Case 1:18-cv-02082-TFH Document 18 Filed 01/04/19 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY STEWART MOORE and KAYLA
MOORE,
Plaintiffs,
Civil Action No. 1:18-cv-02082

v.
SACHA NOAM BARON COHEN,
SHOWTIME NETWORKS, INC., AND
CBS CORPORATION,
Defendant.

REPLY MEMORANDUM IN FURTHER SUPPORT OF DEFENDANTS’ MOTION TO
TRANSFER CASE PURSUANT TO 28 U.S.C. § 1404(a)
Elizabeth A. McNamara (pro hac vice)
Rachel F. Strom (pro hac vice)
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor
New York, New York 10020
(212) 489-8230
(212) 489-8340
lizmcnamara@dwt.com
rachelstrom@dwt.com

Eric J. Feder (DC Bar No. 1048522)
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20006-3401
(202) 973-4200
(202) 973-4499 (fax)
ericfeder@dwt.com
Of Counsel:
Russell Smith, Esq.
Jeff Holmes, Esq.
SMITHDEHN LLP
2500 Broadway
Building F, Suite F-125
Santa Monica, California 90404
(310) 396-9045
rsmith@smithdehn.com
jholmes@smithdehn.com

Attorneys for Defendants Sacha Noam Baron Cohen,
Showtime Networks Inc. and CBS Corporation

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................3
I.

PLAINTIFFS’ BROAD ALLEGATIONS OF FRAUDULENT INDUCEMENT
OF THE CONSENT AGREEMENT DO NOT AFFECT ENFORCEABILITY OF
THE FORUM SELECTION CLAUSE ...............................................................................3

II.

DEFENDANTS MAY ENFORCE THE FORUM SELECTION CLAUSE ......................7

III.

THE INTERESTS OF JUSTICE WEIGH IN FAVOR OF TRANSFERRING THE
ENTIRE CASE TO NEW YORK .......................................................................................9

CONCLUSION ..............................................................................................................................11

i

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TABLE OF AUTHORITIES
Page(s)
Federal Cases
2215 Fifth St. Assocs. v. U-Haul Int’l, Inc.,
148 F. Supp. 2d 50 (D.D.C. 2001) .............................................................................................5
Armco Inc. v. N. Atl. Ins. Co.,
68 F. Supp. 2d 330 (S.D.N.Y. 1999)..........................................................................................5
Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas,
571 U.S. 49 (2013) ...........................................................................................................3, 9, 10
Bank v. Laptop & Desktop Repair LLC,
206 F. Supp. 3d 772 (E.D.N.Y. 2016) .......................................................................................4
Brown v. Dorsey & Whitney, LLP,
267 F. Supp. 2d 61 (D.D.C. 2003) .........................................................................................5, 6
Cheney v. IPD Analytics, LLC,
583 F. Supp. 2d 108 (D.D.C. 2008) .......................................................................................4, 5
Klayman v. Judicial Watch, Inc.,
No. 06-cv- 670 (CKK), 2007 WL 1034937 (D.D.C. Apr. 3, 2007).......................................7, 9
KTV Media Int’l, Inc. v. Galaxy Grp., LA LLC,
812 F. Supp. 2d 377 (S.D.N.Y. 2011)......................................................................................11
M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972) .....................................................................................................................10
Magi XXI, Inc. v. Stato Della Citta Del Vaticano,
818 F. Supp. 2d 597 (E.D.N.Y. 2011), aff’d, 714 F.3d 714 (2d Cir. 2013) ...............................8
One on One Basketball, Inc. v. Glob. Payments Direct, Inc.,
38 F. Supp. 3d 44 (D.D.C. 2014) ...............................................................................................8
Psenicska v. Twentieth Century Fox Film Corp.,
No. 07 Civ. 10972, 2008 WL 4185752 (S.D.N.Y. Sept. 3, 2008),
aff’d, 409 F. App’x 368 (2d Cir. 2009) ............................................................................2, 6, 10
Scherk v. Alberto-Culver Co.,
417 U.S. 506 (1974) ...................................................................................................................4
Sheffer v. Novartis Pharms. Corp.,
873 F. Supp. 2d 371 (D.D.C. 2012) ...........................................................................................8

ii

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Singh v. D.C.,
55 F. Supp. 3d 55 (D.D.C. 2014) .............................................................................................11
Streit v. Twentieth Century Fox Film Corp.,
No. CV 07-J-1918-S, 2008 WL 11422482 (N.D. Ala. Jan. 30, 2008)...............................2, 4, 5
State Cases
Ex parte Leasecomm Corp.,
879 So. 2d 1156 (Ala. 2003) ..............................................................................................4, 5, 7
Farmers Ins. Exch. v. Morris,
228 So. 3d 971 (Ala. 2016) ........................................................................................................6
Foremost Ins. Co. v. Parham,
693 So. 2d 409 (Ala. 1997) ........................................................................................................7
Hercules & Co. v. Shama Rest. Corp.,
613 A.2d 916 (D.C. 1992) .........................................................................................................9
Klapper v. Graziano,
41 Misc. 3d 401 (N.Y. Sup. Ct. Kings Cty. 2013), aff’d, 129 A.D.3d 674 (2d Dep’t 2015) .....9
Woodfield v. Providence Hosp.,
779 A.2d 933 (D.C. 2001) .........................................................................................................8
Federal Statutes
28 U.S.C. § 1391 ..............................................................................................................................3
28 U.S.C. § 1404(a) ...........................................................................................................1, 3, 8, 11

iii

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Defendants submit this reply memorandum in further support of their motion pursuant to
28 U.S.C. § 1404(a) for an order transferring this action to the United States District Court for
the Southern District of New York (the “Motion”).1
PRELIMINARY STATEMENT
Judge Moore is the former Chief Justice of the Supreme Court of the State of Alabama.
Such a sophisticated jurist must be well aware of the legal implications of signing a contract.
Here, the short six-paragraph Standard Consent Agreement he signed before appearing in a
“television series” provided in no uncertain terms that Judge Moore was “not relying upon any
promises or statements made by anyone about the nature of the Program or the identity, behavior
or qualifications of any other Participants, cast members, or other persons involved in the
Program,” and that he was “signing th[e] agreement with no expectations or understandings
concerning the conduct, offensive or otherwise, of anyone involved in this Program.” Consent
Agreement ¶ 5. He also agreed he would not bring “any claims against the Producer … or
anyone associated with the Program, which are related to the Program or its production,”
including, but not limited to, claims for (1) “defamation,” (2) “infliction of emotional distress,”
or (3) “fraud.” Id. ¶ 4. And he agreed that if “any claim nevertheless is made,” “any such claim
must be brought before, and adjudicated by, only a competent court located in the State and
County of New York.” Id. ¶ 6 (emphasis added). Despite these crystal clear promises, Plaintiffs
filed this lawsuit in Washington, D.C., asserting claims relating to the Program for (1)
defamation, (2) infliction of emotional distress and (3) fraud. But if these claims are to be heard
at all, they must be heard in the contractually agreed-upon forum.

1

Capitalized terms bear the same definitions as in Defendants’ Memorandum of Points and
Authorities in support of this Motion (ECF No. 6-1) (“Defs. Mem.”).

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In trying to avoid enforcement of the unambiguous and binding forum selection clause,
Plaintiffs completely ignore both the law and the record. Plaintiffs cite a general provision of the
Restatement of Contracts in an effort to get around the well settled legal principle that an
allegation of fraudulent inducement only prevents enforcement of a forum selection clause where
the plaintiff shows that the inclusion of the clause itself was somehow based on fraud or
deception. Plaintiffs do not even try to meet this standard here. See infra Point I. Likewise, in
arguing that Defendants have “no basis” to enforce the Consent Agreement, Plaintiffs ignore the
fact that the counter-party to the Consent Agreement—Yerushalayim TV—is defined to include
that entity’s “assigns, licensees, parents, subsidiaries, and affiliates,” which the undisputed
evidence in the record establishes includes all of the Defendants. Consent Agreement at 1.
Indeed, even absent such language, it is well settled that non-signatories, like Defendants, who
are “closely related” to the parties to a contract may also enforce a forum selection clause
contained in the agreement. See infra Point II.
More broadly, Plaintiffs fail to grapple with the reality that all of the issues they raise
have already been decided against them. In the cases stemming from the Borat movie—another
comedy film produced by and starring Defendant Cohen—the plaintiffs raised the same
arguments to avoid enforcement of almost identical consent agreements, and courts across the
country rejected those arguments. See Streit v. Twentieth Century Fox Film Corp., No. CV 07-J1918-S, 2008 WL 11422482 (N.D. Ala. Jan. 30, 2008) (transferring case against Defendant
Cohen to New York pursuant to forum selection clause, notwithstanding arguments of fraudulent
inducement); Psenicska v. Twentieth Century Fox Film Corp., No. 07 Civ. 10972, 2008 WL
4185752, at *6 (S.D.N.Y. Sept. 3, 2008) (consolidating and dismissing multiple suits against
Mr. Cohen and other producers of the film pursuant to similar consent agreement), aff’d, 409 F.
App’x 368 (2d Cir. 2009). Indeed, the only meaningful distinction between this case and the

2

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Borat cases is that the plaintiffs in those cases were laypersons, while the signatory of the
Consent Agreement in this case is the former Chief Justice of a state Supreme Court.
In the end, Plaintiffs provide no basis to avoid enforcement of a clear, mandatory forum
selection clause, and the Court should therefore transfer the case to the contractually chosen
forum, New York.2
ARGUMENT
I.

PLAINTIFFS’ BROAD ALLEGATIONS OF FRAUDULENT INDUCEMENT OF
THE CONSENT AGREEMENT DO NOT AFFECT ENFORCEABILITY OF THE
FORUM SELECTION CLAUSE
Plaintiffs’ opposition to Defendants’ Motion rests almost entirely on the premise that they

should not be bound by the unambiguous obligations of the Consent Agreement because of the
“severe level of fraud” Plaintiffs allege Defendants “perpetrated”: specifically, that Defendants

2

On December 27, 2018, more than two weeks after they filed their Opposition, Plaintiffs filed a
“Supplement” to their Opposition—which is not only untimely but is wholly irrelevant to this
Motion to transfer this litigation in accordance with the agreed upon forum in Judge Moore’s
Consent Agreement. Supplement to Opposition (ECF No. 17) at 1. Plaintiffs’ Supplement cites
an article containing an interview with Defendant Cohen which Plaintiffs maintain establishes
“the extent to which … the … Defendants’ activities were linked with and targeted to the District
of Columbia with regard to Who Is America?” Id. But Defendants’ alleged activity in this
District in connection with production of the Program—whether or not it amounted to
“engag[ing] in business,” id. at 2—has no bearing on whether the Court should enforce the
mandatory and unambiguous forum selection clause in the Consent Agreement that Judge Moore
signed. Indeed, the entire premise of the U.S. Supreme Court’s recent decision in Atlantic
Marine Construction Co. v. United States District Court for the Western District of Texas, 571
U.S. 49 (2013), was that a forum selection clause does not render venue “improper” under the
venue statute, 28 U.S.C. § 1391, but that courts must nevertheless enforce such clauses by
transferring the action under 28 U.S.C. § 1404(a) to the contractually designated forum in “all
but the most exceptional cases.” Id. at 59-60 (citation omitted). Thus, even assuming venue is
proper in this District and that the Court has personal jurisdiction over the Defendants, this Court
should transfer this case to New York in accordance with the Consent Agreement. Plaintiffs’
“Supplement” does not change the analysis in the slightest.
3

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“misrepresent[ed] not only their identity but also the purpose of the purported agreement.”
Plaintiff’s Opposition (“Pl. Opp.”) at 1.3 There are two critical flaws in this argument.
First, it is well settled—whether under the law of this District, New York, or Plaintiffs’
home state of Alabama—that allegations that a contract was induced by fraud cannot preclude
enforcement of a forum selection clause unless the plaintiff shows that the inclusion of the clause
itself was based on fraud. See Cheney v. IPD Analytics, LLC, 583 F. Supp. 2d 108, 117–21
(D.D.C. 2008); Bank v. Laptop & Desktop Repair LLC, 206 F. Supp. 3d 772, 780–81 (E.D.N.Y.
2016) (collecting cases); Ex parte Leasecomm Corp., 879 So. 2d 1156, 1159 (Ala. 2003); Defs.
Mem. at 13-14 (citing cases). Indeed, the U.S. Supreme Court squarely rejected the notion
advanced by Plaintiffs that “any time a dispute arising out of a transaction is based upon an
allegation of fraud, as in this case, the [forum selection] clause is unenforceable.” Scherk v.
Alberto-Culver Co., 417 U.S. 506, 519 n.14 (1974).
This well settled principle of law was the basis for the court’s transfer of a case that a
number of the participants in the Borat movie filed in the Northern District of Alabama, in
contravention of a similar forum selection clause in the consent agreements those plaintiffs had
signed. See Streit, 2008 WL 11422482. The plaintiffs in that case made the same arguments that
Plaintiffs make here—that they had been misled about the nature of the program (claiming they
were told they would be in “an educational documentary”) and the identity of the producer (the
production company was called “Belarus Television” although the movie was produced by
Twentieth Century Fox), see Defs. Mem. at 14—but the court held those allegations were not
sufficient to show fraud connected to the “inclusion of that [forum selection] clause in the

3

It is with no small irony that Plaintiffs accuse “Defendants” and “Defendant Cohen and his
agents” of being central to this alleged fraud surrounding the execution of the Consent
Agreement, yet in their next breath, argue that the Consent Agreement “was strictly between
Judge Moore and Yerushalayim TV.” Pl. Opp. at 5.
4

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contract.” Streit, 2008 WL 11422482, at *1 (citation omitted). The Streit court cited case law
from the Alabama Supreme Court—the very court on which Judge Moore served—that “if the
claim of fraud in the inducement is directed toward the entire contract, the fraud exception to
enforcement of the forum-selection clause does not apply.” Id. (quoting Leasecomm, 879 So. 2d
at 1159).
Here, Plaintiffs make no effort to allege that the specific inclusion of the forum selection
clause in the Consent Agreement was based on fraud or deception. That failure is fatal to their
effort to avoid the clause’s effect. A forum selection clause may only be invalidated “if it had
been concealed by one party or if an overbearing party had forced a relatively unsophisticated
party to include it within the contract.” 2215 Fifth St. Assocs. v. U-Haul Int'l, Inc., 148 F. Supp.
2d 50, 54–56 (D.D.C. 2001). Cf. Armco Inc. v. N. Atl. Ins. Co., 68 F. Supp. 2d 330, 340–41
(S.D.N.Y. 1999) (declining to enforce forum selection clause where, inter alia, the initial draft of
the agreement contained no forum selection clause, and the clause was added at the direction of a
lawyer “who was charged with protecting plaintiffs’ interests in the contract negotiations, [but]
was secretly working with the other defendants in th[e] action to defraud plaintiffs”). But
Plaintiffs make no allegations that the forum selection clause was concealed or surreptitiously
added to the single-page, six-paragraph Consent Agreement that Judge Moore not only signed,
but even carefully marked up. See Consent Agreement (containing handwritten modification of
paragraph 4 initialed by Judge Moore). And Plaintiffs would have a hard time arguing that a
former state Supreme Court justice is a “relatively unsophisticated party” in the area of contract
law. See Cheney, 583 F. Supp. 2d at 118-19 (plaintiff’s “allegation of coercion” to avoid
enforcement of forum selection clause was “undermined by the fact that he is an experienced
attorney”); Brown v. Dorsey & Whitney, LLP, 267 F. Supp. 2d 61, 83 (D.D.C. 2003) (“plaintiff’s
education and extensive experience in the legal profession support the conclusion that she

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assented to be bound by the terms of the defendant’s dispute resolution policy” that she did not
read). Given their failure to show fraud specific to the forum selection clause, Plaintiffs cannot
avoid enforcement of that clause. This case belongs in New York.
Second, if that were not sufficient, Plaintiffs’ fraudulent inducement arguments are
undermined completely by the terms of the Consent Agreement itself. In signing the Consent
Agreement, Judge Moore expressly acknowledged that the Consent Agreement represented the
“entire agreement between the Participant and the Producer or anyone else in relation to the
Program.” Consent Agreement ¶ 5. Judge Moore agreed further that he was “not relying upon
any promises or statements made by anyone about the nature of the Program or the identity,
behavior or qualifications of any other Participants, cast members, or other persons involved
in the Program,” and that he was “signing th[e] agreement with no expectations or
understandings concerning the conduct, offensive or otherwise, of anyone involved in this
Program.” Id. (emphasis added). In the Borat cases, which were eventually consolidated in the
Southern District of New York, the court enforced consent agreements containing similar
language because, “where a plaintiff ‘has in the plainest language announced and stipulated that
it is not relying on any representations as to the very matter as to which it now claims it was
defrauded,’ the disclaimer ‘destroys the allegations in plaintiff’s complaint that the agreement
was executed in reliance upon these contrary oral representations.’” Psenicska, 409 F. App’x at
371 (citation omitted). The result here should be the same.
This is hardly an abstract or obscure concept. In fact, it is well-known to Judge Moore
himself who has cited the principle that “judgment as a matter of law in a fraud case” is
appropriate where “the undisputed evidence indicates that the party or parties claiming fraud in a
particular transaction were fully capable of reading and understanding their documents, but
nonetheless made a deliberate decision to ignore written contract terms.” Farmers Ins. Exch. v.

6

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Morris, 228 So. 3d 971, 991 (Ala. 2016) (Moore, C.J., dissenting) (quoting Foremost Ins. Co. v.
Parham, 693 So. 2d 409, 421 (Ala. 1997)) (dissenting from opinion affirming judgment for
former employee asserting fraudulent inducement on grounds that, because former employee
“was legally bound by the specific at-will language in the contract, he had no basis to rely on
oral assurances” to the contrary). And Plaintiffs’ counsel is also well aware from his own
litigation history that, “where an agreement provides that it supersedes all previous agreements
and understandings, any prior representations are superseded, such that there are no
representations on which a plaintiff could reasonably base a fraud claim.” Klayman v. Judicial
Watch, Inc., No. 06-cv- 670 (CKK), 2007 WL 1034937, at *8–10 (D.D.C. Apr. 3, 2007) (citation
omitted). Thus, as Plaintiffs (and their counsel) know, they cannot avoid enforcement of a forum
selection clause by arguing that they relied on the exact representations—about the nature of the
Program and the identity of the producers—that were expressly disclaimed in the Consent
Agreement.
At bottom, Plaintiffs are trying to argue against enforcement of the Consent Agreement
as a whole. However, as Judge Moore’s own court has explained, those “more general claims of
fraud” must be “litigated in the chosen forum, in accordance with the contractual expectations of
the parties.” Leasecomm, 879 So. 2d at 1159 (citation omitted). Here, that means that
Plaintiffs’ general allegations of fraud must be litigated in New York.
II.

DEFENDANTS MAY ENFORCE THE FORUM SELECTION CLAUSE
Plaintiffs’ argument that Defendants “have no basis” to enforce the forum selection

clause fares no better than their deficient fraud arguments. Pl. Opp. at 5. Plaintiffs argue that the
Consent Agreement was “strictly between Judge Moore and Yerushalayim TV,” and cite the
Articles of Organization and Annual Report of Yerushalayim Television, LLC, which do not
contain an “indication” that it is “affiliated with any of the Defendants.” Id. But Plaintiffs

7

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ignore the language of the contract itself, which defines the “Producer” counter-party to the
Consent Agreement as “Yerushalayim TV” and its “assigns, licensees, parents, subsidiaries, and
affiliates.” Consent Agreement at 1. Plaintiffs likewise ignore the undisputed evidence
submitted by Defendants that Yerushalayim Television, LLC is wholly owned by Defendant
Cohen through his wholly-owned production company, and that Cohen’s production company, in
turn, owns the Program and licenses it to Defendant SNI (and its parent Defendant CBS). See
Schulman Decl. ¶¶ 4, 5, 7.4 In other words, far from being “stranger[s] to [the] contract,” Pl.
Opp. at 5, each of the Defendants is included within the definition of the “Producer” signatory to
the Consent Agreement as, respectively, “parent” or “affiliate” (Cohen) and “licensees” (SNI and
CBS) of Yerushalayim TV. Consent Agreement at 1.
Further, notwithstanding Plaintiffs’ conclusory assertions to the contrary, the language of
the Consent Agreement makes clear that, to the extent Defendants are third parties to the
agreement, they are expressly intended third-party beneficiaries, since the agreement required
Judge Moore to waive his right to bring claims “related to the Program or its production” against
not only the “Producer” but “any of its assignees or licensees or anyone associated with the
Program.” Consent Agreement ¶ 4 (emphasis added). See, e.g., Woodfield v. Providence Hosp.,
779 A.2d 933, 937 (D.C. 2001) (holding that, where contract provided for waiver of claims
against “those entities and individuals named in appellant’s employment application,” they were
intended third-party beneficiaries). And courts have held that “[a] third-party beneficiary to a
contract is ‘by definition’ a closely related party to that contract,” and may therefore enforce a
forum selection clause contained therein. Magi XXI, Inc. v. Stato Della Citta Del Vaticano, 818
4

When considering a motion to transfer under 28 U.S.C. § 1404(a), the Court is not limited to
the allegations of the Complaint, but “may consider undisputed facts outside the pleadings,”
Sheffer v. Novartis Pharms. Corp., 873 F. Supp. 2d 371, 380 (D.D.C. 2012), including
“affidavits … or other relevant documents.” One on One Basketball, Inc. v. Glob. Payments
Direct, Inc., 38 F. Supp. 3d 44, 48 (D.D.C. 2014).
8

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F. Supp. 2d 597, 609–10 (E.D.N.Y. 2011) (collecting cases), aff’d, 714 F.3d 714 (2d Cir. 2013).5
Thus, for example, in Klapper v. Graziano, 41 Misc. 3d 401, 408-09 (N.Y. Sup. Ct. Kings Cty.
2013), aff’d, 129 A.D.3d 674 (2d Dep’t 2015), a New York court rejected “a technical challenge”
to an appearance agreement for the show “Mob Wives” where the agreement only named one
producer of the show, because “[i]t is abundantly clear that the [named] defendants are closely
intertwined in the production of Mob Wives.” Id. The court held the agreement “serve[d] to
insulate the named party (Left/Right Inc.) as well as the corporate affiliates and assigns who play
a role in producing Mob Wives.” Id. at 410. Similarly here, Plaintiffs cannot credibly argue that
Defendants—as affiliates and licensees of Yerushalayim TV—may not enforce the forum
selection clause in an agreement that exists entirely for their protection.
III.

THE INTERESTS OF JUSTICE WEIGH IN FAVOR OF TRANSFERRING THE
ENTIRE CASE TO NEW YORK
Left without a viable legal basis to avoid enforcement of the forum selection clause,

Plaintiffs ultimately lean on broad principles of “equity” and “the interest of justice.” Pl. Opp. at
5, 6. But the U.S. Supreme Court has squarely held that “[w]hen parties have contracted in
advance to litigate disputes in a particular forum,” then “[i]n all but the most unusual cases …
‘the interest of justice’ is served by holding parties to their bargain.” Atl. Marine Constr., 571
U.S. at 66. Plaintiffs’ assertions that Judge Moore was fraudulently induced into signing the
Consent Agreement do not remotely place this action among the “most unusual cases.” Id. On
the contrary, as the Borat court held, to allow a case to go forward based on allegations of fraud

5

Plaintiffs’ insistence that they could not possibly have intended to benefit Defendants since
they did not specifically know the identities of who was producing the Program (see Pl. Opp. at
5) flies in the face of black letter contract law that, where, as in this case, a contract is “facially
unambiguous, its language should be relied upon as providing the best objective manifestation of
the parties’ intent.” Klayman, 2007 WL 1034937, at *8 (quoting Hercules & Co. v. Shama Rest.
Corp., 613 A.2d 916, 927 (D.C. 1992)). The contractual language here is crystal clear.
9

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“would empower these Plaintiffs to avoid the clear wording of their own contracts in a manner
[the court] must decline to condone.” Psenicksa, 2008 WL 4185752, at *6.
In a peculiar twist, Plaintiffs finally accuse Defendants of “attempt[ing] to ‘forum shop’
with their instant motion.” Pl. Opp. at 6. If seeking to enforce a previously mutually-agreedupon forum selection provision is forum shopping, then that is correct. Defendants did indeed
select the forum in which disputes arising from production of the Program would be heard, but
they did so when they entered into the Consent Agreement, not when they filed this Motion. The
law encourages this type of contractual forum shopping: The U.S. Supreme Court has described
parties’ ability to “agree[] in advance on a forum acceptable” as “an indispensable element” in
commerce. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13–14 (1972). As the Court has
explained further, “enforcement of valid forum-selection clauses, bargained for by the parties,
protects their legitimate expectations and furthers vital interests of the justice system.” Atl.
Marine Constr., 571 U.S. at 63 (citation omitted).
Here, in the Consent Agreement, Judge Moore expressly acknowledged his
“understand[ing] that the Producer and its assignees or licensees are relying upon this consent
agreement in spending time, money and effort on the Program and the Participant’s participation
in it, and that the consent agreement, for this and other reasons, cannot be revoked.” Consent
Agreement ¶ 3. And the Consent Agreement makes clear how central the forum selection clause
is, providing that the paragraph containing the clause “is intended by the parties to stand on its
own, and it is intended to be valid and enforceable, even if a court finds that other paragraphs are
not valid or enforceable.” Id. ¶ 6. Accordingly, the interest of justice compels transfer of this
case in its entirety to the Southern District of New York.6
6

In their Motion to Transfer, Defendants argued that the Court should transfer the case to the
Southern District of New York in its entirety, even though Ms. Moore did not separately sign the
Consent Agreement. Plaintiffs do not contest this argument, and have thus waived any
10

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CONCLUSION
For all of the reasons set forth above, Defendants respectfully request that the Court grant
Defendants’ Motion, and transfer this case in its entirety to the U.S. District Court for the
Southern District of New York pursuant to 28 U.S.C. § 1404(a).
Dated: January 4, 2019

Respectfully submitted,
/s/ Eric J. Feder
Elizabeth A. McNamara (pro hac vice)
Rachel F. Strom (pro hac vice)
Eric J. Feder (DC Bar No. 1048522)
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor
New York, New York 10020
(212) 489-8230   (212) 489-8340 (fax)
1919 Pennsylvania Avenue N.W., Suite 800
Washington, D.C. 20006-3401
(202) 973-4200   (202) 973-4499 (fax)
lizmcnamara@dwt.com
rachelstrom@dwt.com
ericfeder@dwt.com
Of Counsel:
Russell Smith, Esq.
Jeff Holmes, Esq.
SMITH DEHN LLP
2500 Broadway, Building F, Suite F-125
Santa Monica, California 90404
(310) 396-9045
rsmith@smithdehn.com
jholmes@smithdehn.com
Attorneys for Defendants

opposition. Singh v. D.C., 55 F. Supp. 3d 55, 66 (D.D.C. 2014) (“The rule in this circuit is clear
that when a plaintiff fails to respond to an issue raised in a dispositive motion, the Court may
treat that argument as conceded.”). But, in any event, any such opposition would be meritless.
Since Ms. Moore’s claims are “completely derivative” of Judge Moore’s claims, the forum
selection clause can be enforced against her as a matter of law. Defs. Mem. at 11 (quoting KTV
Media Int’l, Inc. v. Galaxy Grp., LA LLC, 812 F. Supp. 2d 377, 386–87 (S.D.N.Y. 2011)). And
it would make no practical sense to transfer the core of this case (i.e., Judge Moore’s claims) to
New York and litigate the same issues on behalf of Ms. Moore here. See Defs. Mem. at 17-18.
11