Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 1 of 14 PageID# 934

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

ROY COCKRUM,

ET AL .,

Plaintiffs,

v.

Case No. 3:18-cv-484-HEH

DONALD J. TRUMP FOR PRESIDENT, INC.,
Defendant.

DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S
SUPPLEMENTAL RESPONSE BRIEF
ON CHOICE OF LAW

Jeffrey Baltruzak
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
(412) 391-3939
jbaltruzak@jonesday.com

Michael A. Carvin
William D. Coglianese
Nikki L. McArthur
Vivek Suri
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
(202) 879-3939
macarvin@jonesday.com
wcoglianese@jonesday.com
nmcarthur@jonesday.com
vsuri@jonesday.com

Counsel for Donald J. Trump for President, Inc.

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 2 of 14 PageID# 935

TABLE OF CONTENTS
Page
Argument ....................................................................................................................................... 1
A. The Court should dismiss Plaintiffs’ claims in accordance with New York law .......... 2
B. If the Court cannot determine the place of the wrong from the complaint,
it should dismiss Plaintiffs’ claims in accordance with Virginia law............................ 4
C. The Court should, at a minimum, dismiss the tort claims on the ground that
Tennessee, New Jersey, and Maryland law do not apply to this case ........................... 6
Conclusion ................................................................................................................................... 10

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 3 of 14 PageID# 936

ARGUMENT
There are three ways in which the Court could rule that Plaintiffs fail to state a claim
against the Campaign under Virginia’s choice-of-law rules. First, and most obviously, the Court
should apply the law of the State of New York. In Virginia, tort claims are governed by the law
of the place of the wrong, and the place of the wrong is defined as the place of the defendant’s
wrongful act. Taking allegations in the Amended Complaint as true, the wrongful act in this case
took place in New York. The alleged wrongful act is the posting of Plaintiffs’ materials on the
internet; Virginia presumes that a corporate defendant posts material on the internet from its
headquarters; and the Campaign is headquartered in New York. Plaintiffs’ claims fail under the
law of New York, because New York does not recognize Plaintiffs’ tort theories.
Second, if New York is not the place of the wrong, the Court should apply the law of Virginia. At the hearing on the motion to dismiss, the Court asked what it should do if the allegations in the complaint do not clearly identify the place of the wrong. The answer under Virginia’s
choice-of-law rules is simple: Where the place of the wrong is not clear from the complaint, a
court should default to the law of the forum—i.e., to Virginia’s own law. As relevant here, Virginia law and New York law are identical. So the result is also identical: Plaintiffs’ claims fail.
Finally, in all events, the Court need not affirmatively decide which state’s laws do apply.
All it needs to do is determine that the laws of Tennessee, New Jersey, and Maryland do not apply. Plaintiffs invoke the laws of these states, but they have not identified any “wrongful act,” or
for that matter any act at all, that occurred there. The only thing that happened in these states is
that Plaintiffs live there. Yet Virginia’s choice-of-law rules could not be clearer: A plaintiff cannot invoke his home state’s laws based on his residence there.
Under any one of these three approaches—and also for the many further reasons set out
in the Campaign’s motion to dismiss—the Court should dismiss the tort claims.
1

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 4 of 14 PageID# 937

A.

The Court should dismiss Plaintiffs’ claims in accordance with New York law

1. The parties agree that this Court should use Virginia’s choice-of-law rules, because
Virginia is the forum state. “Virginia applies the lex loci delicti, the law of the place of the wrong,
to tort actions.” Milton v. IIT Research Institute, 138 F.3d 519, 522 (4th Cir. 1998). Virginia defines the “place of the wrong” as the place where the defendant committed the wrongful act, not
the place where the plaintiff suffered the injury.
This definition follows from the Virginia Supreme Court’s decision in Buchanan v. Doe,
431 S.E. 2d 289 (Va. 1993). There, the Supreme Court explained: “The word ‘tort’ has a settled
meaning in Virginia. A tort is any civil wrong or injury; a wrongful act.” Id. at 291. Buchanan
establishes that the place of the tort—the wrong—is the place of the “wrongful act.”
The Fourth Circuit elaborated on this point in Milton. It began by quoting Buchanan:
“The word ‘tort’ has a settled meaning in Virginia. A tort is any civil wrong or injury; a wrongful
act.” 138 F.3d at 522. The court continued: “Thus Virginia’s choice of law rule selects the law of
the state in which the wrongful act took place, wherever the effects of that act are felt.” Id. at 522.
The court repeated: “Virginia clearly selects the law of the place where the wrongful act occurred,
even when that place differs from the place where the effects of injury are felt.” Id. For example,
if a plaintiff sues for “wrongful discharge,” the case is governed by the law of the place of the
“office,” because that is the place where the “termination”—the wrongful act—occurred. Id. If a
plaintiff sues for “fraud arising out of a failed real estate investment,” the case is governed by the
law of the place of the real estate, because that is the place where the fraud—the wrongful act—
occurred. Id. And if a plaintiff sues for “a car accident,” the case is governed by the law of the
place of “the accident,” once again because that is where the relevant “tortious conduct” occurred. Id. In short, the place of the wrong is the place of the “wrongful act” or “tortious conduct.”

2

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 5 of 14 PageID# 938

2. Where a plaintiff sues a defendant for publishing information, the defendant’s “wrongful act” or “tortious conduct” occurs in the location from which the defendant publishes the information. Where the defendant is a corporation, courts ordinarily presume that the defendant
made the publication from its corporate headquarters. Here are some examples.
• In ABLV Bank v. Center for Advanced Defense Studies Inc., 2015 WL 12517012 (E.D.
Va. April 21, 2015), a bank that did business “in New York” sued a corporation “based in Washington, D.C.” for defamatory statements in an online report. Id. at *1. The court applied D.C. law:
“[I]t is undisputed that [the] report was published from [the defendant’s] Washington, D.C. office.
It is irrelevant that the negative effects of the publication were felt in New York; any reputational
damage caused by [the report] occurred everywhere due to the nature of online publication. Thus,
D.C. law shall govern the case.” Id. at *2.
• In Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604 (E.D. Va. 2005), the plaintiff sued a corporation for libel and invasion of privacy on account of statements published on the corporation’s
website. The court ruled: “Because Plaintiff alleges that ‘the website in question is controlled
from [the defendant’s] corporate headquarters located in Virginia,’ and the allegedly defamatory
statements were published on this website, Virginia law applies.” Id. at 608.
• In Mid-Atlantic Telecom, Inc. v. Long Distance Services, Inc., 1993 WL 130131406 (Va.
Cir. Sep. 22, 1993), a plaintiff sued a Virginia company for making false statements that tortiously interfered with contractual relations. The state court ruled: “The allegedly wrongful acts of the
defendants emanated from Virginia. Any promotion of false rates, or other fraudulent acts,
flowed from the company’s principal place of business in Tyson’s Corner, Virginia. Because Virginia is the locus for any wrongful acts which may have occurred, Virginia substantive law regarding tortious interference should apply.” Id. at *1.

3

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 6 of 14 PageID# 939

3. In this case, the alleged wrongful act is the publication of material on the internet. The
Amended Complaint alleges that the Campaign has “its permanent headquarters in New York.”
(Am. Compl. ¶ 35.) As a result, the Court should presume that the Campaign published the materials from New York. In the words of the state court in Mid-Atlantic, because New York is the
Campaign’s “principal place of business,” it is the place from which the “allegedly wrongful
acts … emanated,” the place from which the alleged torts “flowed,” and “the locus for any [alleged] wrongful acts.” Mid-Atlantic, 1993 WL 130131406, at *1. The upshot is that New York
law governs Plaintiffs’ tort claims. There is no dispute that New York law rejects those claims.
B.

If the Court cannot determine the place of the wrong from the complaint, it
should dismiss Plaintiffs’ claims in accordance with Virginia law

At the hearing on the motion to dismiss, the Court asked what it should do if it cannot determine from the complaint whether New York is the place of the wrong. Virginia’s choice-oflaw rules answer the Court’s question. They establish a backup rule: If a court cannot determine
the place of the wrong from within the four corners of the complaint, it should, at the motion-todismiss stage, apply the law of the forum state—i.e., the law of Virginia. For example:
• In Overstock.com, Inc. v. Visocky, 2018 WL 5075511 (E.D. Va. Aug. 23, 2018), the
court ruled: “Plaintiff has failed to provide any specific information as to where the wrongful
acts … took place. Therefore, because Plaintiff has provided no information upon which to conduct a formal choice-of-law analysis, the [court] will utilize Virginia law, as the law of the forum
state.” Id. at *9 n.5.
• In Jeffrey J. Nelson & Assocs. v. LePore, 2012 WL 267342 (E.D. Va. July 5, 2012), the
court ruled: “Here, there is nothing in the Counterclaim … indicating where the alleged tortious
acts took place. … Because it is presently unclear where the allegedly wrongful acts took place,
the Court will … apply Virginia law with respect to the tort related counterclaims.” Id. at *7.

4

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 7 of 14 PageID# 940

Virginia is not alone. It is a longstanding principle of choice of law that, where a court
cannot determine the law that properly applies, it should default to the application of forum law.
See, e.g., Karim v. Finch Shipping Co., 265 F.3d 258, 272 (5th Cir. 2001) (“When the parties
have failed to conclusively establish foreign law, a court is entitled to look to its own forum’s
law”); Pioneer Credit Corp. v. Carden, 245 A.2d 891, 234 (Vt. 1968) (“In this dilemma, … the
trial court was justified in turning to the law of the forum”); Leary v. Gledhill, 84 A.2d 725, 728
(N.J. 1951) (“[Upon] failure to plead and prove the applicable foreign law ... courts … merely
apply the law of the forum as the only law before the court”); Savage v. O’Neil, 5 Hand 298, 301
(N.Y. 1871) (“in the absence of proof our own law must of necessity furnish the rule”).
In this case, the Campaign believes that the Court can determine the place of the alleged
wrongful act from the complaint, because of the presumption that a corporation acts from its
headquarters. But if the Court disagrees, Virginia law identifies the proper approach: Apply Virginia’s own law, because Virginia is the forum state.
The law of Virginia leads to the same result as the tort law of New York, namely, the dismissal of Plaintiffs’ tort claims. The public-disclosure claims must be dismissed, because Virginia, like New York, “does not have a common law right of privacy.” Brown v. Am. Broad. Co., 704
F.2d 1296, 1303 (4th Cir. 1983); see WJLA-TV v. Levin, 564 S.E. 2d 383, 394 n.5 (Va. 2002)
(holding that “the General Assembly has implicitly excluded [public disclosure of private facts]
as [an] actionable tor[t] in Virginia”). The intentional-infliction claim must also be dismissed,
because a plaintiff may not use the intentional-infliction tort to circumvent the unavailability of
the privacy tort, and because, in any event, “a plaintiff may not assert a cause of action in Virginia for civil conspiracy to intentionally inflict emotional distress.” Almy v. Grisham, 639 S.E. 2d
182, 189 (Va. 2007).

5

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 8 of 14 PageID# 941

C.

The Court should, at a minimum, dismiss the tort claims on the ground that
Tennessee, New Jersey, and Maryland law do not apply to this case

In all events, the Court does not need to decide which state’s laws do govern this case.
Plaintiffs have pleaded claims specifically under the laws of Tennessee, New Jersey, and Maryland; therefore, the Court need only decide that the laws of those states do not govern this case.
There is one thing—and only one thing—that distinguishes Tennessee, New Jersey, and
Maryland from the remaining 47 states in the Union. That is the allegation that Plaintiffs lived in
those states at the time of the alleged torts. But it is blackletter law in Virginia that a plaintiff
cannot invoke the law of a state merely because he happens to be domiciled there. The Virginia
Supreme Court has explicitly rejected “the so-called ‘modern trend’ [of] applying the law of the
domicile of the parties.” McMillan v. McMillan, 253 S.E.2d 662, 663 (Va. 1979). And the Fourth
Circuit has ruled that “application of the law of plaintiff’s domicile” to tort cases would “disregard the directive of Virginia law.” Milton, 138 F.3d at 522. That should be the end of the case.
Plaintiffs nonetheless make three general arguments for choosing the law of their home
states. Each argument is unpersuasive.
First, Plaintiffs argue that their home states’ laws govern because “the Plaintiffs suffered
legal injury” in those states. (Supp. Mem. 4.) This argument is incorrect. Under Virginia law, the
commission of the wrongful act is the “legal injury.” Milton explains: “The word ‘tort’ has a settled meaning in Virginia. A tort is any civil wrong or injury; a wrongful act.” 138 F.3d at 522
(emphasis added). Milton continues: “[In a claim] for fraud arising out of a failed real estate investment in Virginia … Virginia law governed … as Virginia was the place where the tortious
conduct—the legal injury—occurred.” Id. (emphasis added). In other words, under Virginia law,
“injury occurs at the point of the wrongful act.” Self Insured Servs. Co. v. Panel Sys., Inc., 2018
WL 5260025, at *7 (E.D. Va. Oct. 22, 2018).

6

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 9 of 14 PageID# 942

Plaintiffs, however, argue that the “legal injury” occurred in their home states (where they
experienced the harm), rather than in the Campaign’s state (where the allegedly wrongful act was
committed). Plaintiffs are playing semantic games with the word “injury”: Instead of defining the
“legal injury” as the commission of the wrongful act, they define the “legal injury” as the harm
the plaintiff experiences as a consequence of the wrongful act. That argument is mistaken. There
are numerous cases from Virginia holding that the place of the wrong is the place where the actor
acted, not the place where the plaintiff sustained the harm. For example:
• “Virginia’s choice of law rule selects the law of the state in which the wrongful act took
place, wherever the effects of that act are felt.” Milton, 138 F.3d at 522.
• “[The] inquiry looks at where the allegedly tortious conduct took place.” JTH Tax, Inc. v.
Williams, 310 F. Supp. 3d 648, 657 (E.D. Va. 2018).
• “[The] claims are governed by the law of the place where [the defendant’s] allegedly
tortious conduct took place, irrespective of where [the plaintiff] sustained the injury.” General
Assur. of Am., Inc. v. Overby-Seawell Co., 893 F. Supp. 2d 761, 778 (E.D. Va. 2012).
To be sure, Plaintiffs identify some authorities—such as the First Restatement of Conflict
of Laws, a treatise from 1935, and cases from outside Virginia—that focus on the place of the
plaintiff’s harm. But these authorities do not reflect Virginia law, because they do not account for
Virginia’s distinctive interpretation of the concepts of “tort” and “legal injury.” This Court has
recognized that Virginia is unique: “Indeed, it is under Maryland law, not Virginia law, that the
place of the tort is considered to be the place where the [harm] was suffered, not where the
wrongful act took place. Although both states recognize the doctrine of lex loci delicti, Maryland
and Virginia courts differ in their discussion of the doctrine in this critical respect.” Gen. Assur.,
893 F. Supp. 2d at 778.

7

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 10 of 14 PageID# 943

Second, Plaintiffs argue that their home states’ laws govern because “the last event” necessary to complete the tort occurred in those states. (Supp. Mem. 2 (quoting Quillen v. Playtex,
Inc., 789 F.2d 1041 (4th Cir. 1986).) Under Virginia law, however, the last event occurred in New
York, and certainly not in Plaintiffs’ home states. Virginia interprets the term “last event” to refer
to the last wrongful act: “The place of the harm is defined as the place where the last event necessary to make an actor liable for an alleged tort takes place. This inquiry looks at where the allegedly tortious conduct took place.” JTH, 310 F. Supp. 3d at 657 (emphasis added).
Once more, Plaintiffs are playing semantic games. In their view, the “last event” occurs
when the last element of the plaintiff’s cause of action falls into place, not when the defendant
engages in the last wrongful act. Virginia, however, simply does not interpret the “last event” test
that way. In Virginia, the place of the last event is the place of the “wrongful act,” not the place
where “the effects of that act are felt.” Milton, 138 F.3d at 522.
Under Plaintiffs’ contrary interpretation, Milton would become a dead letter. Milton explicitly distinguished between the “wrongful act” and the “effects of that act.” 138 F.3d at 522.
But Plaintiffs’ “last event” theory would collapse that distinction. After all, damages is an element of almost every tort claim. And damages necessarily occur after the wrongful act. Therefore,
under Plaintiffs’ interpretation, the plaintiff’s damages (rather than the defendant’s wrongful act)
will almost always be the “last event” necessary to complete the tort. That cannot be right, because it is the opposite of what the Fourth Circuit said in Milton.
In all events, Plaintiffs lose even under their own interpretation of the “last event” test.
“The generally recognized elements of the tort of public disclosure of private facts are: (1) the
publication, (2) absent any waiver or privilege, (3) of private matters in which the public has no
legitimate concern, (4) such as to bring shame or humiliation to a person of ordinary sensibilities.”

8

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 11 of 14 PageID# 944

McNally v. Pulitzer Pub. Co., 532 F.2d 69, 78 (8th Cir. 1976); see Restatement (Second) of Torts
§ 652D. As a result, the “last event” that completes the tort is the defendant’s publication of the
private information. The reader’s receipt of the information is not an event necessary to complete
the tort, because, as Plaintiffs themselves state, the tort “does not require proof” that anyone “actually read the material.” (Supp. Mem. 8 n.5; see Second Restatement § 652D, comment a.) The
plaintiff’s suffering also is not an event necessary to complete the tort, because the fourth element asks whether the disclosure would objectively cause suffering to “a reasonable person,” not
whether the disclosure subjectively caused suffering to this particular plaintiff. Second Restatement § 652D. Even under Plaintiffs’ own logic, then, the last event must be the defendant’s disclosure of the material. Yet there is no allegation in the complaint that the Campaign made the
disclosure in Tennessee, New Jersey, or Maryland.
Third, Plaintiffs argue that the Court should apply the law of their home states because
the place of the tort in a case involving internet publication is the location of “the reader’s computer screen.” (Supp. Mem. 7.) Plaintiffs realize that the “reader’s computer screen” is not located in any one particular state, or even in any one particular country, because WikiLeaks published Plaintiffs’ emails “to the entire world.” (Am. Compl. ¶ 1.) Plaintiffs, therefore, further
specify that the place of the tort is the place of the “computer screen” that “matters most,” which
they claim is the computer screen in each plaintiff’s home state. (Supp. Mem. 8.)
Plaintiffs’ “matters most” test is a transparent effort to reverse binding Virginia law. The
test is the functional equivalent of the Second Restatement of Conflict of Laws, under which
multistate cases are governed by the law of the place that has the “most significant relationship”
to the case. § 150(1). The Virginia Supreme Court, however, has expressly “declined an invitation to adopt the so-called ‘most significant relationship’ test, recommended by Restatement

9

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 12 of 14 PageID# 945

(Second) of Conflict of Laws … , for resolving conflicts of laws arising in multistate tort actions.”
Jones v. R.S. Jones & Assocs., 431 S.E. 2d 33, 34 (Va. 1993). Plaintiffs’ “matters most” test
simply repackages the rejected “most significant relationship” test under a different label.
Plaintiffs’ approach also contradicts Kylin Network (Beijing) Movie & Culture Media Co.
v. Fidlow, 2017 WL 23853843 (E.D. Va. June 1, 2017) (Hudson, J). There, the Court explained:
“The Second Restatement of Conflict of Laws accounts for multistate defamation by applying
the law of the state with the most significant relationship to the occurrence—typically the state
where the defamed individual was domiciled at the time of publication. … However, Virginia has
never adopted this provision of the Second Restatement. In fact, Virginia has expressly rejected
the Second Restatement’s ‘most significant relationship test’ for multistate tort actions generally.”
Id. at *3 n.2. So also here.
In addition, Plaintiffs’ approach contradicts this Court’s decision in ABLV Bank. In that
case, as already discussed, a bank that did business in New York sued a Washington, D.C. corporation for online defamation. 2015 WL 12517012, at *1. The bank argued that New York law
governed the case because (in the words Plaintiffs used here) New York mattered most: “New
York [is] a banking and financial center,” “[the bank’s] efforts to open a New York office [were]
frustrated,” and “its banking relationships in New York [had] suffered.” Id. This Court, however,
rejected the argument: “It is irrelevant that the negative effects of [the] publication were felt in
New York.” Id. at *2. There is no difference between the argument Plaintiffs make in this case
and the argument rejected in ABLV Bank.
In sum, there is no basis for applying Tennessee, New Jersey, and Maryland law here.
CONCLUSION
The Court should grant the motion to dismiss.

10

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 13 of 14 PageID# 946

Dated:

February 8, 2019

Respectfully submitted,
/s/ Nikki L. McArthur
Michael A. Carvin*
William D. Coglianese*
Nikki L. McArthur (Virginia Bar No. 84174)
Vivek Suri*
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
(202) 879-3939
macarvin@jonesday.com
wcoglianese@jonesday.com
nmcarthur@jonesday.com
vsuri@jonesday.com

Jeffrey Baltruzak*
JONES DAY
500 Grant Street, Suite 4500
Pittsburgh, PA 15219
(412) 391-3939
jbaltruzak@jonesday.com

* Pro hac vice
Counsel for Donald J. Trump for President, Inc.

11

 Case 3:18-cv-00484-HEH Document 89 Filed 02/08/19 Page 14 of 14 PageID# 947

CERTIFICATE OF SERVICE
I certify that on February 8, 2019, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will send a notice of electronic filing to all registered
parties.
Dated:

February 8, 2019

/s/ Nikki L. McArthur
Nikki L. McArthur
Counsel for Donald J. Trump for President, Inc.