A IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY KUWAIT GULF LINK TRANSPORT COMPANY em, Plaintiffs, I .No. 2012-1 820 Civil Term v. JOHN DOE et Defendants. prom-mes, AMEND COMPLAINT COME NOW Defendants, by and through 'theirrespective undersigned oeunse?l, to respeot?illy request that this Courtfsummarily deity Plaintiffs? Motion for Leave to Amend Cemplaint. Defendants are submitting ?this immediate initial response to the motion, rather than awaiting a Rule to Show Cause,- because :of the unuSual ~eleventh~hour nature ofPlain?ffS? proposed amendments, which threaten to derail the expedientresOlntion of this matter on the timetable set by the Co'urt. Plaintiffs? preposed amendments arenot 'simj?le edits re?ning the operative complaint in anticipation of trial. Instead, they seek to add new defamation claims, which paradoxically are both wholly new ?claims likely requiring additional disCovery and a parroting of arguments and factual allegations Plaintiffs have made to this Court. ,for years. Indeed, the Court will already be well familiar with ?amended? allegations Ryan, Defendants" former counsel, made- allegations regarding ties to Iran. 1 If the Court lss?ues a Rule to Show Cause with respect to this motion, Defendants will ansWer the motion on a paragraph-by-paragraph basis, and respectfully do not Waive their right to do so by ?ling this mitial response2012-01 52041370 Fm 220354 RESPONSE bl IO ?3??;51321- 211612013 4 10: ans PM Dale Sabadisj County Framed 7 Plaintiffs? motion, following years of di?seoyery, and only two months before the depositioo discovery cut-off, is inalppropriate, futile, and highly prejudicial to Defendants. The motion also exposes Plaintiffs? wish. to extend this Vexatious and harassing litigation as ?long as possible.- Respectfully, the Court should reject such amendments as ?llilG; both because of recent admissions from 'P-laint?i?ffs? eo?rpora't'e designee, Who con?rmed that the statements contained in the Wilson Letters are true, and because Plaintiffsi ?new? defamation claims are not new at all, having essentially beeniraised by Plaintiffs "throughout this litigation, and are thus barred bythe statute :of'limi?tationst For the reasons .set forth more fally?below, Defendants respectfully request that this Courtgrej'ectthese efforts, and keep this litigation on the path to resolution in August by summarily denying Plaintiffs" motion to amend. m, as this Court is well aware, the parties have already engaged .in years of discovery related to the allegations in the ?FirSt Amended Complaint, which was ?led June 14, 2012. When the par-ties met with the Court. for a status conference in November 2017', Plaintiffs represented that any motion for leave to amend would be :?led before the new year,2 butthey strategically waited until a?er Written discovery was complete to tile this motion. 'To allow the proposed amendments at this late to allow Plaintiffs to assert wholly new defamation claims ?-in?volving di?erent speakers, different speech and di??erent audiences, would mean restartingthe clock on this litigation and rewinding six years of effort. It likely require new answers, new preliminary objections and a reopening of'd'i'seovery (particularly as to third- :ofthe newly alleged defamatory statements). ResPectfully, Defendants believe that allowing such an antendment would be :a waste of this Court?s resources and unduly ?Undersigned counsel- requested that the Counset a deadline for ?le any motion for leave to amend, 'but the Court-declined to do so, statingthat a deadline 'n'i'i?ght imply that would even censide'r?sueh a motion prejudicial to Defendants, who have defended themselves Zia-this litigation in. good faith, for nearly six years, based on the speci?c claims that Plaintiffs have asserted and pm'SUed. See Debbs v. Corp, 810 A.2d 137, 1.50 (Pa. Super. "Ct. will notbe permitted where surprise or prejudice to the other party will" Permitting Plaintiffs to expand the case to tinclude'new claims and Witnesses at this late stage would reward inappropriate garne's'manship. In similar cases, courts have'denied parties leave to amend. Fer. example, in Edmonds v. MBB, Inn, .559 A.2d 5-90 (Pa. Super. Ct. 11989,), the defendants sought leave to amend 'to add .a crossclaim four years after the complaint was filed. The trial court ?denied the moti'0n, stating: ?To have permitted these defendants to amend to add a cross?claim as the case was about. to begin would have been prejud1c1al to the other parties and Would have given the movants an unfair advantage which could only have been neutralized by further discovery and delaV. In light of the feet that this fease was fool'- years old, that undue delay had occurred through no faultof'the other partiesor the ?court, the court considered that further delay was unwarranted. There comes a time when the parties must be ready to proceed with their lawsuit. The time in this instance had long since pasSed. The court, therefore, refused to permit amendment[ Id. at 5 93 (emphasis added). The Seperior' Court af?rmed, stat-ing'thatit could ?perceive no abuse of discretion on the part of the-trial cou, in would be inequitable to permit this crossc?laim since it would necessitate '?irther discovery which, in turn, would delay the already ?four?year old litigation.? Id.- Defendants do not object to the dismissal with prejudice of the Plaintiffs negligent supervision claim. However,- Plaintiffs? suggestion that they are the complaint against certain John Doe defendants (whOni they did not: serve) when in fact they are merely redefining ?Scott Wilson? is clearly an improper challenge to the protections required by Pitchesky v. Gatelli, 12 A. 3d 430 (Pa. Super, Ct. 2011). Indeed, Plaintiffs" refusal torecogmze the protections afforded by Pilche'sky is highlighted by the fact that Plaintiffs conspicuously did net delete the allegation from their proposed amended complaint that they continue to seelt the identity of ?Scott Wilson;- See Second Cempl. 1f 15 . AlthoughEdhionds involved a motion to amend-?ledby the defendants rather than the plaintiffs, that case is otherwise-on all fours With the this Court. Elaintiffs seek to amend the complaint and materially expand a. case that is more than. six years old, latter the clOSe of Written discovery and astrial is approaching, Allowing the amendment would give Plaintiffs an. unfair advantage that ivonld necessitate futther'thi'rd?party di?Scovery and delay at .a time when such additional delay is unwarranted, Here, too, the time has ?long since passed? when the parties ?must be readying proceed with their lawsuit.? Second, although Plaintiffsgatterinpt to justify the timing of their tardy motion. by'refcrring to Defendants5 document production in ?October 2017 and interrogatory respOnses in December .2017, the timing of this .?motion can more accnrately- be esplained by extensive admissions recently provided by Blaintiffs? cotporatezdesignee, who con?rmed under oath that the allegations of Letters at the head of Plaintiffs" defamation casesare-true?desperate times call for desperate measures. For example: 1? Plaintiffs admitted that RAK Shipping ivas a ?joint venture? between KGL and others, including CSC and Valfajr See A?fy Dep. 18?19, 2017 (relevant pages of the transcripts cited herein are attached as Exhibit 1) I Plaintiffs admitted there Was an understanding that KGL and RAK-Shipping could not do business with lefajzrv?because o?f-?the sanctions; and that, if. KGL continued to do: business wi'th'Valfajr', KGL and RAK Shipping would be in violation of U.S. sanctions iaw43525146. '0 After Plaintiffs counsel objected to a questiOn regarding compliance with Iran. Sanctions on the ba'sis that it was a legal conclusron Plaintiffs Stated that whether or not someone was in violation of sanctions was a legal issue and that sought such aiegal. opinion from Crowcll in, 2010, See id. at 186.: 8?18726, 1388120419024. 0 Yet, Plaintiffs adm ittedfthat they did continue to do business- wi?z _Vql?zjr, and that, up until April. 7, 201.1, the asubeharterer of?the iMeijian vessel was Vaflfajr. See id. at 46023451519. . ,Furthennore, Plaintitisgad'rnitted 11111011111112; 2011, atthe timeof-the Wilson Letters, M1. Saee? 13111111, the Chairman without any doubt, knew-that the Meijan Was Communicating directly with 'Valfajr. See id, at 3:25:11 3?1-6. 0 Plaintiffs admitted thati RAK Shipping had. a legal right to repossess the ships from Valfajr, but chose not to do so Size id. at 201 17?202 13. 0 Instead, Plaintiffs admitted that KGL executive Rosenberg setup a ?ghost structure? for the Bright Ship charter to=e113111e that Valfajr was not directly communicating with the Merjan and thus Valfajr s: involvement 111 the charter would be masked Moreover, Plaintiffs admitted this ;was related to ensuring that messages would look as though they. were gomg to Bright Ship, when they actually were going directly to the 1- Plaintiffs admitted that they could not immediately cut off its relations with sanCtioned- companies upon learning. of. their inclusion on the SDN list because it would impact their situation and their interest. See id. at 43: 8?17. - Furthennore,Pla1nt1ffs admitted that they did not know if? anyone .at Shipping made inquiries about the cargo being carried ?in the containers on board the Motion after their own insurer told them to make immediate inquiries about the cargo and satisfy themseI-Ves that they were not in breach of sanctions and 111 particular of CISADA. See id. at 404. 22?406 aSSuming the veracity of this admission, KGL was not itself aware whether or not it was in Violation of CISADA), These admissions foreclose any possibility that Plaintiffs Will?be able .to preVail in this litigation, and they establishes a matter-of law that the Wilson Letters were true and therefore not defamatory. Foreseeing inevitable defeat, Plaintiffs are Scrambling .to imagine a broader Complaint than the one they?plead and have litigated. forthe last six years; however, they must not be allowed to clock on this litigation and force Defendants to engage insadditional discovery and litigation, which would be .?itile given the admissions already made in this. litigation showing that the 'Wilson Letters were true, See Keresko- v. arZey', 844 A.2d 2607, 618 (Pa. Commw. Ct. 2004) amendment is properly re?ised where ?it atipe?ar?s to be a ?1 Further, KGL?Executive Allan Rosenberg stated in his declaration already produced in this matter that KGL did not know what car-go Was being shipped on. the Meijan and the the two vessels owned by RAK Shipping icint venture With a subsnliary of a sanctioned Iranian entity). See Ex. 2, Rosenberg Decl 1] 6?9. reasonable the .mendment will be futile?); In reEstate ofLuongo, 823 942, 969(Pa. Super. ?Ct; 2003) (denying;- leave to amend Where ?weald have been "?lti-Ie? and ?would only s?er?tte to delay-the matter unjusti?ably?f). Elli, and critically, Plaintiffs have long been {on not-ice of the ?fnew? Claims they wish to add to 'thei'r'Complaiot, and should? net?b?ie allowed to add them-now that the statute of limitations has run. See Roma}: v. Hygienic Sanitation Ca, 705 A.2d ?841, 857 (Pa. Super. Ct. 1997) (?There is . . . a prohibition against amendments which add a new cause of action to a complaint after the running of the statute of affd; 737 A.2d.24'19 (Pa. 1999). The eoreof Plaintiffs? Motion for Leave to Amend Complaint. is the addition. of twognew defamation Claims related to distinct third-party communicatioiis by "Defendants? fences Counselmsnamely, the alleged publishing to third parties of the ?Current KGL Ties-to Iran?- memo and emails ties to Iran, As alleged in the?pmposed pleading, ?these communications occurred in 2011, well outside the one-year statute of limitations applicable to defamation claims. See 42 Pa. C.S. 5523. Plaintiffs .attempt to sitcoms/tent the statute of limitations by arguing that the ?discovery rule? applies because Plaintiffs allegedly did not know about the speci?c cominunications at- iSSue until October 2017. But even taking Plainti-?s at their word-"which is contradicted by? the :record?-??-that is not 'how the discovery rule operates. person asserting a claim has the duty to use all reasonable diligence to befp'rope'rly informed o'fthe facts and circumstances open which a. potential right of recovery is b?asedgand to institute suit- within the preScribed -3tatut0ry- period.? Roma/1, 705 A.2d at 857 (quotation marks omitted). mistake or misunderstanding do not tell the running of the statute of limitations.? Id. are very few facts which diligence cannot discover? so long as there is ?some reason to awaken inquiry and direct diligence in the channel in which it would-be successful.? Id. In this case,- Plaintiffs were suf?ciently on notiCe of potential claims arising from the memo and Mr. Ryan?s communications well in, advance of Defendants? production and interrogatory responses last year for purposes of the discovery rule. For exairhple: More than six years ago, in 2011, Plaintiffs issued a subpoena to Mr. Ryan?s law ?rm, MCDermott Will Emery, Seeking documents and electrOnically stored information related to the Letters, internal KGL documents, and alleged business with Iran. See "Ex. 3. .It was no doubt clear to Plaintiffs then: that alleged business with Iran was an issue of interest to Mr. Ryan. Yetthey withdrew their subpoena, and since ?ling their complaint ?in 2012, Plaintiffs ?have-yet to attempt to depose him. In 2012, Plaintiffs again demonstrated, that they'were aWare of Mr. Ryan?s communications with third parties regarding ties with Iran. In their opposition to Kuwaiti Defendants? Motion to Dismiss in the identical District of Columbia case, Plaintiffsalleged both that ?defendants? American agents likely assisted in writing the Wilson Letters? and ?made the same defamatory statements in lobbying US. Senators and. Congressmen to seek plaintiffs? debannent from US. government contractingApril 2012,, before Plaintiffs ?led their First Amended ?Complaint, Plaintiffs wrote to Mr. Ryan? 5 counsel that Plaintiffs had ?discovered? ?that ?McDe?rr'nott ?obtained, reviewed, used, and distributed privileged and con?dential documents belonging to Ex. 5 at 1 Moreover, Plaintiffs? October 5, 2015 Brief in Support of their Motion to Apply Pilchesky quoted from .the ??CUrrent KGL. Ties to Iran? document,? and argued that defendant?s :au?t'hOred the document. SeeEx. 6 at 58. As Plaintiffs are not attempting to add Defendants? former counsel as a party, con?rming that such counsel authored the document does not warrant the addition of a new claim. Plaintiffs also, puzzlingly, allege in their motion that they did not ?discover[] the New Current Memo Statements? until October 2017. See Pls. Mot. for Leave to Amend Compl. at 1130. Yet, Plaintiffs have themselves produced multiple versions of the ?Current KGL Ties to Iran? memo, suggesting that they knew the memo was shared with at least one third party given their belief that defendants auth0rcd the document. See Exs. 7, 8.5 One of the versions produced by Plaintiffs came from the BaragOnas, 5 This is an excerpt from larger document KGL004421. ?'om whom Plaintiffs obtained documents through a non-party subpoena issued in 2011. See ?Ex. 9 at I Plaintiffs *3180 were on notice that the ?Current KGL Ties to Iran? document was shared with. third parties because of the way that the memo was produced :as part of the Salwa Case File (a 'case ?le relating to Kuwaiti proceeding) foilOwin a slip?sheet entitled ?Documents have been submitted to Congress.? See Ex. .1 Defendants produced the Salwa CaSe ?le .to Plaintiffs OnApril I7, 2014. Accordingly, any suggestion 'by Plaintiffs that they understood that memo was intended only for internal use is puzzling, Further, Plaintiffs knew that Mr. Ryan served as Defendants? lawyer and that the ?Current to Iran? decu?me?n?t included, among other things, a legal analysis of CISADA and the appliCatiOn of sanctions laws to foreign entities. - Some of Plaintiffs? other ?new? factual allegations related to Mr. Ryan are identical to those included in Plaintiffs? 2015 Motion to. Apply Pil?chesky and Compel John Does" Identity. Compare Pls. Mot. for Leave to Amend Comp]. Ex. A (hereinafter ?Second Am. '15 8 (?One of Mr. Ryan?s McDermmt colleagms boasted to a family member on her work on KGL: ?This 'is the stery?we?Ve been working on. Mosk is the reporter Ih?ad coffee with. ?We-are-the unnamed sources. We took this to the FBI. We teokit'to the hill, and we took it. to the media. We are trying. to get this company'barred from contracting?) with KGL Pileheslgi (?Defendants? lohbyist,on forwarding ABC News story-to her SpouSe, indiCating ?This is the story we?ve Been working on. Mosk? is the reporter I had. coffee with . . . We are the unnamed sources. We took this to the FBI. We took it to the hill, and we took it to the media. We are trying to get this cempany barred from contracting?); Second Am. Compl. 11100 (?One or more of Defendants, directly or indirectly, provided IMG the Wilson Letters and ?'e-mails attached to the Wilson Letters?) with KGL Pilchesky Mot. 1f 26 (?On the same day-as the ?rst Letter and two days later, IMG, courtesy of defendants ?led Wilson?s falsi?ed KGL e-i'nails in the two GAO bid protests .. . . involving and Second Am. Compl. 1] 197 took no action against KGL, and on January :22, 2013, OFAC stated that: ?This is to con?rm that the does not now have, and never has had, an investigation targeting any of the followmg entities for suspected violations of our sanctions: Kuwait Gulf Link Transmit Company, KGL Holding Company KGL Logistics; KGL Transportation Company or KGL Ports "InternatiOnal with KGL Pitchesky Mot-1] 18 (?On 201:3, followed suit. It stated: ?This ?is recon?rm that dees not nowhave, and never has had, an investigation targeting any o'fv'the following. entities for suspected violations of our sanctions: Kuwait Gulf Link Transport Company; KGL Holding Company KGL Logistics; KGL Transportation Company or KGL Ports International Company.? 6 This is an excerpt from larger document Thus, the record in this rease leaves no doubt that Plaintiffs" ?discovered? any allegedly new injury long before October 20517. This is not where that "questiOn needs to be put to theljur'y?. Importantly, the ease thatPlainti-ffs :c'iite'forthatproposition, Gallucci v. Phillips Jacobs, 1124,6714 A.2_d 284 Super. Ct; 1992.), did not i-a??sevin- the, context of a dil-atory motion for leave to amend. Not surprisingly, courts-need not wait for-the-jury?s verdict-to decide whether to deny leave-to amend foi? futility. See, WIBrandywine Twp. v. John P. Diromual'do, Inc.,No. 1298 2CD. 20.16,. 2017 WL 526305, at *3 (Pa. Commw. Ct. Feb. 2017) (?The ?trial Court, not having been presented with evidence ?to the contrary that wouldlhave caused reasonable minds to differ, made the determination of the ?statute of limitations period as amatter of law?). Indeed, . . . reasonable minds would not :differin ?nding: that a party knew or should have known on the exercise :of reasonable diligence of his injury and its cause, the court determines that- the discovery rule does not apply as a matter Mariner Chestnut Partners, LP. v. .L?nfe's?t, 1,52 265, 279 Super. Ct. 2016). ,e For all of. these.- reasons, Defendants request that this Court summarily deny Plaintiffs? Motion for Leave to Amend. If this Court is, inclined to issue a Rule to Show Cause regarding the motion, Defendants intend to .aris?w?rthe motion on a paragraph-by?paragraph basis. February 2013 JOHNSON, DUFFIE, STEWART WEIDNER By: 3124*? Jeffrey 301 Market Sti'eet PO Box 109 Lemolyne, 17043 (717) 761-64540 SKADDEN, ARPS, SLATE, MEAGHER .FLOM LLP By: 5* [cs?aunt k) Margaret E. 'Krawiieeg ngqUir'e Thomas A Pan?1am,Esqu1re 1440 New Yerk Avenue, NW Washington! DC. 20005 (2-02) 317-7000 Richard Mannaro, EsquiIe 300 South Grand Avenue, Suite 3400 .Los Angeles, CA 90071 (213) 687-5000 QUINN EMANUEL SULLIVAN, LLP Kristin N. Tablet, Esquire 1865 S. Figueroa St? 10th Floor Los An'geles. CA 90017 . (213) 442.3000 Caun'selfor the Kuwaiti De?ndants '10 Respect-?lly s?hmitted, CECE: MW Ive V. Otto EsquireV Geb'rlge B. Feller; Esquire 113 ?EastHigthreet PA 31.7013 (717)243-3341 BLANK ROME LLP Alan M. Freeman, Esquire Ad?eh Esquire Negar Kerdestani-,~ ?Esquire 1325' iStt??t, NW Washington, 13.0. 2000.6 (202) 42042200 Amy]. Coles 501 Grant Street, Suite. 2900 Pittsburgh. PA .1 5219 (41132) 932-2800 Counsel for'th'e U. S. Defendants Exhibit 1 Page 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, KUWAIT GULF LINK TRANSPORT COMPANY, et al., Case No. Plaintiffs, v. . VolUme I of II JOHN DOE, et a1., Defendants. Monday, December 18, 2017 videotaped Deposition of KUWAIT GULF LINK TRANSPORT COMPANY and related entities, by and through its designee, AHMED AFIFY MAHOUD, taken at the offices of Skadden Arps, Slate, Meagher Flom LLP, 1440 New York Avenue, N.W.,.Nashington, D.C., beginning at 9:08 before Nancy J. Martin, a Registered Merit Reporter, Certified Shorthand Reporter, Veritext?Legal Solutions Page 43 within KGL when IRISL and Valfajr and Oasis and others were designated as SDNs by the U.S. government? A. Uh~huh. Q. Were there concerns within KGL of that designation? A. Who is concern? Yes. Q. Describe those concerns to us. A. Now, immediately after, these companies, Valfajr, were listed in September 2008. We discussed the situation, the impact of that, and the reason behind sanctions to these companies. And the management, at that time, take position to cut off any relations with these companies, any business doings. And we understand that we cannot do that in short time, will impact our situation, our interest. And we should put a plan to exit from these relations as soon as possible. During this time, we should have a control for everything, understand what is going, why this company is listed, and there's any interferes between this alleged business with KGL businesses or not. Be sure that nothing is coming in that any related Veritext Legal Solutions Page 49 basically to talk about operationally how to cut ties with Valfajr? A. Yes. Q. 'So, again, CSC and RAK Shipping were joint ventures formed by KGL and others; correct? A. CBC and? Q. RAK Shipping were joint ventures formed by KGL and others; correct? A. II just understand (indicating). Q. Sure. (Witness and Interpreter converse in Arabic.) THE WITNESS: Joint venture to create what? BY MS. KRAWIEC: So let me break it down. CSC and RAK Shipping, the two entities we were just talking about. A. Yes. Q. They were joint ventures formed by KGL and others; correct? A. Correct. Yes. Q. And IRISL, the Islamic Republic of Iran Shipping Lines, and its subsidiary, Valfajr, were involved in forming these joint ventures with KGL Verite'xt Legal Solutions Page 50 before they were sanctioned by the United States in 2008; correct? A. Yeah. But I think-IRISL were involved in RAK Shipping, not in CSC. Q. Okay. A. CSC was Valfajr. Q. So IRISL was involved in RAK Shipping. And Valfajr was involved in CSC. A. CSC, yeah. Q. In these joint venture for A. Before sanctions, yeah. Q. Were you involved in the formations of these entities in your role at A. In CSC because established in 2001, no, I don't engage in this one. Okay? And RAK Shipping the process is done in RAK Shipping. Okay? So we use usually an attorney, law firm, to finalize this issues. But all document is reviewed by us, by me, when it comes to Kuwait and see the document. Q. That was for RAK Shipping? A. Yes. Yes. Q. Okay. And so do you know how it is that KGL Veritext Legal Solutions Page 58 (The witness reviewed the document(sl.) THE WITNESS: 'Yes. BY MS. KRAWIEC: Q. Okay. So in 200?, KGL and other entities formed, as a joint venture, Ras Al Khaimah Shipping; correct? A.I?Correct. Q. ?At the time that it was established, the ownership, the shareholding broke down as follows: CSC had 45 percent; correct? A. Correct. Q. The Government of Ras Al Khaimah had 27 percent; correct? A. Correct. KGL Holding Company had 9 percent; correct? Yes. KGL Port International Company had 9 percent? 10 0 Correct. Q. And IRISL Middle East had 10 percent; correct? A. Correct. Q. Okay. There's a document I want to show you Veritext Legal Solutions Page 186 A. Yes. Yes. Q. Okay. Would Mr. Saeed Dashti be personally involved not personally, but in his capacity as chairman, he would be aware of this; correct? A. Decision, yes. Yes. Q. Yes? A. Yes. Q. So during the period after the sanctions, sanctioning of Valfajr, IRISL, Oasis in September 2008 and prior to the time that KGL sold its shares, do you agree that KGL was in violation of the Iran sanctions? ZATZ: Objection. MS. KRAWIEC: What's the basis of the objection? MR. ZATZ: That's a legal conclusion to be decided in this case. BY MS. KRAWIEC: Q. Okay. You had said earlier that any transfers from RAK Shipping to IRISL after the sanctions would have been a violation; correct? That it was prohibited by the sanctions; correct? A. Yeah. But, again, the question, please. Veritext Legal Solutions Page 187 Q. Sure. So prior after September 2008, once the sanctions had been imposed, up until KGL divested of its shares in CSC, would you agree that KGL was in violation of the Iran sanctions? MR. ZATZ: Same objection. THE WITNESS: NO. BY MS. KRAWIEC: Q. No. Why? A. Okay. As I mentioned, we are the intention, the important thing, what is the intention. The intention is exit from any relation with CSC, with the Valfajr company, and the main target was that that relation with them, which is within the CSC. Second stage, because we have different shareholders, not like CSC, KGL and Valfajr and some related personnel, this is the decision of the RAK Shipping was more complicated than easier with CSC. So let me your question again? Okay. I get it. Okay. Sorry. I tried to think. So in this intentional motion and to go directly to finalize the procedures and control the vessels, we think that we are applying the rules, not Veritext Legal Solutions 215-241-1000 610-434?8588 302-571-0510 202-803-8830 Page 188 broken the rules, the sanctions, I mean. When I say the "rules," I mean the sanctions. We tried to comply with this rules and considering all the circumstances around us, but we successfully achieved our targets and lift these companies away. So this is the intentional issue which I considered. Q. When you say "intentional," do you mean intent or intentional? A. Intent, not intentional. Q. Intent. Your counsel made an objection that it was legal (Interpreter and witness confer.) THE Our decision, we were trying to.get rid of this company.? Our intent was BY MS. Q. That was your intent? A. Yes. Q. .I just wanted to make sure for the record. Your counsel had made an objection that what we were talking about was legal in nature. I mean, Veritext Legal Solutions . Page 189 whether or not someone is in violation of sanctions or not is a legal issue; correct? A. ?Yes. Q. It's a legal opinion that someone might have; correct?. A. Yes. Q. 'Did you seek legal's opinion in support of your View that it was the intention that counted in determining whether or not KGL was in violation of the sanctions? A. During the 2010 and that; we coordinating with Crowell Moring to get advices for the steps we need should be taken and what new regulations it showed and with this all Q. 'So Crowell was advising you on the Iran sanctions in 2010? A. ?Yes. Q. Is that correct? A. Yes. Especially when it's come in the contracting side. Q. The government contracting side? A. Yes. If there is solicitation. What is Veritext Legal Solutions Page 190 Fard's effort to that when we want to prepare any certification. Q. But that was in 2010? A. Yes. Q. So in September 2008 after Valfajr and IRISL and Oasis were sanctioned, did you get legal counsel to advise you whether or not it was your intent that would protect you from being not in violation of the sanctions? Did you seek a legal opinion on that? A. It's internal legal. We discussed it with our in Kuwait, locally, we Q. Locally. A. Locally. And the matter is not simple as that. You have a company and you have assets, and by that, we are outgood seeking advice for that. Q. I understand the point you're trying to make, but as of September 2008 you had not sought legal advice from U.S. counsel on this issue? A. No. Q. No. And, in fact, is there anyone in your Veritext Legal Solutions Page 201 how the vessel should be run. And several times we refused to renew the vessels the charter party, sorry. And they didn't accept or return the vessels. After negotiation with them, with the negotiation with what the management of RAK Shipping, they issued the addendum. 1 don't recall how many number of addendums, maybe five addendums, to recover the situation. I don?t know if you want me to use that translation, but this what I -- Q. understand, but you have a charter agreement? A. Yes. Q. There are terms where the charter agreement ?expires? A. Yes. Q. And you have a legal right to be able to repossess the ships; correct? Yes. Q. -Despite that legal right, RAK Shipping did not repossess the ships; correct? A. Not like that. We have reviewed the charter Veritext Legal Solutions Page 202 party, we understand the clauSe you are referring to. We discuss how to implement it. 'Okay? The problem is that the vessel were loaded with the cargo. To confiscate to capture the vessel from the port, it's not an easy situation and will put us in claim with the cargo owners and also with the insurance company without having any contractual coverage. So we decide that the best solution to continue convincing and put the pressure on the Valfajr to return the vessel. We can't we cannot I prefer to use the translator. There's some legal words. (Witness and interpreter confer.) THE INTERPRETER: We prefer that we it's better than to lose the legal ownership, the legal right. I THE WITNESS: Not legal right. THE INTERPRETER: Physically, because we don't have like a control over it. You know what I'm saying? But the contract we'd rather have, you know, like a contact which is still valid, a valid Veritext Legal Solutions Page 253 A. Yes. Q. "To debar Valfajr from communicating directly with the vessel. I suggest that you soonest possible establish relevant E?mail addresses to auto?dist," which I think means "distribute," "between the charterer and the subcharterer and vice versa. As a minimum, visualize following addresses." And it says, auto?dist to Merjan." And then it says, auto?dist to subcharterers operational departments. This will enable the veSsel to receive and send messages through Bright Ship to subcharterers. Best regards, Allan." A. Uh?huh. Q. So he says up top that he's suggesting this auto distribution list to ensure that Valfajr is debarred from communicating directly with the vessel; correct? A. Give me one second. Let me read this E?mail. Sure. (The witness reviewed the THE WITNESS: Yes. Veritext Legal Solutions Page 254 BY MS. KRAWIEC: - Q. So going back to the question I asked, ,Mr. Rosenberg suggests an auto distribution system to ensure that Valfajr is debarred from communicating directly with the vessel, the Merjan; correct? A. Yes. Q. And this relates to ensure that this auto distribution plan will allow for the message to look as though it's going to Bright Ship, but it Will go directly to the subcharterer? A. Yes. Q. And the subcharterer here appears to be Valfajr; correct? A. Yes. Q. This is on September 26, 2010, the day before the charter is starting; correct? -A. Yes. Before the charter, but within the receiving or checking the vessel as we talk. Q. Okay. A. Which is same day, 26th, yeah. Q. So my question is: The day before the charter party officially began, the same day the Veritext Legal Solutions Page 298 or Bright Ship. If they add it to the list of communication, they can communicate.i I don't saying that Valfajr is not in the domain, but I say who is puttingin that domain. Valfajr and Bright Ship, they will receive the messages directly. BY MS. Q. So Valfair is going to be getting the message through this ghost structure; correct? A. Yes. Yes. i Q. Okay. Now let's stay with the E?mail. Let's read the top. A. Okay. Q. So Moghaddami Fard E?mails Allan Rosenberg and he says, "Would Crank shaft" remember Colin Crookshank is the captain with Saqr Port? A. Yes. Q. He Says, "Would Crank shaft get suspicious? How would we have our centrol over the message? If this is that Cheap, so buy and we set the different E-mail addresses and from there we can-decide when to start operating." A. Uh?huh. Veritext Legal Solutions . Page 325 BY MS. KRAWIEC: Q. So I just want to talk about the top E-mail address. I'm sorry, the top E~mail. You see Mr. Rosenberg on March 22, 2011 is sending an E?mail to Mr. Saeed Dashti, correct? A. Yes. . Q. And go to the last paragraph. He says, "Unfortunately, have found that deSpite my clear instruction to the contrary, permission hasbeen granted to Valfajr to communication directly with the vessel;" correct? A. Correct. Q. So now Mr. Dashti, without any doubt, knows that on March 22, 2011 the Merjan is communicating directly with Valfajr; correct? A. Correct. Q. One more. (Deposition Exhibit 310 was marked for identification.) BY MS. KRAWIEC: Q. So this E?mail, the first page is KGL007417. In the middle of this E-mail chain, G.G. Lucas is Veritext Legal Solutions Page 389 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, KUWAIT GULF LINK TRANSPORT COMPANY, et al., Case No. Plaintiffs, Volume II of II JOHN DOE, et al., Defendants. Tuesday, December 19, 2017 Continued videotaped Deposition of KUWAIT GULF LINK TRANSPORT COMPANY and related entities, by and through its designee, AHMED AFIFY MAHOUD, taken at the offices of Skadden Arps, Slate, Meagher Flom LLP, 1440 New York Avenue, N.W., Washington, D.C., beginning at 9:05 before Nancy J. Martin, a Registered Merit Reporter, Certified Shorthand Reporter. Veritext Legal Solutions Page 404 cargo being transported to the vessel, not the owners of a vessel;" correct? A. That's correct, yes. Q. And RAK Shipping was the owners of the vessel; correct? 4 A. Yes. Correct. Q. Was RAK Shipping the member of the Club? A. They have when you have insurance, you will be a member, yeah. Q. Okay. So when Mr. Goulson said, "Members should also make immediate inquiries about the cargo being carried in the containers on board the ship," who did who is the members in that statement? A. You talk in general but as anyone that have insurance, I guess so, in the Club will be a member. Q. Who is the member here? A. So RAK Shipping will be a member. Q. So RAK Shipping is the member here that he's writing'to? A. Yes. Q. So he's telling -- your insurer is Veritext Legal Solutions Page 405 telling you that RAK Shipping should make immediate inquiries about the cargo being carried in the containers on board the'ship; correct? - A. Correct. Q. And he says that "members need to satisfy themselves that they are not in breach of the sanctions, in particular of correct? A. -Correct. Q. Are you aware cf, after this E-mail, anyone at RAK Shipping or KGL making any immediate inquiries about the cargo being Carried in the containers on board the Merjan? A. ?No, I don't know. Q. Are you aware of RAK Shipping or KGL making any inquiries at all about the cargo? A. I don't know. Q. don't know? A. Yeah. Q. So, to your knowledge, you are not aware of any such inquiries? A. I answered the question. Q. I'm asking for Clarification. Veritert Legal Solutions Page 406 A. don?t know. Q. You're here as KGL's corporate representative and you.are supposed to have the knowledge of KGL and RAK Shipping A. It's might be happen. I can't confirm. Yeah. Q. So you didn't speak to Mr. Rosenberg; correct? A. No. Yes. Q. didn't speak to Mr. Dashti; correct? A. :Yes.' Q. You didn't speak with anyone in RAK Shipping; correct? A. Yes. On.the specific subject, yeah. (Deposition Exhibit 322 was marked for identification.) BY MS. KRAWIEC: Q. Mr. Afify, I just want to ask you about the first-E?mail on the first page of this document A. Yes; Q. KGL050863. That e4mail is dated November 11, 2010. It is from Moghaddami Fard to Veritext Legal Solutions Page 439 recall the dates matching. Q. We've seen various documentation where Great Ocean Shipping was involved in chartering issues related to the Merjan and the Awafi; correct? A. Yeah. And when Ocean Shipping is sanctioned? Q. Ocean Shipping is sanctioned in June of 2011. A. Okay. Q. Why would Rosenberg be concerned about a payment coming directly in from Valfajr? A. Not just Valfajr. He should receive the payment from Bright Ship. Okay? And, seriously, when he see in the letterhead of Valfajr, he's concerned why it's coming from Valfajr. But he should receive from Bright Ship. Q.r Any other reason he should be concerned other than the fact that A. 'He want to cut all this is the intention, he want to cut all relations with Val?ajr, IRISL, all these companies. Q. Why? A. -Because it's sanctioned companies. Q. So was there an understanding that KGL and Veritext Legal Solutions Page 440 RAK Shipping could not be doing business with Valfajr because of the sanctions? A. Yes. Q. And here Would be a payment coming in directly from Valfajr that would be U.S. dollar denominated; correct? A. It's not saying directly. I can?t use the word "directly." I saw here is order to what is the name? Great Ocean? Great Ocean, to pay for Bright Ship to allow Bright Ship pay to RAK Shipping. Q. So again A. He's sensitive to see just letter saying "Valfajr." He don't accept that. Q. I asked you "So was there an understanding that KGL and RAK Shipping could not do business with Valfajr because of the sanctions?" And you answered "Yes;" correct? A. Yes. Yes. Q. Did you discuss Allen Rosenberg's concerns about this payment with him in preparation for this deposition? A. No. No. Veritext Legal Solutions Page 451 A. Business risk. Q. and legal risk A. legal risk and business risk, yes. Q. against the risk of doing -- continuing to do business with Valfajr in violation of U.S. sanctions laws; correct? MR. ZATZ: Objection. Form. THE WITNESS: I don't agree with the board is doing businesses. Yeah. I have to yes. BY MS. KRAWIEC: Q. You had testified that if KGL and RAK Shipping continued to do business with Valfajr, they would be in breach of U.S. sanctions law; correct? A. That's correct. Q. Correct? A. Correct. Q. So here you have a decision whether or not to take the vessel back A. If I can. Q. If you can, or continue and be at risk in violating U.S. sanctions law; correct? A. Not correct. Veritcxt Legal Solutions Page 452 Q. How is that not correct? If you said if you continued you had teStified your testimony is that if you continue to do business with Valfajr, KGL and RAK Shipping could be in violation would be in violation of U.S. sanction law; correct? A. Yes. Q. So if you keep the vessel knowingly with Valfajr, how is that not a violation of sanctions law? A. We told you that We have to renew that. The decision is to exit from the company. This is the main objectives. 'We have to do it. Q. Exit from what company? A. From CSC. And also discuss the issue of RAK Shipping. If we buy the shares or sell our shares, this was the discussions. Q. Okay. But as of March 2011, KGL still had ownership interest in RAK Shipping; correct? A. Yes. Q. CSC still had ownership interest in RAK Shipping; correct? A. Yes. Q. was partially owned by Valfajr; correct? Veritext Legal Solutions Page 460 THE VIDEOGRAPHER: .The time is 10 3o a?m. We're going off the record. (WHEREUPON a discussion was held off the record.) THE VIDEOGRAPHER: The time is 10:30 a.m. Please proceed. BY MS. KRAWIEC: Q. Mr. Afify, if you go to KGL012904. A. Okay. Q. It says, "Addendum No. 1 dated March, 2011"? A. ,Yes. Q. It says, "This addendum No. 01 to the main which presumably means "charter party"; correct? Yes, that's correct. Q. "dated 30 of March 2011 is to place on record that the owners of Merjan, RAK Shipping Limited, LLC, and charterer Simatech Marine hereby mutuallyragree that laycan to be amended, which is not to commence before one hour LT, 7th April, 2011 and not later than 25 I'm sorry 2359 hours LT 8 April, 2011;" correct? Veritext Legal Solutions Page 461 A. Correct. Q. So the original charter party, this addendum is indicating that it was signed on March 30, 2011; correct? A. Yes. Q. And laycan is expected to be between the 7th and 8th of April; correct? A. Yes. Q. So that means the expectation is that the Merjan will be delivered by Bright Ship on this date. A. Yes. Q. And we know that the subcharterer and who was using the vessel was Valfajr; correct? A. Correct. Q. So up until the date, at least as per this charter party, the expected delivery and, therefore, Valfajr no longer using the vessel is April 7; correct? A. Yeah. Supposed to happen. Yes. (Deposition Exhibit 330 was marked for identification.) BY MS. KRAWIEC: Veritext Legal Solutions Exhibitz IN THE COURT OF COMMON PLEAS CURBERLAND COUNTY, KUWAIT 8: GULF LINK TRANSPORT COMPANY, et a1. Piainti??s, v. No. 2012-1320 TERM JOHN DOE (aka. Scott Wiison), er a1. Defendants. RESTATED AND SUPPLEIVIENTAL DECLARATION OF ALLAN ENBERG 1, Allan Rosenberg, certify as follows: i. i am over the age of 18 and otherwise competent and authorized to make this declaration. lam a Danish National and reside in Dubai, United Arab Emirates. This declaration restates and supplements my September 12, 2015, declaration (and Attachment 34' Statement on Bright Ship) to mainly address additional details of the September 2010 charter of the MERJAN to Bright Ship.? I have reviewed the Attachments to this declaration. 2. From May 16, 2008 to December 31, 2011, i was an employee Ports International and KGL Shipping. I was initially hired by KGL Shipping on or around May 16, 2008, but later transitioned to KGL Ports International on or around April 1, 2009. 3. On July 30, 2008, I was appointed as a Director to RAK Shipping Company Limited LLC Shipping?), and I served as a Director until February 5, 2012. While Passages from the Attachment 34 Statement on Bright Ship have been italicized and supplemental informintion has been bolded for convenience. Nothing from my September 12, 2015 declaration or Attachment 34 statement has been removed. .4 KG L068607 respect to the construction, modernization, or repair of petroleum re?neries; c. The sale or provision to Iran of re?ned petroleum products; or d. The provision of goods, services, technology, information, or support that could contribute to the enhancement of Iran?s ability to import refined petroleum product, or providing ships or shipping services to deiiver re?ned petroleum products to Iran. 69. The charter party leasing the vessel and/or its cargo agent has knowledge of the cargo being transported on the vessel, not the owners of a vessel. I have no knowledge that the MERJAN or the AWAFI were ever used by a charter party for any purpose other than to transport standard commercial cargo in a lawful manner. 70. When negotiating charter party agreements, I resist paying any address commissions, which effectively reduce the daily charter hire. For this reason, RAK Shipping did not pay an address commission to Valfajr and Bright Ship. RAK Shipping agreed to pay an address commission to Simatech and SeaCon, but those two companies were paying a higher daily rate for the vessels, meaning that RAK Shipping had more money to pay an address commission. On that note, when Mr. Fard submitted an offer to Macrsk Broker on March 1-9, 2011 on behalf of Bright Ship to charter the MERJAN, the offer included a 2.5 percent address commission, but a much higher daily'rate than Bright Ship was paying under its existing charter party agreement (existing $3,900 per day versus the proposed $4,600 per day). in other words, payment of address commissions is not automatic and re?ect the parties? negotiations and other ?nancial terms of the agreement. 71. After reviewing the documents and the communications attached to this J, KG L068630 Exhibit 3 SUBPOENA - Superim- Qlamjl cf ti}! @iai?nt of ?ulumhia CIVIL DIVISION 500 Indiana Avenue. N.W. Wuhington. ac. zoom Tdephonc (202) 379-1133 Kuwait 81 Link Transport C?mpany 8t IN A CIVIL CASE Phimilf CASE NUMBER: 00?85?45"? John Doe [aka Scott Wilson) Madam McDarmoll Will a Emery LLP 600 13th St NW Washington DC 20005 {3 YOU ARE COMMANDED to appear at the place. date. and lime speci?ed below to testify in the above case. RTROOM DATE TIME L3 YOU ARE to appear at the ptacc? date, and rim: specified below to testify at the taking ofa deposition in the above case. FLACE. OF DEPOSITION DATE TIME El YD AR E. COMMANDED to product: and permit inspection and capying of the following documents or abjaas at the place. date, and time specified bciow {fist dommrnis or DOCU MENTS 0R GENECTS See Attachment A PLACE OF DATE TSIME Croweil Morinq. 1001 Ave. NW, Washington DC 20004 November 21. 2011 9130 am Ci YOU ARE COMMANDED to inspection of the {oliowing premises at the date and time specified below. PREMISES DATE TIM Arty organization not a party to this suit that is subpoenaed for taking of a deposition shall designate one or man- officcrs. directors. or managing agents. or othm persons who consent to testify on its behalf. and may forth, for catch designated, the matters on which the pcan will testify. 30am}. 1 let-sumo SIGNATURE AND TITLE. (indium ii Mitirttu) pin mu 0: defendant} DATE tL_ {11?4ch David C. Hammond (Bar No. 422612), Attorney for Plaintiff ISSUING NAME ADDRESS AND PHONE NUMBER David C. Hammond, Crowell Moring, 1001 Ave. NW, Washington DC 20004 RULE 45, SUPERIOR COURT OF CIVIL PROCEDURE ON REVERSE) SERVICE COPY 5 44853 uni-102 MWE065018 1218 Authorization as Icquircd by DC. Code ind Bmwn_y__l__3.3.t fr?} 3.. ?25 if} (.1. ?959). is. badly zivm rm issuann? a I?m medical records concerning a pawn who hm hm :rornsemrd ?115.chch u! uh: mamas 2nd tun um waived pg?wilcgc mlau?ng mm rm?un?h jgd?v iglsluafu - DATE Tums PLACE suvm 7 1. 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Rule, 3 mum: prmi?un- and permit ilang'm?mm .?smi mav. Milaiu (hm .mm .xruus' ui ?i1c-5uhpm?1uw Inn?m" Ihr nmr- sp?: Ifiwl Eu! Ian-Eml?t- ll Li? linu? :2 Ilmn flJ?f?. e? HIIOH {may :m?v urn-ms; mimnrru am? :10: Ear mum?! and ?my u?inir?HJ-H?t Hupt'ri Ihl? nrrmasI-g l?kff?pl :m m! Hu- (:mm Hun In: in?: made, the g?mJ?U.? ?thugthusuhpcu'nJ :Ia..a1,,niyu: ?liter: 1-: fn-nuu I. umnamlm} it. yum-inn. #th win: I: um .1333th a! A parll' h! are (sffic'rkn? :irm- [or :innrder gm- {uou'urnun 5m i; .m (n-dul an mminr?lt-LJH {hull .uw; .ml [?xgyn'u' H'minm: hum (Iv: nispn'unu "uni culi- In}; ?runny gum 0n mulsun, Ihc (jun-r: aha? quad: .u :ntndilr Ihi? miqwnnu {il hula in AEiuw limf,? {m jg :1 rug-yum whr. gnu n: .m :hu'x'l L. Ian r' mlnl' 11,5 hum {in iliJai u-iqln 1. ?n 5m mu ?Mm amend trazzt In" Immncimi?i in HM: hem: 41!! um 11, l?Lu't? e-i Wm]. -H . allixi ??nals?. (is-u? hunlr ii" f'iiH'l? ?r ?1 {In why: ts puma unriua" ??3411" _l n, .1 Ermic- ?mm Hui-.3.? E: J.- r-r :nnwm-nm? minarn?h II mailman? Mm: amumum-dmpr'n - an .iml :I'suturig I'remz :lu- rxgu?rr with mmfe- iml .n ll'flLN'tli ur puma [ilin-quum :t perm?: whu rum :1 {mrtw .m ?I'm cl la! a pm (1.: U.- inhulmt rkn?wlnr In run mm a ?aw milm mzuri- mi lx .mi mi ulflm u- m? mm ?1mm? :der ?.2153 mu 1h? mlm'cl. in n: ?IL-am. nm? 50: ?mum?: chm- hum 1hr xuhpamm H. be rrasranaish Irrinlk'lvmirii r35? ,nu? Muir; 4pp?hrinh m? gum-5m Wm Ural? ups!? :fiwf id) Duu?m in [impending o Sahpoeni. sin A It?s?wnding In subpm'?z ;,5rrw1c,sre ilucuuirnu what! pumiu- lhrs- Mr Iiu' mm! :mm wrgamrr .?md label :"ncm wuh Ih?v: {?Hu?gnnm mt! demand. 1'1 infmmuim: whim! no a: is Inn} prargm: 11'qu nun-n?a, tha? mm 51ml? he and mat: {w 'lw :?nngr; 1 ph??IUL-?i aha: ix mfficicm mu (tcmamimx wary u, n-mzn rm u( v'z! ?had MWE065019 PWC-PA-0011219 ATTACHMENT A ALT 0F PRODUCTION You are commanded to produce the below decuments for inspection and copying at the time, date, and place set forth in the subpoena. As an alternative method of production, you may send copies to David C. Hammond, Croweli Moring LLP, 1001 Avenue, NW, Washington DC. 20004 by overnight mail. if you wish to use the alternative means of production, please advise Mr. Hammond upon receipt hereof. He can be reached at (202) 624- 2510. DEFINITIONS AND INSTRUCTIONS The following de?nitions and instructions apply to each document request set forth herein: 1. ?And? as well as ?or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these document requests any information that might otherwise be construed to be outside their scope. 2. ?All? or ?any? means each and every. 3.. The term ?communication? is used in the broadest sense and includes, without limitation, any written or electronic transmittal of information or request for information between two or more people, whether made in person, by telephone, written, electronically, or by any other means, or a document made for the purpose of recording a communication, idea, statement, opinion or belief. 4. ?Document? shall have the meaning set forth in Rule 34 of the DC Superior Court Rules of Civil Procedure and shall include, without limitation, the original and non-identical copy of any written, electronic, recorded, or graphic matter, however produced or reproduced including, but not limited to, any correspondence, memoranda, notes, meeting minutes, telegrams, reports, transcripts, emails, voicemails, facsimiles, ?text? or messages, MWE065020 PWC-PA-0011220 photographs, drawings, video recordings, audio recordings, records of telephone conversations, or any other writings or documentary material of any nature whatsoever, together with any attachments thereto and enclosures therewith, and any other retrievable matter (whether encarded, taped or encoded, electrostatically, or otherwise). Non-identical copies, drafts, and identical copies with handwriting are separate ?documents? within the meaning of that term. All documents stored or maintained in an electronic form should be produced in the same electronic form in which they are stored or maintained in the regular course of business. 5. ?Electronically stored information? means all documents that are stored in any electronic medium from which information can be obtained. 6. The term ?identity? means any and all information related to a person, including the full name, residence address, residence telephone number, email address, business/job title, business/job description, business address, business telephone number, and relationship to you, of that person. 7. ?Including" means including, but not limited to. 8. ?Person? means any natural person, ?rm, association, organization, partnership, business, trust, corporation, governmental or public entityor any other form of legal entity. 9. ?Relating to? means directly or indirectly mentioning, referring to, re?ecting, constituting, discussing, describing, pertaining to, embodying, evidencing, memorializing, recording, studying, analyzing, or connected with the requested or identi?ed information, document, or stated subject matter in any logical, legal, or factual way. 10. ?You? or ?your? means McDermOtt Will Emery LLP. 11. means Kuwait Gulf Link Transport Company, any of its subsidiaries or af?liates, and any current or former officers, directors, employees, agents; or subcontractors. For MWE065021 the purposes of thisSubpoena, the term KGL shall also include Combined Shipping Company and Ras Al Khaimah Shipping Ltd. LLC. 12. These instructions and the above de?nitions should be read and construed to require production of all responsive documents based upon the knowledge and information available to you. 13. The present tense shall be construed to include the past tense and the past tense shall be construed to include the present tense as necessary to bring within the scope of these document requests any documents that mightotherwise be construed to be outside the scope to the requests. 14. The singular shall be construed to include the plural and the plural shall be construed to includethe singular as necessary to bring within the scope of these document - requests any documents that might otherwise be construed to be outside the scope of the requests. 15. If you withhold any documents (including communications) on grounds of a claim of attorney?client privilege, work-product doctrine, or other protection, identify each such document and, with respect to each such document, state the speci?c basis for the claim of privilege or protection and provide the following information: i. The subject matter of the document; ii. The title, heading, or caption of the document, if any: The identifying number, letter, or combination thereof, if any, and the signi?cance or meaning of such number, letter or combination thereof; iv. The date appearing on the document or, if no date appears thereon, the date or approximate date on which the document was prepared; MWE065022 PWC-PA-001 1222 v. The general nature or description of the document (E, whether it is a letter, memorandum, minutes of a meeting, etc.) and the number of pages in the docurnent; vi. The identity of the person who signed the document and, if it was not signed, the identity of each person who prepared it; vii. The identity of each person to whom the document was addressed and the identity of each person to whom a copy or blind copy thereof was sent; and The identity of each person who has custody of a copy of the document. 16. The document requests require you to produce all responsive documents in your possession, custody, or control from all files that contain resljonsive documents, wherever located. 17. The document requests cover all documents, including electronically stored information, in, or subject to, your possession, custody, or control including all documents or electronically stored information that you have the ability to obtain, that are responsive, in whole or in part, to these requests. All documents including electronically stored information should be produced in the manner in which they are kept in the usual course of business, or organized and labeled to correspond to the categories specified herein to which they are responsive. To the extent that the documents are in any computerized, electronic or digital format or any other medium of communication or storage, the documents shall be downloaded to diskette, CD-ROM disk or DVD without further processing by you, containing all signi?cant material contained in the electronic records including, without limitation, the creation date for the tile and the date it was last modified. 18. With respect to electronic mail, when producing responsive electronic mail, the electronic mail should be produced in a format that includes the originating address, all copies MWE065023 and blind copies, the date and time of transmission, each attachment, the mailbox or other post of?ce storage location of every copy, and all replies and/or forwards of the electronic mail. 19. Each responsive document consisting of electronically stored information shall be produced in the format in which it was stored, with all of its metadata intact, including, without limitation, information suf?cient to identify the creation, last modification and last accessed date, the storage location fully quali?ed path and folder) of the ?le and the system server, computer or device) on which it was stored. 20. You must take all steps as may be necessary to preserve all documents, records, data and ?les that may be relevant to this litigation including, without limitation, documents, records, data and ?les kept by electronic, electromagnetic, photographic, digital or mechanical means, whether or not contained in current, backup or archival ?les of personal computers and networks or on hard drives, diskettes, CD-ROM disks, magnetic tapes, back-up tapes, or Zip and Jazz cartridges. You must cease and desist from overwriting existing data, reusing backup tapes, or running data compression or defragmentation routines or "shredder programs" on any such documents, records, data or ?les before ensuring full compliance with the discovery requests made herein so as to prevent the inadvertent alteration or deletion of such documents, records, data and ?les. 21. All documents produced should bear Bates labels. 22. If any document requested has been lost, discarded, or destroyed, such documents so lost, discarded, or destroyed shall. be identi?ed as completely as possible. Identi?cation of such documents shall include, without limitation, the information required above regarding documents withheld under a. claim of privilege, and date of disposal, manner of disposal, reason MWE065024 1224 . for oisposal, person authorizing disposal, persons hayirtg knowledge of the ?disposal, and the persons disposing of the documents. 23. These document requests are continuiug in character so as to require you to supplement yoLIr production if you discover, receiVe, or generate additiOHal, responsive documents. MWEO65025 PWC-PA-001 1225 DOCUMENT REQUESTS 1. All documents or communications relating to ,the identity of the person(s) who signed the letters attached as Exhibits A and as ?Scott Wilson." 2. All documents or communications relating to the identity of the person(_s) who participated, in whole-or in part, in the drafting, preparation, information gathering, execution, and/or delivery of the letters attached as Exhibits A and 3. All cummunications between you and the person(s) who signed the letters attached as Exhibits A and as ?Scott Wilson.? . 4. All communications between you and the person(s) who participated, in whole or in part, in the drafting, preparation, information gathering, execution, and/or delivery of the letters attached as Exhibits A and B. 5. All communications between you and any other person(s) with knowledge of the identity of the person(s) who signed the letters attached as Exhibits A and as ?Scott Wilson.? 6. All communications between you and any other person(s) with knowledge of the identity of the person(s) who participated, in whole or in part, in the drafting, preparation, information gathering, execution, and/or delivery of the letters attached as Exhibits A and B. 7. All documents or communications relating to any investigation conducted by you into the identity of the person(s) who signed the letters attached as Exhibits A and as ?Scott Wilson? or the person(s) who participated, in whole or in part, in the drafting, preparation, information gathering, execution, and/or delivery of the letters attached as Exhibits A and'B. 8. All documents or communications relating tolKGL?s alleged business with Iranian companies, including all documents or communications with other persons or entities relating to alleged business with Iranian companies. 9. All documents or communications between or among KGL and any other person(s). 10. All documents or communications relating to your transmission and/or receipt of any document or communicatic?m requested in Request No. 9. MWE065026 1226 Exhibit 4 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION . GULF LINK TRANSPORT COMPANY, er al., Plaintiffs, v. . (1A. 2011 CA 003545 Judge Anthony C. Epstein JOHN DOE Scott Wilson), et . - Next Event: Scheduling Conference Defendants. September 21,2012, at 9:30 am. TO KUWAITI MOTION TO DISMISS TABLE OF CONTENTS Page INTRODUCTION 1 I. KGL PROPERLY SERVED ALL DEF ENDANTS. 2 A. Service UpOn the US. Defendants Extends to the Kuwaiti Defendants Because They are Alter-Egos of One Another 4 Defendants Have ?Unity of Interest and Ownership.? 5 2. Adherence to the Arti?cial Corporate Form Would Promote Injustice. 11 The Northern District of Georgia?s Finding that a US. Defendant is an Alter?? Ego of Two Kuwaiti Defendants is Directly on Point. 14 B. KGL Properly Served Agility Logistics Through Daniel Mongeon. 15 C. Service Under the Hague Convention Will Be Timely 18 11. THIS COURT POSSESSES PERSONAL JURISDICTION OVER THE KUWAITI DEFENDANTS AND SHOULD PERMIT LIMITED DISCOVERY TO FURTHER CONFIRM ITS JURISDICTION. 21 A. Jurisdiction Is Proper Under Section of Long Arm Statute 21 B. Jurisdiction Is Proper Under Section of Long Arm Statute 23 Plaintiffs Suffered Injury in the District 23 2. Plaintiffs? Injury Was Caused by Defendants? Tortious Acts Committed Outside the District 25 3. Defendants Have Multiple ?Plus Factor? Contacts with the District 25 C. Jurisdiction Is Proper Under Section of Long Arm Statute 27 D. U.S.-Based Defendants? Contacts with the District Can Be Imputed t0 Kuwaiti Defendants. 28 E. Jurisdiction Over the Kuwaiti Defendants Would Not Offend Constitutional Due Process. 28 Defendants Have Sufficient ?Minimum Contacts? with the District. 29 2. Jurisdiction Over Defendants Comports with the Notions of Fair Play and Substantial Justice. 31 F. The ?Government Contacts? Doctrine Does Not Preclude Jurisdiction over Defendants. 35 G. Limited Discovery Would Con?rm This Court?s Jurisdiction Over Kuwaiti Defendants. 37 FORUM NON CONVENIENS DISMISSAL IS INAPPROPRIATE. 38 A. The Burden ls Squarely on Defendants to Establish that Dismissal for Forum Non Conveniens is Appropriate 39 Concurrent Litigation Does Not Affect the o?rum Non Conveniens Analysis. C. Defendants? Choice of Law Analysis Ignores the Allegations in the Complaint; Overstates the Impact of any Con?ict, and Disregards the District?s Interest in this Case. 41 4 2 ii Plaintiffs Kuwait Gulf Link Transport Company, KGL Logistics, and KGL Transportation Company KSCC (collectively or ?plaintiffs?), by and through their undersigned counsel, oppose the Kuwaiti Defendants? Motion to Dismiss and respectfully request that the Court deny the motion for the reasons discussed below. INTRODUCTION This case is anything but the ?foreign litigation? that defendants call it. Plaintiffs allege that the web of ?Agility? defendants (including American alter-egos of the Kuwaiti defendants) are responsible for and/or authored and sent defamatory letters (the "?Wilson Letters?) to US. government of?cials, in the United States, in order to damage plaintiffs? reputation in the United States and to eliminate them as competitors for US. government business. The Wilson Letters accuse KGL of violating US. sanctions laws and lying to US. government officials. Plaintiffs allege that defendants? American agents likely assisted in writing the Wilson Letters, made the same defamatory statements in lobbying US. Senators and Congressmen to seek plaintiffs? debarment from US. government contracting, and conspired with an American citizen to ?irther publish defamatory material. The defamatory statements all go to the very heart of, and were intended by defendants to undermine, the US. government procurement system in the District and the United States. Defendants committed the tort of defamation in the United States. That tort was completed when the Wilson Letters were received in the United States. The damage to KGL was done here, and its reputation for integrity as a US. government contractor can effectively be vindicated only in the United States. Similarly, defendants committed the tort of interference with contractual and other business relationships in the United States, where those contracts and relationships were centered. Against these substantial contacts with the District and the United States, defendants offer little to support their purported basis for dismissal on forum non conveniens grounds. These substantial contacts, and additional activities of the alter-ego defendants, also serve as the basis for personal jurisdiction over the Kuwaiti defendants. These defendants have had signi?cant contact with the District, both related to and separate from the torts at issue in this case. They have reached into the District and injured plaintiffs here. They should have reasonably expected that they might be held accountable for their actions in this jurisdiction. And the same alter?ego companies that have allowed the Kuwaiti defendants to effectively operate their business in the United States, also allow the Kuwaiti defendants to be served in the United States. Service was properly made on the Kuwaiti defendants through their US. alter- egos and through their agent-director in Virginia. I. KGL PROPERLY SERVED ALL DEFENDANTS. As set forth below, dismissal for insuf?ciency of service of process is not appropriate because: (1) the Kuwaiti and US. defendants1 are alter-egos of one another so service upon the US. defendants constitutes service upon the Kuwaiti defendantsz; (2) service on Agility Logistics was made upon its agent ?director? located in the United States; and (3) KGL still has 1 An organizational chart of the Kuwaiti and US. defendants is included for the Court?s reference at Exhibit 1. 2 Plaintiffs? Motion to Amend Complaint is currently pending before this Court. See Pls.? Mot. to Amend Comp]. (June 14, 2012). The proposed Second Amended Complaint is attached to that motion and pleads additional details regarding the defendants? alter-ego status. The factual assertions in both the First and Second Amended Complaints are based on defendants? public ?lings and other ?documents that the plaintiffs either possessed or knew about and upon which [plaintiffs] relied in bringing the suit? g, exhibits from defendants? other litigation matters) and the Court may thus consider these factual assertions and their underlying bases in weighing the motion to dismiss. See Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000) (?nding that when a court weighs a motion to dismiss, it may consider any statements or documents incorporated in the complaint, legally-required public ?lings, and any ?documents that the. plaintiffs either possessed or knew about and upon which they relied in bringing the suit?). time to serve the Kuwaiti defendants through the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents (?Hague Convention?), assuming such service is still. necessary. Defendants rely on Ashcroft v. Iqbal, 556 US. 662, 678 (2009), to argue that plaintiffs? factual allegations ?to support veil piercing are vague and conclusory, in violation of D.C. pleading requirements.? Mem. of in Supp. of Kuwaiti Defs.? Mot. to Dismiss (June 6, 2012) (?Defs.? Mem.?) at 9. But Iqbal pertains to whether complaint should be dismissed under Rule 12(b)(6) [for failure to] satisfy the pleading standard in Rule in connection with stating a claim, see Potomac Development Corp. v. District of Columbia, 28 A.3d 531, 543-44 (D.C. 2011), not motions to dismiss under Rule Defs.? Mem. at 4. To defeat a motion to dismiss under Rule a plaintiff need only ?demonstrate that the procedure employed . . . satis?ed the requirements . . . of Rule 4 and any other applicable provision of law.? See 4A Fed. Prac. Proc. Civ. 1083 (3d ed.) (discussing Federal Rules 4 and see also Shelton v. England, No. Civ. A. 04-1292 RBW, 2005 WL 3272554, at *3 (D.D.C. Aug. 3, 2005)? Moreover, a court may resolve factual disputes concerning the manner of service through affidavits, depositions, or oral testimony. See, Travelers Cas. Surety Co. of Am. v. elstar Constr. Co., 252 F. Supp. 2d 917, 923 (D. Ariz. 2003). A plaintiff is entitled to the benefit of any factual doubt. Epstein v. ancellt Paneling, Inc, No. 10-CV-443, 2011 WL 2215166, at *2 (VJ. Super. May 16, 2011) (?When considering a Rule 12(b)(5) Motion to 3 See Comment, Super. Ct. R. Civ. P. 4 12 (providing that Superior Court Civil Rules 4 and 12 generally mirror the respective federal rules), and Potomac Development Corp, 28 A.3d at 543 (?Consistent with the requirement of D.C. Code 11-946, we construe rules that are substantially identical to the correSponding federal rule in light of the meaning given to the federal Dismiss for insuf?cient service of process, the Plaintiffs enjoy the bene?t of any factual As set forth in?a, defendants? own declarations, af?davits, public ?lings, and corporate disclosures, coupled with the ?ndings of fact incorporated by reference from defendants? previous litigation with regard to service and alter-ego issues, more than demonstrate the adequacy of service here. To the extent the Court believes any factual issues remain unresolved, plaintiffs request that they be allowed discovery to challenge any disputed factual assertions raised in defendants? motion. A. Service Upon the US. Defendants Extends to the Kuwaiti Defendants Because They are Alter-Egos of One Another. The Kuwaiti and US. defendants are alter-egos of one another. As such, service on the U.S. defendants is valid service on the Kuwaiti defendants. See I.A.M. Nat ?l Pension Fund v. Wake?eld Indus, Inc, 699 F.2d 1254, 1258?59 (DC. Cir. 1983) (?nding that when two corporations are not really separate entities, service on one corporation is effective on both); Mary'kiw v. Strauss, No. 2008 CA 004996B, 2011 WL 2790694, at *4 (DC. Super. Ct. June 17, 2011) (finding that ?the law of the District of Columbia? with regard to service through alter- egos is the same as that described in 1AM. Nae?! Pension Fund, 699 F.2d at 1258?59). A court may pierce the corporate veil between af?liated corporate entities andthereby establish that one is the alter-ego of the other when there is ?unity of ownership and interest? between the two corporations and ?adherence to the ?ction of separate existence of the corporation would sanction a fraud or promote injustice.? Vuiteh v. urr, 482 A.2d 811, 815-16 (DC. 1984) (internal quotations omitted).4 As set forth below and detailed in First and 4 Defendants assert that the party seeking to pierce the corporate veil must also ?make a substantial showing that the corporation is really a dummy or sham .for another dominating entity.? Mem. at 9 (internal quotations omitted). This is incorrect. Defendants base this Second Amended Complaints, defendants have ?unity of ownership and interest.? The companies are commonly owned and controlled, follow the same ?nancial and operational procedures, ?nance each other?s activities, employ some of the same of?cers and directors, share a brand name, present themselves as a single entity, operate in the same ?eld of business, use the same of?ce space, and utilize some of the same staff. Adherence to the false corporate forms would also ?promote injustice.? When not facing the specter of criminal or civil litigation, defendants consistently disregard the corporate form and actively seek to appear as one corporation. 1. Defendants Have ?Unity of Interest and Ownership.? There is no ?uniform standard to determine whether the evidence has suf?ciently demonstrated unity of interest and ownership.? Vuitch, 482 A.2d at 816. ?Unity of interest and ownership can be demonstrated by showing domination and control of a corporation, as in a parent-subsidiary relationship or in a closely-held corporation.? Id. Additional indicia of unity of interest and ownership include, inter alia: the nature of the corporate ownership and control; use of overlapping of?cers, directors, and personnel; commingling of corporate funds and other assets; use of the same of?ce or business location; joint use of trademarks and a common marketing image; and use of the subsidiary as a mere extension or ?branch? of the parent. See IMarkMi?ctg. Servs. LLC v. Geoplast, 753 F. Supp. 2d 141, 150-52 (D.D.C. 2010) (holding argument on Dorocon, Inc. v. Burke, a US. District Court case that quotes from and cites to locco v. State Farm Mur. Auto Ins. Co., 752 A.2d 147 (DC. 2000). See Dorocon, Inc. v. Burke, CA. No. 02?2556, 2005 US. Dist. LEXIS 38839, at *12 (D.D.C. Nov. 1, 2005). But the Dorocon court was incorrect: in locco, the DC. Court of Appeals was applying Illinois law for piercing the corporate veil, not D.C. law. See locco, 752 A.2d at 151 (concluding that the case ?must . . . be determined by application of Illinois law?); id. at 155 (quoting Illinois case law for the proposition cited in Dorocon). an? that personal jurisdiction over a US. subsidiary'constituted jurisdiction over its foreign alter?ego parent).5 The factual allegations set forth in First and Second Amended Complaints clearly satisfy this standard. First, defendants have complete unity of ownership. See First Am. Compl. 12-17; Second Am. Compl. 16-21. Kuwaiti defendant Agility Public Warehousing Company K.S.C. wholly owns Kuwaiti. defendants PWC Transport Company W.L.L. Transport?) and Agility DGS Logistics Services K.S.C.C. (?Agility See First Am. Compl. 1111 13-14; Second Am. Compl. 1111 17-18. Through a Dutch subsidiary, Agility Logistics wholly owns U.S. defendant Agility DGS Holdings, Inc. (?Agility See First Am. Compl. ?l 15; Second Am. Compl. 11 19. Agility Holdings wholly owns U.S. defendant Agility Defense Government Services, Inc. (?Agility See First Am". Compl.1] 16; Second Am. Comp]. ll 20. Agility DGS wholly owns U.S. defendant Agility International, Inc. (?Agility 5 The Kuwaiti defendants argue that the DC. Court of Appeals has ?explicitly rejected? common brand usage as indicia of unity of ownership and interest. Mem. at 14. This too is incorrect. In Gonzalez'v. Iniemacional de Elevadores S.A., the Court simply found that proof of common brand usage and common of?cers alone, without evidence to also ?establish any of the [other] Vuirch factors,? ?were not suf?cient to establish alter ego status.? 891 A.2d 227, 237-38 (DC. 2006) (internal quotations omitted). 6 See Consolidated Financial Statements, Agility Public Warehousing Company K.S.C. and Subsidiaries (Dec. 31, 2011) at 1'1 (indicating that PWC has an ?[e]ffective equity interest? of ?100.00%? in both PWC'Transport and Agility Logistics) (?Agility 201 1 Financial Statements?) (Ex. 2). - 7 Dec]. of Edward J. Hoffman (?Hoffman Decl.?) 4-6, attached as Ex. to Def. Pub. Warehousing Co. Mem. in Supp. of Mot. to Quash Service of Process, United States v. Public Warehousing Co. K.S.C., No. 09-CR-490 (Apr. 12, 2010) (?Def Mot. to Quash, United States v. (Ex. 3). 8 See Decl. of Doug Cruikshank (?Cruikshank Decl.?) 1] 8, attached as Ex. 4 to Mem. of in Supp. of Pls.? Emergency App]. for TRO and Prelim. Inj., Agility Def Gov ?i Semis, Inc. v. Def Logistics Agency, No. 09-CV-O2348 (D.D.C. Mar. 12, 2010) TRO Mot., Agility v. (Ex. 4). See First Am. Compl. 11 17; Second Am. Compl. 1] 21; see also Organizational Chart ofthe Kuwaiti and U.S. defendants (Ex. 1). Second, the Kuwaiti defendants exercise ?nancial and operational control over the U.S. defendants. See First Am. Compl. 111] 19-21; Second Am. Comp]. 111] 23?25. They admit this. PWC asserts that it, as ?the Parent Company[,] has the power directly or indirectly to govern the ?nancial and operating policies of [each of its subsidiaries] so as to obtain bene?ts from its I activities.?IO PWC also maintains the books of account and ?nancial records for the other Kuwaiti and U.S. defendants as its subsidiaries, and ?les consolidated ?nancial statements and reports on their behalf.11 Moreover, per policies, defendants follow the same ?nancial reporting periods and employ consistent accounting practices.12 Third, at least one Kuwaiti defendant, PWC, has directly ?nanced the lobbying activities of at least one U.S. defendant, Agility Holdings, including the very lobbying efforts taken against KGL addressed in the First and Second Amended Complaints. See First Am. Compl. 1111 93-94; Second Am. Compl. 104-10. Congressional lobbying registration records con?rm that PWC provided funding to Agility Holdings to retain its D.C.-based agent-lobbyist, McDermott Will 9 See id. 10 Agility 2011 Financial Statements at 10 (Ex. 2). 11. See id. 12 See id. Emery LLP These records also indicate that PWC (directly or through Agility Logistics) funded Agility Holdings and/or Agility other D.C. lobbyists on other matters.14 Fourth, managers, of?cers, and directors hold simultaneous positions with multiple Kuwaiti and U.S. defendants. See First Am. Compl. 11 24; Second Am. Compl. 1] 29. For instance, Daniel Mongeon is currently serving, or has previously served, as an officer and director of at least four of the defendants, including: Director and former President, CEO, and Managing Director of defendant Agility Logistics; President, CEO, and Sole Director of defendant Agility Holdings; Director of defendant Agility and Director of defendant Agility International.? Mark Young is currently serving, or has previously served, as an officer '3 See McDermott Will Emery, LLP Congressional Lobbying Registration Record, at 2 (Aug. 20, 2010) (indicating that PWC provided $20,000 for McDermott to lobby on Agility Holdings? behalf) (Ex. 5). 14 See Lanny . Davis Associates, LLP Congressional Lobbying Registration Record, at 2 (June 1, 2011) (indicating that PWC provided $30,000 for Lanny J. Davis Associates, Inc., to lobby on Agility Holdings? behalf) (Ex. The Rhoads Group Congressional Lobbying Registration Record, at 2 (Nov. 1, 2006) (indicating that Kuwait-based ?Agility, Defense Government Services? business group provided $62,880 for The Rhoads Group to lobby on behalf of Virginia-based ?Agility, Defense Government Services? business group) (Ex. Hoffman Decl. 1] 10 (providing that Agility Holdings and Agility DGS comprise U.S. subsidiaries of Agility Defense Government Services business group) (Ex. 3). '5 See Decl. of Daniel Mongeon, attached as Ex. 10 to Mem. (identifying himself as a current Director of Agility Logistics); Letter ?om Daniel Mongeon (Oct. 2, 2008), attached as Ex. to United States? Br. in Opp?n to Def. Pub. Warehousing Co. K.S.C., a/k/a/ Agility?s Am. Mot. to Quash Service of Process on Indictment, United States v. Pub. Warehousing C0. K.S.C., No. 09- CR-490 (ND. Ga. June 21, 2010) Opp?n to Mot. to Quash, United States v. (letter from Mr. Mongeon identifying himself as President and CEO of Agility Logistics as of October 2008) (Ex. Dec]. of. Daniel G. Mongeon (?Mongeon Decl.?) l, 7, 8, attached as Ex. to Def. Mot. to Quash, United States v. WC) (identifying Mr. Mongeon as Managing Director of Agility Logistics and President, CEO, and Director of Agility Holdings as of April 2010) (Ex. Agility Defense Government Services, Inc., State of Delaware Annual Franchise Tax Report at 2 (Mar. 1, 2012) (?Agility DGS Tax Mr. Mongeon as Director of Agility DGS as of March 2012) (EX. 10); Agility International, Inc., State of Delaware Annual Franchise Tax Report at 2 (Feb. 28, 2012) (?Agility International Tax Report?) (identifying Mr. Mongeon as Director of Agility International as of February 2012) (Ex. 11). and director of at least three of the defendants, including Vice President for Strategy for Agility Logistics, Senior Vice President of Agility Holdings, and Director of Agility DGS.16 Edward Hoffman is currently serving, or has previously served, as an of?cer and director of at least two of the defendants, including: Senior Vice President, General Counsel, and Secretary of Agility Holdings, and Assistant Secretary and Director of Agility International.? Fifth, defendants share a common brand name and hold themselves out as a single entity. See First Am. Comp]. 11 22; Second Am. Comp]. 11 26. Defendants collectively refer to themselves as the ?Agility? company, and information about ?Agility? is collectively accessed at a single website. See United States v. Pub. Warehousing Co., No. 09-CR-490, 2011 WL 1126333, at *7 (N .D. Ga. Mar. 28, 2011), appeal dismissed sub nom, United States v. Agility DGS Logistics Servs. Co. KS. C. No. 11-11652-C, 2011 WL 2791284 (11th Cir. Jul. 12, 2011); Agility Website, (last accessed July 2, 2012). In fact, PWC has advanced a targeted effort to ensure that the public recognizes the ?Agility? entities as one company. PWC refers to the Agility organization as ?one global team,? and as ?the 16 See Decl. of Michael A. Duman 1i 3, US. Gov?t Accountability Of?ce, Protest of PWC Logistics Servs. Co. B-310559 (Dec. 2007) (declaration from employee of Agility Logistics identifying Mr. Young as ?Vice President, Strategy?) (Ex. 12); Decl. of Mark Young 11 5, Opp?n to Mot. to Comp. Prod. Under Subpoena Directed to Agility DGS Holdings, Inc., Kuwait GquLink Tramp. Co. v. Doe, No. M011001583 (Va. Cir. Ct. Mar. 12, 2012)) (identifying Mr. Young as Senior Vice President of Agility Holdings as of March 2012) (Ex. 13); Agility DGS Tax Report at 2 (identifying Mr. Young as Director of Agility DGS as of March 2012) (Ex. 10). 17 See Hoffman Decl. 1] 1 (identifying Mr. Hoffman as Senior Vice President and General Counsel of Agility Holdings as of April 2010) (Ex. Agility Holdings State of Delaware Annual Franchise Tax Report at 2 (Mar. 1, 2012) (?Agility Holdings Tax Report?) (identifying Mr. Hoffman as Secretary of Agility Holdings as of March 2012) (Ex. 14); Agility International Tax Report at 2 (identifying Mr. Hoffman as Assistant Secretary and Director of Agility International as of February 2012) (Ex. 1 1). uni?cation of PWC Logistics and its af?liate companies? into a singular ?company.?18 E-mails sent by company personnel similarly contain boilerplate language identifying PWC and its subsidiaries as a singular company.19 Sixth, the US. defendants are merely an operational extension of the Kuwaiti defendants? US. government contracting business. First Am. Compl. 11 23; Second Am. Compl. ii 27. There A is no discernable difference in defendants? functions; they all operate Within the same lines of logistics-related business.20 indeed, as of 201 1, PWC could show no reason for ?Agility Holdings to exist other than to conduct business in the United States.? Pub. Warehousing C0., WL 1126333, at Seventh, defendants share common of?ce space. See First Am. Compl, Caption; Second Am. Compl., Caption. Speci?cally, Agility Holdings and Agility DGS both operate from the same of?ce at 1725 Duke Street, Suite 450, Alexandria, Virginia 22314.21 Although Agility International?s corporate ?lings suggest that it maintains an address at 5270 Shawnee Road, Alexandria, Virginia, 22312, these same ?lings disclosed of?cers and directors known to ?8 See Exs. 1 to US. Opp?n to Mot. to Quash, United States v. PWC (Agility correspondence regarding Agility ?uni?cation?) (Exs. 15 16). ?9 See Ex. to US. Opp?n to Mot. to Quash, United States v. PWC (PWC e-mail footer referring to ??the company? known as Agility Defense Governmental Services which includes PWC Logistics Services, KSC (closed) and Agility Defense Government Services, Inc. and their subsidiaries and af?liates?) (Ex. 17). 20 See Agility 2011 Financial Statements at 11 (indicating that ?[t]he principal activities? of the Kuwaiti Defendants PWC Transport and Agility Logistics ?are logistics and related services?) (Ex Decl. of Joseph M. Cosumano (?Cosumano Decl.?) 1i 3, Ex. 2 to Def. TRO Mot, Agility v. DLA) (indicating that Agility primary business includes ?logistics services?) (Ex. 18); Cruikshank Dec]. 1] 3 (indicating that Agility International?s primary business includes ?logistics freight forwarding?) (Ex. 4). 1 2? See Agility Holdings Tax Report at 2 (identifying the 1725 Duke Street address as Agility Holdings? principal place of business) (Ex. 14); Agility DGS Tax Report at 2 (identifying the 1725 Duke Street address as the location of Agility president and directors) (Ex. 10). 10 maintain offices at the 1725 Duke Street address, and Mr. Mongeon was served in his capacity as a ?director? of Agility International at this address.22 Eighth, the professional staff of the U.S. defendants directly advise, and report directly to, the staff of the Kuwaiti defendants. Second Am. Compl.1[ 26. For instance, the in?house counsel of the U.S. defendants directly advises and reports directly to personnel of the Kuwaiti defendants .23 2. Adherence to the Arti?cial Corporate Form Would Promote Injustice. There is ?no precise formula? to determine whether the corporate form is used to perpetrate a fraud or promote injustice. See Vuz?tch, 482 A.2d at 816. Instead, ?[b]ecause piercing the corporate veil is a doctrine of equity, the factor which predominates will vary in each case, and the decision to pierce will be in?uenced by considerations of who should bear the risk of loss and what degree of legitimacy exists for those claiming the limited liability protection of a corporation.? Id. Defendants honor the corporate form only insofar as it suits their immediate purposes, and disregard it when it does not. Allowing the Kuwaiti defendants to engage in wrongful, tortious conduct that undermines the integrity of the U.S. government procurement process through the submission of knowingly false statements and misrepresentations regarding 22 See Agility International Tax Report at 2 (identifying Mr. Mongeon as a director and Mr. Hoffman as an officer and director) (Ex. 11); Agility Holdings Tax Report at 2 (providing the Duke Street address as the business address of Messrs. Mongeon and Hoffman) (Ex. 14); Af?davit of Service of First Amended Complaint on Agility International, Inc. (Ex. 19). 23 See Decl. of Edward Hof?nan 4-5, U.S. Gov?t Accountability Of?ce, Protest of PWC Logistics Ser?vs. Co. B-310559 (Dec. 2007)) (stating that the General Counsel for Agility Holdings reports directly to the ?General Counsel of Agility? and advises ?personnel in U.S. and Kuwaiti offices? and ?personnel from around the world?) (Ex. 20). 11 compliance with US. law, while escaping this Court?s jurisdiction under a false corporate veil, would promote the type of injustice that the alter-ego doctrine is intended to correct. Defendants have intentionally created an amorphous corporate form aimed at one core business. In press releases, public statements, and corporate communications, these entities have intentionally sought to blur or conceal their corporate distinctions and portray themselves as a singular company.24 To this same end, defendants use similar-sounding trade and brand names to create the appearance that they are a single, united entity.25 Defendants have further blurred the corporate lines by changing and recycling their corporate legal names. For instance, during a four-year period, Agility Holdings used three distinct names, including one name (PWC Logistics Services, Inc.) that was virtually the same as that used by Agility Logistics (PWC Logistics Services Co. at or about the same time.26 Similarly, on the same day that Agility Holdings changed its name from ?Agility Defense Government Services, Inc.,? Agility DGS adopted that very same name thus giving the misleading impression that ?Agility Defense Government Services, Inc.? was one 24 See, Ex. I to U.S. Opp?n to Mot. to Quash, United States v. PWC (Agility press release announcing ?the uni?cation? of Logistics and its affiliate companies?) (Ex. 16). 25 See Hoffman Dec]. 11 10 (??Agility Defense and Government Services? is a trade name used for marketing purposes to refer to the Worldwide government contracting business, which includes both US. and foreign subsidiaries. Agility DGS Holdings, Inc. and Agility Defense Government Services, Inc. are both US. subsidiaries forming part of the Agility Defense and Government Services business. The Agility Defense and Government Services business is not a separately incorporated legal entity?) (Ex. 3). 26 See Delaware Corporate Records of Agility Holdings at 3 (Certi?cate of Incorporation of PWC Logistics Services, Inc. (Apr. 5, 2006)) (Ex. 21); Hoffman Decl. 2, 4?6 (discussing Agility Logistic?s? former use of the name PWC Logistics Services Company and Agility Holdings? former use of the name PWC Logistics Services, Inc.) (Ex. 3). l2 continuously-operating corporation, not two distinct entities.27 PWC has also used this same ?Agility Defense Government Services? moniker as a ?trade name? to refer to its ?worldwide government contracting business.?28 Even high-ranking representatives of defendants are not able to consistently explain their corporate organization. In March 2010, Joseph Cosumano, then-President of Agility International, described Agility Holdings as ?a wholly-owned subsidiary of Agility DGS Logistics Services Co. Just one month later, in contrast, Mr. Edward Hoffman, Senior Vice President and General Counsel of Agility Holdings, indicated that Agility Holdings is ?a wholly-owned subsidiary of PWC Logistics Services Holding The Kuwaiti defendants invoke the corporate form only when Confronted with the possibility of criminal, civil, or administrative liabilities. This is not the proper use of, or reliance on, separate corporate forms. Indeed, the Kuwaiti defendants have in the past been unable to ?show[] any reason? for their principal U.S. subsidiary ?to exist other than to conduct business in the United States.? Pub. Warehousing 2011 WL 1126333, at Under these facts, no ?degree of legitimacy exists for those claiming the limited liability protection of a 27 See Delaware Corporate Records of Agility Holdings at 6 (Certi?cate of Amendment to the Certi?cate of Incorporation of Agility Defense Government Services, .Inc. con?rming Agility Holdings? name change from Agility Defense Government Services, Inc. to Agility DGS Holdings, Inc, Sept. 30, 2009) (Ex. 21); Delaware Corporate Records of Agility DGS at 6 (Certi?cate of Amendment to the Certi?cate of Incorporation of Taos Industries, Inc. con?rming Agility name change from Taos Industries, Inc. to Agility Defense Government Services, 1110., Sept 30,2009) (Ex. 22). 23 See Hoffman Decl. 11 10 (Ex. 3). 29 See Cosumano Decl. 11 8 (Ex. 18). 30 See Hoffman Decl. 114 (Ex. 3). 13 corporation,? and equity thus dictates that this Court pierce the corporate veil. See Vuitch, 482 A.2d at 815-16. 3. The Northern District of Georgia?s Finding that a US. Defendant is an Alter-Ego of Two Kuwaiti Defendants is Directly on Point. In March 2011, the United States District Court for the Northern District of Georgia found that Agility Holdings is the alter-ego of PWC and Agility Logistics, andthat service on Agility Holdings constituted service upon PWC and Agility Logistics. See Pub. Warehousing Co., 2011 WL 1126333, at That case was decided on the same civil liability factors relevant here. See id. at The Kuwaiti defendants? attempts to distinguish Public Warehousing from the present matter are unpersuasive. Defendants ?rst argue that ?the district court explicitly based its ruling on the interplay between Rule 4 and Rule 2? of the Federal Rules of Criminal Procedure, and that Public Warehousing was thus strictly a matter of ?interpreting the federal criminal rules.? Defs.? Mem. at 13. This is incorrect. The District Court explicitly applied ?case law dealing with alter ego entities in the civil liability context? in determining that Agility Holdings was the alter?ego of PWC and Agility Logistics. SeePub. Warehousing Co., 2011 WL 1126333, at *5 n.3 (emphasis added). Defendants next argue that the District Court?s test for finding alter-ego status allegedly focused only on three factors the Agility entities? common ownership, joint ?nancial statements, and common trade name and advertising strategy and thus ?bear[s] little relationship to two-part test requiring unity of ownership and interest and use of the corporate form to perpetrate ?aud or wrong.? Defs.? Mem. at 14. But the District Court did not ?rel[y] exclusively? on these three factors to ?nd that an alter-ego relationship existed. See Defs.? Mem. at 13-14. In fact, the District Court looked to these and numerous other factors 14 under the DC. standard, including: that PWC ?had the power directly or indirectly to govern the ?nancial and operating policies? of its subsidiaries; that there was ?evidence that daily operations are not kept separate? between Agility Holdings, Agility Logistics, and that there was at least one overlapping of?cer; that ?Agility Holdings handled government contracts for PWC in the United States?; and that has not shown any reason for Agility Holdings to exist other than to conduct business in the United-States.? Pub. Warehousing Co., 2011 WL 1126333, at see also First Am. Comp1.1[1l 19, 23-26 (raising substantially identical factual allegations); Second Am. Comp]. 23, 25, 27- 29, 32 (same). Public Warehousing is plainly relevant and persuasive to this matter, as the DistriCt Court applied the same general facts to the same general standard to dismiss the same general argument that defendants advance here. B. KGL Properly Served Agility Logistics Through Daniel Mongeon. Independent of the proper service already made upon the Kuwaiti defendants through their alter-ego U.S. defendants, KGL properly served Agility Logistics through Daniel Mongeon. First, Superior Court Civil Rule provides that service may be made upon a corporation ?by delivering a copy of the summons, complaint and initial order to an of?cer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process.? D.C. Super. Ct. R. Civ. P. 1). KGL effected service upon Mr. Mongeon, an individual nominally serving as a ?director? of Agility Logistics.31 Under D.C. law, service upon a director is effective upon the corporation when there is ?evidence that he acted in any special capacity for the corporation so as to empower him to receive process.? See Beachboard v. rs. of Columbia Unfit, 475 A.2d 398, 400 (DC. 1984). Jurisdictional discovery 31 See Af?davit of Service of First Amended Complaint on Agility DGS Holdings, Inc. (Ex. 23). 15 will reveal that Mr. Mongeon is not a mere ?director? of Agility Logistics, his nominal title notwithstanding, and instead acts in such a special capacity for Agility Logistics so as to empower him to receive process. Second, the Superior Court Rules of Civil Procedure provide that service may be made upon a corporation ?pursuant the state or territory or territory in which service is effected.? D.C. Super. Ct. R. Civ. P. KGL effected service upon Mr. Mon geon in Alexandria, Virginia.32 Because service upon Agility Logistics was proper under Virginia law, it was also effective under D.C. law. See id. The Virginia Code authorizes personal service ?on any agent? of any ?person, who acts directly or by an agent, as to a cause of action arising from the person?s . . . transacting any business in this Commonwealth.? See Va. Code (authorizing personal jurisdiction over an entity ?transacting any business in this Commonwealth?), (authorizing personal service upon ?any agent? of an entity over whom personal jurisdiction exists under Va. Code Plaintiffs satis?ed the requirements for service under the Virginia Code when they served Mr. Mongeon on behalf of Agility Logistics. A director is an authorized recipient of service for a foreign corporation in Virginia. While the term ?any agent? is not speci?cally de?ned in the Virginia Code, the Code makes clear that an ?agent? of a corporation includes its directors and of?cers. See Va. Code 13.1- (?Suits, actions, and proceedings may be begun against a foreign corporation that transacts business in the Commonwealth without a certi?cate of authority by serving process on any director, of?cer, or agent of the corporation doing such business?); see also Kent Sinclair Leigh B. Middleditch, Jr., Va. Civ. Procedure at 562 (5th ed. 2008) corporation Id. 16 not incorporated under Virginia law may be served . . . by personal service on any director, of?cer or agent found in Virginia of such corporation transacting business in Virginia without such authorization?). Therefore, Mr. Mongeon was a proper recipient of service under Virginia (and as a result, D.C.) law. As previously discussed, Agility Logistics is an alter-ego of the Virginia-based defendants Agility Holdings, Agility DGS, and Agility International, and their undisputed business transactions in Virginia may thus be imputed to Agility Logistics for purposes of service. Agility Logistics has also transacted business in Virginia for purposes of service independent of its imputed business transactions as an alter-ego of the Virginia companies. Jurisdictional discovery, if needed, will reveal that Agility Logistics has engaged in business communications and transactions in Virginia giving rise to the torts alleged in the complaint. Jurisdictional discovery will also reveal that Agility Logistics, the named contractor performing the DDKS Warehouse Contract prior to the work being taken away and awarded to KGL (see First Am. Compl. 92; Second Am. Compl. 11 107), coordinated and/or communicated with the Virginia-based personnel of Agility Holdings and/or Agility DGS, and that those communications involved discussing the tortious strategy to eliminate KGL as a potential or actual awardee of the DDKS Warehouse Contract. See Peanut Corp. of Am. v. Hollywood Brands, Inc, 696 F.2d 311, 314 (4th Cir. 1982) (?nding that entity transacted business in Virginia for purposes of Va. Code SDI-328.1 where contracting activities occurred in Virginia, and speci?cally, material components of the contract were addressed to and received in Virginia, ?telephonic negotiations occurred with one of the participants located in Virginia, and numerous written communiqu?s between the parties were sent to and received in Virginia?). 17 Jurisdictional discovery will also reveal, as alleged in the complaints, that Agility Logistics provided ?nancial contributions and other material support to Agility Holdings and/or Agility DGS, including transferring funds to them to pay for lobbying efforts and hiring other professionals and consultants that engaged in conduct in furtherance of the torts alleged in the - complaint. See John G. Kolbe, Inc. v. Chromodern Chair C0., 180 664, 867?68 (Va. 1971) (finding that non-Virginia entity transacted business in Virginia for purposes of predecessor to Va. Code 801-328.] by virtue of its in-state agent?s business transactions in Virginia). Jurisdictional discovery will also further con?rm what plaintiffs have already suf?ciently demonstrated that Agility Holdings and Agility DGS are mere alter-egos of Agility Logistics, and that Agility Logistics has thus transacted business in Virginia through them. See Selman 1). Am. Sports Underwriters, Inc, 697 F. Supp. 225, 237 (W.D. Va. 1988) (?nding that nonresident defendants transacted business in Virginia for purposes of Va. Code 8.01- because they were alter?egos of a company transacting business in Virginia). Accordingly, as service was executed in Virginia upon an agent of a foreign corporation that will be shown to, have been transacting business within Virginia, such service constituted valid service upon Agility Logistics under Virginia law and, in turn, under D.C. law. C. Service Under the Hague Convention Will Be Timely. Although, as discussed above, defendants have already been properly served, KGL is in the process of making additional service pursuant to Superior Court Civil Rule which permits service on persons in a foreign country by the means authorized in the Hague Convention. D.C. Super. Ct. R. Civ. P. The Civil Rules are clear that the ordinary 60- day time limit for service of process under Rule 4(m) ?does not apply to service in a foreign country pursuant to [Rule D.C. Super. Ct. R. Civ. P. 18 The Kuwaiti defendants cite no cases holding that the 60-day deadline under Superior Court Civil Rule 4(m) applies to service on foreign defendants. Defs.? Mem. at 15?16. Indeed, courts applying Federal Rule 4 of Civil Procedure which Superior Court Civil Rule 4 mirrors, see Comment, D.C. Super. Ct. R. Civ. P. 4 have found that foreign Hague service ?need not have been perfected or attempted within the . . . period of Rule to be diligently and properly executed. See In re SI Corp. Sec. Litig, 173 F.Supp.2d 1334, 1343 (N.D. Ga. 2001). ?[T]he trend of courts is to ?nd that the . . . period [of Rule does not apply even if the plainti? makes no attempt to serve [under the Hague process] within the period.? Id. (emphasis added). Some courts, however, ?apply a ??exible due diligence? standard for determining whether service of process on a foreign defendant [i]s timely.? Day v. Corner Bank (Overseas) Ltd, 789 F. Supp. 2d 136, 146 n.9 (D.D.C. 2011). This standard ?measure[s] the reasonableness of Plaintiffs effort [to effect service] as well as the prejudice to the defendant from any delay,? and permits a court to dismiss an action for failure to timely prosecute under Rule 41(b) when the standard is not met. James v. Rutz'l (S.R.L.), No. IP 1997 WL 151174, at *5 (SD. Ind. Mar. 14, 1997). Courts applying this standard have found foreign service timely after the period for service under Rule 4(m) has closed. See, e. g, Day, 789 F.Supp.2d at 146 n.9 (?nding service under Hague Convention outside of the Rule 4(m) period timely despite ?the'several- month gap between the ?ling ofthe Complaint and the completion of service?); see also In re 173 .Supp.2d at 1343 (?nding that Hague service could still properly be made upon defendant in Belgium ten months after Rule 4(m) period began running); Lucas v. Natali, 936 F.2d 432 (9th Cir. 1991) (?nding that Hague service was properly made upon defendant in Mexico eleven months after Rule 4(m) period began running). 19 service efforts meet the ?exible due diligence standard and render dismissal under Rule 41(b) inappropriate. First, plaintiffs have been engaged in reasonable, diligent efforts to effect Hague service UpOn the Kuwaiti defendants. They have amended their complaint two times in this case. Each time, the complaint and associated summons have had to be translated from English to Arabic. Further, plaintiffs are working with local counsel in Kuwait to ascertain the best course of action to serve the Kuwaiti defendants, and on July 3, 2012, sent translated copies of the Complaint and First Amended Complaint to local counsel in Kuwait. The Kuwaiti defendants have historically rejected service of U.S. papers in Kuwaiti on technical grounds,33 and plaintiffs must ensure that all details are covered. Second, the Kuwaiti defendants have not alleged prejudice as a result of any delay in service. See Defs.? Mem. at 4-15. This alone is grounds for denying a motion to dismiss for insuf?cient service through the Hague process. See Steinberg v. Barclay ?s Nominees (Branches) Ltd, No. 04-60897-CIV, 2008 WL 4601042, at *9-10 (SD. Fla. Sept. 30, 2008) (plaintiff?s 12- month delay in effecting service under the Hague ConventiOn did not warrant dismissal where ?Defendant has offered no speci?c evidence as to how it was prejudiced by not being served with the Amended Complaint sooner?). 33 See, e. Mem. in Supp. of Joint Opp?n of Defs. The Public Warehousing Company K.S.C. and Tarek Abdul Aziz Sultan Al-?Essa to Relator?s Application for Entry of Default J. Against Certain Defs., United States ex rel. Mustafa cit-Sultan, No. 17?30 Apr. 9, 2012) (challenging Hague service by arguing that it was not appropriate for the type of claim in queStion, that plaintiff provided facsimiles rather than ?original certificates? of proof of service, and that the individuals served were not authorized to accept service) (Ex. 24). 20 II. THIS COURT POSSESSES PERSONAL JURISDICTION OVER THE KUWAITI DEFENDANTS AND SHOULD PERMIT LIMITED DISCOVERY TO FURTHER CONFIRM ITS JURISDICTION. In considering defendants? motion to dismiss on jurisdictional grounds, the Court must assume factual assertions in complaint as true and draw all reasonable inferences in favor. Hillbroom v. PricewaierhouseCoopers LLP, 17 A'3d. 566, 572 (DC. 2011). On the basis of the facts asserted in the complaint, this Court possesses personal jurisdiction over the Kuwaiti defendants pursuant to three separate-prongs of Long Arm statute. A. Jurisdiction Is Proper Under Section of Long Arm Statute. The Court possesses personal jurisdiction over ?a person who acts directly or by an agent as to a claim for relief arising from the person?s transacting any business in the District of DC. Code A nexus must exist between the cause of action and thejurisdictional facts. Armenian Genocide Museum Mem Inc. v. Cafesjian Family Found, 607 F. Supp. 2d 185, 189 (D.D.C. 2009). Here, KGL amply pleaded facts establishing that defendants transacted business in the District and that claims for relief arise from, and bear such a nexus to, this business. The DC. Court of Appeals has held that retaining and using a D.C.-based law ?rm or lobbyist constitutes ?transacting business? for purposes of Section when the cause of action arises in some fashion from that relationship. See, e. g, Digital Broad. Corp. v. Rosenman Colin LLP, 847 A.2d 384, 390-91 (DC. 2004) (?nding jurisdiction in the District where law ?rm?s out of?state-client ?sought the special bene?ts of doing business with a Washington, DC. law ?rm because of its expertise?). Here, defendants PWC and Agility Holdings transacted business in the District by retaining and paying for lobbyists based in the 21 DC. office of McDermott.34 First Am. Compl. 11 93 (identi?ed as ?Law Firm Second Am. Compl.1111 105, 108.35 Defendants, through McDermott, then conspired with, substantially assisted, and encouraged a-third party, Pamela Baragona, to make defamatory statements regarding KGL. First Am. Compl.11 110; Second Am. Compl.1111 139, 144, 149, 152, 155. Indeed, a McDermott agent-lobbyist was the ?con?dential source? that met and provided Ms. Baragona with stolen KGL documents. First Am. Compl.11 110; Second Am. Compl. 11 143. Moreover, part of the planning, drafting, and/or review of the Wilson Letters likely occurred in the United States (Second Am. Compl. 11 88), and jurisdictional discovery, if needed, will reveal that some of that conduct oCcurred in the District. McDermott personnel in its DC. office also exchanged e-mail communications from that of?ce with other parties in furtherance of the defamatory scheme alleged in the complaints. Such communications included an e-mail to Ms. Baragona and to her lawyers, also located in the District, stating ?Not sure I understand why folks don?t see it for what it is KGL looks a lot like an Iranian controlled entity.? Second Am. Compl. 11 142. This e-mail communication occurred two days before Ms. ?Baragona?s June 15, 2011, defamatory statements (First Am. Comp] 1 107; Second Am. Compl. 11 126 is a shell company for Iran?)) and nine days before Ms. Baragona?s June 22, 2011, defamatory statements. Id. . . you know KGL is not 3?4 Because the US. defendants and Kuwaiti defendants are alter-egos of one another, the conduct of PWC and Agility Holdings is attributable to all defendants. See Section I.A, supra. 35 See McDermott Will Emery, LLP Congressional Lobbying Registration Record, at 2 (Aug. 20, 2010) (indicating that PWC provided $20,000 for McDermott to lobby on Agility Holdings? behalf) (Ex. 5). 22 they are Iran. They are just a front company and Iran is inside the United States Army and knows all of our secrets?). In other words, defendants transacted business in the District through their retention and use of D.C.-based lobbyists at McDermott?s DC. of?ce, and key conduct in furtherance of the defamatory scheme and speci?c defamatory statements alleged in the complaint emanated from these transactions. Thus, plaintiffs? complaint alleges more than suf?cient facts to meet the requirements of Section B. Jurisdiction Is Proper Under Section of Long Arm Statute. This Court possesses jurisdiction over ?a person who acts directly or by an agent as to a claim for relief arising from the person?s . . causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of DC. Code 13- 423(a)(4). PlaintiffS? complaint readily meets this standard. 1. Plaintiffs Suffered Injury in the District KGL was injured in the District by virtue ofthe defamatory statements published in the District, defendants? interference with contractual and business relationships over which the DC. recipients of the defamatory statements had oversight or regulatory authority, and defendants? conspiratorial activities in the District. See, e. Steinberg, 672 F.2d at 929-31 (holding that Florida-based plaintiff?s reputation had been injured in the District for the purposes of Section based on plaintiff?s allegations in defamation suit that British police agency falsely told US. Justice Department of?cials in the District that he was an international crime f1 gure). 23. As discussed supra, KGL derives income from federal contracts and its customer base is federal agencies. See First Am. Compl. 11 7; Second Am. Compl. 11 10. reputation was tarnished in this community, and its ability totransact business in the District was disrupted. The defamatory Wilson Letters were sent to the GAO in the District. First Am. Compl. 11 37; Second Am. Compl.11 46. Speci?cally, the defendants sent the Wilson Letters to Legal Department, which had responsibility for the then-pending DDKS contract bid protest against KGL, and to the GAO Of?ce of ?Congressional RelatiOns? as part of defendants? overall scheme to harm reputation with members of Congress and liaisons thereto. First Am. Compl. 1111 37-40, 50, 57; Second Am. Compl. 111] 46?49, 51-52, 60?61. Defendants? expressly called for and exposed KGL to potential suspension and debarment, First Am. Compl. 52, 59.0; Second Am. Compl. 1111 55, 64.0, forcing KGL to incur expenses to correct defendants? false and defamatory statements made in the District, and to respond to the same allegations in the bid protest before the GAO and Members of Congress and their staffs, First Am. Compl. 1] 60; Second Am. Compl. 1111 65, 157, 158, 161. Based on the forgoing, KGL clearly suffered harm in the District. Defendants argue that KGL did not suffer injury in the District because it did not ultimately lose any federal contracts as a result of the defamatory scheme. Defs.? Mem. at 30. The defamatory letters accused plaintiffs of criminal violations, however, which is per se defamation for which injury is presumed. See Johnson v. Johnson Pub! ig Co., 271 A.2d 696, 698 (DC. 1970) (?to accuse one of a crime is libel per Furthermore, KGL was accused not only of violating federal law, but also of collaborating with Iran, an explosive charge given the current political climate. First Am. Compl. 1] 37; Second Am. Comp]. 1] 45. While KGL may not have lost contracts,- idefendants? defamatory statements and interference with contractual relationships (and acts of conspiracy, aiding and abetting, and negligent supervision related 24 thereto) nonetheless caused KGL harm by having to incur- and expend resources to investigate the false allegations, respond to them, and take additional steps and measures to attempt to mitigate reputational and other harm. ,First Am. Compl. 116?17; Second Am. Compl. 156- 62. 2. Plaintiffs? Injury Was Caused by Defendants? Tortious Acts Committed Outside the District. In addition to defendants? alleged conduct in the District, the complaint clearly alleges that the letters which defamed KGL, interfered with its contractual and business relationships, and consequently caused injuries were sent from a single computer connection outside of DC. First Am. Compl. Second Am. Compl. 86-87. In addition, Ms. Baragona?s defamatory statements, which defendants encouraged as part of a conspiracy with her, were published within andwithout the District. First Am. Compl. 11 107, Second Am. Compl. 11 126. 3. Defendants Have Multiple ?Plus Factor? Contacts with the District. The ?nal requirement under Section is so-called ?plus factor? contacts that defendants have with the District. These plus factors can be unrelated to the tortious conduct. See Steinberg, 672 F.2d at 93 I. The purpose of the plus factor requirement is to ?exclude cases in which th[e in-forum] impact is an isolated event and the defendant otherwise has no, or scant, af?liations with [the 161- Plus factors exist when defendants: solicit business in the District; (ii) engage in any other persistent course of conduct targeted at the District; or derive substantial revenue from goods or services sold in theDistrict. DC. Code 134423(a)(4). In addition to the alleged tortious conduct occurring in the District, defendants have numerous plus factors here, either directly or through their alter?ego U.S. subsidiaries. Kuwaiti defendant PWC paid for the retention of D.C.?based ?rms, McDermott and Lanny J. Davis 25 Associates, as its lobbyists}6 First Am. Compl. 93-94 (referring to Law Firm A and Law Firm Second Am. Compl. 108-109. Kuwaiti defendant PWC, through the Agility Defense and Government Services business group, also retained The Rhoads Group, and Kuwaiti defendant Agility Logistics retained Blank Rome Government Relations, both. located in DC.37 U.S. defendant Agility DGS also retained Centractor Integrity Solutions, LLC, also located in DC.38 U.S. defendant Agility International has been awarded government cOntracts in the District.39 See First Am. Compl. I 27; Second Am. Comp]. 1] 33. Kuwaiti defendants PWC and Agility Logistics, among others, have instituted numerous cases as plaintiffs before courts and administrative tribunals in the District. See OFU.S. COURT LITIGATION, BID PROTESTS AND CONTRACT attached as Exhibit to Mot. to Stay Adjudication of Pending Defensive Mots. and Submissions, United States ex rel. a] Sultan 12. Public Warehousing Co., No. 05-CV-2968 (ND. Ga. Apr. 17, 2012) (?Mot to Stay, al Sultan v. ,Pub. Warehousing Ca?) (listing of U.S. litigation brought by one or more of the defendants) (Ex.27). Defendants, including PWC and Agility Logistics, engaged in regular trade association and other 36 See McDermott Will Emery, LLP Congressional Lobbying Registration Record, at 2 (Ex. Lanny J. Davis Associates, LLP Congressional Lobbying Registration Record, at 2 (Ex. 6). 37 See The Rhoads Group Congressional Lobbying Registration Record, at 2 (Ex. Blank Rome Government Relations LLC Congressional Lobbying Registration Record (May 31, 2006) (discussing the hiring of the D.C.-based lobbying ?rm by Agility Logistics f/k/a PWC Logistics Services Co. (Ex. 25). 38 See Agility Def. Gov ?t Servs. Inc. v. Dep ?t ofDef, No. 11-cv-04111, at 10 (ND. Ala. Jun. 26, 2012). 39 See, e. g, Prime Award Spending Data for Contract No. AIDTRN000700107 Between the U.S. Agency for International Development and Agility International, Inc. (Sept. 24, 2007), ($671,000 contract between the U.S. Agency for International Development and Agility International, Inc.) (Ex. 26). 26 professional activity in the District in order to secure business opportunities. First Am. Compl. 11 27; Second Am. Compl. 11 33; see also Steinberg, 672 F.2d at 931. Any of these facts alone would demonstrate the existence of a plus factor suf?cient for the exercise of jurisdiction under section Taken together, they clearly demonstrate the appropriateness of jurisdiction under this provision. c. Jurisdiction Is Proper Under Section of Long Arm Statute. .This Court has jurisdiction over ?a person who acts directly or by an agent as to a claim for relief arising from the person?s . . . causing tortious injury in the District of Columbia by an act or omission in the District of DC. Code This standard is amply satis?ed here. First, as previously stated, KGL suffered injury in the District. See Section supra. Second, the tortious conduct occurred, in part, in the District. Defendants? agent, McDermott, met with Ms. Baragona in the District and provided her defamatory materials about KGL to spread to others. First Am. Comp]. 1 110 (referring to McDermott as the ?con?dential source?); Second Am. Compl. 11 132. McDermott engaged in conspiratorial communications with Ms. Baragona from and in the District. Second Am. Comp]. 1 142 (e-mail from lobbyist in McDermott?s DC. of?ce stating, ?Not sure I understand why folks don?t see it for what it is KGL looks a lot like an Iranian controlled entity?). McDermott also circulated defamatory material on Capitol Hill to members of Congress, as well as to D.C.-based federal of?cials. Second Am. Comp1.11 139. Part of the planning, drafting, and/or review of Wilson Letters likely occurred in the United States (Second Am. Compl.11 88), and jurisdictional discovery, if needed, will reveal that some of that conduct probably occurred in the District. Under section 13- 423(a)(3), ?it is enough that defendants [or its agents] were physically within the District when 27 they took the alleged actions giving rise .to. plaintiff?s? claims. Navab-Safavi v. Broad Bd. of Governors, 650 F. Supp. 2d 40, 52 (D.D.C. 2009), a??d sub nom, Navab-Safavi v. Glassman, 637 F.3d 31 1 (DC. Cir. 2011) (emphasis added) (internal citations omitted). D. U.S.-Based Defendants? Contacts with the District Can Be Imputed to Kuwaiti Defendants. As discussed in detail above, the Kuwaiti and U.S. defendants are alter-egos of one another. A corporation?s contacts may be attributed to its alter-egos forjurisdictional purposes. See Shapiro, Lifschit; Schram v. Hazard, 24 F, Supp. 2d 66, 70 (D.D.C. 1998). Therefore, in addition to conduct of a speci?c Kuwaiti defendant (or its agent) occurring in the District, jurisdiction over one or more defendants here extends to jurisdiction over all the defendants. E. Jurisdiction Over the KUWaiti Defendants Would Not Offend Constitutional Due Process. In addition to satisfying the requirements of sections and both directly and through their alter?egos, the exercise of jurisdiction over the KuWaiti defendants would not offend principles of constitutional dUe process. See Envd. Research Int Inc. v. Lockwood Greene Eng?rs, Inc, 355 A.2d 808', 810-11 (DC. 1976) long-arm statute is coextensive with the reach of personal jurisdiction permitted under the Due Process Clause). The due process analysis centers on whether: (1) defendants had ?minimum contacts? with the District that are more than merely ?random, fortuitous, tenuous and accidental?; and (2) the exercise of jurisdiction over defendants in the District would comport with traditional notions of fair play and substantial justice. See Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 331-32 (DC. 2000); Armenian Genocide Museum cf: Mem?l, 607 F. Supp. 2d at 189. KGL amply pleaded facts to satisfy these standards. 28 1. Defendants Have Suf?cient ?Minimum Contacts? with the District. The Court?s exercise of speci?c jurisdiction is proper when ?the defendant purposefully establishes ?minimum contacts? in the forum? that ?create a ?substantial connection? with the forum State.? Burger King v. Rudzewicz, 471 US. 462, 474, 475 (1.985). When such minimum contacts exist, ?it is presumptively not unreasonable [for purposes of constitutional due process] to require [a defendant] to submit to the burdens of litigation in that forum as well.? Id. Here, the Kuwaiti defendants have established suf?cient contacts with the District to justify the Court?s exercise of jurisdiction. As discussed supra, the Kuwaiti defendants deliberately retained and used McDermott here in the District to promote and protect their commercial interests. First Am. Compl.1[ 93; Second Am. Compl. 1] 109; Ex. 5 (discussing the hiring of McDermott with funding from PWC). The Kuwaiti defendants have also deliberately retained and used other lobbyists and consultants here in the District to this same end. See Section II.B.3, supra (discussing the hiring of D.C.-based lobbying ?rms: Lanny J. Davis Associates and The Rhoads Group by Agility Holdings with funding from The Rhoads Group by Agility Defense and Government Services business group; and Blank Rome Government Relations by Agility Logistics). Similarly, in November 2010, the Kuwaiti defendants? alter-ego subsidiary, Agility DGS, retained the services of the D.C.-based consulting ?rm Contractor Integrity Solutions, LLC to ?bolster the [company?s] compliance system.? Agility Def. Gov Servs. Inc. v. Dep?t ofDef, No. 1 l, at 10 (ND. Ala. Jun. 26, 2012} Under D.C. law, retaining a law ?rm located in the District satis?es the constitutional minimum contacts test. See, e. Digitai Broad. Corp. 847 A.2d at 390-91 (in ?nding jurisdiction, court noted that defendants retained a law ?rm with regulatory expertise derived from practicing within the District). Thus, when D.C. ?rms are retained for location-Speci?c 29 expertise, the contacts with the District are nOt random or fortuitous contacts but rather purposeful ones giving rise tojurisdiction. Here, defendants? retention and use of McDermott and other D.C.-based lobbyists and consultants satis?es'the due pr?Ocess ?minimum contacts? standard. The Kuwaiti defendants have also purposefully availed themselves of the bene?ts of various courts and administrative bodies located within the District. SeelExhibit to Mot. to Stay, a1 Sulran v. Public Warehousing Co. (listing of US. litigation brought by one or more of the Defendants, Complaint, Public Warehousing C0. KSC. v. Def. Supply Ctr. Phila, No. 07-CV-00502 Mar. 15, 2007); civil case brought in the District by Kuwaiti defendant Matter Logistics Servs. Co. B-310559 (GAO Jan. 11, 2008); GAO bid protest brought in the District by Kuwaiti defendant Agility Logistics f/ka PWC Logistics Services Co. (Ex. 27). By instituting legal actions in courts and legal bodies within the District, the Kuwaiti defendants have unquestionably availed themselves of the ?bene?t and protection of the laws? within the District, and ?requiring [them] ?to respond to a suit . . . [in the District] . hardly can be said to be an undue burden.? Shoppers Food Warehouse, 746 A.2d at 325 (internal bracketed text omitted). Despite these clear contacts with the District, the Kuwaiti defendants raise several unavailing arguments to suggest that the minimum contacts requirement has not been met. First, the Kuwaiti defendants argue that the complaint fails to identify which defendant or defendants committed'the torts at issue. Defs.? Mem. at 21. The complaint, however, alleges that all of the defendants are alter?egos of one another and therefore each defendant is equally responsible for the torts of every other defendant. First Am. Compl. 1] 18; Second Am. Compl. 11 6. The complaint also alleges that the defamatory Wilson Letters were sent from an IP address assigned 30 to the Kuwaiti defendants. First Am. Compl. 9, 65-70; Second Am. Compl. 1m 13, 53?54, 81? 86. - Second, defendants argue that KGL has not shown that they have directed their activities here. This argument ignores the plain language of the complaint, which alleges signi?cant activity aimed at the District. As described in detail above, this activity included publishing defamatory statements to the GAO, agents, and directing these agents to manufacture, package, and/or disseminate defamatory allegations about KGL within and without the District. Third, defendants contend that KGL cannot Show it was harmed here. Defs.? Mem. at 22. As an initial matter, defendants cite no cases showing that in-forurn harm to plaintiffs ?gures into'thejurisdictional analysis. 1d. This is unsurprising, as the due process analysis focuses on the defendants relationship with the forum. Burger King Corp, 471 US. at 474 (?the constitutional touchstone remains whether the defendant purposefully established ?minimum contacts? in the forum?) (emphasis added). Moreover?, as discussed above, KGL did indeed suffer harm in the District through the publication of the defamatory statements. 2. Jurisdiction Over Defendants Comports with the Notions of Fair Play and Substantial Justice. The Court?s exercise of jurisdiction over defendants would comport with traditional notions of fair play and substantial justice. The ?critical? factor for purposes of this analysis is whether the defendant?s conduct and connection with the forum state are such that he [or she] should reasonably anticipate being haled into 'court there.?? Smith v. Jenkins, 452 A.2d 333, 336 (D.C. 1982) (quoting World- Wide Volkswagen Corp. v. Woodson, 444 US. 286, 297 (1980)). ?[W]hen out-of-state actors avail themselves of the benefits of contact within the [District],? they ?reasonably could have anticipated? that persons harmed by their contacts to the District could 31 bring suit here. See Shoppers Food Wdrehouse, 746 A.2d at 332. ?[F]airness [therefore] requires that they be held accountable [in the District] for the consequences of such activities? and that constitutional standards of due process be found satis?ed. Id. As set forth above, the Kuwaiti defendants have deliberately availed themselves of the benefits of contact with the District and thus reasonably could have anticipated being haled into court here. In partiCular, the Kuwaiti defendants must have known that, by retaining D.C.-based lobbyists and professional advisors, either directly or through their alter-egos, they could end up in court in the District in connection 'with these engagements. The court in Hulme v. Ferris considered an analogous factual scenario and concluded: ?[Plaintiff] had ?fair warning? that she could be brought into court here . [because plaintiff] purposefully directed her activities to DC: residents by hiring [attorneys in the District] as her lawyers, and this litigation arises directly from her contact with these D.C. residents.? Hulme v. Ferris, GA. No. 87-48, 1987 WL 11702, at *1 (D.D.C. May 21, 1987). Accordingly, the Court?s exercise of jurisdiction over defendants would be fully consistent with traditional notions of fair play and substantial justice. Defendants nonetheless advance several unavaili?ng counterarguments. Defendants contend that because: they would be inconvenienced by litigating in the District (id. at 24- 25); the District has no fundamental legal or policy interest in adjudicating this diSpute (id. at 25-26); Kuwait is the appropriate forum (id. at 27); and interstate judicial ef?ciency . would be impaired by litigating in the District as a result of plaintiffs seeking concUrrent . jurisdiction of its claims in two other states (id. at 27-28). As discussed below, none of these arguments alter the jurisdictional analysis. First, defendants? claims of inconvenience are unpersuasive. D.C. courts have previously exercised jurisdictiOn over cases with foreign parties and perceived logistical challenges not 32 unlike the case at bar. See, e. Washington Inv. Partners of Delaware LLC v. Sec. House KS. C. C., 28 A.3d 566 (DC. 20'] l) (defendant in Kuwait); Price v. Grz??irt, 359 A.2d 582 (DC. 1976) (defendant in Luxembourg). Moreover, defendants? 'claims of inconvenience are belied by the fact that defendants Kuwaiti and U.S. alike have instituted numerous cases as plaintiffs before courts and administrative tribunals located-in the District. See Exhibit to Mot. to Stay, a] Sultan v. Public Warehousing Co. (listing U.S. litigation brought by one or more of the defendants) (Ex. 27). Indeed, since 2005, one or more PWC entitieshave been a party to 60 litigation or other administrative proceedings, including arbitrations, in the United States. Seven civil cases and four bid protests at the Government Accountability Of?ce occurred in the District. Id. Nearly half of the 60 proceedings were initiated by one or more PWC entity. See id.40 Given this long line of litigation. and claims experience in the United States, the Court should ignore defendants? complaints about long airplane ?ights (Defs.? Mem. at 25), translators visas and travel burdens from Kuwait(z?d. at 27-28). Second, the District has a clear policy and legal interest in adjudicating this case, which stems from false and defamatory materials circulated within its borders. A statement is defamatory ?if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community.? Olinger v. Am. Savs. Loan Ass ?71, 409 F.2d 142, 144 40 In one instance, PWC bargained for the right to arbitrate disputes with a Supreme Foodservice (a German company) in New York,. In November 201 l, PWC ?led an arbitration claim in New York over a breach of contract to deliver food to US. troops in Iraq, Kuwait,and Jordan, and then sought relief from a New York court in-connection with that arbitration. Agility Pub. Warehousing C0. KS. C. v. Supreme Foodservice C0. GmbH, No. 1:2011-cv-07375 (S.D.N.Y. Oct. 17, 2011) (Ex. 28). PWC did not assert the same inconvenience objections in that matter, which involved a civil diSpute between two foreign companies, with personnel speaking two different native languages, and contract performance in three different foreign countries. 33 (DC. Cir. 1969). In defamation cases, even when ?fthere is some public and governmental interest elsewhere, by far the greatest interest lies 1n the place where the Victim? reputation suffered 1njury. Dowd v. Calabrese, 589 F. Supp. 1206, 1210-11 (D. D. C. 1984). The District 15 a relevant community for 3 customer base the location of federal agencies and of?ces that KGL depends upon for its livelihood. reputation was tarnished in this community, and its ability to transact business here was disrupted. The District has an obvious interest in policing and preventing reputational harm to honest businesses, like KGL, that avail themselves of the District?s marketplace. Third, interests in obtaining convenience and effective relief are best served by litigating in the District, rather than in Kuwait as defendants argue. Plaintiffs are generally best suited to determine where their own interests are best served, and courts thus ?accord plaintiff?s choice of forum a degree of deference in respect to the issue of its own See Priztker v. Yarz?, 42 F.3d 63, 64 (lst Cir. 1994) (citations omitted). determination that ?it would obtain convenience and effective relief" in the forum of its choice is thus ?entitled to substantial weight.? See Doka USA, Ltd. v. Gateway Project Mgmt., LLC, No. 2011 WL 3236091, at *8 (D. Md. July 27, 2011) (citations-omitted). Fourth, interstate judicial ef?ciency would not be impaired by litigating in here. Despite defendants? protestations regarding other pending litigation, rule is that, when concurrent jurisdiction exists, each forum is ordinarily free to proceed?to a judgment.? Auerbach v. Frank, 685 A.2d 404, 407 (DC 1996) (internal quotations omitted). Thus, the mere existence of parallel proceedings is notsufficient to deprive an appropriate forum of control over its proceedings. See id. Moreover, plaintiffs? ?lings in more than one jurisdiction are baSed on 34 their now?proven expectation that the Kuwaiti defendants will attempt to avoid accountability by assertingjurisdictional objections in each forum. F. The ?Government Contacts? Doctrine Does Not Preclude Jurisdiction over Defendants. The Kuwaiti defendants argue that jurisdiction over them is not appropriate because their lobbying and federal procurement-related contacts with the District are ?government contacts? that the Court cannot consider for purposes of determining jurisdiction, Whether under DC. Code section or Defs.? Mem. at 20, 30. This is incorrect. First, the government contacts doctrine only applies to contacts with a ?federal instrumentality.? See Envrl. Research Int'l, Inc, 355 A.2d at 813. But Ms. Baragona is a private citizen and McDermott is a private limited liability partnership. Both are unaf?liated with any federal'instrumentality. Accordingly, defendants? contacts with Ms. Baragona through McDermott and with McDermott directly clearly do not fall within this doctrine. Second, the doctrine does not apply to ?individuals who enter the District of Columbia to fraudulently induce unwarranted government action against others, and succeed in doing so.? 'Companhia Brasiliera Carbureto De Calcio v. Applied Indus. Materials Corp, 35 A.3d 1127, 1133 (DC. 2012). Here, KGL has alleged that defendants engaged in fraudulent conduct by knowingly using misappropriated, falsified KGL documents in support of its malicious, defamatory allegations made to the government and others. First Am. Comp]. 111] 37-38, 55-56, 101, 104; Second Am. Compl. 47, 58?59, 117, 120-22. Defendants, either directly or through others, such as Ms. Baragona, disseminated falsified documents to federal of?cials and the public in an effort to induce the government to question integrity and/or bar it from the procurement process. First Am. Compl. 1] 77; Second Am. Compl. 1H 96, 102. The government relied on these false representations and launched inquiries that required KGL to expend time 35 and money to address. First Am. Compl. 39; Second Am. Comp]. 1[ 48. Thus, the contacts between defendants" agent, McDermott, and the government in furtherance of a fraudulent, defamatory scheme cannot be exempt from the Court?s jurisdictional calculus under the government contacts doctrine. Third, even assuming arguendo that the government contacts doctrine were to apply to bar the exercise of jurisdiction under DC. Code section should not apply where jurisdiction is under DC. Code sections or The government contacts doctrine is a judicially created doctrine by which courts narrowly construe whether an entity satis?es ?the ?transacting any business? standard in the present [section] and its predecessor statutes. See Rose v. Silver, 394 A.2d 1368, 1373 (DC. 1978) (discussing the history of the government contacts doctrine). Whether an entity is ?transacting any business? within the District is not a relevant consideration for purposes of jurisdiction under section 13- 432(a)(3) or and accordingly, the government contacts exception should not apply where, as here, jurisdiction is premised upon either of these authorities (ale, where a tort has been committed here). To the extent that ?do[ing] or solict[ing] business? in the District is a consideration under section it is merely one of three potential plus factors for jurisdiction under this section. Thus, even to the extent that the government contacts doctrine may be relevant to the determination of whether this ?rst plus factor is satisfied, see Steinberg, 672 F.2d at 931, no D.C. court has fOund the government contacts doctrine to be relevant to the determination of whether other plus factors are present. But see Crane v. Carr, 814 F.2d 758, 764 (DC. Cir. 1987) (federal court incorrectly referencing government contacts exception in analysis). As alleged above, defendants have engaged in a persistent course of conduct and derived substantial 36 revenues from contracts awarded in the District, each of which constitutes an independent plus factor for purposes of section See-sections 1113.1, supra. G. Limited DiscOvery Would Con?rm This Court?s Jurisdiction Over Kuwaiti Defendants. To the extent that the Court is unwilling to deny the Kuwaiti defendants? motion to dismiss based on plaintiffs? allegations, the Court should allow limited jurisdictional discovery to aid in its consideration of Kuwaiti defendants? dispositive motion. plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable discovery, lest the - defendant defeat the jurisdiction of the trial court by withholding information on its contacts with the forum.? Solers, fnc. v. Doe, 977 A.2d 941, 957 n.16 (DC. 2009) (internal citation omitted). Indeed, in this case, defendants and their agentflobbyists have fought plaintiffs? discovery attempts even before they were named as parties to the complaint.? Courts permit jurisdictional discovery when a plaintiff has a' good faith, belief that such discovery will enable it to show that the court has persOnal jurisdiction over the defendant. GTE New Media Servs. v. BellSouth Corp, 199 F.3d 1343, 1351 (DC. Cir. 2000) (?if a party demonstrates that it can supplement its jurisdictional allegations through discovery, then jurisdictional discovery is justified?). The plaintiff? obligation to set forth allegations relating to personal jurisdiction arises a?er a defendant moves to dismiss for lack of personal jurisdiction. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites 'de Guinee, .456 US. 694, 704 (1982). 4' See Mem. of in Supp. of Pls.? Renewed Mot. to Compel Prod. Under Subpoena Directed to Agility DGS Holdings, Inc., Kuwait GulfLink Transport Co. v. Doe, Case No. M01 1001583, 2-3 (Va. Cir. Ct. Jun. 27, 2012) (discussng Agility Holdings? resistance to subpoena duces tecum prior to its addition as a party to this action, and Agility Holdings? inaccurate representations to the Virginia Circuit Court in so Opposing motiOn to compel production under the subpoena) (exhibits attached thereto omitted) (Ex. 29). 37 In particular, courts favor jurisdictional discovery where alter?ego issues? are intertwined with jurisdictional ones. See Material Supply Intern, Inc. v. Sunmatch Industrial Co., Ltd, 62 F. Supp; 2d 13, 22?23 1999); United Mine Workers v. Arch. Mineral Corp, 145 F.R.D. 3, *6 (D.D.C. 1992). i KGL here has a good faith belief thatjurisdictional discovery would reveal, inter alia: The full extent of defendants? plus factor activities inthe District; 0 The ?full extent of defendants? lobbying efforts in the District on alleged violatiOns of CISADA and relationships with D.C.-based lobbyists and law ?rms to manufacture, package, and distribute knoWingly false statements about 0 Additional details demonstrating that defendants are alter-egos of each other; and 0 Additional facts regarding the Kuwaiti defendants conducting business in the District. These additional facts would augment the facts already in the complaint and irrefutably establish this Court?sjurisdiction over defendants. FORUM NON CONVENIENS DISMISSAL IS INAPPROPRIATE. The Kuwaiti defendants have additionally moved for dismissal on forum non conveniens grounds. See Defs.? Mem. at 31-39. This is the same purported basis for dismissal as the U.S. . defendants assert in their separate motion to dismiss for forum non conveniens. See Statement of in Supp. of the U.S. Defs.? Mot. To Dismiss for Forum Non Conveniens (Jun. 6, 2012). Although briefed separately, both motions address the exact same legal question: ?whether the District has so little to do with this case that its courts should decline to hear Jimme'rson v. Kaiser Found, 663 A.2d 540, 543 (DC. 1995). KGL, therefore, hereby incorporates in its 38 entirety its opposition to the US. defendants? motion to dismiss for forum non conveniens.? Nevertheless, KGL addresses a few of the Kuwaiti defendants? argt?tments separately below. A. The Burden Is Squarely?on Defendants to Establish that Dismissal for Forum Non Conveniens is Appropriate. Like the US. defendants, the Kuwaiti defendants assert that this Court should relieve them of the burden normally allocated to the defendant to demonstrate why dismissal is warranted for forum'no?n conveniens. Defs.? Mem. at 32. Unlike the US. defendants, however, who choose simply to ignore all of the allegations in the complaint, the Kuwaiti defendants at least acknowledge the allegations that the Wilson Letters were sent to US. government of?cials in the District. Defs'.? Mem. at 3 (?Plaintiffs allege that? defendants sent two defamatory letters to ?the Government Accountability Of?ce in the District of Columbia?). But what the Kuwaiti defendants overlook is that publishing letters in the District that were defamatory per se completed the tort of defamation here and caused compensable injury. First Am. Compl. 1, 27, 37, 50, 57, 111-17; Second Am. Compl. 1H 2, 33, 51-52, 60-61, 163-71. That plaintiffs? claims arose in the District is, of course, fatal to the Kuwaiti defendants? burden? Shi?ing argument. See, Blake v.1Pr0f?l Travel Corp, 768 A.2d 568, 572 (DC. 2001) (a defendant?s burden cannot be shifted when, infer alia, any claim arises in the jurisdiction). Therefore, they try to sidestep plaintiffs? allegations by arguing that although the defamatory letters were addressed to government of?cials in the District, ?there is no allegation that anyone in the District of Columbia actually received, read, or acted upon? them. Defs.? I Mem. at 33. But this semantic argument does not save defendants from their required showing 42 See Pls.? Statement of in Opp?n to US. Defs.? Mot. to Dismiss for Forum Non Conveniens. (Jul. 6, 2012). Although all of the defendants have moved for dismissal at the same time on multiple grounds, the only overlapping legal basis asserted is forum non conveniens. 39 on the forum non conveniens motion. First,'at the pleading stage, it is suf?cient to allege that defamatory statements were published to someone in the jurisdiction. See, e. Armenian AsSembly 0fAm., Inc. v. Ca?yian, 597 F. Supp. 2d 128, .137 (D.D.C. 2009) (complaint suf?cient where it alleges enough information ?to apprisei? the defendants of the person that the letters were published to) (citing Oparaugo v. Watts, 884 A.2d'63, 78 (DC. 2005)); Moreover, the Second Amended Complaint explicitly alleges that the per se defamatory letters were received and read by GAO officials in the District. second Am. Comp]. 1M 52, 61. i B. Concurrent Litigation Does Not Affect the Forum Non Conveniens Analysis. The Kuwaiti?defendants argue that lawsuits are ?obvious litigation gamesmanship? and were undertaken ?in an effort to subject Kuwaiti defendants to vexatious litigation, thousands of miles from home.? Id. As discussed in response to the US. defendants? motion, there is nothing improper about concurrent litigation since ?[t]he fundamental rule is that, when concurrent jurisdiction exists, each forum is ordinarily free to proceed to ajudgment.? Auerbach v. Frank, 685 A.2d 404, 407 (DC. 1996) (internal quotations omitted). Moreover, the Kuwaiti defendants should not be heard to complain about facing lawsuits in more than one jurisdiction ?thousands of miles from home.? It is they who, directly or indirectly, sent the defamatory Wilson Letters to government officials in the United States and to multiple jurisdictions within the United States. It is they who did so in order to damage plaintiffs? reputation and business relationships in the United States. And it is they who, after aiming their tortious conduct at the United States, refuse to submit to plaintiffs? choice of forum in any of the pending cases. This is precisely why plaintiffs ?led in more than one jurisdiction. 40 C. Defendants? Choice of Law Analysis Ignores the Allegations in the Complaint, Overstates the Impact of any Con?ict, and Disregards the District?s Interest in this Case. . Although the Kuwaiti defendants discuss the choice of law issue in more detail than their US. counterparts, their analysis ignores the plain language of the complaint and overstates the public burden resulting from any con?ict between DC. and Kuwaiti law. As an initial matter, as discussed in response to the US. defendants? motion, the choice of law issue carries no weight in light of the District?s interest in this litigation. American courts, including D.C. courts, routinely apply foreign law. Only where the underlying controversy has no connection to thejurisdiction would the ?public burden? of applying foreign law even come into play. In addition, the Kuwaiti defendantss application of the choice of law principles exaggerates the importance of any potential con?ict. Courts apply con?ict of law analysis on an ?issue-by?issue? basis. Stutsman v. Kaiser Found. Health Plan osz'd-Arl. States, Inc, _546 A.2d 367, 373 (DC. 1988). Here, defendants have identi?ed a purported con?ict on only one issue punitive damages. Applying Kuwait law on this one issue (assuming, arguendo, that defendants? statement of the law is accurate) would hardly constitute a ?public burden.? It would, at mOSt, require the Court only to instruct a jury that it could not award plaintiffs punitive damages. Even if there are substantive con?icts between DC. and Kuwaiti law on other legal issues and defendants have pointed to none defendants? application of the District?s choice of law test misses the mark. Defendants? conclusory assertion that Kuwait has the primary governmental interest in the conduct at issue here is contrary to the complaint, which alleges an overwhelmingly American controversy implicating the integrity of the US. government procurement process. In applying the ?most significant relationship test,? defendants correctly quote the first factor in this test as ?the place where the injury occurred,? Defs.? Mem. at 36, yet somehow contend that plaintiffs ?have not identified any injury suffered in the District of 41 Columbia.? The complaint clearly alleges that the Wilson letters were published in the District and were defamatory per se, thereby causing compensable injury here. First Am. Compl. 1H 27, 37, 50, 57, 111-17; Second Am. 33, 51-52, 60-61, 163-71. Therefore, this con?ict of law factor would weigh in favor of applying D.C. law. CONCLUSION WHEREFORE, for the reasons stated above, plaintiffs respectfully request that the Court deny defendants? motion-t0 dismiss.43 Dated: July 6, 2012 Respectfully submitted, David C. Hammond David C. Hammond (Bar No. 422612) Clifford J. Zatz (Bar No. 298596) Joseph L. Meadows (Bar No. 467441) AlisonL. Share (Bar No. 975513) Raja Mishra (Bar No. 1004524) CROWELL MORING LLP 1001 Ave., NW Washington, DC. 20004 Phone: (202) 624-2500 Fax: (202) 628-5116 Counsel for Plainti?ls Kuwait GulfLink Transport Company, KGL Logistics, and KGL Transportation Company KSC 43 Kuwaiti defendants, in a footnote after the last word in their brief, ?incorporate by reference the motion to dismiss of U.S. Defendants.? Defs.? Mem. at 40 n. 13. If the Court allows incorporation of the U.S. defendants? motion, plaintiffs request that the Court similarly incorporate its opposition to the U.S. defendants? motion to dismiss. Exhibit 5 1001 Avenue, NW, Washington, DC 20004-2595 I 202 024-2500 I 202 628=5116 crowellr?moring David C. Hammond (202) 624-2510 DHammond?crowell.com - April 27, 2012 #l8206146 ELECTRONIC Enu Mainigi, Esq. Williams Connolly LLP 725 12th Street, NW. Washington, DC. 20005 Re: . Request for Return of Privileged and Con?dential Documents Belonging to Kuwait Gulf Link Transport Dear Ms. Mainigi: As you know, we represent Kuwait Gulf Link TranSport and its subsidiaries Last week, we discovered that your client, 'McDermott Will Emery (?McDermott?), obtained, reviewed, used, andwdistributed privileged and con?dential documents belonging These documents are described below. MoDennott should have noti?ed me and/or Crowell Moring upon its initial receipt of property belonging to KGL. These, documents were stolen from KGL. The theft of documents from KGL-does not waive the attorney-client privilege or work product protection associated with these documents. KGL demands not only their immediate return, b_ut'a full .acCOunting of what McDe?rmott has done with these documents and the cirbumstances Surrounding McDermot't?ls possessibn and use of them.1 On April 1?8, 2012, and following a hard copy document production by Pamela Baragona in connection with civil action against John Doe, we found a May 29, 2011, e-mail entitled .Documents 111? from Dominic Baragona to Don MacDonald, Chief of Staff to Rep. Sherman, with copies to Pamela Baragona, Andrew Cochran, Steve Perles, and Edward MacAllister. See Bird. 1 (Bates stamped Baragona 000280). The e-mail references two -, attachments, labeled ?fKGL-Iran arty-client communicationsfrom Agilitysupplement (Binder II . Part atty-clientcommunicationsfrom Agility (Binder II Part l).pdf.? Another'docu?ment'in the Baragona production, which appears to haveb'een included in these attachments, is entitled ?Index of Attdmey-Clie?nt Documents? (the ?lndex?). The Index lists and summariZes nine elmails/doctJments, including-identifying the names of lawyers involved in the co?mmunicatidns. See End. 2 (Bates stamped 'BaragOna-000288). Eight of-these nine e- You also represent Lanny J. Davis Associates. This letter equally applies to Lanny J. Davis dc Associates to the extent it is or has been in possession of privileged and con?dential communications and related attorney work product. Crowell& Morlng LLP . Ww.crowell.co'r'n - Waihington, DC {New York - San Francisco Los Angeles . Orange County - Anchorage . London 9 BrtiSselS' Enu April 27, 2012 Page 2 mails/documents contain privileged and con?dential communications and/or attorney work product (N o. 7 is not privileged) and most speci?cally state that they are ?Privileged and Con?dential.? The bottom leftcorner of the Index contains a ?le path document identi?cation number belonging to? McDermott. Based on-the Index alone, it appears your client is directly involved with the possession, review, use, and further dissemination of privileged and con?dential documents belonging to KGL. Moreover, the titles of the attachments to the Baragona e-mail state that they are ?from Agility.? Therefore, it appears that Agility, a KGL competitor, is part of the chain of custody of these stolen documents. As you and your client know from the recent civil complaints against John Doe and Agility, certain foreign nationals, including an Agility employee, have been charged in Kuwait with a criminal offense in connection with the misappropriation of KGL documents. In addition, two of McDermott?s attorneys, Stephen Ryan and David Ransom, are registered lobbyists for Agility and have been working with'the Baragonas and/or their legal counsel, which may explain how Mr. Baragona?s e-mail to Rep. Sherman?s of?ce contained privileged and con?dential documents. This is not the ?rst time we have instructed McDerrnott to return privilegedand con?dential documents and related attorney work product. As stated in the civil complaints against John Doe and Agility, in September 2011, an interpreterretrieved documents from an Agility of?ce in Kuwait and subsequently provided a copy to KGL. One of those documents was an April 2, 2011 e-mail between myself and KGL discussing and attaching a draft letter to US. government of?cials. A legend at the bottom of that e-mail? clearly stated that it was a privileged and con?dential communication. After learning that Agility possessed this privileged e?mail and its attachment, I sent Mr. Ryan an e-mail, with a ?copy to Mr. Ransom, on September '15, 2011 stating: . . we have recently obtained evidence that Agility possesses stolen KGL documents and that these documents include privileged, attomey-client communications and attorney work product sent between our ?rm and in- house lawyer, Mr. Ahmed A?fy. Please arrange to have all copies of these stolen documents, including privileged communications, delivered to us immediately. See Encl. 3 (e-mails between David Hammond and Stephen Ryan, Sept. 15-16, 2011). Mr. Ryan simply responded ?Receipt acknowledged.? Id. Mr. Ryan never returned the privileged communication and its attached work product. More importantly, neither McDermott nor Messrs. Ryan and Ransom informed us that McDermott already possessed the documents in the Index. Consistent with applicable rules of professional conduct, 9. g, Rule of-Professional Conduct McDerr'nott must undertake the following actions in connection with (1) privileged documents andfor work product listed in the Index and (2) any other KGL privileged and con?dential document or associated work product in your client?s possession, custody, or control (the ?Privileged Documents?): Crowell s. Moring LLP . .. Washington, or . New York . San Francisco .- Los Angeles . Orange County . Anchorage . London . Brussels Enu Mainigi, Esq}. April 27,2012 Page 3 6 immediately return to our ?rm all Privileged Documents; I provide our firm with the electronic version, if any, of each Privileged Docuinent in the native format in which it was received by your including all metadata), and thereafter destroy- all eleCtronic copies of the Privileged Documents; 0 destroy all hard cepy versions of-the Privileged Decum'ents; and cease any further review or dissemination-of the Privileged Documents. in addition, and pursuant to the same D.C. Rule of Professional Conduct 1 .15(c) and our own-obligations to protect further use and distribution of KGL materials, werequest a full accounting of McDermott?s possession, review, use, and external distribution of the Privileged Documents. should provide our ?rm the; following information regarding the Privileged Documents: 0 the date(s) McDermott received the Privileged Documents; - the'person(s) who furnished McDermott the Privileged Documents; I the'manner and method of transmission by whichthe Privileged Documents were Sent to McDermott; 0 an explanation for McDermott?s failure to notify me and/or Crowell-& 'Moring that it was holding the Privileged Documents; 0 a list of all personsextemal to McDermott to whom McDemio'tt sent the Privileged Documents, including dates of delivery; 0 a complete list of all Privileged Documents that-McDermott has obtained other'than those listed-in the Index; ?and a the individual McDermott lawyers involved in .the receipt,_review, use, and distribution of the Privileged Documents. Please respond to the above requests by -close of business Friday, May 4, 2012. If you do not represent in connection with the retention and traf?cking in privileged and con?dential property, please let us know immediately and, we will redirect our communication to? McDermott' or other named Counsel representing that ?rm in'con?nection with its condim?t O?utlined herein. vidi C. Hammond Enclosures Crowell a Moring LLP . Washington, DC -. New York . San Francisco . Los Angales . Orange County . Anchorage London . Brussels Enclosure 1 Edward MacAllister Page 1 of1 From: dominic Baragona [dbaragona@gmail.com] Sent: Sunday, May 29, 2011 10:47 PM To: 'MacDon?ald, Don' Cc: 'Andre?v Cochran'; Steve Perl'es; Edward MacAlIister Subject: KGL?lran Documents Ill Attachments: KGL-lran arty-client communica?omfrom Agilitysupplement (Binder Part ll).pdf; atty- client communicationsjrom Agil'rty (Binder II Part 4/17/2012 BARAGONA 000280 Enclosure 2 ?31: l' REDACTED VERSION Index of ?ngeywc?gg Emma 1. l7 Mamh 2019, Email from Scott Bavorly, KGL ln-liousa attorney regarding . .mnwsa?ms With mac comael David Hammond 7- .7 run-war ulna 0-.-. 2. 28 June 2010: Email from A. A?fy to D. Hammond at CIOWBII a; Moxing, LLP (outside counsel) provi ding responses to questions. 3. 99 Jung 2019;}ng ??oglb. Hammond iarcsponse toAAtifyooa?m?ng -- 5. 28 February 2011, from David Hammond, Crowell Mating, Soott'lg?yc?y; oireotoorr gouvemmct' Itogc?a?is; mgF-?ieicgapal?g A 6. 21 March 201 1, Email ?ora David Hammond to Tim Ryan and Dan Poling, Geosral Counsel for DLA, attaching an alticlc (which is not attached) Al Nahar Daily Newspaper on March 20, 2011, with a picture of the modi?cation and Stop Work Onler. Their response is simply, ?Interesting.? Hammond fo that response to Ali Dashti, Soon an?l Mohel Saab. Hammoml atom -- 7. 23 March 2011: Email from W. Kcup to D. Hammond forwarding thsSoot't Wilson letter ?om an ?anonymous source.? a. 12ml spars: Min-Mia ADhu mailing an attached lettcr?om Qaqqola-la??ryar?? The of the Iran ,g?ildrcilas fom'"ai1 "SoofiW?so? Emails. Contains 9. Rams tail} re: . mun-AHA.- ?ail-Ah. at Ann-o Ian. 5.1.4 -- on.- . 'r - - . WDC99 10031024009900.0021 BARAGONA 000288 Enclosure . .J .1 . .AFrOm: Ryan, Stephen [SRyan@mwe.com] . Sent: Friday, September 16, 2011 9:49 AM To: ?Hanunond.Davw Cc: - Ransom. David; Zatz. Clifford Subject: . Re: No Coffee Receipt acknowledged. Steve Ryan - Original Message I From: David [mailtozDHammond@crowell.com] Sent: Thursday, September 15, 2611 67:64 PM To: Ryan, Stephen Cc: Ransom, David; Zatz, Clifford Subject; RE: No Coffee Stede; we fully understand and respect the.difference between yoUr firm and ydur client. On that note, we'have recently obtained evidence that Agility possesses stolen KGL documents and that these dOCUments include privileged, attorney? client communications and attorney lawyer, Mr. Ahmed Afify. Please arrange for to have privileged communications, By this e-mail, your firm a or alter any paper or elect on your client's or your fi floppy disks, backup tapes) relating to the taking, pos 'will consider any failure KGL retains and does not we matter. We-remain availabl Sincerely, David David C. Hammond Crowell Moring LLP work product sent between our firm and in- house all copies of these stolen documents, including the delivered to us immediately. nd your client are on notice not to destroy, conceal ronic files and other data generated by and/or stored rm's computers and-storage media hard disks, or any other electronic data, such as voice mail, session, and/or use of the stolen KGL documents KGL 0 follow this direction as spoliation of evidence ive any and all rights it may have regarding this to disCuss this matter. 1661 washington,.D.c. 26691 Tel: (262) 624:2516 ?Fax: (292) 628-5116 dhammond@crowe11.com From: Ryan, Stephen [mailtozSRyan@mwe.com] Sent: Friday, july 15, 2911 3:56 PM Toz-Hammond, David Cc: Ransom, David; Behrends, Paul Subject: RE: No Coffee David, Thanks for your most interesting email, including sending me my own LDA reports. As we represent clients with very different interests, when you requested we meet, I asked for and received instructions from my client who concluded it does not believe it would be currently productive to have.any meeting or discussions with KGL's lawyers. Now that I have seen the over the top allegations you make in your email, I am still duty bound to follow my client's instructions, and this note is intended as a polite reply not an ongoing dialogue or answer of your interrogatories. I'will not respond point by point to your letter. By not reSponding, I am not lending credence to any of the allegations you have made. I have heard from various individuals on the Hill that as recently as this week that and personnel have been discussing MNE's representation. I have always understood that is not Crowell and Moring. It is up to you what you choose to say about me, MWE, and my client, and we will respond in kind as we learn of such matters. - Taking juSt one point from your letter, I believe you and your firm should be very cautious. Your note raises issues about the accuracy of information related to KGL's ties to Iran, and documents of your client that you claim have both been used without their authorization. You also claim these documents may have been altered by someone to make KGL look even worse in public policy circles than it actually is. It may be an obstruction of justice or a false statements case under US law if anyone amended documents with the intent to deceive government authorities. It may also be a crime to make such changes, and then blame others in commUnications to the govt. for such activates. I cannot conceive that Crowell and?Moring_or you would suggest MNE or I would do this, or that you would carelessly repeat a client's Claim that its document have been altered with out proof of this. Law enforcement agencies are adept at sorting out who has misrepresented or altered such materials. Careless allegations about any conduct, this included,. if dirECted against my client, me or my firm will be responded to equally forcefully. You can send follow-up emails or snail mail, but I am unlikely to be able to respond per my client's instructions. I am literally on my way to an overseas destination (unreleased to this matter), and returning in about 16 days. I may never be in a position to respond further. I return on July 25. As a c0urtesy, I will expect you to hold any next communication yOU'feel campelled to make until that time. Stephen M. Ryan McDermott Will 8 Emery LCP 689 Thirteenth Street, N.w. Washington, DC 20985?3696 sryan@mwe.com (P) 262.756.8333 (F) 202.756.8887 IRS Circular 236,0isc105ure: To comply with requirements imposed by the IRS, we inform you.that any U.S. federal tax advice contained herein (including any attachments), unless specifically stated otherwise, is not-intended or written to. be_used, and cannot be used, for aVoiding-penalties under the Internal Revenue Code or (ii) promoting, marketing or retommehding to another party any transaction or matter herein. This message is a PRIVATE communication. This message and all attachments are a private communication sent by a law fi_rm and may be confidential or protected by privilege. If you are not the intended recipient, y0u are hereby notified that any disclosure, copying, distribution- or use of the information contained in or attaChed to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this mesSage, and then delete it from your syStem Thank you. Please visit for more information about-our Firm. Original From: Hammond, David [mailtozDHammond@crowell.com] 1 Sent: Wednesday, July 13, 2611 8:34 PM - To: Ryan, Stephen Cc: RanSOm,-David; Behrends, Paul Subject: Fw: No Coffee Steve, Given our past work, we-wanted to discuss a potedtially sensitive matter with you and-do so informally. Unfortunately, we have not heard?back from you to 3 reschedule our discussion over-coffee. You may be tied up with other concerns, so we will raise this matter by e-mail? Attached are lobbying registrations reporting that you and -David RanSOm are lobbying on behalf of Agility on the "Implementation of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2616? As you may know, we represent Kuwait 8 Gulf Link Transport Company KGL is a CompetitOr- of Agility that is performing a COntract with the DefenSe Logistics Agency th_at replaces Agility' 5 warehousing Operations in Kowait after Agility was indicted and suspended from federal contracting for alleged i procurement fraud We know that individuals have been lobbying Congress and providing DLA and other agencies with information alleging that KGL conducts business with Iranian entities that either violates or may violate CISADA (KGL denies these allegations, and has found them to be unsubstantiated). Ms. Pam Baragona, whose family sued KGL, stated in a June 22, 2011, Internet radio broadcast that a man provided her with three or four white binders containing a thousand KGL documents relating to these allegations. According to her broadcast, a staffer in Rep. Issais office provided her with the telephOne number for this Unnamed man, which suggests that the unnamed man could be a registered lobbyist.- Ms. Baragona said that this man works in a Washington, DC, office building with 12th flOOr recEption area centaining-nice art work, and where the firm occupies the entire building. The meeting where Ms. Baragona Obtained the documents tdok place in a large conference room adjacent to this-reception area. This is a? close description of your firm's office and reception area. I-also recall that your firm used white binders during our last work together. An archive-copy of r-r- rm .. Ms. Baragona?s broadcast is available 'In additidn, when we asked if you wanted to have coffee without raising any topic, you'wanted David Ransom to attend, who is registered with you to lobby on the topic referenced abOVe. If these are just coincidences, we will apologize for raising this matter (and will buy you a beer), but we wodld like to-know if you-or someone in your firm provided the their legal counsel who accompanied them to this meeting, with the KGL documents. If so, then we would like to talk with you as soon as possible in an effort to resolve this matter informally. We have reason to believe that some of the KGL documents, which were taken without authority, contain confidential trade secrets or other confidential information that could cause KGL competitive harm. They also may contain falsified documents. If your firm does have these and/or other KGL documents, we request that your firm preserve them until their disposition and/or inspection can be addressed. Hopefully a quiek response can put this to rest, but we kindly request a response by COB this Friday. Thank you.in advance for your understanding and we look forward to talking with you and/or David Ransom. Best regards, DaVid David C. Hammond Crowell Moring LLP 1661 Ave., N.w. Washington, D.C. 28661 Tel: (292) 624?2519 Fax: (292) 628-5116 dhammond@crowell.com Original Fromz'Behrends, Paul Sent: Monday, July 11, 2911 8:27 PM To: Hammond, David; ?5ryan@mwe.com? Cc: 'dransom@mwe.com' Subject: Re: No Coffee Steve, Any chance we can catch up this week? Iiam in NYC Wednesday evening/Thursday I am around. Best, Paul Original Message I From: Hammond, David Sent: Thursday, July 67, 2011 63:27 PM To: Ryan, Stephen Behrends, Paul Cc: Ransom, David Subject: RE: No Coffee Steve, When are you available to talk? Thanks. Sincerely, David David C. Hammond Crowell Moring LLP 1061 Ave., N.w, washington, D.C. 20691 'Tel: (262) 624~2510 Fax: (262) 628-5116 dhammond@crowell.com Original From: Ryan, Stephen Sent: Tuesday, June 28, 2611 11:59 AM To: Behrends, Paul; Hammond, David Cc: Ransom, David Subject: RE: No Coffee something has come up that will make it impossible to meet today. I hope to contact you after the July 4 week to reschedule. Stephen M. Ryan McDermott Will Emery LLP 699 Thirteenth Street, N.w, Washington, DC 29995-3996 sryan@mwe.com (P) 292.756.8333 (F) 292.756.8987 IRS Circular 239 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U. 5. federal tax advice contained herein (including any .attachments), unless specifically stated otherwise, is not intended or written to be Used, and cannot be used, for the pUrposeS of avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter herein. This message is a PRIVATE communication. This message and all attachments are a private communication sent by a law firm and may be confidential or protected by privilege. If you are not the intended redipient. you are hereby notified that any disclosure, copying, distribution -or use of the information contained in or attached to this message is strictly prOhibited. Please notify the sendEr of the delivery error by replying to this message, and then delete it from your system. Thank you. Please visit for more information about our Firm. Original From: Behrends, Paul [mailto: PBehrends@crowell. com] Sent: Monday, June 27., 2911 11: 31 AM To: Ryan, Stephen; Hammond, David CC: Ransom, David Subject: Re: Coffee 5pm tomorrow works for us. How about the Starbucks near 11th and St? Original.Message From: Ryan, Stephen Sent: Monday, June 27, 2911 11:24 AM To: Behrends, Paul; Hammond, David Cc: Ransom, David Subject: RE: Coffee? how abdut My morning is full. Can also do 5 pm. Stephen M. Ryan McDermott Will Emery LLP 699 Thirteenth Street, N.w. Washington, DC 29995?3996 Sryan@mwe;com (P) 202 756.8333 262.756.86873 - . .IRS Circular 236 DisclOsure: To comply with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained herein (including any attachments), unl?Ss Specifically stated otherwise, is not intended Or written to be used, and cannot be us?d, for the pUrposes of avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another ,party-any transaction or matter herein. This message is a PRIVATE'communication. This message and all attachments are a private communication sent by a law firm and may be cdnfidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or_use of the information contained in or attached to this message is strictly prohibited. Please notify the'sender of the delivery error by replying to this message, and then delete it from y0ur system. Thank'you. Riease visit for more information about our Firm. Original From: Behrends, Paul Sent: Monday, June 27, 2911 11:22 AM To: Ryan, Stephen; Hammond, David Subject: Re: Coffee How about 8 or 0836 tomorrow morning. what firepoweri? Original Message From: Ryan, Stephen Sent: Monday, June 27, 2011 11:16 AM To: Behrends, Paul; Hammond, David Subject: RE: coffee has to be tomorrow or wednesday then. Dave Ransom will join me so I am not overwhelmed by the double barrel firepower of you two. Stephen M. Ryan McDermott will Emery.LLP see Thirteenth Street, N.w. Washington, DC 26805r3696 sryan@mwe.com (P) 262.756.8333 (F) 202.756.8687 IRS Circular 236 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U.S. federal-tax advice contained herein (including any attachments), unless specifically stated otherwise, is not intended or written to be used, and cannothe used, fOr the-purposes of avoiding penalties Under the Internal Revenue Code or (ii) promoting, marketing or recommending to another 1 party any transaction.or matter herein. This message is.a PRIVATE communiCation. This message and all.attathments are a private cammunication sent-by a 1aw_firm and may be confidential or protected by privilege. If you are not the intended recipient, you are.hereby notified that any diSClosure, copying, distributiOn or use of the information contained in or attached to this message is strictly prohibited.'Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you. Please visit for more information about our Firm. Original Message??-?- From: Behrends, Paul Sent: Monday, June 27, 2611 11:98 AM To: Ryan, Stephen; Hammond, David Subject: Re: Coffee In person wbuld be better - we will buy the coffee! Original Message-ia~-- From: Ryan, Stephen [mailtozSRyan@mwe.com] Sent: Monday, June.27, 2911'1ez47 AM To: Behrends, Paul; David Subject: RE: Coffee phone call? Stephen M. Ryan McDermott Will Emery LLP 696 Thirteenth Washington, DC 20665-3696 sryan@mwe.com (P) 202.75618333 (F) 202.756;8687 IRS Circular 236 Disclosure: To comply with requirements imposed by.the IRS, we inform you that any U.S. federal tax advice contained-herein (including any 8 attachments), unless specifically stated otherwise, is not intended or written to be used, and cannot'be used, for the purposes of avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing Or recommending to another party any tranSaction or matter herein. This message is a PRIVATE communication. This message and all attachments are a private communication sent by a law firm and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information'contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it frOm your system. Thank you. Please visit for mOre information about our Firm. Original From: Behrends, Paul Sent: Monday, June 27, 2611 10:41 AM To: Ryan, Stephen; Hammond, David Subject: Coffee Steve, Do you have minute for coffee with David and I this morning? Best, Paul IRS Circular 236 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained herein (including any attachments), Unless specifically stated otherwise, is not intended or written to be used, and cannot be used, for the purposes of avoiding penalties under the Internal Revenue Code or (ii) promoting,-marketing or recommending to another party any transaction or matter herein. This message is a PRIVILEGED AND CONFIDENTIAL communication._This message and all attachments are a private communication sent by a law firm'and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you. Please visit for more information about our Firm. Exhibit 6 Timothy J. Nieman a Reply to Harrisburg Off: ee FILENOI 12384/1 October 5, 2015 Re: Kuwait Gulf Link Transport Co. et al. v. John Doe et al., Cumberland No. 12?1820 (Civil) Cumberland County Court Administrator?s VIA COURIER Of?ce - Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Dear Sir or Madam: Enclosed please ?nd in connection with the above~referenced matter, one original and ?ve (5) copies of Plaintiffs? Brief in Support of Motion to Apply Pilchesky and Compel Disclosure of John Does? Identities. Kindly return a time-stamped copy via our courier. Should you have any questions or comments or require anything further, please do not hesitate to contact me. Thank you for your attention to this matter. Very truly yours, RHOADS SINON LLP Timothy . Nieman Enclosures cc: Counsel of Record One South Market Square, 12th Floor P.O. Box 1146 - Harrisburg, PA 17108-1145 - ph: 717.233.5731 29 Dowlin Forge Road Exton, PA 19341 0 ph: 610.423.4200 0 fax: 510.423.4201 999411.]. 7. IN THE COURT OF CONIMON PLEAS CUMBERLAND COUNTY, KUWAIT GULF LINK TRANSPORT COMPANY, 32? alQ Plaintiffs, - v. No. 2012-1820-CIVIL TERM JOHN DOE Scott Wilson), et al. Defendants. BRIEF IN SUPPORT OF MOTION TO APPLY PILCHESKY AND COMPEL DISCLOSURE OF JOHN IDENTITIES ?gs INTRODUCTION 1 PROCEDURAL BACKGROUND 5 FACTUAL BACKGROUND 6 1. Scott Wilson and defendants d1a?ed, signed, and sent the defamatory Wilson Letters to DLA and others. 6 - 2. A CISADA violation requires knowingly engaging in speci?c conduct. 8 3. The Wilson Letters accused KGL of violating CISADA by TABLE OF CONTENTS approving the lease of a cargo ship to Valfajr and submitting false CISADA certi?cations. 9 4. KGL sold its shares in CSC ten months before the Wilson Letters 11 5. KGL owned only a minority share of RAKS and agreed to transfer its interest months before the Wilson Letters . 12 6. RAKS refused to renew the charter of the Awa? and the Merjan to alfaj because Valfajr was sanctioned and was in breach. 12 7. RAKS refused to renew the Merjan charter to Bright Ship. 13 Simatech?s sublet of the Merjan to Great Ocean. 15? 9. US. Government of?ces ?nd no evidence to substantiate a CISADA violation by KGL. . . 16 10. Defendants sent the Wilson Letters after other efforts to retain the DDKS contract failed. 18 11. The Wilson Letters immediately caused DLA to refer KGL for criminal investigation 23 1.2. Defendants continued to distribute the Wilson Letters and the falsi?ed KGL e-mails after being warned of their falsity. 24 LEGAL STANDARD AND STANDARD OF REVIEW 27 I. FACIE CASE EXCEEDS THE REQUISITE SHOWING 28 A. The Wilson Letters and falsi?ed e- -mai]s are of a defamatory chaiacter 28 1-. Defendants waived anyjudicial proceedings privilege. 29 2. Thejudicial proceedings privilege does not apply. 30 3. The Wilson Letters are not protected opinions. 35 B. - The Wilson Letters are false. 38 1. The Wilson Letters accused KGL of violating CISADA and falsely eeitifying compliance with CISADA to the U. S. Government 38 2. KGL did not violate CISADA and defendants have presented no evidence to the contrary. 39 Plaintiffs did not approve or intend to permit a lease of the Merjan to Valfajr or one of its af?liates 4] C. Defendants published the defamatory statements to other than the named recipients of the defamation. 43 D. The Wilson Letters and falsified e-mails applied to plaintiffs 44 E. The recipients Of the defamatory statements understood the conununications as intended to apply to plaintiffs. 45 F. The recipients of the Wilson Letters and falsi?ed e-mails also understood the communications? defamatory meaning. 45 G. I Doe?s and defendants? defamatory publications caused plaintiffs harm. 46 ll. PLAINTIFFS PROFFERED AN AMPLE AFFIDAVIT OF GOOD FAITH AND 52 THE EQUITIES BALANCE IN FAVOR 56 CONCLUSION 61 TABLE OF AUTHORITIES Page(s) Cases Agility Def Gov Servs. v. US. Dep ?t ofDef, Cir.) 18 Agriss v. Roadway Express, Inc., 483 A.2d 456 (Pa. Super. Ct. 1984) 4,34, 50 In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir. 201 1) 27 Beverly Eniers., Inc. v. rump, 182 F.3d 183 (3d Cir. 1999) 51 Boeheno v. Gibson, 860 A.2d 67 (Pa. 2004) 30, 31, 34 Brinich v. Jencko, 757 A.2d 388 (Pa. Super. Ct. 2000) 36, 46, 48, 51 Brody v. Mon-ialbano, 87 Cal. App. 3d 725 (1978) 33 Cosmos v. Bloomingdales Bros, Inc., . 660 A.2d 83 (Pa. Super. Ct. 1995) 53 ?Deklinski v. 30 Pa. D. C.4th 435 (Ct. Com. P1. 1996) 5 2 Doe v. 2Tl1eMart.com Ina, 140 F. Supp. 2d 1088 (WD. Wash. 2001) 53 Doe v. Kohn, Nasi cf: Graf P. C., Supp. 1310 (ED. Pa. 1994) 34 Feinaugle 12. Pittsburgh Lake Erie RR. Co, 595 F. Supp. 316 (WD. Pa. 1983) 53 Garrison v. Louisiana, 379 US. 64 (1964) 39 Green v. Mizner, 692 A.2d 169 (Pa. Super. Ct. 1997) 3 0, 37' Grosso v. Love, 667 A.2d 43 (Pa. Commw. Ct. 1995) 29 Herbert v. Lando, I 441- U.S. 153 (1979). 27,43, 53, 58 Johnson v. Res. for Human Den, Inc, 860 F. Supp. 218 (ED. Pa. 1994) 34 Joseph v. Scranton Times, L.P., 89 A.3d 251 (Pa. Super. Ct. 2014), reargumeni denied (Pa. Super. Ct. May 13, 20.14), appeal granted, 105 A.3d 655 (Pa. 2014) 46, 47, 48 Kiiuskie v. Corbman, 682 A.2d 378 (Pa. Super. Ct. 1996) 29 Krajewski v. Gusojj?, . 53 AM 793 (Pa. Super. Ct. 2012) 3 5 Kuwait Gulf Link Transp. Co. v. Doc, 92 A.3d 41 (Pa. Super. Ct. 2014) 5,57 Lawrence v. City ofBeihlehem, . N0. CIV. A. 1999 WL 124471 (ED. Pa. Mar. 1, 1999) 35 Lockheed Info. Mgmi. Sys. Co. v. Maximus, Inc, 524 4205 (Va. 2000) 32 Manon v. (Experr Window Cleaning State Workers?lns. and); 835 A.2d 420 (Pa. Commw. Ct. 2003) 47 Marina v. Fava, . 915 A.2d 121 (Pa. Super. Ct. 2006) 32 Masson v. New Yorker Magazine, Inc, . 501 U.S.. 496 (1991) 39 Meivin v. Doe, 836 A.2d 42 (Pa. 2003) 27,53 Milkovich v. Lorain Journal Ca, 497 US. 1 (1990) 4 ,35, 36 Miliincr v. Erick, 709 A.2d 417 (Pa. Super. Ct. 1998) 33 Monigomeiy v, Dennison, 69 A.2d. 520 (Pa. 1949) 34, 59 Parana v. Connor, 641 A201 607 (Pa. Super. Ct. 1994) 3 6 Pawlowski 877707470, 588 A.2d 36 (Pa-Super. Ct. 1991) . 31,32, 34 Phila. Newspapers, Inc. v. Hepps, 767 (1986) 38 Pilchesky v. GaIelli, . . 12 A.3d 430 (Pa. Super. Ct. 2011) Palito v. AOL Time Warner, 7770., No. OSCV3218, 2004 WL 3768897 (Ct. Com. Pl. Jan. 28, 2004) 52 P0111770 v. Dishong, 98 A.3d 613 (Pa. Super. Ct. 2014) 30, 34 Past 12. Mendel, 507 A.2d 351 (Pa. 1986) 30, 31, 32,34 Reed v. Pray, . 53 A.3d 134 (Pa. Commw. Ct. 2012) 33 Scharirze v. Addis, N0. 106 MAP 2014, 2015 WL 4920770 (Pa. Aug. 17, 2015) 30, 32, 33 Siiver v. Mendel, 894 F.2d 598 (3d Cir. 1990) 34 Sprague v. A777. Ba. Ass? 77, 276 F. Supp 2d 365 (B. D. Pa. 2003) 3 Takach v. BM Root 420 A.2d 1084 (Pa. Super. Ct. 1980) 47 Taylor v. Swarmrout, 445 F. Supp. 2d 98 (D. Mass. 2006) 49 United Srates 17 Pub Warehousing N0. 09- CR- 490, 2011 WL 1126333 (N..D Ga. Mal. 28,2011) 18 Weaver 1). Lancaster Newspapers, 1770., . 926 A.2d 899 (Pa. 2007) 53,60 Statutes Comprehensive Iran Sanctions, Accountability, andiDivestment Act of2010 vi 18 USC. 1001 10, 28, 56 P1115. L. No. 104-172, 6(5) . 8 Pub. L. No. 1 1 1495, 102 passim Other Authorities I 31 C.F.R. 501, App. A, Sec. 11 9 48 C.F.R. 94051 9,18, 19 75 Fed._Reg. 67025 (Sept. 23, 2010Civ. P. 1002 52 Pa. R. Civ. P. 1023.1 . 52 Pa. R. Civ. P. 1030(a) 29 Pa. R. Civ. P. 1032(aj 29 Pa. R. ?112.13. 10353 28 vii NOW COME Plaintiffs Kuwait Ciulf Link Transport Company, KGL Logistics, and KGL Transportation Company KSCC (collectively, ?plaintiffs? or by and through their undersigned. counsel, and ?le this brief in support of their motion to compel defendants Agility Public Warehousing Company K.S.C., Agility DGS Logistics Services Company K.S.C.C., PWC Transport Company W.L.L. (collectively, ?Kuwaiti defendants?), Agility DGS Holdings, Inc., Agility International, Inc, and Agility Defense Government Services, Inc. (collectively, defendants,? and together with Kuwaiti defendants, ?defendants?) to reveal the true and full identities of the ?John Doe? defendants. In support of this filing, plaintiffs state as follows: INTRODUCTION ?Everybody knows that corruption thrives in secret places, and avoids public places, and we believe it a fair presumption that secrecy means impropriety.? Woodrow Wilson On March 22 and 24, 20] 1, an employee of defendant PWC, acting within the sc0pe of his employment, e-mailed two letters to the parties? mutual customer, the Defense Logistics Agency among others. He accused plaintiff KGL of: ?a serious misrepresentation and violation of US law?; it ?violation of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 - ?flagrant misrepresentations to the US Congress and the US Department of Defense?; I ?contraven[ing] the US-law in its attempt to obtain US government contracts?; - ?violation of the Iran Sanctions Act?; - ?deception. . .in a clear violation of US law?; - ?knowingly hiding? its violation of and other international sanctions law?; 0 ?false certifications?; and I ?violations under 18 U.S.C. 1001.? KGL Mot. Exs. 1, 4. There is no dispute that allegations of this sort are defamatory per se. They accuse KGL of both criminal acts and conduct that, if true, would render KGL unfit to do business as a US. government contractor. - The letters were signed with the pseudonym ?Scott Wilson.? Wilson attached internal KGL e-mails purporting to show that KGL executives had approved the lease ofthe cargo ship Merjan to a sanctioned Iranian company, Valfajr. He described the emails as ?compelling evidence that KGL continues to do business with Iranian entities, in violation of Wilson?s purpose was undeniably to do harm to KGL. indeed, he brazenly speci?ed the harm he hoped to cause: should be forthwith disquali?ed from any existing US contract awards and barred from any future US contract awards.? Stated differently, the parties? customer should eliminate as defendants? competitor for lucrative government contracts, including the multi?million?dollar DDKIS warehouse contract from which defendants had been disquali?ed by a fraud indictment. A majority of the Superior Court called this ?political speech?; the dissenting judge characterized it as ?more akin to Gimbels versus Macy?s." Regardless, this Court must now apply Pilehesky. it must determine whether plaintiffs have made out a primafacie case of defamation and demonstrated the need to unmask the defamer, then ?balance the defendant?s First Amendment rights against the strength of the plaintiff?s prfmafacie case." Pi'lcheslgi v. Gatelli, 12 A.3d 430, 445 (Pa. Super. Ct. 20l Only a ?modest amount of evidence,? interpreted in. the light-most favorable to plaintiffs, is required of plaintiffs under Pilehesky. They must present only such evidence as would survive a motion for summaryjudgment. Id. at 443. But plaintiffs demonstrate much more below. The evidence shows the fundamental falsehood on which Wilson?s houseof cards topples: KGL did not approve the lease of the Meij'an to a sanctioned Iranian entity as Wilson alleged. Nothing in the business Wilson condemns, moreover, would violate The evidence also shows that the emails Wilson?s accusations relied on were falsified, inserting Valfajr e-mail addresses and references to Valfajr where none existed, and replacing innocuous references to ?broker? with ?Valfajr.? Some of the e?mails were as recent as two days old; Wilson, could have had little time for due diligence abbut their authenticity. evidence also shows that Wilson and defendants? agents continued to publish their defamatory allegations after being put on notice that the e-mails had been altered and were false. Even today, more than four years later, defendants admit that they ?lack knowledge? about whether the e-mails are authentic. Wilson did not succeed in ousting KGL from its gdvernmentcontracts. But KGL did suffer compensable harm. The Wilson Letters resulted in a criminal investigation requiredKGL to spend considerable effort and money to defend its good name and its ?responsible government contractor? status with its customers and the Congress; damaged its reputation in the eyes of at least one of its other competitors, who used the falsified e-mails against KGL in two bid protests; caused a KGL executive to be detained-for questioning on arrival at an American airport; and subjected KGL to-adverse publicity in the news media. ?[Ainy showing, no matter how small, of reputational loss is sufficient to deliver the issue of compensatory damages to thejury.? Spragne v. Am. Bar/1.9.9 276 F. Supp. 2d 365, 370 (ED. Pa. 2003). KGL need not show economic harm; it may recover for any injury done to its reputation. 'Agris's v. Roadway Express, Inc, 483 A.2d 456, 474 (Pa. Super. Ct. 1984). In fact, harm may be presumed in the case iof actual malice?evidence of which is not in control, and need not be offered, on a Prickles/(y motion. ?icker-Icy, l2 A.3d. at 443. Nevertheless, evidence of such actual malice exists and must be interpreted in the light most favorable to plaintiffs. it is no answer for defendants to contend that Wilson was merely stating an ?opinion.? Wilson not only accused of. criminal acts and lack of business integrity, but insisted that he had attached ?compelling evidence" and ?proof? of his charges. In citing a violation of CISADA, moreover, he was necessarily implying the underlying factual prerequisites to such a violation: knowingly providing goods, services, or technologies that would materially contribute to lran?s acquisition or development of chemical, biological, nuclear, or conventional weapons, or re?ned petroleum products. As the United States Supreme Court has written, ?This is not the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining?.? that the defendant committed a crime. .Mr'llcovr'cb v. Lorain Journal (30., 497 US l, 2] (1990). "The dispositive question in the present case then becomes whether a reasonable t'act?nder could conclude that the statements. . imply an assertion? that the defendant did so. 1d. The answer. to that question is clearly yes. Wilson?s statements are not protected by the judicial proceedings privilege. They were not made in the course of any ongoing, or even contemplated, judicial proceeding. The letters were sent to contracting officers and others outside the government with no law enforcement authority. Defendants? argument that the Wilson Letters were reporting a crime, moreover, directly contradicts their position that the Letters are true because they were not about unlawful conduct, but merely about business relationship with sanctioned lranian entities. evidence is more than suf?cient to make out a primafacr?e case of defamation. in balancing that evidence against Wilson?s First Amendment rights, this Court should consider that Wilson?s scheme to conceal defendants as the source of the Wilson Letters is iargely moot; that Wilson?s subjective knowledge of falsity or reckless disregard of the truth are at issue; that defendants insist that KGL must prove actual malice to prevail on its defamation claim; that the intended result of the Wilson Letters was economic bene?t to defendants; that defendants are liable in respondent superior only if KGL makes out a defamation case against Wilson; and that Wilson is at the hub ofthe entire discovery process in this litigation. in short, Wilson is not only a potential defendant, but also the most important fact witness at this stage of the case. This balance weighs heavily in favor of revealing Wilson?s true identity and his role in the Wilson Letters. PROCEDURAL BACKGROUND On May 21, 2013, this Court struck the defendants? Pilchesky objections to identifying Scott Wilson. It held that the Wilson Letters were commercial speech and that courts have ?typically protected anonymity under the First Amendment [only] when claimed in connection with literary, religious, or political speech.? See May 21, 2013 Mom. and Order (quoting Le?we v. Jos. A. Bank Clothiers, Inc, 577 F.3d 240, 248 (4th Cir. 2009)). Defendants appealed. On May 6, 2014, the Superior Court vacated this Court?s order, holding that the Wilson Letters were entitled to First Amendment protectiOn, although it was ?unable to determine whether or not the author [of the Wilson Letters] had an economic motivation for making the communication." Kuwait Tramp. Co. v. Doe, 92 A.3d 41, 50 (Pa. Super. Ct. 2014). The Superior Court also found that the Wilson Letters allege illegal conduct by KGL, namely a violation of OISADA. Id. at 43, 49. The case was remanded to this Court for application of Pilchesky. 1d. at 49. Since the appeal, defendants and the, Defense Logistics Agency have produced additional documents and information underscoring the merits of plaintiffs? claims and the need for Scott Wilson?s identity. Pursuant to the Court?s scheduling Order, plaintiffs ?led their Motion to Apply Pitches/92 and Compel the Disclosure of Scott Wilson?s and Other Does? identities, including 127 exhibits. The defendants ?led their Response to that motion and plaintiffs ?led their Reply, both with additional exhibitsi Thus, although discovery is not closed, the Court now has a suf?ciently?developed record on which to apply Pitches/6y. On October 8, 2015, the Court will hear oral argument on plaintiffs? Pilehesky motion. FACTUAL 1. Scott Wilson and defendants drafted, signed, and sent the defamatory Wilson Letters to DLA and others. On March 22 and 24, 2011, respectively, Scott Wilson and defendants e-mailed the Wilson Letters from Kuwait to a DLA contracting of?cer, Medard Kowalski, in New Cumberland, to another contracting officer at the US. Army Sustainment Command and to the Government Accountability Office?s ?Ethics Counsel? and ?Congressional Relations? of?ce. KGL Mot. Ex. 1;Ex. 4.2 Kowalski was the DLA contracting officer on the DDKS contract, a large warehouse, storage, and distribution facilities contract in Kuwait. Less than a month before the Letters, Kowalski and DLA had awarded the DDKS contract to KGL, to replace Agility, who To assist the Court, plaintiffs provide a timeline of events, Ex. 1, and a glossary of certain names and terms, Ex. 2. - Plaintiffs also reattach their List ofKey Material Facts and lnferences in Favor of Plaintiff, Ex. 3, from their Opposition Brief to defendant?s Motion for Summary Judgment. See KGL MSJ Opp?n BL, Ex. 1. 1 Plaintiffs incorporate herein all exhibits cited herein, including those cited by referencing to sections or pages in Plaintiffs? Opposition to the Motion for Summary Judgment, Plaintiffs? Motion to Appiy Pi/chesky and Compel Disclosure ofJohn D'oes? Identities, Plaintiffs? Reply In Support OfPlaintiffs? Motion To Apply Pitchesky And Response To New Matter, and Plaintiffs? Briefin Opposition to Defendants? Motion for Summary Judgment. had been performing under its own DDKS contract for the past five years. The con'tract?s estimated value was $180 million. See KGL Mot. Ex. 5. Similarly, the USASC contracting of?cer was then reviewing proposal for the ?Heavy Lift 7? trucking contract. KGL Motaddition, GAO was then deciding two bid protests involving KGL directly anddefendants indirectly. Inter-markets Global filed a protest against award of the DDKS contract and against the award of a largeDLA prime vendor food services contract. KGL Mot. Ex. 6. The two protests had one important fact in common?defendant PWC was the incumbent contractor on both. PWC would be required to transition the work to the new awardees unless the GAO bid protests delayed the transition thereby allowing defendants to continue - performance. Because KGL was the only company other than PWC with a warehouse in Kuwait large enough to meet needs, should KGL be disquali?ed as a result of bid protest, DLA would be forced to continue DDKS contract. Discovery to date provides clear evidence of economic interest in and material support of iMG?s protests. See KGL Mot. 1126. For example, using IMG as a ?front? to hide its own ecOnomic self-interest, PWC supplied IMG with documents, information, and legal arguments for use in protesting. Id. at Ex. 27 (Mar. 8, 2011 e?mail from Chairman Sultan to IMG identifying ?many possible grounds for a protest? and attaching a tailored write up on Commercial Ties to Iran? and ?Protest Comments? suggesting protest grounds). It even paid legal fees for protesting. Id. Ex. 26 (paying IMG outsidecounsel fees for the Prime Vendor Food Services protest). When plaintiffs alleged . in the Amended Complaint that ?[d]efendants, directly or indirectly, supported and/or assisted l'MG?s bid protest . . . PWC admitted only that ?it communicated with IMG regarding bid protest? and denied the rest of plaintiffs? averments. Am. Comp]. 1} 96; PWC Answer 1] 96. In this factual context, Scott Wilson and defendants sent their pseudonymous letters, and in this context, the Court is asked to apply Pilchesky and its balancing test. 2. A CISADA violation requires knowingly engaging in speci?c conduct. CISADA became effective July 1, 2010 and primarily amended the Iran Sanctions Act of 1996 (ISA). It does not prohibit all business with Iranian persons or entities. Rather, CISADA authorizes the-imposition of sanctions on any person?US. or foreign?who knowingly undertakes certain types of enumerated activities including providing Iran with any goods or services knowingthat such provision would contribute materially to the ability of Iran to acquire or develop nuclear weapons or related technologies. See Pub. L. No. 111?195, I 124 Stat. 1312, 1321 (2010). It also authorizes sanctions on any person?US. or foreign?that has exported, transferred, or otherwise provided to Iran any goods, services, technology, or other items knowing that the provision of such goods, services, technology, or other items would contribute materially to the ability of Iran to acquire or develop chemical, biological, or nuclear weapons or related technologies; or acquire or develop destabilizing numbers and types of advanced'conventional weapons. Id. CISADA amended the ISA to include certain sanctions one of which is a ban on US. government contracting: ?United States Government may not procure, orenter into any contract for the procurement of, any goods or services fromra sanctioned person.? Pub. L. No. 104- 172, CISADA also added?a requirement for ?a certi?cation from each person that is a prospective contractor that the person, and'any person owned or controlled by the person, does not engage in any activity for which sanctions may be imposed under section 5 [of ISA, as modi?ed by Pub. L, No. 111-195, 102(b)(1). This mandatory procurement prohibitionis unique to CISADA. It is not a sanction or remedy available under US. Treasury Department?s Of?ce of Foreign Assets Control sanctions and is not available under 8 federal procurement regulations even when a company is su5pended or debarred from federal contracting. See generally 31 501, App. A, Sec. 11 (listing responses to apparent violations of its regulations); 48 IC.F.R. 9.405-1 (allowing continuation of existing contracts). CISADA does not, however, impose sanctions on a U.S. or foreign person for the sanctionabie conduct of another unless the person both ?owns or controls the person? engaging in the sanctionable conduct and ?had actual knowledge or should have known?.oi the sanctionable conduct. Pub. L. No. 111-195, In other words, a shareholder cannot be subject to sanction under CISADA unless it ?OWns or controls? the entity that knowingly engaged in sanctionable conduct and the shareholder had actual knowledge or should have known of that conduct. Id. Sanctions only apply to those persons that the U.S. Department of State, as the agency with authority delegated by the President, af?rmatively determines has knowingly engaged in the prescribed activities described above. Pub. L. No. 111?195, 102(b)(3); see 75 Fed. Reg. 67025 (Sept. 23, 2010). All such persons are identi?ed on the State Department?s ?Sanctioned Entities List,? available at KGL is not and has never been on that list. 3. The Wilson Letters accused KGL of violating CISADA by approving the lease of a cargo ship to Valfajr and submitting false CISADA certi?cations. The Wilson Letters accused KGL of engaging in conduct prohibited by CISADA. KGL Mot. Exs. l, 4. The ?rst Wilson Letter stated in the introductory paragraph, have compelling evidence that KGL continues to do business with 'Iranian entities, in violation of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of2010 KGL Mot. Ex. 1. The second paragraph stated, ?Furthermore, CISADA mandates that government contractors, be they U.S. or foreign owned, must certify that they comply with all . sanctions against Iran.? 1d. The first Wilson Letter accused KGL of having made ?flagrant misrepresentations to . . . the US Department of Defense and contravened the US law in its attempt to obtain US government contracts.? 1d. The?second Wilson letter opened by citing to CISADA: ?As a follow up to 'my letter dated March 22, 2011, exposing the serious misrepresentations and violation of the Iran Sanctions Act, as amended a reference to CISADA, which amended the Iran Sanctions Act], I would like to draw your attention to another string of e?mails (see attached) which further the deception KGL management and its af?liates are currently resorting to in clear - violation ofU.S, law.? KGL Mot. Ex. 4. That letter stated, ?in addition to violation of the US Sanctions Act, KGL submitted ?false certi?cations? that ?constitute violations under 18 U.S.C. 1001 It concluded that KGL ?should be barred from doing any work for US Government Id. Attached to the Wilson Letters were copies of stolen, internal KGL e?mails, portions of which had been deliberately altered to create the false and misleading appearance that Chairman, Saeed Dashti, approved the charter3 of a cargo vessel, the Merjan, to a sanctioned Iranian company, Valfajr Shipping Company (?Valfajr?). KGL Mot. Ex. 1. in particular, the name ?valfajr? was inserted into these e-mails where it did not exist in the original e-mails. KGL Mot. Ex. 8. 'According to the Wilson Letters, these doctored and stolen e-mails, summarized in the body of the Wilson Letters, were ?compelling evidence? and ?further proof? of illegal CISADA Conduct. KGL Mot. Exs. 1, 4. Among them were internal KGL e?mails as recent as March 20, suggesting that Wilson had near-real-time access to computer system. 3 The term ?charter? means to lease a ship and the party leasing the ship is referred to as the ?charterer? or the ?charter party." Wilson?s accusations were wrong. KGL did not approve a lease of the Merjan to Valfajr and had no intention of chartering the ship to Vaifair or one of its affiliates, directly or indirectly. KGL Mot. Ex. 9, Dashti Dec]. 1] 13; KGL Reply Ex. 4, Rosenberg Dec]. 111] 17-31. KGL did not engage in illegal business with Iranian entities prohibited by CISADA as Wilson alleged. KGL Reply Ex. 4, Rosenberg Decl. 111146-47; KGL Mot. Ex. 9, Dashti Decl. 13; KGL Mot. Exs. 15, 16 KGL Reply Ex. 6 (Under Secretary of Defense letters re KGL allegations unsubstantiated). 4. KGL sold its shares in CSC ten months before the Wilson Letters. Wilson stated that has had a joint venture relationship with Valfajr Shipping, through its subsidiary Combined Shipping [Company andwith-Oasis Freight Services.?4 KGL Mot. Ex. 1. Not only was Wilson?s allegation outdated, but it was wrong in suggesting a violation of CSC is a Kuwaiti company. KGL formerly owned 51 - percent of its shares and Valfajr owned the other 49 percent. See KGL Reply Ex. 3, Feb. 19, 2015? Pls.? Supp. Resps. to Kuwaiti Defs.? First Set ofReqs. for Admiss. Interrogs. No. 2. After Valfajr was added to the SDN list, KGL entered into an agreement on March 15, 2010* more than one year before the Wilson Letters?to sell all of its shares in CSC to a non- sanctioned Kuwaiti citizen. The sale concluded on August 25, 2010. KGL Mot, note 4, Ex. 12. Because Valfajr owns less than 51 percent, CSC is not and has never been found to be a subsidiary or af?liate of Valfajr. This is consistent with enforcement guidance OFAC issued regarding minority ownership by a blocked person on the SDN List. See KGL Reply Ex. 14 (OFAC Guidance, Office of Foreign Assets Control: Guidance on Entities Owned by Persons 4 Wilson?s accusation about Oasis is factually wrong; KGL never had any joint venture relationship with Oasis or contracted with Oasis. RAKS did hire Oasis to supply the ships with water and spare parts, arrange for medical evacuation of crew members, and perform other services. There is no dispute that these services fall outside the type of activities sanctionable under CISADA. See KGL Reply 11 I96. 11 Whose Property And Interests In Property Are There is no diSpute that CSC to this day has never been sanctioned by the US. or any other country. 5. KGL owned only a minority share and agreed to transfer its interest months before the Wilson Letters. The Merjan and its sister ship, the Awafi, are cargo ships owned by RAK Shipping Company Ltd. a company organized under the laws of Ras al-Khaimah, United Arab Emirates At the time of the Wilson Letters, the percentage of ownership in RAKS was as follows: - Ras Al Kahimah Government - KGL Holdings and KGL Ports International . Saeed Dashti in his personal capacity . CSC See KGL Reply at note 6. Also at the time of the Wilson Letters, RAKS had five board members: I Saeed Dashti (Chairman of RAKS board and Chairman of KGL, representing shares held in his persona! capacity) 0 Allan Rosenberg (a KGL employee and, separately, the General Manager of RAKS) - Moghaddami Fard (Vice Chairman of the board and Managing Director of RAKS) - Nasar Bustami (representing the Ras Al Kahimah Government) - Capt. Hamzeh Keshavarz (representing CSC) Id. To remove Valfajr?s indirect ownerships in RAKS through CSC, KGL had agreed?in September of 2010, nearly six months before the Wilson Letters??to purchase shares in RAKS. That transfer required and won approval during annual meeting on May 14, 2011. Mot. EX. 12; KGL Reply Ex. 3 (KGL reSponse to interrogatory No. 2). 6. RAKS refused to renew the charter of the Awa? and the Merjan to .Valfajr because Valfajr was sanctioned and was in breach. RAKS originally chartered the Merjan and Awa? to Valfajr before Valfajr was added to the SDN List. KGL Reply at 27-29; Ex. 8. The charter of those ships to Valfajr beeame a 12 ?nightmare? and RAKS had toresort to legal threats to regain possession, which it ?nally did months a?er the lease term expired. 1d,; KGL Reply Ex. Rosenberg Decl. 1i 9 (describing the lease with Valfajr as a ?nightmare?). Based on that experience, the KGL?related board members of RAKS (Dashti and Rosenberg) and the board member representing the Ras al-Khaimah Government (Naser Bustami), agreed to ?break the chain? with Valfajr and not lease any ship to Valfajr or its affiliate. KGL Reply at 27-29. Indeed, the next lease of the Merjan was to Bright Ship, a non?sanctioned company that RAKS understood was not related to Valfajr or IRISL. KGL Reply Ex. 4, Rosenberg Decl. ii 35 and Attach. 6 at KGL003347. For a more detailed explanation of the performance problems and contractual disputes between RAKS and Valfair, see KGL Reply at 27-29. 7. RAKS refused to renew the Merjan charter to Bright Ship. After the ?nightmare? of chartering the ships to Valfajr, RAKS decided to charter the ships only at arm?s length, using Maersk Broker an internationally recognized ship broker and - one of the largest. KGL Reply at 29-30; Ex. 4, Rosenberg Decl.1 20. RAKS used Maersk Broker to negotiate the Bright Ship charter. Id. RAKS then experienced performance disputes with See KGL Reply at 30, Ex. 4, Attach. 10, Ex. 4, Rosenberg Dec]. 11 9. The KGL e-mails attached to the Wilson Letters re?ect communications among RAKS board members discussing the next charter of the Merjan after Bight Ship?s lease expired on March 25, 2011. KGL Mot. Ex. 10. The original, unaltered versions, however, show that while Fard was aggressively pushing the RAKS board to renew the Merjan charter with Bright Ship, the KGL-related board members, Dashti and Rosenberg, rejected Fard?s efforts. The majority of the RAKS board agreed with Dashti and Rosenberg. KGL Reply at 30-33. 13 For example, two days before the first Wilson Letter, Rosenberg told Fard, ?1 am still of the Opinion that we should avoid chartering to Bright Ship, who [is] showing blatant disregard for normal international shipping and business practices!? KGL Reply Ex. 4, Rosenberg Decl. 1]27 and Attach. 13, (emphasis added). On the same day, Fard e- mailed Dashti privately to complain about Rosenberg?s insistence on refusing to lease the Merjan to ?Valfajr? (apparently through Bright Ship), writing that ?He [Rosenberg] simply hates at Attach. 13, KGL008659 (emphasis added). Dashti replied, af?rming Rosenberg?s and the RAKS board?s position that ?we need to accept that a different charterer [other than Bright Ship] is to be selected.? Id. at KGL008658 (emphasis added). On March 21, 2011, one day before the ?rst Wilson Letter, Rosenberg instructed Maersk Broker to inform Fard again that the owners of the Merjan were no longer interested in extending the charter. KGL Reply Ex. 4, Rosenberg Decl. 28 and Attach. 10, KGLOOSSOB. On March 22, 2011, the same day defendants sent the ?rst Wilson. Letter, Rosenberg e-mailed ard (copying Dashti) and informed him that RAKS, through its broker, had informed Bright Ship that it was not interested in a continued charter with Bright Ship. KGL Reply Ex. 4, Rosenberg Beci. i] 29 and Attach. 11, KGL003803. In addition to performance disputes, it became apparent to Rosenberg that, notwithstanding the desire by the majority of the RAKS board (excluding Fard and Keshavarz) ?1 to ?break the chain? with Valfajr and IRISL, Valfajr was giving directions to the Captain of the Merjan, for the next port ofcall when Bright Ship had control ofthe Merjan. 1d. Attach. K614004105. This also led Rosenberg and the majority of the RAKS board not to renew the lease with Bright Ship. Id. KGL Reply Ex. 4, Rosenberg Decl. 14, 18; Attach. 9, KGL003830 is unacceptable that third parties are able to send instructions to the vessel 14 without the management?s know?ledge?). See also KGL Reply Ex. 4, Attach. 14, KGL Reply Ex. 4, Rosenberg Decl. 1] 30 (Rosenberg directing Captain of Merjan not to accept any cargo from Bright Ship because the ship would be under lease with new charterers). Thus, contrary to defendants? and Wilson?s accusation, neither KGL nor the majority of the RAKS board intended to renew the charter with Bright Ship or otherwise lease (or conceal any lease of) any RAKS vessel to or for Valfajr or to any other known IRISL af?liate. Id. Rosenberg Decl. 8, 14, 17, 31; KGL Mot. Bx. 9, Saeed Dashti Decl.; KGL Mot. Ex. 41?, Dr. Ali Dashti Dec]. 1] 6. Again using Maersk Broker to broker the lease, the RAKS board approved chartering the Merjan to Simatech, a non-sanctioned shipping company, under a Icharter agreement dated March 30, 2011. KGL Reply Ex. 4, Attach. 15, at KGL012905. 8. Simatech?s sublet ofthe Merjan to Great Ocean. Simatech subsequently sublet the Merjan to Great Ocean Shipping Services (?Great Ocean?), which it had the right to do under the charter party agreement. KGL Reply Ex. 4, Attach. 15, at KGL012905. Rosenberg first heard about the sublet on April 3, 2011 when Maersk Broker informed him of it. KGL Reply Ex. 4, Attach. 16, KGL009650. After receiving notice of the subcharter, Rosenberg sought assurances that Great Ocean was not affiliated with IRISL and, working through Maersk Broker, obtained a statement from Simatech that ?Great Ocean Shipping, Dubai . . . does not have any relations to Lines, Iran nor its af?liated companies.? Id; KGL Reply Ex. 4, Attach. 32, KGL018909. Rosenberg did not intend to or knowingly consent to sublease of the Merjan to an IRISL af?liate. See KGL Reply at 34-37; Ex. 4, Rosenberg Decl. 111] 34-44. However, long after the Wilson Letters, Siniatech?s representation turned out to be incorrect; Great Ocean was added to the SDN list two days before Great Ocean?s sublease expired and Simatech regained possession of the Merjan. KGL Reply at 34?37. Simatech?s decision to sublet the Merjan to Great Ocean is not attributable to KGL or 15 RAKS, and there is no evidence that the Merjan was used in violation of CISADA. Id; KGL Reply Ex. 4, Rosenberg Decl. 46. The contemporaneous documentation makes clear that RAKS did not know, and did not intend, that Simatech would subcharter the Merjan to Great Ocean. Id; see KGL Reply at 34-37. 9. US. Government of?ces ?nd no evidence to substantiate a CISADA violation by KGL. On multiple occasions after the Wilson Letters, U.S. government of?ces found no evidence to substantiate the allegations that KGL violated CISADA. See KGL Mot. Ex. 13 (Apr. 6, 2011 email from DLA Strategic Communications responding to Bloomberg News as to whether KGL could perform the work: ?The contractor was found responsible? in accordance with AR Subpart 9.104); KGL Mot. Ex, 14 at KGLOOSOSS (U.S. Army contracting officer Jake Adrian found ?no reliable evidence that KGL is currently af?liated with [sanctioned entity] and ?no evidence tojustify ?nding KGL KGL Mot. Exs. 6, 7 (GAO decisions in the bid protests, ?nding that the Wilson Letter e?mails reflected mere ?speculation? of a CISADA violation, and were insuf?cient to ?rais[e] a serious concern that the contracting of?cer unreasonably failed to consider available relevant information or otherwise violated statute or regulation?), KGL Mot. Ex. 6 at On May 30, 2011, the Under Secretary of Defense Ashton Carter responded to a letter from U.S. Senator Claire McCaskill regarding her concern that KGL Transport ?may be violating the Iran Sanctions Act or other U.S. laws while holding defense contracts.? KGL Mot. Ex. 15. Under Secretary Carter told Senator McCaskill that, ?in coordination with the Department of State, we have found no substantiated information - to include reported business . links to the Islamic Republic of Iran Shipping Lines, Al Fajr Valfaj r, or Ha?z Darya Shipping Company - that indicate any KGL Holding entity or af?liate has violated that would 16 preclude KGL from being awarded a DOD contract.? Id. (emphasis added). The reference to the Department of State is signi?cant. The Department of State is the agency with authority to determine who has engaged in CISADA-proscribed activities. Pub. L. No. 111-195, 102(b)(3); see 75 Fed. Reg. 67025. I On .luly 15, 2011, Under Secretary Carter sent another letter just like it to US. Senator Kirk. KOL Mot. Ex. 16 (?All these Federal databases show no indication that KGL Holding has violated US. law?). On September 8, 2011, Under Secretary Carter sent a similar letter to Rep. Ryan, but this time indicating that the Department of Defense Inspector General joined in the same conclusion: ?In coordination with theInspector General?s Of?ce and the US. Department of State, we have found no substantiated information that KGL has violated that would preclude KGL from being awarded a contract.? KGL Reply Ex. 6 at (emphasis added). The reference to the Inspector General?s Of?ce is also signi?cant. DCIS is the criminal investigatory arm of the Inspector General?s Of?ce. On the day of the ?rst Wilson Letter, DLA referred Wilson?s accusations to DCIS. In addition, within days of the Wilson Letters, defendants? outside lawyer/lobbyist Stephen Ryan, who did much of defendants? bidding here, contacted the Inspector General?s Of?ce, telling them have a well developed [sic] ?le containing possible evidence of criminal conduct in the violation of criminal US sanctions against Iran.? KGL Mot. Ex. 77. Ryan estimated that his ?extensive ?le? would take ?2 agents one ?Jll day to review . . . Id. After Under Secretary Carter sent his ?rst letter, defendants? executive team begrudgingly acknowledged that their efforts and all their information submitted to DCIS failed to substantiate any criminal conduct or violation ofU.S. sanctions against Iran: has received a ?pass.?? KGL Mot. Ex. 76. 17 On January 22, 2013, OFAC followed suit. it stated: ?This is to con?rm that does'not now have: and never has?had, an investigation targeting any of the following entities for suspected violations of our sanctions: Kuwait Gulf Link Transport Company; KGL Holding Company KGL Logistics; KGL Transportation Company or Ports International Company.? KGL Mot. Ex. 17. 10. Defendants sent the Wilson Letters after other efforts to retain the DDKS contract failed. On November 9, 2009, defendant PWC was indicted in federal court on charges that it had fraudulently overbilled the U.S. government in the performance of an $8.5 billion DLA Prime Vendor Food Services contract. See United States v, Pub. Warehousing N0. 09-CR- 490, 2011 WL 1126333, at *2 (ND. Ga. Mar. 28, 2011). As a result of allegations in the indictment, DLA suspended PWC and its af?liates and subsidiaries from federal contracting. See KGL Mot. Ex. 5 at KGL000522 1] 6 (GAO ?Determination and Findings?); see also Agility Def. cf: Gov ?t Servs. v. US. Dep?tofDef, No. 13?10757 (11th Cir.). The contract suspension made PWC ineligible to have its current contract modi?ed or compete for a new DDKS award absent a written justi?cation based on ?compelling reasons.? 48 C.F.R. Indeed, DLA began looking at KGL as the replacement contractor in late 2009 and early 2010. KGL Mot. Ex. 43. Defendants tracked interest in KGL. See, KGL Mot. Ex. 44 at PWC-PA-004487 (Jan. 31, 2010-email from?a defendant?s Senior Manager of Business Development Abbas that it ?[l]ooks like the gov?t intends to award DDKS to KGL . and Mitchell Wilson responding, ?Not good?); Ex. 45 (Feb. 9, 2010 emails with defendants? Chairman Sultan regarding intention to award DDKS Contract to with Sultan stating, ?Lets [sic] discuss 18 As previously diScussed, if the GAO or DLA were to determine KGL not to be a responsible government contractor?for example, because it violated CISADA or other US. laws?DLA would have"?compelling reasons? to continue with defendants as the only other available source in Kuwait that could perform on the DDKS contract. See 43 C.F.R. 9.407? Defendants were well aware of this. KGL Mot. Ex. 46. As interest in KGL as the replacement contractor progressed, so did defendants?. They began seeking information on whether KGL hadlties to Iran. KGL Mot. Ex. 47 (Feb. 9-10, 2010 e-mails ?om Agility Vice President, Public Affairs Marketing Cox circulating an Iranian trade report for follow-up investigation ?because it mentions a Kuwaiti company that is trying to take DDKS and other business from us. It alleges that the company is in bed with an Iranian state company that is in the WMD game?) (emphasis added). From the start, defendants considered the project ?extremely sensitive,? requiring, before any public mention of it, clearance from Christopher Logan, Agility?s Chief Strategy Marketing Of?cer and from Jean Desombre, Agility?s General Counsel, who was ?following this a bit.? KGL Mot. Ex. 48 (June 8, 2010 e-mail from Cox to Holger Altvater, Agility Vice President of Marketing: ?In any event, please be aware that the topic is extremely sensitive and that anything we decide to discuss publicly should go through Jean and Defendants even crafted model?e-mail messages to send to others about possible KGL ties to Iran. KGL Mot. Ex. 49. On or about February 15, 2010, defendants? outside counsel Whit Peters personally met with DLA of?cials, including DLA Associate General Counsel (Contract Integrity) Normand Lussier, to discuss - KGL Iran.? KGL Mot. Ex: 51. Peters followed up by e-mail, 19 stating that hewanted to'make sure DLA was ?aware of the reported ties between KGL and Iran.? Id. On July 2, 2010, one day after was signed into law, defendants retained Ryan, a partner at the Washington, DC, of?ce of McDermott Will Emery. KGL Mot. Ex. 52. Shortly thereafter, defendants directed and paid Ryan to lobby on the subject of the ?Implementation of according to public lobbying registration reports (an intentionally Opaque reference to lobbying Congress on the application of CISADA to Months later, Ryan billed defendants for his ?assistance regarding the KGL issue, including, in part? ?efforts to assist the FBI, OFAC, Senate and House,? ?updat[ing] regarding status, strategy, pertinent new information,? directed, [meeting] with the Baragona family and their attorney (Mr. Perles) to assist them,? and ?continu[in g] our extensive assistance relating to responding to calls and meetings with media.? Ex. 56 (May 2011 McDerm-ott statement of services). - Between August and November 2010, Ryan and McDermott sent Members of Congress drafts of letters for them to send to the Secretary of Defense about possible KGL?lran ties, seeking to have KGL certify that it was not in violationiof U.S. sanctions laws. See, KGL Mot. Exs. S7, 58, 59. . In early February 201 1, Ryan reached out to Richard Beutel, Senior Advisor and Counsel, House Government Reform Committee, to push the issue. He provided Beutel his package,? containing a ?draft article and slides? and ?printed 5 KGL Mot. Ex. 55 (Aug. 20, 2010 registration listing U.S. defendant Agility DGS Holdings, Inc., as Ryan's client). Ryan and defendants later engaged a second lobbying ?rm, Lanny Davis Associates LLC (?Davis Firm?), to assist in performing ?strategic consulting services describing activities related to as well as CISADA matters. 10'. at Exs. S3, 54. PWC and the U.S. defendants paid for the lobbying work by both Ryan and the Davis Firm, according to public lobbying registration reports. KGL Mot. Ex. 55, McDermott and Lanny Davis Lobbying Reports. 20 notebook, index and cheat sheet,? which was ?not to be forwarded??all of which has been withheld in discovery by defendants. See KGL Mot. Ex. 62. After DLA awarded the DDKS contract to KGL on February 28, 2011, defendants immediately became concerned about the ?nancial impact. See, KGL Mot. Ex. 60 (Mar. 1, 2011 e-mail from Cox that ?The word from Lenny [Petrucelli, Vice President, Prime Vendor Direct Bus. Deveiopment] is that DLA has decided to award KGL with the DDKS contract, . starting this month. i have alerted [Agility Director] Henadi [Al-Saleh] and Andrew. They will undoubtedly have to respond to investors, banks, etc. We can expect inquiries from the Kuwaiti - press, wires and others"). On March 2, 201I,just days after KGL won the DDKS award, Petrucelli informed Mongeon and others of the impact of losing that contract: ?Receipts: expect them to continue to drop down KGL Reply Ex. 23 (emphasis added). Defendants continued to search reports on KGL, ?nding little on Iran. On March 7-8, 2011, they assembled what information they did have and prepared a memorandum with sections entitled, Commercial Ties to Iran,? The Baragona Case,? and in Sudan.? KGL Mot. Ex. 27 at Ex. Feb. 27, 2015 Second Revised Answers and Objs. to Plsi.? Second Set of Interrogs. Directed to PWC No. 5. The memorandum summarized earlier, third-party reports on KGL, noting that ?neither report mentions'KGL in connection with suspected Iranian activity? and website did not ?trigger fresh questions about its commercial ties to Iran.? KGL Met. Ex. 27 at On March 8, 2011, defendants? Chairman Sultan sent this memorandum and other attachments to IMG in a bid protest strategy e-maii marked as privileged. Sultan stated, ?Please find details of the KGL no bid sole source award for DDKS. There are many possible grounds for a protest including the ones listed in the above-mentioned attachments." KGL Mot. Ex. 27. 21 On March 17, 20] 1, just a few days before the Wilson Letters were sent, defendants allegedly ?began receiving unsolicited internal KGL emails and/or documents? ?via email? ?in electronic format? ?from an anonymous individual af?liated with KGL Mot. Ex. 61, Feb. 27, 2015 Second Revised Answers and Objs. to Pl's.? Second Set of Interrogatories Directed to Agility Public Warehousing Company K.S.C. On March 22, 201 1, the same day as the ?rst Wilson Letter, lMG?s bid protest lawyers contacted a McDermott attorney to let him know that IMG would raise the issue? in the DDKS bid protest and had raised the issue already in the Prime Vendor Food Services protest. KGL Mot. BX. 118. IMG indeed filed Wilson?s falsi?ed KGL emails in both bid protests. KGL Mot. 1i 60; KGL Mot. Ex. 7 (protest of Prime Vendor Food Services contract); KGL Mot. Ex. 25 (protest of DDKS contract). IMG asserted in those protests that KGL was not a responsible contractor, contending that Wilson?s falsi?ed KGL e?mails demonstrate that is still actively dealing with Valfajr? and ?[t]he e-mail chain shows communications between the CEO of and others about assistance to charter a vessel through Oasis for Valfajr with the approval of KGL Chairman.? 1d. at After IMG filed the falsi?ed e-mails in the bid protests, on March 28, 2011, IMG asked defendants? Chairman Sultan, ?our lawyer is asking who is Scott Wilson?the person who wrote to GAO about KGL continuing business with Iran.? KGL Mot. Ex. 28. Further discovery is needed as to Chairman Sultan?s response, which defendants appear to be withholding under the Court?s Pilchesky stay. The reasonable inference, however, is that IMG knew to contact Sultan to identify Wilson because it was defendants who, on or shortly after March 20, had providedlMG with the falsi?ed e?mails. 22 Meanwhile, on March 20 2011, the same day as the most recent e-mail attached to the Wilson Letters, Ryan had alerted Congressional staffer Beutel that he'had ?urgentl? developments on the DDKS contract, the IMG bid protests, KGL, and Iran. See KGL Mot. Ex. 66. Two days later, on March 22, 2011, Ryan and Beutel met and exchanged e-mails about ?New KGL Ties to and US contracting,? and ?serious issues of breach of Iran sanctions law.? KGL Mot. lixs. 67, 68, 69. Defendants have withheld the attachments to these e-mails. Tellingly, on March 22, 201 l?the same day as the first Wilson Lenora?defendants? Chairman Sultan?s ?focus . . . [was] on according to other Agility executives. KGL Mot. Ex. 65. 11. The Wilson Letters immediately caused DLA to refer KGL for criminal investigation. The ?rst Wilson Letter received wide distribution ?within DLA Headquarters, Ft. Belvoir, VA, on the day it was sent, including to John Karns, DLA Chief Counsel, Normand Lussier, DLA Associate General Counsel (Contracting Integrity), Noel Woodward, DLA Associate General Counsel (Business Integrity), and Daniel Poling, DLA Assistant General Counsel. See, KGL Mot. Exs. 18-21. On March 22, 2011, DLA counsel Woodward, with concurrence of or at the direction of DLA counsel Lussier, sent an email to 'Sharon Woods, Staff Director, Investigation Division, DLA Accountability Office, asking'her to provide a contact at DCIS to whom she could refer KGL and Wilson?s allegations for investigation (?The enterprise has received a letter with additional allegations about KGL doing business with Iran, which needs to be referred to DCIS for investigation,? with Woods responding, ?i would be more than happy to make the referral . . . KGL Mot. Ex. 20 at DLA00000927-28. A criminal investigation ensued. 23 Senior leadership at DLA was aware that DCIS and the FBI Opened a criminal investigation into whether KGL had violated the Iran Sanctions Act and lied about it, as alleged in the Wilson Letters. KGL Mot. Ex. 23, DLA-00000963 (Apr. 11, 2011 e-mail from Woods to Mac DeVincentis, DLA Vice Director, Fredrick Baillie, DLA Chief of Staff, Fred Pribble, DLA General Counsel, Nancy Heimbaugh, DLA Acquisition Director, Robert Wimple, DLA Legislative Affairs, and others was recently informed that within the last Week DCIS and FBI have opened an investigation into Kuwait Gulf Link Transport (KGL) looking into the allegation KGL has violated the Iran Sanctions 12. Defendants continued to distribute the Wilson Letters and the falsi?ed KGL e?mails after being warned of their falsity. On March 23?24, 2011, an anonymous ?Concerned Patriot? (who, the evidence suggests, was acting at the direction of defendants) reached out to Pam Baragona in an e-mail, telling her to run searches on KGL and Iran, and providing information on the DDKS contract. KGL Mot. Exs. 95-96. Five days later, CP e-mailed the Baragonas the KGL e-mails attached to the Wilson Letters. KCL. Mot. Ex. 97. In the cover message, CP stated, ?Thanks for your efforts you are having an effect and here?s some secrets that KGL is trying to keep from everyone. . See Attachments.? Id. CP also remarked, ?These were hard to come My] and hope they help.? 1d. (emphasis added) (also refuting claim that the stolen KGL documents were provided to PWC unsolicited; unsolicited documents are not ?hard to come Within days after the Wilson Letters? publication, defendants were warned that the attached e-mails were falsi?ed. KGL Mot. 56-57, 66, '76; Ryan was fully aware that KGL claimed they were ?doctored.? KGL Mot. ii 66; KGL Mot. Ex. 81 (Ryan on Apr. 15, 2011 forwarding to Beutel an e-mail he had recently sent to the FBI and DCIS agents attaching ?24 materials he claims ?appear to be totally corroborative of the emails KGL now claims are Notwithstanding that warning from KGL, defendants directed Ryan to republish the defamatory and falsified e-mails attached to the Wilson Letters to the Baragonas and other third parties. KGL Mot. 65?83. On May 25, 201], at the direction of defendants, Ryan met with the Baragonas and their lawyer at McDermott?s Washington, DC, office. KGL Mot. Eats. 56 and 95 at KGL000388-90. . Ryan gave them ?three or four white binders.? [at at KGL000389-90. Based on documents produced by defendants and the Baragonas, the ?white binders? contained: the Wilson Letters and his attached falsi?ed e?mails (even though Ryan had been warned they had been falsi?ed); internal KGL documents and privileged communications; defendants? research materials on and other documents later e-mailed by the Baragonas as attachments with file names such as ?from Agility.? See, KGL Mot. Exs. 56, 70, 108; June 4, 2012 .KGL Mot. to Compel (including exhibits A-C (Baragona e-mail sending documents ?from Agility?; Index of Attorney- Client Documents; and Master Index of Document)). - The day after the Baragonas thanked Ryan for the ?white binders,?_ they began their own letter campaign with Ryan?s assistance. They forwarded the binder material, including Wilson?s falsified KGL e-mails, to various Members of Congress along with letters drafted by Ryan aimed at encouraging and OFAC to investigate sanctions violations by KGL. KGL Mot. Exs. 104-107; KGL Opp?n to MSJ at?l 103, n.4 (detailing Ryan-Baragonas letter strategy and sharing of binder material with Congress). When DOD determined on May 30, 2011 that ?no substantiated information? connected KGL to sanctioned Iranian entities 01' indicated that KGL violated CISADA, Ryan and the 2S Baragonas were disappointed. Ryan told the Baragonas, ?Not sure I understand why folks don?t see it for what it is KGL looks a lot like an Iranian controlled entity.? KGL Mot. Ex. 108. Congressional staff and Senators clearly understood the defamatory meaning of Wilson?s . falsi?ed KGL e-inails: they speci?cally cited and/or attached them to letters to the Secretary of Defense calling for KGL to be investigated for possibly violating CISADA and debarred for leasing a ship to Valfajr in March 2011. The import of the falsi?ed KGL e?mails was made particularly clear to Senator Kirk, who stated that, if defendants? evidence were true, KGL should be prevented from having ?access [to] US. military facilities or [having] influence over our supply lines.? KGL Mot. 11 27. Ryan ghost wrote that letter and that sentence. KGL Mot. Ex. 3i at KGL Cpp?n to MSJ at 1] 45, 11.3. Members of the news media, who received Wilson?s falsi?ed KGL 'e?mails from the defendants? agents and/or co~conspirator, understood their defamatory meaning and referenced the ?leaked e-mails? in news articles about KGL leasing a ship to Valfajr, possibly violating CISADA, and the criminal investigation 'of those allegations. KGL Mot. 31-34, 81~83, and . 135?38. Ryan?s McDermott colleague boasted that they were the ?sources? for the ABC News story aboutKGL?s possible violation of CISADA and alleged ties to Iran. KGL Mot. 31-34, Ex. 37 (?We are the unnamed sources. are trying to get this company barred from contracting?). As a result of media reports publicizing that KGL was being accused of and under investigation for possible CISADA violations, banks began to reject plaintiffs? electronic ?nancial transactions. KGL Mot. 35-37, Ex. 40; Ex. 41, Dr. Ali Dashti Decl. ?ll 24. In response to the Wilson Letters, KGL spent. hundreds of thousands of dollars refuting the allegations, defending its reputation, and mitigating harm before the DLA, Army, GAO, 26 Congress, and others, as well as investigating the source behind the false allegations. See, KGL Mot. Ex. 41, Dr. Ali Dashti Decl. 1] 28; KGL Mot. BX. 120 (out-of?pocket legal costs). LEGAL STANDARD AND STANDARD on REVIEW ?The right to speak anonymously is not absolute and both the US. Supreme Court and Supreme Court of have speci?cally identi?ed defamatory speech as an ?evil? that States may prohibit. Melvin v. Doe, 836 A.2d 42, 49 (Pa. 2003) (quoting Gem Robert Welch, Inn, 418 US. 323, 341(1 974)). Indeed, ?spreading false information in and of itself carries no First Amendment credentials.? Herbert v. Lando, 441 US. 153, 171 (1979). While defamatory speech is not protected, the Pilchesky test is designed to serve a gate-keeping function to ensure that a plaintiff seeking disclosure of an anonymous speaker?s identity brings a legitimate claim for legitimate reasons. See generally Pilchesky, 12 A.3d 430; In re Anonymous IOnlz?ne Speakers, 66] F.3d 1163, 1177 (9th Cir. 2011) (holding that lesser?protracted Speech is not entitled to the judicial gate?keeping shield that tests such as Pitches/g: afford). It is not intended, however, to require or demand a full analysis of the merits of a plaintiffs claim. Under Pilchesky, a defendant must reveal the full identity of an'anonymous or pseudonymous Speaker when the following is demonstrated: (1) the-anonymous speaker receives noti?cation that his or her identity is soughtf? (2) the plaintiff presents suf?cient evidence to establish a prz?mafacie case on all elements of defamation that are Within its control; (3) the plaintiff proffers an af?davit of good faith and necessity; and (4) a balance of the equities weighs in favor of disclosure. Pilcheslty, 12 A.3d at 442-45. For purposes of Pilchesky, a primafacie showing of defamation is one suf?cient to survive a motion for summaryjudgment demonstrate that there is a genuine issue of 6 Defendants?concede this element of the Pilchesky test. Joint Answer 91 (?Defendants agree that the notice requirement of Piichesky has been satis?ed . . . '27, material fact) on those elements of defamation Within a plaintiff?s control. 12 A.3d at 442-43; Civ. P. 1035.3. Thus, to satisfy Pilehesky?s second requirement, a plaintiff need not adduce evidence of malice, or show abuse of a privilege. A party should similarly not be required to produce evidence of harm, which may be presumed upon a finding of actual malice. I See Pilchesky, 12 A.3d at 443. The ?modest amount of evidence? required under Pilchesky must be ?interpret[ed] . . . in the light most favorable to the plaintiff. . . Id.? To conclude the Pilchesky test, a trial court ?must expressly balance the defendant?s First Amendment rights against the strength of the plaintiff?s primafacr?e case.? Id. at 445. In doing so, the ?court should examine the defamatory nature of the comments, the quantity and quality of evidence presented, and whether the comments were privileged.? Id. ?The court should also consider the forum in which the actionable comments arose.? Id. And it ?may impose additional requirements on a case by case basis as necessaryPRIMA FA CIE CASE EXCEEDS THE REQUISITE SHOWING Although Pilchesky requires only that plaintiffs produce a ?modest amount of evidence,? ?interpret[e?d] . . . in the. light most favorable to plaintiffs,? plaintiffs have done much more. Among otherthings, they have produced evidence of defendants? publication of the defamation, the recipients? understanding of it, and the harm the defamation?s publication caused plaintiffs. At the very least, plaintiffs have demonstrated a genuine dispute of material fact on each element of their defamation claim. See Ex. 3. A. The Wilson Letters and falsi?ed e-mails are of a defamatory character. The Wilson Letters and the falsi?ed e?mails attached thereto constitute defamation per 36 because they a) accuse KGL of committing a crime by violating 18 U.S.C. 1001, and b) accuse KGL of being un?t to serve its role as a government contractor by violating CISADA. KGL Mot. Ex. 4; KGL Mot. 11 97. Defendants never challenge that these accusations can constitute 28 defamation per se, and they admit that ?[t]actual statements that attribute criminal conduct are capable of defamatory meaning.? Joint Answer'? 96. This element is satis?ed. Defendants fail to establish otherwise in arguing that the Wilson Letters are non- actionable. The Letters are not privileged because they were sent to customers who lack authority to investigate or prosecute KGL for alleged CISADA violations and were over- published in any event. Infra They, moreover, assert false statements, not opinions. Infra Section I.A.34. 1. Defendants waived any judicial proceedings privilege. Privilege is an af?rmative defense that must be asserted in new matter. Pa. R. Civ. P. 1030(a). Af?rmative defenses that must be pleaded under Rule 1030(a) are waived ifthey are not pleaded. in an answer to the complaint or preliminary objection. Pa. R. Civ. P. 1032(a); see also Kitus'kie v. Corbman, 682 A.2d 378, 382~83 (Pa. Super. Ct. 1996) (af?rmative defenses of collateral estoppel and res judicata not pleaded and thus waived); Grosso v. Love, 667 A.2d 43, 45 (Pa. Commw. Ct. 1995) (statute of limitations and res judicata ?are af?rmative defenses and as such are Waived if not raised in a responsive pleading?). Defendants never properly asserted the judicial proceedings privilege in an answer or preliminary objection. While in their new matter ?led with their Answers, defendants averred that their statements were a) conditz'onoliy privileged, b) privileged under the United States and constitutions, and c) protected by the fair comment privilege, they did not assert the judicial proceedings privilege. Agility DGS Logistics? Answer to FAC 208, 214-15; Answer to FAC 1H 244, 1250-51;ch Transport?s Answer to PAC 1111208, 214-15; see also Agility DGS Holdings, Inc?s Answer to FAC ii 208 (conditional privilege); Agility Int?l Inc?s Answer to PAC 208 (same); Agility DGS, Inc?s Answer to FAC ii 208 (same). In their 29 preliminary objections, defendants likewise invoked only a conditional privilege. See July 5, 2012 US. Defs.? Preliminary Objs. to PAC ?145?46. These averments cannot be read to invoke thejudicial proceedings privilege. It is an absolute, not conditional privilege. See, Bochetto v. Gibson, 860 A.2d 67, 71 (Pa. 2004). It is a product of the common law and public policy, not of the state or federal constitution. Post v. Mendel, 507 A.2d 351, 353-55 (Pa. .1986). Therefore, any arguments that thejudicial privilege applies is waived The judicial proceedings privilege does not apply. Thejudicial proceedings privilege is a narrow one and, contrary to defendants? arguments about its breadth, is not ?without bounds." Post, 507 A.2d at 355; see also Scheme v. Addie, No. 106 MAP 2014, 2015 WL 4920770, at *6 (Pa. Aug. 17, 2015) (judicial privilege is ?subject to limitations?); v. Dishong, 98 A.3d 613, 619 n.5 (Pa. Super. Ct. 2014) (the privilege is ?narrowly applied? by courts). The privilege does not apply here. Statements not directly relevant to proceedings and not ?issued in the regular course of judicial proceedings [as a communication] and pertinent and material to the redress'or relief sought? do not qualify for the privilege. Post, 507 A.2d at 355-56. The Wilson Letters were not sent in the course of proceedings against KGL, existing, pending, or contemplated. See Pollz'na, 98 A.3d at 619 (citing Post, no absolute privilege for statements by Bureau of Program Integrity consultant, even thou ?matter was referred to Attorne General?s office for investi ation; no 7 Defendants ?rst referenced thejudicial proceedings privilege in their February 15, 2013 answer to plaintiffs? supplement to the first Pilchesky motion in this case. Prior to that time, defendants claimed only a conditional privilege. See July 5,2012 U.S. Defs.? Prelim. Objs. to FACW 46-47. The shift was tactical because malice defeats a conditional privilege, see Green Mizner, 692 A.2d 169, 175 (Pa. Super. Ct. 1997), and while plaintiffs do not need to demonstrate malice to prevail on their Pilcnesky motion, Pilchesky, 12 A.3d at 442-43, defendants would not want to introduce the malice element into the analysis of whether plaintiffs have brought an actionable defamation claim. 30 lawsuit or otherjudicial proceeding was pending or contemplated at the time, and consultant did not investigate ?for the sole purpose of initiating criminal proceedings against Plaintiffs?). The privilege applies only to those statements sent ?solely to the of?cials who might be responsible for prosecuting the criminal charges.? Pawlows/o.? v. Smorto, 588 A.2d 36, 42 (Pa. Super. Ct. 1991) (emphasis added). The Wilson Letters were not sent to law enforcement officials or even the government personnel empowered to conduct any investigation into KGL or criminal or administrative proceedings against KGL. As beth sophisticated government contractors and subjects of criminal and suspension proceedings, defendants knew or should have known those who would be reSponsibie for initiating any such proceedings against KGL. See, KGL Mot. Ex. 31 at (May 26, 2011 e?mail from defendants? agent Ryan to Sen. Kirk?s office, asking Sen. Kirk to send Ryan?s draft letter on KGL to suspension and debarment office so we open a new place where this is would have authority to independently Instead, defendants purposefully chose to send the Wilson Letters to customers?~? DLA and Army contracting of?cers in charge of the contracts KGL had been and/or would later be awarded. But statements sent to customers are not ?issued in the regular part of the legal proceedings.? Post, 507 A.2d at 355-56.3 Nor did these contracting of?cers work in departments that could investigate, initiate, or adjudicate Wilson?s claims of KGL illegal conduct. 8 Defendants argue Post is distinguishable because the statements were immateriai to the proceedings. However, PostT unequivocally stated that ?forwarding copies ofthe letter to plaintiff?s alleged ciient . . . did not render the letter a part of the trial proceedings." 507 A.2d at 356. That the court also found the letter immaterial does not negate the conclusion that it was not part ofthe relevant proceedings. See Bochetio, 860 A.2d at 72 n.13 (explaining that Post relied on both reasons). 31 The same is true for the other recipients of the Wilson Letters and/or falsi?ed KGL e? mails. ?Ethics Counsel? or ?Congressional Relations? of?ce-IMG, and members of Congress were not the proper authorities for initiating any CISADA cr debarment proceedings against KGL. The policy behind thejudicial proceedings privilege supports why it doesn?t apply here. ?[Tjhe privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings." Post, 507 A.2d at 355. None of the recipients of the defamatory statements commenced or contemplated a proceeding with these procedural safeguards in place. That ?the Government has sufficient internal sanctions against? defamatory statements is not narrow and precise enough to generally apply the privilege to any statement made to any one of countless government of?cials. For the same reason, the privilege does'not apply to any statements made in bid protests by IMG or any party encouraged, assisted, or aided by defendants. See Lockheed Info. Mgmt. Sys. Co. v. Maximus, Inc, 524 420, 424-25 (Va. 2000) (judicial proceedings privilege not applicable to statements in bid protest because the proceeding lacks procedural safeguards such as subpoena power, perjury liability, and application of the rules of evidence). I None of defendants? cases expands the judicial proceedings privilege beyond ?law enforcement? or the ?proper authorities? wielding power to institute proceedings and take action.9 Pawlowski, 588 A.2d at 41-42 (statements sent to police and district attorney); see Scheme, 2015 WL 4920770, at *1-2 (no privilege where statement to ?agent of the school? where plaintiff worked, a teacher, resulted in termination proceedings); Marine v. Fava, 915 9 Defendants misconstrue plaintiffs? argument. See Defs.? MSJ Br. at 15. Plaintiffs have consistently argued that the privilege applies to statements to law enforcement of?cials or the proper authorities. KGL Opp?n to 1] 28; . KGL Reply at 20. 32 A.2d 121, 122 (Pa. Super. Ct. 2006) (statements to police and mental health of?cials for the purpose of initiating involuntary commitment proceedings); Milltner v. Back, 709 A_.2d 417, 419 (Pa. Super. Ct. 1998) (statement by employer to unemployment agency adjudicating plaintiff?s unemployment benefits request); Reed v. Pray, 53 A.3d 134 (Pa. Commw. Ct. 2012) (statements to police department); accord Brody v. Montalbanc, 87 Cal. App. 3d 725, 732 (1978) (judicial proceedings privilege extends to ?communications to an of?cial agency, which are designed to induce the agency to initiate action?) (emphasis added), quoted in Schahne, 2015 WL 4920770, at (Finally, the privilege does not apply to statements simply because they are made ?in connection with? proceedings or they led to a later referral for a proceeding. See Defs.? MSJ Br. at 15. The Supreme Court of rejected the notionthat a statement is privileged if it ?served as the catalyst for a hearing.? Scheme, 2015 WL 4920770, at *7 mi (?Such a test shifts the focus from whether application of the privilege would promote the ef?cient administration of justice to a backward-looking factual aSSessment of how a third party independently decided to use the allegedly defamatory communication?). As such, the Court must limit its focus to whether the defamatory statements were made to law enforcement officials or the proper authorities empowered to initiate, conduct, and adjudicate ajudicial or quasi-judicial proceeding . against KGL concerning CISADA. In this regard, defendants misrepresent the law on intent and judicial proceedings privilege; See Defs.? MSJ Br. at 16 11.7. It is true that oncejudicr?alprivilege attaches, intent is irrelevant. However, that is a different issue from ?whether the defendant?s intent is properly taken into account in ascertaining z'fthe privilege applies in the first instance.? Scharme, 2015 WL 4920770, at *8 (emphasis added). The Schanne court held that intent is taken into account 33 in determining whether the privilege applies. Idglsee also Pollina, 98 A.3d at 619 n.6 (statements not made for sole purposes of instigating criminal charges); Silver 12. Mendel, 894 F.2d 598, 603 (3d Cir. 1990) (no privilege because defendant caused the proceedings to occur ?without having probable cause to believe in the merit of the [allegations] and for a purpose other than the securing of redress from the court?); Johnson v. Res. for Human Den, Inc, 860 Pa Supp. 218, 222 (ED. Pa. 1994) (privilege applies to statements ?made-on a proper occasion, from a preper motive, in a proper manner?). Thus defendants? publication of the Wilson Letters and falsi?ed e?mails to customers, in an effort to disrupt DLA contract awards to replace Agility and thereby gain ?nancial bene?ts, supports that thejudicial proceedings privilege does not apply. a. Even if initially applicable, defendants? over-publication defeats the judicial proceedings privilege. Thejudicial proceedings privilege can be abused by over?publication: Bochetro, 860 A.2d at 72 (absolute privilege lost where defendant published copy of complaint to news reporter); Post, 507 A.2d at 356 (privilege lost where publication to client and judge were not part of relevant?proceeding). may be found where a statement initially privileged . . . is later republished to another audience outside of the proceedings.? Pawlowski, 588 A.2d at 41 n.3. While the court determines whether the privilege attaches, the jury must decide whether a privilege has been abused. Agriss, 483 A.2d at 463; see also Montgomery v. Dennison, 69 A.2d 520, 526 (Pa. 1949) (iury could conclude over?publication where statement was made to eight persons and Speaker ?need not have done more than to have reported the matter to Chief Post Of?ce Inspector Donaldson, who presumably would have made a thorough investigation of the charge and would have taken whatever steps the results of that investigation called for?); Doe v. Kenn, Nos! dis Graf RC, 862 F. Supp. 1310, 1327 (ED. Pa. 1994) (denying 34 summary judgment because jury must decide whether absolute privilege was abused); Lawrence v. City ofBethle/tem, No. CIV. A. 97-CV-1824, 1999 WL 124471, at *7 (ED. Pa. Mar. 1, 1999) (denying summaryjudgment because ?whether defendants exceeded the scope of this [absolute] privilege by publishing the statements to the media is . . . questionof fact for the jury?). Even if sending the Wilson Letters to.?government officials? were protected by the judicial proceedings privilege, as defendants contend (Defs.? MSJ Br. at plaintiffs have put forth substantial evidence demonstrating an orchestrated campaign by defendants to shop the Wilson Letter allegations and the falsi?ed KGL internal cumalls to others. By and through their agent(s) and defendants published the Wilson Letters and/or the falsi?ed e? mails to M6, the Baragonas, Congress, and the media. See KGL Mot. 1111 25, 114 KGL Mot. 72-78 and Ex. 97 (Baragona?s); KGL Mot. 68-7] and KGL Opp?n to MSJ, Ex. 4 (congressional staff); KGL Mot. 111131-34, 81-83, 135-38 and Exs. 56, 115 (media). This over? publication defeats any claim ofjudicial proceedings privilege. At a minimum, the issue should be left to ajury. . 3. The Wilson Letters are not protected opinions. Defendants argue that the Wilson Letters are protected as (1) opinions based upon substantially truthful assertions of fact or (2) statements of legal opinion by a layperson. Defs.? MSJ 49-50. Defendants are wrong. See KGL Reply at 14-17. I First, the defamatory statements were not ?pure? (protected) opinions. ?Rure? opinions are distinguishable from false factual assertions (which are actionable) because they are subjective, ?gurative, and incapable of being ?provably false.?10 See Milkovich, 497 U.S. at 20? Defendants' reliance on qufewski v. Guso?, 53 A.3d 793 (Pa. Super. Ct. 2012) is unhelpful to their opinion argument. Krajewski was a defamation action brought by a city councilwoman against a local newspaper for statements made alleging (1) she was collecting money in retirement bene?ts even though she was not retiring and 35 '21. See crisp Parana v. 0 ?Connor, 641 A.2d 607, 609 (Pa. Super. Ct. 1994) (?nding statements that person was ?adversarial, less than helpful, and uncooperative? were ?subjective interpretation, or opinion? based on disclosed non?defamatory facts and thus not actionable). Here, Wilson?s'statements looked and sounded nothing like subjective or ?gurative opinions. He made factual statements that KGL violated CISADA and engaged in criminal conduct. They are actionable statements ?sufficiently factual to be susceptible of being proved true or false,? just like the allegations in Milkovich that the plaintiff had committed perjury. See Miikow'ch, 497 U.S.-at 21. Indeed, Wilson?s statements are per se defamatory because they accused KGL ofengaging in crimes. See Brim?ch v. Jencka, 757 A.2d 388, 397 (Pa. Super. Ct. 2000). See also KGL Reply at 15. - Wilson?s statements were not, as defendants contend, based upon disclosed, truthful assertions of fact. And even an opinion which is based on some disclosed facts can be actionable if the disclosed facts underlying the opinion are either incorrect or incomplete, or if the speaker?s assessment ofthem is erroneous because such an opinion can also imply assertion of a defamatory false statement. Milkovichdiscussed previously, Wilson?s ?compelling evidence? was the falsi?ed e-mails. Moreover, the underlying ?rationale? defendants claim supported Wilson?s defamatory statements (Defs.? MSJ Br. at 20) was false, incomplete, and based on erroneous conclusions. Mr?lkow'ch, 497 US. at 18-19. Namely, CISADA does not prohibit US. government contractors from doing business with Iran or (2) that she could donate her ?ill-gotten gains" to save a public libraIy from closing. Signi?cantly, the court found the purported ?opinion? relating to theft and ill-gotten gains to be an actionable statement because the article failed to disclose underlying facts?that wouldprovc the allegation was false; 119., the editorial made no mention ofthe fact that the money consisted of the council woman?s own pension contributions and was in fact her money. 53 Aid at 804-805. Wilson?s purported opinions were similarly based on provably false and undisclosed facts: the attached 6? mails were themselves falsi?ed (an undisclosed fact), and Wilson inferred but did not disclose provably false facts suggesting that KGL knew and approved use of the Mcrjan to ship the type of cargo that would cause a CISADA violation. 36 Iranian entities. Nor does it mandate certi?cation for compliance with all sanctions against Iran. Defendants do not disagree. Second, Wilson?s statements are, at best, ?mixed opinions? that ?can be reasonably understood to imply the existence of undisclosed defamatory facts.? See Green, 692 A.2d at 174. By accusing KGL of violating CISADA, Wilson implied the existence of facts without which his statement could not be true, including (among other things) that KGL or RAKS knew and approved the use of the Merjan to provided goods, services, technology, or other items that contribute materially to the ability of Iran to acquire or develop chemical, biological, or nuclear weapons or related technologies,H an implication which in itself was defamatory. Given that Wilson appeared to be a third?party individual, knew about the recent DDKS contract award, knew at least the identity and e-mail addresses of the contracting officers responsible for KGL contracts, had access to internal KGL e-mails, and had ?engaged a law ?rm to pursue all necessary legal remedies and recourse" (KGL Mot. Ex. 1 at KGL000902), a read er would naturally infer that Wilson knew of facts to substantiate his claims. Third, the defamatory statements at issue, including both the Wilson Letters and falsi?ed KGL e?mails, are not Wilson?s ?legal? opinions ?regarding a CISADA violation? (see Ilefs.? 1149), on ?what is forbidden under (see Joint Answer at 7), or on the scope ofa certification (see Defs.? MSJ i] 49). Again, defendants misconstrue the meaning ofthe defamatory statements, as well as misunderstand what plaintiffs alleged as the defamation.l2 Pub. 11-195, 1020:). '2 Defendants fail to cite any authority that would support their legal Opinion argument. KGL MSJ Opp?n 81?. at 27. 37 B. The Wilson Letters are false.? 1. The Wilson Letters accused KGL of violating CISADA and falsely certifying compliance to the U.S. Government. The Wilson Letters accused KGL, in no uncertain terms, of violating CISADA and falsely certifying to the United States compliance with CISADA. See KGL Reply at 7-8. The ?rst Wilson Letter was clear: I am writing to draw your attention to a serious misrepresentation and violation of US law committed by the company which the awarded [the DDKS contract] . . . on February 28, 201 l. I have compelling evidence that KGL continues to do business with Iranian entities, in violation of KGL Mot. Ex. 1 at KGL000901 (emphasis added). The second Wilson Letter started off by noting the importance of this accusation atthe center of the ?rst letter: ?As a follow-up to my letter dated March 22, 2011 exposing the serious misrepresentation and violation of [CISADAIcommitted by . . . KGL Mot. Ex. 4 at KGL000913 (emphasis added). And the ?compelling evidence? of the CISADA violation was the emails attached to the Wilson Letters, which purportedly establish ?a clear violation of US law.? KGL Mot. Ex. No. 4 at KGL000913. See also KGL Reply at 7?8 (discussing e-mails attached to Wilson Letters). DeSpite the-clarity and force with which the Wilson Letters accused KGL of violating CISADA and falsely certifying compliance with CISADA to the U.S. government, defendants now seek to re-characterize the letters and to walk away from these accusations. They ask the Court to ignore the accusations of violating U.S. law and, instead, want to make their defamatory statements about relationships with Iranian entities. But a foreign person like KGL having a ?3 If the subject of a defamatory statement is a matter of public concern, then to recover on a defamation claim, a pla1nt1ffmUSt prove the statements fal lsity Phila. Newspapers Inc. v. Hepps, 475 U. S. 767, 776 (1986). Defendants contend here that the Wilson Letters relate to a matter of public concern. Plaintiffs therefore explain why the Wilson Letters and theil falsi?ed attachments a1e indeed false. 38 relationship with an Iranian entity alone is not a violation ofU.S. law. And defendants refuse to own the aecusations they leveled with anticipated impunity behind the cloalt of ?anonymity? for one reason: those accusations were patently false and based on ?compelling evidence? that was, itself, falsi?ed. In particular, the 'e-mails attached to the Wilson Letters were falsi?ed to give the misleading impression'that plaintiffs were acting in violation of CISADA. Wilson?s alterations were not ?innocuous,? ?inconsequential,? or otherwise immaterial. See Joint Answer 1 13; Defs.? M8111 41. Cf Masson v. New Yorker Magazine, Inc, 501 U.S. 496, 522?25 (1991) (reversing the Ninth Circuit?s af?rmance of summaryjudgment in favor of defendant, holding that ajury could ?nd a ?material difference? in the meanings of altered, published words versus the original statements). Far from inconsequential, the e-mail alterations were a ?calculated falsehood,? for which there is no constitutional protection. Garrison v. Louisiana, 379 U.S. 64, 75 knowingly-false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection?) (citing Chaplinsky v. New Hampshire, 315 U.S. S68, S72 (1942)). The alterations render the e-mails defamatory standing alone. 2. KGL did not violate CISADA and defendants have presented no evidence to the contrary. Plaintiffs have put forth substantial evidence that KGL did not violate CISADA and that any certi?cation of compliance with CISADA was accurate. KGL has submitted declarations attesting that KGL did not violate CISADA by, among other things, engaging in illegal business withfIranian entitiesi KGL Mot. Ex. 9 (KGL Chairman?s declaration); KGL Reply Ex. 4, Rosenberg Decl. More importantly, these declarations are supported by every U.S. government entity that has looked at defendants? accusations of a violation. Three times, the Department of Defense, coordination with the Department of State, . . . found no 39 substantiated information to include reported business links to [sanctioned Iranian companies] that indicates any KGL Holding entity or af?liate has violated the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA) . . . See KGL Mot. Ex. 29 i at DLA-00006337 and KGL Reply Ex. 6 at DLA-00012540 (letters from Under Secretary of Defense Ashton Carter to Senators McCaskill and Kirk and Rep. Ryan sent after the Wilson Letters). Under Secretary Carter?s review included all information provided by the Senators (fed to them by defendants? agent Stephen Ryan) including the so- called ?compelling evidence? of internal e-mails. KGL Mot. Ex. 29 at 79. The fact that the Under Secretary Carter?s of?ce coordinated his three responses With the Department of State is significant, if not dispositive. The Department of State has jurisdiction to investigate sUSpected violations of CISADA and maintains a list of persons sanctioned for Iran Sanctions Act violations. Pub. L. No. 111-195, see 75 Fed. Reg. 67025. The Department of State?s Iran sanctions list does not and never has included any KGL entity or af?liate. See Department of State Sanctioned Entities List, avaiiable at A The Defense Criminal Investigation Service the of?ce to which DLA referred the Wilson Letters for investigation, also reviewed Wilson?s CISADA allegations. Ryan also gave the Inspector General?s Office, which includes DCIS, his ?extensive file? on KGL, including his ?hot doc book? on KGL (all withheld by defendants in discovery). KGL Mot. Ex. 83. DCIS has taken no action against KGL. Indeed, Under Secretary Carter?s letter to Rep. Ryan stated that the DoDInspector General?s Of?cejoined the conclusion that the CISADA accusations could not be substantiated. KGL Reply Ex. 6. The US. Army ultimately 40 concluded that plaintiffs were ?responsible contractors? after reviewing the CISADA accusations, and GAO decided that IMG (supported secretly by defendants) failed to present suf?cient evidence that KGL violated CISADA or that DLA acted unreasonably in awarding KGL'the DDKS contract. KGL Mot. Ex. 13 KGL Mot. Ex. 14 (Army); KGL Mot. Exs. 6 and 7 (GAO). Finally, in 2013, OFAC, part of the US. Department of Treasury, wrote a letter stating that it has never had an investigation targeting any of the KGL plaintiffs for suspected violations of its sanctions. KGL Mot. Ex. 17. in the face of all of this evidence, defendants have presented g9 evidence that supports their Wilson Letters accusations of a CISADA violation and false certi?cation to the US. government. There is no genuine issue of material fact on falsity because defendants cannot point to any actual evidence of a CISADA violation that rebuts plaintiffs? clear evidence to the contrary. Indeed, they ?lack knowledge? whether plaintiffs engaged in any such violation. See, Joint Answer 1 107. For this reason, defendants attempt to shift the focus away from a violation and to whether KGL had business relationships with any Iranian entities. But even if KGL had business relationships with Iranian entities (even sanctioned. entities) that is not a violation of A CISADA violation requires knowingly engaging in speci?c conduct that materially contributes to the ability of iran to acquire or deveIOp nuclear weapons or related technology. See supra, Factual Background at Section 2. 3. Plaintiffs did not approve or intend to permit a lease of the Merjan to Valfajr or one of its af?liates. I Defendants? ?compelling evidence? of a CISADA violation?KGL?S internal e-mails attached to the Wilson Letters?purportedly shows KGL approving the lease cf the ship Merjan to a sanctioned Iranian entity, Valfajr. As noted, even if that were true, without evidence of KGL engaging in speci?c prohibited conduct, the lease alone would not constitute a CISADA 41 violation. And even if approving the lease could support defendants? accusations, defendants? ?compelling evidence? of such a lease was internal, falsi?ed e-mails attached to the Wilson Letters. While plaintiffs have put forth considerable evidence that the e?mails attached to the Wilson Letters were falsi?ed, see KGL Reply at 23 (including Kuwaiti government forensic analysis), defend ants can say only that they ?lack knowledge? about whether the e?m ails were falsi?ed. See Joint Answer 14, 26. Once again, there is no genuine issue of material fact on falsity because defendants have put forth no evidence to the contrary. Even putting aside the falsi?ed evidence attached to the Wilson Letters, the accusations were wrong. First, while Wilson stated that has had a joint venture relationship with. Valfajr Shipping, through its subsidiary Combined Shipping [Company and with oasis Freight Services,? KGL Mot. Ex. 1, KGL had sold its shares in its former subsidiary CSC months before the Wilson Letters. See supra Factual Background at Section 4. Second, the Merj an and its sister ship, the Awafl were not owned by KGL, they were owned by RAKS and KGL had only a tninority share in RAKS at the time of the Wilson Letters. See supra Factual BaCkground at Section 5. Third, RAKS refused to renew the lease of the Merjan and Awafr to Valfajr because it was a sanctioned entity and it had breached its prior agreement with RAKS. See supra Factual Background at Sections 6-7. Fourth, contrary to defendants? contention, RAKS did not intend to renew the Merjan lease with and RAKS engaged an internationally recognized broker, Maersk, to help ensure the next lease would not go to a sanctioned-entity. Sec supra Factual Background at Section 7. Fifth, RAKS used Maersk to lease the Merj an to Siinatech, a non-sanctioned entity. Simatech subsequently subleased the ship to Great Ocean (as was its right under the lease agreement) and RAKS made efforts to ensure that GreatOcean was not a sanctioned entity. See supra Factual Background at Section 8. 42 While Great Ocean was later added to the SDN list two days before the sublease with Simatech expired, this was counter to the representation Simatech made through the broker Maersk. And, of course, there is no evidence that the Merjan was used in violation of CISADA. Finally, defendants? ?expei report does nothingto establish a CISADA violation. While the report contains numerous inaccuracies and draws unsupported or contradicted (and inadmissible) conclusions, even ifaccepted, the report fails to provide any evidence that KGL engaged in unlawful conduct. See KGL Reply at 26-40. The report only reinforces defendants? strategy to abandon the same accusations that Wilson and defendants? agents formerly embraced. L?The Court should place little, if any, credence in defendants? post?hoe rationalizations made in the heat of litigation and after being unmasked as the Wilson Letters? authors. Defendants published the defamatory statements to other than the named recipients ofthe defamation. The Wilson Letters and their attachments were undoubtedly published to contracting of?cials and the Army. PWC Answer 48,53, 62 (admitting that Wilson Letters were sent to DLA and Army). Plaintiffs have also created a reasonable inference that defendants published the Wilson Letters and their falsi?ed attachments to IMG. KGL Mot. Ex. 25 see also Herbert, ?441 US. at 172 (?Permitting plaintiffs . . . to prove their cases by direct as well as indirect evidence is consistent with the balance struck by [the Supreme Court?s] prior decisions?). On the same day that defendants sent the first Wilson Letter to contracting officials, IMG ?led the falsified KGL e-mails attached to that letter to support its bid protest of the DLA Prime Vendor Food Services contract. KGL Mot. Ex. 7 at Two days later, supplemented its separate GAO bid protest of the DDKS contract relying again on the'same falsified KGL e-mails. KGL Mot. Ex. 25 at 2922. 43 Just-a few days later, on March 28, 2011, IMGinquired to defendants? Chairman Sultan about Scott Wilson?s identity: ?our lawyer is asking who is Scott Wilson-H1118 person who wrote to GAO about KGL continuing business with Iran? See KGL Mot. Ex. 28. knowledge iof a Wilson Letter recipient (GAO), and the pseudonym ?Scott Wilson? indicate its receipt of the Wilson Letters. receipt and Scott Wilson?s involvement are evident on the face of the Letters. The fact that IMG made its inquiry to defendants? Chairman Sultan suggests that IMG received the letters from defendants. Even if not conclusive, these facts create the reasonable inference that defendants published the Wilson Letters and falsi?ed attachments to That inference should be construed in plaintiffs? favor. Pilehesky, 12 A.3d at 443. Plaintiffs have likewise created areasonable inference of the publication of the Wilson Letters and their attachments to Baragona. Baragona, in fact, produced a ?Master Index of Documents? that ?catalogued various materials relating to the allegations, including both the Wilson Letters and the falsified KGL e-mails. KGL Mot. Ex. 70 at item nos. 56 and 63.. That index includes a ?le path document identi?cation number (see bottom left corner) that belongs to defendants? ageiit Ryan?s firm, McDermott. This suggests that Baragona received the defamatory materials from Ryan, acting as defendants? agent.l4 D. The Wilson Letters and falsi?ed e?mails applied to plaintiffs. Defendants admit that plaintiffs satisfy this element of their defamation claim. Joint Answer ii 117 (?Because the Wilson Letters explicitly mentioned KGL, this elem ent of Plaintiffs? primafacz'e showing is not at issue?). The falsi?ed e-mails attached to the Wilson Letters are KGL e-mails and thus likewise explicitly mention KGL. KGL Mot. Exs. 1, 4. ?4 Any one publication of the Wilson Letters satis?es plaintiffs? burden. For further detail on defendants? additional publications ofthe Wilson Letters and falsi?ed e-mails attached thereto, see KGL Reply at 53-54. 44 E. The recipients of the defamatory statements understood the communications as intended to apply to plaintiffs. - Defendants also admit that plaintiffs satisfy this element of their defamation claim. Joint Answer 1 18 (?Plaintiffs have identi?ed evidence that purports to show that Mr. Kowalski understood the Wilson Letters to be about In addition, IMG understood the falsi?ed e-mails attached to the Wilson Letters to apply to KGL. See, e. g, KGL ?Mot. Ex. 25 at DLA-00002922 (referring to March 2011 email chain show[ing] that KGL is still actively dealing with Valfajr?) (emphasis added); KGL Mot. Ex. 7. F. The recipients of the Wilson Letters and falsi?ed e~mails also understood the communications? defamatory meaning. Following receipt of the Wilson Letters, DLA referred KGL to DCIS for criminal investigation. KGL Mot. Ex. 20. If this does not conclusively establish that DLA understood the Wilson Letters and their attachments to- assert that KGL violated CISADA and submitted false certi?cations, it at least creates a genuine issue of material fact on this issue. In addition, IMG read and understood, and indeed used, the falsi?ed e-mails attached to the Wilson Letters to convey the message Wilson and defendants intended: that KGL violated CISADA as a result of an improper relationship with Valfajr and its use of the Merjan to transport CISADA-prohibited items to Iran. See KGL Mot. Exs. 7 at (citing attached Mar. 2011 emails,? IMG alleges that KGL has been involved in ajoint venture with an Iranian shipping concern (designated by the Treasury Department as engaging in activities related to the proliferation of weapons of mass destruction (Executive Order 13382)) and that, if KGL is engaged in delivering re?ned petroleum products to Iran, it would be ineligible for government contracts under the Act?s provisions?) and Ex. 25 at DLA- 00002914, 2922. IMG told the GAO that were involved in the ship?s delivery of 45 petroleum products to Iran (126., a possible CISADA violation) then KGL would be an ineligible government contractor under CISADA. See KGL Mot. Ex. 7 at PWC-PA-0002249. The fact that may have thought the Merjan was a tanker ship rather than a cargo ship does not mean the Wilson Letters and/or the falsified KGL e?mails were incapable of a defamatory meaning; it means they were capable of multiple defamatory meanings. In any event, IMG dropped the petroleum allegation in its protest of the DDKS contract. KGL Mot. Ex. 6. G. Doe?s and defendants? defamatory publications caused plaintiffs harm. At the threshold, upon a showing of actual malice, harm may be presumed. Joseph v. Scranton Times, L.P., 89 A.3d 251, 270?731(Pa. Super. Ct. 2014), reargument denied (Pa. Super. Ct. May 13, 2014), appeal granted, 105 A.3d 655 (Pa. 2014); KGL MSJ Opp?n B1. at 35-36. Plaintiffs have demonstrated that Doe and defendants acted maliciously in publishing the defamatory Wilson Letters and falsi?ed email attachments. KGL Mot. {[11 165-68; KGL Reply at 5 7?5 8; infra Section II at 56. Harm here should therefore be presumed. Even assuming plaintiffs have not yet established malice by Doe and defendants? with suf?cient clarity or that plaintiffs have not yet demonstrated adequate harm, the Court should not deny plaintiffs? Pifchesky motion. Under Joseph, plaintiffs are not obligated to demonstrate harm at trial. Therefore, it would be illogical for that requirement to preclude plaintiffs from proceeding at this preliminary stage. This is particularly true where, as here, plaintiffs have at least demonstrated the existence of a genuine issue of material fact as to defendants? malicious intent. Nevertheless, Doe and defendants? publication of the Wilson Letters and the falsi?ed e- mails attached to them has harmed reputation (1162., caused others to think the less of plaintiffs or doubt its fitness to be a US. government coriti?actor)wwhicli is all KGL needs to demonstrate in'this matter of defamation per se. KGL Reply at 41. Reputational harm does not even need to be long-lasting?momentary harm is recoverable actual harm. Brim?ch, 757 A.2d at 46 398 (?nding testimony that third party ?considered the possibility? that plaintiff used drugs was suf?cient to. prove general damages as a result of slanderous comment about drug use); KGL Mot. 1] 127. Plaintiffs have offered numerous indications of reputational harm, even if momentary, which is sufficient to overcome defendants? motion for summary judgment. KGL . Mot. 11721-23, Exs. 18-22; KGL Mot. ll 24, Ex. 24; KGL Mot.1lBO, Ex. 29. In the legal cause of a harm is one that is a ?substantial factor? in bringing it about. Joseph, 89 A.3d at 267; See also Takach. v. BM. C0., 420 A.2d 1084, 1086 (Pa. SuperrCt. 1980) (?It is settled that the standard of legal causation is not ?but for? but ?substantial - Mahon v. W.C.A.B. (Expert Window Cleaning (E: State Workers?Ins.?FundJ, 835 A.2d 420, 428-29 (Pa. Commw. Ct. 2003) (?the standard for legal causation is not the ?but for> test applied to determine if a cause is a cause in fact, but the ?substantial fabtor? test?). The Wilson Letters and their falsi?ed attachments were a substantial factor in bringing about the harm - plaintiffs Suffered. The record here reveals multiple instances and/or inferences of Wilson Letter recipients demonstrating, at a minimum, doubt as to fitness to be a U.S. government contractor because ofthe allegations in those Letters. See KGL Mot. 27-37, 133?39. Theharm following defendants? publications to DLA and IMG are particularly stark. First, upon receiving the Wilson Letters and falsified attachments, DLA referred KGL to DCIS for criminal investigation. KGL Mot. Ex. 23 at KGL Mot. Ti 22. Had DLA disbelieved the Wilson Letters, or found them irrelevant to status as a contractor, it would not have made such a referral.? Not only did the referral follow on the same day as ?5 On October 2, 2015, the Department of Justice sent plaintiffs' counsel a revised declaration from Mr. Kowalski, dated September 30, 2015, leaving undisturbed nearly all of his averments in his January 28, 2013 declaration. Ex. 4. The new declaration adds that Kowalski did not know that some ofthe KGL e-mails ?had allegedly been falsified prior to their submission to me? and that be forwarded the Wilson Letters ?to my superiors and through legal channels with the understanding that the Procurement Fraud Office would be addressing these 47 receipt of the first Wilson Letter, DLA expressly indicated that ?[t]he basis for [the referral] is the attached [Wilson] letter that was sent to the contracting officer at KGL Mot. Ex. 20 at DLA00000927. The defamatory publication was therefore, at a minimum, a substantial, if not the only, cause of plaintiffs? reputational harm. The fact that DLA ultimately was not deterred from contracting with plaintiffs has no effect on plaintiffs? harm. For one, the reputational impairment need not be permanent. So long as the communication?s recipient considers the possibility that the defamatory allegations may be true (as DLA did here in referring plaintiffs to DCIS for criminal investigation), the plaintiff has suffered general damages. Brinich, 767 A.2d at 398. Further, plaintiffs may recover for harm to their reputationswithout a showing that they lost a contractual opportunity as a result (126., economic damages]. KGL Reply at 41-43. - Second, IMG believed and relied upon the falsi?ed e-mails attached to the Wilson Letters in two GAO bid protests.- In those protests, IMG ?led the falsified e-mails with GAO in Support of their defendant-supplied accusation that KGL appeared to be violating CISADA, was not a reSponsible contractor, and that KGL should be debarred from federal contracting. KGL Mot. Ex. 7. This again demonstrates the causal connection between the defamation?s publication and plaintiffs? harm.16 allegations.? Id. at 18-19. Both new averments support plaintiffs? primafacr?e case of harm to its reputation, even if momentary. A reasonable inference can be drawn that Kowalski put more stock in those e-mails (Wilson?s ?compelling evidence") and Wilson?s accusations than he would have if he had known the e-mails were false. In addition, a reasonable inference can be drawn that Kowalski?s understanding that Procurement Fraud Of?ce would address the allegations re?ects doubt, even ifmomentary, whether KGL did what Wilson alleged and remained eligible to perform the DDKS contract. In addition, Kowalski would not have forwarded the Wilson letters to both his ?superiors" and ?through legal channels? if Wilson?s accusations and (false) evidence were meritless. Defendants likely disagree, but all reasonable inferences must be construed in plaintiffs? favor. '6 Even ifthere were other causes of plaintiffs? harm, that should not preclude this Court from ?nding that plaintiffs have met their primafacr'e burden. First, it does not negate the evidence showing that defendants? publications of the defamation were a substantial factor in causing plaintiffs? harm. Second, other potential causes of a plaintiff?s harm speak to the measure of damages, and do not affect liability. See. Joseph, 89 A.3d at 267 (?The ?nding (Continued:..) - 48 Moreover, defendants? agents spread the falsi?ed KGL e-mails and likely the Wilson Letters to Congressional offices, which resulted in letters from Members to the Secretary of Defense expressing concern about fitness as a U.S. government contractor and the propriety of contracting with KGL. See KGL Reply at 52-54; KGL Mot. Ex. 31 (e-mail between Ryan and Robert Goldberg, staff member for U.S. Sen. Kirk, providing Ryan-prepared draft letter for Sen. Kirk to send to Defense Secretary Gates with Ryan indicating that he will provide attachments); KG Mot. Ex. 29 (the ?nal Sen. Kirk letter attaches a Ryan?prepared index referring to and attaching the falsified KGL e?mail as Attachment 7 (at 00006363-67), with Sen. Kirk stating in his letter, am deeply concernedthat the Department of Defense would contract the services of an entity with suspected ties to the Islamic Republic of Iran and that may have engaged in sanctionable activities under U.S. law. If true, such an entity should not be allowed to access U.S. military facilities or in?uence our supply lines?). Evidence supporting that the falsi?ed KGL e-mails were a substantial factor in Sen. Kirk making those accusations is the fact that both Ryan and Sen. Kirk?s of?ce found them suf?ciently'important to attach to the Senator?s letter to Defense Secretary Gates. See also KGL Mot. Exs. 67?69 (Mar. 22, 2011 e-mails betvveen Ryan and Congressional staffer Beutel scheduling a meeting on the same day as the?rst Wilson letter to discuss ?urgent developments on KGL?Iran-and US contracting? and ?New KGL ties to Iran? with ?Attachments? to Ryan?s e- mail that defendants have failed to produce). See Taylor v. Swartwout, 445 F. Supp. 2d 98,102- 03 (D. Mass. 2006) (denying defendants? summary judgment motion where defamation claim based on circulation of alleged forged documents). that there were other causes for the damage to Appellants? reputations certainly impacts the quantity of the damages for which Appellees are liable; however, that does not negate liability?). 49 Defendants? agents also shopped at least the altered e-mails and the same Wilson?s accusations to members of the media, even boasting that they were the ?sources? behind a widely publicized ABC News story. See KGL Reply at 54; KGL Mot. Ex. 33 (ABC News, U.S. Gave Military Contracts to irm With Ailegedfran Ties); KGL Mot. 31-34, Ex. 37 (McDermott lawyer admitting that ?We are the unnamed sources? in the ABC News Story, which refers to ?dozens of company e?mails that were leaked to members of Congress earlier this year?); KGL Mot. Exs. 34, 35, 36 (McDermott calendar appointment indicating meetings with ABC news reporter); Joint Answer 1111 31, Si Ryan also shared information with members of the media? and that another defendant agent, Mr. Block, communicated ?with members of the media . regarding ties to sanctioned Iranian Banks also reyiewed the media stories and started rejecting ?nancial transactions for fear of processing a transaction with a potentially sa?nctionable party. See KGL Mot. 35~37, Ex. 40; Ex. 41, Dashti Dec]. 11 24. Additionally, defendants? accusations caused Director of Government Programs, a U.S. citizen and decorated former U.S. Navy of?cer, to be stopped at Dulles International Airport when trying to enter through U.S. Customs, made to wait for hours, and then questioned by two FBI agents about alleged ties to Valfajr and alleged Iran sanctions violations. KGL Mot. Ex. 41 at 1[ 25. This demonstration of reputational harm satis?es plaintiffs? burden. In it is not necessary that plaintiffs? reputational harm be accompanied by economic damages. KGL Opp?n Br. at 32?34. In libel cases, and in matters of defamation per 36, only ?general damages? or ?actual harm? (such as impairment of reputation and standing in the community) need be shown. Id; Agrz'ss, 483 A.2d at 474. 50 It is?similarly unnecessary under law that plaintiffs produce evidence of ?the perception of others? to prove ?actual harm? to a plaintiff?s reputation, much less testimony by third parties. KGL MSJ Opp?n Br. at 34-36. A plaintiff?s own testimony is suf?cient. 1d,; see also, Brim?ch, 757 A.2d at 398 (the plaintiff testi?ed that he was ?momentarily angered? by the alleged defamatory statement and the court held that this testimony met the plaintiff?s burden of proof on harm to his reputation). Plaintiffs have attested to the harm that they suffered as a result of the publication of the Wilson Letters and the falsi?ed e-mails attached to them. Mot. Ex. 41, Dr. Ali Dashti Dec]. This alone is suf?cient to demonstrate plaintiffs? harm. KGL Reply at 43:46. I Though not mandatory to recover on their defamation claim, plaintiffs also offered suf?cient evidence of special damages and ?speci?c instances? of economic loss to reach the jury. See KGL Mot. 1111 140-41.; Beverly Enters.,1nc. v. Trump, 182 F.3d 183, 188 (3d Cir. 1.999): Plaintiffs? evidence consists of bills itemizing costs incurred to respond to and mitigate their reputational harm. KGL Mot. Ex. 120.Hr ?7 These bills clearly link the out-of?pocltet losses tied to the Wilson Letters, the falsi?ed e-maiis, investigation of Wilson?s identity, and efforts to mitigate reputational damage. See, KGL Mot. BX. 120 (Mar. 23, 2011 narrative referencing Scott Wilson letter Mar. 22-31, 2011 narratives rc responding to use of Scott Wilson's falsi?ed KGL e-mails in GAO bid protest (KGL002473-2474, May 10, 201 1 narrative referencing ?status of DCIS investigation into Scott Wilson letter? May 20-21, 2011 narratives re ABC reporter re Iran allegations June 22-23, 2011 narratives re Baragona internet broadcast and McDermott providing documents to Baragonas July 1, 2011 narrative re Agility hiring lobbyist to lobby on CISADA July l, 2011 narratives re responding to Baragonas? defamatory statements in Internet broadcast July 17-19, 2011 narrative re ?research identity of Scott Wilson? and "forensic examination of Wilson and April 2011 April .2012 invoices for government relations work to mitigate damage from Wilson's CISADA accusations and the distribution ofWilson?s falsi?ed KGL e-mails to members of Congress II. PLAINTIFFS PROFFERED AN AMPLE AFFIDAVIT OF GOOD FAITH AND NECESSITY Plaintiffs? af?davit of good faith and necessity amply demonstrates the need for Wilson?s identity and plaintiffs? proper purpose for seeking it. Even defendants acknowledge that ?Plaintiffs have ful?lled the technical requirement of filing such an affidavit,? Joint Answer?l 142, though they contend (inaccurately) that it is substantively insufficient.18 At the threshold, defendants are wrong that the purpose ofthe affidavit is to pr?ovidethe Court a basis fer conducting its own, independent investigation. Plaintiffs are merely obligated to produce the af?davit attesting to their good faith and necessity. KGL Reply at 47-48; see also Pa. R. Civ. P. (in signing a ?ling, counsel certi?es that ?the factual allegations have evidentiary support?). Thus by attesting to the necessity of discovering Wilson?s identity and plaintiffs? proper purpose for pursuing it, plaintiffs satisfy this element. - Though the Court may end its inquiry there, the af?davit affinnatively demonstrates both the necessity of Wilson?s identity and plaintiffs' good faith basis for this lawsuit. KGL Mot. 142?55. Plaintiffs indeed demonstrate their need for Wilson?s identity because without it, they cannot name Wilson in this lawsuit and serve him with process. See, e. g, Polite v. AOL Time Warner, Inc, No. 03CV3218, 2004 WL 3768897, at *11 (Ct. Com. Pl. Jan. 28, 2004) (?nding disclosure of speaker?s identity appropriate, reasoning, in part, that ?in order for a civil or criminal action to be commenced and initial process to be served, [plaintiff] must determine the ?1 Additionally, without offering a single authority in support, defendants suggest that an af?davit of counsel should not satisfy this requirement. This unsupported argument is without merit. As both an af?ant and as an of?cer ofthe Court, Mr. Hammond is bound to provide this COurt with truthful testimony. Pa. R. Civ. P. 1023.1. He did. Any suggestion that he would do otherwise is baseless and inappropriate. As an attorney for plaintiffs, moreover, Mr. Hammond is plaintiffs' agent and his representations bind plaintiffs. See, Dekh'mki v. Marc/rem, 30 Pa. D. C.4th 435, 439 (Ct. Com. Pi. 1996). Further, ?[a]ny act other than verification required or authorized by this chapter to be done by a party may be done by the party's attorney.? Pa. R. Civ. P. 1002. There is thus no difference in an affidavit supplied by counsel, and one supplied by the client directly. Furthermore, counsel is in the best position to assess and attest to the legal bases for plaintiffs? need to uncover Wilson?s full and true identity. 52 identities of the culpable subscribers?). ?The plaintiff has a right to choose the party against which he desires to institute his See Feinaugie v. Pittsburgh Lake Erie RR. Ca, 595 F. Supp. 316, 318 (W.D. Pa. 1983). As a matter oflaw, plaintiffs are therefore not obligated to forege their claims against Wilson merely because defendants admit that they too can be liable on the basis of respondent superior. See Cosmos v. Bioomingdales Bros, Inc, 660 A.2d 83, 89 (Pa. Super. Ct. 1995) (availability of respondent superior liability of a principal ?does not however relieve the individual of his responsibility?) (internal quotation marks and citation omitted). Wilson?s identity is also needed so he can be deposed. Plaintiffs are entitled to depose Scott Wilson and inquire into his-?thoughts and editorial processes.? Herbert, 441 US. at 154, 160. This is necessary to establish the defamer?s intent, an inquiry to which a subjective standard applies. Weaver v. Lancaster Newspapers, Inc, 926 A.2d 899, 903, 905 (Pa. 2007) (courts look to the defendant?s ?subjective mental state?); see also Melvin, 836 A.2d at 46 9 t" (speakers identities are needed to evaluate the actual malice portion of Appellee?s burden of proof?); KGL Reply at 49~50. To depose Scott Wilson, plaintiffs must know Scott Wilson?s true and full identity so that they can issue a subpoena to him. Defendants? own publicly-filed annual report refers to Scott Wilson as an ?alleged former employee.?19 KGL Mot. 1] 3., Because he is a ?former employee,? plaintiffs cannot compel defendants to produce Wilson for a deposition. Wilson is a key fact witness whose testimony is central to core elements of plaintiffs? defamation claim. See, Doe v. 2TheMarr.c0m Inc, 140 F. Supp. 2d 1088, 1096 (WI). Wash. 2001) (speaker?s identity may be disclosed when it is ?needed to advance core claims or defenses?). For example, defendants contend that plaintiffs are obligated to prove malice. I9 Though defendants deny that Wilson is a former employee, emphasizing that he is an ?alleged? former employee, it is defendants themselves who ?rst made this allegation. Piaintiffs have never done so. 53 Wilson is the best witness to do so. A corporate representative would not be suf?cient for this I purpose. KGL Mot. 1h) 148-54; KGL Reply at 49. As discussed above5 malice is judged with a subjective standard; thus plaintiffs need to hear directly from Scott Wilson and those who assisted him.? Plaintiffs? need for Wilson?s identity is further enhanced by the unreaSOnably broad interpretation of Pitchesky defendants have adopted (and would likely continue to adopt in any corporate representative deposition). KGL Reply at 50; z'n?a Section Defendants indeed lodged Pitchesky objections to discovery requests on not only the identity of ?Scott, Wilson? but on a variety of other material topics: 1) falsity of the Wilson Letters;20 (2) due diligence that defendants undertook to verify the allegations in the Wilson Letters; (3) documents and . information (likely to include the Wilson Letters, falsi?ed KGL e-mails, ?white binders,? and other stolen KCL material) circulated to third parties such as DCIS, the FBI, the Baragonas, Congress and the media; (4) dates that certain documents such as the Wilson Letters and Ryan?s indexes of KGL research material were drafted, edited, ?nalized and signed; (5) the identities of those other Doe defendants who assisted Wilson; and (6) the purportedly ?anonymous and unsolicited emails? that defendants claimed to have received around the same time as the e?mails Wilson attached to his letters (and whether they included other exculpatory eumails). See KGL Mot. 145-46; KGL Reply at 50; KGL Reply Ex. 21 (Summary of Defendants? Pilchesky- Based Objections to KGL Discovery Requests). These withheld documents would demonstrate the falsity of defendants and ?Scott Wilson?s? accusations and defendants? actual knowledge or reckless disregard of that falsity at the time of the Wilson Letters. That evidence, in turn, would 2? Defendants also lodged frivolous relevancy and burdensome objections to discovery requests on the truth/falsity of the Wilson Letters and allegations that KGL violated U.S. law?requests-that obviously go to the heart of plaintiffs? claims. See KGL Mot. ii 145. 54 create a presumption of harm under law. in opposing plaintiffs? motion to compel the production of these documents, defendants must now reap what they have sowed. Piaintiffs? need for Wilson?s identity is additionally strong based upon defendants? efforts to obfuscate the truth of Wilson?s identity. Wilson could be a high level executive who, after learning. that DLA may award KGL the multi-miliion dollar DDKS contract, started orchestrating the Iran strategy by gathering information on KGL. Or he may be low level employee who simply hit button. Myriad possibilities exists between these two extremes, including that Wilson was himself a lawyer, or had the as'sistance of a lawyer, to help hone hisletters, even possibly adding grammatical errors to throw off the scent. He may be an employee or a former employee (defendants have said both). He may be a US. citizen or a foreign national outside thejurisdiction of the United States who believed he could act with personal impunity. Clearly, however, all defendants have devoted considerable time, effort, and resources to shield his identity. The only solid clue to date on Wilson?s identity is that, according to the DLA lawyer who referred KGL for criminal investigation, Wilson revealed himself as an ?attorney for a competitor to KGL Mot. Ex. 23 at DLA-00000964. Given that a lawyer has a duty of candor and there are penalties for making a false statement to federal officials, something Wilson clearly knew and stated in his letters, plaintiffs and the Court should take Wilson at his word. Indeed, circumstantial evidence suggests this is true, and defendants have not categorically denied it. The defendants? joint privilege log has more than 450 ?privileged? entries between August and November 2010 (during Ryan?s initial letter campaign to Congressional staffers), more than 250 entries in March 201 1 (month of Wilson Letters), and 67 entries from the day before through the day after the Wilson letters. See KGL MSJ Opp?n Br. at 16. If Wilson is a 55 lawyer for defendants, it directly conflicts with defendants? representations to this Court that Wilson is The two stories do not square. If Wilson is indeed a lawyer, as the evidence and inferences Construed most favorably for the plaintiffs suggests, his knowledge of CISADA could have a material effect on the C0urt?s Pilcheslgz analysis because actual knowledge of falsity or reckless disregard of the truth of Wilson?s accusations entitles plaintiffs to a presumption of harm. That potential ?ndings may help explain defendants? fight to keep Wilson?s identity a secret. THE EQUITIES BALANCE IN FAVOR Throughout the filings on their Pilchesky motion, plaintiffs have demonstrated that the balance of equities weigh in their favor, and the strength of plaintiffs? primafacie case outweighs any First Amendment right here. In balancing the equities, the ?court should examine the defamatory nature of the comments, the quantity and quality of evidence presented, and whether the comments were privileged,? as well as the ?forum in which the actionable comments arosel? Pr'lchesky, 12 A.3d at 445. The Court ?may impose additional requirements on a case by case basis as necessary.? 1d. at 446 n.18 At the outset, the strength of plaintiffs? primafacz?e case is significant, supra Section I (page 31). Even defendants do not challenge that certain accusations?in the Wilson Letters and falsi?ed that plaintiffs committed a criminal offense by making false statements to the government in violation of 18 U.S.C. lOOlw-are capable of adefamatory meaning. KGL Mot. 1111 97-99. Such accusations indeed amount to defamation per se; defamation so severe, it obviates a plaintiff? s. obligation to prove special damages. Plaintiffs have, at a minimum, demonstrated a genuinedispute of material fact, if not already proved the remaining elements of their defamation claim. This demonstration is supported by substantial evidence?"both in substance and in amount. Supra Section see generally Exhibits attached to KGL Mot. and 56 KGL Reply. This showing is alone enough to tip the balance in plaintiffs? favor by con?rming the legitimacy of plaintiffs? claims and well beyond the type of frivolous claims that Pilehesky is designed to weed out. The balance falls even more firmly in plaintiffs? favor when considering the commercial forum of defendants? defamatory speech. Defendants tailored the Wilson Letters and their falsi?ed emails to customers, U.S. government contracting officials, who had before them KGL contracting matters. This suggests, as further evidence confirms Mot. 169- 73), the Wilson Letters were designed to disrupt the DDKS award to KGL with the objective of disqualifying KGL and leaving only PWC to perform that valued contract. Defendants? own attorney admitted that the purpose of the Wilson Letters was ?to get this company barred from contracting.? KGL Mot. Ex. 37. This commercial purpose militates in favor of ordering defendants to reveal Scott Wilson?s true and full identity. Despite defendants? protestations, the Superior Court did not ?nd the contrary. in fact, it was ?unable to determine whether or not the author had an economic motivation for making the communication.? Kuwait Gulf Link Tramp, 92 A.3d at 50 (?nding there was ?no evidence indicating whether [Doe sent the Wilson Letters and their attachments] as a concerned citizen or whether he did so to advance the interests of Agility?). Indeed, the Superior Court had before it an incomplete factual record. Even still, that such an economic motive may not be suf?cient to render (in the Superior Court?s view) the speech ?commercial,? does not preclude this Court from finding that the commercial nature of defendants? defamatory speech counsels in favor of compelling disclosure. Condoning defendants? conduct here would provide an incentive to commercial competitors to defame one another anonymously. in other words, were companies able to 57 minimize if not eliminate liability by sending ?Scott Wilson? letters, they may be encouraged to do so to improve their own business prOSpects. This Court should not pardon such practices. ?Those who publish defamatory falsehoods with the requisite culpability. . . are subject to liability, the aim being not only to compensate for injury but also to deter publication of unprotected material threatening injury to individual reputation.? Herbert, 441 US. at 172. Defendants? conduct here provides ample evidence of the temptation to make ill- considered accusations against a competitor when the comments are not attributed. When- defendants were not hiding behind the ?Scott Wilson? name, they spoke more reservedly about whether KGL violated CISADA. In the ?Current KGL Ties to Iran? document, defendants stated tha through its subsidiary appears to continue to do business with two lranian entities, in violation of and also appears to have intentionally misrepresented these continued ties in formal communications to Congress . . . KGL Mot. Ex. 64 (summ ary, ?rst paragraph). In draft letters sent to Members of Congress, defendants? agent, Ryan, opined that CISADA may not apply to non-US. persons (such as KGL) when he requested that KGL certify its compliance with CISADA. See KGL Mot. Exs. 57 and 59 (Maloney letters); KGL Mot. Ex. 58 (Issa letter); KGL Mot. Ex. 86' (Kirk letter). In post-Wilson Letter messages to DCIS and the FBI, Ryan quali?ed accusations against KGL, using phrases like ?possible evidence of criminal conduct? and ?potential criminal violation.? See KGL Mot. Ex. 79; KGIJ Mot. Ex. 83. The ?anonymous? Wilson Letters, on the other hand, gave defendants the opportunity to make direct accusations of illegal conduct against KGL without attribution. Consistent with the way in which defendants varied their version of Wilson?s accusations against plaintiffs to best suit their needs, defendants have done the same in this litigation. Despite the?clarity and force with which the Wilson Letters accused KGL of violating CISADA 58 and falsely certifying compliance with CISADA to the U.S. government, defendants now seek to ire?characterize the letters. They ask the Court to ignore the accusations of?violating U.S. law and, instead, want to make their defamatory statements about relationships with Iranian entities. Defendants? attempts to rede?ne the defamation at this stage of the proceedings reveals that they recognize the falsity in the accusations, and counsels in favor of compelling defendants to reveal Scott Wilson?s true and full identity. - Further supporting the propriety of disclosure, in seeking to diSrupt U.S. government contracts, defendants acted maliciously. KGL Mot. 1111 165?d8; KGL Reply at 57-59. For instance, defendants published the Wilson Letters making criminal accusations against KGL by contending that the attached e?mails provide ?compelling evidence? of their truth. Yet defendants concede that they l?cannot validate the authenticity of these emails,? despite recognizing that authenticity of the e-mails was an issue. KGL Mot. Ex. 64. In fact, defendants failed to conduct due diligence prior to publishing the Wilson Letters. For instance, the first Wilson Letter was published on March 22, 2011. It attached internal KGL e-mails dated March 20, 201],just two days earlier. Defendants contend that they received these e-mails imsolicited from an anonymous source. Joint Answer 1] 60. 'Thus they took little or no time to investigate either the content or the authenticity of the e-mails before publishing them to government Contractingof?cials. Defendants were required to have a reasonable basis for believing'in the truth and trustworthiness of what they sent to the U.S. government on March 22-24, 2011. Montgomery, 69 A.2d at 526 (citations omitted). Reliance on an anonymous source without some independent investigation, at a minimum, evidences recklessness. 1d. at 528. The fact that defendants have yet to even retract their statements upon learning that plaintiffs explicitly deny their veracity, 59 Joint Answer 1i 66 (acknowledging View that the e-mails were ?doctored?); supra Section reinforces their malicious intent in republishing the materials. See, Weaver, 926 A.2d at 905-06 (?Republication of a statement after the defendant has been noti?ed that the plaintiff contends that it is false and defamatory may be treated as evidence of reckless disregard,? as may a ?refusal to retract a statement after it has been demonstrated to him to be both false and defamatory?). Not only were defendants obligated to assess the factual veracity of their allegations against plaintiffs, Scott Wilson has revealed himself as a lawyer, so they likewise had an ethical . obligation to ensure its legal accuracy. They failed to do so, further evidencing defendants? malicious intent. Even defendants acknowledge that this Court may take into account that malicious intent in balancing the equities. Joint Answer 11 165. Theabsence of any applicable privilege additionally favors disclosure here. The only privilege defendants seek to claim is one for ?judicial proceedings.? But, as previously detailed, the judicial proceedings privilege does not apply because the Wilson Letters were not sent in the regular course of judicial proceedings. Supra Section I.A.1. Rather, they were extra-judicial statements, published to persons without any judicial function, and made for purposes other than ?obtainingjudiciai redress. Even ifthejudicial proceedings privilege could apply, defendants defeated that privilege by over?publishing the Wilson Letters and Supra Section And, fundamentally, plaintiffs need Scott Wilson?s identity to proceed with and prove their claims. Supra Section II. Plaintiffs?need for Scott Wilson?s identity is even more compelling given defendants? broad refusal to respond to plaintiffs? discovery requests citing Pilchesky as a shield. Not only are defendants refusing to identify Wilson and the other Does but 60 they are also applying an overly broad interpretation of Pilchesky to withhold information relevant to plaintiffs? primafacie case. KGL Mot. BX. 116, Hammond Aff. 1] 9. For example, Defendants have objected to document requests about the truth of the Wilson Letters and their allegation that KGL violated U.S. laws. See KGL Mot. BX. 125 (Feb. 10, 2014 U.S. Defs.? Resps. to Second Set ofDoc. Reqs. Nos. 28-29); KGL Mot. Ex. 126 (Apr. 8-10, 2015 Kuwaiti and U.S. Defs.? Resps. to Third Set of Dec. Req. No. 10). They have refused to comply with discovery requests about their due diligence into the basis of the .Wilson Letters and the authenticity of the falsi?ed KGL e-mails. Yet, they concede that due diligence material is ?obvious[ly]? and ?highly? relevant. See, Sept. 23, 2014 Defs.? Opp?n to Motion to Compel zit-4 112. They have also withheld in discovery the ?white binders,? their research materials on KGL, as well as other dra? letters to DCIS, the FBI, members of Congress, the Baragonas, andlor the news media about the Wilson Letter allegations. See generally, Mot. Ex. 12? (July 2, 2015 letter from Krawiec to Hammond and July 2, 2015 letter from Freeman to Hammond). CONCLUSION Respectfully, for the foregoing reasons, defendants should be compelled to reveal the full and true identity of Scott Wilson and those that assisted him. 61 October 5, 2015 62 pect?il-iy submitted, ?a?mCJ-ammo?? Clifford J. Zatz Joseph L. Meadows CROWELL MORIN LLP 1001 Ave., NW Washington, DC. 20004 Phone: (202) 624-2500 Fax: 2 i202) 628-51E6 . A J. Robert ibeck, PA ID. No. 74486 Timothy J. Nieman, PA ID. No. 66024 Rhoads Sinon, LLP One South Market Square PO. Box 1146 Harrisburg, PA 17108-1146 PH: (717) 233?5731 Counsel for Plainti?fs' Kuwait Gulf Link Transport Company, KGL Logistics; and KGL Yt?ansportatwn Company CERTIFICATE OF SERVICE I hereby certify that on October 5, 2015, true copies of the foregoing document were served via Federal Express overnight delivery and e-mail to the following: George B. Faller, Jr., Esq. MARTSON LAW OFFICES 10 E. High St. Carlisie, PA 17013 Phone: (717) 243-3341 Fax:(717) 243-1850 E-mail: gfaller@martsonlaw.com Alan M. Freernan, Esq.? BLANK ROME, LLP Watergate 600 New Hampshire Ave., N.W. Washington, DC. 20037 Phone: (202) 772-5800 Fax: (202) 572-8370 E?mail: Freeman@BlankRome.com Attorneys for Defendants Agility DGS Holdings, Inc., Agility Defense Government Services, Inc. and Agility International, Inc. Jeffrey B. Rettig, Esquire JOHNSON, DUFF IE, STEWART WEIDNER 301 Market Street PO Box 109 Lemoyne, PA 17043 E-mail: jbr@jdsw.eom Margaret E. Krawiec, Esquire David B. Leland, Esquire SKADDEN, ARPS, SLATE, MEAGHER FLOM LLP 1440 New York Avenue, NW Washington, DC 20005 E-mail: margaret.krawiec@skadden.com E-mail: david.leland@skadden.com Attorneys for Defendants Agility Public Warehousing - Company KSC, PWC Transport Company W.L.L., and Agility DGS Logistics Services Company K.S.C.C. 63 EXHIBIT 1 TIMELINE OF EVENTS Date - 2005 DLA awards $180 million DDKS contract to defendants.' June 2008 RAKS charters Merjan Awa? to Valfajr.2 Sept. 10, OFAC'places Valfajr, and Oasis on SDN List. 2008 Nov. 2009 Defendants indicted for procurement fraud on food services contract.3 DLA suspends defendants from federal contracting.4 . Jan. - Feb. Defendants start looking into KGL and Iran because KGL is ?trying to take 2010 DDKS and. other business? away.5 Defendant agent Peters visits DLA regarding KGL, DDKS, and Iran.?5 (Defs.? privilege log lists 95 ?privileged? entries during this period.)7 July 1,2010 CISADA enacted.8 July 2, 2010- Defendants hire agent Ryan of McDermott ?rm as lobbyist/lawyer? Ryan?s Lobbying Registration form identi?es ?Implementation of as the subject matter.10 Ryan later bills defendants in May 2011 for work with DCIS, Congress, the Baragonas, and the media on the issue.?II Aug. l~ Nov. Agent Ryan sends draft letters to Congressional staffers requesting that they send 2010 the letters to regarding KGL, DDKS, Iran, and certi?cation of compliance with CISADA.12 Letters do not explicitly accuse KGL of CISADA violations. (Defs.? privilege log contains 456 ?privileged? entries during this period.)13 Aug. 2010 KGL sells its shares in and exits Combined Shipping Company Sale of CSC shares leaves KGL with 18% minority ownership in RAKS (with Dashti holding another 10% of RAKS shares in personal capacity).15 Aug. - Sept. RAKS regains possession of Awa? (Aug. 1) and then Merjan (Sept. 26) from 2010 Valfajr.16 RAISS charters Awafl to SeaCon (Aug. 26) and Merjan to Bright Ship (Sept. 26). Feb. 28, 2011 DLA awards DDKS contract to Mar. 1, 2011 As a result of DDKS loss, defendants expect to . . respond to investors, banks, etc. We can expect inquiries from the Kuwaiti press, wires and others.?19 Agent Ryan had sent his package? (withheld) to Congressional staffers and follows up with news on DLA award of DDKS contract to privilege log contains 257 ?privileged? entries this month. Mar. 2, 201] Defendants predict 40% drop in revenue due to loss of DDKS contract to KGL.22 Mar. 7-8, Defendants prepare memo with sections entitled, Commercial Ties to 201 1 Iran,? The Baragona Case,? and in Sudan.?23 Defendants? Chairman Sultan sends same and bid protest strategy to IMG.24 Mar. 16-22, RAKS Board Member Fard repeatedly told that RAKS will not renew the 201 1 Merjan charter to Bright Ship.25 Mar. 17, Defendants receive ?leaked? internal KGL materials (going back to 2010 and 2011 withheld in discovery) from alleged ?anonymous? source. Mar. 20-22, Defendants? Chairman Sultan ?focus? on ?27 Agent Ryan ?urgent? 2011 e- -mails (attachments withheld' 1n discovery) and meeting with Congressional staffers regarding KGL, DDKS, Iran, and ?breach of Iran sanctions law.? (Defs? privilege log contains 67? ?privileged? entries between Mar. 21- 25 .29) Mar. 22, Fiist Wilson Lettel ?Scott Wilson? s? letter to DLA regarding ?violation of US 2011 law committed by specifically CISADA, accmding to ?compelling evidence? of attached [falsi?ed] KGL e? mails.30 Mar. 22, DLA refers KGL to DCIS for criminal investigation.3 I 201 1 - Mar. 22?24, Defendants send falsi?ed KGL e-mails and Wilson Letters to IMG. IMG ?les 2011 falsified KGL emails in GAO bid protests of DDKS contract and DLA food services contract. It uses e-mails to allege that KGL may have violated CISADA and is not a responsible government contractor.32 Mar. 24, Second Wilson Letter ?Scott Wilson?s? ?follow-up? letter to DLA on KGL 2011 violating (313111111.33 . Mar. 24?29, Defendants prepare ?Cu1 rent KGL Ties to lran? memo and other KGL mater ial 2011 referencing Wilson Letters, authenticity of attached KGL c-mails, and stolen internal KGL material. 3 Mar. 30, Merjan leased to Simatech.3S 201 1 Date - .1 Mar. 31,- Agent Ryan contacts DOD Inspector Gene1al 16?) to p10v1de his? ?well 2011 developed? and ?extensive? ?le on KGL ?possible? ?c11mlnal conduct? 1n connection with U. S. sanctions and leasing Ofl hips to 11 anian entities.? ?Scott Wilson? identi?es himself to as an ?attorney for a competitor to KGL. ?37 Apr. 1, 2011 Agent Ryan forwards his DOD 1G e-mail to Congressional staffer who later puts Ryan in contact with the Baragonas.38 Apr. 14, McDermott lawyer working with Ryan meets with ABC rep01ter about KGL and 2011 Iran 39 Apr. 15, Agent Ryan e-mails FBI and DOD 16 information that he claims .2011 ?corroborate[s]? the falsi?ed KGL e-mails to show that KGL leased the Merjan to Valfajr and violated May 2011 Agent Ryan provides KGL indexes notebooks, diagrams, and on greatest hits? (all withheld 1n discovery) to Congressional staffersf? Ryan and the Baragonas together draft letters for and share KGL-binder material (withheld in discovery) with Congressional staffers.42 Congressional letters, including Ryan?s KGL indexes, Wilson Letters, and falsi?ed KGL e?mails, are sent to DOD and OFAC suggesting KGL violations of May 6, 2011 GAO dismisses IMG bid protests, ?nding that the DLA contracting officers did not act unreasonably when ?nding that the KGL-CISADA allegations could not be substantiated.44 May 13, Agent Ryan e-mails DCIS and the FBI an ?Update with additionalinformation 2011 on He references the ?hot doc book we gave you? (withheld in discovely) purportedly connecting KGL and the Merjan to Valfajr. Ryan states that this material should show that 1s not a responsible government contractor and it would be ?lunacy? for DLA to contract with 45 May 25, Agent Ryan delivers three to four ?white binders? of KGL documents (withheld 2011 in discovery) to the Baragonas. Ryan tells them he should not be providing the documents to them and that if he comes back into the conference room and the binders ?disappeared? ?sometimes things get lost??6 May 30, First Of three letters from Undersecretary of Defense Aston Carter finding, in 2011 coordination with the Department of State, ?no substantiated information - to include reported business links to the Islamic Republic of Iran Shipping?Lines, Al Fajr Valfaj-,r or Ha?z Darya Shipping Company that indicate any KGL Holding entity or af?liate has violated that would preclude KGL from being awarded a DOD contract. ?47 Agent Ryan e-mails Sen. Kirk? 5 office, ?If KGL gets listed as a banned entity, the Army and DLA would seem to have no choice but to get rid of them as a contractor.?48 June212011 ABC News article entitled US. Gave Military Contracts to Firm With Alleged Iran Ties, reporting that KGL was under investigation for violating CISADA, citing to ?dozens of internal company emails that were leaked to members of Congress earlier this year.?49 Agent Ryan?s McDermott colleague boasts, ?This is the story we've been working on. Mosk is the reporter 1 had coffee with?; are the unnamed sources [in the ABC News article]. We took this to the FBI. We took it to the hill, and we took it to the media. We are trying to get this company barred from contracting.?50 Ryan forwards ABC News article to defendants? Chairman Sultan who comments, Toast?? June 22, 2011 Baragonas broadcast Internet radio show on KGL, discussing agent Ryan ?white. binder? story and internal KGL e-mails allegedly linking KGL to weapons and other deliveries to Iran in support of its nuclear program.52 July 15,2011 Second letter from Undersecretary of Defense Ashton Carter ?nding no substantiated information that KGL violated CISADA (sent to Sen. Kirk)? Sept. 8, 2011 Third letter from Undersecretary of Defense Ashton Carter (sent to Rep. Ryan), stating that coordination with [the] IiiSpector General?s Of?ce and the Department of State, we have found no substantiated information that indicates KGL has violated that would preclude KGL from being awarded [a Mar. 19, Sen.'Menendez sends a letter, substantially ghost written by agent Ryan,55 to the 2012 US. Treasury, Under Secretary for Terrorism and Financial Intelligence, and to the Director of OFAC, citing internal KGL e-mails and stating, ?These vessels [Merjan and Awafi] were, as recently as March 201 1, still chartered to banned entity Valfajr.?56 Mar. 21, KGL ?les complaint in Court of Common Pleas.57 Defendants file 2012 answer nine months later.58 June 4, 2012 KGL ?les motion for return of stolen, internal KGL e-mails and documents.59 Court defers matter.60 11.-..- - - .. . . . 1 1, f. -.. .4.r-trg _-caerr1ttcn -. Dec. 2012- Pt?lchesky trial court and appellate level proceedings regarding disclosure of May 2014 Doe? identities.6 KGL serves second round of discovery but defendants lodge more Pitchesky objections.62 Defendants 3seek and obtain btoad discovery stay on matters ?relating to? Doe? identities.63 June 2014 Defendants begin litigation 1n D. C. to depose DLA witnesses and obtain DLA documents. 64 Pitchesky p1 oceedings6 to resume following defendants discovery efforts 1n DC. and DLA depositions.65 Sept. 2014- KGL ?les discovery motion for production of stolen, internal KGL e~n1ails and Apr. 2015 documents.66 Parties brief the matter following unsuccessful negotiations. Apr. 27, Court defers matter on stolen, internal KGL e-mails and documents pending 2015 Pz'lchesky resolution.67 Court enters Pitches/try brie?ng schedule.68 June 2015 Defendants adjourn Lussier deposition on suspect'perjuly grounds before KGL can cross- -examine him on e-mails produced 9by defendants showing his belief 1n a 2013 swom declaration given to KGL.69 July 2015 Court denies defendants? motion to strike DLA 2013 Lussier and Kowalski declarations, and denies plaintiffs? motion to suspend Pr?lchesky brie?ng.7o Aug. 2015 Pitchesky blie?ng begins with KGL Opening motion. Ten and ?fteen days later, defendants update p11v1ege logs with 779 new entries, for a total of 1532 e11tr1es. 72 . See ch Answer 11 109 .2 KGL Reply, Ex 3. 3See UnitedStates Pub. Warehousing Co., 2011 WL 1126333, *2 (ND Ga. Mar. 28, 2011). 41:131. Mot, Ex 5. 5 KGL Mot, Ex. 47. 5 KGL Mot, Ex. 51. 7 KGL SJ Opp?n Br. at 16. a Pub. 111-195 102(b), 124 Stat. 1312, 1321 (2010). 9 K61. Mot, Ex. 52. 1? KGL Met, Ex. 55 at KGL004263-4268. KGL Mot, Ex. 56. '2 KGL Mot., Exs. 57-59KGL. Mot, note 4 1311.12. ?5 KGL Reply, Ex. 3, Feb. 19, 2015 Pls.? Supp. Resps to Kuwaiti Defs.? First Set ofReqs. for Admiss. Interrogs. No.2. ?5 KGL Reply, Ex. 4, Attach. 4; Ex. 4, Rosenberg Dec]. 11 12. ?7 KGL Reply, Ex. 4, Attach. 6 (Merjan); Attach. 10. ?3 KGL Mot, Ex. 6. ?9 KGL Mot, Ex. 60. 2? KGL 1161,8162. 1' KGL SJ Opp Br. e116. 22 Reply, Ex 23. Mot, Ex 27 at PWC- PA- 000003- 6; Ex. 61, Feb. 27, 2015 Second Revised Answels and Objs. to Second Set of Inter'.1ogs Du 60th to PWC No 5. 2? KGL M61, Exs. 27, 61. 25K131. Rep1y, Ex. 4, Attachs. 10-12. 26Joint Answer 1] 60. 27 KGL 1161., Ex. 65. M61, B715 66- 69. SJ Opp Br. at 16. Mot, Ex 1 3' KGL M61DLA- 00000963. 32 See KGL M61, Ex. 6; Ex. 7; 14131. 171111 Reply at 51- 52. 33 KGL Mot. ., Ex. 4. M61, Ex. 64 35 KGL Reply, Ex. 4 Attach. 15 at 3? KGL 8161,1511. 77. KGL Mot, Ex. 23 a1 Exs. 78-80. 3? KGL Mot, Ex. 79. 39 KGL M61, Ex. 36. 4? KGL Mot, Ex. 81. ?1 KGL 1401., Exs. 31, 84, and 85. ?14131. 11161., 13715. 31, 85-89, 107, 110; KGL SJ Opp'n. 13113. 56, 8-9; *3 KGL Mot., Exs. 32, 90-91. 4? KGL 1.161., Exs. 6-7. ?5 KGL Mot., Ex. 83. 411101. M61, Ex. 95 at 11613000388 390. 47 KGL Mot, Exs. 15-16. OFAC later no past 01 p1 esent U. S. sanctions investigation into KGL In January 2013. 4? KGL M61, Ex. 85. ?9 KGL Met, Ex. 33. 5? KGL M61, Ex. 37. 5' 11.131. M61, E11. 115. 52 KGL Moe, Ex. 95. ?3 KGL Moe, Ex. 16. 5? KGL Reply, Ex. 6 at DLA-00012540 (emphasis added). 5? KGL Mot, Ex. 115. 5? KGL M61, Ex. 30 at KGL002556. 5? Mar. 21, 2012 KGL Complaint. 5? Dec. 5, 2012 U.S. and Kuwaiti Defs.? Answers. 59 June 4, 2012 KGL Mot. to Compel; Dec. 10, 2012 KGL Resp. 5" June 28,2012 Ordel. ?Kuwaitc? GulfLink 71111111317. Co. 11. Doe, 92 A. 3d 41, 44 (Pa Super. Ct. 2014) 62 Sept. 11,2014 KGL Mot. to Compel. ?3 June 27,2013 Orders; Aug 30, 2013 Order. 64 June 24,2014 Mot. to Enforce Subpoena (D. C. Super. Ct). 65 See June 25,? 2014 Hr' Tr. ?55 Sept. 11, 2014 KGL 1e Compel ?Apr 27,2015 Older. 5? Apr 27, 2015 Order. ?9 KGL Reply 11248. 7" July 20,2015 Orders. 1 7? Aug. 3,2015 KGL Mot. to Apply Pilchesky and Compel Disclosure OfJohn Doe identities. 72 KGL SJ Opp?n Br. at 16. EXHIBIT 2 GLOSSARY OF CERTAIN NAMES AND TERMS1 Abdulwahab, Mona Worked for Kuwait Gulf Link Transport Company as an Executive Secretary from June 5, 2004 until December 2006, and then worked for KGL Investment Co. as an Administration Manager from January 1, 2007 until March 30, 2010, when she was terminated. Instructed translator Osama Bitar to pick up documents that included stolen KGL documents from Agility headquarters in Kuwait. Sentenced on or about Feb. 13, 2015, by a Kuwaiti Court to ?ve years in prison for stealing approximately $600,000 from the personal bank account of former boss, Marsha (Maria) Lazareva, . Managing Director, KGL Investment. Appealing her conviction, but remains incarcerated. Adrian, Jake U. S. Army contracting of?cer for the ?Heavy Lift 7? contract. On March 22 and 24, 2011, ?Scott Wilson? e- -rr1ai1ed him the Wilson Lette1s. Al?Saieh, Henadi Director, Agility Altvater, Holger Vice President, Marketing, Agility (Kuwaiti defendant) Atiyeh, Nimr IMG Senior VP, Project Business Development He communicated with defendants on IMG bid protests. On March 28, 2011, Atiyeh asked defendants Chairman Sultan, ?our lawyer is asking who is Scott Wilson - the person who W1 ote to GAO about KGL continuing business with Iran.? Awa? Cargo vessel purchased by subsidia1y of RAKS and leased under Charter Party agreements with third palties Baragona, Dominic Father of Lt. Col. Dominic ?Rocky? Baragona who died in a vehicular'accident in Iraq involving a KGL truck and whose estate ?led a civil suit against KGL Baragona, Pamela (Pam) Sister of Lt. Col. Dominic ?Rocky? Baragona Beutel, Richard (Rich) Senior Advisor and Counsel for acquisition policy, House Committee on Oversight and Government Reform 1 Based on discovery to date. Bitar, Osama Translator located in Kuwait. Contacted by Mona Abdulwahab to pick up KGL communications and other documents from the offices of (Kuwaiti) defendant Agility/Public Warehouse Company in Kuwait. Bright Ship FZC A Dubai company that leased the cargo vessel Merjan from September 26, 2010 to April 10, 2011. Never Sanctioned by OFAC. Placed on the European Union sanctions list on December 1, 201 l. Buenning, David U.S. Army Sustainment Command recipient of Wilson Letters Bustami, Naser RAKS Board Member (representing Ras al-Khaimah Government) Combined Shipping Company (CSC) A Kuwaiti company established January 28, 2000. Originally 51% owned by KGL companies. KGL divested its ownership, in CSC as ofAugust 25, 2010. Concerned Patriot Name used by unidenti?ed John Doc to send Pam Baragona stolen KGL and other documents starting right after the Wilson Letters Cox, James (Jim) Vice President, Public Affairs Marketing, Agility Defense Government Services (U.S. defendant) Dashti, Saeed Chairman, Kuwait Gulf Link TranSport Company; RAKS board member (representing 10% of RAKS shares held in personal. capacity) Dashti, Dr. Ali Chairman, Kuwait Gulf Link Holding Company; Board member, Kuwait Gulf Link Transport Company DDKS Defense Distribution Depot Kuwait Contractor-owned, contractor-operated warehouse and distribution facility located in Kuwait under contracts with DLA Defense Criminal Investigation Service (DCIS) Investigation arm of the U.S. Department of Defense?s Office of Inspector General, and the of?ce to which DLA referred the Wilson Letters on the dates the letters were sent. Defense Logistics Agency (DLA) Department of Defense's largest logistics combat support agency; headquarters located at Ft. Belvoir, VA. Department of Defense Inspector General?s Of?ce Provides independent oversight of the Department of Defense. DCIS is part of the Inspector General?s Office. Desombre, Jean General Counsel, Agility Public Warehousing Company (Kuwait defendant) Fard, Moghaddemi RAKS board member (representing RAKS Managing Director. Added to SDN list on June 20, 2011. Great Ocean Shipping Company Simatech sub-chartered the Merjan to Great Ocean in April 2011. RAKS used Great Ocean for fresh water and spare parts supplies. In June 2011, OFAC added Great Ocean to the SDN list. Hoffman, Ted General Counsel, Agility DGS Logistics Services Intermarkets Global (IMG) A Jordanian logistics company. Filed Wilson?s falsi?ed e? mails in two bid protests at GAO involving KGL. Islamic Republic of Iran Shipping Lines (IRISL) Iranian company sanctioned by OFAC along with subsidiaries on September 10, 2008 Keshavarz, Capt. RAKS Board Member (representing Managing Director of Valfajr. - Kowalski, Me'dard DLA Contracting Of?cer, Defense Distribution Center, New Cumberland, PA Logan, Christopher (Chris) Chief Strategy Marketing Of?cer, Agility DGS Logistics Services Company Lussier, Normand (Norm) DLA Associate General Counsel (Contracting Integrity), Ft. Belvoir, VA Maersk Broker International shipping broker. RAKS retained Maersk Broker after regaining possession of the Merjan and Awa? to broker all ?iture leases of the ships. McCahon, Sam Former Vice President General Counsel, Agility Public Warehouse Company McDermott Will Emery Law firm retained by Agility DGS Holdings, Inc. (US. (McDermott) defendant) to lobby on its behalf with contributions from Agility/PWC; retained by Agility/PWC (Kuwaiti defendant) and its subsidiaries to provide alleged legal services. Merjan Cargo vessel purchased by subsidiary of RAKS and leased under Charter Party agreements with third parties Mongeon, Daniel (Dan) Chief Executive Of?cer, Agility Defense Government Services, Inc. (U.S. defendant) Oasis Freight Services LLC Logistics provider located in Dubai. Oasis supplied the Merjan and Awa? with fresh water, spare parts, and other SUpplies. Added to OFAC SDN List in September 2008. OFAC U.S. Department of Treasury, Of?ce of Foreign Assets Control Perles, Steven Perles Law Firm, partner. Counsel to Baragona family. Peters, Whitten (Whit) Williams Connolly LLP, partner. Counsel to Agility. Petrucelli, Leonard (Lenny) Vice President, Prime Vendor Direct Business Development, Agility Public Warehousing Company (Kuwaiti defendant) Poiing, Daniel DLA Associate General Counsel, Defense Logistics Agency, t. Belvoir, VA RAK Shipping Company LLC (RAKS) A company organized in Ras al-Khaimah, U.A.E., on June 5, 2007 and owner, through direct subsidiaries, of cargo vessels Merjan and Awa?. Ownership at time of Wilson Letters: Ras al-Khaimah Government 27% Combined Shipping Company 45% Saeed Dashti 10% KGL Holding Co. 9% KGL Ports Int?l Co. 9% Rosenberg, Allan RAKS board member (representing KGL Holding Co. shares in RAKS General Manager; CEO, KGL Ports International. Ryan, Steven (Steve) Partner in McDermott?s Washington DC. of?ce and head of its Government Strategies Practice Group SDN List List published by OFAC in the Federal Register with names of Specially Designated Nationals that are subject to OFAC-imposed sanctions - Sea Consortium Pte. Ltd. (also known as SeaCon) A Singapore shipping company. Never Sanctioned by OFAC Simatech Shipping Company LLC (Simatech) A Dubai, U.A.E., shipping company. Never sanctioned by OFAC Sultan, Tarek Chairman and Chief Executive, Agility Public Warehouse Company (Kuwaiti defendant) U.S. Army Sustainment Command The U.S. Army's logistics integrator for contingency and sustainment support headquartered in Rock Island, Illinois. It awarded the ?Heavy Lift 7? contract to KGL. U.S. Government Accountability Office (GAO) Part of the Congressional branch that, among other things, reviews and issues decisions on bid protests involving federal procurem ent contracts Valfajr Shipping Company (Valfajr and sometimes Valfajre) Subsidiary of Islamic Republic oflran Shipping Lines. Sanctioned by OFAC on September 10, 2008. Woods, Sharon Staff Director, Investigations Division, DLA Accountability Of?ce Woodward, Noel DLA Assistant General Counsel (Business Integrity), Ft. Belvoir, VA EXHIBIT 3 LIST OF KEY MATERIAL FACTS IN DISPUTE AND. EVIDENCE CREATING REASONABLE INF ERENCES IN PLAINTIFF FAVOR I. Publication by defendants A. Defendants and/or their agents published of Wilson Letters and falsi?ed KGL e- mails to persons other than those listed in the Wilson Letters: KGL Mot. 1111 10, 26, 114, Exs. 28, 1. To 118; PWC Answer1f 118. 2. To Baragonas KGL Mot. 1111 72-78. 3. To Congressional staff KGL Mot. 68?71. 4. To Media?oumalist KGL Mot- 1111 31-34, 31-33, 135?33. n. U.S. Defendants? Liability. KGL Opp?n to MSJ ?1 8, Ex. 11, Pls?- Interrog. Resps. 1-4, pgs. 6?42; A. . U-.S defendants and/or their agents knevv, approved, or participated in any KGL Opp? to MS 1 Br. at 51- publication of the Wilson Letters and/or the faisr?ed KGL e-malls and engaged in other conduct supporting liability of the tort claims. . - KGL Opp?n to Br- at 47- B. U.S. defendants are alter egos of the Kuwait Defendants. I The following abbreviations used for evidence should apply: Mot.? is Aug. 3, 2015 KGL Motion to Apply Pilcheslgz Compel Disclosure of John Does? Identities; Reply? is Sept. 14, 2015 KGL Reply in Support of Motion to Apply Pilchesky Compel Disclosure of John Does? Identities and ReSponse to New Matter; Opp?n to is Sept. 21, 2015 KGL Opposition to Defendants? Motion for Summary Judgment; and Opp?n to Br.? is Oct. 1, 2015 KGL Brief in Opposition to Defendants? Motion for Summary Judgment. This iist of key facts in dispute and evidence creating reasonable inferences is a summary and not intended to be exhaustive. Reference to paragraphs or sections of motions and briefs include the exhibits referenced therein. Defamatory Nature of Wilson?s Statel?ilents The Wilson Letters andfor the falsi?ed KGL emails contain statements that are capable of having a defamatory meaning- KGL Mot. 1111 93-100; KGL Reply at 21-26. B. The Wilson Letters and/or the falsi?ed KGL e-mails are reasonably capable of alternative meanings, at least one of which is defamatory. KGL Reply at 6-14; KGL Opp?n 1111 41?5 7. Falsily of Wilson Statements KGL Mot- 1111 16?19, A. KGL did not engage in any conduct sanctionable under CISADA. . Reply at 24-25. B. KGL did not submit false CISADA certi?cations. KGL Mot- til 16-19, 102-110; KGL . . 7 Reply at 24-25. C. A reasonable inference exists that KGL did not violated based on: 1- Two lettefs from Under Secretary of Defense Ashton Carter to Sen- McCaskiIl (May 30, 2011) and to Sen. Kirk (July 15, 2011) stating that the Under Secretary?s of?ce ?reviewed the information you provided about and that, ?In coordination with the Department of State, we have found no substantial information . . . that indicates any KGL Holding entity or af?liate has violated or that would preclude from being awarded a Department of Defense (DOD) contract,? andfor I 2. The Department of State, the agency with authority to review suspected CISADA violations, reviewed allegations against KGL in coordination with the Department of Defense and has not placed KGL on its list of persons sanctioned for CISADA violations- KGL Mot. 16?18, 102-110; KGL Reply at 24?25. KGL Opp?n to iBr. at 30. D. KGL did not actively and knowingly conceal the lease of the Merj an to Valfajr by resorting to practices such as the use of ?code names.? KGL Mot. 1111 102?110; KGL Reply at 21-33; KGL Reply Ex- 4, Rosenberg Dec]. 1] 24. falsity of Wilson 3 accusations regarding CISADA violation and criminally false CISADA certi?cations such that general damages are presumed. E. KGL management and its af?liates did not resort to ?deception . . . in clear KGL 102-110; KGL Reply violation of US law? as alleged by Wilson. at 2133?; KGL EX- 4, Rosenberg Dec]. ii 24. F. At the time of the Wilson Letters, KGL was a minority shareholder and did not KGL Reply at 22 control RAKS, making its conduct not attributable to KGL. V. Harm/Causation A. Wilson and defendants acted with actual knowledge or reckless disregard of the KGL 57, 65: 75, 166-63; KGL Reply at 57-58; KGL Opp?n to Br. at 37-38- B. -Wilson? 3 accusations of a CISADA violation criminally false CISADA certi?cations, and falsi?ed KGL emails were substantial causal factors, individually or collectively, in the decision by DLA Contracting Integrity personnel to refer KGL to the Defense Criminal Investigative Service for criminal investigation- KGL Mot- 1111 21?23; KGL Opp?n to MSJ Br. at 3941- C. The DLA personnel that participated in the decision to refer KGL for criminal investigation harbored doubts, even if momentary, about the prOpriety of DLA doing business with KGL or ?tness to be a US. government contactor based on Wilson?s accusations of a violation, criminally false CISADA certi?cations, and Wilson?s attached falsi?ed KGL e-mails.2 . KGL Mot. 1111 21?23, Exs- 13-22. 2 Based on discovery to date, it appears that the DLA personnel that participated in the decision to refer KGL for criminal investigation include John Kams, DLA Chief Counsel; Normand Lussier, DLA Associate General Counsel (Contracting Integrity); Noel Woodward, DLA Associate General Counsel (Business Integrity); and Daniel Poling, DLA Assistant General Counsel. See, KGL Mot. Exs. 18-21. La.) nee. D. The decision by DLA personnel to refer KGL for criminal investigation creates a reasonable inference that the DLA personnel harbored doubts, even if momentary, about the prepriety of DLA doing business with KGL or ?tness to be a US. government contactor. KGL Mot. 11'? 21-23, Exs. 18-22. E. The April 11, 2011 e-mail from DLA Noel Woodward (Assist. Gen. Counsel, Contracting Integrity) stating, has requested assistance from DA [Director of Acquisition] in obtaining a copy of the DLA contract to determine ifat the time of contract award KGL violated the Iran Sanctions Act,? creates a reasonable inference that Woodward harbored doubts, even if momentary, about the propriety of DLA doing business with KGL or ?tness to be a US. government contactor based on Wilson's accusations of a CISADA violation and criminally false CISADA certi?cations. KGL Mot- Ex. 24; KGL Opp?n to Br. at 41. . F- After reviewing the June 21, 201 News article entitled (1.8. Game Military Contracts to Firm With Alleged Iran Ties that cited ?dozens? of internal e-Inails . - - discussing the chartering of vessels? and KGL using ?coded language that would help them avoid the US. list of banned companies,? DLA Noel Woodward?s statement that ?we need to make sure we are still dealing with a responsible contractor? creates a reasonable inference that Woodward harbored doubts, even if momentary, about the propriety of DLA doing business with KGL or ?tness to be a US. government contactor. KGL Mot. ?ll 24, Ex. 24-. G. Other non-DLA Department of Defense personnel that received and reviewed the Wilson Letters} the falsi?ed e-mails, and/or the Congressional letters referring to those falsi?ed e?mails, harbored doubts, even if momentary, about the propriety of DLA doing business with KGL or ?tness to be a US. government contactor. KGL Mot. 1] 30, Ex. 29. H- IMG harbored doubts about the prepriety of DLA doing business with KGL or fitness to be a US government contactor as a result of reading the Wilson Letters and the falsi?ed KGL emails. KGL Mot. 1f 26, Exs- 6, 7, 25. I I. The Wilson Letters andlor?the falsi?ed KGL e-mails were a substantial causal factor in IMG alleging in two GAO bid protests that KGL may have violated CISADA, was not a reSponsible contractor, and that DLA should not award the DDKS contract to KGL- KGL Mot. 1m 10, 26, 114, Exs. 6, 7, 25, 28, 118- 3 Other Department of Defense of?ces receiving Wilson?s falsi?ed KGL e-mails and'likely the Wilson Letter include: Deputy Secretary of Defense, Department of Defense General Counsel; Department of Defense Inspector General, Chairman of the Joint Chiefs of Staff; and the Secretary of the Army. See KGL. Mot. Ex. 29 at (Secretary of Defense Correspondence Routing Slip responding to Sen. Kirk's letter). J. KGL incurred out?of-pocket pecuniary loss in the form of legal expenses incurred as a resuit of responding to the Wilson Letters and the falsi?ed KGL e?mails, including reSponding to defendants? additional publication of the Wilson Letters andfor the falsi?ed KGL e?mails to IMG, Congressional of?ces, and the media. KGL Mot. 11' 141, Ex- 41, Dashti Decl. 1[ 28-, BX. 120 (legal invoices); KGL Opp?n to Br. at 39. K. Ryan providing Baragona with the Wilson Letters, the falsi?ed KGL e-mails, and other information creates a reasonable inference that those documents were a substantial causal factor in Baragona making defamatory statements in her June 22, 201 1 Internet broadcast, including but not limited to: [Statements on next page] KGL Mot. in] 47, 72?73, Ex. 56; KGL Mot. Ex. 97 (Mar. 28, 2011 e- mail from Concerned Patriot to Baragona attaching one of Wilson?s KGL e?mails); KGL Mot. Ex. 95 (Tr. Of Baragona Broadcast, KGL000385 at lines 21?22, KGL000386 at lines 1?3 (describing e?maiI received from Concerned Patriot as ?puts all the pieces of the puzzle together? and the ?smoking- gun?); KGL000388-90 (Baragona describing how ?source? Ryan gave them binders of KGL documents); BX. 108 (Jun. 13, 2011 e-mail from Ryan to Baragona, looks a lot like an Iranian controlled entity. Let?s take this off e-mail and to the phones as we did this morning?); PWC Answer 1111 138?44; Agility DGS Holdings, Inc- Answer 'le 138, 140, 142-44. 1 Ev1den ce 1- mean, you know, like we see that the arsenals are packed in containers of milk So you could have milk on your cargo list, and behind the milk 13 which 15 like powdered milk. Behind the powdered milk 1s a whole bunch of weapons, you know, or a whole bunch of technology, the pieces to build the bombs.? - KGL Mot- Ex. 95, KGL000398, lines 19?23. 2. ?Because if Iran is-building the bomb and they're also supplying the weapons to our enemies, you know, if that's really happening, and KGL is the logistics coordinator. They're part of the shell company with the ships- They bring the ships back and forth, and they make sure that the cargo gets to where it has to go, that the weapons go back and forth to the different people . . KGL Mot. Ex. 95, KGL000397, lines 1549. 3. ?Somebody's got to buy the weapons, send them back and forth. KGL is the logistics transporter for that. They are the problem- Get rid of them-? KGL Mot. Ex. 95, KGL000398, lines 7?9. L. The Wilson Letters and the falsi?ed KGL e-mails were a substantial causal factor in Congressional of?ces sending letters to the Secretary of Defense, ghostwritten by Ryan, questioning or implying that KGL violated CISADAUS. government contractor, and that KGL may be sharing military logistical information with Iran. KGL Mot. 68?71, 75; KGL Reply at 53?54; KGL Mot. Ex- 95 KGL0003 86, lines 6-7 (Baragona ?wallpapered? Congress with KGL e-mail'attached to Wilson Letter). M- US. banks rejected KGL ?nancial transactions after reviewing open media A reports referencing leaked e-mails, which would have included Wilson?s falsi?ed KGL e?mails, discussing the leasing of the Merjan to Valfajr. KGL Mot. 111] 37-38; KGL Mot. Ex. 41, Dashti Decl, 24. VI. Defendants? Knowledge of Falsity/NIalice A. Defendants and their agents knew that neither KGL nor RAKS approved renewing the charter of the Merjan to Bright Ship- KGL Reply at 31?33. B. Defendants and their agents knew that approval of a charter of the Merjan was not by itself sanctionable conduct under CISADA. Opp?n to Br. at 30, n.22. C. Defendants and their agents knew that the e-mails attached to the ?rst Wilson letter had been altered or falsi?ed. KGL Mot. 1111 57, 66, 76, 103-109, 167?168- D. Defendants had possession or knowledge of the original unaltered e?mails attached to the ?rst Wilson Letter.- 1. Defendants? receipt and possession of thousands of stolen KGL e-mails and other KGL documents obtained in near real-time (which defendants are Withholding) creates a reasonable inference that defendants have or at one time had possession of the original unaltered KGL e-mail. KGL Mot. 1111 54-53. 2. Defendants obtained the stolen KGL e-mails in an electronic ?native? format containing the embedded ?metadata? that would, if examined, show that the KGL e-mails had been altered- KGL Mot. 95 at KGL000390, lines 15?23 (the unnamed ?source? Ryan telling Baragona that FBI has all the metadata in the e?mails to verify their authenticity); KGL Opp?n to Br. at 16. a) Defendants? failure to produce. the altered KGL e-mails in their ?native? electronic format with embedded ?metadata? creates a reasonable inference that defendants have or once had the ?native? electronic versions and therefore recklessly disregarded the embedded ?metada establishing that the e?mails had been altered. KGL Opp?n to Br. at 1517. E. Defendants have possession of other KGL e-mails sent between March 16?22, 201 l, informing Moghaddami Fard that the RAKS board would not charter the Merjan to Bright Ship. KGL Reply at 31-33; KGL Opp?n' to Br. at 15-17. 1. Defendants? receipt and possession of thousands of stolen KGL e-mails and other documents (but not produced) creates a reasonable inference that defendants have the KGL e-mails sent between March 16-22, 2011 informing Moghaddami Fard that the RAKS board would not charter the Merjan to Bright Ship. KGL Mot. 1111 54?58; KGL Reply at 33 n.15. F. The Wilson Letters were drafted andlor reviewed by a lawyer for the defendants with suf?cient knowledge to know that the conduct alleged 1n the Wilson Letters does not violate CISADA. - KGL Mot. 1f 65, Ex. 23; KGL Opp?n to Br- at 9. 1. The duty of a lawyer to have suf?ciently knowledge of CISADA to advise defendants on that law creates a reasonable inference that defendants and their lawyer/agents knew that the conduct alleged by Wilson did not violate CISADA. KGL Mot. 1165, Ex. 23; KGL Opp?n to Br. at 9. G. Defendants andfor their agents failed to conduct any due diligence, such as checking the metadata 1n the altered KGL e-mails, prior to publishing the Wilson Letters andfor the falsi?ed KGL e?mails. KGL Reply at 57-58; KGL Opp?n MSJ Br. at 16. H. Statements by defendants? agents around the time of the Wilson Letters that KGL may or possibly have violated CISADA creates a reasonable inference that defendants had actual knowledge of Wilson?s false unconditional statement that KGL violated CISADA and submitted false CICADA certi?cations. KGL Mot. 65. KGL Mot. Ex. 77; KGL Reply at 53-5 9. I. Statements by defendants that truth of the allegations in the Wilson Letters depends upon the authenticity of the e-mails attached to the Wilson Letters, creates a reasonable inference that defendants had actual knowledge of the falsity or substantial doubts regarding the truth of Wilson? 5 unconditional statement that KGL violated CISADA and submitted false CICADA certi?cations- KGL Mot. 1] 57, Ex. 64 at PWC- PA-0002688. VII. Non?identifying Facts About Scott Wilson KGL Mot. 1m 4, 179-180. Wilson is not a whistleblower- Wilson is a foreign national. B. Wilson is a lawyer for a competitor of KGLWilson is not a layperson. 65, Ex- 23- D. KGL Mot. 1111 40-61; 176-177. 10 EXHIBIT 4 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, KUWAIT GULF LINK TRANSPORT COMPANY, er a1. Plaintiffs, v. N0. 2012-1820-CIVIL JOHN DOE (alga. Scott Wilson), at al. Defendants. AFFIDAVIT OF MEDARD R. KOWALSKI. I, Medard R. Kowalski, certify as follows: 1. I am over the age of 18 and otherwise competent to make this declaration. 2. I am a Contracts Specialist with the Defense Logistics Agency and have been assigned to DLA Distribution located in New Cumberland, since April, 2005. I served as a supervisory Contracting Of?cer from October 2008 to December 2014 and as a non-supervisory Contracting Of?cer from December 2014 to present. 3. As a Contracting Of?cer, 1 possessed the authority to award U.S. government contracts using the procurement procedures contained in the Federal Acquisition Regulation- 48 C.F.R. pts. 1-53 (Oct. 2012), and the Defense Federal Acquisition Regulation Supplement 48 C.F.R. pts. 201-253 (Oct. 2012). 4. Before I could award a contract, among other requirements, I was required to make an af?rmative determination that the prOSpective awardec was a reSponsible contractor and not suspended or debarred from federal contracting. See 5. Among other requirements, I had to find that a prospective awardee had a satisfactory record of integrity and business ethics and was otherwise eligible to receive an award under applicable laws and regulations. Seal FAR and 6. The DLA Distribution Acquisition Operations Of?ce had a need for distribution operations in support of the U.S. Anny Central Command area of responsibility at the Defense Distribution Center Kuwait, Southwest Asia DDKS provided a strategic receive, storage, and replenislunent mission in additioa to operating the theater consolidation and shipping points that supported all U.S. units in the CENTCOM AOR. 7. On August 19, 2005, DLA awarded Public Warehouse Company K.S.C. a contract to provide the DDKS distribution and warehousing operations. The contract included a 1-year base period and four 1-year options. Including all options, the contract was set to expire on August 31, 2010. 8. DLA Distribution issued a new solicitation (SP3100-09-R-0004) on March 17, 2009 to recompete the DDKS warehousing and distribution contract before it expired. Proposals were due June 8, 2009. PWC/Agility submitted a proposal for the new award, which DLA Distribution began to evaluate and audit. 9. However, on November 9, 2009, and before any award, PWC/Agility was - indicted for consPiracy, wire fraud, and major fraud on three DLA contracts to provide subsistence items to military personnel in Iraq and Kuwait from 2003 to 2009. PWC/Agility was suspended from federal contracting by the DLA Suspension and Debarment Official on November 16, 2009, when the indictment was unsealed. 10. Pursuant to FAR subpart 9.4, suspended contractors are excluded from receiving contracts from the Government. Further, federal agencies may not solicit offers from, award contracts to, or?consent to subcontracts with, suspended contractors unless the agency head determines that there is a compelling reason for such action. 1 1. DLA Distribution eventually decided to conduct a new competitive procurement and issued a new Solicitation on March 25, 2010. 12. Under the provisions of the FAR, in order to allow Suf?cient time for DLA Distribution to conduct the new procurement to replace PWC/Agility, and to allow anestimated 6-month transition to a new DDKS contractor, DLA Distribution issued two sole-source awards extending PWC/Agility?s period of perfomance beyond the August 31, 2010 expiration date of the DDKS distribution and warehousing contract. However, because PWC/Agility was suspended from federal contracting, the two extensions could only occur based on compelling needs as supported by a written determination and ?nding approved by the DLA Director. On August 26, 2010, PWC/Agility?s period of performance was extended from September I, 2010 to February 28,2011, and on February 18, 2011, the period of performance was again extended iiom March 1, 201 to August 2011. 13. K61. Logistics was the only non-suspended offeror that submitted a preposal in response to solicitation On February 28, 201 1, 1 awarded a contract to KGL Logistics to provide DDKS distribution and warehbusing services in Kuwait, including commencing the estimated 6-month transition of the work from PWC/Agility to KGL Logistics. This single source award was justi?ed, in part, because, other than PWC/Agility - - which was suspended from federal contracting in and around February 28, 2011 - - KGL Logistics was the only other company with the physical and geographical resources available to provide the required warehouse and distribution services needed in, Kuwait. 14. On March 22, 201 l, and again on March 24, 20] I, I received separate e?mails from ?scottwilson1994@gmail.com? that each attached a signed letter (with additional attachments) from ?Scott Wilson" (the ?Wilson Letters"). Copies of the Wilson Letters that I received are attached hereto. See Exhibit A and Exhibit B. 15. I Opened and read each of the Wilson Letters on the same date each was sent to me. 16. I understood that the Wilson Letters alleged, among other things, that: (1) Kuwait Gulf Link Transpovt Company does business with Iranian entities in violation of the Comprehensive Iran Sanctions, Accountability and Divestment Act of 20l0; (2) a Board member of KGL, Mr. Saeed Dashti, and the Chief Executive Officer KGL Ports International, Mr. Alan Rosenberg, engaged in e-mail communications in an effort to lease a vessel to an Iranian company, Valfajr, that is listed on the US. Department of Treasury?s list of Specially Designated Nationals; (3) KGL management was aware that its conduct in leasing the vessel violates U.S. sanction laws and KGL management was trying to hide its conduct by using ?code names;" (4) KGL made false statements to US. goverrunent of?cials in violation of 18 U.S.C. 1001 regarding its ties to Iranian companies in an effort to secure US. government contracts; and (5) KGL should be suspended and debarred based on the foregoing allegedly illegal conduct. 17. interpreted these allegations as applying to KGL and its subsidiaries, including KGL Logistics. 18. . I forwarded the Wilson Letters to my superiors and through legal channels with the understanding that Procurement Fraud of?ce would address these allegations. 19. I was not aware at the time of receiving and reading the Wilson Letters that some of the emails attached to the Wilson Letters had allegedly been falsi?ed prior to their submission to me. I 20. I depose and say, subject to the penalties of 18 ?4904 relating to unsworn falsification to authorities, that I am Medard R. Kowalski, and that the facts set forth in this declaration are true and correct to the best of my knowledge, information and belief. Date: 3?9 56?? 7130/5 MWMW Signature Exhibit 7 (thrusting 'l??es?a Ema Summary: Kuwait ?it Gulf Link Transport Company, through its subsidiary RAK Shipping, appears to continue to do business with two Iranian entities, in violation of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 KGL also appears to have intentionally misrepresented these continued ties in formal cemmunieations to Congress and non-governmental organizations claiming they have severed such ties. CISADA expands the scope of companies covered under the original Iran Sanctions Act to include foreign subsidiaries and af?liates. Under CISADA, ?the head of an executive agency may not enter into or renew a the procurement of goods or services with a person that exports sensitive technology to Iran.?1 (See Attachment 1) In addition, the Act requires amendments to the Federal Acquisition Regulations to certify that each offeror, and any person owned or controlled by the offeror does not engage in any activity for which sanctions may be imposed under the Iran Sanctions Act.2 (See Attachment 2) Despite evidence that KGL may still be doing business with Iranian entities, KGL has continued to receive federal contract awards, apparently in violation of statutory requirements for full and open competition. .In 2010, KGL was awarded a sole-source contract for Contractor- Owned/Contractor-Operated (COCO) storage and distribution capability within Kuwait (Solicitation SP330010R0020). This contract, however, was cancelled on October 19, 2010 by the Defense Logistics Agency On ebruary 1, 2011, instead of issuing a new solicitation under full and open competition as required by law, DLA issued Amendment 8 to the cancelled solicitation, which improperly ?reinstated? the cancelled contract. On February 28, 201 1, KGL was awarded a second sole-source contract with a value of over - Evidence also shows that DLA Contracting Of?cers have informed KGL of complaints against them and the evidence being presented to DLA showing alleged business dealings of KGL with Iranian companies listed on the Specially Designated National List of the US. Treasury Department?s Office of Foreign Controlled Assets instead of investigating the allegations, it appears DLA is ?tipping off? KGL as to the evidence being presented. Histogy of KGL ?s Ties to Irgn: KGL boasts on its website that it supplies thousands of trucks, cars, global freight management, and supply chain management for US. forces and diplomats in the Middle East, particularly Iraq 7 and Afghanistan. Yet the company has been in a joint venture with an Iranian campany to operate ports and ships that have been sanctioned by the US. for aiding Iran in evading sanctions and in its pursuit of weapons ofrnass destruction, contrary to US. national security interests. 1 "Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010,? 22 U.S.C. ?8515. (See also ?Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010," HR. 2194, See. 102 at page 7). 2 ?Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010," HR. 2194, See. 102 at page 10. KGLOO3561 CONFIDENTIAL TREATMENT REQUESTED KGL 000481 Speci?cally, while KGL has been paid millions of dollars from past. US. gore; inherit contracts, the press reports3 (See Attachment 3) it entered into venture with Vali?ajt' Shipping through its subsidiary Combined Shipping Company (See Attachment 4) to operate a ferry in the Abadan port in Iran as. well as terminals in Ras Al Khaimah, which has been accused of being involved in aiding Iran?s petrochemical industry.? (See Attachment 5) Valfajr was listed by the US. Department of Treasury?s Of?ce of Foreign Asset Control as a Specially Designated National as a subsidiary of the Islamic Republic of Iran?s Shipping Lines which OFAC said ?facilitate[s] the transport of cargo for UN. designated proliferators, also falsi?es documents and ?uses deceptive schemes to shroud its involvement in illicit commerce.5 (See Attachment 6) KGL Holding and KGL Ports were also partnered with IRISL in another company, RAK Shipping, where each owned a share of the compan in addition to shares held by their joint venture CSC and the Res Al Khaimah Government. (See Attachment 7) In 2008, IRISL and other shareholders loaned money to RAK Shipping to purchase two cargo ships, the Merjan and the Attachments? 8) The Merjan and Awa? are registered under RAK 9 (See Attachment 9) but were also identi?ed as managed by Ha?z Darya Shipping Co, or .HDS lines by the US. Treasury's Of?ce of Foreign Controlled Assets,? (See Attachment 10) which listed HDS and the Marian and Awa? on the SDN list on June 16, 2010." (See Attacl?tment 1 1). OFAC said HDS was ?aiding IRISL in evading sanctions.""? In addition, OFAC listed another entity KGL does business with, Oasis, as a subsidiary of IRISL and placed it on the SDN list.(See Attachment 6) Oasis also is known to operate for HDS and its managing director is Mohammad Reza Moghaddami Fard, an Iranian national, who was also a board member of RAK Shipping. ?3 (See Attachment 12). 3 Moves to Boost Presence in iron a?er Upgrade Restructuring Plan Yields Positive Results," March ll, 2010, last accessed July 29, 2010, at l. 4 Agency Agreement between Valfajr 8 Slipping and Combined Shipping Company, 5 January 2002. 5 ?Valfajr Shipping Enters the Petrochemical Materials Market," Tatar boursc Internet Forum (Persian, August 19, 2008 at See also: ?Inauguration of the Qeshm-RAK Shipping Line,? Topiranian Website - _t .hrmi. Both links last accessed on August 4, mm noted as footnotes in English in ?Ras Al Khairnah: A Gateway to Trade with Iran,? Mercury Public Affairs, LLC, February 8, 2010, at 4. 6 ?Major Iranian Shipping Company designated for Proliferation Activity," Press Release, US. Department of the Treasury, September 2008. (available at) 130.htm, September 10, 2003, at l_ 7 Resolution of the Board of Directors Shipping Ltd, adopted 22 April 2008 showing percentage of shareholdings of RAK and loan amounts from each shareholder to purchase Awa? and Merjan. Account of loaned amounts from IRISL, dated 5 January 2011 and sent to lose Joseph at RAK Shipping from A. Zahcdifar. Finance Director, Oasis (a subsidiary of IRISL) on 5 January 201]. 9 Merjan and Awaii Ship Particulars, RAK Shipping documents. m? iranian Entity: Ha?z Darya Shipping Company," Summary by lranWatch entered September 3, 20 showing the Merjan and Awa? were managed by Ha?z Darya Shipping (and originally also listed on SDN list), accessible at: (accessed March 20?) Press Release issued by the United States Treasury Of?ce of Foreign Controlled Assets on June 16, 9.010. ?lbitl,1ttne to, 20m Press Release by US Treasury. ??lrnninu Entity: Oasis Freight Shipping," Iran Watch document modified March 2, 201 l, showing Oasis as subsidiary of which operates for HDS, with Mohammad Mogbaddami Ford as managing director. KGL003562 CONFIDENTIAL TREATMENT REQUESTED KGL 000482 Reports also link KGL to construction of a diamond-polishing factory at Ras Al Khaimah, linked to arms dealer Victor Bout and his associates.? (See Attachment 13 page 14?19, full report provided upon request) In addition, KGL Ports international reported on the KGL website that it was in partnership with Damietta International Port in Egypt ?5 (See Attachment 14) Peter Banham, of KGL, signed an agreement with on June 12, 2007 on behalf of DIPCO to assist IRISL in its shipping operations through Damietta.l6 (See Attachment 15) KGL ?s .S?Jaremenrs Regarding [is In 2010, Board member, Dr. Ali E. Dashti, wrote to United Against Nuclear Iran, that and its af?liates will not engage in any transactions for goods or services with any business or supplier that is known by KGL to be an Iranian entity or located in Iran." 17 (See Attachment 16) Similar assurances were reported by blogs as having been given to members of Congress. '3 Despite these assurances there is evidence KGL is still doing business with Iranian entities, speci?cally Valfajr and Oasis, subsidiaries of IRISL and listed by OFAC on the SDN list. In a note prepared by a person at KGL regarding history, it appears that Moghaddami Ferd, managing director of Oasis, continues on the Board of RAK Shipping, allegedly representing KGL Holding Company. ?9 (See Attachment Evidence 0: Current Ties to Iran: 011 March 8, 2011, a series of emails sent to outsiders by an anonymous source appear to show communications mainly between Allan Rosenberg, CEO of KGL Ports International and Mohammed Moghaddami Fard, an Iranian national and Managing Director of Oasis, an IRISL subsidiary, which also acts for HDS, both listed on the SDN list, as noted above. (See Attachments 6, 10, 11 do 12) The emails also include the managing director of Valfajr, Captain H. Kcshavarz, who is requesting the continuation of the chartering of the ?Meiji an,? a vessel owned by nan Shipping, but bought with money loaned by IRISL and listed on the SDN not.? '4 "Ras Al Khaimah: A Rogue State within compiled by Mercury Public Affairs LLC, February 8, 2010 at 14. '5 KGL. cached website showing KGL Ports International ownership of Damietta Ports International. Available at: (Cached and accessed on March 28, 201].) '6 Terminal Contract Between Damietta International Pen; Compnay and Islamic Republic of Iran Shipping Line, signed December 12, 2007 by Peter Banham, KGL. Ports International for Damietta. '7 Press Release by United Against a Nuclear Iran, Applauds KGL For Ending Its Business in Iran," December 1, 2010, Available at: ending-its-business-iran (Accessed March 21,2011). Defense Contractor Misleads Congress, Wins 157 Million Contract.? Posted March 16, 201] by truth has changed, available at: 157-million-contractl ?9 Note prepared by KGL employee showing history of RAK Shipping ownership, listing Moghaddamid Ford as current Board member. 2" ?Iranian Entity: Ha?z Darya Shipping Company," Summary by IranWatch entered September 3, 2010, accessible at: (accessed March 27, 2011) KG L003563 CONFIDENTIAL TREATMENT REQUESTED KGL 000483 (See ?111 on t11111- 7 do 9) which OFAC says no. by I: lit Darya Shipping Linesappear to be aiding}? SL111 evading sanctions. ?21 (f1 as inn! uti H) In a message to Moghaddami Fard, the managing director of Oasis, from Capt. H. Keshavarz, the Managing Director of Valfajr Shipping Company, dated March 8, 2011, Keshavarz indicates Valfajr wants to charter a vessel from Oasis, stating: ?Surely we need the vessel and the charter rate will be what Seacon pays for Awa?.? Moghaddami Fard then emails Alan Rosenberg, the Chief Executive Of?cer of KGL Ports International (KGL PI), asking ?Can we iive with this proposal?? Emails go back and forth between Fard and Rosenberg about pricing of the vessel, with Mr. Rosenberg stating in one message: ?Certainly, we will charter out to the highest paying and most reliable charterers,? and also stating, ?As you know, I will always charter the vessels out subject to Board Approval,? when Fard raises the issue, saying ?If we don?t want to give them the vessel that is a different story and we need to involve Mr Dashti as well.? Another email exchange on March 18, has Moghaddamid Fard identifying the charterer as ?Valfajr? and Allan Rosenberg saying, ?Unless I am mistaken, we will be in violation with international sanctions if we charter to Valfajr and likewise unable to maintain our P851 coverage!" Moghaddami Fard responds that when he says ?V?Valfajr" he means ?Bright Ship.? But also points out to Rosenberg that ?Bright Ship? is a shareholder and they should keep the charter with them. . Both complain to Mr. Saeed Dashti for the proposed charter deal. Saeed Dashti is identi?ed in a repOrt on its general assembly as Chairman and CEO of the Kuwait and Gulf Link Transport Company He 1s also a personal shareholder of RAK Shipping, having bought shares' 1n June 2008.2 2(See Attachment 16). Responsibilities As noted above, Valfajr Shipping and Oasis Freight Services Paci?c Shipping Company) have both been identi?ed as subsidiaries of Islamic Republic of Iran Shipping Lines by the United States Treasury Of?ce of Foreign Controlled Assets and designated for sanctions in September 2008 for providing logistical services to Iran' 8 Minisoy of Defense and Armed Forces Logistics and ?facilitat[ing] the transport of cargo for U. N. Designated ?7'3 (See Attachment 6) The designation imposed by the U. S. government ?prohibit[s] all transactions between the designees and any U. 5. person, and freeze[s] any assets the designees may have under U. jurisdiction ?24 Oasis and Valfajr were also listed by the 2? Press Release by US. 22. Draft .Share Sale/Purchase Contract between Saeed Esmail Dashti and IRJSL Middle East for shares in RAK Shipping. 2? ?Major Iranian Shipping Company designated for Proliferation Activity," Press Release, U.S. Departmont of the Treasury, September 10', 2008. (available at) September 10, 242008, at l_ at 2. KG L003564 CONFIDENTIAL TREATMENT REQUESTED KGL 000484 European Union on July .26, 20?} as entities linked to Iran's proliferationnsensitive nuclear activities or hair's development of nuclear weapon delivery systems through their association with rarsn25 . As noted above, under CISADA, the Federal Acquisition Act was revised to require to a certi?cation from each person that is a prospective contractor that the person, and any person owned or controlled by the person, does not engage in any activity for which sanctions may be imposed. Under the Act, Congress required the FAR be amended so that if the head of an executive agency determines that a person has submitted a false certi?cation on or after the rules are effective, the head of the agency shall terminate the contract or debar or suspend them from eligibility for Federal contracts for a period of up to 3 years?? It appears that instead of investigating any allegations of continued ties with Iran, DLA contracting of?cers are warning KGL of protests and promising to obtain overrides from the agency. (See Attachment Condysiott While we cannot validate the authenticity of these emails which are clearly intended to appear as authentic conununications leaked by someone inside KGL, the emails, along with public documents show continued ties between KGL, RAK Shipping and IRISL If U.S. intelligence or law enforcement agencies can authenticate these communications, past representations to Congress and the U.S. government regarding the severing of its ties to Iran would constitute multiple felony violations of 13 U.S.C. ?1001 by having made ?any materially False, ?ctitious, or ?'audulent statement or representation and regulations.?27 In addition, any certi?cation that may have been made for purposes of compliance with 22 ?85 15 would also appear to have been false. - 35 ?Council Decision of 26 July 2.1} [0 concerning restrictive measures against Iran and repealing Common Position ZUGWMHICFSP auailnble at: on tvtareh :32. 201 I). 2" [ran Sanctions, Accountability, and Divestment Act of 2010," HR. 2194, See. 102 at page 10. 2" Is list}. also! (and). KGLOO3565 CONFIDENTIAL TREATMENT REQUESTED - KGL 000485 1 Exhibit 8 Mont KGL Ties to Iran Summary: Kuwait Gulf Link Transport Company, through its subsidiary RAK Shipping, appears to continue to do business With two Iranian entities, in violation of the Comprehensive Iran Sanctions,-Accormtability, and Divestment Act of 201 0 KGL also appears to have intentionally misrepresented these continued ties informal communications to Congress and non-governmental organizations claiming they have severed such ties. CISADA expands the scope of companies covered under the original Iran Sanctions Act to include foreign subsidiaries and af?liates. Under CISADA, ?the head of an executiVe agency may not enter into or renew a contractufor the proctnement of goods or services with a person that exports sensitive technology to Iron.?1 (See Attachment 1) In addition, the Act requires amendments to the Federal Acquisition Regulations to certify that each offeror, and any person owned or controlled by the offeror does not engage in any activity for which sanctions may be imposed under the Iran Sanctions Act? (See Attachment 2) Despite evidence that KGL may still be doing business with Iranian entities, KGL has continued to receive federal?contract awards, apparently in violation of statuttiry requirements for full and open competition in 2010, KGL was awarded a sole-source contract for Contractor- OwnedJConn'actor-Operated (COCO) storage and distribution capability within Kuwait (Solicitation SP33001 030020). This contract, however, was cancelled on October 19, 2010 by the Defense Logistics Agency On February 1, 2011, instead of issuing anew solicitation under ?rll and open competition as required by law, DLA issued Amendment 8 to the cancelled solicitation, which improperly ?reinstated? the cancelled contract. 011 February 28, 2011, KGL was awarded a second sole-source contract with a value of over Evidence also shows that DLA Contracting O?cers have informed KGL of complaints against them and the evidence being presented to DLA showing alleged business dealings with Iranian companies-listed on the Specially Designated National List of the US. Treasury Department?s Of?ce ofForeign Controlled Assets Instead of investigating the allegations, it appears DLA is ?tipping oft? KGL as to the evidence being presented. Rigor}; ?s Ties to Iran,- KGL boasts on its website that it supplies thousands of trucks, cars, global freight management, and supply chain management for US: forces and diplomats in the Middle East, particularly Iraq and Afghanistan. Yet the company has been in a joint venture with an Iranian company to operate ports and ships that have been Sanctioned by the US. for aiding Iran in evading sanctions and in its pursuit of weapons of mass destruction, contrary to US. national security interests. Iran Sanctions, Accomtabiliw, and Divesnnent Act of 2010,? 22 U.S.C. ?58515. (See also' ?Comprehensive Iran Sanctions, Accomtability, and Divesunent Act of 2010,? RR. 2194, See. 102 at page 7). 3 ?Comprehensive Iran Sanctions, Accormtability, and Divestment Act of 201 HR. 2194, Sec. 102 atpage 10. - i 000159 KGL004484 Speci?cally, while KGL has been paid millions of dollars from past US government contracts, the press reports3 (See Attachment 3) it entered into a joint venture with Val?jr Shipping through its subsidiary Combined Shipping Company (See Attachment 4) to operate a ferry in the Abadan port in Iran as well as terminals in' Ras Al Khaimah, which hasheen accused of being involved in aiding Iran?s petrochemical industry.? (See Attachment 5) Valfajr was listed by the US. Department of Treamuyfs Of?ce of Foreign Asset Control as a Specially Designated National as a subsidiary of the Islamic Republic of Iran?s Shipping Lines which OFAC said ?facilitatc[s] the tramport of cargo for UN. designated proliferators, also falsi?es documents and uses deceptive schemes to shroud its involvement in illicit commerce.6 (See Attachment 6) KGL Holding and KGL Ports were also-partnered with in another company, RAK Shipping, Where each owned a share of the compan in addition to shares held by their-joint venture CSC and the Ras Al Khaimah Government. (See Attachment 7) In 2008, IRISL and other shareholders loaned money to RAE Shipping to purchase two cargo ships, the Meljan and the Attachments 7 a 8) The Marian and Awa? are registered under RAK 9 (See Attachment 9) but were also identi?ed as managed by Ha?z Darya Shipping Co., 01' HDS Lines by the U.S. Treasury?s Of?ce of Foreign Controlled Assets, 1? (See Attachnient 10) which listed H133 and the Merjan and Awa? on the SDN list on June 16, 2010.? (See Attachment 1 1). cane said HDS was ?aiding nusr. in evading sanctions?? In addition, OFAC listed another entity KGL does business with, Oasis, as a subsidiary of IRISL and placed it on the SDN lisL(See Attachment 6) Oasis also is know to operate for HDS and its managing director is Mohmnmad Reza Moghaddami Ferd, an Iranian national, who was also ?a board member Shipping. ?3 '(See Attacmem 12). Moves to Boost Presence in Iran after Upgrade Restructuring Plan Yields Positive Results,? wwarahtimesonlinecom, March 11, 2010, last accened'ialy 29, 2010, at 1. Agency Agreement between Volfajr 8 Slipping and Combined Shipping Company, 5 January 2002. 5 Shipping Enters the Petrochemical Materials Market,? Talar hoarse Internet Forum (Persian, August 19, 2008 at See also: ?Inmtguration ofthe Qeahrn-RAE Shippmg Line," Topiranian Website _}.htm1. Both links last accessed on August 4, 2010 noted as fcomotcs'in English in ?Ras Al Khaimah: A Gateway to Trade with Iran,? Mercury Public A?airs, LLC, February 8, 2010, 51:41 6 ?Major Iranian Shipping Company designated for Proliferation Activity,? Press Release, US. Department ofthe Treasury, September 10, 2008. (available at) September 10, 2008. at l_ . - Resolution ofihe Board ofDirectors Shipping Ltd., adopted 22 April 2008 showing percentage of 'shareholdings of RAK and loan amounts from each shareholder to purchase Awa? and Merjan. 3 Account afloancd amounts from IRISL, dated 5 January 2011 and sent to Jose Joseph at RAK. Shipping from A. Zahedifar, Finance Director, Oasis (a subsidiary of IRISL) on 5 January 2011. 9 Moijan and Awa? Ship Particidars, RAK Shipping documents. - Iranian Entity: Ha?z Darya Shipping Company," Smnmary by IranWatch entered September 3, 2010, showing the Marian and Awa? were managed by Ha?z Darya Shipping (and originally also listed on SDN list), accessible at; (accessed March 2?7, 2011) 12 Prices Release issued by the United States 'n'casury O?'ice ofPoreign Controlled Assets on June 16, 2010. Droid, J?une 16,2010 by us . . B?Tranian Entity: Oasis Freight Shipping,? Iran Watch domnnent modi?ed March 2, 201 i showing Oasis as subsidiary of IRISL, which operates for HDS, with Mohammad Moghaddami Ford as managing director. ,2 . . BARAGONA 000160 KGL004485 Reports also link KGL to construction of a diamond-polishing factory at Ras Al Khahnah, linked to arms dealer Victor Boot and his associates.? (See Attachment 13 page 14-19, full report provided upon request) In addition, KGL Ports International reported on the KGL website that it was in partnership with Damictta International Port in Egypt (See Attachmont 14) Peter Banharo, of KGL, signed an agreement With IRISL on June 12, 2007 on behalf of prone to assist eaten in its shipping operations through someone.? (See Attachment 15) KGL ?s Statements Re fag he Current hes a Iron In 2010, Board member, Dr. Ali E. Dashtl, wrote to United Against Nuclear Iran, that and its a?liates will not engage in any transactions for goods or services with any bushress or supplier that is known by KGL to be an Iranian entity or located in Iran." ?7 (See Attachment 16) Similar asma were reported by blogs as brewing been given to members of Congress.? Despite these assurances there is evidence KGL is still doing business with Iranian entities, speci?cally Valfajr and Oasis, subsidiaries of IRISL and listed by OFAC on the SDN list. In a note prepared by a person at KGL regarding history, it appears that Mogbaddami Ford, managing director of Oasis, con?nues on the Board Shipping, allegedly representing KGL Holding Company.? (see Attachment 17) Evidence; at Current 223g [0 from On March 8, 2011, a series of emails sent to outsiders by an anonymous 30111336 appear to show communications mainly between Allan Rosenberg, CEO Ports International and Mohammed Moghaddami Ferd, an Iranian national and Managing Director of Oasis, an IRISL subsidiary, which also acts for-EDS, bum listed on the SDN list, as noted above. (See Attachments 6, 10, ll 12) The emails also include the managing director ofValfajr, Captain Kcshavam, who is requesting the continuation of the chartering of the ?Merj an,? a vessel owned by RAK Shipping, but bought with money loaned by IRISL and listed on the SDN list.? 1" ?Rae A1 Khairnah: A Rogue State within compiled by Mercury Public Affairs LLC, February 3, 2010 a - 14. . ?5 K61. cached website showing KGL Ports International ownership of Damiano Ports international. Available at: (Cached and accessed on March 28, 2011.) ?6 rel-main Contract Between Damietta International Port Compnay and Islamic Republic of Iran Shipping Line, signed December 12, 200? by Peter Baptism, KGL Ports International for'Darnietta. . ?7 Press Release by United Against a Nuclear Iran, more Applauds KGL For Ending Its Business in ban,? December 1, 2010, Available at: ending-its-bushress-iran (Accessed March 21, 2011). Defense Connector Misleads Congress, Was 15? Million Cenunct," Posted March 16, 2011 by trod: has changed, available at: 157-mi11ion?contractf ?9 Note prepared by KGL employee shown history Shipping ownership, listing Moghaddsmid Ford as meat Board member. . 2" Entity: Ha?z Darya Shipping Company,? Summary by IranWarch entered September 3, 2010, accessible at: (accessed March 27, 2011) BARAGONA 000161 KGL004486 (See Attachments 7 9) which OFAC saysI are managed by Ha?z Darya Shipping Linesappear to be ?aiding IRISL in evading sanctions.?2 (See Attachment 1 1) In a message to Moghaddm? Ferd, the managing director of Oasis, from Capt. Keshavarz, the Managing Director of Volta]: Shipping Company, dated March 8, 2011, Keshavarz indicates Valfajr wants to charter a vessel from Oasis, stating: ?Surely we need the vessel and the charter rate will be what Beacon pays for Awa?." . Meghaddann' Farsi then emails Alan Rosenberg, the ChiefExecative Of?cer of KGL Ports international (KGL Pl), asking ?Can we live with this proposal?? Emails go back and forth between Ford and Rosenberg about pricing of the vessel, with Mr. Rosenberg sta?ngh: one message: ?Certainly, we will charter out to the highest paying and roost reliable charterers,? and also stating, ?As you know, I?will always charter the vessels out subject to Board Approval,? when Ferd raises the issue, saying ?If we don?t want to give them the vessel that is a different story and we need to involve Mr Dashti as well.? Another email exchange on March 13, hasMoghaddamid-Fard identi?ring the charterer as ?Valfajr? and Allan Rosenberg saying, ?Unless I am mistaken, we will be in Violation M111 international sanctions if we charter to Valfajr and likewise unable to maintain our coverage!? Moghaddazni Ferd responds that when he says ?Valfajr? he means ?Bright Ship.? But also points out to Rosenberg that ?Bright Ship? IS a shareholder and they should keep the charter ninth them. Both complain to Mr. Saeed Dashti for the proposed charter deal. Saeed Dashti is identi?ed in a report on its general assembly as Chairman and CEO ofthe Kuwait and Gulf Link Transport Company He' is also apersonal shareholder of RAE. Shipping, having bought shares in June 2008. 22 (See Attachment 16). DLA ?s Remmibili?es As noted Shipping and Oasis Freight Services (aka. Paci?c Shipping Company) have both been identi?ed as subsidiaries of Islamic Republic of Iran Shipping Lines by the United States Treasury O?ce of Fore1gn Controlled Assets and designated for sanctions in September 2008 for presiding logistical services to Iran?s Ministry of Defense and Armed Forces Lzogistics and ?facilitat?ngl the transport of cargo for UN. Designated proliferators.. ?23 (See Attachment 6) The designation imposed by the U. S. government prohibit[s] all transactions between the designees and any U. S. person, and freeze[s] any assets the designees may have under U. S. jurisdiction. ?2 Oasis and Valfajr were also listed by the 2? Press Release by U. S. 11 Draft Share Saleleehase Contact between Saeed Benoit Dashtl and IRISL Middle East for shares' In RAK Shipping. .33 ?Major Iranian Shipping Company designated for Proliferation Activity, Press Release, U. S. Department of?re Treasury, September 1.0, 2008. (available September 10, ',2003 BARAGONA 000162 KGL004487 Binopean Union on July 26, 2010 as entities linked to Iran's proliferation-sensitive nuclear activities or Iran?s development of nuclear weapon delivery systems through their association withIRlSL25. - As noted above, under CISADA, the Federal Acquisition Act was re?ned to require to a certi?cation from each person that is a prospective contractor that the person, and any person owned or controlled by the poison, does not engage in any activity for which sanctions may be imposed. Under the Act, Congress req?red the PAR be amended so thatif the head of an executive agency detennines that a person has submitted a false certi?cation on or after the mice are effective, the head of the agency shall terminate the contract or debar or suspend them from eligibility for Federal contracts for a pedod ofup to 3 years?? it appears that instead of investigating any allegations of continued ties Iran, DLA contracting o?cers are warning KGL of protests and promising to obtain ovenides from the agency. (See Attachment . goncZusion While we cannot validate the authenticity of these emails which. are clearly intended to appear as authentic communications leaked by sonieone inside KGL, the emails, along with public documents Show continued ties between KGL, RAK Shipping and IRISL If Us, intelligence or law enforcement agencies can authenticate these communications, past representations to Congress and the US. government regarding the severing of its ties to Iran would constitute multiple felony violations of 18 13.8.0. ?1001 by having made ?any materially false, ?ctitious, or ?audulent statement or representation and regulations?? In addition, any certi?cation that may have been made for purposes of compliance with 22 U.S.C. ?8515 would also appear to have been false. ?5 ?Council Decision of26 July 2010 concerning restrictive measmes against Iran and repealing Common Position available at: on Mackinaw 1). a 3? ?Comprehensive nan SanctiOns, Accountab ility, and Divestment Act of 20 10:1 an 2194, See. 102 atpage 10. 1" 13 use? ?1091(a)(2). 1? .. 5 .. - BARAGONA 000163 KGL004488 i {if-Sir AND NOW, the undersigneil hereby c??i?es that oniF?bmar'y LG, .2018, copies of the foregoingiwere setvejd upon the other parti?sr-of ?y??r?gt class "mail, Postagejprepaid, fl; addressed as follows: Rob art?'1. Tribeg?k, Esquire 3 David C. Hammond, Esquire Ste?hani'c Clifford J. Zat?z, Esquire LLP Me?adbws,?Esquire 1:2'th F1001- CROWELL .Hax??bung, PA 1710-111. 1-30.01 PEI-ms?wl?a. Avenue; NW 'Wa'shiligton.1D'C 2000.4 5 CbunSelfor: Pl?iiztl? By: Wag?d Apnea (J Margaret E. .Kr?awi'e'c 1-1 mum55.55.55 . . . H, . . .. . .- e, ?f1_ 35"- y; -. 21-, 3N: a '14 i CERTIFICATE OF COMPLIANCE I certify that this ?ling. comphes With the prov1smns of the Public Aac'ess Policy of the Umf? ed Judmal System Ca?se- Records of the Appellate and rial Courts that- require ?ling con?dentlal Information and documents differently than non-con?dential informatlon and documents Submitted ?by- SKADDEN, ARPS Slgnature ?atrd gaunt. iName Margaret Krawiec Attorney No. (if applicable