-38 (S.D.N.Y. 2014), makes clear that Geiss and Thomas cannot wait to bring claims until an
article has been published and then claim tolling. In Twersky, the plaintiffs brought their lawsuit
in the wake of an article that discussed allegations about a teacher at their former high school.
Id. at 436. The court rejected the plaintiffs’ argument that it was only after publication of the
article that they learned other defendants were allegedly aware of the conduct at issue. Id. at
440. Instead, the court dismissed their claims as time-barred because the plaintiffs knew they
were subject to wrongful conduct, they knew who had subjected them to this conduct, and they
knew who employed the perpetrators and could point to no misrepresentation made by the
defendants. Id. at 447.
Plaintiffs’ tolling argument should be dismissed for the same reasons that the court
rejected the same argument made by plaintiffs in Twersky. Like those plaintiffs, Geiss and
Thomas were aware of the alleged conduct on which they base their claims, knew the identity of
H. Weinstein (Compl. ¶¶ 96, 104), knew that TWC employed H. Weinstein (id. ¶¶ 96, 101, 103,
32
105, 114), and point to no misrepresentation by any Defendant. Accordingly, all of Geiss’s and
Thomas’s state law claims against TWC should be dismissed.
B. The Individual Claims Of Civil Battery, Assault, And Negligent And

Intentional Infliction Of Emotional Distress Against TWC Should Be
Dismissed Because Plaintiffs Geiss And Thomas Have Failed To Plead
A Plausible Theory Of Vicarious Liability
The individual claims of civil battery, assault, and negligent and intentional infliction of
emotional distress against TWC are all based on conduct allegedly committed by H. Weinstein.
(Compl. ¶¶ 239-41, 252-53, 258-61, 266-69.) Plaintiffs Geiss and Thomas seek to hold TWC
vicariously liable for this alleged conduct based on the theories of respondeat superior and
ratification. (Id. ¶¶ 242-44, 254-56, 262-64, 270-72.) Plaintiffs have failed to plead facts
demonstrating a plausible claim of vicarious liability under either theory.
1. Plaintiffs Geiss And Thomas Have Failed To Plead Facts

Demonstrating That Liability May Be Extended To TWC Based On
A Theory Of Respondeat Superior
To assert a claim premised on respondeat superior liability, a plaintiff must plead facts
showing, among other things, that the tortious conduct causing the alleged injury was undertaken
within the scope of the employee’s duties to the employer and was thus in furtherance of the
employer’s interests. See, e.g., K.I. v. New York City Bd. of Educ., 256 A.D.2d 189, 191 (1st
Dep’t 1998) (noting that respondeat superior liability will not be found where tortious conduct
was outside scope of volunteer’s duties). “An employer will not be held liable under [the
doctrine of respondeat superior] for actions which were not taken in furtherance of the
employer’s interest and which were undertaken by the employee for wholly personal motives.”
Galvani v. Nassau Cnty. Police Indemnification Review Bd., 242 A.D.2d 64, 68 (2d Dep’t 1998).
On a motion to dismiss, if the court “concludes that the conduct complained of cannot be
considered as a matter of law within the scope of employment, then the court must dismiss the
33
complaint for failure to state a claim.” Haybeck v. Prodigy Servs. Co., 944 F. Supp. 326, 329
(S.D.N.Y. 1996) (granting motion to dismiss because employee’s alleged sexual misconduct was
not within the scope of his employment).
It is well established under New York law that sexual misconduct and related tortious
behavior arise from personal motives and do not further an employer’s business, even when
committed within the employment context. See Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d
932, 933 (1999) (sexual abuse is a departure of employee’s duties for personal motives unrelated
to employer’s business). Courts in this jurisdiction regularly dismiss claims against employers
on this basis. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (dismissing claim
against employer based on theory of respondeat superior liability because employee’s alleged
sexual assault fell outside the scope of his employment as a matter of law), abrogated on other
grounds by Chiaramonte v. Animal Med. Ctr., 677 F. App’x 689, 691 (2d Cir. 2017); Doe v.
Alsaud, 12 F. Supp. 3d 674, 678-80 (S.D.N.Y. 2014) (dismissing claim based on theory of
respondeat superior liability where victim alleged she was sexually assaulted by perpetrator
whose employment duties included luring women to hotel for benefit of prince and his entourage
were insufficient to state claim for respondeat superior liability under New York law against
perpetrator’s employer, absent any allegation that the assault furthered employer’s business
interests or that the misconduct was part of any actual duty perpetrator had to employer); Wait v.
Beck N. Am. Inc., 241 F. Supp. 2d 172, 181 (N.D.N.Y. 2003) (employer not vicariously liable
when the supervisor’s conduct consisted of an alleged sexual battery, offensive touching,
unwarranted reprimands, and attempts to undermine plaintiff’s work even when alleged acts
occurred during business hours).
34
Here, Plaintiffs Geiss and Thomas fail to plead facts demonstrating that H. Weinstein’s
alleged tortious conduct arose out of anything other than purely personal motives or how it
furthered TWC’s business interests in any way. As an initial matter, Plaintiffs do not allege that
TWC sought or encouraged H. Weinstein to engage in tortious conduct toward Geiss or Thomas.
Nor do they allege that it was part of his job duties to harass or assault aspiring actresses.
Plaintiffs do not even attempt to explain how TWC benefitted or could have benefitted from H.
Weinstein’s alleged behavior. It defies logic to suggest that H. Weinstein somehow served
TWC’s interests by advancing his own prurient interests or that TWC’s business plan was to lure
potential actresses into business meetings with H. Weinstein so that he could assault them. It is a
ludicrous proposition that cannot survive the plausibility requirements of Twombly and Iqbal.
Because Plaintiffs have failed to allege how TWC benefited from or participated in any alleged
conduct, it is evident that H. Weinstein’s alleged conduct was fueled purely by personal motives
and was outside the scope of his employment.
This argument is even more compelling with respect to Thomas’s claims against TWC.
As Thomas alleges, her interaction with H. Weinstein occurred in the context of an interview in
H. Weinstein’s private home for a personal nanny position; it did not relate in any way to a
potential film role or a job with TWC. (Compl. ¶¶ 104-06.) Indeed, Thomas admits that she did
not seek to use her nanny work as an opportunity to advance her acting career. (Id. ¶ 105.) To
the extent that Thomas alleges that she coordinated with H. Weinstein’s TWC assistants when
interviewing for the nanny position, that is not enough either, as Weinstein’s assistants held
lower-level positions, and there are no allegations that TWC was aware that H. Weinstein was
using his assistants to assist with his personal hiring of a nanny.
35
For these reasons, Geiss’s and Thomas’s individual claims of civil battery, assault, and
negligent and intentional infliction of emotional distress against TWC should be dismissed. See
Judith M., 93 N.Y.2d at 933; Tomka, 66 F.3d at 1317; Alsaud, 12 F. Supp. 3d at 678; Wait, 241
F. Supp. 2d at 181.
2. Plaintiffs Geiss And Thomas Have Not Pleaded Facts

Demonstrating That Liability May Be Extended To TWC Based On
A Theory Of Ratification
Plaintiffs have also failed to plead any viable facts demonstrating that TWC has
somehow “ratified” the alleged conduct of H. Weinstein that would thereby render the company
liable for his alleged acts. Plaintiffs allege that TWC “ratified” H. Weinstein’s conduct on the
ground that TWC “had investigated or knew of the acts and omissions of [H.] Weinstein and
TWC’s employees, managers, supervisors, executives, and directors were informed that
Weinstein was sexually abusing female actors and members of the entertainment industry and
refused to take any action to stop him,” “hid this information so that Weinstein could continue to
work for TWC,” and “contract[ed] with [H.] Weinstein that he could not be fired for [his
conduct].” (Compl. ¶¶ 127, 298.) These allegations are not sufficient to extend liability to TWC
for H. Weinstein’s conduct.
As an initial matter, ratification is a principle that applies in the context of contract law,
not tort law. See Clark v. Buffalo Wire Works Co., 3 F. Supp. 2d 366, 372 n.5 (W.D.N.Y. 1998)
(noting that ratification is a “contract doctrine” pursuant to which an otherwise voidable
agreement is confirmed and thereby made valid); BS Sun Shipping Monrovia v. Citgo Petroleum
Corp., 509 F. Supp. 2d 334, 347 (S.D.N.Y. 2007); RLI Ins. Co. v. Athan Contracting Corp., 667
F. Supp. 2d 229, 232 (E.D.N.Y. 2009). Neither Geiss nor Thomas bring contract or quasi-
contract claims against TWC, and therefore, they have failed to plead an actionable theory of
liability premised on ratification.
36
To the extent ratification may apply in a tort context — which it may not — TWC cannot
be deemed to have ratified H. Weinstein’s alleged conduct because Geiss and Thomas fail to
plead any viable facts demonstrating that TWC had knowledge of all material facts of the alleged
incidents between H. Weinstein and the two Plaintiffs or that it took some action to “ratify” such
conduct. See Holm v. C.M.P. Sheet Metal, Inc., 89 A.D.2d 229, 233 (4th Dep’t 1982) (noting
that ratification of the acts of an agent occurs only where the principal has full knowledge of all
material facts and takes some action to affirm the agent’s actions) (emphasis added); see also
Bernstein v. Centaur Ins. Co., 644 F. Supp. 1361, 1371 (S.D.N.Y. 1986); Botticello v.
Stefanovicz, 177 Conn. 22, 28 (1979).
Neither Geiss nor Thomas allege that they or anybody else informed any employee of
TWC of their alleged interactions with H. Weinstein, far less than TWC had knowledge of all
material facts regarding such alleged incidents. Indeed, Thomas admits that she did not disclose
H. Weinstein’s alleged conduct until after TWC terminated his employment. (Compl. ¶ 114.)
Likewise, Plaintiffs fail to plead with facts any action by TWC that amounts to ratifying such
alleged conduct. To the contrary, Plaintiffs themselves admit that TWC’s contract with H.
Weinstein imposed hefty and increasing financial penalties on H. Weinstein if he “treated
someone improperly in violation of the company’s Code of Conduct.” (Id. ¶ 132.) This can
hardly be deemed “ratification” by TWC of any alleged improper conduct between H. Weinstein
and Geiss or Thomas.
For these reasons, Plaintiffs’ theory of ratification fails as pleaded against TWC.
C. The Individual Claims Of Negligent Retention And Supervision

Against TWC Should Be Dismissed Because The Alleged Conduct Did
Not Occur On TWC’s Premises Or With TWC Chattels
To state a claim for negligent retention or supervision, a plaintiff must allege, in addition
to the elements of standard negligence, that: “(1) the tort-feasor and the defendant were in an
37
employee-employer relationship, (2) the employer knew or should have known of the
employee’s propensity for the conduct which caused the injury prior to the injury’s occurrence,
and (3) that the tort was committed on the employer’s premises or with the employer’s chattels.”
Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004). Here, the negligent retention and
supervision claims against TWC should be dismissed because, as Geiss and Thomas admit, the
alleged incidents pursuant to which their claims arise did not occur on TWC’s premises, nor do
they allege that the incidents involved TWC’s chattels. Geiss alleges that the incident giving rise
to her claims occurred in H. Weinstein’s private hotel room. (Compl. ¶ 97.) Thomas alleges that
the incident giving rise to her claims occurred in H. Weinstein’s personal home. (Id. ¶ 107.)
Neither Geiss nor Thomas identify any of TWC’s chattels that were purportedly used in
connection with the alleged incidents giving rise to their claims. For these reasons, their
negligent retention and supervision claims against TWC should be dismissed. See Ehrens, 385
F.3d at 236 (affirming dismissal of negligent supervision cause of action where plaintiff
acknowledged that incidents of sexual assault about which he complained did not occur on
church property but instead were perpetrated at his home and at the home of the alleged
perpetrator).
D. The Individual Claims Of Negligent Infliction Of Emotional Distress

Against TWC Should Be Dismissed Because Plaintiffs’ Fail To Plead
Any Viable Facts That TWC Owed Them a Duty
A fundamental element of any negligence claim, including Plaintiffs’ claims of negligent
infliction of emotional distress, is that the alleged tortfeasor owed a duty to the plaintiff. Mortise
v. United States, 102 F.3d 693, 696 (2d Cir. 1996) (noting that in context of negligent infliction
of emotional distress claim, plaintiff must allege a duty that is “specific to the plaintiff, and not
some amorphous, free-floating duty to society”).
38
Importantly, here, Plaintiffs pleaded no viable facts that TWC owed a specific duty to
Thomas or Geiss, and therefore their negligent infliction of emotional distress claims against
TWC should fail. See Morgan v. Cnty. of Nassau, 720 F. Supp. 2d 229, 242-43 (E.D.N.Y. 2010)
(dismissing negligent infliction of emotional distress claim where plaintiff pleaded no facts that
the defendant owed a special duty to her); Wahlstrom v. Metro-N. Commuter R.R. Co., 89 F.
Supp. 2d 506, 531 (S.D.N.Y. 2000) (dismissing claim for negligent infliction of emotional
distress where plaintiff’s co-worker who allegedly verbally threatened and assaulted her did not
owe her any duty “other than the duty to obey the law”); Schultes v. Kane, 50 A.D.3d 1277, 1278
(3d Dep’t 2008) (“A cause of action for negligent infliction of emotional distress generally
requires plaintiff to show a breach of duty owed to her which unreasonably endangered her
physical safety, or caused her to fear for her own safety”). For this additional reason, Geiss’s
and Thomas’s claims of negligent infliction of emotional distress against TWC should also be
dismissed.
E. The Ratification Claim Against TWC Also Should Be Dismissed

Because Ratification Is Not a Stand Alone Cause Of Action
The purported claim of ratification by Geiss and Thomas against TWC also should be
dismissed because ratification is not an independent cause of action, but rather a contractual
doctrine by which an otherwise voidable or invalid contract is confirmed and thereby made valid.
See, e.g., Clark, 3 F. Supp. 2d 366, 371-72; Rothschild v. Title Guarantee & Trust Co., 204 N.Y.
458 (1912) (noting that ratification is an act of recognition or adoption of a contract or
transaction causing one to be equitably estopped from impeaching it, although it was originally
void or voidable). Indeed, Geiss and Thomas appear to recognize that ratification is not an
independent cause of action, as they admit in the Complaint that via their ratification claims, they
seek to hold TWC responsible for H. Weinstein’s alleged acts of assault, battery, and intentional
39
or negligent infliction of emotional distress. (Compl. ¶ 300.14) Accordingly, the ratification
claims against TWC should be dismissed.
V. THE COURT ALSO SHOULD STRIKE PLAINTIFFS’ CLASS

ALLEGATIONS AS THEY ARE LEGALLY DEFICIENT
Plaintiffs seek to certify classes under Rules 23(b)(2) and 23(c)(4) of the Federal Rules of
Civil Procedure. (Compl. ¶ 183.) Plaintiffs pursue the Rule 23(b)(2) class in order to obtain
injunctive relief for the class. (Id., Prayer for Relief ¶ 1.15) The only injunctive relief
purportedly sought by Plaintiffs is an injunction “prohibiting Defendants’ illegal acts constituting
a pattern of racketeering activity.” (Id. ¶ 218.) Plaintiffs do not seek injunctive relief in
connection with their non-RICO claims. Plaintiffs also seek certification of a Rule 23(c)(4) class
and sub-classes on the issue of “liability” for each of their RICO and state law claims and seek to
“reserve” the issue of “damages” for those claims for an unspecified later date and time. (Id. ¶ 7
& Prayer for Relief, ¶ 1.)16
As set forth below, the Court should strike all of Plaintiffs’ class allegations. The Court’s
authority to do so derives from Rule 23(d)(1)(D). See Pilgrim v. Universal Health Card, LLC,
660 F.3d 943, 949 (6th Cir. 2011) (affirming dismissal of class claims based on motion to
dismiss because the class claims were legally deficient on their face and incapable of being
certified). The class claims are invalid on their face, and no discovery is necessary, for the class
claims cannot be amended. First, all of Plaintiffs’ class allegations under Rules 23(b)(2) and
23(c)(4) should be stricken because none of the Plaintiffs have a legally cognizable interest in the
14
For the reasons set forth supra, Section IV.B.2, Geiss and Thomas have failed to plead a plausible theory of
ratification that would permit vicarious liability to extend to TWC for these state law claims.
15
A Rule 23(b)(2) class is proper when a plaintiff claims that a defendant has acted on grounds that apply
generally to the class so that injunctive relief or corresponding declaratory relief would be appropriate for the class
as a whole. Fed. R. Civ. P. 23(b)(2).
16
A Rule 23(c)(4) class (commonly referred to as an “issue” class) applies when a plaintiff seeks to bring or
maintain a class with respect to a particular issue in the case. Fed. R. Civ. P. 23(c)(4).
40
outcome of those claims. Second, Plaintiffs’ class allegations under Rules 23(b)(2) and 23(c)(4)
should be stricken because the Complaint demonstrates that Plaintiffs cannot certify either class
and their class claims are legally deficient. Third, all of Plaintiffs’ class allegations under Rule
23(b)(2) should be stricken because all Plaintiffs lack standing to pursue injunctive relief.
A. Plaintiffs’ Class Claims Under Rules 23(b)(2) And 23(c)(4) Should Be

Stricken Because No Plaintiff Has A Legally Cognizable Interest In
The Outcome
A claim is moot when “‘the parties lack a legally cognizable interest in the
outcome.’” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)). In general, if the claims of all named plaintiffs become
moot prior to class certification, the entire action becomes moot. Bd. of Sch. Comm’rs of
Indianapolis v. Jacobs, 420 U.S. 128, 129-30 (1975) (per curiam); see Genesis Healthcare Corp.
v. Symczyk, 133 S. Ct. 1523, 1529 (2013) (dismissing action after the named plaintiff’s
individual claim was satisfied and became moot because the named plaintiff “lacked any
personal interest in representing others in this action”).
Here, as set forth in the previous sections, all of Plaintiffs’ RICO claims and state law
claims fail as a matter of law and should be dismissed. Because no named Plaintiff has a viable
cause of action against TWC (or any other Defendant for that matter), none have a legally
cognizable interest in the outcome of the class claims. As a result, Plaintiffs cannot pursue class
allegations on behalf of others where their own claims have been dismissed. See Jacobs, 420
U.S. at 129-30. Accordingly, the class claims should be stricken.
B. Plaintiffs’ Class Claims Under Rules 23(b)(2) And 23(c)(4) Should Be

Stricken Because The Complaint Demonstrates That Plaintiffs
Cannot Certify Either Class
Plaintiffs’ class claims under Rules 23(b)(2) and 23(c)(4) should be stricken because the
face of the Complaint demonstrates “that it would be impossible to certify the alleged class
41
regardless of the facts Plaintiffs may be able to obtain during discovery.” Mayfield v. Asta
Funding, Inc., 95 F. Supp. 3d 685, 696 (S.D.N.Y. 2015). To certify a class under either section
of Rule 23, Plaintiffs would, among other things, need to meet the requirements of Rule 23(a).
See Fed. R. Civ. P. 23; Charron v. Pinnacle Grp. N.Y. LLC, 269 F.R.D. 221, 239 (S.D.N.Y.
2010) (noting that “[f]or particular issues to be certified pursuant to Rule 23(c)(4), the
requirements of Rules 23(a) and (b) must be satisfied only with respect to those issues”). Rule
23(a) requires a showing that “(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the class; (3) the claims or
defenses of the representative parties are typical of the claims or defenses of the class; and (4)
the representative parties and counsel will fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a).
Here, based on Plaintiffs’ own pleading, which as set forth supra demonstrates that all of
Plaintiffs’ individual claims should be dismissed as a matter of law, it would be impossible for
Plaintiffs to meet the requirements of Rule 23(a). First, implicit in the requirements of Rule
23(a) is that the class representative themselves be members of the class. Fed. R. Civ. P. 23(a)
(“One or more members of a class may sue or be sued as representative parties on behalf of all
members . . . .”). Where a named plaintiff’s claims are dismissed, as they should be here, she
ceases to be a member of the class. Great Rivers Co-op. of Se. Iowa v. Farmland Indus., Inc.,
120 F.3d 893, 899 (8th Cir. 1982) (holding that where sole plaintiff’s claims were time-barred,
class could not be certified because it lacked a class representative). Furthermore, because their
claims fail as a matter of law, Plaintiffs also cannot demonstrate that they are “adequate”
representatives of the class. Fed. R. Civ. P. 23(a)(4).
42
C. The Court Should Strike Plaintiffs’ Rule 23(b)(2) Class Allegations

Because Plaintiffs All Lack Standing To Seek An Injunction
Under Article III of the United States Constitution, federal courts are confined “to
adjudicating actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984),
abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377 (2014); see U.S. Const. art. III, § 2. “This limitation is effectuated through the requirement
of standing.” Cooper v. U.S. Postal Serv., 577 F.3d 479, 489 (2d Cir. 2009) (citation omitted).
In order to establish standing to seek injunctive relief, a plaintiff “cannot rely on past injury to
satisfy the injury requirement but must show a likelihood that he or she will be injured in the
future.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of
Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983)); Nicosia v. Amazon.com, Inc., 834 F.3d 220,
239 (2d Cir. 2016) (“Although past injuries may provide a basis for standing to seek money
damages, they do not confer standing to seek injunctive relief unless the plaintiff can
demonstrate that she is likely to be harmed again in the future in a similar way.”). “Abstract
injury is not enough.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974). Rather, the injury or threat
of injury must be “real” and “immediate” and not “conjectural” or “hypothetical.” Golden v.
Zwickler, 394 U. S. 103, 109-10 (1969).
Here, based on the face of their pleading, Plaintiffs do not have standing to pursue the
injunctive relief sought in this case — i.e., an injunction “prohibiting Defendants’ illegal acts
constituting a pattern of racketeering activity.” (See Compl. ¶ 218.) Plaintiffs were allegedly
injured based on their isolated, one-on-one dealings with H. Weinstein that allegedly occurred
between 1993 and 2008. (See id. ¶¶ 59, 61, 83, 95, 102-03, 114, 120.) Plaintiffs do not allege
that they engaged in any further interaction with H. Weinstein. Nor do they allege any
subsequent interaction with TWC or other members of the alleged “Weinstein Sexual Enterprise”
43
or identify any alleged conduct by TWC or other members of the alleged “Weinstein Sexual
Enterprise” that is allegedly continuing or likely to occur in the future. At most, Plaintiffs allege
that Kendall was contacted by somebody identifying himself as “Seth Freeman” in 2017. (See
id. ¶ 62.) However, as set forth supra, Section II.B.1, Kendall fails to plausibly allege that this
individual’s actions constituted “witness tampering” or any other predicate act under RICO, that
he was employed by or directed to contact her by TWC, or that she suffered any actionable
injury based on the telephone call. (See id. ¶ 63.) Likewise, Thomas alleges that she heard
rumors that she had been blacklisted by casting directors. (Id. ¶ 114.) But she does not allege
that these rumors were the result of any RICO predicate act, that TWC caused any casting
directors to blacklist Thomas, or that she suffered any actionable injury based on these rumors.
Indeed, Plaintiffs’ allegations make clear that TWC’s alleged conduct has stopped and is
not likely to occur in the future. Specifically, Plaintiffs allege that, had they known about H.
Weinstein’s conduct beforehand, they would not have been injured. (Id. ¶ 210.) Yet now, all
Plaintiffs acknowledge that they know about H. Weinstein’s alleged conduct, and therefore by
their own pleading, they will not be subject to future injury. Furthermore, as Plaintiffs admit,
TWC no longer employs H. Weinstein (Id. ¶ 181), further demonstrating that future alleged
injuries to Plaintiffs are not likely to occur in the future.
For these reasons, all Plaintiffs lack standing to pursue the injunctive relief sought in the
Complaint, and therefore their Rule 23(b)(2) class should be stricken as a matter of law. Chen-
Oster v. Goldman, Sachs & Co., 877 F. Supp. 2d 113, 120 (S.D.N.Y. 2012) (granting motion to
strike Rule 23(b)(2) class allegations where all named plaintiffs lacked standing to bring claims
for injunctive relief); see also Gordon v. Hain Celestial Group, Inc., 16 Civ. 6526, 2017 WL
213815, at *8 (S.D.N.Y. Jan. 18, 2017) (dismissing claim for injunctive relief where plaintiff
44
could not establish that she was likely to be injured again, as it was unlikely she would purchase
the same mislabeled products in the future).
A motion to strike Plaintiffs’ Rule 23(b) class allegations is not premature at this stage of
the case. In a putative class action, where the standing of all named plaintiffs is in question, a
court should not defer consideration of Article III standing until after class certification.
Kassman, 925 F. Supp. 2d at 465 (explaining that the general rule that a court may defer
consideration of Article III standing until after class certification should not apply where the
standing of all the named plaintiffs is in question). This is because federal courts have an
obligation to examine their own jurisdiction to ensure the parties have standing to seek their
requested relief. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). Rather, where all
named plaintiffs lack standing to bring class claims for injunctive relief, a court may and should
address this deficiency on a motion to strike the class allegations. Chen-Oster, 877 F. Supp. 2d
at 120 (rejecting plaintiffs’ argument that defendants’ motion to strike Rule 23(b)(2) allegations
on standing grounds was procedurally premature).
The Court should disregard any argument by Plaintiffs that they have demonstrated
standing based on the conclusory allegations in the Complaint that the effects of Defendants’ past
conduct are continuing (see Compl. ¶ 217 (“Plaintiffs have been and are continuing to be
injured . . . .”); ¶ 218 (“[T]he effects . . . detailed above are continuing and will continue unless
injunctive relief prohibiting Defendants’ illegal acts . . . is fashioned and imposed by the
Court.”)). Ongoing effects of past harms are insufficient to confer Article III standing to seek an
injunction. Nicosia, 834 F.3d at 239. Rather, a plaintiff must “demonstrate that she is likely to
be harmed again in the future in a similar way.” Id. (emphasis added). Because, as set forth
above, Plaintiffs’ allegations show that Defendants’ alleged wrongful conduct towards them has
45
ceased, Plaintiffs cannot show that it is likely they will be harmed “in the future in a similar
way” as alleged in the Complaint. They therefore cannot demonstrate that they have standing to
seek an injunction pursuant to Rule 23(b)(2) based on a continuing harm.
For all of these reasons, the Court should grant TWC’s motion to strike Plaintiffs’ Rule
23(b)(2) class claims.
46
CONCLUSION
For all the foregoing reasons, Defendant TWC respectfully requests dismissal of the
Complaint against TWC in its entirety, that the Court strike all class allegations in the Complaint
against TWC, and that the Court grant any other relief it deems appropriate.

February 20, 2018
Respectfully submitted,
SEYFARTH SHAW LLP
By: /s/ Gerald L. Maatman, Jr.

Gerald L. Maatman, Jr.
[email protected]
Lynn Kappelman
[email protected]
Lorie Almon
[email protected]
Scott Rabe
[email protected]
Karen Bitar
[email protected]
620 Eighth Avenue
Telephone: (212) 218-5500
Facsimile: (212) 218-5526
Attorneys for Defendant

The Weinstein Company Holdings, LLC
47
CERTIFICATE OF SERVICE
The undersigned does hereby certify that on this date, a true and correct copy of the
foregoing was served, via ECF to the following counsel:
Jason Zweig
Hagens Berman Sobol Shapiro LLP
555 Fifth Avenue, Suite 1700
New York, NY 10017
Steve W. Berman
Shelby Smith
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Elizabeth A. Fegan
Emily Brown
455 N. Cityfront Plaza Dr., Suite 2410
Chicago, IL 60611
Robert B. Carey
11 West Jefferson Street, Suite 1000
Phoenix, Arizona 85003
M. Cris Armenta
Credence E. Sol
The Armenta Law Firm, APC
1230 Rosecrans Ave., Suite 300
Manhattan Beach, CA 90266
Marvin S. Putnam
Latham & Watkins LLP (LA)
355 South Grand Avenue
Los Angeles, CA 90071
Brad S. Karp
Roberto Finzi
Sara Nichols
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
48
Lawrence Steve Spiegel

Abigail Elizabeth Davis
Skadden, Arps, Slate, Meagher & Flom LLP (NYC)
Four Times Square
New York, NY 10036
James V. Masella, III

Daniel Ruzumna
Melissa Ginsberg
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
John C. Scalzo
Ann V. Kramer
Reed Smith LLP
599 Lexington Ave.
Phyllis Kupferstein
Kupferstein Manuel LLP
865 South Figueroa Street, Suite 3338
Los Angeles, CA 90017

February 20, 2018
/s/ Gerald L. Maatman, Jr.
49
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Case 1:17-cv-09554-AKH Document 48 Filed 02/20/18 Page 1 of 61

UNITED STATES DISTRICT COURT

DEFENDANT THE WEINSTEIN COMPANY HOLDINGS, LLC’S

Dated: New York, New York

SEYFARTH SHAW LLP

Attorneys for Defendant

TABLE OF AUTHORITIES ..................................................................................................... iv

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

STATEMENT OF FACTS ..........................................................................................................4

I. LEGAL STANDARDS FOR A MOTION TO DISMISS AND MOTION TO

II. PLAINTIFFS FAIL TO PLEAD A PLAUSIBLE RICO VIOLATION AGAINST

A. Plaintiffs’ Claims Are Barred By The RICO Statute Of Limitations ................... 11

1. Plaintiffs Fail To Plead A Viable Claim That TWC Engaged In

3. Plaintiffs Fail To Plead Any Viable Facts With Particularity That

C. Plaintiffs Fail To Plead Viable Facts Of A Pattern Of Continued

D. Plaintiffs Have Failed To Adequately Allege Viable Facts Of A RICO

III. PLAINTIFFS FAIL TO PLEAD A PLAUSIBLE CLAIM AGAINST TWC OF A

IV. GEISS AND THOMAS FAIL TO PLEAD PLAUSIBLE INDIVIDUAL STATE

A. The Near Decade-Old State Law Claims Against TWC Should Be

1. By Plaintiffs’ Own Pleading, The Individual State Law Claims Of

2. Plaintiffs Have Failed To Plead Viable Facts That Tolling Should

a. New York Law Regarding Tolling Exceptions ............................ 30

b. Connecticut Law Regarding Tolling Exceptions .......................... 31

c. Geiss And Thomas Fail To Establish Any Basis That Their

B. The Individual Claims Of Civil Battery, Assault, And Negligent And

1. Plaintiffs Geiss And Thomas Have Failed To Plead Facts

2. Plaintiffs Geiss And Thomas Have Not Pleaded Facts

C. The Individual Claims Of Negligent Retention And Supervision Against

D. The Individual Claims Of Negligent Infliction Of Emotional Distress

E. The Ratification Claim Against TWC Also Should Be Dismissed Because

V. THE COURT ALSO SHOULD STRIKE PLAINTIFFS’ CLASS

A. Plaintiffs’ Class Claims Under Rules 23(b)(2) And 23(c)(4) Should Be

B. Plaintiffs’ Class Claims Under Rules 23(b)(2) And 23(c)(4) Should Be

C. The Court Should Strike Plaintiffs’ Rule 23(b)(2) Class Allegations

Agency Holding Corp v. Malley-Duff & Assocs. Inc.,

Anza v. Ideal Steel Supply Corp.,

Barticheck v. Fidelity Union Bank/First Nat’l State,

Bd. of Sch. Comm’rs of Indianapolis v. Jacobs,

Bell Atlantic v. Twombly,

BS Sun Shipping Monrovia v. Citgo Petroleum Corp.,

Buell Indus., Inc. v. Greater N.Y. Mut. Ins. Co.,

Carver v. City of New York,

Charron v. Pinnacle Grp. N.Y. LLC,

Chase Manhattan Mortg. Corp. v. Machado,

Chen-Oster v. Goldman, Sachs & Co.,

Chiaramonte v. Animal Med. Ctr.,

Clark v. Buffalo Wire Works Co.,

Cofacredit, S.A. v. Windsor Plumbing Supply Co.,

Colony at Holbrook, Inc. v. Strata G.C., Inc.,

Condos Bros. Constr. Corp. v. Main St. Am. Assurance Co.,

Cooper v. U.S. Postal Serv.,

Cty. of Los Angeles v. Davis,

Dandong Old N.-E. Agric. & Animal Husbandry Co. v. Hu,

Deshawn E. by Charlotte E. v. Safir,

DiVittorio v. Equidyne Extractive Indus., Inc.,

DLJ Mortg. Capital, Inc. v. Kontogiannis,

Ehrens v. Lutheran Church,