Case Document 84 Filed 08/14/18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK



KADIAN NOBLE,

Plaintiff,

?against?
HARVEY WEINSTEIN, ROBERT WEINSTEIN, THE
WEINSTEIN COMPANY LLC, and WEINSTEIN
COMPANY HOLDINGS, LLC,

Defendants



A A A S:

Attorneys for Plaintiff

 

Herman Mermelstein, P.A.

18205 Biscayne Blvd., Suite 2218

Miami, FL 33l60

By: Stuart Samuel Mermelstein

Attorneys for Defendants

 

Kupferstein Manuel LLP

865 South Figueroa Street, Suite 3338

LOS Angeles, CA 90017
By: Mary E. 
Kupferstein

Morrison Cohen, 

909 Third Avenue

New York, NY 10022

By: Aaron Michael Schue
Latisha Vernon Thompson

Schulte Roth Zabel LLP (NY)
919 Third Avenue
New York, NY 10022
By: Carly Jeanine Halpin
Gary Stein
Brian Theodore Kohn
Barry A. Bohrer
Abigail Coster

Page 1 of 45

17 Civ.

9260

(RWS)

 

OPINION

 

Case Document 84 Filed 08/14/18 Page 2 of 45

Sweet, D.J.

Defendants Harvey Weinstein (?Harvey?) and Robert
Weinstein (?Robert?) have moved under Federal Rule of Civil
Procedure 12(b)(6) to dismiss the Amended Complaint of plaintiff
Kadian Noble (?Noble? or ?Plaintiff?) alleging violations of the
Victims of Trafficking Victims Protection Act 18
U.S.C. 1591 (?Section 1591?), under which a civil private
right of action exists (18 U.S.C. 1595 (?Section 1595?)), to
Harvey?s alleged 2014 sexual assault of Plaintiff in Cannes,

France.1

The alleged predatory sexual conduct of Harvey
Weinstein has been the subject of extensive publicity,

investigations, and litigation.2 The instant Amended Complaint is

 

1 Because the conduct alleged in this case predates the May
29, 2015 amendment of 18 U.S.C. 1591, all references to 18
U.S.C. 1591 refer to the 2014 version, effective from December
23, 2008 to May 28, 2015. Ditullio v. Boehm, 662 F.3d 1091, 1102
(9th Cir. 2011) (?We affirm.the district court?s conclusion that
1595 cannot be applied retroactively to create liability for
conduct that occurred before [the statute was 
Notably, the May 2015 amendment, which added the statutory verbs
?advertises, patronizes,? and ?solicits? to Section
1591(a)(1), does not change the substance of the statute as
applied to Defendants. Compare 18 U.S.C. 1591(a)(effective Dec.
23, 2008), with 18 U.S.C. 1591(a)(effective May 29, 2015).

 



2 For pending litigation in this District, see, Federal
Insurance Company et. al. v. Weinstein, No. 18?cv?2526 (S.D.N.Y.
Feb. 28, 2018); Louisette Geiss, et. al. v. Weinstein, No. 17?
cv?9554 (S.D.N.Y. Dec. 06, 2017); Sandeep Rehal v. Weinstein,

 

 

 

 

1

 

Case Document 84 Filed 08/14/18 Page 3 of 45

the first instance seeking to apply the TVPA to an incident such

as the one alleged by the Plantiff.

Based on the conclusions set forth below, Defendant
Harvey Weinstein?s motion is denied, and Defendant Robert

Weinstein?s motion is granted.

 

No. 18ncv?0674 (S.D.N.Y. Jan. 25, 2018); Steadfast Insurance Co.
v. Weinstein, No. 18?cv?6458 (S.D.N.Y. July 17, 2018); Canosa v.
Ziff, Weinstein, et. al., No. 18?cv?4115 (S.D.N.Y. May 8, 2018);
Jane Doe v. Weinstein, 18?cv?5414 (S.D.N.Y. June 15, 2018);
Dulany et. al. v. Miramax, No. 18?cv?4857 (June 1, 2018) (cases
pending in this district). For the criminal investigations into
Harvey Weinstein?s alleged conduct, see, Al Baker, et.

al., Police Building Case to Arrest Harvey Weinstein After

Sexual Assault Claim, NEw??xm Tues, Nov. 3, 2017; James McKinley,
Prosecutor of Patz?s Killer Takes Over Weinstein Inquiry, NM?Yomr
THEE, April 25, 2018; Richard Winton, Hollywood sex crimes
unit weighs charges against Harvey Weinstein, Steven Seagal and
others, Loszumsmn3Trm?n May 16, 2018; Alan Feuer, Federal Inquiry
Into Weinstein Expanded to Include Stalking, vaY0m<TImm, May
23, 2018; Samantha Cooney, Harvey Weinstein Could Face Even More
Charges. Here Are All the Investigations Looking Into Sexual
Assault Allegations, TIME, Mmr25, 2018, Press Association, HE
police receive fresh Harvey Weinstein sexual assault claim, THE
GumnnAN, Feb. 28, 2018. And for relevant press accounts, see,
Ronan Farrow, Harvey Weinstein?s Army of Spies, TmaNEw
YoRmnn NOV. 6, 2017, Abby Ohlheiser, et. al., Harvey Weinstein
charged with rape and other abuse violations in sexual assault
cases, ZWE POST, MAY 25, 2018.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case Document 84 Filed 08/14/18 Page 4 of 45

I. The Amended Complaint

 

The following allegations,3 which are assumed true for

purposes of the instant motion, Koch v. Christie?s Int?l PLC,

 

699 F.3d 141, 145 (2d Cir. 2012), detail the actions of Harvey
Weinstein in Cannes, France in 2014, which are alleged to

violate Section 1591.

In February 2014, Harvey, a film?producer and co?
founder of The Weinstein Company, LLC or ?Weinstein
Company?), approached Plaintiff, an aspiring actress, at a
social function in London. Am. Compl. i 15. After expressing

professional interest in her as an actress, Harvey represented

 

3 The allegations are drawn from the Amended Complaint and
the materials attached to and incorporated by reference therein.
A complaint initiated by the New York Attorney General?s office
Complaint?), which alleges violations of New York State
Human and Civil Rights laws, is attached to the Amended
Complaint. Am. Compl. Exh. A, State of New York v. Weinstein,
No. 450293, 2018 WL 845422 (Feb. 11, 2018). While the Court is
permitted to consider ?any written instrument attached to the
complaint, [and] statements or documents incorporated into the
complaint by reference,? such materials are to be evaluated for
their legal feasibility according to the relevant causes of
action. See, ATSZ Communications, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The OAS Complaint contains
certain factual allegations relating to the conduct alleged in
the Amended Complaint. Because there are no allegations in the
OAG Complaint that relate to Count I against Harvey, it is not
considered for resolving Count I. As for Counts and 
against Robert, the GAS Complaint is sufficiently related to
those allegationS*it is therefore considered for resolving
Counts and V.

 

 

 

 

 

 

Case Document 84 Filed 08/14/18 Page 5 of 45

that he ?wanted to learn more? about Noble. Id; Later that
night, Harvey told Noble that he had a particular acting role in
mind for her, insisting that ?it will be good for Id; at
i 16. Harvey then introduced Noble to Charlotte, a TWC executive
to whom Noble gave ?detailed contact information.? Id; Harvey
repeated to Noble his assurance that the role he had in mind

would ?be good for Id.

Following their initial meeting in London, Harvey
arranged an interview between Noble and Vanessa Ford a
Weinstein Company Executive Assistant. Id; at I 20. At the
interview, Noble spoke ?at great length and detail? about her
background, previous work experience, and aspirations. Id; Ford
instructed Noble to write a ?narrative? about herself, and to
provide a film ?reel," sampling her acting work, both of which
she did. Am. Compl. 20. Ford assured Noble that the reel and
the narrative would be sent to Harvey, and that Noble ?would be

contacted.? Id.

In May 2014, Noble and Harvey were separately in
Cannes, France for the 2014 Cannes Film Festival. Id; at 26.
According to Plaintiff, Harvey approached her in the lobby at La
Majestic Hotel, at which time Noble asked Harvey whether he had

received her film reel. Id. at I 27. Harvey confirmed that he

Case Document 84 Filed 08/14/18 Page 6 of 45

had, but told Noble that he had not yet reviewed it. Harvey
then invited Noble to come to his hotel room to view the reel
and to discuss the film role he had in mind for her. 3g; at 
27. According to Noble, because of Harvey?s tremendous influence
in the industry, and the promise of a lucrative film role, she

went to his hotel room. Id. at 28.

Once in the hotel room, Harvey and Noble sat on a
couch and watched her film reel. at 29. As they watched,
Harvey began massaging Noble and ?gripped her shoulders.? Ed; at
29. He told Noble that he had all of ?her details? and that he
would ?take care of everything? for her. Am. Compl. 29. Harvey
told her that a particular male TWC assistant would be ?on this
task,? and would also arrange a meeting for Noble with the Tess

modeling agency in London. Id. at 29.

Harvey told Noble that, for ?audition purposes,? she
needed to walk up and down through the hotel room for him, which
she did. id; at 30. Harvey then called an unnamed Weinstein
Company producer in the United States and put Noble on the phone
with him. lg; at 9 31. The producer told Noble that, if she was
?a good girl? and did ?whatever [Harvey] wished,? then ?they

would work [with her].? Id.

Case Document 84 Filed 08/14/18 Page 7 of 45

Harvey then grabbed the Plaintiff, pulled her towards
him, and groped her breasts. lg; at 32. Harvey told Noble that
he ?had to have her.? lg; Noble resisted, saying ?No, Harvey,
No!? lg; At the same time, ?because of the tangible and
intangible benefits Harvey Weinstein promised,? Noble physically

complied. Id.

Harvey then forcibly pulled Noble into the bathroom,
where he began rubbing her breasts and buttocks. lg; at i 33.
Noble told Harvey to stop, and tried to leave the bathroom, but
Harvey blocked her exit and pulled her shirt down, revealing her
breasts. Am. Compl. i 35. Harvey then forced Noble?s legs open,
rubbed her vagina, and took his penis out and began
masturbating. lg; at 36. Noble struggled and panicked. Ed; at
36. Again, she attempted to leave the bathroom, but Harvey
prevented her. lg; Harvey then grabbed Noble?s hand, forced her
to masturbate him, and used his other hand to control Noble. lg;
at 37. Harvey assured Noble that ?everything will'be taken
care of for you if you relax.? Noble understood this to mean
that Harvey would follow through on his promise to wield his

influence in this industry in her favor if the sex act was

completed. Harvey ejaculated on the bathroom floor. Ed. at 38.

Case Document 84 Filed 08/14/18 Page 8 of 45

Noble then left Harvey?s hotel room. Id; at 39. On
her way out, Harvey told her that ?his people? would be in touch
with her. Id; Noble understood this to mean that either Ford or
the male assistant would be in contact regarding the film role

or modeling opportunity. Id.

In the months that followed, Noble maintained contact
with Ford, following up several times. Id; at 41. She was told
to be patient, that Ford was waiting for instructions from
Harvey. Id; Although Noble saw Harvey three times after the
alleged 2014 sexual assault, no film role materialized. Am.
Compl. 12. No follow up meetings were scheduled. Id; No
actions were taken by Harvey to further Noble?s career as an

actress or as a model. Id.

As a result of Harvey?s actions, Noble suffered
emotional pain, mental anguish, shame, humiliation, loss of
enjoyment of life, and other ?permanent and continuing?

injuries. Id.

The allegations relating to Robert include that he
knew about, and benefited from, Harvey?s international business
dealings in his position as co?founder of TWO. Id. at 72?77.

Robert ?knew, or was in reckless disregard of the fact, that it

Case Document 84 Filed 08/14/18 Page 9 of 45

was the pattern and practice of Harvey Weinstein to travel in
interstate and foreign commerce to entice or recruit [1 Young
female actors with the promise of roles.? Id; at 74. Further,
Plaintiff alleges he ?willfully caused? Harvey?s sex acts with
Noble by ?supporting Harvey WeinStein?s pursuit of their joint

business interests.? Id. at 85.

The Amended Complaint alleges in Count I a violation
of Section 1591 against Harvey Weinstein, in Count II
participation in a venture in violation of Section 1591 against
The Weinstein Company, in Count participation in a venture
in violation of Section 1591 against Robert, in Count IV an
aiding and abetting violation of Section 1591 against The
Weinstein Company, and in Count an aiding and abetting

violation against Robert.

II. Prior Proceedings

 

Plaintiff filed this federal lawsuit in November 2017,
alleging violations of 18 U.S.C. 1591, under which a private
civil right of action is available pursuant to 18 U.S.C. 1595,
against Harvey, Robert, and The Weinstein Company. No. 1. In

February of 2018, Plaintiff amended her complaint, adding

 

Case Document 84 Filed 08/14/18 Page 10 of 45

supporting facts and attaching the OAG Complaint against Harvey,

Robert, and The Weinstein Company as an exhibit. ECF No. 48.

On March 20, 2018, The Weinstein Company Holdings and
all of its wholly~owned subsidiaries, including the Weinstein
Company, filed voluntary petitions for relief under Chapter 11
of the Bankruptcy Code, Section 11 U.S.C. 101?1532. ECF No.
56. Pursuant to Section 362(a) of the Bankruptcy Code, an
automatic litigation stay was entered for all cases involving

the Weinstein Company, including this one. Id.

Defendants Harvey and Robert filed motions to dismiss
on March 27 and May 15, 2018, respectively. ECF No. 59, 75.
Both motions were heard on June 29, 2018, at which time they

were marked fully submitted.

The Applicable Standards

A. Rule 12 (6)

On a Rule 12(b)(6) motion to dismiss, all factual

allegations in the complaint are accepted as true and all

inferences are drawn in favor of the pleader. Mills v. Polar

 

Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). A complaint

 

Case Document 84 Filed 08/14/18 Page 11 of 45

must contain ?sufficient factual matter, accepted as true, to
?state a claim to relief that is plausible on its face.??

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.

 

Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (emphasis added). A

 

claim.is facially plausible when ?the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.? lqbal,
556 U.S. at 663 (quoting Twombly, 550 U.S. at 556). In other
words, the factual allegations must ?possess enough heft to show
that the pleader is entitled to relief.? Twombly, 550 U.S. at

557 (internal quotation marks omitted).

While ?a plaintiff may plead facts alleged upon
information and belief ?where the belief is based on factual
information that makes the inference of culpability plausible,?
such allegations must be ?accompanied by a statement of the

facts upon which the belief is founded.?? Munoz?Nagel v. Guess,

 

Inc., No. 12 1312 (BR), 2013 WL 1809772, at *3 (S.D.N.Y.

Apr. 30, 2013) (quoting Arista Records, LLC v. Doe 3, 604 F.3d

 

110, 120 (2d Cir. 2010)); Prince V. Madison Square Garden, 427

 

F. Supp. 2d 372, 384 (S.D.N.Y. 2006); Williams V. Calderoni, 11

 

Civ. 3020 (CM), 2012 WL 691832, at *7 (S.D.N.Y. Mar. 1, 2012)).
The pleadings, however, ?must contain something more than

a statement of facts that merely creates a suspicion [of] a

10

Case Document 84 Filed 08/14/18 Page 12 of 45

legally cognizable right of action.? Twombly, 550 0.8. at 555

(citation and internal quotation omitted).

B.18 U.S.C. 1591

When the United States Congress passed Section 1591 of
the TVPA it did so for the following purposes: ?to combat
trafficking in persons, especially-into the sex trade, slavery,
and involuntary servitude, to reauthorize certain Federal
programs to prevent violence against women, and for other
purposes.? Pub. L. No. 106?386 102, 114 Stat. 1488 (2000)
(codified as 18 U.S.C. 1591). The statute defines ?sex
trafficking? in Section 103 as ?the recruitment, harboring,
transportation, provision, or obtaining of a person for the
purpose of a commercial sex act.? Pub. L. No. 106?386 103, 114



Stat. 1488 (2000). Congress defines ?commercial sex act? as any
sex act on account of which anything of value is given to or
received by any person.? lg; Congress noted that ?trafficking in
persons is not limited to the sex industry,? and that
?traffickers lure women and girls into their networks through
false promises of decent working conditions at relatively good
pay as nannies, maids, dancers, factory workers, restaurant

workers, sales clerks, or models.? Pub. L. No. 106?386 102,

114 Stat. 1488 (2000).

11

 

Case Document 84 Filed 08/14/18 Page 13 of 45

Zn 2003, Congress amended and expanded the TVPA for
the purpose of ?enhancing provisions on prevention of
trafficking, protections of victims of trafficking, and
prosecution of traffickers.? H. R. Rep. No. at 8
(2003), 2004 U.S.C.C.A.N. 2408, 2408. In doing so, Congress
added a private right of action which provides:

An individual who is a victim of a violation of
Section 1589, 1590, or 1591 of title 18, United States
Code, may bring a civil action in any appropriate
district court of the United States. The court may
award actual damages, punitive damages, reasonable

attorneys? fees, and other litigation costs reasonably
incurred.

Section 1595(a) (?2003 Amendment?).

Following the 2003 Amendment, victims of the conduct
proscribed in Section 1591 are entitled to seek civil damages as

private litigants under Section 1595.

Section 1591, as it existed in 2014, imposed criminal

f! 

sanctions on ?whoever knowingly recruits, entices, harbors,

trans orts rovides, obtains, or maintains an means a


person? with the knowledge that ?means of force, threats of

force, fraud, coercion described in subsection or any

combination of such means? would be employed to ?cause the

12

 

Case Document 84 Filed 08/14/18 Page 14 of 45

 

person to engage in a commercial sex act.? 18 U.S.C.A. 1591(a)

(West).

IV. Defendant Harvey weinstein?s Motion to Dismiss Count I is
Denied

Plaintiff?s Amended Complaint adequately states a
claim under Section 1591 against Harvey Weinstein. While the
instant case is not an archetypal sex trafficking action,4 the
allegations plausibly establish that Harvey?s 2014 conduct in

Cannes, France violated Section 1591.

Plaintiff maintains that Section 1591 applies to
Harvey Weinstein, a powerful businessman who employed both fraud
and physical force to cause the Plaintiff to engage in a sex act
with him. The fraud consists of promises of a lucrative film
role and a modeling meeting, which were knowingly false, and on
which she reasonably relied. 18 U.S.C. 1591; Am. Compl. at 9 1

(?Harvey Weinstein . . . recruited and enticed a young aspiring

 

4 See generally United States v. Baston, 818 F.3d 65l, 656
(11th Cir. 2016) (affirming conviction of defendant, who
recruited vulnerable women in the United States, Australia, the
United Arab Emirates, enticing one with ?promis[es] to help her
modeling career,? and another by offering to help her ?open[]
her own restaurant,? only to ?force numerous women to prostitute
for him_by beating them, humiliating them, and threatening to
kill 

 

13

 

Case Document 84 Filed 08/14/18 Page 15 of 45

actress . . . with the promise of a film role and to use his
considerable influence in the entertainment industry on her
behalf, knowing that he would use means of force, fraud, or

coercion to cause her to engage in a sex act.?)

To state a claim under 18 U.S.C. 1591, as applied
here, Plaintiff must adequately plead that Harvey Weinstein
knowingly and in interstate or foreign commerce: (1) recruited,
enticed, harbored, transported, provided, obtained, or
maintained by any means a person; (2) ?knowing, or in reckless
disregard of the fact, that means of force, threats of force,
fraud . . . or any combination of such means will be used?; (3)
?to cause the person to engage in a commercial sex act.? 18

U.S.C. 1591.

Harvey contends that Count I of the Amended Complaint
against him should be dismissed because ?not every alleged
sexual assault constitutes a federal violation,? and that
application of Section 1591 here ?would unfairly expand the
federal sex trafficking statute to all sexual activity occurring
between adults in which one party holds a superior position of
power and influenceparticular, Harvey
contends that the ?commercial sex act? element is absent because

nothing of value was exchanged. Id.

14

 

Case Document 84 Filed 08/14/18 Page 16 of 45

i. Broad interpretation of Sections 1591 and 1595 is 

The remedial provision at issue, Section 1595, which
permits civil actions for damages under Section 1591, requires

broad interpretation. See Peyton v. Rowe, 391 U.S. 54, 65 (1968)

 

(recognizing ?the canon of construction that remedial statutes
should be liberally construed?). Section 1595 amended the TVPA
for the remedial purpose of ?enhancing . . . protections of
trafficking victims.? 18 U.S.C. 1595, Pub. L. 108~l93, Dec.

19, 2003, 117 Stat. 2878, ?4 (effective Dec. 19, 2003); see also

 

N.C. Freed Co., Inc. v. Bd. of Governors of Fed. Reserve Sys.,

 

473 F.2d 1210, 1214 (2d Cir. 1973) (?Since the statute is
remedial in nature, its terms must be construed in liberal

Sedima, S.P.R.L. v. Imrex Co., Inc. 473 0.8. 479,

 

499 (1985) (recognizing that while is evolving into
something quite different from the original conception of its
enactors,? ?it is not for the judiciary to eliminate the private
actions in situations where Congress has provided it simply
because plaintiffs are not taking advantage of it in its more

difficult applications.?)

Broad, expansive language is employed in Sections 1591
and 1595. See 18 U.S.C. 1591, 1595. Congress?s use of the



word ?whoever? and its repeated use of the word any? ?does not

15

Case Document 84 Filed 08/14/18 Page 17 of 45

lend itself to restrictive interpretation.? United States v.

 

Jungers, 702 F.3d 1066, 1070 (8th Cir. 2013) (?By its terms, 
l59l(a)(l) applies to ?whoever knowingly . . . recruits,
entices, harbors, transports, provides, obtains, or maintains [a
child] by any means.? These words do not lend themselves to a

restrictive interpretation.?) (collecting cases); United States

 

v. Todd, 627 F.3d 329, 336 (9th Cir. 2010) (Smith, M.,
concurring) (?[Section 1591] allows for a conviction even where
the defendant did not personally use force, fraud or coercion,?

so long as he knew such means would be used.)

Defendant Harvey contends that the application of
Section 1591 should be limited to ?the type of criminality for
which the Government has historically prosecuted under Section
1591, such as child prostitution, torture, and child
pornography." ECF No.60 at 10. Setting aside for a moment that
this is a civil, rather than criminal, action, other courts have
applied Section 1591 to defendants who have lured women, under
false pretenses and with lucrative promises, for sexual

purposes.5

 

5 See Lawson v. Rubin, 2018 WL 2012869, at *15
(E.D.N.Y. Apr. 29, 2018) (plaintiff plausibly alleged a
violation of Section 1591 where defendant ?lure[d]" women to his
New York City apartment?promising, among other things, ?payments

 

for modeling??where he beat and sexually assaulted them); United

States v. Thompson, 864 F.3d 837, 840?41 (7th Cir. 2017)
16

 

 

Case Document 84 Filed 08/14/18 Page 18 of 45

The first step in any statutory interpretation is to
determine ?whether the language at issue has a plain and

unambiguous meaning.? Louis Vuitton Maletier S.A. v. LY USA,

 

Inc., 676 F.3d 83, 108 (2d Cir. 2012); see also Mary Jo C. v.

 

New York State Local Ret. Sys., 707 F.3d 144, 155 (2d Cir.

 

2013).

Where, as here, a broad statute has a plain and
unambiguous meaning, it ought to be interpreted broadly. BedRoc

Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (?The

 

preeminent canon of statutory interpretation requires us to
presume that the legislature says in a statute what it means and

means in a statute what is says. Thus, our inquiry begins with

 

(affirming conviction of defendant who ?used the promise of
modeling work to ?cause a person to engage in a commercial sex
United States v. Flanders, 752 F.3d 1317 (11th Cir.
2014) (affirming conviction of defendant who lured women ?under
the false pretense of auditioning for a lucrative modeling
contract in South Florida,? only to beat and rape them); United
States v. Mack, 808 F.3d 1074 (6th Cir. 2015) (affirming
conviction of defendant who ?coerced the victims into
prostituting themselves by initially supplying them with drugs
under the false pretense that they were free?); United States v.
Mozie, 752 F.3d 1271, 1276 (11th Cir. 2014) (affirming
conviction of defendant who ?pos[ed] as a benevolent businessman
who ran a modeling agency? to recruit adults and minors for sex
?in return for alcohol, drugs, and a place to United
States v. Rojas?Coyotl, 2014 WL 1908674 (N.D. Ga. May 13, 2014)
(applying Section 1591 to defendant, who lured Mexican and
Guatemalan women to the US with promises of ?legitimate work?).

17

 

 

 

 

Case Document 84 Filed 08/14/18 Page 19 of 45

the statutory text, and ends there as well if the text is

unambiguous.?) (internal citation omitted); United States v.

 

Estrada?Tepal, 57 F. Supp. 3d 164, 167 (E.D.N.Y. 2014) (?18

 

U.S.C. 1591 unambiguously covers a broad range of conduct with
no requirement that a defendant intend to further any underlying

sex trafficking see also United States v. Thompson,

 

No. 16?2986, 2018 WL 3398213, at *8 (2d Cir. July 13, 2018)
(rejecting challenge to Section 1591 on constitutional
overbreadth grounds, noting the ?broad language of the statute

and the complexity of the social problem it addresses?).

ii. Recruited, enticed, or solicited a person

The operative statutory verb in Section 1591(a), as
applicable here, is ?entices,? which is not defined by Congress.
When a word is undefined in a statute ?we normally construe it

in accord with its ordinary or natural meaning.? Smith v. United

 

States, 508 U.S. 223, 228 (1993); United State v. Gagliardi, 506

 

F.3d 140, 147 (2d Cir. 2007) (recognizing that ?induce, entice,
[and] coerce, though not defined in the statute, are words of
common usage that have plain and ordinary The
ordinary or natural meaning of ?entice? is supplied by the
Merriam?Webster and Oxford dictionaries, which define it as ?to

attract artfully or adroitly or by arousing hope or desire,? and

18

Case Document 84 Filed 08/14/18 Page 20 of 45

attract or tempt by offering pleasure or advantage,?
respectively. MERRIAMHWEBSTER ONLINE DICTIONARY,
OXFORD
DICTIONARIES,



Here, it is alleged that Harvey initiated a
professional relationship with Noble in February, 2014, when the
two first met in London. Am. Compl. 15. After telling Noble
that he had a film role in mind for her, Harvey set up an
?interview" between Noble and his executive assistant, Ford,
?for the purpose of securing the acting role promised by
Am. Compl. 20. Following the ?interview,? Noble
sent Ford a written narrative about herself, as well as a
sampling of her acting work, which were sent to Harvey
Weinstein. lg; Having established the professional relationship,
and having received Noble?s professional materials, Harvey
requested in May 20l4 that she come to his hotel room at the
Cannes Film Festival to ?View her reel? and ?discuss further
steps regarding the [filmJ role.? Ed; at 27. In the hotel room,
Harvey?s promises became more numerous. He assured Noble that
?he would arrange a meeting [1 with the Tess {modeling} Agency
in London,? and twice promised that ?everything will be taken

care of for you if you relaxCase Document 84 Filed 08/14/18 Page 21 of 45

What proved to be empty promises of a film role and a
modeling meeting were more than enough to arouse ?hope and
desire? in Noble, an aspiring actress and model. ?ee 
WEBSTER ONLINE DICTIONARY, 
webster.com/dictionary/entice. The allegations therefore
plausibly allege the element of ?enticement.? 18 U.S.C. 1591.
The Amended Complaint having plausibly alleged the existence of
the statutory verb ?entices,? there is no need to analyze the

others.6

Knowing that means of fbrce, threats of fbrce, fraud, or

any cambination will be used

The plain language of Section 1591(a) requires
Plaintiff to plausibly allege knowledge, or a modus operandi,
associated with above?described ?enticement,? that Defendant

enticed Plaintiff with knowledge that means of force or fraud

 

6 If the statutory verb ?recruits" is analyzed, it, too,
appears to be plausibly alleged. See Hongxia Wang v. Enlander,
No. 17mcv?4932, 2018 WL 1276854, at *6 (S.D.N.Y. Mar. 6, 2018)
(defining ?recruit? in the context of the labor services
provision of the TVPA, Section 1590, as ?persuade to do or help
with something.?) (citing ONLINE DICTIONARY,
and OXFORD
DICTIONARIES,


 

2O

 

Case Document 84 Filed 08/14/18 Page 22 of 45

would be used to cause a commercial sex act to take place.

United States v. Todd, 627 F.3d 329, 333?34 (9th Cir. 2010).

 

This requirement, while seemingly duplicative of the statute?s
earlier knowledge requirement, does not impose another ?layer?
of knowledge on the pleader. Rather, it requires the pleader
allege awareness, at the initial recruitment or enticement
stage, that certain prohibited means will be employed to achieve
a perverse end goal: a commercial sex act. id; an
act of Congress requires knowledge of a future action, it does
not require knowledge in the sense of certainty as to a future
act? . . . ?The knowledge required [of Section 1591] is such
that if things go as he planned, force, fraud or coercion will
be used to cause his victim to engage in a commercial sex
In other words, Defendant must have recruited or
enticed Plaintiff with the knowledge that certain statutorily?
prohibited means (discussed infra) will be used to cause
plaintiff to engage in a sex act. The Court in Ton found such
knowledge where defendant was ?aware" when hiring plaintiff,
that he would use means of force to cause her to engage in a

commercial sex act.

Here, the pattern of behavior included in the Amended
Complaint plausibly alleges a knowledge and understanding that,

from the start of their professional relationship in February

21

 

Case Document 84 Filed 08/14/18 Page 23 of 45

2014, Harvey would use fraudulent means to entice Noble to
engage in a sex act with him. The promise of a film role, the
interview with Ford for the film role, and the assurances that
?everything will be taken care of for you if you relax,?
including as he forced her to masturbate him, support this. Am.
Compl. 37. That Harvey?s promises?all professional in nature?
became more frequent and elaborate once he and Noble were alone
in the hotel room, and eventually the bathroom, plausibly

alleges knowledge that fraud would be used.

Despite Harvey?s call to a Weinstein Company producer,
who promised Noble ?they would work [with her]" if she ?[did]
whatever [Harvey] wished,? his promise of a meeting with the
Tess modeling agency, and his final promise to Noble as she left
the room, that ?his people? would ?be in touch? with her, Harvey
never performed on these promises, even as Noble followed up.
Ami Compl. 41. These allegations go beyond mere nonn
performance; they evidence conscious behavior and fraudulent

intent. See Powers v. British (?We find these allegations of

 

conscious behavior, which go beyond mere non?performance,
sufficient to support an inference of intent to 
Harvey effectively ended his relationship with Noble the moment

he ejaculated onto the hotel bathroom floor. Id. at 40?42.

22

 

Case Document 84 Filed 08/14/18 Page 24 of 45

These allegations, when ?read as a whole,? plausibly
allege that Harvey was aware, when he enticed and recruited
Noble throughout 2014 to work for him as an actress, that his

promises had no factual basis. See Pension Ben. Guar. Corp. v.

 

Morgan Stanley lnv. Mgmt. Inc., 712 F.3d 705, 732 (2d Cir. 2013}

 

is well?settled that a complaint must be read as a whole,
not parsed piece by piece to determine whether each allegation,
in isolation, is plausible.?) (internal quotations omitted).
Harvey?s failure to follow up_or to make a reasonable effort to
work with Noble after May 2014, after the sex act was completed?

suggests such an awareness and knowledge.

Noble also alleges that force was used, including that
Harvey ?forcibly pulled [Noble] into the bathroom,? that he
?gripped her firmly,? and ?pulled down [Noble?s] shirt,? that he
?forced his leg between [Noble?s] leg, [and] began rubbing her
vagina? that he ?forcefully grabbed [Noble?s] hand, placed it on
his penis, and forced her hand to masturbate him,? that he ?used
his other hand to control [Noble] and defeat her resistance.?
Am. Compl. 33?37. The Amended Complaint thereby plausibly
alleges the use of ?means of force.? lg; Plaintiff has plausibly
alleged facts sufficient to satisfy this prong of the inquiry by
establishing both ?fraud? and ?means of force.? ?ee 18 U.S.C. 

or in reckless disregard of the fact, that

23

 

Case Document 84 Filed 08/14/18 Page 25 of 45

means of force, threats of force, fraud, coercion described in
subsection or any combination of such means will be used
to cause the person to engage in a commercial Sex act.?)

(emphasis added).

iv. To cause the person to engage in a commercial sex act

Whether the Amended Complaint plausibly alleges a
causal relationship between the promises Harvey made and the
force he employed on the one hand, and the sex act's occurrence

on the other, is a crucial inquiry.

While actual causation is not required to violate
Section 1591,7 because the alleged sex act in this case did in
fact occur, the question is whether the prohibited means of

fraud and force were ?used to cause,? or designed to bring

 

7 In United States v. Alvarez, the Second Circuit held that
the ?used to cause? language in Section 1591(a) evidences
?concern[] with the means and not with the result.? The court
found that, because the statute employs ?the future tense,? ?the
[sex act] itself is not an element of the offense.? 601
Fed.App?x l6, 18 (2d Cir. 2015). In United States v. Maynes, the
Fourth Circuit noted, as to whether a commercial sex act need
actually occur in such cases: ?there is no such requirement in
the statute; the crime is complete when the defendant recruits,
entices, harbors, etc. the victim with knowledge that the
prohibited means will be used in the future to cause them to
engage in commercial sex acts.? 880 F.3d 110, 114.

 

 

24

Case Document 84 Filed 08/14/18 Page 26 of 45

about, the sex act. In other words, Defendant must have
intended, or been aware, that the fraud and force would cause a
sex act to take place. gee Section 1591(a).

Statements made incidental to the sex actmmade for a reason
other than to bring about the act?are not enough. Tied up in
this inquiry is whether the statements made by Defendant were
material?that is, important enough to a reasonable plaintiff to

be relied upon. United States v. Maynes, 880 F.3d 110, 114 (4th

 

Cir. 2018) any fraud to be relevant to the question of
guilt [under Section 1591], it must have been fraud that ?would
be used to cause that person to engage in a commercial sex
(emphasis added). The Amended Complaint?s allegations,
in total, establish material misstatements on which there was

reasonable reliance.

The misrepresentations by Harvey are numerous and are
fully recounted supra. Am. Compl. 16, 29, 31. Made to an
aspiring actress by a film producer and co?founder of a top film
studio, the statements are clearly material, and induced
reasonable reliance. The statements caused Noble to first go to
Harvey?s hotel room, and then to partially ?compl{y]? in the
performance of a sex act. 1d; at 28 (Noble ?went to Harvey
Weinstein's hotel room . . . because of [his] promise of the

role in a TWC Id. at 37 (?Harvey Weinstein, once

25

 

Case Document 84 Filed 08/14/18 Page 27 of 45

again, told her to relax and ?everything will be taken care of
for you? . . . [Noble] reasonably understood this to mean that
he would follow through and assure she has the role in the

promised TWC project . . . if she allowed him to complete the

sex 

The Defendant contends that the promises made were
?indefinite and vague,? and thus inactionable under Section
1591. ECF No. 60 at 1?2. Reading the Amended Complaint as a
whole, that Harvey did not specify the film he had ?in mind? for
Noble does not render her allegations implausible. Pension Ben.
Guar. Corp., 712 F.3d at 732 is well?settled that a
complaint must be read as a whole, not parsed piece by



It is not just what Harvey said that supports an
inference of fraud. The context and history of their
professional relationship imports a degree of legitimacy, of

materiality, to the statements. See generally Matrixx

 

Initiatives, Inc. v. Siracusano, 563 U.S. 27, 44 (2011)

 

(recognizing the value of a ?contextual inquiry? in determining

Section 10(b) materiality).

26

 

Case Document 84 Filed 08/14/18 Page 28 of 45

By the time Harvey and Noble engaged in the sexual
act, Harvey had twice discussed the film role with her in
person, including in the telephonic presence of a TWO producer.
Am. Compl. $9 16, 20, 27. Noble ?interview[ed]? with, and had
sent extensive professional documentation to, Harvey?s Executive
Assistant in London, and the documents were forwarded to Harvey.
Am. ComplCannes, the two reviewed
Noble?s film reel in Harvey?s hotel room. Moreover, Noble and
Harvey spoke with a TWC producer about future projects. lg; at 1
31. Harvey even requested that she ?walk up and down? for

?audition purposes.? Id. at 1 29.

In this context, Harvey?s statements, while less than
concrete, are highly material. When they are relied upon, such
reliance is reasonable. Ed; 9 16, 20, 27, 29, 31, 37. Harvey?s
allegedly false statements were material and they were
reasonably relied upon to Noble?s detriment. Ed; Taken in
context, the statements cross the line ?from conceivable to
plausible? in alleging that fraudulent means were employed to
?cause a person to engage in a commercial sex act.? ?ee lgbal,

556 U.S. at 680; 18 U.S.C. 1591.

27

 

Case Document 84 Filed 08/14/18 Page 29 of 45

v. Commercial sex act

Harvey Weinstein?s principal argument against the
application of Section 1591 to these allegations is that
Plaintiff fails to allege a commercial sex act. On this
Defendant makes two points: first, that ?the alleged facts do
not satisfy the ?commercial? component,? and second, ?the facts
alleged do not describe ?sex acts.?? Defset forth below, Plaintiff has plausibly alleged
the existence of a ?commercial sex act.? It is fair to say that
these allegations present an extension of an element of Section
1591 on which there is little to no prior authority. What
follows is an effort, aided by the tools of statutory

construction, to navigate these uncharted waters.

?Commercial sex act? is defined in Section 1591(e)(3)
as ?any sex act, on account of which anything of value is given
to or received by any person.? 18 U.S.C. 1591(e)(3) (emphasis
added). Defendant cites several authorities, including at least
three dealing almost exclusively with Commerce Clause
jurisprudence, for the proposition that a commercial sex act
must have an ?economic? component and be ?economic in nature.?

ECF No. 60 at 12 (citing United States v. Campbell, 111 F. Supp

 

3d 340, 345 (W.D.N.Y. 2015), which concerns itself exclusively

28

 

Case Document 84 Filed 08/14/18 Page 30 of 45

with whether Section 1591 is ?an unconstitutional exercise of

Congress?s power under the commerce clause?; Gonzales v. Raich,

 

545 0.8. 1, 23 (2005), a seminal Supreme Court case which
created the interstate economic impact test to evaluate

Congress?s valid exercise of power; and United States v. Reed,

 

No. 15ncr-188, 2017 WL 3208458, at *10 (D.D.C. July 27, 2017),

which cites and discusses Gonzales v. Reich?s interstate

 

economic impact analysis). The economic commerce under
consideration in these cases is clearly distinguishable from the

instant commercial sex act analysis.

Defendant contends that the ?commercial? component of
?commercial sex act? is absent because ?nothing of value was
given to Noble.?r ECF No. 60 at 14. However, Congress?s use of
expansive language in defining commercial sex act?using such

(I 

terms as ?any sex act," ?anything of value, given to or
received by any person?wrequires a liberal reading. The concept

of value offered by Plaintiff is similar in character to those

considered by relevant authorities. United States v. Maneri, 353

 

F.3d 165, 168 (2d Cir. 2003) (defining ?thing of value" in the
context of 18 U.S.C. 2252?s sentencing guidelines to include
intangibles, specifically ?the opportunity for a sexual
encounter, in return for distributing child pornography?);

United States v. Cook, 782 F.3d 983, 989 (8th Cir. 2015)

 

29

 

Case Document 84 Filed 08/14/18 Page 31 of 45

(acknowledging the ?extremely broad? nature of the term
?anything of value," and holding defendant?s receipt of sexual
photographs, as well as the sex acts in which he participated,
?could constitute things of value under [Section 

United States v. Rivera, No. 12?crwl21, 2012 WL 6589526, at *5

 

(M.D. Fla. Dec. 18, 2012) (finding, in the context of 1591, that
?the term ?anything of value? encompasses more than just
monetary gain and thus encompasses T.M.'s ordination? as a

prophet.)

For an aspiring actress, meeting a world?renowned film
producer carries value, in and of itself. The opportunity,
moreover, for the actress to sit down with that producer in a
private meeting to review her film reel and discuss a promised

film role carries value that is career~making and life?changing.

The contention, therefore, that Noble was given
nothing of value?that the expectation of a film role, of a
modeling meeting, of ?his people? being ?in touch with her? had

no value?does not reflect modern reality.8

 

8 The concept of the ?casting couch,? in which aspiring
actors and actresses are promised valuable professional
opportunities in exchange for sexual favors, has been in the
American lexicon for nearly a century. gee Ben Zimmer, ?Casting
Couch?: The Origins of a Pernicious Hollywood Cliche, 
Oct. 16, 2017 (?The casting couch?where, as the story goes,

30

 

 

Case Document 84 Filed 08/14/18 Page 32 of 45

Even if the prospect of a film role, of a modeling
meeting, and of a continued professional relationship with TWC
were not ?things of value? sufficient to satisfy commercial
aspect of the sex act definition, Noble?s reasonable expectation
of receiving those things in the future, based on Harvey?s
repeated representations that she would, is sufficient. See

supra note see also United States v. Corley, 679 F.App?x. 1,

 

7 (2d Cir. 2017) (summary order) (recognizing that Section 1591
?does not require that an actual commercial sex act have



The question then remains whether or not the alleged
activity was a ?sex act? covered by Section 1591. Because ?any

sex act? has not been defined by statute or by courts, the

 

aspiring actresses had to trade sexual favors in order to win
roles?has been a familiar image in Hollywood since the advent of
the studio system in the 1920s and Laurie Johnston,
Sexism in the Theater Can Be a Boon, N.Y.Tnms, Feb. 6, 1973
(recognizing the well?known Broadway ?casting couch? in the
19705); see also United States v. Condoion, 600 F.2d 7, 7 (4th
Cir. 1979)(defendant posed as a talent agent and film producer,
offering ?legitimate and well?paid modeling and acting jobs,?
which were contingent upon victims? ?willingness to submit to
his sexual advances.? In affirming wirewfraud conviction, the
court noted: ?fraudulent scheme need not be designed to obtain
money or property? and that the loss of ?time, effort, money,
and expectations? were of sufficient value to represent a
fraudulent exchange).

 

 

31

Case Document 84 Filed 08/14/18 Page 33 of 45

term?s plain English?language meaning, along with the context in
which it appears in the statute, must control.9 See 
Vuitton, 676 F.3d at 86 (?plain meaning can best be understood
by looking to the statutory scheme as a whole and placing the
particular provision within the context of that statute.?)
(emphasis added). Defendant urges us to ignore the expansive
language used by Congress and adopt the following definitions of
?sex act? from a federal sexual abuse statute, 18 U.S.C. 2246:
?[C]ontact between the penis and the vulva or the penis and the
anus,? ?contact between the mouth and the penis, the mouth and
the vulva, or the mouth and the anus,? ?penetration, however
slight, of the anal or genital opening of another," or, ?the
intentional touching, not through the clothing, of the genitalia
of another person who has not attained the age of 16 

ECF No. 60 at 15, note 5. Because 18 U.S.C. 2246?s definition



does not include the modifier ?any? before ?sex act, nor the

Congressional intent to enhance protection for victims (see

 

9 A plain language meaning of ?any sex act? is elusive in the
English language. Many Americans cannot agree on the definition

of ?sex,? let alone ?any sex act.? Peter M. Tiersma, Did Clinton

Lie?: Defining ?Sexual Relations?, 79 Chi. Kent L. Rev. 927
(2004) (recognizing ?widespread disagreement? in America over
the precise meaning of the terms ?have sex,? and ?sexual'
relationship,? among others). ?Sex act? is defined by Merriam
Webster?s Dictionary alternately as ?coitus,? and ?an act
performed with another for sexual gratification." 
WEBSTER ONLINE DICTIONARY, 
The latter definition is
certainly met here.

 

32

Case Document 84 Filed 08/14/18 Page 34 of 45

discussion infra), it is rejected as contrary to and

incompatible with Section 1591?s plain language.

As the United States v. Jungers court recognized, the

 

use of ?any? and ?anything? ?does not lend itself to restrictive

interpretation.? 702 F.3d at 1070. Nor could it. See Williams v.

 

Taylor, 529 U.S. 362, 364 (2000) (?In light of the cardinal
principle of statutory construction that courts must give
effect, if possible, to every clause and word of a statute.?)

(emphasis added); Ali v. Fed. Bureau of Prisons, 552 U.S. 214,

 

220 (2008) (?read naturally, the word ?any? has an expansive
meaning, that is, ?one or some indiscriminately of whatever
(emphasis added) (quoting Webster?s Third New
International Dictionary 97 (1976)). The Supreme Court in Ali v.

Fed. Bureau of Prisons held that Congress?s decision to include

 

the word ?any? within the statutory phrase ?any other law
enforcement officer? modified and expanded the phrase to mean
?law enforcement officers of whatever kind.? 552 U.S. at 220

(emphasis added).



As such, Congress?s decision to use the modifier any
within the phrase ?any sex act" in Section 159l(e)(3) suggests

an intent to expand ?sex act? beyond a limited set of activities

33

Case Document 84 Filed 08/14/18 Page 35 of 45

that involve contact between, or penetration by, two sets of

genitalia. 18 U.S.C. 159l(e)(3).

The plain meaning of ?any sex act,? interpreted in the
broader statutory context of Sections 1591 and l595?considering
Congress?s stated intent of ?enhancing . . . protections of
trafficking victims"?brings Harvey's conduct within the ambit of
Section 1591. Section 1595, Pub. L. 108?193, Dec. 19, 2003, 117
Stat. 2878, ?4 (effective Dec. 19, 2003). By forcibly ?rubbing
her vagina,? and forcing Noble to, among other things,10
?masturbate him? to ejaculation, Harvey?s conduct meets the
statutory definition of ?any sex act" from Section 1591(e)(3).
Am. Compl. 1 36?37; See supra note 6 (?Sex act is defined by
Merriam Webster?s Dictionary alternately as ?coitus,? and ?an
act performed with another for sexual And
because the ?commercial? component has been established above,

the act was a ?commercial sex act? under Section 1591.

Harvey Weinstein cautions the Court against

application of Section 1591 to conduct involving ?consensual

 

More fully, the Amended Complaint alleges that Harvey ?pulled down
[Noble?s] shirt, revealing her breasts," that he ?groped her breasts," that
he ?forced his leg between [Noble?s] legs, began rubbing her vagina, and then
took his penis out and began masturbating," and that he ?forcefully grabbed
{Noble?s] hand, placed it on his penis, and forced her hand to masturbate
him." Am. ComplCase Document 84 Filed 08/14/18 Page 36 of 45

sexual activity,? and other ordinary sexual encountersposes to the Court a hypothetical: ?Query whether
an individual who treats a person to a free dinner and a movie,
promises future outings and/or gifts, and then attempts and/or
engages in what he or she construes as consensual sexual
activity, could be prosecuted under Section 1591 as a ?sex
trafficker.?? Ed; Notably absent from this hypothetical are the
necessary elements of force, fraud, and commerce, all of which

have been established here. See discussion supra.

Accordingly, Plaintiff has plausibly alleged that
Harvey Weinstein, knowingly and in interstate commerce, enticed
and or recruited her knowing that means of force, fraud, or a
combination of the two, would be employed to cause her to engage

in a commercial sex act.

Robert weinstein's Motion to Dismiss Counts and is

 

Granted

Count Participation in a Sex Trafficking VEnture

The first claim against Robert is that he benefited

from, and knowingly facilitated, Harvey?s violation of Section

35

Case Document 84 Filed 08/14/18 Page 37 of 45

1591(a), and thus violated Section 1591(a)(2). Am. Compl. at 77
74, 77. Section 1591(a)(2) reads:
Whoever knowingly 

(2) benefits, financially or by receiving
anything of value, from participation in a venture
which has engaged in an act described in violation of
paragraph (1)

Knowing, or in reckless disregard of the
fact, that means of force, threats of force, fraud,
coercion described in subsection or any
combination of such means will be used to cause the
person to engage in a commercial sex act [is liable.]

l8 U.S.C. 1591(a)(2).

As relevant to the instant claim, Plaintiff alleges
that Robert ?factilitat[ed] Harvey Weinstein?s commercial sex
acts in foreign commerce,? that he ?enjoyed the promotion and
promulgation of TWO projects internationally,? that he
?continued to pay for and facilitate these foreign trips for
Harvey Weinstein,? and that he ?knowingly benefitted financially

from the venture of Harvey Weinstein.?ll Am. Complreference to the OAG Complaint, Plaintiff alleges that
Robert ?used settlement agreements that contained strict 
to silence victims of Harvey?s behavior. Am, Compl., Exh. A 7 8.
Importantly, though, these allegations do not relate to
Plaintiff, nor to Harvey?s 2014 conduct in Cannes. ?ee supra
note 3.

36

Case Document 84 Filed 08/14/18 Page 38 of 45

To adequately allege ?participation in a venture in
violation of 18 U.S.C. Plaintiff must plead facts
suggesting that Robert ?knowingly benefitted, (ii) from
participation in a commercial sex trafficking venture, 
while knowing (or in reckless disregard of the fact) that means
of force, fraud or coercion would be used to cause the
trafficked person to engage in a commercial sex act.? United

States v. Alfyare, 632 F. App?x 272, 283 (6th Cir. 2016).

 

?Venture? is defined in Section 1591(e) as ?any group of two or
more individuals associated in fact, whether or not a legal

entity.? 18 U.S.C. 1591(e)(5).

Because guilt, or in this case liability, cannot be
established by association alone, Plaintiff must allege specific
conduct that furthered the sex trafficking venture. Such conduct
must have been undertaken with the knowledge, or in reckless
disregard of the fact, that it was furthering the alleged sex
trafficking venture. In other words, some participation in the
sex trafficking act itself must be shown. lg; at 285
mere membership in the venture is insufficient
if he is ignorant of the venture?s sex trafficking activities
(and the means and methods (emphasis added). Here,
factual allegations implicating Robert as a participant in

Harvey?s 2014 conduct toward Noble are required. Without

37

Case Document 84 Filed 08/14/18 Page 39 of 45

participation, there can be no violation of Section 1591(a)(2).

United States v. Alfyare, 632 F. App?x at 286 (?We agree with

 

the district court and find that 1591(a)(2) targets those who
participate in sex trafficking; it does not target [those] who
turn a blind to the source of their financial sponsorship.")

(emphasis added).

Plaintiff makes several conclusory allegations about
Robert?s involvement in Harvey's conduct. The Amended Complaint
alleges that Robert ?facilitated? and ?pa[id] for? Harvey?s
travel in interstate commerce, that he ?knowingly benefited
from? Harvey?s violation of Section 1591, and that he ?paid for
prior settlements of claims made by women against [Harvey].? Am.

Compl. ii 72, 73, 76, Ami Compl., Exhorder to plead a violation of Section
1591(a)(2) against Robert, Plaintiff must have supplied ?factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.? lgbal,
556 U.S. at 663 (quoting Twombly, 550 U.S. at 556). What is
required here, and what is missing, are factual allegations of
participation that render a violation of Section 1591(a)(2) by

Robert plausible on its face.

38

Case Document 84 Filed 08/14/18 Page 40 of 45

Taken as true, the allegations against him suggest
that Robert ?facilitated? Harvey?s travel by virtue of his job
responsibilities at TWC, and that he ?benefitted financially
from Harvey Weinstein?s promotion of films and other business?
related activities in foreign commerce." Am. Compl. 9. What is
missing are factual allegations that link Robert?s actions to

Harvey?s 2014 conduct toward Noble. See Lawson v. Rubin, 17?cv?

 

6404, 2018 WL 2012869, at *11 (E.D.N.Y. Apr. 29, 2018)
(dismissing claims against peripheral defendant, because
plaintiffs failed to ?allege any facts to show that [defendant]
knowingly benefitted . . . from participation in a venture.?)
(internal quotations omitted). In Lawson, our sister court
rejected a ?participation in a venture? claim, because:

The amended complaint, like the original complaint,

does not allege that [defendant] was present for any
of the alleged assaults, was told about them before or

after they occurred . . . nor does it allege anything
similar, which might show knowledge or reckless
disregard.

Lawson, 2018 WL 2012869, at *11.

So too here. The Amended Complaint does not contain
any specific factual allegations that plausibly allege Robert
knew of, or participated in, Harvey?s alleged violation of

Section 1591 in Cannes.

39

 

Case Document 84 Filed 08/14/18 Page 41 of 45

Plaintiff claims that it can be ?reasonably inferred
that Robert Weinstein knew of Harvey's scheme in violation of 18
U.S.C. 1591(a), or at least recklessly disregarded the
pertinent facts.? P1.?s Br. At 11, ECF No. 80. However, there
are insufficient facts in her Amended Complaint to suggest this.
Count Ill against Robert for ?participating in a venture in

violation of 18 U.S.C. 1591? is therefore dismissed.

Count V: Aiding and Abetting a Section 1591 Violation

Finally, Plaintiff alleges that Robert violated
Section 1591 by ?aiding and abetting? Harvey?s violation of
Section 1591. To be clear, aiding and abetting liability is not
provided for in Section 1595. And ?when Congress enacts a
statute under which a person may sue and recover damages from a
private defendant for the defendant?s violation of some
statutory norm, there is no general presumption that the

_plaintiff may also sue aiders and abettors." Cent. Bank of

 

Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.

 

164, 183 (1994).

While Central Bank involved Section 10(b) of the 1934
Securities Act, which contains an implied, rather than express,

private right of action, its holding has been extended to

40

Case Document 84 Filed 08/14/18 Page 42 of 45

statutes, like Section 1591, with express private rights of

action. Jean-Charles v. Perlitz, F. Supp. 2d 276, 287 (D. Conn.

 

claim that [secondary defendants] can be held
liable under Section 1595 because they aided and abetted
[primary defendant] . . . However, the text of the statute does
not support such a reading and thus the argument fails underl

Central Gill v. Arab Bank, PLC, 893 F.Supp. 2d 474,

 

497?502 (E.D.N.Y. 2012) (?But the fact that Central Bank dealt
with an implied private right of action is irrelevant. Central
Bank?s analysis did not distinguish between express rights of

action and those that are 

The Supreme Court?s holding in Central Bank, coupled
with the absence of authorities supporting aider and abettor
liability under Section 1595, militates against reading a form
of liability into a statute that does not provide for it. See 18
U.S.C. 1591, 1595.

Even if the Court were to find aiding and abetting
liability available under Section 1595, Plaintiff?s allegations
against Robert fall short. To plead secondary civil liability on
a theory of aiding and abetting, plaintiff must sufficiently
plead: a primary violation of the statute by the primary
defendant, (ii) knowledge by the secondary defendant of his role

in the illegal conduct; and ?substantial assistance? by

41

 

Case Document 84 Filed 08/14/18 Page 43 of 45

the secondary defendant in the primary violation. See generally

 

Line v. Arab Bank, PLC, 882 F.3d 314, 329 (2d Cir. 2018). The

 

focus of aiding and abetting, in the context of civil liability,
is ?whether a defendant knowingly gave ?substantial assistance??

to the primary violator of the underlying statute. See

Halberstam v. Welch, 705 F.2d 472, 478 (D.C. Cir. 1983).

 

Plaintiff cites Taggart v. United States, a Tenth

 

Circuit case from 1933 which affirmed the wire fraud conviction
of an aider and abettor who ?controlled and directed? the
company from which the fraud was perpetrated. 63 F.2d 285, 287
(10th Cir. 1933). According to Plaintiff, Taggart supports her
contention, that partial ownership and control of the Weinstein
Company by Robert gives rise to an ?inference? of aiding and
abetting Harvey?s violations. Pl. Opp. at 15, ECF No. 80. But
the defendant in Taggart did more than just own and control the
fraudulent company: he ?assisted in the preparation of a
circular letter? that was fraudulent, he ?knew this letter of
circular was prepared for distribution through the United States
mails,? and he ?knew the [Company] could not meet the
obligations of its contracts.? 5g; Here, no such connection to,
or assistance with, the underlying violation of Section 1591 is

alleged by Plaintiff.

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Case Document 84 Filed 08/14/18 Page 44 of 45

Even if Plaintiff satisfied the first two elements of
aider and abettor liability by pleading specific knowledge of
Harvey?s conduct in Cannes?and the Amended Complaint provides no
such allegations?Plaintiff has not alleged ?substantial
assistance? by Robert in the commission of the primary
Violation. Oblique references to ?joint business interests? and
Robert?s ?support[] of Harvey Weinstein? as co?founder of TWC do
not suffice. For these reasons, Count of the Amended
Complaint, alleging an ?aiding and abetting? violation of

Section 1591 against Robert, is dismissed.

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Case Document 84 Filed 08/14/18 Page 45 of 45

VI. Conclusion

Based on the conclusions set forth above, Defendant
Harvey Weinstein?s motion to dismiss the Amended Complaint is
denied, and Defendant Robert Weinstein's motion to dismiss the

Amended Complaint is granted.

The parties are directed to meet and confer on a

pretrial conference, discovery, and trial.

It is so ordered.

New York, NY
August 2018

a 

5 ROBERT


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