Case 3:19-cv-01618 Document 2 Filed 10/15/19 Page 1 of 4 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MOSSACK FONSECA & CO., S.A, BUFETE MF & CO., JÜRGEN MOSSACK and RAMÓN FONSECA Plaintiffs v. NETFLIX INC. Defendant : : : : : : : : : CIVIL ACTION NO: OCTOBER 15, 2019 APPLICATION FOR EX PARTE TEMPORARY RESTRAINING ORDER The Plaintiffs, by and through their Attorney, move this Court, pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, for a Temporary Restraining Order, (1) enjoining the Defendant, NETFLIX INC. (hereinafter “NETFLIX”) from airing its film “The Laundromat” in theatres and/or via its streaming platform to subscribers, using the names of the Plaintiffs, absent a disclaimer and/or written acknowledgement displayed to the viewer confirming that Plaintiffs have never been convicted of money laundering, tax evasion or any financial crime or conspiracy to commit such crime, and that views expressed or implied in the movie do not, and are not, meant to constitute proof to the contrary, and (2) prohibiting NETFLIX from using and/or tarnishing Mossack Fonseca & Co., S.A.’s (hereinafter “MFSA”) trademarked and properly registered and protected logo, without express written consent, authority and/or license granted by MFSA. In support of this Application, the Plaintiffs have submitted an accompanying Memorandum in Support of Temporary Restraining Order and Preliminary Injunction, and rely further upon the Affidavit of Arthur Ventura Jr., the Plaintiff’s Verified Complaint, any other pleadings and papers filed in this action, and where applicable the 1 Case 3:19-cv-01618 Document 2 Filed 10/15/19 Page 2 of 4 arguments of Plaintiffs’Counsel and/or further evidence as the Court may consider at or before a hearing upon this Application or any hearing upon Order to Show Cause why the Plaintiffs’ Application Preliminary Injunction should not issue. Plaintiffs (hereinafter “MFGROUP”) bring this action for damages and injunctive relief against Defendant Netflix, for Defamation, (Libel and Libel Per Se), False Light Invasion of Privacy, Trademark Infringement by Dilution, and Federal False Advertising. The Plaintiffs’ injunctive relief claims are rooted in all of the aforementioned causes of action, except the Federal False Advertising Count. ` This Court has wide discretion in determining whether to grant a preliminary injunction. Millions of NETFLIX subscribers worldwide will begin to view “The Laundromat,” on October 18, 2019. The movie defames the Plaintiffs and directly and/or by innuendo portrays them to be guilty of money laundering, tax evasion, bribery and or other crimes. Notably, the anticipated release date corresponds with times during which the Plaintiffs will be defending criminal charges against them in Panama. The legal system in Panama obligates prosecutors to investigate what it learns in the media where an accusation of crime appears, under the doctrine of notitita criminis. Additionally, since both MOSSACK and FONSECA are the subjects of an FBI Investigation in the Southern District of New York that could result in a trial in the United States, the false “Big Screen” portrayal of their involvement in money laundering and/or other financial crimes poses an immediate threat and harm to the Plaintiffs’ fair Trial rights. The defamatory representations made about Plaintiffs’ involvement in crime and unethical behavior, along with the disparaging manner in which the Plaintiffs and their protected logos are portrayed, stands to affect current proceedings against them in Panama, and to 2 Case 3:19-cv-01618 Document 2 Filed 10/15/19 Page 3 of 4 pollute a potential jury pool in a U.S. criminal prosecution. Plaintiffs are entitled to injunctive relief preventing NETFLIX from defaming the Plaintiffs, or any of them, and disparaging and misusing their protected logo(s) for economic gain. Additionally, NETFLIX’s portrayal of the Plaintiffs as criminals in the movie threatens to undo any opportunity they have to regain clientele or conduct future business. The manner in which NETFLIX portrays MFGROUP will cause others to avoid them in business, and future opportunities will be lost, due to NETFLIX’s portrayal of the Plaintiffs in the false light of criminality. The Plaintiffs are very likely to suffer immediate irreparable harm, and they are also likely to succeed on the merits of their claims as expounded in the Verified Complaint. The Defendant, NETFLIX, will release its movie “The Laundromat” to its subscribers on October 18, 2019, only three day from the date of this Application. WHEREFORE the Plaintiff, therefore, prays that a narrowly tailored Temporary Injunction be issued forthwith, and without the necessity of Plaintiffs posting a bond. The Plaintiffs also pray that the Temporary Restraining Order continue as against the Defendants, pending the outcome of a Preliminary Injunction Hearing. THE PLAINTIFFS, BY___________________________ Stephan Seeger, Esq. (CT 19234) Law Offices: Stephen J. Carriero 810 Bedford Street, Suite 3 Stamford, CT 06901 (203) 273-5170 (203) 357-0608 Seegerkid2@aol.com 3 Case 3:19-cv-01618 Document 2 Filed 10/15/19 Page 4 of 4 ORDER The foregoing motion having been heard this day of October, 2019, is hereby granted/denied as follows: _____________________________ Hon. , District Court Judge 4 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 1 of 14 AFFIDAVIT OF ARTHUR VENTURA JR. I, ARTHUR VENTURA JR. being over the age of 18 years with knowledge and understanding of an Oath, hereby declare as follows: GENERAL 1. I am an investigator for Noble Security Advisors who were hired by the Law Offices of S.J. Carriero and Associates LLC, to assist in the representation of Jurgen Mossack and Ramon Fonseca, relating to a U.S. federal criminal matter targeting them and their law firms (Bufete MF & Co. and Mossack Fonseca & Co., S.A.) in connection with facts learned by Homeland Security Investigations (hereinafter “HSI”) and the Federal Bureau of Investigation (hereinafter the “FBI”) in the well known and highly publicized “Panama Papers” hack and subsequent release of some 11 million confidential and privileged documents belonging to the Mossack Fonseca law firm. 2. While I am an currently a private sector investigator working primarily in the areas of corporate fraud, risk management, due diligence and corruption cases, in the Republic of Panama, my background includes approximately 22 years of federal law enforcement experience, and I have qualified in the Spanish language as part of my federal law enforcement training. INVESTIGATIVE BACKGROUND 3. In 1976, as an Airmen in the United States Air Force I attended the United States Air Force Law Enforcement Training Academy where I graduated as a Law Enforcement Specialist and was assigned to Pope Air Force Base, North Carolina. 1 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 2 of 14 4. In 1979, I attended and graduated from the Indiana State Police Academy and was commissioned as a Police Officer with the Indiana University Police Department. 5. In 1985, I graduated from the United States Treasury Academy in Glenco, Georgia Tax Fraud Investigators Aide school. 6. In 1986, I attended the United States Treasury Department Academy in Glenco, Georgia, where I graduated and received a Commission as a Special Agent (SA) in the Criminal Investigative Division. In this capacity I worked complex financial investigations related to Tax Fraud, Tax Evasion, Money Laundering, Organized Crime and Drug Trafficking. 7. In 1992, I transferred to the Department of Justice, Drug Enforcement Administration (DEA) and attended and graduated from the DEA Basic Agent School at the FBI Academy at Quantico, Virginia, where I was commissioned thereafter as a Special Agent with the Drug Enforcement Administration. 8. In 1993, I was transferred to the DEA Los Angeles Field Division in Los Angeles California and assigned to the Money Laundering Group. During my tour of duty in Los Angeles Field Division, I worked on many Money Laundering Investigations. I was eventually assigned to the Attorney General Violent Crime Task Force where an FBI Special Agent and I oversaw managing the Task Force that included several local law Enforcement agencies in Los Angeles. During this period, I worked the first Death Penalty case in the Southern District of California and was presented with a Distinguished Service Award from Attorney General Janet Reno and Director of DEA Tom Constantine, in connection with my investigation duties in that case. 2 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 3 of 14 9. In 1997, I was temporarily assigned to the DEA Office of Professional Responsibility (OPR) for one year, where I participated in a financial investigation involving a DEA Supervisory Special Agent who was alleged to have misappropriated Official Government funds. This investigation resulted in the arrest and trial of the DEA Supervisory Agent where the Supervisor was found guilty and sentenced to three years in a federal prison. During this investigation I conducted financial aspects of the investigation and was the summary witness. 10. In 1999, I was transferred to the Panama Country Office in the Republic of Panama and supervised the Anti-Money Laundering Program for the Panama Country Office. 11. In 1999, I was the case agent on a significant international money laundering investigation, in the case of U.S. vs Seed Joyeros S.A. This was a first impression case, involving a Money Laundering method known as the Black-Market Peso Exchange. For prosecution the case was assigned to the Eastern District of New York where as part of my duties I was required to testify before the honorable Judge Jack Weinstein. 12. In 2005 after attending DEA Supervisory Special Agent School I and was commissioned as a DEA Supervisory Special Agent. 13. In 2006, I was assigned to DEA Head Quarters Financial Operations Section, Alexandria Virginia. In this capacity I was assigned as the Program Manager for Money Laundering operations for the South American Region for 6 months and then assigned as the Program Manager for Money Laundering operations to the Mexico Central American Region. 14. On February 7, 2007, I retired from DEA as a Supervisory Special Agent. 15. In 2007, I started my own consulting and investigations business focusing on financial investigations, fraud and corruption, kidnap and ransom investigations, as well as due diligence and training. 3 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 4 of 14 16. From 2011 to 2014, I was the Corporate Security Manager of Minera Panama in the Republic of Panama. In this capacity, I conducted financial investigations including, internal, corporate investigations and compliance audits, supervised security contractors and briefed the board of directors on a quarterly basis. 17. From 2014 to the present, I returned to the private sector in my own consulting company, Arthur Ventura Jr. and Associates. THIS CASE 18. As part of my investigation in this case I read the book titled Secrecy World: Inside the Panama Papers Investigation of Illicit Money Networks and the Global Elite. The book was written by Jake Bernstein and published by Henry Holt and company. Library of Congress Cataloging -in-Publication Data ISBN number is 9781250126689 (hardcover), and it is alleged to be the book upon which Netflix’s “The Laundromat” movie is based. 19. I viewed the official Netflix Trailer for the movie“ The Laundromat” written by Scott Z. Burns and directed by Stephen Soderbergh and distributed by Netflix Inc 20. I attended the showing of “The Laundromat” with a fellow investigator Larry Holifield, at the Toronto Film Festival on September 10, 2019. 21. I have reviewed the website of the International Consortium of Investigative Journalists (ICIJ) that published what I would characterize as the stolen and privileged documents, hacked from the server at the offices of Mossack and Fonseca in Panama City, without their knowledge or consent. 22. I reviewed, in Spanish, the official registration documents for logos owned and registered in Colombia under the name of Plaintiff Mossack Fonseca & CO, S.A., and can confirm that the registrations are current and registered with the Superintendencia Industria y 4 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 5 of 14 Comercio, Republic of Colombia. The documents I reviewed in this regard are: (1) Expediente No. 10-053693 – Certificado de Registro 412048, (2) Expediente No. 10-053705 – Certificado de Registro 412052, and (3) Expediente No. 10-053702 – Certificado de Registro 412051. I can confirm that the logos I witnessed in the trailer and the movie appear to be the same or similar to logos I reviewed upon the official documents mentioned above. In addition, I have also reviewed and physically examined 30 to 40 items used in the marketing of Mossack and Fonseca services, prior to the Panama hack. They include pens, clocks, speakers, hats, notebooks, notepads, letter openers, wine opening kits, stationary, letterhead, signs, invoices, labels, doors, building facades, clothing, sponsorship signs, pamphlets, coffee cups, and a multitude of other items, branded with the Mossack Fonseca logo which I witnessed in the movie “The Laundromat.” These items were used for marketing in locations around the world including Latin American, Europe and England, Hong Kong, the Caribbean United States. Based upon my investigation I would opine that Mossack Fonseca & Co., S.A., has spent significant amount of money. 23. Through my investigation I have learned that Mossack and Fonseca maintained a compliance department staffed in San Salvador, El Salvador and have reviewed the firms compliance manual in detail. In my opinion the firm created a robust compliance department that used the manual years before stringent compliance and due diligence related to company creation and corporate ownership was ever required under Panamanian law. 24. I have reviewed business insurance policies issued by American Insurance Group (AIG) covering Mossack and Fonseca. My investigation revealed that they were insured against losses that were not paid by AIG, based on the insurers position that Mossack and Fonseca were involved in money laundering. To date policy proceeds still have not been paid even though 5 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 6 of 14 there has been no money laundering convictions or any other evidence that could justify AIG’s refusal to pay under the policy. 25. I have reviewed legal documents related to criminal cases pending against Ramon Fonseca and Jürgen Mossack in Panama. The proceedings in Panamá were commenced by the Ministerio Publico-Fiscalia Auxiliar. The first case to be brought is referred to as “Lava Jato” case entered as Fiscal (“Prosecutors”) File 06-2016, and Court File Panama City 48931-19. The second case which is referred to as the “Panama Papers” case is entered as Fiscal (“Prosecutors”) File 02-2016, and Court File Panama City 87256-19. Due to these proceedings, ). In the “Lava Jato” case both Ramon Fonseca and Jürgen Mossack must pay annual fees of $22,000.00 (USD) in exchange for a $500,000.00 USD bond, required by the Panamanian Court to allow the pair to remain free with other conditions during the pendency of the case. In the Panama Papers case, Ramon Fonseca and Jürgen Mossack were released on their own Recognizance and must sign in with Panamanian Authorities every Monday and Friday before 5:00 pm. In both cases bond conditions prohibit Ramon Fonseca and Jürgen Mossack from travelling outside the Republic of Panama. There has been little movement and no conviction in either of these cases over the last four years. 26. I have reviewed the United States Federal Grand Jury Indictment, 18- CRIM-693, United States v. Ramses Owens Saad (Owens) and co-defendants. I have reviewed many Indictments in the course of my duties in federal law enforcement. The Owens Indictment states that Owens was an employee of Mossack Fonseca & Co from 1992 through 2010 and assisted clients of Mossack Fonseca & Co in setting up offshore companies and bank accounts to defraud the Internal Revenue Service. The indictment describes Mossack Fonseca & Co. as a Panama based global law firm specializing in setting up off shore corporations and bank accounts. Based 6 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 7 of 14 upon my experience and expertise, and familiarity with federal investigations, I believe that an investigation has and will continue to progress to include other individuals and entities at the highest level of the perceived criminal activity. 27. In the course of my investigation in this case, myself and another former federal agent named Larry Holifield met with the FBI in New York City, New York. Based upon my discussions with the FBI agent involved in the Mossack and Fonseca investigation, along with my own background in federal law enforcement, it is my opinion that Jurgen Mossack and Ramon Fonseca are not only targets of a federal investigation in the Southern District of New York, but also that the Government’s position (as manifested in my own and Larry Holifield’s discussions with the taskforce), would be that both men serve a sentence of incarceration for crimes they would be alleged against them. 28. I have read and tracked a multitude of movie reviews on “The Laundromat”. The obvious common theme is that Jurgen Mossack, Ramon Fonseca, and their law firm, are involved in money laundering and tax evasion schemes with their clients. Based upon my investigation and review of thousands of pages of documents related to this case, Mossack and Fonseca did not run a retail operation, but rather a wholesaler operation that sold corporations to professional clients such as other law firms, banks, accounting firms and other professional private sector financial service providers. These clients then sold the corporations on a retail level to their own clients. In my opinion these facts are significant. A company sold to a Mossack and Fonseca client that sells a corporation to an end user doesn’t make that end user a Mossack and Fonseca Client. Nor does that end users criminal activity, if any, make Mossack Fonseca a co-conspiritor in an end user’s crime. Based upon my investigation and federal law enforcement training and experience in investigating money laundering and financial crimes, I 7 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 8 of 14 would opine that many of the movie reviewers (based on the false message of the movie) attribute criminal conduct to Jurgen Mossack, Ramon Fonseca, and Mossack and Fonseca the law firm, based upon fundamental misconceptions surrounding the creation and subsequent operation of companies. My investigation and the facts I have gathered and studied to date would lead me to the opposite conclusion, namely, that Jurgen Mossack, Ramon Fonseca and their law firm, have not engaged in money laundering, tax evasion, or conspiracies related to such crimes involving end users. In my opinion, Netflix either conveniently ignores this distinction with full knowledge of the truth in an effort to sensationalize the movie and boost ticket sales, or they simply disregard obvious facts and the whole truths which would clearly illustrate that the message of their movie, as it pertains to Mossack and Fonseca, is misguided and false. 29. Director Steven Soderbergh himself is clearly aware of the inner workings of a holding company, and the fact that an offshore company created for a specific purpose need not be nefarious. In a recent interview with Filmmaker Magazine (filmmakermagazine.com/108310-ithink-everything-is-the-directors-fault-ste ) he admits as much: Filmmaker: I was impressed that you implicate both yourself and Scott in the movie [by noting in the dialogue that both have off-shore companies]. When did that come up? Soderbergh: That was pretty late. It just seemed like the natural thing to do and the fair thing to do. Filmmaker: I think a lot of other directors wouldn’t feel that way. Soderbergh: You have to! You’re going to get asked that question. I’m like, “Let’s just do it. Let’s lay it out there.” Also, there’s nothing nefarious here. These are entities that get formed to make a specific project. So when I’m going to make Unsane, I form an LLC to make Unsane. That’s the copyright holder. That makes deals with vendors. That makes deals with the unions. That’s just so somebody doesn’t come after me and I get wiped out because I am the company. So I’m the president of that entity, but the thing 8 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 9 of 14 that was formed to make Unsane just sits there. It doesn’t generate revenue. It was just a company to make that film. That’s not a big deal. In fact, I have six now. I formed another one to make the movie I just made with Meryl. That’s another wall that you’re breaking. They’re already breaking the wall by directly addressing the viewer and now, I think, “Here’s another wall behind that we can jump over. Let’s do that.” It always gets one of the biggest laughs because people don’t expect it. I’ve gotten more questions like, “If the movie comes out, do you think something will happen to you?” Because, look, journalists get killed over this stuff. In this case, the woman from Malta [Daphne Caruana Galizia] who was chasing a story very directly connected to the Panama Papers leak was blown up in her car. I guess my attitude was, I’m not really crawling up anybody’s ass here. This is all information that’s already out there. Filmmaker: There’s a book. Soderbergh: Yeah, it didn’t feel to me like anybody was really going to care. I’m very curious to hear what Mossack and Fonseca think of this. Scott talked to them, and Jake [Bernstein] has talked to them a lot. Scott and I were very adamant that they not be stock villains, because we felt they as people were more complicated than that and the situation itself was more complicated than that. They did not invent these structures. This has been going on for a long time. They just figured out a way to do a high-volume business in creating these kind of entities. I wanted them to have every opportunity to sell us their side of this story. Based upon these statements, my opinion is that Mr. Soderbergh was educated in the ways of company formation and the purposes for creating companies. He notes there is “nothing nefarious” and he uses them himself. This tells me that he is aware that they are useful, and can absolutely be created for useful and not criminal purposes. He states his belief that his associates including Bernstein talked to Jurgen Mossack and Ramon Fonseca, and makes a conclusion well before the film is set for release in theatres or for streaming, that Mossack and Fonseca’s owners “just” figured out a way to do a lot of business in “creating” these entities. There can be no doubt that Netflix knew the position of the Plaintiffs and the role they played in the offshore company creation market. Once again, however, the film doesn’t trivialize their activities as suggested in the interview. It does quite the opposite. They are absolutely villains in 9 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 10 of 14 the movie, and they clearly have criminal activity attributed to them. My investigation reveals that there was not much communication (not “a lot”) between Netflix representatives as suggested. Based upon my investigation, the facts I have gathered and studied, my opinion is that Netflix knew their movie would sensationalize offshore business at the expense of both the business and personal reputations of Jurgen Mossack and Ramon Fonseca. 30. In the course of my investigation I have also reviewed texts sent by Jake Bernstein to Jurgen Mossack which, in my opinion, were designed to ingratiate Mr. Mossack and soften the blow of a movie that clearly painted Mossack and Fonseca as villains. For example, a July 23, 2019, text message from Mr. Bernstein to Jurgen Mossack states: I saw the film recently. I think you and Ramon will be very pleased. You don’t come out as the bad guys at all rather it’s the system and the United States that receive the bulk of the blame Anybody who has seen the trailer and the movie knows that this characterization is laughable. Clearly, Mr. Bernstein recognizes that the movie has been created to “blame” somebody and that the film focuses on this. But it is clearly a criminal Indictment of Mossack and Fonseca, far more than a general indictment of the “United States” or the “system.” Mossack and Fonseca are classic fall guys in this movie and to the contrary have no reason to be “pleased” about their portrayal in “The Laundromat.” I find it strange that an Executive producer would need to communicate such a message prior to a movie release. Taken with the very obvious mischaracterization of who is “blamed,” my opinion is that the text is a “damage control” measure that, ironically, occurred right after Bernstein had “just” seen the movie himself. THE MOVIE “THE LAUNDROMAT” 31. I have viewed the official Netflix Trailer for the movie “The Laundromat” on several occasions. There is a series of five (5) flashing screen shots that last for 10 seconds that start the 10 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 11 of 14 trailer off. These screen shots state the movie is “based on some real shit.” The message of the movie, captured by the trailer, is that it “all goes back to this law firm Mossack and Fonseca.” This allegation comes seconds before actress Meryl Streep states: “bribery, corruption, money laundering, millions and millions of dollars.” The implication is that the law firm is involved in criminal activity she cites. The message of the trailer is clearly a criminal indictment of Jurgen Mossack and Ramon Fonseca, along with their law firm. The indictment carries into the movie with a trail of innuendo that continues to support the message. 32. In one segment of the movie a horrifying scene is played out where a corrupt political Chinese oligarch is reviewing her portfolio with a “financial advisor” with whom she is having a disagreement. The oligarch poisons the financial advisor to protect her and her husband’s reputation utilizing a clear liquid and the advisor dies an agonizing death. Later the scene changes to a room where an Asian person is removing the organs of another person who is still alive and screaming, then placing the organs into a small cooler. This segment of the film left a chilling effect on me, and presumably other viewers. The scene involving a financial advisor and referring to money they were funneling away from the government, implants Mossack and Fonseca into this environment, and paints a dangerous picture of collateral consequences they would be aware of. I know from my investigation that the Chinese oligarch portrayed in the film was not a client of any of the Plaintiffs. 33. Another segment of the film surrounds a corrupt African Politician that is having an affair with his daughters’ best friend and gets caught by the daughter a day before her graduation party. In order to keep peace in the family the father makes a deal with the daughter to not tell her mother, and then confesses that the mother has already caught him with other women and he has convinced her to remain in the relationship by providing the mother with some bearer shears 11 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 12 of 14 from a “Panamanian” corporation alleged to be worth millions of dollars. The daughter accepts the agreement and takes possession of another Panamanian corporation alleged to be worth millions of dollars. In the end, the mother and the daughter are in the Panama office of Mossack and Fonseca, in a meeting room with Jürgen Mossack played by Gary Oldman. It turns out the corporations are worthless and there is no money available in their accounts. The mother and daughter storm out of the room and the Jürgen Mossack character is left sitting there alone looking like a “fool,” who finds it normal for people to show up and confirm they have been swindled. 34. In another segment of the movie the scene takes place in what appears to be Mexico. The home base of one of the most wanted drug traffickers in the world, Rafael Caro Quintero (Quintero), who was falsely rumored to be a client of Mossack and Fonseca. In the scene, an innocent American citizen mistakenly walks into a room where a Cartel member and an associate are having a meeting. The Cartel member is so paranoid that he believes that the American and his friend are U.S. government officials and decides to kill them both. The American and his friend are tied up and shot. One of the two dies and the other is still alive. The next scene shows Cartel henchmen putting the bodies in a shallow dirt grave, one being buried alive. In Bernstein’s book a similar situation involving two Americans allegedly killed and buried in a similar manner by Quintero or his henchmen is described. Anybody who reads the book, as I have, associates this movie scene with Quintero, especially since the movie is based upon Bernstein’s book. In the book, Bernstein details an incident in which Jurgen Mossack is alleged to have refused to sign documents for the Costa Rican Government which were related to property held or connected to Quintero in a Mossack and Fonseca created company. My investigation uncovered that neither Jürgen Mossack nor Ramon 12 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 13 of 14 Fonseca ever met with, or ever had any contact with Quintero, and he that he was not a Mossack and Fonseca client. What the movie doesn’t show is that Mossack and Fonseca did not renew Quintero’s corporation with the Panamanian Public Registry after being placed on notice by the Costa Rican representatives, that Quintero may have been an ultimate end user of a company that Mossack and Fonseca simply created and sold to its own client. 35. The official Netflix trailer uses the official trademarked logo of the Mossack and Fonseca Company. My investigation revealed that no permission or license to use the logo was ever given to Netflix by Mossak and Fonseca. In the film, the trademark was visible to the viewer in one scene after the fear of the Panama Papers leak took hold of the Mossack and Fonseca characters, for a full thirty (30) seconds, allowing the viewer to associate the implicated criminal and unethical behavior with the partners and the law firm, complete with a visual that contained the partners’ names. 36. During the viewing of the film I discovered at least five additional unauthorized uses of the Mossack and Fonseca logo. In one scene the logo was on the side of a building and was panned by the camera long enough for the viewer to read the logo. Another time the logo was on a client file folder and again on the door to a conference room. Also in the movie, the logo was utilized in a scene where the news channel CNN was playing in the background. 37. As of the filing of this affidavit, Jürgen Mossack, Ramon Fonseca and the company, Mossack and Fonseca have not been convicted of tax evasion, money laundering or any financial crime. Yet their company has been closed due to the banks in Panama considering them a high-risk client. This left Mossack and Fonseca without the ability to conduct financial transactions. All of their business bank accounts, and business credit cards have been closed. My investigation revealed even after the hack, certain clients wanted to continue with the law 13 Case 3:19-cv-01618 Document 2-1 Filed 10/15/19 Page 14 of 14 finn since lhey had nolhing lo hide or fear. However, since the Panama banking sector closed all Mossack and Fonseca bank accounts, lite company could no longer Cunctionas an ongoing business. Their clients had to move lo other compelitor law finns. 38. In my opinion, negative media attention has clearly damaged the reputations of the firm and its partners who, inspite of rthis fact, have always evidenced a desire to return to the corporate legal services field in the future. In my opinion, ifNetnix's movie and the false innuendo expressed therein is pennitted into the viewing home of millions of its subscribers, the Plaintiffs would be severely hindered in any attempt at a come back. I know from my training and experience, upon which I base this opinion, that financial sector instilutions including banks and other law firms would almost certainly refuse lo do business with a finn whose partners were believed by so many to be criminals involved in money laundering or other financial crimes. 39. l make this affidavit in support of the Plaintiff's request for a Temporary Restraining Order or Preliminary Injunction and for no other or improper p~urpose. Further your Arfianl sayelh not. ~ -==---=-u..:,e.::.. _ ..,.<.==-:.<..a ~- Sworn and subscribed before me this 1/Way of October, 2019 State of Connecticut ) ) )City of Stamford ) Fairfield County ) Attorney Stephan E. Seeger Commissioner of the Superior Court 14 Case 3:19-cv-01618 Document 3 Filed 10/15/19 Page 1 of 4 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MOSSACK FONSECA & CO., S.A, BUFETE MF & CO., JÜRGEN MOSSACK and RAMÓN FONSECA Plaintiffs v. NETFLIX INC. Defendant : : : : : : : : : CIVIL ACTION NO: OCTOBER 15, 2019 APPLICATION FOR PRELIMINARY INJUNCTION The Plaintiffs, by and through their Attorney, move this Court, pursuant to Rule and 65(a) of the Federal Rules of Civil Procedure, for a Preliminary Injunction, (1) enjoining the Defendant, NETFLIX INC. (hereinafter “NETFLIX”) from airing its film “The Laundromat” in theatres and/or via its streaming platform to subscribers, using the names of the Plaintiffs, absent a disclaimer and/or written acknowledgement displayed to the viewer confirming that Plaintiffs have never been convicted of money laundering, tax evasion or any financial crime or conspiracy to commit such crime, and that views expressed or implied in the movie do not, and are not, meant to constitute proof to the contrary, and (2) prohibiting NETFLIX from using and/or tarnishing Mossack Fonseca & Co., S.A.’s (hereinafter “MFSA”) trademarked and properly registered and protected logo, without express written consent, authority and/or license granted by MFSA. In support of this Application, the Plaintiffs have submitted an accompanying Memorandum in Support of Temporary Restraining Order and Preliminary Injunction, and rely further upon the Affidavit of Arthur Ventura Jr., the Plaintiff’s Verified Complaint, any other pleadings and papers filed in this action, and where applicable the 1 Case 3:19-cv-01618 Document 3 Filed 10/15/19 Page 2 of 4 arguments of Plaintiffs’Counsel and/or further evidence as the Court may consider at or before a hearing upon this Application or any hearing upon Order to Show Cause why the Plaintiffs’ Application Preliminary Injunction should not issue. Plaintiffs (hereinafter “MFGROUP”) bring this action for damages and injunctive relief against Defendant Netflix, for Defamation, (Libel and Libel Per Se), False Light Invasion of Privacy, Trademark Infringement by Dilution, and Federal False Advertising. The Plaintiffs’ injunctive relief claims are rooted in all of the aforementioned causes of action, except the Federal False Advertising Count. ` This Court has wide discretion in determining whether to grant a preliminary injunction. Millions of NETFLIX subscribers worldwide will begin to view “The Laundromat,” on October 18, 2019. The movie defames the Plaintiffs and directly and/or by innuendo portrays them to be guilty of money laundering, tax evasion, bribery and or other crimes. Notably, the anticipated release date corresponds with times during which the Plaintiffs will be defending criminal charges against them in Panama. The legal system in Panama obligates prosecutors to investigate what it learns in the media where an accusation of crime appears, under the doctrine of notitita criminis. Additionally, since both MOSSACK and FONSECA are the subjects of an FBI Investigation in the Southern District of New York that could result in a trial in the United States, the false “Big Screen” portrayal of their involvement in money laundering and/or other financial crimes poses an immediate threat and harm to the Plaintiffs’ fair Trial rights. The defamatory representations made about Plaintiffs’ involvement in crime and unethical behavior, along with the disparaging manner in which the Plaintiffs and their protected logos are portrayed, stands to affect current proceedings against them in Panama, and to 2 Case 3:19-cv-01618 Document 3 Filed 10/15/19 Page 3 of 4 pollute a potential jury pool in a U.S. criminal prosecution. Plaintiffs are entitled to injunctive relief preventing NETFLIX from defaming the Plaintiffs, or any of them, and disparaging and misusing their protected logo(s) for economic gain. Additionally, NETFLIX’s portrayal of the Plaintiffs as criminals in the movie threatens to undo any opportunity they have to regain clientele or conduct future business. The manner in which NETFLIX portrays MFGROUP will cause others to avoid them in business, and future opportunities will be lost, due to NETFLIX’s portrayal of the Plaintiffs in the false light of criminality. The Plaintiffs are very likely to suffer immediate irreparable harm, and they are also likely to succeed on the merits of their claims as expounded in the Verified Complaint. Thus, they are entitled to injunctive relief. WHEREFORE the Plaintiff, therefore, prays that a narrowly tailored Preliminary Injunction be issued forthwith, and without the necessity of Plaintiffs posting a bond. The Plaintiffs also pray that the Preliminary Injunction continue as against the Defendants, pending the outcome of this litigation. THE PLAINTIFFS, BY___________________________ Stephan Seeger, Esq. (CT 19234) Law Offices: Stephen J. Carriero 810 Bedford Street, Suite 3 Stamford, CT 06901 (203) 273-5170 (203) 357-0608 Seegerkid2@aol.com 3 Case 3:19-cv-01618 Document 3 Filed 10/15/19 Page 4 of 4 ORDER The foregoing motion having been heard this day of October, 2019, is hereby granted/denied as follows: _____________________________ Hon. , District Court Judge 4 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 1 of 33 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MOSSACK FONSECA & CO., S.A, BUFETE MF & CO., JÜRGEN MOSSACK and RAMÓN FONSECA Plaintiffs v. NETFLIX INC. Defendant : : : : : : : : : CIVIL ACTION NO: OCTOBER 14, 2019 MEMORANDUM OF LAW SUPPORTING REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Plaintiffs (hereinafter “MFGROUP”) bring this action for damages and injunctive relief against Defendant Netflix, for Defamation, (Libel and Libel Per Se), False Light Invasion of Privacy, Trademark Infringement by Dilution, and Federal False Advertising. Based on the following Memorandum of Law, Plaintiffs’ Verified Complaint, and the Affidavit of Arthur Ventura Jr. (attached hereto as Exhibit 1), the Plaintiffs request injunctive relief in the manner set forth hereinafter. I. FACTUAL BACKGROUD In its movie “The Laundromat,” the Defendant defames and portrays the Plaintiffs as ruthless uncaring lawyers who are involved in money laundering, tax evasion, bribery and/or other criminal conduct. Academy award winner Gary Oldman plays Plaintiff, JÜRGEN MOSSACK, whose real name is used in the film. Antonio Banderas plays Plaintiff, RAMÓN FONSECA, whose real name is also used in the film. In the movie’s trailer, https://www.youtube.com/watch?v=wuBRcfe4bSo, the opening clips state the movie is “based on some real shit” and several screens appear asking the question “how do 15 million Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 2 of 33 millionaires in 200 countries stay rich . . . [answer] with lawyers like these,” followed by a screen shot of Oldman and Banderas laughing sinisterly, dressed in flashy clothing. Famous academy award winning actress Meryl Streep, playing recently widowed Ellen Martin who lost her beloved husband on a fall boat tour, pursues justice after being told by her lawyer that her de minimus settlement with the responsible tour operator was related to a recent change in the operator’s insurance company. Essentially, the new offshore insurance company was defunct, if it ever existed, and Streep’s lawyer states “so there is confusion over who has to pay.” The trailer, designed to attract future moviegoers and boost sales, follows this comment with Streep responding to the lawyer: “so they drown you and 20 twenty other innocent people,” and another background voice adds “and somebody’s making money off it.” The dialogue spans clips of Streep mourning at a funeral, then reverts back to her lawyer’s office where she is given the settlement check and told by her lawyer: “and it all goes back to this law firm Mossack Fonseca.” (hereinafter “MF”) In an immediately subsequent clip Oldman and Banderas, dressed in flamboyant gold colored suits and sporting bowties, smile and look at one another while elderly people appear to be playing table games at a flashy nightclub casino in background scenes. The viewer quickly learns that MOSSACK and FONSECA partners at MF, are villains profiting from the death of 20 people killed in the small town boat tour, as the lawyer states “they’re getting away with murder.” The imputed criminal conduct is supplemented seconds later when the FONSECA character asks the audience: “So how does it all work?” In the immediately following clip depicting Streep and her daughter pushing a cart in a grocery store, the answer is provided as Streep exclaims: “bribery, corruption, money laundering, millions and millions and millions of dollars,” while another clip shifts to a download of hacked “Panama 2 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 3 of 33 papers” revealing progress at “508, 905” of “11, 528, 218.” The files being downloaded are the notorious 11.5 million hacked documents imparted to a German reporter who enlisted the International Consortium of Investigative Journalists (ICIJ) to unleash the stolen data, worldwide, in articles and other media accounts of politicians, criminals, and other wealthy people using offshore companies to hide assets and launder money. The “download” frames are followed by a statement echoing one message of the film: “somebody needs to sound the alarm,” whereupon Banderas is bombarded with ringing and beeping of multiple phones. Immediately thereafter clips of people connected to MFGROUP offshore accounts and/or purported clients exclaim “shit” and/or other expletives in different languages, including an English speaking lady at a bar, a gentlemen dressed in garb resembling a Sheik, two Russian gangsters, and the wife a Chinese politician driving by some soldiers (hereinafter the “culprits”). The viewer is meant to associate MOSSACK and FONSECA with these tax evading, money laundering, and otherwise criminal “culprits.” The shock of the actors in these scenes links the culprits with MFGROUP as the immediately subsequent scenes depict Oldman and Banderas staring at one another in the MFGROUP boardroom reciprocating expressions of complete astonishment. The clear implication is that all of these people are associated with criminal activity, and they have been “outed” in the “hack and release” of MFGROUP’s client information. As the scene returns, it depicts Oldman and Banderas in a Board Room in front of a huge shot of the law firm’s logo, which includes the names of Plaintiffs MOSSACK and FONSECA. The implications and innuendo converge to cast Plaintiffs in the light of mastermind criminals involved in murder, bribery, money laundering and/or corruption. The movie’s message is clear, and not merely subsidiary; namely, that MFGROUP are money laundering and tax evading criminals. 3 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 4 of 33 Recent movie reviews support the Plaintiffs’ claims.1 Attributing criminal conduct to MFGROUP after reviewing the movie, the BBC (on the lighter side of reviews) states the movie is “a light larky skim over ‘the subject,’ that . . . might cause viewers tutting and chuckling over Mossack Fonseca’s crimes and misdemeanours, [but] it won’t have them rushing to the barricades. See http://www.bbc.com/culture/story/20190902-film-review-venices-biggestdisappointment (emphasis added). The Panama Papers, states deadline.com, “came to light due to a whistleblower with knowledge of the Mossack Fonseca law firm. Schwimmer plays Matthew Quirk, an attorney who speaks on behalf of one of the insurance companies after 20 elderly passengers die on a boating excursion. The boating company learned its insurance isn’t the large company it thought it was, but merely just a P.O. box in Nevis . . . the incident triggers lawyers, government officials, and more to track down these shell companies. Those investigations lead to the laundering geniuses at the Panama-based law firm Mossack Fonseca.” See https://deadline.com/2018/10/netflix-the-laundromat-robert-patrick-steven-soderbergh1202486204/ (emphasis added). Indiewire.com continues: “[t]he 11.5 million documents showcased global tax evasion by thousands of companies registered with Mossack Fonseca, covering up an astounding list of criminal activities . . . “The Laundromat” grows far more intriguing when it settles into a series of overlapping dramas to illustrate the sheer international scale -of Mossack Fonseca’s corruption. See https://www.indiewire.com/2019/09/the-------------------- laundromat-review-steven-soderbergh-1202170171/ (emphasis added). And the L.A. Times, confirming the innuendo and the movie’s false light portrayal of MFGROUP states: “Mossack Fonseca, a Panamanian law firm whose money-laundering operations were found to have provided ---cover for all manner of criminal activities worldwide. In a movie with more than a few ------- 1 See generally, Verified Complaint, ¶¶ 109-118 . 4 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 5 of 33 false aliases, it spoils nothing to point out that Banderas and Oldman are in fact playing the firm’s chief partners, Ramón Fonseca and Jürgen Mossack (which partly explains Oldman’s comically exaggerated German accent). See https://www.latimes.com/entertainmentarts/movies/story/2019-09-25/the-laundromat-review-netflix-meryl-streep (emphasis added). Uncontestably, NETFLIX’s trailer and movie have clearly defamed the Plaintiffs and cast them in the false light of criminality before a substantial number of community members. The Plaintiffs seeks to enjoin NETFLIX from continuing to defame them via publication of false statements and innuendo in “The Laundromat.” In a similar manner, NETFLIX defames and tarnishes MFSA’s logo(s). In the movie, the imputed crimes and criminality attributed to MOSSACK and FONSECA become synonymous with the MFSA logo. NETFLIX uses the Plaintiffs’ already public, famous and/or well known trademarked logo in disparaging ways, placing it strategically in scenes that support false claims and criminal innuendo. Notably, the NETFLIX trailer and movie utilize a “trademarked” logo that is registered in Colombia and protected under the 1929 General InterAmerican Convention for Trade Mark and Commercial Protection. The Defendant’s use and display of the logo in “The Laundromat,” greatly diminishes and/or dilutes its value and goodwill. The logo is used unnecessarily, placed in scenes that allow viewers to associate it with very serious criminal and unethical behavior. As such, the Defendant infringes upon the protected logo, disparaging and tarnishing the same for no necessary or colorable artistic purpose and/or constitutional benefit of expression. The logo is used approximately 8 times between NETFLIX’s trailer and the movie proper, exposed on the side of a building, on a client folder, twice behind a transparent door in an office, on a background re-broadcast of a CNN news 5 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 6 of 33 segment, and three times in scene backgrounds projected on large screen televisions, including one instance in the “we’ve been outed” scene lasting approximately 30 seconds. NETFLIX uses the logo in both its trailer that is designed to attract moviegoers and generate revenue, and in the movie to benefit economically from the reality the logo lends to its scenes. Clearly, the use is not incidental. When viewing the logo placement in both the trailer and the movie, the viewer will assume that the Plaintiffs endorse and/or approve of the logo’s use, however, the manner in which the logo is used would cause most viewers a mental association that would be unsavory, damaging, and/or unwelcomed by the Plaintiff owners of the logo. Accordingly, the defendant has diluted and falsely advertised the logo. II. STANDARDS FOR TEMPORARY RESTRAINING ORDER Rule 65(b) of the Federal Rules of Civil Procedure establishes the standards for granting a temporary restraining order (hereinafter “TRO”), stating: A temporary restraining order may be granted without written or oral notice to the adverse party or that party’s attorney only if (1) it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. The rule provides that a TRO may be granted ex parte only if “it clearly appears from specific facts shown” that irreparable harm will be suffered before a hearing can be held. The restrictions on the availability of ex parte TROs imposed by Rule 65(b) are “stringent.” See Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438-39 (1974). A court must have strong evidence of threatened irreparable injury, and the relief sought must be tailored in a way that is no more intrusive than is reasonably necessary to preserve the status quo until a hearing can be held. Id. at 439. In 6 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 7 of 33 Warner Bros., Inc. v. Dae Rim Trading, Inc., 877 F. 2d 1120, 1124 (2nd Cir. 1989), the court recognized that a TRO should be granted where it would preserve the status quo and prevent irreparable harm, at least until the Court can hold a hearing. But while a straightforward reading of Rule 65 appears to require a showing of irreparable harm and certification of notice efforts alone, Courts interpret the rule to require more. For example, the Second Circuit applies the same standards for temporary restraining orders and preliminary injunctions, “and district courts have assumed them to be the same.” See e.g., Allied Office Supplies, Inc. v. Lewandowski, 261 F. Supp. 107, 108 n.2 (D. Conn. 2005). See also Foley v. State Elections Enforcement Comm’n, No. 3:10CV1091 (SRU) (D. Conn. July --------------------------------16, 2010), 2010 WL 2836722 at *3 (quoting Allied); and also Fairfield -------------------------County Medical Assoc., v United Healthcare of New England, 985 F.Supp.2d 262 (D. Conn. 2013). Essentially, granting a TRO or “a preliminary injunction is appropriate if a litigant demonstrates: “(1) that it will be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of hardships tipping decidedly in its favor.” Id. at 270 (quoting Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 149 (2d Cir.1999); Mullins v. City of N.Y., 626 F.3d 47, 52–53 (2d Cir. 2010); Moore v. Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir.2005). Where the irreparable harm prong can be demonstrated, but “likelihood of success” is not provable, a plaintiff may be entitled to such relief if she can demonstrate its alternative: namely, “sufficiently serious questions going to the merits to make them a fair ground for litigation, as well as a balance of hardships tipping decidedly in favor of the movant.” Id. In the case at bar, the Plaintiff claims a showing based on the “irreparable harm” prong and a “likelihood of success on the merits.” 7 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 8 of 33 III. IRREPARABLE HARM In Warner Bros., Inc. v. Dae Rim Trading, Inc., 877 F. 2d 1120, 1124 (2nd Cir. 1989), the court recognized that temporary restraining orders should issue where the effect would be the preservation of the status quo, and the prevention of irreparable harm, until the court has had an opportunity to hold a hearing. “Irreparable harm is injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages.” See Rodriguez v. DeBuono, 162 F.3d 56, 61 (2d Cir. 1998) (internal quotation marks omitted) (discussed in context of preliminary injunction requirements). Notably, a court will presume that a movant has established irreparable harm in the absence of injunctive relief if the movant’s claim involves the alleged deprivation of a constitutional right. See Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (noting that if a constitutional right is involved most courts hold that no further showing of irreparable injury is necessary) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2948, at 440 (1973)). Similarly, in Heublein v. F.T.C., 539 F. Supp. 123 (D. Conn. 1982), the Court noted that violations of federal law satisfy, per se, the equitable requirement that Plaintiff demonstrate irreparable harm. Also noteworthy, is that ”courts have found that “irreparable harm may exist when the moving party could suffer a loss of goodwill, suffer reputational harm, face exclusion from certain business opportunities, or face a significant threat to that party's business.” See Fairfield County Medical Assoc., supra at 271-272 (citing Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir.1970) (threat to business), Rogers Group, Inc. v. City of Fayetteville, Ark., 629 F.3d 784 (8th Cir.2010) (loss of goodwill); Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149 (10th Cir.2001) (loss of reputation and business opportunity), Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047 (5th Cir.1997) (loss of reputation), Multi–Channel TV Cable Co. v. Charlottesville 8 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 9 of 33 Quality Cable Operating Co., 22 F.3d 546 (4th Cir.1994) (permanent loss of customers due to the loss of goodwill), and Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 867 (8th Cir.1977) (same)). And while “a showing that irreparable injury will be suffered before a decision on the merits may be reached is insufficient by itself to require the granting of a preliminary injunction, it is nevertheless the most significant condition that must be demonstrated. See Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985). Here, there can be no doubt that MFGROUP has and will continue to suffer irreparable harm absent the granting of an injunction. As targets of a Federal Investigation, JÜRGEN MOSSACK and RAMÓN FONSECA may be brought to Trial in the United States.2 This is not merely a speculative claim; people that once worked with MOSSACK and FONSECA (hereinafter “MF”), have already been charged in an Indictment in the Southern District of New York. Noteworthy is the fact that the Indictment specifically names Ramses Owens Saad (hereinafter “Owens”) and others along with “associated entities,” stating that the identifiable defendants “conspired with each other, and with others known and unknown.”3 The Indictment not only mentions MF, it also includes MF in allegations such as (1) MF had clients or created companies or “sham companies” that were being advised illegally and serviced by the Owens defendant(s), or (2) MF was involved in moving money in the context of the conspiracy alleged by the Government.4 While MF would certainly contest such claims, clearly the U.S. Attorney’s office takes a position on the subject of MF’s involvement in a conspiracy that has already been 2 See Ventura Affidavit ¶¶ 26-27. See generally, U.S.A. v Ramses Owen et. al., 18 Crim-693 (S.D.N.Y.), Title to Introduction and ¶ 14. 4 Id. at Paragraph 29 (alleging in part that “Mossack Fonseca had moved Client-l's money to Switzerland from Hong Kong.”); see also, Ventura Affidavit ¶ 25. 3 9 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 10 of 33 charged against Owens and others.5¶¶ 26-27 (hereinafter “Ventura Affidavit”). The Federal Indictment against Owens, of course, charges Money Laundering and Conspiracy to Commit Tax Evasion against the backdrop of shell corporation creation and offshore account holdings. NETFLIX’s movie falsely represents that MFGROUP was committing the exact same crimes, utilizing means including those cited by the Government in the Owens Indictment. In fact, it is difficult to deny the entire false message of the movie is, undeclared and/or criminal money sources are being hidden and laundered in tax haven countries where transparency is all but nonexistent, using phony companies that all go “back to this law firm Mossack Fonseca.” In the event that MFGROUP Plaintiff is indicted in the United States, it is clearly uncontestable they would be entitled to Due Process of Law and a full panoply of civil rights including, but not limited to, the right to a trial by jury. The widespread false message being published by NETFLIX to audiences everywhere in the United States and around the world, threatens not only to pollute the “Court of Public Opinion” (for which the Plaintiffs are entitled to a separate cognizable remedy), but also to pollute a jury pool in a de facto criminal case. Any mildly seasoned criminal trial lawyer realizes the effect of film on the objectivity of jurors, and in the voir dire process it is common to ask questions about a juror’s viewing habits—people cannot help being affected by what they watch. In addition, courts invariably acknowledge this, regularly admonishing jurors to stay away from television and internet surfing during their tenure in order to maintain their impartiality. This is significant because the gatekeeper of a jury trial is there to ensure an impartial jury and a fair untainted verdict based only upon evidence presented at trial. Even when admonished, however, not all jurors do or can do as they are asked. In fact, the admonishment and/or even “curative instructions” in general, arguably prompt the very thing 5 See Ventura Affidavit at ¶¶ 27 (stating that Plaintiffs are not only Targets, but also earmarked for incarceration based on the crimes contemplated against them by FBI and HSI). 10 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 11 of 33 they strive to avoid. Occasionally, curative instructions are unwelcomed and argued against as a matter of trial strategy/tactic, for this very reason. Once the cat is out of the bag, it is impossible to put it back without the consequence of tainting a verdict. This is especially true where the cat is named “Laundromat” and the charges would include money laundering. Here, a worldwide audience including potential jurors in a Southern District prosecution, could easily echo the views of influential movie reviewers (which include false accusations and misrepresentations),6 well before they are ever exposed to real evidence. This problem is writ even larger when the influences that come to bear upon such minds include the false and defamatory message of famous directors, supplemented by words that roll off the tongues of decorated academy award winning actresses such as Meryl Streep. The message is hard to forget, however unsubstantiated the claims may be, and this leaves the potential defendant(s) without a viable remedy where Justice is expected most. This stress upon constitutional rights constitutes irreparable harm in many ways, and the Court has the discretion to prevent it by narrowly tailoring a remedy in advance. In addition to legal harms in the United States, NETFLIX’s publication of “The Laundromat” (“La Lavandería” in Spanish) precipitates threatened harms in Panama. JÜRGEN MOSSACK and RAMÓN FONSECA have been named as defendants in criminal legal proceedings in Panama, by the Ministerio Publico-Fiscalia Auxiliar, to wit, one case commonly referred to as the “Lava Jato” case (Fiscal/Prosecutors File 06-2016, Court File Panama City 48931-19), and the second commonly referred to as the “Panama Papers” case (Fiscal/Prosecutors File 02-2016, Court File Panama City 87256-19 ). Both of these cases were launched notitita criminis, a procedural norm that is enshrined in the Panamanian 6 See e.g., Verified Complaint ¶¶ 109 through 117. 11 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 12 of 33 criminal/judicial code; essentially, media about any possible crime that comes to the attention of the prosecuting authorities obligates them to investigate. As a result of these news driven investigations and cases, JÜRGEN MOSSACK and RAMÓN FONSECA have already been imprisoned for several months, and have now been confined to the Republic of Panama, with biweekly reporting conditions as part of their bail Order. Additionally, each must continue to post a five-hundred-thousand dollar ($500,000.00) bond for which they incur approximately $22,000.00 in yearly fees.7 Based solely upon media accounts actually cited by authorities in official charge-related documents, JÜRGEN MOSSACK and RAMÓN FONSECA, have been imprisoned and had their liberty restrained in other manners. NETFLIX’s movie “The Laundromat” depicts crimes that are imputed to JÜRGEN MOSSACK and RAMÓN FONSECA, as well as their law firm MF and/or Mossack Fonseca & Co., S.A. (hereinafter”MFSA”). These crimes are unrelated to the charges they face currently in Panama. Thus, while the Plaintiffs have no connection, for example, to Cartel murders or Russian-gangster money laundering, an investigation into allegations made directly and/or via innuendo in the movie, will subject Plaintiffs to unnecessary and unwanted official legal attention, including separate investigations. These threatened media based harms are identical to ones that have already precipitated incarceration and restraints upon the liberty of JÜRGEN MOSSACK and RAMÓN FONSECA. Since media reports have previously resulted in their incarceration and the imposition of restrictive bail conditions, there is no reason to discount such a threatened harm currently upon widespread publication of a movie accusing the pair of other crimes. Thus, these threatened harms are not merely speculative, they have occurred previously based upon less notorious media. 7 See, generally, Ventura Affidavit supra, ¶ 25. 12 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 13 of 33 At this juncture, while the movie does not appear to have been released to a wide general public “in theatres” (only at two film festivals), NETFLIX is poised to stream its movie to millions of subscribers around the world beginning on October 18, 2019, under the titles “The Laundromat,” as well as the “Lavandaria.” Preparations are confirmed for introduction into the Spanish speaking market, including the country of Panama itself, by the promotional poster: Obviously, the Plaintiffs would prefer to maintain the status quo, with the film not being released to the general public via streaming, especially in Panama and the United States, where they are dealing with criminal legal issues. Notably, in spite of being the targets of two Panamanian cases for approximately four (4) years, neither the individual Plaintiffs, nor the corporate entities have ever been convicted of any charged crime.8 The film is unwelcomed by Plaintiffs, because by October 18, 2019, it will spread false accusations and criminal innuendo to the public, which will surely reach authorities and potential jurors. In addition to civil rights related harm, it cannot be denied that mere allegations have destroyed MFGROUP’s business. Banks outrightly refuse to deal with MFGROUP, and their existing client base has been obliterated by a “hack and release” that has and will continue to plague them into the future. Significantly, the future for MFGROUP must not be ignored; they 8 See Ventura Affidavit ¶ 25. 13 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 14 of 33 have a right to face allegations fairly and pick up where they left off before the “hack and release.” This is both a continuing and future right and expectation. Notably, threats to business reputation and loss of goodwill have been recognized by Courts as irreparable harms. See, generally, Fairfield County Medical Assoc., supra. Here, while one may claim that goodwill and business reputation have already been harmed by the “hack and release,” future interests and opportunities are no less worthy of protection. Loss of reputational interests and goodwill based upon allegations of criminal activity are obvious here. However, even where goodwill has been damaged in the past, the owners of the same are entitled to protect against complete obliteration and/or salvage what might remain. Permanent loss of clientele occasioned by damage to goodwill, is something MFGROUP is entitled to guard against. See Fairfield County Medical Assoc., supra (citing Multi–Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546 (4th Cir.1994) (citing protection against permanent loss of customers due to the loss of goodwill) (emphasis added), and Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 867 (8th Cir.1977) (same)). Thus, the Plaintiffs have interests not only in preventing loss of customers, but “permanent” loss of customers due to loss of goodwill. On the heels of an acquittal or if allegations are otherwise shown to be false in future, MFGROUP would certainly be entitled to “pick up the pieces,” based upon the truth having come to light. To rebuild, or try to regain the goodwill that was generated over four decades of work, would be an already difficult endeavor; to be sure, the message of NETFLIX’s movie places unnecessary and unwarranted burdens upon MFGROUP’s future business opportunities and ability to prevent permanent loss of goodwill and clientele. 14 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 15 of 33 The civil rights, reputational, and liberty interests at stake, clearly require an injunctive remedy, since appurtenant harm cannot be remedied simply by money damages. The complete obliteration of a business reputation, and loss of clients occasioned by the loss of goodwill, cannot be compensated by money either; the ability to “pick up the pieces” of a business destroyed by false accusations of criminal conduct would be incredibly difficult to monetize and assign calculable damages. Thus, the Plaintiffs can demonstrate irreparable harm that cannot be remedied by money compensation alone. IV. LIKELIHOOD OF SUCCESS ON THE MERITS Generally, likelihood of success requires the Court to conduct an assessment of the strength of the movant’s claims. The Court is not required to decide the Plaintiffs’ case completely at this stage, and there is no rule requiring that the movant prove her case on a preponderance of the evidence standard. Notably, where the injunctive relief sought is mandatory (e.g. requiring a defendant to do a positive act) versus prohibitive (e.g. maintaining status quo), “in addition to demonstrating irreparable harm, ‘[t]he moving party must make a clear or substantial showing of a likelihood of success' on the merits.” See D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 510 (2d Cir.2006) (citations omitted). Additionally, when injunctive relief is requested in the context of a non-movant’s speech, the burden of persuasion is even greater because prior restraints on expression are “the most serious and the least tolerable infringement on First Amendment rights.” See Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int'l Union, 239 F.3d 172, 176 (2d Cir. 2001) (quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976)). But while the Second Circuit subscribes to the “majority view that, absent extraordinary circumstances, injunctions should not ordinarily issue in defamation cases, ” there is no bright line rule 15 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 16 of 33 prohibiting injunctive relief in all such situations. See, e.g., Peregrine Myanmar Ltd. v. Segal, 89 F .3d 41, 52 (2d Cir.1996) (noting that where complaint included claims that defendant had interfered in plaintiff’s business by making false and misleading statements to plaintiff's customers, some aspects of an injunction were appropriate); see also -----------Bingham v. Struve, 184 ---A.D.2d 85, 591 N.Y.S.2d 156 (1st Dep't 1992) (stating that where all the elements for preliminary injunctive relief were demonstrated, such relief based on a claim of libel was appropriate). Further, “narrowly crafted injunctions may be appropriate with regard to a defendant’s unprotected speech. See Ferri v. Berkowitz, 561 Fed.Appx. 64, 65 n.2 (2d Cir. 2014). And ultimately, speech including certain defamation and fraud “bring the speech outside the First Amendment . . . [where] the statement must be a knowing and reckless falsehood.” See United States v. Alvarez, 567 U.S. 709 (2012). Here, the Plaintiffs can demonstrate likelihood of success on the merits, on both the prohibitive and mandatory injunctive standards, and the relief requested pertains to unprotected speech that this Court could abate with a narrowly tailored preliminary injunction. i. Libel and Libel Per Se Defamation includes libel and slander: slander is oral defamation and libel is written defamation. See Mercer v. Cosley, 110 Conn. App. 283, 297 (Conn. App. Ct. 2008). A defamatory statement under Connecticut law is one that has a tendency to harm another’s reputation and/or “lower him in the estimation of the community or to deter third persons from associating or dealing with him.” See Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627 (Conn. 2009). Establishing a prima facie case requires the Plaintiff to demonstrate that: ”(1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) 16 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 17 of 33 the plaintiff’s reputation suffered injury as a result of the statement.” Id. at 627-28. As to the first element, a defamatory statement is defined as “a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Id. at 627. To establish an actionable statement it must be false. See Cwelinsky v. Mobil Chemical Co., 267 Conn. 210, 228–29 (Conn. 2004). Each time the false statement is published a new cause of action arises. Id. at 217. Where the Defendant is a “public figure,” the Plaintiff must show that the statement was published with “actual malice, such that the statement, when made, was made with actual knowledge that it was false or with reckless disregard of whether it was false.” Gambardella, supra at 628 (internal quotation marks and citations omitted). The supporting evidence must demonstrate “purposeful [versus negligent] avoidance of the truth.” See Hopkins v. O'Connor, 282 Conn. 821, 846 (Conn. 2007) (citations omitted). Notably, punitive damages are recoverable only if a Plaintiff proves malice, irrespective of the public figure/private citizen distinction. Gambardella supra at 628. Here, the Plaintiffs claim libel per se, in addition to simple libel. “In general, there are two classes of libel that are actionable per se: (1) libels charging crimes and (2) libels which injure a man in his profession and calling.” See Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 850 (Conn. App. Ct. 2005). Here, both classes are operative. The “per se” determination is a question of law decided by a Court. Id. at 850. Libel per se “charges a crime which involves moral turpitude or to which an infamous penalty is attached; namely a “chargeable offense which is punishable by imprisonment.” See Battista v. United Illuminating Co., 10 Conn. App. 486, 493 (Conn. App. Ct. 1987). Where libel per se is proven, “injury to a plaintiff’s reputation is conclusively presumed such that a plaintiff need neither plead nor prove it. See Spears v. Elder, 124 Conn. App. 280, 289 n.6 (Conn. App. Ct. 2010). In such a case the 17 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 18 of 33 Plaintiff can recover general damages for reputational injury as well as for “the humiliation and mental suffering which the [defamatory statements] caused . . .. ” See DeVito v. Schwartz, 66 Conn. App. 228, 235 (Conn. App. Ct. 2001). In the case of libel per se “the jury may award the plaintiff general damages without any further proof thereof, special damages if proven and punitive damages as a matter of discretion.” Id. Truth is an absolute defense to an allegation of defamation. See, e.g., Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 112 (Conn.1982); Thibodeau v. Am. Baptist Churches of Conn., 120 Conn. App. 666, 678-79 (Conn. App. Ct. 2010) (“Truth is a defense to defamation.”). But while “truth is an affirmative defense to defamation … the determination of the truthfulness of a statement is a question of fact for the jury. As a defense, truth provides protection against liability, but not against the expense and inconvenience of being sued.” Cweklinsky, supra at 228-29. Moreover, a defendant need not establish the literal truth of the allegedly defamatory statement: “[w]here the main charge, or gist, of the libel is true, minor errors that do not change a reader’s perception of the statement do not make the statement actionable.” See Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 322 (Conn. 1984) (internal quotation marks and citation omitted); --see --also ----------------------Woodcock v. Journal Pub. Co., Inc., 230 Conn. 525, 554 (Conn. 1994) (“A defendant will not be held liable as long as the statements at issue are substantially true”). “The issue is whether the libel . . . as published, would have a different effect on the reader [or listener] than the pleaded truth would have produced.” Goodrich, surpra at 113. While the Plaintiffs assert there is no truth to representations made by NETFLIX in “The Laundromat,” that they are criminals and have committed crimes such as money laundering and tax evasion, libel in the case at bar is also claimed in the form of innuendo and implication. 18 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 19 of 33 “Innuendo or inference may result merely from the tone or “slant” of an article, or innuendo or inference may also result from the failure to present the whole picture. See Memphis Publishing Co. v. Nichols, 569 S.W.2d 412 (Tenn.1978). In Memphis Publishing, for example, a newspaper reported that a woman, upon arriving at the home of another woman, “first fired a shot at her husband and then at [the other woman], striking her in the arm.” Id. at 414. What the article failed to state, however, was that other neighbors and the other woman’s husband were also there, and the shooting was an accident. While the published statements were true as a technical matter, they falsely implied a scorned woman’s rage precipitated the shooting because she came upon her husband and another woman in an adulterous affair. Thus, while it is axiomatic that truth constitutes a defense to defamation, in certain circumstances even true statements can converge and be construed to contain a false and defamatory meaning by implication or innuendo. Likewise, where a publication implies a falsehood by omitting or “strategically juxtaposing key facts,” the same may constitute a cause of action even where all individual statements taken in isolation may be true. See, e.g., Strada v. Conn. Newspapers, Inc., 193 Conn. 313, 322–23, 477 A.2d 1005 (1984). NETFILX’s movie “The Laundromat” publishes harmful falsehoods to third parties constituting a substantial portion of the community, including past and future clients and/or others with whom Plaintiffs will seek to mend failed relations caused by false accusations of criminal conduct. The message and the title of the movie clearly imply that the Plaintiffs (identified by name) are criminals involved in money laundering and tax evasion conspiracies. Importantly, however, NETFLIX leaves out the material fact that crimes attributable to the Plaintiffs in the movie completely ignore the original client/end user distinction. Namely, NETFLIX attributes such crimes to MFGROUP by conveniently ignoring the fact that creation 19 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 20 of 33 of a corporation or business entity that is sold to an initial client, such as a bank, or accounting firm, does not magically transform every “end user” into an MFGROUP “client.” Ignoring this distinction, and the fact that MFGROUP conducted due diligence (having had its own compliance group at one point)9 wherever a “know your client” law required the same, permits the false inference that MFGROUP participated in the crimes of those “end users” who never purchased companies from nor ever even met with MFGROUP. The magic makes for a great story, to be sure, but the innuendo created is destructive and unfair to MFGROUP—it is a money-maker for NETFLIX but an irreparably harmful money-loser for the Plaintiffs. In addition, the movie preview strategically juxtaposes scenes to defame MFGROUP. For example, Streep saying: “so they drown you and 20 twenty other innocent people,” and another background voice adds “and somebody’s making money off it . . . and it all goes back to this law firm Mossack Fonseca.” And then after alleging it “all goes back to Mossack and Fonseca,” clips citing crimes such as ““bribery, corruption, money laundering, millions and millions and millions of dollars,” then shifting to a download of hacked “Panama papers” revealing progress at “508, 905” of “11, 528, 218,” all converge to produce the clear message that Mossack and Fonseca are criminals, and that the Panama Papers “hack and release” revealed as much. The defamatory impression created via false statements and innuendo is echoed by movie-reviewers, many of whom saw the movie and concluded themselves that MFGROUP were engaged in criminal conduct—for example, they were “money laundering geniuses.” See generally, Verified Complaint, ¶¶ 109 to 117. The crimes attributable to MFGROUP are ones of moral turpitude and would subject them to imprisonment, and therefore, constitute libel per se. 9 Ventura Affidavit ¶ 23. 20 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 21 of 33 In defaming the individual plaintiffs, the movie defames their business entities as well. Consequently, the reputational interests of both partners as well as the goodwill and reputation of the Mossack Fonseca law firm are implicated and damaged. See generally, discussion herein, supra, sec. III entitled “Irreparable Harm.” Defendant can demonstrate a strong likelihood of success on the merits, based on the nature and pervasiveness of NETFLIX’s libel, and the fact that no defense of truth can be asserted in defense. See generally, discussion herein, supra, sec. IV entitled “Likelihood of Success.” In addition, MFGROUP are not “public figures,” since they have not voluntarily placed themselves or their reputational interests before the public. They are classically forced into the vortex of public controversy involuntarily after the “hack and release” of confidential and privileged material, and two resultant criminal charges in Panama. Notably, the Supreme Court has rejected the contention “that any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction.” See Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157, 168 (1979). While some litigants may actually be “public figures,” either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom . . . [t]o hold otherwise would create an ‘open season’ for all who sought to defame persons convicted of a crime. Id. at 168-69. Lastly, the criminal accusations made and/or implied in NETFLIX’s movie would not constitute “protected speech,” therefore, the Plaintiffs are entitled to narrowly tailored injunctive relief rooted in both libel and libel per se, as set forth in the Verified Complaint and supplemented by the Ventura Affidavit 21 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 22 of 33 ii False Light Invasion of Privacy A claim for false light requires that the defendant give publicity to a matter concerning plaintiff that places the plaintiff before the public in a false light. See Cayo v Shop and Stop Supermarkets, 2012 WL 5818862 (citing Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 131, 448 A.2d 1317 (1982). As adopted by Connecticut Courts, the Restatement defines a false light invasion of privacy as follows: [o]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. In the context of false light invasion of privacy, publication means communicating a matter to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. See, Holmes v Town of East Lyme, 866 F. Supp. 2d 108, 131 (D. Conn. 2012). Here, it is indisputable that NETFLIX has communicated and prepared its movie “The Laundromat,” as well as its trailer, in a manner that is certain to become one of public knowledge. Moreover, after (1) airing the film at two film festivals (Venice and Toronto between August and September 2019, (2) scheduling limited release of the movie in theatres on September 27, 2019 (which may not as yet occurred), (3) having streamed the preview on Youtube exposing it to 1,406,891 hits,10 and (4) having prepared it for streaming into the homes of millions of viewers on October 18, 2019, it is clear that “the matter must be regarded as substantially certain to become one of public knowledge.” Id. Lastly, and most obviously, accusing a person of committing a crime such as money laundering and/or other felonious crimes 10 See, https://www.youtube.com/watch?v=wuBRcfe4bSo 22 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 23 of 33 without regard to the effect such crimes have upon others is “highly offensive,” and this element is hardly disputable. With respect to whether NETFLIX knew, or acted in reckless disregard of the false light within which they portrayed the defendant, the development of the film is instructive. The film is based on the novel “Secrecy World” by Jack Bernstein, a Pulitzer Prize winning author. As a journalist of such caliber, and having been one of the ICIJ journalists who worked with the “hack and release” material distributed by Obermayer, he knew the difference between an “original client” and “end user:” As confirmed by his book, he was well aware of the fact that MFGROUP sold companies to professionals such as Banks and Accounting firms. As a consultant and/or Executive Producer of “The Laundromat,” acting on behalf of NETFLIX, its servants, employees and/or other representatives, he clearly had the relevant background to know the falsity of the message, that notorious criminals who were “outed” after the hack were not MFGROUP clients. Almost certainly, a writer of his caliber recognized the convenience of blurring the distinction between clients and ultimate end users who were involved in criminal activity unrelated to MFGROUP. It would be difficult to imagine that these distinctions and other relevant facts were not shared with NETFLIX prior to the time the movie was completed, or even during its creation, when clearly Mr. Bernstein knew the difference—he didn’t just forget the distinction when he commenced work with NETFLIX. And clearly Mr. Bernstein was poised uniquely to assess the false representations and/or innuendo that flowed from the film while working as an agent, representative and/or employee of NETFLIX. Further, Director Steven Soderburgh himself has demonstrated a keen grasp of the offshore company industry, and has admitted to using offshore vehicles himself in the movie and in subsequent interviews. For example, in a Filmmaker Magazine interview he himself admits 23 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 24 of 33 that companies that are created can exist without a nefarious use, and they obviously serve specific purposes. In the same interview, in stark contrast to what NETFLIX’s movie portrays, Soderburgh states: Scott and I were very adamant that they [Jurgen Mossack and Ramon Fonseca] not be stock villains, because we felt they as people were more complicated than that and the situation itself was more complicated than that. They did not invent these structures. This has been going on for a long time. They just figured out a way to do a high-volume business in creating these kind of entities. filmmakermagazine.com/108310-i-think-everything-is-the-directors-fault-ste (emphasis added).11 It is difficult to reconcile these statements by the Director of “The Laundromat” with the portrayal of MFGROUP in the movie. To claim that MOSSACK and FONSECA and their law firm are not villains in the movie is a cataclysmic understatement, which stands in wholly stark contrast to gist of the movie and the commentary by movie reviewers. The comments made here are wholly incommensurate with the message of the movie and the grossly obvious innuendo that unfolds against MFGROUP therein. And, as if this view was contagious only among insiders at NETFLIX, a text message to Jurgen Mossack, by Executive Producer Jack Bernstein, prior to the trailer and/or movie release states: “I saw the film recently. I think you and Ramon will be very pleased. You don’t come out as the bad guys at all rather it’s the system and the United States that receive the bulk of the blame.”12 Nothing could be further from the truth, and it is difficult to imagine any viewer walking away from the movie not remembering MOSSACK and FONSECA and their law firm, and how they appear to be at the heart of criminal activity Accordingly, NETFLIX knew, or ought to have known through basic fact checking of its own, or through consultation with Bernstein, that the owners of Mossack and Fonseca were not 11 12 See also, Ventura Affidavit ¶ 29. Id. at ¶ 30. 24 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 25 of 33 criminals, and their businesses were not involved in criminal activity simply because they created companies which their clients ultimately sold to end users who were exposed as criminals. NETFLIX knew of the falsity of their message and innuendo and, in spite of the same, the Plaintiffs’ reputations were defamed and they were portrayed in the false light of criminality, in order to attract moviegoers and sell tickets. Minimally, NETFLIX acted in reckless disregard of the false and damaging innuendo “The Laundromat” would generate, all to the detriment of the Plaintiffs’ reputational and economic interests. Since False Light and Defamation are treated similarly with respect to injunctive relief, the previous sections pertaining to irreparable harm, likelihood of success on the merits (including the possibility of applying any heightened standards), and this Memorandum’s prior discussion of First Amendment considerations, are all incorporated here. For all of the foregoing reasons, the Court should grant injunctive relief, including a narrowly tailored Temporary Restraining Order, rooted in Plaintiffs’ False Light claim. iii. Injunctive Relief-Trademark Violations; Inter American Convention & Lanham Act. (a) Inter American Convention MFSA owns a registered trademark in Colombia, protected under the 1929 General InterAmerican Convention for Trade Mark and Commercial Protection (hereinafter the “Convention).13 As a Southern District Court in New York acknowledged: “[t]he InterAmerican Convention, is a self-executing treaty, and thus it became law in the United States without the necessity for implementing legislation.” See Havana Club Holding, S.A. v. Galleon, 13 The logos are registered in the name of Plaintiff Mossack Fonseca & CO, S.A., with the Superintendencia Industria y Comercio, Republic of Colombia, to wit, (1) Expediente No. 10053693 – Certificado de Registro 412048, (2) Expediente No. 10-053705 – Certificado de Registro 412052, and (3) Expediente No. 10-053702 – Certificado de Registro 412051. 25 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 26 of 33 S.A., 62 F. Supp. 2d 1085, 1092 (S.D.N.Y. 1999), cert. denied, Havana Club Holding, S.A. v. Bacardi & Co., 531 U.S. 918 (2000) (citing Bacardi Corp. of America v. Domenech, 311 U.S.150, 161 (1940)). The Trade Mark Trial and Appeal Board further noted that while it had the same force of federal law, it was actually independent of the Lanham Act. See BritishAmerican Tobacco Co.Ltd. v. Philip Morris Inc., 55 U.S.P.Q.2d 1585, 2000 WL 1005433 (T.T.A.B. 2000). Notably, both Colombia (country where the trademark is registered pursuant to domestic law) and the United States of America are Member States--authorized to pursue protection and infringement claims using the legal systems in the Member State of the offending party. In fact, Article 7 of the 1929 General Inter-American Convention for Trade Mark and Commercial Protection states in relevant part: Any owner of mark protected in one of the Contracting States in accordance with its domestic law, who may know that some other person is using . . . an interfering mark in any other of the Contracting States, shall have the right to oppose such use . . . and shall have the right to employ all legal means, procedure or recourse provided in the country in which such interfering mark is being used . . . and upon proof that the person who is using such mark . . . had knowledge of the existence and continuous use in any of the Contracting States of the mark on which opposition is based upon goods of the same class the opposer may claim for himself the preferential right to use such mark in the country where the opposition is made . . . upon compliance with the requirements established by the domestic legislation in such country and by this Convention. Id. Thus, a showing of (1) ownership and (2) proof that the junior user of the logo (e.g. NETFLIX) knew of the existence and continuous use of the mark in “any” contracting State, would allow the owner preferential rights of use “in the country,” and permit the owner all “legal means, procedure or recourse” to protect and enforce the same. NETLIX clearly knew that MFSA previously and continuously used of the logo, and that’s why it was used in the movie— the logo made their scenes appear more real to the viewer. Here, proof would establish the 26 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 27 of 33 applicability of injunctive relief spanning the entire country and, presumably, into any other Member State.14 In fact, specific language in the Lanham Act appears to grant Member State Plaintiffs any rights which are more extensive than U.S. law would otherwise provide. For example, Section 44 (b) of the Lanham Act provides: Any person whose country of origin is a party to any convention or treaty relating to trademarks, trade or commercial names, or the repression of unfair competition, to which the United States is also a party, or extends reciprocal rights to nationals of the United States by law, shall be entitled to the benefits of this section under the conditions expressed herein to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of a mark is otherwise entitled by this chapter. 15 U.S.C. § 1126 (2000) (addressing international conventions and foreign mark registration in the U.S.). Notably, the Convention explicitly provides for the remedy of injunctive relief. In addition, enforcement of priority rights under the Convention do not require a mark to be “famous.” Absent a “famousness” requirement, the Convention grants Member State Plaintiffs more rights to protect their trademarks. Ultimately, this Court has the jurisdiction to “give effect” to these provisions and award MFSA injunctive relief, upon a showing of ownership and NETFLIX’s prior knowledge of the existence and use of MFSA’s logo in any Member State country. Neither of these requirements are problematic based on the fact pattern in the case at bar. The NETFLIX trailer and movie utilize one or more of MFSA’s trademarked logos in “The Laundromat,” without authority, permission, or license to use the same. They are used approximately 8 times between NETFLIX’s trailer and “The Laundromat” movie, to wit: 14 1125(c)(1) of the Lanham Act provides, in relevant part that “the owner of a famous mark . . . shall be entitled to an injunction . . .,” and pursuant to Article 7 of the Convention, an offended senior trademark holder has “the right to employ all legal means, procedure or recourse provided in the country in which such interfering mark is being used.” These provisions read together support the claim that this Court can enjoin NETFLIX for the trademark violation claimed here. 27 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 28 of 33 a. b. c. d. e. once exposed on the side of a building; once on a client folder; twice behind a transparent door in an office; once on a background re-broadcast of a CNN news segment; three times (once for 30 seconds) on background televisions. Defendant uses the Plaintiffs’ already public, famous and/or very well known trademarked logos disparagingly, placing them in scenes that allow viewers to associate the same with serious criminal and unethical behavior. For example, the 30 second display after the MOSSACK and FONSECA characters find out that their confidential files have been hacked and released, and they are depicted worrying about the impending exposure of criminal acts of their “movie clients” and their own involvement in the same. A thirty-second display in one of approximately eight (8) scenes is not merely incidental use.15 MFGROUP has expended many thousands of dollars developing its logo, branding its service, and using the logo in the generation of goodwill in its business. The logo belongs to a very successful and dominant force in the offshore legal-service industry, and has been seen by thousands of people world wide on products, at seminars, and on websites used by the firm.16 MFSA has placed its logo on items used throughout the world in the course of marketing services and developing its brand, including, but not limited to, offices in Latin America, the United Kingdom and the United States.17 It is a very well known logo especially in the legal service industry, and it plays a central role in communicating NETLFLIX’s message that the scheming, laundering and other criminal activity “all goes back to this law firm Mossack and Fonseca.” In short, it would be difficult to reconcile NETFLIX’s use of such a significant prop, 15 See Ventura Affidavit ¶ 35. Id. at Ventura Affidavit at ¶ 22. 17 Id. 16 28 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 29 of 33 if they were unaware of its existence and prior use by it owner MFSA. Its use and associations in the minds of MFSA’s consumers is exactly what gives the logo value as a movie prop. MFSA is the senior user and owner of the mark, and NETFLIX’s junior use offends its title and preferential use in the United States and other Member States that are part of the Convention.18 Under Article 7, therefore, MFSA has the right to oppose and seek enforcement of its rights guaranteed by the Convention, which would include the right of injunction against NETFLIX’s continued use of the logo in its film “The Laundromat,” both in the United States and in any other Member State. Accordingly, this Court has jurisdiction and a legal basis to enjoin NETFLIX from using MFSA’s trademarked logo in its movie and/or promotional materials anywhere in the United States and/or in any other Member State. (b) Trademark Infringement; Lanham Act-Dilution by Tarnishment To prevail on a trademark infringement claim for registered trademarks, pursuant to 15 U.S.C. § 1125(a)(1), MFSA must establish that (1) it has a valid mark that is entitled to protection under the Lanham Act; and that (2) the defendant used the mark, (3) in commerce, (4) "in connection with the sale . . . or advertising of goods or services," (5), without the plaintiff's consent. See 1-800 Contacts, Inc. v. Whenu.com, Inc. 414 F.3d 400 (2d Cir. 2005). None of these elements are disputable. MFSA’s logo is protected under the Lanham Act because the Act incorporates the 1929 General Inter-American Convention for Trade Mark and Commercial Protection. Proof of the logo’s use is satisfied by NETFLIX’s display of the same in its movie, no less than eight (8) times. The mark was used in commerce in connection with the sale and advertising of goods, in that it was displayed in a trailer to attract moviegoers. It was also used 18 The member states include: “Peru, Bolivia, Paraguay, Ecuador, Uruguay, Dominican Republic, Chile, Panama, Venezuela, Costa Rica, Cuba, Guatemala, Haiti, Colombia, Brazil, Mexico, Nicaragua, Honduras, and the United States of America. 29 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 30 of 33 in the movie proper, to enhance the reality of its setting and message. It has been aired at two film festivals, and is currently scheduled to be streamed into the homes of millions of NETFLIX subscribers on October 18, 2019. The logo was previously used exclusively by MFSA in commerce, upon marketing materials, documents, client development gifts, and on website(s) used by MFSA.19 Clearly, NETFLIX has no permission, license, or other authority to use the protected mark. The gravamen of NETFLIX’s use of the protected logo, is primarily in the negative association and resultant loss of goodwill and reputational harm occasioned by the unpermitted use. This is a legally cognizable claim know as dilution by “tarnishment.” Under § 1125(c)(2)(c) tarnishment is the "association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark."' Id. As noted by the Second Circuit: "The sine qua non of tarnishment is a finding that plaintiffs mark will suffer negative associations through defendant's use." See Hormel Foods Corp. v. Jim Henson Products, Inc., 73 F.3d 497, 507 (2d Cir. 1996). Expounding on this notion, the Ninth Circuit has stated that dilution by tarnishment occurs when the mark is linked "with something unsavory or degrading." See Toho Co. v. Sears, Roebuck & Co., 645 F.2d 788, 790, 793 (9th Cir. 1981) (refusing Plaintiff’s tarnishment claim where Sears’ use of the "Bagzilla" mark on "Monstrously Strong" garbage bags failed to tarnish the "Godzilla" mark absent linking the same with something “unsavory” and/ or “degrading"). When criminal activity, including money laundering, tax evasion, insurance and wire fraud, and bribery, are being attributed to MOSSACK and FONSECA in a movie called the “The Laundromat” or “La Lavandería,” it is difficult to deny anything less than an “unsavory,” 19 Ventura Affidavit at ¶ 22. 30 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 31 of 33 or “degrading” association with the mark--especially as its being broadcasted behind the partners for 30 seconds in a movie whose message is that these alleged crimes “all go back to this law firm Mossack and Fonseca.” The logo is as much defamed as MFGROUP, and viewers are likely to associate the logo not with the existing goodwill generated, but with criminal accusations. Section 1125(c)(1) of the Lanham Act provides, in relevant part that “the owner of a famous mark . . . shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.” Id. Since the logo is registered in compliance with the domestic laws of Colombia, a Convention Member State, there can be no dispute over its ownership. MFGROUP has expended many thousands of dollars developing its logo, branding its service, and using the logo, over many years. It belonged to a very successful and dominant force in the offshore legalservice industry, and has been seen by thousands of people worldwide on products, at seminars, and on the firm’s website.20 MFGROUP has branded items and promotional materials used throughout the world in marketing services and developing its brand, in offices in Latin America, the United Kingdom and the United States. Thus, it is a famous and well-known mark that has been used by MFSA before NETFLIX’s junior infringing use commenced. Since the logo is used in the film along with its promotional materials, it has clearly been used in commerce. Ultimately, MFSA is entitled to statutory injunctive relief against the Defendant based upon trademark infringement by dilution under the Lanham Act. 20 Id. ¶ 22 31 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 32 of 33 CONCLUSION The district court has wide discretion in determining whether to grant a preliminary injunction. Millions of NETFLIX subscribers worldwide will begin to view “The Laundromat,” on October 18, 2019. Notably, the anticipated release date corresponds with times during which the Plaintiffs will be defending criminal charges against them in Panama. The legal system in Panama obligates prosecutors to investigate what it learns in the media where an accusation of crime appears, under the doctrine of notitita criminis. Additionally, since both MOSSACK and FONSECA are the subjects of an FBI Investigation in the Southern District of New York that could result in a trial in the United States, the false “Big Screen” portrayal of their involvement in money laundering and/or other financial crimes poses an immediate threat and harm to the Plaintiffs’ fair Trial rights. The defamatory representations made about Plaintiffs’ involvement in crime and unethical behavior, along with the disparaging manner in which the Plaintiffs and their protected logos are portrayed, stands to affect current proceedings against them in Panama, and to pollute a potential jury pool in a U.S. criminal prosecution. Ultimately, at the hands of NETFLIX, the Plaintiffs unwarrantedly solidify a global finance role as poster children for money laundering and tax evasion, with a logo that NETFLIX transforms into one that is synonymous with the same. Plaintiffs are entitled to injunctive relief preventing NETFLIX from defaming the Plaintiffs, or any of them, and disparaging and misusing their protected logo(s) for economic gain. The Plaintiff, therefore, prays that a narrowly tailored Temporary Restraining order be issued forthwith, and without the necessity of Plaintiffs posting a bond. The Plaintiffs also pray that the Temporary Restraining Order continue as against the Defendants, pending the outcome of a Preliminary Injunction hearing. 32 Case 3:19-cv-01618 Document 4 Filed 10/15/19 Page 33 of 33 THE PLAINTIFFS, BY___________________________ Stephan Seeger, Esq. (CT 19234) Law Offices: Stephen J. Carriero 810 Bedford Street, Suite #3 Stamford, CT 06901 (203) 273-5170 (203) 357-0608 Seegerkid2@aol.com ORDER The foregoing motion having been heard this day of October, 2019, is hereby granted/denied as follows: _____________________________________ Hon. Judge/Clerk 33 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 1 of 14 AFFIDAVIT OF ARTHUR VENTURA JR. I, ARTHUR VENTURA JR. being over the age of 18 years with knowledge and understanding of an Oath, hereby declare as follows: GENERAL 1. I am an investigator for Noble Security Advisors who were hired by the Law Offices of S.J. Carriero and Associates LLC, to assist in the representation of Jurgen Mossack and Ramon Fonseca, relating to a U.S. federal criminal matter targeting them and their law firms (Bufete MF & Co. and Mossack Fonseca & Co., S.A.) in connection with facts learned by Homeland Security Investigations (hereinafter “HSI”) and the Federal Bureau of Investigation (hereinafter the “FBI”) in the well known and highly publicized “Panama Papers” hack and subsequent release of some 11 million confidential and privileged documents belonging to the Mossack Fonseca law firm. 2. While I am an currently a private sector investigator working primarily in the areas of corporate fraud, risk management, due diligence and corruption cases, in the Republic of Panama, my background includes approximately 22 years of federal law enforcement experience, and I have qualified in the Spanish language as part of my federal law enforcement training. INVESTIGATIVE BACKGROUND 3. In 1976, as an Airmen in the United States Air Force I attended the United States Air Force Law Enforcement Training Academy where I graduated as a Law Enforcement Specialist and was assigned to Pope Air Force Base, North Carolina. 1 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 2 of 14 4. In 1979, I attended and graduated from the Indiana State Police Academy and was commissioned as a Police Officer with the Indiana University Police Department. 5. In 1985, I graduated from the United States Treasury Academy in Glenco, Georgia Tax Fraud Investigators Aide school. 6. In 1986, I attended the United States Treasury Department Academy in Glenco, Georgia, where I graduated and received a Commission as a Special Agent (SA) in the Criminal Investigative Division. In this capacity I worked complex financial investigations related to Tax Fraud, Tax Evasion, Money Laundering, Organized Crime and Drug Trafficking. 7. In 1992, I transferred to the Department of Justice, Drug Enforcement Administration (DEA) and attended and graduated from the DEA Basic Agent School at the FBI Academy at Quantico, Virginia, where I was commissioned thereafter as a Special Agent with the Drug Enforcement Administration. 8. In 1993, I was transferred to the DEA Los Angeles Field Division in Los Angeles California and assigned to the Money Laundering Group. During my tour of duty in Los Angeles Field Division, I worked on many Money Laundering Investigations. I was eventually assigned to the Attorney General Violent Crime Task Force where an FBI Special Agent and I oversaw managing the Task Force that included several local law Enforcement agencies in Los Angeles. During this period, I worked the first Death Penalty case in the Southern District of California and was presented with a Distinguished Service Award from Attorney General Janet Reno and Director of DEA Tom Constantine, in connection with my investigation duties in that case. 2 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 3 of 14 9. In 1997, I was temporarily assigned to the DEA Office of Professional Responsibility (OPR) for one year, where I participated in a financial investigation involving a DEA Supervisory Special Agent who was alleged to have misappropriated Official Government funds. This investigation resulted in the arrest and trial of the DEA Supervisory Agent where the Supervisor was found guilty and sentenced to three years in a federal prison. During this investigation I conducted financial aspects of the investigation and was the summary witness. 10. In 1999, I was transferred to the Panama Country Office in the Republic of Panama and supervised the Anti-Money Laundering Program for the Panama Country Office. 11. In 1999, I was the case agent on a significant international money laundering investigation, in the case of U.S. vs Seed Joyeros S.A. This was a first impression case, involving a Money Laundering method known as the Black-Market Peso Exchange. For prosecution the case was assigned to the Eastern District of New York where as part of my duties I was required to testify before the honorable Judge Jack Weinstein. 12. In 2005 after attending DEA Supervisory Special Agent School I and was commissioned as a DEA Supervisory Special Agent. 13. In 2006, I was assigned to DEA Head Quarters Financial Operations Section, Alexandria Virginia. In this capacity I was assigned as the Program Manager for Money Laundering operations for the South American Region for 6 months and then assigned as the Program Manager for Money Laundering operations to the Mexico Central American Region. 14. On February 7, 2007, I retired from DEA as a Supervisory Special Agent. 15. In 2007, I started my own consulting and investigations business focusing on financial investigations, fraud and corruption, kidnap and ransom investigations, as well as due diligence and training. 3 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 4 of 14 16. From 2011 to 2014, I was the Corporate Security Manager of Minera Panama in the Republic of Panama. In this capacity, I conducted financial investigations including, internal, corporate investigations and compliance audits, supervised security contractors and briefed the board of directors on a quarterly basis. 17. From 2014 to the present, I returned to the private sector in my own consulting company, Arthur Ventura Jr. and Associates. THIS CASE 18. As part of my investigation in this case I read the book titled Secrecy World: Inside the Panama Papers Investigation of Illicit Money Networks and the Global Elite. The book was written by Jake Bernstein and published by Henry Holt and company. Library of Congress Cataloging -in-Publication Data ISBN number is 9781250126689 (hardcover), and it is alleged to be the book upon which Netflix’s “The Laundromat” movie is based. 19. I viewed the official Netflix Trailer for the movie“ The Laundromat” written by Scott Z. Burns and directed by Stephen Soderbergh and distributed by Netflix Inc 20. I attended the showing of “The Laundromat” with a fellow investigator Larry Holifield, at the Toronto Film Festival on September 10, 2019. 21. I have reviewed the website of the International Consortium of Investigative Journalists (ICIJ) that published what I would characterize as the stolen and privileged documents, hacked from the server at the offices of Mossack and Fonseca in Panama City, without their knowledge or consent. 22. I reviewed, in Spanish, the official registration documents for logos owned and registered in Colombia under the name of Plaintiff Mossack Fonseca & CO, S.A., and can confirm that the registrations are current and registered with the Superintendencia Industria y 4 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 5 of 14 Comercio, Republic of Colombia. The documents I reviewed in this regard are: (1) Expediente No. 10-053693 – Certificado de Registro 412048, (2) Expediente No. 10-053705 – Certificado de Registro 412052, and (3) Expediente No. 10-053702 – Certificado de Registro 412051. I can confirm that the logos I witnessed in the trailer and the movie appear to be the same or similar to logos I reviewed upon the official documents mentioned above. In addition, I have also reviewed and physically examined 30 to 40 items used in the marketing of Mossack and Fonseca services, prior to the Panama hack. They include pens, clocks, speakers, hats, notebooks, notepads, letter openers, wine opening kits, stationary, letterhead, signs, invoices, labels, doors, building facades, clothing, sponsorship signs, pamphlets, coffee cups, and a multitude of other items, branded with the Mossack Fonseca logo which I witnessed in the movie “The Laundromat.” These items were used for marketing in locations around the world including Latin American, Europe and England, Hong Kong, the Caribbean United States. Based upon my investigation I would opine that Mossack Fonseca & Co., S.A., has spent significant amount of money. 23. Through my investigation I have learned that Mossack and Fonseca maintained a compliance department staffed in San Salvador, El Salvador and have reviewed the firms compliance manual in detail. In my opinion the firm created a robust compliance department that used the manual years before stringent compliance and due diligence related to company creation and corporate ownership was ever required under Panamanian law. 24. I have reviewed business insurance policies issued by American Insurance Group (AIG) covering Mossack and Fonseca. My investigation revealed that they were insured against losses that were not paid by AIG, based on the insurers position that Mossack and Fonseca were involved in money laundering. To date policy proceeds still have not been paid even though 5 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 6 of 14 there has been no money laundering convictions or any other evidence that could justify AIG’s refusal to pay under the policy. 25. I have reviewed legal documents related to criminal cases pending against Ramon Fonseca and Jürgen Mossack in Panama. The proceedings in Panamá were commenced by the Ministerio Publico-Fiscalia Auxiliar. The first case to be brought is referred to as “Lava Jato” case entered as Fiscal (“Prosecutors”) File 06-2016, and Court File Panama City 48931-19. The second case which is referred to as the “Panama Papers” case is entered as Fiscal (“Prosecutors”) File 02-2016, and Court File Panama City 87256-19. Due to these proceedings, ). In the “Lava Jato” case both Ramon Fonseca and Jürgen Mossack must pay annual fees of $22,000.00 (USD) in exchange for a $500,000.00 USD bond, required by the Panamanian Court to allow the pair to remain free with other conditions during the pendency of the case. In the Panama Papers case, Ramon Fonseca and Jürgen Mossack were released on their own Recognizance and must sign in with Panamanian Authorities every Monday and Friday before 5:00 pm. In both cases bond conditions prohibit Ramon Fonseca and Jürgen Mossack from travelling outside the Republic of Panama. There has been little movement and no conviction in either of these cases over the last four years. 26. I have reviewed the United States Federal Grand Jury Indictment, 18- CRIM-693, United States v. Ramses Owens Saad (Owens) and co-defendants. I have reviewed many Indictments in the course of my duties in federal law enforcement. The Owens Indictment states that Owens was an employee of Mossack Fonseca & Co from 1992 through 2010 and assisted clients of Mossack Fonseca & Co in setting up offshore companies and bank accounts to defraud the Internal Revenue Service. The indictment describes Mossack Fonseca & Co. as a Panama based global law firm specializing in setting up off shore corporations and bank accounts. Based 6 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 7 of 14 upon my experience and expertise, and familiarity with federal investigations, I believe that an investigation has and will continue to progress to include other individuals and entities at the highest level of the perceived criminal activity. 27. In the course of my investigation in this case, myself and another former federal agent named Larry Holifield met with the FBI in New York City, New York. Based upon my discussions with the FBI agent involved in the Mossack and Fonseca investigation, along with my own background in federal law enforcement, it is my opinion that Jurgen Mossack and Ramon Fonseca are not only targets of a federal investigation in the Southern District of New York, but also that the Government’s position (as manifested in my own and Larry Holifield’s discussions with the taskforce), would be that both men serve a sentence of incarceration for crimes they would be alleged against them. 28. I have read and tracked a multitude of movie reviews on “The Laundromat”. The obvious common theme is that Jurgen Mossack, Ramon Fonseca, and their law firm, are involved in money laundering and tax evasion schemes with their clients. Based upon my investigation and review of thousands of pages of documents related to this case, Mossack and Fonseca did not run a retail operation, but rather a wholesaler operation that sold corporations to professional clients such as other law firms, banks, accounting firms and other professional private sector financial service providers. These clients then sold the corporations on a retail level to their own clients. In my opinion these facts are significant. A company sold to a Mossack and Fonseca client that sells a corporation to an end user doesn’t make that end user a Mossack and Fonseca Client. Nor does that end users criminal activity, if any, make Mossack Fonseca a co-conspiritor in an end user’s crime. Based upon my investigation and federal law enforcement training and experience in investigating money laundering and financial crimes, I 7 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 8 of 14 would opine that many of the movie reviewers (based on the false message of the movie) attribute criminal conduct to Jurgen Mossack, Ramon Fonseca, and Mossack and Fonseca the law firm, based upon fundamental misconceptions surrounding the creation and subsequent operation of companies. My investigation and the facts I have gathered and studied to date would lead me to the opposite conclusion, namely, that Jurgen Mossack, Ramon Fonseca and their law firm, have not engaged in money laundering, tax evasion, or conspiracies related to such crimes involving end users. In my opinion, Netflix either conveniently ignores this distinction with full knowledge of the truth in an effort to sensationalize the movie and boost ticket sales, or they simply disregard obvious facts and the whole truths which would clearly illustrate that the message of their movie, as it pertains to Mossack and Fonseca, is misguided and false. 29. Director Steven Soderbergh himself is clearly aware of the inner workings of a holding company, and the fact that an offshore company created for a specific purpose need not be nefarious. In a recent interview with Filmmaker Magazine (filmmakermagazine.com/108310-ithink-everything-is-the-directors-fault-ste ) he admits as much: Filmmaker: I was impressed that you implicate both yourself and Scott in the movie [by noting in the dialogue that both have off-shore companies]. When did that come up? Soderbergh: That was pretty late. It just seemed like the natural thing to do and the fair thing to do. Filmmaker: I think a lot of other directors wouldn’t feel that way. Soderbergh: You have to! You’re going to get asked that question. I’m like, “Let’s just do it. Let’s lay it out there.” Also, there’s nothing nefarious here. These are entities that get formed to make a specific project. So when I’m going to make Unsane, I form an LLC to make Unsane. That’s the copyright holder. That makes deals with vendors. That makes deals with the unions. That’s just so somebody doesn’t come after me and I get wiped out because I am the company. So I’m the president of that entity, but the thing 8 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 9 of 14 that was formed to make Unsane just sits there. It doesn’t generate revenue. It was just a company to make that film. That’s not a big deal. In fact, I have six now. I formed another one to make the movie I just made with Meryl. That’s another wall that you’re breaking. They’re already breaking the wall by directly addressing the viewer and now, I think, “Here’s another wall behind that we can jump over. Let’s do that.” It always gets one of the biggest laughs because people don’t expect it. I’ve gotten more questions like, “If the movie comes out, do you think something will happen to you?” Because, look, journalists get killed over this stuff. In this case, the woman from Malta [Daphne Caruana Galizia] who was chasing a story very directly connected to the Panama Papers leak was blown up in her car. I guess my attitude was, I’m not really crawling up anybody’s ass here. This is all information that’s already out there. Filmmaker: There’s a book. Soderbergh: Yeah, it didn’t feel to me like anybody was really going to care. I’m very curious to hear what Mossack and Fonseca think of this. Scott talked to them, and Jake [Bernstein] has talked to them a lot. Scott and I were very adamant that they not be stock villains, because we felt they as people were more complicated than that and the situation itself was more complicated than that. They did not invent these structures. This has been going on for a long time. They just figured out a way to do a high-volume business in creating these kind of entities. I wanted them to have every opportunity to sell us their side of this story. Based upon these statements, my opinion is that Mr. Soderbergh was educated in the ways of company formation and the purposes for creating companies. He notes there is “nothing nefarious” and he uses them himself. This tells me that he is aware that they are useful, and can absolutely be created for useful and not criminal purposes. He states his belief that his associates including Bernstein talked to Jurgen Mossack and Ramon Fonseca, and makes a conclusion well before the film is set for release in theatres or for streaming, that Mossack and Fonseca’s owners “just” figured out a way to do a lot of business in “creating” these entities. There can be no doubt that Netflix knew the position of the Plaintiffs and the role they played in the offshore company creation market. Once again, however, the film doesn’t trivialize their activities as suggested in the interview. It does quite the opposite. They are absolutely villains in 9 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 10 of 14 the movie, and they clearly have criminal activity attributed to them. My investigation reveals that there was not much communication (not “a lot”) between Netflix representatives as suggested. Based upon my investigation, the facts I have gathered and studied, my opinion is that Netflix knew their movie would sensationalize offshore business at the expense of both the business and personal reputations of Jurgen Mossack and Ramon Fonseca. 30. In the course of my investigation I have also reviewed texts sent by Jake Bernstein to Jurgen Mossack which, in my opinion, were designed to ingratiate Mr. Mossack and soften the blow of a movie that clearly painted Mossack and Fonseca as villains. For example, a July 23, 2019, text message from Mr. Bernstein to Jurgen Mossack states: I saw the film recently. I think you and Ramon will be very pleased. You don’t come out as the bad guys at all rather it’s the system and the United States that receive the bulk of the blame Anybody who has seen the trailer and the movie knows that this characterization is laughable. Clearly, Mr. Bernstein recognizes that the movie has been created to “blame” somebody and that the film focuses on this. But it is clearly a criminal Indictment of Mossack and Fonseca, far more than a general indictment of the “United States” or the “system.” Mossack and Fonseca are classic fall guys in this movie and to the contrary have no reason to be “pleased” about their portrayal in “The Laundromat.” I find it strange that an Executive producer would need to communicate such a message prior to a movie release. Taken with the very obvious mischaracterization of who is “blamed,” my opinion is that the text is a “damage control” measure that, ironically, occurred right after Bernstein had “just” seen the movie himself. THE MOVIE “THE LAUNDROMAT” 31. I have viewed the official Netflix Trailer for the movie “The Laundromat” on several occasions. There is a series of five (5) flashing screen shots that last for 10 seconds that start the 10 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 11 of 14 trailer off. These screen shots state the movie is “based on some real shit.” The message of the movie, captured by the trailer, is that it “all goes back to this law firm Mossack and Fonseca.” This allegation comes seconds before actress Meryl Streep states: “bribery, corruption, money laundering, millions and millions of dollars.” The implication is that the law firm is involved in criminal activity she cites. The message of the trailer is clearly a criminal indictment of Jurgen Mossack and Ramon Fonseca, along with their law firm. The indictment carries into the movie with a trail of innuendo that continues to support the message. 32. In one segment of the movie a horrifying scene is played out where a corrupt political Chinese oligarch is reviewing her portfolio with a “financial advisor” with whom she is having a disagreement. The oligarch poisons the financial advisor to protect her and her husband’s reputation utilizing a clear liquid and the advisor dies an agonizing death. Later the scene changes to a room where an Asian person is removing the organs of another person who is still alive and screaming, then placing the organs into a small cooler. This segment of the film left a chilling effect on me, and presumably other viewers. The scene involving a financial advisor and referring to money they were funneling away from the government, implants Mossack and Fonseca into this environment, and paints a dangerous picture of collateral consequences they would be aware of. I know from my investigation that the Chinese oligarch portrayed in the film was not a client of any of the Plaintiffs. 33. Another segment of the film surrounds a corrupt African Politician that is having an affair with his daughters’ best friend and gets caught by the daughter a day before her graduation party. In order to keep peace in the family the father makes a deal with the daughter to not tell her mother, and then confesses that the mother has already caught him with other women and he has convinced her to remain in the relationship by providing the mother with some bearer shears 11 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 12 of 14 from a “Panamanian” corporation alleged to be worth millions of dollars. The daughter accepts the agreement and takes possession of another Panamanian corporation alleged to be worth millions of dollars. In the end, the mother and the daughter are in the Panama office of Mossack and Fonseca, in a meeting room with Jürgen Mossack played by Gary Oldman. It turns out the corporations are worthless and there is no money available in their accounts. The mother and daughter storm out of the room and the Jürgen Mossack character is left sitting there alone looking like a “fool,” who finds it normal for people to show up and confirm they have been swindled. 34. In another segment of the movie the scene takes place in what appears to be Mexico. The home base of one of the most wanted drug traffickers in the world, Rafael Caro Quintero (Quintero), who was falsely rumored to be a client of Mossack and Fonseca. In the scene, an innocent American citizen mistakenly walks into a room where a Cartel member and an associate are having a meeting. The Cartel member is so paranoid that he believes that the American and his friend are U.S. government officials and decides to kill them both. The American and his friend are tied up and shot. One of the two dies and the other is still alive. The next scene shows Cartel henchmen putting the bodies in a shallow dirt grave, one being buried alive. In Bernstein’s book a similar situation involving two Americans allegedly killed and buried in a similar manner by Quintero or his henchmen is described. Anybody who reads the book, as I have, associates this movie scene with Quintero, especially since the movie is based upon Bernstein’s book. In the book, Bernstein details an incident in which Jurgen Mossack is alleged to have refused to sign documents for the Costa Rican Government which were related to property held or connected to Quintero in a Mossack and Fonseca created company. My investigation uncovered that neither Jürgen Mossack nor Ramon 12 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 13 of 14 Fonseca ever met with, or ever had any contact with Quintero, and he that he was not a Mossack and Fonseca client. What the movie doesn’t show is that Mossack and Fonseca did not renew Quintero’s corporation with the Panamanian Public Registry after being placed on notice by the Costa Rican representatives, that Quintero may have been an ultimate end user of a company that Mossack and Fonseca simply created and sold to its own client. 35. The official Netflix trailer uses the official trademarked logo of the Mossack and Fonseca Company. My investigation revealed that no permission or license to use the logo was ever given to Netflix by Mossak and Fonseca. In the film, the trademark was visible to the viewer in one scene after the fear of the Panama Papers leak took hold of the Mossack and Fonseca characters, for a full thirty (30) seconds, allowing the viewer to associate the implicated criminal and unethical behavior with the partners and the law firm, complete with a visual that contained the partners’ names. 36. During the viewing of the film I discovered at least five additional unauthorized uses of the Mossack and Fonseca logo. In one scene the logo was on the side of a building and was panned by the camera long enough for the viewer to read the logo. Another time the logo was on a client file folder and again on the door to a conference room. Also in the movie, the logo was utilized in a scene where the news channel CNN was playing in the background. 37. As of the filing of this affidavit, Jürgen Mossack, Ramon Fonseca and the company, Mossack and Fonseca have not been convicted of tax evasion, money laundering or any financial crime. Yet their company has been closed due to the banks in Panama considering them a high-risk client. This left Mossack and Fonseca without the ability to conduct financial transactions. All of their business bank accounts, and business credit cards have been closed. My investigation revealed even after the hack, certain clients wanted to continue with the law 13 Case 3:19-cv-01618 Document 4-1 Filed 10/15/19 Page 14 of 14 finn since lhey had nolhing lo hide or fear. However, since the Panama banking sector closed all Mossack and Fonseca bank accounts, lite company could no longer Cunctionas an ongoing business. Their clients had to move lo other compelitor law finns. 38. In my opinion, negative media attention has clearly damaged the reputations of the firm and its partners who, inspite of rthis fact, have always evidenced a desire to return to the corporate legal services field in the future. In my opinion, ifNetnix's movie and the false innuendo expressed therein is pennitted into the viewing home of millions of its subscribers, the Plaintiffs would be severely hindered in any attempt at a come back. I know from my training and experience, upon which I base this opinion, that financial sector instilutions including banks and other law firms would almost certainly refuse lo do business with a finn whose partners were believed by so many to be criminals involved in money laundering or other financial crimes. 39. l make this affidavit in support of the Plaintiff's request for a Temporary Restraining Order or Preliminary Injunction and for no other or improper p~urpose. Further your Arfianl sayelh not. ~ -==---=-u..:,e.::.. _ ..,.<.==-:.<..a ~- Sworn and subscribed before me this 1/Way of October, 2019 State of Connecticut ) ) )City of Stamford ) Fairfield County ) Attorney Stephan E. Seeger Commissioner of the Superior Court 14 Case 3:19-cv-01618 Document 6 Filed 10/15/19 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MOSSACK FONSECA & CO., S.A, BUFETE MF & CO., JÜRGEN MOSSACK and RAMÓN FONSECA : : : : : : : : : Plaintiffs v. NETFLIX INC. Defendant CIVIL ACTION NO: OCTOBER 15, 2019 ORDER TO SHOW CAUSE & [PROPOSED] TEMPORARY RESTRAINING ORDER Upon the Verified Complaint herein, Application for Temporary Restraining Order, Affidavit of Arthur Ventura Jr., and Memorandum of Law in Support thereof, it is hereby: ORDERED that the Defendants show cause before this Court on the October, 2019, at o’clock th day of , why an Order should not be entered pursuant to Rule 65 of the Federal Rules of Civil Procedure, enjoining the Defendants, their agents, servants, employees, and assigns, pending further order of this Court as provided by the Federal Rules of Civil Procedure, as requested by the Plaintiff. Briefs in support of the motion for preliminary injunction and/or in opposition thereto shall be filed and served by the parties as follows: Plaintiffs on or before , 2019, at Defendant on or before pm. , 2019, at pm. AND WHEREAS, it appearing from the facts alleged in the Verified Complaint and the Memorandum of Law in Support of the Temporary Restraining Order, that immediate and irreparable injury, loss, or damage will result to the Plaintiff before a hearing can be held upon Plaintiff’s motion for Preliminary Injunction, the following Proposed Order is submitted 1 Case 3:19-cv-01618 Document 6 Filed 10/15/19 Page 2 of 3 TEMPORARY RESTRAINING ORDER IT IS ORDERED that a Temporary Restraining Order hereby issue without the necessity of Plaintiffs’ posting a bond, the same continuing in full force and effect as against the Defendant, NETFLIX INC., pending the outcome of a Preliminary Injunction hearing pursuant to FRCP Rule 65, enjoining said Defendant, from releasing, publishing, showing, airing, broadcasting, disseminating and/or otherwise communicating its film “The Laundromat” in theatres and/or via its streaming platform to subscribers, using the real names of the Plaintiffs, or any of them, absent a disclaimer and/or written acknowledgement displayed on-screen to potential viewers confirming that Plaintiffs have never been convicted of money laundering, tax evasion or any financial crime or conspiracy to commit such crime, and that views expressed or implied in the movie “The Laundromat do not, and are not, meant or intended by NETFLIX INC., to constitute proof to the contrary. IT IS FURTHER ORDERED that a Temporary Restraining Order hereby issue without the necessity of Plaintiffs posting a bond, the same continuing in full force and effect as against the Defendant, NETFLIX INC., pending the outcome of a Preliminary Injunction hearing, pursuant to FRCP Rule 65, enjoining said Defendant from using Mossack Fonseca & Co., S.A.’s trademarked and protected logo(s), in the movie “The Laundromat,” and/or any promotional, informational, advertising, or other material, related to “The Laundromat,” in any Member States of the 1929 General Inter American Convention for Trademark and Commercial Protection, to wit: the United States and/or Peru, Bolivia, Paraguay, Ecuador, Uruguay, Dominican Republic, Chile, Panama, Venezuela, Costa Rica, Cuba, Guatemala, Haiti, Colombia, Brazil, Mexico, Nicaragua, or Honduras. 2 Case 3:19-cv-01618 Document 6 Filed 10/15/19 Page 3 of 3 IT IS FURTHER ORDERED that, pursuant to FRCP Rule 4(f)(3), service via e-mail and Federal Express of a copy of this Order and the papers upon which it is granted, made upon the Defendant , NETFLIX, or its Counsel, on or before ________________ , 2019, shall be deemed good and sufficient service and notice thereof. IT IS FURTHER ORDERED, Dated at, , Connecticut, this day of , 2019. BY: ____________________________________ UNITED STATES DISTRICT COURT JUDGE 3 Case 3:19-cv-01618 Document 7 Filed 10/15/19 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MOSSACK FONSECA & CO., S.A, BUFETE MF & CO., JÜRGEN MOSSACK and RAMÓN FONSECA Plaintiffs v. NETFLIX INC. Defendant : : : : : : : : : CIVIL ACTION NO: OCTOBER 15, 2019 CERTIFICATE OF NOTICE PURSUANT TO 65(b)(1) I, Stephan E. Seeger, Counsel for all Applicants and Plaintiffs, hereby certify the following: 1. That on October 11, 2019, at approximately 4:30pm, I personally contacted NETFLIX INC., care of Reed Hastings, Chairman, President & CEO, at his office at (408) 543-3700, the number that was listed on the official Netflix Website. While I was not able to reach Mr. Hastings, but I spoke with a lady who identified herself as “Rachel G.” a customer service rep. I explained to her that I needed to communicate with Mr. Hastings or somebody in his office or, alternatively, the NETFLIX Legal Department She was unable to assist me very easily, since there was no contact number or extension for the Legal Department. I communicated the fact that I needed to email and/or fax some legal documents, and she finally gave me an email: privacy@netflix.com. In addition to the email address I was given by Rachel G., I also acquired several other email addresses including two for the CEO Mr. Hastings. They were as follows: Case 3:19-cv-01618 Document 7 Filed 10/15/19 Page 2 of 3 rhastings@netflix.com, reed.hastings@netlix.com, bwickens@netflix.com and kenbury@netflix.com. 2. I attached a copy of an unsigned Verified Complaint to an email that was sent to all five of the aforementioned addresses, on October 11, 2019, at approximately 5:00pm PDT. The email read as follows regarding the movie “The Laundromat”: Dear Mr. Hastings and/or other Netflix Representative. My name is attorney Stephan Seeger, representing clients who are filing a lawsuit against you in the State of Connecticut where you are registered as a foreign corporation doing business n the State. The lawsuit sounds in Defamantion (Libel and Libel Per Se), False Light Privacy, Trademark Infringement/Dilution, Federal False Advertising, relating to false representations and the use of our clients’ logo in the movie, recently released in theaters after being showcased in Venice Italy and Toronto Canada in respective film festivals. I have attached hereto the Complaint that we intend to file, and I want to make you aware that we are requesting Injunctive relief: a Temporary Restraining Order, Preliminary Injunction and a Permanent Injunction. I am giving you notice under Rule 65 of my intention to file the Complaint and ask the Court for a Temporary Restraining Order. Please forward the name(s) of your Counsel in the event you wish me to communicate further with him or her. I can be reached directly on my cell phone at any time after this notice at 203-2735170. I can also be reached via email at seegerkid2@aol.com. 3. On Monday October 14, 2018, I received an email from Attorney Ilene Farkas. She indicated that her firm represented Netflix, and that while she was unavailable until later in the afternoon Monday, her partner Attorney Tom Ferber, (copied on the email), might be available earlier. In addition, she asked if there was a good time to call me. I told her that because of the holiday, I could be available after 7:00pm. 4. At approximately 7:58pm I received a call and was apprized that both Attorney Farkas and Attorney Ferber were on the line. I was informed that NETFLIX communicated my email with the Complaint to their firm over the weekend. I shared my intention to file some time on Tuesday October 5, 2017. I indicated that I would be asking the Court to serve any preliminary papers via email, and that prior to this time, I was willing to send copies of whatever I filed Case 3:19-cv-01618 Document 7 Filed 10/15/19 Page 3 of 3 directly with them via email. I also confirmed that they would accept service of any Pleadings as NETFLIX’s Counsel. 5. I believe that these steps taken to inform Counsel constitute sufficient notice to the Defendant, and since they have agreed to accept service via email, and I have requested an Order permitting email service, the Defendant is fully apprized of the status of the case and can avail itself of any appearance or opportunity to be heard to which it may be entitled. 6. The reason why regular service would be impractical in this case is that NETFLIX is planning to release its movie “The Laundromat” to its subscribers on or about October 18, 2019, just a few days away. The Plaintiff’s here seek injunctive relief pertaining to the contents and dissemination of the movie. 7. Counsel will send all documents as agreed with Counsel as soon as the same are filed electronically, and will follow up with a call confirming the same. THE PLAINTIFFS, BY___________________________ Stephan Seeger, Esq. (19234) Law Offices: Stephen J. Carriero 810 Bedford Street, Suite #3 Stamford, CT 06901 Tel: (203) 273-5170 Fax: (203) 357-0608 Seegerkid2@aol.com