Case Document 160 Filed 05/18/18 Page 1 of 19

 

 

 

 

 

SENT 
WENT
UNITED STATES DISTRICT COURT ELECTRONICAH  .i -. 3-151 
SOUTHERN DISTRICT OF NEW YORK {30ANDREA K. TAN TAROS, an individual, ?a

 

 

 

Plaintiff,
- MEMORANDUM DECISION
'agamst' AND ORDER
FOX NEWS NETWORK, LLC, ROGER AILES, 17 Civ. 2953 (GBD)

WILLIAM SHINE, IRENA BRIGANTI,
PETER A. SNYDER, DISRUPTOR, INC.,
and JOHN 1?50,

Defendants.
- .. 

GEORGE B. DANIELS, United States District Judge:

Plaintiff Andrea K. Tantaros,pr0 39, brings this action against her former employer, Fox News
Network, LLC, as well as several current and former Fox News employees, and a private contractor
allegedly hired by Fox News. (See Am. Compl., ECF No. 124-2.) She claims, among other things,
that Defendants hacked, or ordered others to hack, Plaintiff personal computer and work?issued
cellphone and used information from her con?dential communications to harass her. (See generalfy
Plaintiff also claims that Defendants physically surveilled her and secretly recorded her at work
without her consent. (Id) Plaintiff claims that Defendants did SO in response to her making repeated
allegations of sexual harassment against senior Fox News executives. (See id.)

Plaintiff asserts claims underthe federal Wiretap Act, 18 U.S.C. 251 1, against all Defendants
for allegedly electronically surveilling her personal communications. (Am. Compl. at 33?34.) She

also asserts claims against Defendants Fox News, the late Roger Ailes,1 and former Fox News

 

1 After Defendant Roger Ailes?s death in May 2017, Plaintiff, then represented by counsel, voluntarily
dismissed all claims against him, (ECF No. 33), and moved to join his estate as a defendant in this action. (See
ECF No. 92.) Now that she is appearing pro 56, Plaintiff has renewed her motion to join the Estate of Roger
Ailes (the ?Estate?) as a defendant. (See ECF Nos. 148, 151.) Ailes?s former counsel notes that, as of March
27, 2018, the Estate has not been served with either pleading in this case, (see Letter to this Court from Peter
E. Calamari dated Mar. 27, 2018, ECF No. 153, at 1), and Plaintiff has not provided this Court with any

 

Case Document 160 Filed 05/18/18 Page 2 of 19

executive William Shine for allegedly directing others to unlawfully access Plaintiff? 3 electronic
devices to View her emails, text messages, and other communications, in Violation of the Stored
Communications Act, 18 U.S.C. 2701. (Id. at 34?35.) Finally, Plaintiff asserts claims under New
York law against all Defendants for intentional in?iction of emotional distress based on Defendants?
alleged illegal electronic and physical surveillance of her, and their use of fake Twitter accounts to
communicate to Plaintiff that she was being watched. (Id. at 35.)

Defendants Fox News and Irena Briganti (the ?Fox News Defendants?), Shine, and Peter
Snyder and Disruptor, Inc. (the ?Snyder Defendants?), move separately, pursuant to Rule l2(b)(6) of
the Federal Rules of Civil Procedure, to dismiss Plaintiff?s amended complaint for failure to state a
claim upon which relief can be granted.2 (See Shine Mot. to Dismiss, ECF No. 139, at 1; ox News
Defs. Mot. to Dismiss, ECF No. 142, at 1; Snyder Defs. Mot. to Dismiss, ECF No. 144, at 1.) Plaintiff
?led a memorandum of law in opposition to Defendants? motions to dismiss, in which she largely
repeats the same factual allegations asserted in her amended complaint. (See generally Pl.?s Mem. in
Opp?n to Mot. to Dismiss ECF No. 147.)

Defendants? motions to dismiss are GRANTED.

 

evidence to the contrary. As the amended complaint was ?led on January 29, 2018, the time for such service
to be effected has expired. See Fed. R. Civ. P. 4(rn). Moreover, for the reasons explained below, Plaintiff?s
amended complaint fails to state a claim as to Defendant Ailes. See in?a Part 111. Accordingly, Plaintiff? 3
claims against Ailes are dismissed, rendering moot Plaintiff?s renewed motion to join the Estate as a defendant.

2 Plaintiff?s initial complaint, filed by her ?rst attorney, was dismissed after Plaintiff decided to proceed pro
39 with an amended complaint. (See Order dated Feb. 8, 2018, ECF No. 134, at 2.) Plaintiff?s second set of
attorneys ?led the proposed amended pleading on her behalf. (See Letter to this Court from Christopher A.
Parlo dated Jan. 29, 2018, ECF No. 124, at Accompanying Plaintiff?s proposed amended pleading was a
letter signed by her stating that the amended complaint ?contain[s] additional information [not pled in the
initial complaint] and additional details . . . to better explain [her] case.? (Letter to this Court from Andrea
Tantaros dated Jan. 29, 2018, ECF No. 124?1, at 1.)

 

Case Document 160 Filed 05/18/18 Page 3 of 19

I. FACTUAL ALLEGATIONS

Plaintiff is a former anchor, host, and political analyst for ox News. (Am. Compl. 1] 17.)
Plaintiff claims that for many years, she and other female employees at Fox News faced ?rampant?
sexual harassment from senior executives, including Roger Ailes, the company?s former chairman
and chief executive officer.3 (Id 1]1] 3, 26, 65.) Plaintiff alleges that on August 4, 2015, while she
was walking to a taping of a Fox News program, Ailes ?looked [her] up and down and smirked, [w]e
need to get you a tighter dress.? (Id 1] 26.) Plaintiff responded by telling Ailes that the dress had
been provided by Fox News?s wardrobe department and that ?if [he] ha[d] a problem with it, [he]
should take it up with them (Id) From 2015 through April 2016, Plaintiff flled several
complaints with Defendant William Shine, alleging harassment, retaliation, and a hostile. work
environment at Fox News. (Id. 1]1] 31, 62.) At or about that time, Shine held the title of senior
executive vice president of Fox News. (Id. 1] 20.) Plaintiff claims that Shine served as ?Ailes? [sic]
primary enforcer and enabler, particularly with respect to retaliation against women who complained
about sexual harassment.? (Id)

A. Electronic and Physical Surveillance

Plaintiff claims that Defendants targeted her for electronic and physical surveillance after she
lodged complaints of sexual harassment against Ailes and other Fox News executives. For example,
Plaintiff believes that Fox News hacked her personal computer and gained unauthorized access to her
Gmail account. (Id. 1]1] 28?30.) Plaintiff further alleges that on August 6, 2015mtwo days after Ailes
commented on Plaintiff?s out?t?Fox News asked her, as well as other employees, to provide their

personal laptop computers to the company?s IT and digital department so that the computers could be

 

3 Plaintiff previously ?led an action in state court against Fox News and other defendants, alleging sexual
harassment by Ailes and another Fox News employee. (See Compl., ECF No. 5, 1] 9.) Those claims are now
in arbitration and are not the subject of this lawsuit. (See id. 1] 9?10; Am. Compl. 1] 8.)

3

 

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formatted for use during a ?Live Tweet Session? being held during one of the presidential debates.
(Id. 1] 26.) Plaintiff claims that ?[s]hortly after that time period,? she began receiving notices from
Gmail alerting her to the fact that ?someone had logged into her account.? (Id. 1[ 28.) The emails
were allegedly received between 12 pm. and 1 pm, when Plaintiff was hosting her live, on-air Fox
News program and could not change her password to prevent access by unauthorized users. (Id)
Plaintiff alleges that her receipt of the Gmail noti?cations was ?extremely stressful and distracting?
and that the noti?cations were deliberately sent at those times to ?throw [Plaintiff] off her game in
front of millions of viewers.? (Id)

Plaintiff alleges that a forensic examination of her laptop computer revealed malware ?likely
giving whomever placed it the ability to access her communications, documents, and personal email,
including gmail (Id. 1] 29.) The amended complaint cites the following ?technical and
procedural irregularities? noted in the forensic report:

0 During forensic analysis, Malicious software was found in the downloads
directory and according to the run activity history, had been executed on
the system. This suggests the capability of remote access or monitoring of
Ms. Tantaros? communications.5

0 Multiple wireless network connections to differing access points were seen
in the logs on Ms. Tantaros? laptop, indicating a potential attack against the
machine using compromised or rogue access Wifr access points. Other
than the Fox News Debate Tweet exclusion, Ms. Tantaros? laptop was

utilized at her residence in a ?desktop? capacity, which eliminates public
Wi? hotspots as items on this list.

 

4 Plaintiff claims in her opposition papers that the complete forensic report is and incredibly complex
to the lay?person [sic]? and that ?it outlines . . . very technical ?ndings [as to] how Fox accessed [Plaintiff s]
iaptop.? (Opp?n at 9.) Plaintiff, however, has not cited any more speci?c findings relating to how Fox News
may have obtained, or actually did obtain, access to Plaintiff?s laptop, nor has she submitted the full report to
this Court.

5 Plaintiff alleges in her opposition papers that Fox News ?gained access to her personal computer and all of
her passwords, manually removed her firewall, and placed malware on her computer.? (Opp?n at see
Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) district court deciding a motion to dismiss may
consider factual allegations made by a pro 39 party in his papers opposing the motion?).

4

 

Case Document 160 Filed 05/18/18 Page 5 of 19

If any agentat Fox News had access to her computer for system updates,
or any other reason at any time, between September 28, 2015 and April 25,
2016, then they would have known her password universally.

(Id. 30.)

Plaintiff also believes that after she was suspended from Fox News for making complaints of
sexual harassment, Fox News attempted to ?wipe? her work-issued Blackberry device and delete
email messages contained on the device.6 (Id. ?l 31.) Plaintiff alleges that a forensic examination of
her Blackberry device con?rmed that Fox News, as administrator of the network and device, had ?the
ability to? wipe her device remotely. (Id. 1] 32.) According to Plaintiff, the same forensic examination
revealed that Fox News was using an ?outdated operating [system] of the Blackberry that enabled
them to turn on the microphone and camera of the device at will without the knowledge or consent of
the person who had the Blackberry in his or her possession.? (Id. 33.)

Plaintiff alleges further, ?[u]pon information and belief,? that Defendant Roger Ailes
surreptitiously recorded Fox News employees, including Plaintiff, without their consent with ?audio
and . . . hidden cameras? in their offices, as well as during a ?bi-annual trunk show? conducted by
Fox News?s wardrobe department. (Id. 111] 35?36.) In support of this allegation, Plaintiff claims that
it is ?common knowledge among News] employees that there were cameras throughout the
interior of the Fox News building.? (Id. 1[ 34.) She also cites the complaint from a recently settled
shareholder action brought against Fox News?s parent company, 2 1 st Century Fox, which alleged that
?Ailes ?instructed Fox?s head of engineering . . . to install a CCTV system that allowed Ailes to

monitor Fox 0ffices[,] studios, greenrcoms, the back entrance[,] and his home.? (Id; see also id.

11 4.)

 

6 Plaintiff alleges that throughout her tenure with Fox News, employees? Blackberry devices were serviced and
maintained by an individual who claims on his online Linkedin pro?le that he has completed several courses
in hacking. (Am. Comp]. 1} 27.)

 

Case Document 160 Filed 05/18/18 Page 6 of 19

Plaintiff asserts that, in addition to being placed under electronic surveillance by Fox News,
she was also physically surveilled. For example, she alleges that since the summer of 2015, she has
observed black SUVs driving by and parked outside her New York City residence and her vacation
home. (Id. 37-458.) Plaintiff states that on one occasion in 2016, she ?easily recognized? the driver
of one of the SUVs as being a member of Ailes?s personal security detail. (Id. 38.) Plaintiff also
alleges that Fox News contributor and former NYPD detective Bo Dietl admitted to a media outlet
that he was hired by Fox News to ?spy on? Plaintiff and ?dig up dirt? on her and other Ailes accusers.
(Id. 2, 40.) Plaintiff alleges, ?[u]pon information and belief,? that Fox News is still employing
private investigators to surveil her. (Id 1[ 40.)

B. Internet?based Harassment

Plaintiff alleges that in response to her allegations of sexual harassment, she was also targeted
for intimidation and smear campaigns by 0x News, Ailes, and their affiliates operating out of an
entity known as The Black Room.7 (Id. 41?43.) For instance, Plaintiff alleges ?[u]pon information
and belief? that Fox News published her home address, after which she received threatening letters
to both her New York City residence and her vacation home. (Id. 43.) Plaintiff claims that the
number of letters she received increased after she stopped working at Fox News and that one letter
contained comments such as ?[n]obody liked you at ox,? which, in Plaintiff?s view, reveals the
sender?s identity as a Fox News employee. (Id) Plaintiff also believes she was the subject of

?upset[ting]? online click?bait advertiSements purChased by Fox News and several ?un?attering

 

7 Plaintiff alleges that The Black Room, created by Ailes in or around 2011 to conduct public relations and
surveillance campaigns, is located on the fourteenth floor of the Newscorp Building in New York City. (Id.
41, 44.) Plaintiff believes that information obtained from Plaintiff?s confidential communications was
placed in articles on ?real websites? and ?fake news sites created by . . . [The] Black Room[?s] employees and
[Fox News?s] Media Relations Department, lead [sic] (and driven) by [Defendant] Irena Briganti.? (Opp?n at
9.) In fact, Plaintiff asserts, Briganti is ?an active participant in [The] Black operations.? (Am.
Comp]. 1[ 48.)

 

Case Document 160 Filed 05/18/18 Page 7 of 19

pieces? published in blogs allegedly operated by Ailes associates.8 (Id. 44, 50, 76.) In addition,
Plaintiff alleges ?[u]pon information and belief? that Fox News doctored and manipulated images of
her to make her appear ?overweight or out of shape? and circulated them online. (Id. ?ll 69.)

Finally, Plaintiff believes that The Black Room enlisted Defendant Peter Snyder, his former
company, New Media Strategies and his current company, Defendant Disruptor, Inc., to
target Plaintiff for retaliation through online intimidation and smear campaigns. (Id. 1] 51.) Such
campaigns allegedly involved the use of fake social media accounts to defame, discredit, gaslight,
and otherwise in?uence the public perception of their intended victims.9 (Id) According to the
amended complaint, Snyder revealed to Plaintiff, once a personal friend of his, that in order to initiate
these types of campaigns, Ailes would call Shine with a ?target,? and then Shine would call Snyder
to ?make some noise? and ?stir up thousands of social media accounts against the target.? (Id. 1l 55.)

Plaintiff alleges that shortly after she came forward to ox News executives, including Shine,
with allegations of sexual harassment, she noticed an ?enormous uptick in highly sexual or grossly
offensive posts? on her Twitter, Facebook, and Instagram social media accounts. (Id.
1] 62.) Plaintiff observed that the comments were posted from accounts that had few followers and
were mostly following Fox News employees, as well as from accounts with few followers but whose

posts nonetheless garnered a disproportionately high number of ?likes.? (Id) These characteristics

 

3 Click?bait refers to ?something (such as a headline) designed to make readers want to click on a hyperlink
especially when the link leads to content of dubious value or interest.? Merriam?Webster Online Dictionary,
(last visited May 14, 2018).

9 The amended complaint defines the term ?gaslighting? to mean ?the manipulation of someone by
means into questioning their own sanity.? (Am. Compl. 1} 51.)

 

Case Document 160 Filed 05/18/18 Page 8 of 19

led Plaintiff to believe that the accounts targeting her were fake ?sock puppet? accounts operated and
controlled by the Snyder Defendants.10 (Id 62-63.)

In addition, Plaintiff claims that the sock puppet accounts referenced private ?information
only someone with access to [Plaintiff] communications would have.? (Id. 1] 62.) For example, one
such account, identi?ed as belonging to an individual named Daniel Wayne Block (the ?Block
account?), posted messages referencing a move that Plaintiff was considering making to Colorado, a
fact that Plaintiff had privately communicated to just two individuals. (Id) Another message from
the Block account, referencing a ?lm titled The Black Scorpion, was posted after Plaintiff
communicated with a friend who was bitten by a scorpion.? (Id)

Plaintiff connects the Snyder Defendants to the online intimidation and smear campaigns
initiated against her by citing a magazine article from 2017. (Id. 1i 63.) According to the article, Fox
News previously engaged NMS to create and operate a series of websites to market Fox News hosts
and correspondents in an ?overtly sexist? manner.12 (Id) One such website hosted a blog entitled

?Girls of ox News,? which contained suggestive screenshots and videos of Fox News employees

 

1? Sock puppet accounts refer to ?false online identit[ies] used for deceptive purposes.? Merriam?Webster
Oniine Dictionary, (last visited May 14, 2018).

1? Plaintiff?s ?rst complaint offers other examples of posts from the Block account that she claims were used
to harass and intimidate her. (See Opp?n at 10.) For instance, Plaintiff claims that on June 8, 2016, she spoke
with a friend about taking a trip to Charleston, South Carolina. (Compl. 1] 55.) The following day, the Block
account posted a Tweet with a picture of a tree and a caption that read ?Angel Oak Charleston, (Id)
Plaintiff also asserts that in May and June of 2016, she regularly spoke on the telephone with a male friend
who called her ?Baby Bunny? and that throughout that time, ?there were several Tweets from the Block
account with pictures of rabbits.? (Id. 1t 58.)

?2 Plaintiff claims that after Snyder stepped down from his role as chief executive of?cer of NMS in 2011, he
formed Disruptor, which Plaintiff alleges, upon information and belief, still has an active contract with Fox
News. (Am. Compl.1l 51.)

 

Case Document 160 Filed 05/18/18 Page 9 of 19

?crossing their legs or appearing to make kissing gestures.?l3 (Id) As further evidence of Snyder
being behind the harassment campaign aimed at Plaintiff, she alleges that Snyder is employed by Fox
News as an on?air ?contributor,? a position for which he is paid an annual salary of approximately
$183,000?uwell over the typical on-air contributor?s salary of $50,000 per year. (Id. fl 51.) Plaintiff
alleges that despite his high salary, Snyder does only between ten and twelve on?air appearances each
year, each lasting about six minutes. (Id)
11. LEGAL STANDARDS

To survive a motion to dismiss under Rule ?a complaint must contain suf?cient
factual matter, accepted as true, to ?state a claim to relief that is plausible on its face?? Ashcro?? v.
Iqbal, 556 US. 662, 678 (2009) (quoting Bell Arl. Corp. v. Twombly, 550 US. 544, 570 (2007)). A
plaintiff must demonstrate ?more than a sheer possibility that a defendant has acted unlawfully?;
stating a facially plausible claim requires pleading facts that enable the court ?to draw the reasonable
inference that the defendant is liable for the misconduct alleged.? Iqbal, 556 US. at 678. Stated
differently, the factual allegations pleaded ?must be enough to raise a right to relief above the
speculative level.? Twombly, 550 US. at 555. To withstand a motion to dismiss under Rule 
a plaintiff must therefore plead facts suf?cient to ?nudge[] [her] claims across the line from
conceivable to plausible.? Id. at 570.

A district court must first review a plaintiff?s complaint to identify allegations that, ?because
they are no more than conclusions, are not entitled to the assumption of truth.? Iqbal, 556 US. at
679. The court then considers whether the plaintiffs remaining well?pleaded factual allegations,

assumed to be true, ?plausibly give rise to an entitlement to relief.? Id; see also v. Citrin

 

?3 The amended complaint describes several ox News employees identi?ed by the blog, some of whom had
allegedly accused Ailes of sexual harassment, but it does not appear that Plaintiff herself was among those
identi?ed. (Am. Comp]. 64?66.)

 

Case Document 160 Filed 05/18/18 Page 10 of 19

Cooperman Co., LLP, N0. 12 Civ. 6909 (SAS), 2013 WL 6087400, at *3 (S.D.N.Y. Nov. 19,
2013). In deciding a motion brought under Rule the couit accepts the complaint?s well-
pleaded factual allegations as true and draws all reasonable inferences in the non-moving party?s
favor. See Ahmad v. Morgan Stanley Ca, 2 F. Supp. 3d 491, 495 (S.D.N.Y. 2014) (citing 
Commc ?ns, Inc. v. Shaar and, Ltd, 493 F.3d 87, 98 (2d Cir. 2007)).

Pro se litigants are generally ?entitled to some latitude in meeting these requirements, as [their
complaints] are held to ?less stringent standards than formal pleadings drafted by lawyers.?? Martinez
v. Ravikumar, 536 F. Supp. 2d 369, 370 (S.D.N.Y. 2008) (quoting Boddie v. Schnieder, 105 F.3d 857,
860 (2d Cir. 1997)). Nonetheless, to withstand a motion to dismiss, ?a pro se plaintiff must still plead
suf?cient facts to state a claim that is plausible on its face.? Chukwueze v. NYCERS, 891 F. Supp. 2d
443, 450 (S.D.N.Y. 2012) (internal quotation marks and citation omitted). I ?Even from pro se
plaintiffs, bald assertions and conclusions of law are not adequate.? RuctoZo v. Fannie Mae, 933 F.
Supp. 2d 512, 524 (S.D.N.Y. 2013) (internal quotation marks and citation omitted); see also Harris
v. Miils, 572 F.3d 66, 72 (2d Cir. 2009) ?a court must accept as true all of the allegations
contained in a [pro se] complaint,? that ?tenet? ?is inapplicable to legal conclusions,? and ?threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice?) (quoting Iqbal, 556 US at 678).

AMENDED COMPLAINT FAILS TO STATE A CLAIM

The Fox News Defendants, Defendant Shine, and the Snyder Defendants move separately,
pursuant to Rule l2(b)(6) of the Federal Rules of Civil Procedure, to dismiss Plaintiff?s amended
complaint for failure to state a claim upon which relief can be granted. Their motion papers offer a
number of different reasons why Plaintiff? 5 claims should be dismissed, though the principal

argument advanced is the same: the amended complaint fails to support each of the claims asserted

10

 

Case Document 160 Filed 05/18/18 Page 11 of 19

with speci?c, non-conclusory facts, as required under the Supreme Court?s decisions in Twombly and
Iqbal. (See Shine Mem. in Supp. of Mot. to Dismiss (?Shine ECF No. 140, at 5?9; Fox
News Defs. Mem. in Supp. of Mot. to Dismiss (?Fox News ECF No. 143, at 1349; Snyder
Defs. Mem. in Supp. 0f Mot. to Dismiss (?Snyder ECF No. 145, at 11?21.)

Plaintiff?s amended complaint is based primarily on speculation and conjecture. Moreover,
she fails to adequately make out the basic elements of her claims. Accordingly, the amended
complaint is DISMISSED.

A. The Wiretap Act

The amended complaint asserts claims under the federal Wiretap Act against all Defendants
for physically and electronically surveilling Plaintiff and using the fruits of that surveillance to
?emotionally torture? her. (Am. Compl. at 3334.)

Subject to certain exceptions not applicable here, the federal Wiretap Act makes it unlawful
to ?intentionally intercept, endeavor to intercept, or procure any other person to intercept? a wire,
oral, or electronic communication, or to use the contents of any such communication ?knowing or
having reason to know that the information was obtained in violation of [the Act].? See 18 U.S.C.
2511(l)(a), The Wiretap Act permits individuals whose wire, oral, or electronic
communications have been unlawfully intercepted, or used in a manner that violates the Act, to
maintain a civil cause of action against any person or entity responsible for such conduct. See id.
2520(a).

?Intercept? is de?ned by the statute to mean ?the aural or other acquisition of the contents of
any wire, electronic, or oral communication through the use of any electronic, mechanical, or other
device.? Id. 2510(4). Courts in this circuit, and elsewhere, have construed the term ?intercept?

narrowly to require that the interception of an electronic communication be contemporaneous with

11

 

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the transmission of that communication. See Zaratzian v. Abadir, N0. 10 Civ. 9049 (VB), 2014 WL
4467919, at *6 (S.D.N.Y. Sept. 2, 2014) (collecting cases from the Third, Fifth, Ninth, and Eleventh
Circuits), 694 F. App?x 822 (2d Cir. 2017); see also Directv, LLC v. Wright, No. 15 Civ. 474
(FPG), 2016 WL 3181170, at *5 (W.D.N.Y. June 3, 2016) interception requires a capture of
the communication while it is in transit?); Snyder 12. Fantasy Interactive, Inc, No. 11 Civ. 3593
(WHP), 2012 WL 569185, at *2 (S.D.N.Y. Feb. 9, 2012) (?Courts addressing the meaning of
?intercept? narrowly de?ne it to include only ?acquisitions of communication contemporaneous with
transmission, not storage?) (quoting Comte v. Newsday, Inc, 703 F. Supp. 2d 126, 139 n.11
(E.D.N.Y. 2010)).

Defendants correctly argue that dismissal of Plaintiffs wiretap claim is appropriate because
Plaintiff has failed to allege a basic element of this cause of action: an actual interception of her wire,
oral, or electronic communications. (Shine Mem. at 10; Fox News Mem. at 14; Snyder Mem. at 11?
12.) Plaintiff alleges that shortly after she tendered her personal computer to Fox News?s IT
department to con?gure it for use during a Live Tweet Session, she began receiving noti?cations that
?someone had logged into her [Gmail] account.? (Am. Compl. 28 (emphasis added).) She also
claims that a subsequent forensic examination of her laptop ?found that malware had been placed on
[her] laptop, likely giving whomever placed it the ability to access her communications, documents,
and personal email, including gmail (Id. 11 29 (emphases added).) Plaintiff claims that the
same forensic examination revealed that the malware found on her laptop ?suggests the capability of
remote access or monitoring of [Plaintiff s] communications.? (Id 11 30(1) (emphasis added).)

With respect to Plaintiff?s work-issued Blackberry, Plaintiff alleges that a forensic
examination of that device found that ox News, as administrator of the network and device, ?ha[d]

the ability? to erase messages from her Blackberry remotely. (Id. 1] 32 (emphasis added).) Plaintiff

12

 

Case Document 160 Filed 05/18/18 Page 13 of 19

also alleges that the same forensic examination showed that ox News ?was using an outdated
operating [system] . . . that enabled them to turn on the microphone and camera of the device at will
without the knowledge or consent of the person who had the Blackberry in his or her possession.?
(Id. 33 (emphasis added).)

These allegations fail to state a claim under the Wiretap Act because they do not allege that
any Defendant actually intercepted, or even tried to intercept, any of Plaintiff?s communications.
Even if Fox News or another Defendant was responsible for installing malware on Plaintiff personal
computer?ma conclusion for which there is scant factual support?Plaintiff?s allegations at most
support an inference that Defendants had the capability to intercept her communications. Such
allegations, however, are insuf?cient to survive a motion to dismiss. See Iqbal, 556 US. at 678 (?The
plausibility standard . . asks for more than a sheer possibility that a defendant has acted unlawfully?)
(emphasis added); see also Molefe v. Verizon New York, Inc, No. 14 Civ. 1835 (LTS) (GWG), 2015 .
WL 1312262, at *4 (S.D.N.Y. Mar. 24, 2015) (dismissing wiretap claim because, notwithstanding
?the technological feasibility of the activities Plaintiff allege[d], [he] fai1[ed] to provide a factual basis
for a ?nding that his phone and internet services were tapped?) (internal quotation marks and citation
omitted); JBCHoldings NY, LLC v. Pakter, 931 F. Supp. 2d 514, 526 (S.D.N.Y. 2013) (dismissing
federal Computer Fraud and Abuse Act claim where the pleadings were ?couched in terms of sheer
possibility, [and] conjecture?). In addition, even if Defendants did, in fact, gain access to Plaintiff?s
personal computer or Blackberry device, there is no allegation that any communications were
intercepted contemporaneously with when they were made. See, e. g. Snyder, 2012 WL 569185, at
*2 (dismissing Wiretap Act claim where the plaintiff pied ?no facts suggesting that Defendants

accessed their communications during transmission?).

13

 

Case Document 160 Filed 05/18/18 Page 14 of 19

Nor is there any non-conclusory allegation to support Plaintiff? claim that the Snyder
Defendants used information obtained from Plaintiff?s communications to harass her.l4 (See Am.
Compl. 62?63). Plaintiff claims that the sock puppet social media accounts that targeted her online,
including the Block account, referenced information that could have only been obtained from her
con?dential communications. (Id. 62). Plaintiff, however, fails to plead any facts connecting the
Snyder Defendants?or any Defendant for that mattermto an alleged sock puppet account that
allegedly harassed Plaintiff.15 Plaintiff?s singular allegation that ?the trail of ?sock puppet? . . .
accounts lead directly to Snyder? is conclusory and thus insufficient to withstand a motion to
dismiss.16 See Iqbal, 556 U.S. at 679 that . . . are no more than conclusions, are not
entitled to the assumption of truth?).

Plaintiff?s conclusory allegations concerning Defendant Ailes?s ?surreptitious? recording? of
Plaintiff through a CCTV system are similarly lacking. (Id. 34?35.) According to the amended

complaint, Ailes had a CCTV system installed at Fox News that allowed him to monitor ?0 

 

1? In her amended complaint, Plaintiff asserts claims under the Wiretap Act against all Defendants. (See Am.
Compl. at 33w34.) In her opposition papers, however, Plaintiff claims that the Snyder Defendants ?ha[ve] not
been accused of violating the Wiretap (Opp?n at 7.) Nonetheless, this Court addresses Plaintiff?s
claims as initially pied.

?5 Defendants maintain that the Block account is not a fictitious sock puppet account, but rather the personal
Twitter account belonging to a real individual living in Gainesville, Florida. (See Fox News. Mem. at 2.) In
fact, Defendants have proffered an af?davit executed by an individual named Daniel Wayne Block, who avers
that all messages sent by the Block account were sent by him and that he has never met or had any contact with
Defendants. (See Affidavit of Daniel Wayne Block dated Apr. 26, 2017, ECF No. 20?1, l, 3, 
Moreover, as Defendants claim, a review of the Block account?s posts shows that the images and messages
that Plaintiff believed to be targeted at her were actually images and messages that the Block account had
posted repeatedly, including before Plaintiff purportedly had the conversations she believes were monitored.
(See Fox News. Mem. at 2; Declaration of Benjamin M. Rose dated May 24, 2017, Exs. 9ml 6, ECF Nos. 20?
9?20?16.)

?6 Plaintiff alleges that Snyder is compensated by Fox News as an on-air contributor at a salary far exceeding
the typical on-air contributor?s salary. (Am. Comp]. ?ll 51.) While perhaps suggestive of undisclosed work
Snyder was asked to perform on behalf of Fox News, these facts do nothing to ?nudge[] . . . across the line
from conceivable to plausible? Plaintiff?s claim here that the Snyder Defendants Were responsible for operating
or controlling sock puppet accounts to harass Plaintiff. Twombly, 550 U.S. at 570.

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Case Document 160 Filed 05/18/18 Page 15 of 19

studios, and greenrooms.? (Id. 11 34.) Plaintiff claims ?upon information and belief? that Ailes
recorded her in her of?ce and during the Fox News wardrobe department?s bi-annual trunk show
?through audio and . . . hidden cameras.? (Id. 35?36.) Again, however, Plaintiff pleads no facts
to support this belief, much less ones to make her unsubstantiated allegations rise ?above the
speculative level.? Twombly, .550 US. at 555; see aiso Prince v. Madison Square Garden, 427 F.
Supp. 2d 372, 385 (S.D.N.Y. 2006) pled on ?information and belief [must be]
accompanied by a statement of the facts upon which the belief is founded?) (internal quotation marks
and citation omitted). Moreover, even assuming that recording equipment was installed in Piainii??s
of?ce and in the locations where the bi?annual trunk Show were held, Plaintiff does not allege that
any of her communications were actually intercepted, as required by the statute.

Plaintiff?s allegation that she was physically surveilled fares no better. Plaintiff?s sole
allegation with respect to physical surveillance is that she observed black SUVs driving by and parked
outside her New York City residence and her vacation home, and that on one occasion, she recognized
one of the drivers as a member of Ailes?s personal security detail. (Arn. Compl.
37?88.) However, the Wiretap Act does not prohibit physical surveillance. See 18 U.S.C.
2510(4) (de?ning ?intercept? to mean ?the aural or other acquisition of the contents of any wire,
electronic, or oral communication through the use of any eiectronic, mechanical, or other device?)
(emphasis added). Moreover, Plaintiff does not allege that either the individual she recognized from
Ailes?s security detail, or any other driver of a black SUV, intercepted a wire, electronic, or oral
communication of hers, as is required to state a claim under the Wiretap Act. See id. 2511(1).

Accordingly, Plaintiff Wiretap Act claim is DISMISSED.

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Case Document 160 Filed 05/18/18 Page 16 of 19

B. Stored Communications Act

The amended complaint asserts claims under the Stored Communications Act 18
U.S.C. 2701, against Defendants Fox News, Ailes, and Shine for ?directing a person paid . . . by
Fox News to hack [Plaintiff s] personal computer and electronics? to gain access to her private emails,
text messages, and other communications. (Am. Compl. at 34.)

The purpose of the SCA is ?to prevent [computer] hackers from obtaining, altering[,] or
destroying certain stored electronic communications.? In re DoubleCZz'ck Inc. Privacy Litig, 154 F.
Supp. 2d 497, 507 (S .D.N.Y. 2001). Towards that end, the SCA, as relevant here, makes it unlawful
to ?intentionally access without authorization a facility through which an electronic communication
service is provided . . . and thereby obtain[] . . . access to a wire or electronic communication while
it is in electronic storage in such 18 U.S.C. 2701(a). ?Electronic storage? is de?ned
to include any temporary, intermediate storage of a wire or electronic communication incidental
to the electronic transmission thereof; and (B) any storage of such communication by an electronic
communication service for purposes of backup protection of such communication.? Id. 2510(17);
see also id 2711(1) (making the Wiretap Act?s de?nitions applicable to the SCA). Like the Wiretap
Act, the SCA authorizes a private right of action by individuals aggrieved by a violation of the statute,
provided that the violation was committed intentionally or knowingly. See id. 2707(a).

Defendants contend that Plaintiff?s SCA claim must be dismissed because the SCA does not
apply to communications stored on personal devices like computers or cellphones. (Shine Mem. at
11?42; Fox News Mem. at 16?17.) Recognizing that the Second Circuit has yet to speak on this
issue, Defendants cite decisions from the Third, Fifth, Ninth, and Eleventh Circuit Courts of Appeals,
as well as from two courts in this district, so holding. (See id.) Defendants also argue that dismissal

of Plaintiff SCA claim is warranted because the amended complaint fails to plausibly allege facts

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Case Document 160 Filed 05/18/18 Page 17 of 19

showing that any Defendant unlawfully accessed Plaintiffs emails, text messages, or other
communications stored on her personal computer or work?issued Blackberry device. (Shine Mem. at
12; Fox News Mem. at 17?19.)

Even if one were to ignore the overwhelming weight of authority holding that the SCA does
not apply to communications stored on personal devices, Plaintiff has failed to allege that Defendants
unlawfully accessed any communications stored on such devices. For the reasons already stated,
vague, speculative, and conclusory allegations concerning malware allegedly found on Plaintiff?s
personal computer and Fox News?s purported ability to access or monitor communications on
Plaintiff?s Blackberry are insuf?cient to state such a claim. With respect to her Gmail account,
Plaintiff believes that ?someone? accessed her account without authorization, but she does not allege
which of the Defendants, if any, actually did so. (Am. Compl. 28.) Moreover, she does not claim
that anyonewneither Ailes, Shine, nor anyone else paid by Fox Newsm-obtained access to any of her
email messages, as is required to state a claim under the SCA. See 18 U.S.C.
2701(a).

Nor does Plaintiff provide factual support for her conclusory assertion that Ailes and Shine
directed a person paid by Fox News to hack Plaintiff 3 personal computer and electronic devices.
(Am. Compl. at 34.) Plaintiff claims that Snyder once revealed to her that he would conduct
intimidation and smear campaigns on behalf of Fox News at the direction of Ailes and Shine. (Id.
55.) Plaintiff, however, offers no facts to plausibly suggest that Ailes, Shine, or anyone else
employed by Fox News enlisted Snyder?or anyone else for that matterm?to hack or otherwise
illegally access Plainti??s personal electronic devices. Because Plaintiff ?does not allege, other than
in conclusory terms, that any Defendant accessed any communication stored on her personal

computer or Blackberry without authorization, Plaintiff?s SCA claim is DISMISSED. See Mole?a,

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Case Document 160 Filed 05/18/18 Page 18 of 19

2015 WL 1312262, at *3 (dismissing claim under the SCA where the plaintiff ?provide[d] no factual
basis regarding how or why Verizon transferred [his] ?les, nor [did] he explain the factual basis for
his belief that Verizon performed any transfer that may have occurred?).
C. Intentional Infliction of Emotional Distress

Plaintiff 3 ?nal claim is for intentional in?iction of emotional distress, asserted against all
Defendants for allegedly ?violat[ing] federal criminal statutes in using illegal electronic surveillance
of Plaintiff as part of a vicious social media campaign[,] which also included the use of fake Twitter
accounts to communicate to Plaintiff that she was being surveilled.? (Am. Compl. at 35.) To state a
claim for the tort of intentional in?iction of emotional distress under New York law, a
plaintiff must show: extreme and outrageous conduct; (2) intent to cause, or reckless disregard
of a substantial probability of causing, severe emotional distress; (3) a causal connection between the
conduct and the injury; and (4) severe emotional distress.? Stuto v. Fleishman, 164 F.3d 820, 827 (2d
Cir. 1999). ?[T]he standard for stating a valid claim of intentional in?iction of emotional distress is
?rigorous, and difficult to satisfy.? Conboy v. ATd?cTCorp. 241 F.3d 242, 258 (2d Cir. 2001) (quoting
HoweZZ v. New York Post Ina, 699, 702 (NY. 1993)). Indeed, the plaintiff must
show that the defendant?s conduct is ?so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized society.? Slum, 164 F.3d at 827 (internal quotation marks and citation omitted).

Defendants correctly argue that Plaintiff?s claim should be dismissed because she has
failed to plausibly allege facts tying any of the Defendants to the conduct that she claims caused her
injury. (Shine Mem. at 12?13; Fox News Mem. at 19?21; Snyder Mem. at 19?20.) For the reasons
already stated, Plaintiff has not alleged suf?cient, non-conclusory facts showing that Defendants

violated either the Wiretap Act or the SCA, much less that they did so with intent to cause Plaintiff

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Case Document 160 Filed 05/18/18 Page 19 of 19

?severe emotional distress.? State, 164 F.3d at 827. Moreover, Plaintiff has not alleged any facts to
support her conclusory assertion that she suffered ?severe emotional distress, requiring medical
treatment and medication,? as required to state a claim for IIED. (Am. Compl. at See Madcalf
v. Walsh, 938 F. Supp. 2d 478, 490 (S.D.N.Y. 2013) (dismissing IIED claim where the complaint did
not make ?any non?conclusory allegation that [the Plaintiff] suffered severe emotional distress?);
Lyman v. City ofNew York, No. 96 Civ. 2382 (PKL), 1997 WL 473976, at *3 (S.D.N.Y. Aug. 20,
1997) (dismissing IIED claim where plaintiff alleged ?in a conclusory manner that as a result of
[defendant?s] conduct she has suffered ?severe emotional distress . . . and substantial emotional
anguish??); Klein v. Metro. Child Saws, Inc, 954 559, 562 (App. Div. 2d Dep?t 2012)
(dismissing IIED claim where ?the cause of action . . . states little more than the conclusion that
?plaintiff suffered extreme and grievous mental distress as a result of the extreme and outrageous
behavior of the I

Accordingly, Plaintiff?s IIED claim is DISMISSED.

IV. CONCLUSION

Defendants? motions to dismiss pursuant to Rule l2(b)(6) of the Federal Rules of Civil
Procedure, (ECF Nos. 139, 142, and 144), are GRANTED.

The Clerk of Court is directed to close those motions, and this case, accordingly.

Dated: May 18, 2018
New York, New York

SO ORDERED.

get/L40 8. Derek

B. DANIELS
United States District Judge

 

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